Chavarria v. Management & Training Corporation et al

Filing 45

ORDER Denying Defendant's 32 Motion for Summary Judgment. Signed by Judge Marilyn L. Huff on 6/5/2017. (ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JESSE CHAVARRIA,

Case No.: 3:16-cv-00617-H-RBB
Plaintiff,

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ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

v.
MANAGEMENT & TRAINING
CORPORATION, a corporation, and
DOES 1 through 100, inclusive,

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[Doc. No. 32]

Defendants.

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On December 10, 2015, Plaintiff Jesse Chavarria (“Plaintiff”) filed an action in the

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California Imperial County Superior Court against Defendant Management & Training

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Corporation (“Defendant”). (Doc. No. 1-2 at 3.) Plaintiff alleges Defendant improperly

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terminated him after he sustained a work-related injury in violation of various state laws,

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including the California Fair Employment and Housing Act (“FEHA”) and the California

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Family Rights Act (“CFRA”). (Id.) On March 10, 2016, Defendant removed the case to

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the Federal Court for the Southern District of California and filed an answer. (Doc. Nos.

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1, 2.) On April 24, 2017, Defendant filed a motion for summary judgment on Plaintiff’s

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claims. (Doc. No. 32.) On April 26, 2017, the parties filed a joint motion to continue the

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hearing. (Doc. No. 33.) The same day, the Court granted the motion and continued the

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hearing to May 30, 2017. (Doc. No. 34.) On May 16, 2017, Plaintiff filed a response in
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opposition to Defendant’s motion for summary judgment. (Doc. No. 36.) On May 22,

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2017, the parties filed a second joint motion to continue the hearing. (Doc. No. 37.) The

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Court granted the motion on May 23, 2017 and reset the hearing for June 5, 2017. (Doc.

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No. 38.) The parties filed their reply briefs on May 26, 2017. (Doc. Nos. 39, 40.) The

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Court held a hearing on the motion on June 5, 2017. Attorneys Geniene B. Stillwell and

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Freda Tjoarman appeared on behalf of Plaintiff. Attorney Serafin H. Tagarao appeared

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on behalf of Defendant.

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BACKGROUND
Defendant Management & Training Corporation (“MTC”) operates the Imperial

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Regional Detention Center (the “Detention Center”), which houses U.S. Immigration &

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Customs Enforcement detainees. (Doc. No. 36-3, Chavarria Decl. ¶ 5.) Plaintiff began

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working at the Detention Center as a detention officer in the fall of 2014. (Id. ¶ 6.)

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Prior to his employment at the Detention Center, Plaintiff worked as a detention

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officer and lieutenant at another detention facility in El Centro (the “El Centro Facility”)

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from 2009 to 2014. (Id. ¶ 2.) While at the El Centro Facility, Plaintiff suffered an injury

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to his left arm and shoulder while restraining a detainee. (Id. ¶ 3.)

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In early 2015, Plaintiff contends he still had pain in his left arm and shoulder and

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was diagnosed with a muscle tear. (Id. ¶ 8.) Plaintiff subsequently took a leave of

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absence until September 15, 2015. (Id.) During this time, Plaintiff provided MTC with a

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medical report by Dr. McSweeney, which diagnosed Plaintiff with a partial tear of the left

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pectoralis major. (Doc. No. 36-3, Chavarria Decl. Ex. B at 2.) As a result of the injury,

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Dr. McSweeney opined that Plaintiff was “unable to return to his usual and customary

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occupation” and was “precluded from repetitive forceful or heavy pushing or pulling with

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the left upper extremity.” (Id. at 4.)

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After reviewing Dr. McSweeney’s report, MTC terminated Plaintiff. On October

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7, 2015, MTC’s Human Resources Manager Brandi Haley (“Haley”), called Plaintiff to

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inform him of the decision. (Doc. No. 32-5, Haley Decl. ¶ 8.) Haley followed up the

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phone conversation with a letter stating “Your request to extend your leave of absence
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indefinitely has been denied. . . . Based on medical information received from your

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physician you are no longer able to perform the essential functions of your position with

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or without an accommodation. We are treating your failure to return to work as a

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voluntary resignation, effective as of the date of this letter.” (Doc. No. 36-3 at 18.)

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On October 13, 2015, Plaintiff replied to Haley’s letter, stating “Your letter

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indicates that I requested an extension of indefinite leave of absence which is not

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accurate. . . . Furthermore, your letter states that you received information from physician

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(sic), stating that I’m no longer able to perform my essential job functions with or without

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accommodations. Nowhere does it state that I am unable to perform my essential job

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functions with or without accommodation.” (Id. at 21.)

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In response, Haley sent a letter to Plaintiff on October 28, 2015, which stated:

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“Upon receipt of your physician’s correspondence, we reviewed all vacancies at the

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facility to determine whether you could be moved into an alternative position. There

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were no positions for which you were qualified, that you could perform with or without

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reasonable accommodation. As such, we considered you to have voluntary (sic) resigned

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your position so that you would be eligible for rehire should you choose to apply for an

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open position in the future and can provide a physician’s release authorizing your return

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to work.” (Id. at 23.)

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DISCUSSION
I.

SUMMARY JUDGMENT STANDARD

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Summary judgment is proper when a moving party shows there is no genuine

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dispute of material fact and they are entitled to judgment as a matter of law. Fed. R. Civ.

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P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is no genuine dispute if

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“the record taken as a whole could not lead a rational trier of fact to find for the non-

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moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986).

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The moving party bears the initial burden of producing evidence showing they are
entitled to summary judgment. Celotex Corp., 477 U.S. at 330. The moving party can
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satisfy this burden in two ways: (1) by presenting evidence that negates an essential

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element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party

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failed to establish an essential element of the nonmoving party’s case that the nonmoving

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party bears the burden of proving at trial. Id. at 323. If the moving party satisfies their

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initial burden, then the burden shifts to the nonmoving party to introduce evidence

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showing there is a genuine dispute of material fact. Id. at 331. A fact is material when,

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under the governing substantive law, it could affect the outcome of the case. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To satisfy its burden, the non-moving

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party “may not rest upon mere allegations or denials of his pleadings.” Id. Rather, the

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nonmoving party “must present affirmative evidence . . . from which a jury might return a

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verdict in his favor.” Id. Facts and inferences are to be viewed in the light most

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favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

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II.

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ANALYSIS
A. DISABILITY DISCRIMINATION CLAIM

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Defendant moves for summary judgment, arguing Plaintiff cannot establish a

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prima facie case because his injury prevented him from performing the essential duties of

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a detention officer. (Doc. No. 32-2 at 17.) In opposition, Plaintiff argues that triable

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issues of material fact remain as to whether he was able to perform those duties.

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To establish a prima facie case of disability discrimination under the FEHA,

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Plaintiff must show “(1) he suffers from a disability; (2) he is otherwise qualified to do

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his job; and (3) he was subjected to adverse employment action because of his disability.”

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Faust v. California Portland Cement Co., 150 Cal.App.4th 864, 886 (2007). At summary

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judgment, Defendant can satisfy its initial burden under Celotex by “present[ing]

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admissible evidence either that one or more of the plaintiff’s prima facie elements is

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lacking, or that the adverse employment action was based on legitimate,

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nondiscriminatory factors.” Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th 297, 309

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(2010). The burden then shifts to Plaintiff to show there are material issues of triable

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fact. Id., see also Celotex, 477 U.S. at 330.
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To establish he was “otherwise qualified to do his job,” Plaintiff must show he

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could perform the essential duties of his job, with or without reasonable accommodations.

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Cal. Gov’t Code § 12940 (a)(1); accord Nigro v. Sears, Roebuck and Co., 784 F.3d 495,

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497 n.1 (9th Cir. 2015) (“Nigro established that with reasonable accommodations . . . he

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was able to perform the essential functions of his position. He was, therefore ‘otherwise

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qualified’ to do his job.”). The FEHA defines “essential functions” as “the fundamental

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job duties of the employment position the individual with a disability holds . . . . [and]

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does not include the marginal functions of the position.” Cal. Gov’t Code § 12926(f). A

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duty can be essential because (1) “the reason the position exists is to perform that

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function,” (2) there is a “limited number of employees available among whom the

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performance of that job function can be distributed,” or (3) “[t]he function [is] highly

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specialized, so that the incumbent in the position is hired for his or her expertise or ability

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to perform the particular function.” Cal. Gov’t Code § 12926(f)(1)(A)-(C).

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Defendant argues that Plaintiff cannot establish that he was qualified to do his job

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because the evidence shows Plaintiff was unable to restrain and secure assaultive

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detainees because of his disability, one of the essential functions listed in the Position

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Description of a Detention Officer. (Doc. No. 36-4 at 203.) In support of this

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conclusion, Defendant relies primarily on the medical report of Dr. McSweeney. (Doc.

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No. 32-3 at 108-12.) In particular, Defendant notes that Dr. McSweeney stated Plaintiff

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was “permanent and stationary,” “precluded from repetitive forceful or heavy pushing or

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pulling with the left upper extremity,” and could not “return to his usual and customary

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occupation.” (Id. at 110-11.)

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Plaintiff argues in response that Dr. McSweeney’s report is inapposite because it

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was rendered in connection with a separate workers’ compensation proceeding and, in

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any event, does not support the conclusion that Plaintiff could not perform his essential

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functions. The specific limitation mentioned by Dr. McSweeney was that Plaintiff could

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not engage in “repetitive forceful or heavy pushing or pulling.” (Doc. No. 32-3 at 111.)

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And Plaintiff argues there is no evidence in the record that restraining a detainee would
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require repetitive forceful action or heavy pushing or pulling. (Doc. No. 36 at 21.)

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Furthermore, Plaintiff contends that he is still physically capable of restraining a detainee,

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as evidenced by the fact he successfully did so after he had sustained the injury to his

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arm. (Doc. No. 36-3, Chavarria Decl. ¶14.) Finally, Plaintiff argues he is able to perform

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the essential functions of his job as he successfully passed his use of force test in

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September 2014, (Doc. No. 36-4 at 215-16), and satisfactorily performed his duties as a

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detention officer for at least six months prior to being terminated despite the injury to his

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arm, (Doc. No. 36-4 at 178).

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Viewing these facts in the light most favorable to Plaintiff, material disputes of fact

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remain as to whether Plaintiff could perform the essential functions of his job as a

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detention officer. See Liberty Lobby, Inc., 477 U.S. at 265 (“Credibility determinations,

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the weight of evidence, and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge.”). Thus, the Court denies Defendant’s motion for

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summary judgment as to Plaintiff’s disability discrimination claim.

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Defendant separately argues that Plaintiff’s disability discrimination claims fails as

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a matter of law under California Government Code § 12940 because employing Plaintiff

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would threaten the health or safety of Plaintiff or other MTC employees. (Doc. No. 32-2

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at 21.) In support of this argument, Defendant relies on Furtado v. State Personnel Bd.,

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212 Cal.App.4th 729 (2013), where a California court affirmed a lower court’s

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conclusion that a correctional officer who was “unable to disarm, subdue, or apply

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restraints to an inmate would be a hazard to others.” Id. at 748. This case, however, is

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distinguishable, both procedurally and factually. First, in Furtado, the California Court of

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Appeal was reviewing a trial court’s denial of a writ of mandate, not a motion for

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summary judgment. The California State Personnel Board (“SPB”) had decided to

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demote a correctional officer after determining he was unable to perform the essential

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functions of his previous position. Id. at 733. Because the trial court was reviewing the

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SPB decision, it only needed to find substantial evidence supporting their conclusion. Id.

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at 743. In contrast, when reviewing a motion for summary judgment, the Court must
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view the facts in the light most favorable to the non-moving party. Second, Furtado is

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factually distinguishable because there the plaintiff repeatedly failed his fitness-for-duty

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examination on account of his impairment and the SPB found he was unable to subdue an

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inmate. Id. at 756. In contrast here, there remain material questions of fact as to what

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functions Plaintiff can or cannot perform—including whether he can use force to restrain

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a detainee.

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B. FAILURE TO ACCOMMODATE CLAIM

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Under the FEHA, it is an unlawful employment practice to fail to provide a

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disabled employee with reasonable accommodations that enable the employee to perform

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the essential functions of their job. Cal. Gov’t Code § 12940(m). To establish a prima

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facie case of failure to accommodate under the FEHA, Plaintiff must show “(1) the

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plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the

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essential functions of the position, and (3) the employer failed to reasonably

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accommodate the plaintiff’s disability.” Lui, 211 Cal.App.4th at 971.

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Based on the present record, the Court agrees with Plaintiff that triable issues of

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fact remain as to whether Plaintiff could perform the essential functions of his job. As a

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result, the Court denies Defendant’s motion for summary judgment on the failure to

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accommodate claim on the grounds that Plaintiff cannot satisfy that element.

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Additionally, Defendant argues that summary judgment is proper because

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Defendant attempted to reasonably accommodate Plaintiff’s disability. In opposition,

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Plaintiff argues that reasonable accommodations were available but not offered.

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Whether an employer’s actions were reasonable is inherently factual and “the

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employer cannot prevail on summary judgment . . . unless it establishes through

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undisputed facts that (1) reasonable accommodation was offered and refused; (2) there

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simply was no vacant position within the employer’s organization for which the disabled

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employee was qualified and which the disabled employee was capable of performing

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with or without accommodation; or (3) the employer did everything in its power to find a

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reasonable accommodation, but the informal interactive process broke down because the
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employee failed to engage in discussions in good faith.” King v. United Parcel Service,

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Inc., 152 Cal.App.4th 426, 442-43 (2007) (quoting Jensen v. Wells Fargo Bank, 85

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Cal.App.4th 245, 256 (2000)). Defendant has not presented any evidence that it offered

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Plaintiff any accommodations, nor that Plaintiff failed to engage in good faith

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discussions. As such, the Court assesses whether Plaintiff was qualified to perform any

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vacant position within the organization.

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At the time Plaintiff was terminated, there were at least two vacant positions at the

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El Centro Facility: Laundry Worker – Detainee Lead and Cook II – Detainee Lead.

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(Doc. No. 32-2 at 24.) Defendant argues Plaintiff could not perform the essential

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functions of these roles because they required constant lifting and moving objects and

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also required supervising detainees.

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Plaintiff argues in opposition that he was capable of performing the essential

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functions of either open position. (Doc. No. 36 at 24.) Dr. McSweeney did not say that

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Plaintiff could not lift objects, only that he could not engage in “repetitive forceful or

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heavy pushing or pulling.” (Doc. No. 32-3 at 108-12.) And in his deposition, Warden

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Rathman testified that the only pulling motion that was required of a cook was opening

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the cooler doors but did not know how heavy the doors were or whether Plaintiff could

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open them. (Doc. No. 36-4 at 184-85.) Furthermore, Plaintiff asserts in his declaration

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that based on his observations of both the Laundry Worker and Cook position he would

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be able to perform their essential duties. (Doc. No. 36-3, Chavarria Decl. ¶15.)

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On this record, Defendant has not established that the undisputed facts show there

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were no vacant positions Plaintiff could perform. King, 152 Cal.App.4th at 373-74. As

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such, Defendant is not entitled to summary judgment of this claim.

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C. INTERACTIVE PROCESS CLAIM
California Government Code § 12940(n) makes it unlawful for “an employer . . . to

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fail to engage in a timely, good faith, interactive process with the employee or applicant

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to determine effective reasonable accommodations, if any, in response to a request for

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reasonable accommodation by an employee or applicant.” Cal. Gov’t Code § 12940(n);
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see also Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal.App.4th 952, 980 (2008).

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“The interactive process is designed to bring [employer and employee] together to speak

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freely and to determine whether a reasonable, mutually satisfactory accommodation is

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possible.” Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 61 (2006) (quoting

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Jensen, 85 Cal.App.4th at 261-62). An employer is liable under § 12940(n) when they

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bear the responsibility for a breakdown in that interactive process. Nadaf-Rahron, 166

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Cal.App.4th at 985.

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Defendant moves for summary judgment on the interactive process claim, arguing

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that Plaintiff never requested a reasonable accommodation and, in any event, Defendant

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engaged in good faith dialog with Plaintiff. (Doc. No. 32-2 at 27-28.) Plaintiff opposes,

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arguing questions of fact remain as to whether Defendant’s behavior was reasonable.

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(Doc. No. 36 at 29.)

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1. Plaintiff’s Request
Generally, an employer’s duty to engage in the interactive process is not triggered

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until the employee makes a request. See Cal. Gov’t Code § 12940(n) (“in response to a

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request”); Robinson v. HD Supply, Inc., 2012 WL 5386293, *7 (E.D. Cal. Nov. 1, 2012);

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Scotch v. Art Institute of California-Orange County, Inc., 173 Cal.App.4th 986, 1013

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(2009) (“Where the disability, resulting limitations, and necessary reasonable

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accommodations, are not open, obvious and apparent to the employer, . . . the initial

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burden rests primarily upon the employee . . . to specifically identify the disability and

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resulting limitations, and to suggest reasonable accommodations.”). However, “no magic

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words are necessary, and the obligation arises once the employer becomes aware of the

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need to consider an accommodation.” Gelfo, 140 Cal.App.4th at 62, n.22.

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Defendant’s Human Resource Manager, Haley, recalled Plaintiff asking her to

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“help him out.” (Doc. No. 36-4 at 110.) And Haley testified that she understood this to

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mean that Plaintiff was asking for accommodations:

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Q: So I guess going back to my original question, when Mr. Chavarria

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presented his release to return to work with those permanent restrictions, did
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you view him at that point as requesting reasonable accommodation of his

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restrictions?

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A: Yes.

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(Id. at 64.) As such, a reasonable juror could conclude that Defendant was aware

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of the need to consider accommodations for Plaintiff and the duty to engage in the

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interactive process was triggered.

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2. Good Faith Interactive Process
During the interactive process, “[e]ach party must participate in good faith,

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undertake reasonable efforts to communicate its concerns, and make available to the

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other information which is available, or more accessible, to one party.” Gelfo, 140

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Cal.App.4th at 62 n.22. Defendant claims it engaged in the good faith interactive process

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by exploring all available vacant positions and remaining in contact with Plaintiff. (Doc.

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No. 32-2at 29.) Plaintiff offers contrary facts that raise a triable issue of material fact

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regarding whether Defendant complied with its obligation to participate in good faith in

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the interactive process.

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Plaintiff points out that Defendant did not comply with its own internal policies in

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dealing with Plaintiff. Haley testified in her deposition that Defendant’s policy was to

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have an in-person meeting between herself, Warden Rathman, and the person requesting

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a leave or accommodation that was denied. (Doc. No. 36-4 at 66.) Haley, however,

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admitted this meeting never happened in Plaintiff’s case. (Id.) Similarly, Defendant’s

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internal policy titled “Persons with Disabilities” states that “upon the applicant or

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employee’s request for reasonable accommodation, the human resources manager must

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prepare the request for reasonable accommodation form.” (Doc. No. 36-4 at 201.)

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Haley, however, admitted she did not fill out a Reasonable Accommodation Form for

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Plaintiff. (Doc. No. 36-4 at 65.) And the parties dispute whether there were vacant

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positions open that would accommodate Plaintiff’s disability. (Doc. No. 36-4 at 8.)

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Finally, “[w]hether a specific accommodation was ‘reasonable’ and whether an
employer engaged in a good faith interactive process with a disabled employee are
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traditional questions of fact.” Ludovico v. Kaiser Permanente, 57 F.Supp.3d 1176, 1201

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(N.D. Cal. 2014). This case is no different. Given the disputed issues of material fact,

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the Court denies summary judgment on this claim.

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D. PUBLIC POLICY CLAIM

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Defendant argues Plaintiff’s wrongful termination in violation of public policy

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claim fails for the same reason as his FEHA claim of disability discrimination. (Doc. No.

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32-2 at 23, n.4.) But triable issues of material fact remain as to whether Defendant

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violated the FEHA’s prohibition on disability discrimination. As a result, a triable issue

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as to the one precludes summary judgment as to the other. See City of Moorpark v.

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Superior Court, 18 Cal.4th 1143, 1161 (1998) (“We conclude that disability

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discrimination can form the basis of a common law wrongful discharge claim.”); c.f.,

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Faust v. California Portland Cement Co., 150 Cal.App.4th 864, 886 (“Because Faust has

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viable claims for violation of the CFRA, it necessarily follows that a triable issue exists

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with respect to the fourth cause of action for wrongful termination in violation of public

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policy.”).

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E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
Defendant moves for summary judgment on Plaintiff’s claim of intentional

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infliction of emotion distress (“IIED”), arguing that claim is barred by workers’

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compensation and Defendant neither engaged in outrageous conduct nor acted with intent

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to cause extreme or severe distress. Plaintiff opposes, arguing that the claim is not barred

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by workers’ compensation and there are triable issues of fact.

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To establish a prima facie case of IIED, Plaintiff must show that Defendant

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engaged in (1) extreme and outrageous conduct, (2) with the intent to cause, or reckless

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disregard of the probability of causing, emotional distress, and (3) Defendant’s conduct

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was the actual and proximate cause of Plaintiff’s severe or extreme emotional distress.

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Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009). Conduct is extreme and outrageous when

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it “exceed[s] all bounds of that usually tolerated in a civilized community.” Hughes, 46

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Cal.4th at 1050. “[M]ere insults, indignities, threats, annoyances, petty oppressions, or
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other trivialities” are not enough. Id. at 1051. However, [t]here is no bright line standard

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for judging outrageous conduct, and a case-by-case appraisal of conduct is required.

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Corkill v. Preferred Employers Group, LLC, 2011 WL 5975678, *14 (S.D. Cal. Nov. 28,

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2011) (citing Cochran v. Cochran, 65 Cal.App.4th 488, 494 (1998)).

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Plaintiff contends that material questions of fact remain as to whether Defendant’s

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conduct was extreme and outrageous and whether Defendant had the requisite intent.

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(E.g., Doc. No. 36-2 at 16-17.) Plaintiff has offered facts to show that Defendant failed

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to follow its own affirmative action and disability accommodation policy. (Doc. No. 36-

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4 at 66, 201.) Finally, Plaintiff has offered facts tending to show that Defendant failed to

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reasonably engaged in the interactive process or explore reasonable accommodations.

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(E.g., Doc. No. 36-3 at 18-23.)

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Courts have found that “discriminatory acts can constitute outrageous conduct.”

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Boehler, 2015 WL 12743688, *3. However, merely establishing facts that support a

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violation under the FEHA is not enough to meet the extreme and outrageous standard.

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Corkill, 2011 WL 5975678, *15 (“Therefore, a claim of discrimination under the FEHA

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is not sufficient by itself to sustain a claim for intentional infliction of emotional

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distress.”) Viewing the facts in the light most favorable to Plaintiff, material issues of

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fact remain.

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Similarly, material issues of triable fact remain as to Defendant’s intent. Plaintiff

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must show that Defendant engaged in “conduct intended to inflict injury or engaged in

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with the realization that injury will result.” Potter v. Firestone Tire & Rubber Co., 6

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Cal.4th 965, 1001 (1993). Viewed in the light most favorable to Plaintiff, Plaintiff has

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offered evidence that Defendant failed to follow its own policies when dismissing him

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(e.g., Doc. No. 36-4 at 66), mischaracterized his request for accommodations as a request

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for indefinite leave (id. at 109-11), and determined that reasonable accommodations were

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unavailable without fully exploring the available options, (compare Doc. No. 36-4 at 171

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with id. at 18), At this stage, these facts are sufficient to raise a triable issue of intent.

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Defendant also argues that Plaintiff’s IIED claim fails because it is barred by

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workers’ compensation. Workers’ compensation generally provides the exclusive

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remedy for employees injured as a result of their employment. Livitsanos v. Superior

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Court, 2 Cal.4th 744, 754 (1992); Yau v. Santa Margarita Ford, Inc., 229 Cal.App.4th

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144, 161 (2014) (“Physical and emotional injuries sustained in the course of employment

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are preempted by the workers’ compensation scheme”); Cal. Lab. Code § 3602 (“the

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right to recover compensation is, except as specifically provided in this section and

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Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her

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dependents against the employer”). As an exception to this general rule, relief is not

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barred where “the employer’s conduct . . . exceeds the risks inherent in the employment

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relationship.” Livitsanos, 2 Cal.4th at 754.

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In Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876 (2008), the California

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Supreme Court revisited the exceptions to workers’ compensation and held that a claim

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for IIED in a whistleblower retaliation case was barred because it did not exceed the risks

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inherent in an employment relationship. Id. at 902-03 (quoting Shoemaker v. Myers, 52

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Cal.3d 1, 23 (1990) (“Even if such conduct may be characterized as intentional, unfair or

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outrageous, it is nevertheless covered by the workers’ compensation exclusivity

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provisions.”); see also Yau, 229 Cal.App.4th at 161 (rejecting an IIED claim in a

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whistleblower wrongful termination case). Post-Miklosy, no California appellate court

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has addressed whether IIED claims arising from disability discrimination are barred. See

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Negherbon v. Wells Fargo Bank, 2015 WL 6163570, *10 (N.D. Cal. Oct. 21, 2015)

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(“The parties do not cite—and this Court is not aware of—any post-Miklosy California

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appellate cases addressing the issue of whether an allegation of IIED arising from illegal

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discrimination and harassment is barred by Miklosy.”)

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The parties offer no federal court case law on whether IIED claims, based on

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disability discrimination, are barred by the workers’ compensation exclusive remedy. As

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to other forms of discrimination, federal district courts have found that some forms of

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discrimination exceed the risks inherent in employment. E.g., Elowson v. Jea Senior
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Living, 2015 WL 2455695, * 5 (E.D. Cal. May 22, 2015); Negherbon, 2015 WL

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6163570, *10. However, these cases dealt with different forms of discrimination than

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that alleged here. See Elowson, 2015 WL 2455695, *5 (“discrimination based on race,

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religion, age, or gender is not a normal risk inherent in employment”); Rascon v.

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Diversified Maintenance Systems, 2014 WL 1572554, *9 (E.D. Cal. April 17, 2014)

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(“Gender or race based harassment and discrimination are actions that exceed the risks

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inherent in the employment relationship.”); Webber v. Nike USA, Inc., 2012 WL

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4845549, *5 (S.D. Cal. Oct. 9, 2012) (age discrimination); see also City of Moorpark v.

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Superior Court, 18 Cal.4th 1143, 1155 (1998) (“Therefore, a section 132a violation, like

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sexual and racial discrimination, falls outside the compensation bargain.”). Determining

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whether Defendant’s conduct falls outside of risks inherent in the employment

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relationship would benefit from additional factual development. As such, the Court

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denies without prejudice Defendant’s motion for summary judgment on Plaintiff’s IIED

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claim.

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F. PUNITIVE DAMAGES
In California, punitive damages are available under Civil Code § 3294 where a

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defendant is “guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). Such

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conduct must be proven by clear and convincing evidence. Punitive damages can be

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awarded for violations of the FEHA and for intentional infliction of emotional distress.

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Myers v. Trendwest Resorts, Inc., 148 Cal.App.4th 1403, 1435-36 (2007); McInteer v.

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Ashley Distribution Services, Ltd., 40 F.Supp.3d 1269, 1295 (C.D. Cal. 2014). But not

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every violation of the FEHA is sufficient and the Court expects further development of

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the record on whether Plaintiff’s intentional infliction of emotional distress claim is

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barred by the workers’ compensation exclusive remedy. E.g., Achal v. Gate Gourmet,

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Inc., 114 F.Supp.3d 781, 798, 815 (N.D. Cal. 2015) (allowing FEHA claim but

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dismissing punitive damages).

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Viewing the facts in the light most favorable to Plaintiff, triable issues of fact
remain on claims that theoretically could support a punitive damages prayer for relief.
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See Cloud v. Casey, 76 Cal.App.4th 895, 912 (1999) (“The jury could properly conclude

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that the corporations intentionally discriminated . . . then attempted to hide the illegal

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reason for their decision with a false explanation, and that in this, they acted in a manner

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that was base, contemptible or vile.”). As such, the Court denies Defendant’s motion for

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summary judgment as to the punitive damages prayer for relief.

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G. CFRA CLAIMS
Plaintiff has voluntarily dismissed his claims based on the CFRA. (Doc. No. 36 at

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7.) As a result, the Court denies Defendant’s motion for summary judgment on these

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claims as moot.

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CONCLUSION

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For the foregoing reasons, the Court denies Defendant’s motion for summary

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judgment on all remaining claims.
IT IS SO ORDERED.
DATED: June 5, 2016
Hon. Marilyn L. Huff
United States District Judge

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