Tolefree v. Swift Transportation Co. Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Ronniesa Tolefree, No. 2:19-cv-00693-KJM-AC 12 Plaintiff, ORDER 13 v. 14 Swift Transportation Co. Inc., et al., 1S Defendants. 16 17 Swift Transportation Co., Inc. and its parent company, who are together the defendants in 18 | this employment discrimination action, move for summary judgment. Mot., ECF No. 15; Mem., 19 | ECF No. 15-1. Plaintiff Ronniesa Tolefree opposes the motion, ECF No. 24, and Swift has 20 | replied, ECF No. 25. On August 14, 2020, the court heard oral argument on the motion by 21 | videoconference. Jasmine Duel appeared for Ms. Tolefree and Alicia Kennon for Swift. 22 Several factual disputes remain unresolved, chief among them whether Ms. Tolefree could 23 | perform the essential duties of her position as a truck driver while she was pregnant. A trial is 24 | necessary to resolve these disputes. Ms. Tolefree has not, however, cited clear and convincing 25 | evidence of “oppression, fraud, or malice,” as is required for her claim of punitive damages. 26 | Swift's motion for summary judgment is thus granted in part and denied in part. 27 | 28 | ///// 1 I. EVIDENTIARY DISPUTES 2 Several disputes about what evidence the court should consider are best resolved at the 3 outset. Those disputes fall into two categories: (A) whether Ms. Tolefree did not properly 4 disclose the evidence she now relies on in opposing Swift’s motion, and (B) whether that 5 evidence is admissible. 6 A. Disclosure 7 Swift first argues Ms. Tolefree’s declaration, which she submitted with her opposition, 8 does not comply with 28 U.S.C. § 1746. That section requires unsworn declarations to be signed 9 under penalty of perjury. See Reply at 2. Although Ms. Tolefree did not originally sign her 10 declaration under penalty of perjury, she has since amended her declaration to comply with 11 § 1746. ECF No. 28. This order refers to the amended declaration, mooting Swift’s objection. 12 Swift next argues Ms. Tolefree has not complied with this District’s local rules on the 13 submission of evidence at summary judgment, and it urges the court to disregard her filing for 14 this reason. See Reply at 9–10. The local rules require a party who moves for summary 15 judgment to produce a “Statement of Undisputed Facts.” E.D. Cal. L.R. 260(a). That statement 16 must list the facts the party claims are undisputed and the evidence supporting those claims. See 17 id. Swift filed a statement under that rule. See Defs.’ Stmt., ECF No. 15-2. A party who opposes 18 summary judgment must then file a responsive statement. E.D. Cal. L.R. 260(b). The responsive 19 statement must “reproduce the itemized facts in the Statement of Undisputed Facts and admit 20 those facts that are undisputed and deny those that are disputed.” Id. The opposing party may 21 also file its own statement of undisputed facts, but that additional submission must be “concise.” 22 Id. Ms. Tolefree complied with these rules. She submitted responses to each fact Swift proposed 23 as undisputed, agreeing some were undisputed and contending others were disputed, citing 24 evidence to support her claims. See Pl.’s Stmt. at 1–34, ECF No. 24-2. She also added several 25 claims of undisputed facts and cited evidence to support those additional claims. See id. at 35–64. 26 Although her list is not especially “concise,” Swift is mistaken in claiming she violated the local 27 rules. Disregarding her filing would be draconian and the court declines to enforce the local rules 28 as Swift requests. 1 Finally, Swift asks the court to strike two declarations by witnesses Ms. Tolefree did not 2 disclose before opposing summary judgment: Peter Rose, her former supervisor at another 3 company, ECF No. 24-5; and Desiree Wood, a veteran truck driver and president of REAL 4 Women in Trucking, Inc., an organization that offers support to and advocates on behalf of 5 women in the trucking industry, ECF No. 24-6; see also Evid. Objs. at 6, 8, ECF No. 25-3. “Rule 6 26(a)(1)(A) requires a plaintiff to make certain initial disclosures to the defendant ‘without 7 awaiting a discovery request.’” R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1245 (9th 8 Cir. 2012) (quotation marks omitted). Disclosures required by Rule 26 include “the name . . . of 9 each individual likely to have discoverable information—along with the subjects of that 10 information—that the disclosing party may use to support its claims or defenses, unless the use 11 would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). A party must also disclose its 12 testifying experts. See Fed. R. Civ. P. 26(a)(2)(A). These disclosures must be amended if they 13 are “incomplete or incorrect” in some “material respect.” Fed. R. Civ. P. 26(e)(1)(A). If a party 14 does not comply with these rules, that party “is not allowed to use that information or witness to 15 supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially 16 justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The court can also impose lesser sanctions. 17 See Fed. R. Civ. P. 37(c)(1)(A)–(C); R&R Sails, 673 F.3d at 1247. 18 Here, according to Swift, Ms. Tolefree’s initial disclosures did not mention Mr. Rose or 19 Ms. Wood.1 Nor did she amend her disclosures before submitting their declarations in opposition 20 to Swift’s motion. See Evid. Objs. at 6, 8. But after Swift’s motion was submitted, the parties 21 agreed to extend discovery to allow for depositions of Mr. Rose and Ms. Wood, and they agreed 22 Swift could have more time to engage an expert to rebut Ms. Wood’s opinions. See Stip. & 23 Order, ECF No. 32. The scheduling order was amended accordingly. See id. These extensions 24 made the previous nondisclosure harmless, so no sanction is justified. 25 ///// 1 Swift did not submit a copy of those initial disclosures. The court assumes counsel’s compliance with the requirements of Rule 11 in asserting nondisclosure. 1 B. Admissibility 2 Swift’s remaining objections rely on the Federal Rules of Evidence. The judges in this 3 district, including the undersigned, have often cautioned litigants against terse and reflexive 4 evidentiary objections at summary judgment, especially when the objector is the moving party. 5 See, e.g., Lindell v. Synthes USA, 155 F. Supp. 3d 1068, 1071 (E.D. Cal. 2016); U.S. E.E.O.C. v. 6 Placer ARC, 114 F. Supp. 3d 1048, 1052–53 (E.D. Cal. 2015); Hanger Prosthetics & Orthotics, 7 Inc. v. Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122, 1126 n.1 (E.D. Cal. 2008); Burch v. 8 Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). Defense counsel is 9 encouraged to review these orders to avoid unnecessary and unpersuasive objections in the future. 10 Generally, the admissibility of evidence at summary judgment is governed by different 11 rules and different motivations than at trial. At summary judgment, Rule 56 allows objections to 12 evidence when “the material cited . . . cannot be presented in a form that would be admissible in 13 evidence.” Fed. R. Civ. P. 56(c)(2). As this language suggests, at summary judgment, the 14 propriety of evidence depends not on its form, but on its content. Celotex Corp. v. Catrett, 15 477 U.S. 317, 324 (1986); Block v. City of L.A., 253 F.3d 410, 418–19 (9th Cir. 2001). The party 16 asking the court to consider evidence bears the burden to prove that it could be presented in 17 admissible form. See Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the 18 opposing party objects, the proponent must direct the court to “authenticating documents, 19 deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other 20 evidentiary principles under which the evidence in question could be deemed admissible . . . .” In 21 re Oracle Corp. Sec. Litig., 627 F.3d 376, 385–86 (9th Cir. 2010). But if evidence falls short of 22 the “formalities of Rule 56,” a district court may nonetheless exercise its discretion “to be 23 somewhat lenient.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1261 24 (9th Cir. 1993). 25 This standard makes some evidentiary objections a poor fit for summary judgment. That 26 is true first and foremost of form objections and objections based on relevance, vagueness and 27 speculation. To the extent these objections attack the content of evidence rather than its form, 28 they duplicate Rule 56 itself. Courts disregard irrelevant, indecipherable or speculative evidence, 1 see, e.g., Burch, 433 F. Supp. 2d at 1119, and Rule 56 does not permit litigants to oppose 2 summary judgment on the basis of vague assertions or speculation, see Fed. R. Civ. P. 56(c)(1). 3 Likewise, an objection that testimony is argumentative or mischaracterizes the record either calls 4 for a credibility determination unsuited for summary judgment or would better be directed at the 5 underlying evidence itself. See, e.g., Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 6 1023, 1034 (C.D. Cal. 2013). Hearsay objections have also often been overruled at summary 7 judgment. For example, on review of summary judgment, the Ninth Circuit has considered the 8 hearsay contents of a diary whose substance would have been admissible in another form at trial. 9 See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). Foundation and authenticity 10 problems are similarly nonfatal if “the substance could conceivably be made admissible at trial.” 11 Portnoy v. City of Davis, 663 F. Supp. 2d 949, 953 (E.D. Cal. 2009) (quotation marks omitted). 12 Many of Swift’s evidentiary objections fall into these categories. It objects that the 13 declarations submitted with Ms. Tolefree’s opposition include irrelevant and vague claims, see 14 Evid. Objs. at 4, 5, 7, lack foundation, see id. at 4, 7–8, and are hearsay, see id. at 4. Some of 15 Swift’s objections are wholly unsupported by argument or citations. See, e.g., id. at 4 (objecting 16 to entirety of Ms. Tolefree’s declaration as “lack[ing] sufficient detailed facts backed by 17 supporting evidence”); id. (objecting without explanation that several paragraphs of 18 Ms. Tolefree’s declaration contain hearsay); id. at 7 (objecting to entire declaration of Peter Rose 19 because it “contains inadmissible hearsay”). 20 These objections are overruled. Because this order rests on only relevant and concrete 21 evidence, Swift’s objections to irrelevance, vagueness and speculation are moot. The court will 22 not attempt to fill in the legal arguments and citations that Swift has omitted, such as by 23 surmising what “detailed facts” or “supporting evidence” Swift thinks are missing from 24 Ms. Tolefree’s declaration. See Evid. Objs. at 4. Nor will the court attempt to discern the 25 justifications for Swift’s hearsay objections. Most of the statements in question are not hearsay in 26 any event. For example, many would not be offered to establish their truth, but rather some other 27 fact, such as notice. See, e.g., Tolefree Decl. ¶ 7 (“I spoke to my Swift fleet manager . . . and 28 informed her about my pregnancy.”); cf. Fed. R. Evid. 801(c)(2) (statement is hearsay only if 1 offered “to prove the truth of the matter asserted in the statement”). Other statements would be 2 admissible as those of a party opponent. See, e.g., Tolefree Decl. ¶ 15 (“[A Swift employee] told 3 me that I was required to immediately turn in my truck keys . . . .”); cf. Fed. R. Evid. 801(d)(2) 4 (excluding from hearsay statements of party opponent). Still others could be reduced to 5 admissible form at trial, for example by calling the declarant as a witness. See, e.g., Tolefree 6 Decl. ¶ 11 (“[My doctor] took no issue with my ability to work as a commercial truck 7 driver . . . .”). 8 Some of Swift’s objections do require closer consideration. The first of these is Swift’s 9 objection that Ms. Tolefree’s declaration is self-serving and conclusory. A declaration is not 10 objectionable simply because it is self-serving. See United States v. Shumway, 199 F.3d 1093, 11 1104 (9th Cir. 1999). A party has little reason to submit evidence that does not serve its purposes. 12 See id. And although a party cannot force its way to a trial with conclusory assertions, factual 13 claims may indeed defeat a motion for summary judgment even if they are self-serving and 14 uncorroborated. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497–98 (9th Cir. 2015). 15 Rejecting a claim merely because it is uncorroborated would amount to an assessment of the 16 declarant’s credibility, and courts do not decide whether claims are credible at summary 17 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A declaration may be 18 disregarded only if it asserts conclusions rather than facts. Nigro, 784 F.3d at 498. Here, as was 19 true of the declaration in Nigro, Ms. Tolefree’s declaration is “based on personal knowledge, 20 legally relevant, and internally consistent.” Id. It describes her work history, her perceptions of 21 her job duties, her understanding of her medical restrictions and her resignation. She may rely on 22 it in opposition to Swift’s motion. 23 Swift next objects that Ms. Tolefree’s and Mr. Rose’s declarations include several 24 assertions not based on their personal knowledge. See Evid. Objs. at 4–5, 7. Swift is correct that 25 witnesses may testify only about matters within their personal knowledge. See Fed. R. Evid. 602. 26 Witnesses have “personal knowledge” about events they have perceived through their physical 27 senses or about opinions rationally based on personal observation and experience. United States 28 ///// 1 v. Durham, 464 F.3d 976, 982 (9th Cir. 2006); United States v. Simas, 937 F.2d 459, 464 (9th Cir. 2 1991). 3 Opinions by witnesses who, like Ms. Tolefree and Mr. Rose, do not claim an expertise, 4 are subject to the further requirements of Rule 701. Under that rule, opinions must be “rationally 5 based” on the person’s perceptions and “helpful” to the trier of fact, and they must not rely on 6 “scientific, technical, or other specialized knowledge.” Fed. R. Evid. 701. An opinion is 7 “rationally based” on a witness’s perceptions if it is one a normal person would form on the basis 8 of the observed facts. See 4 J. Weinstein & M. Berger, Weinstein’s Evidence § 701.03[2] (2d ed. 9 2014). Nonexpert opinions are “helpful” if they assist a trier of fact to clearly understand the 10 witness’s testimony or to determine a fact in issue. Fed. R. Evid. 701(b). Nonexpert testimony is 11 unhelpful and thus inadmissible if it is mere speculation, expresses an opinion of law or if it 12 usurps the jury’s function. Weinstein, supra, § 701.03[3]; see also, e.g., Nationwide Transp. Fin. 13 v. Cass Info. Sys., Inc., 523 F.3d 1051, 1060–61 (9th Cir. 2008) (nonexpert witnesses may not tell 14 finder of fact what result to reach); United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007) 15 (speculative testimony inadmissible); United States v. Crawford, 239 F.3d 1086, 1090 (9th Cir. 16 2001) (legal conclusions inadmissible when presented as lay testimony). 17 Swift’s objections to Ms. Tolefree’s declaration focus on her description of her job duties 18 and her doctor’s advice about what to do and what not to do during her pregnancy. See Evid. 19 Objs. at 4–5 (citing Tolefree Decl. ¶¶ 4, 9, 10, 12, 13, 14, 19, 29, 30). These objections are 20 overruled. Ms. Tolefree knows first-hand what she did and did not do on the job. She can also 21 testify about her understanding of her doctor’s advice and restrictions. The same is true of her 22 opinions about the practical requirements of her job as a truck driver, in contrast to any paper 23 requirements Swift cites. These are opinions she has formed based on what she has seen and 24 done. They would also be helpful to a factfinder tasked with deciding whether Ms. Tolefree 25 could fulfill the essential duties of her job, as a jury would do here. These opinions are not based 26 on any scientific or technical knowledge. Normal people form opinions about what their job 27 duties are. Swift’s disagreement with Ms. Tolefree’s opinions undercuts none of these 28 conclusions. It shows simply that Swift and Ms. Tolefree have different things to say about what 1 her job duties were. Deciding who is right is for the factfinder. See infra section V.A. 2 Swift makes similar objections to Mr. Rose’s declaration. Mr. Rose describes what Ms. 3 Tolefree’s job duties were when she worked as a truck driver under his supervision before she 4 began working for Swift. See, e.g., Rose Decl. ¶¶ 6–11. Swift argues his declaration is 5 inadmissible on the whole because he did not work for Swift and does not know what Swift 6 requires of its truck drivers. See Evid. Objs. at 7. Although Swift explains this objection by 7 arguing Mr. Rose has no personal knowledge of Ms. Tolefree’s job duties at Swift, its objection is 8 better understood as an attack on the relevance of Mr. Rose’s personal knowledge. That attack 9 boils down to a disagreement with the position of Ms. Tolefree and Mr. Rose that her work with 10 him was comparable to her duties at Swift. According to Ms. Tolefree, her work with Mr. Rose 11 was identical to her work for Swift. She fulfilled deliveries under the same contract for the same 12 client and drove the same route. See Tolefree Decl. ¶¶ 8–9. For that reason, if her testimony is 13 believed, Mr. Rose’s description of her job duties from her time with him is relevant and 14 admissible because he knows first-hand what those duties were. The same is true of his opinions 15 about her ability to perform those duties. See Rose Decl. ¶ 11. An ordinary person in his 16 situation could form an opinion about whether someone with Ms. Tolefree’s medical restrictions 17 could do her job. This opinion would be helpful to a factfinder. It is not a legal opinion. Nor 18 does it tell the jury what result to reach. And it would remain for the jury to decide whether her 19 duties changed after she began working for Swift. Swift’s objections to Mr. Rose’s declaration 20 are thus overruled. 21 Swift’s remaining objections challenge Ms. Wood’s declaration under evidentiary rules 22 that apply to opinions by experts.2 See Evid. Objs. at 9–10 (citing Fed. R. Evid. 702). Although 23 Swift seeks the exclusion of Ms. Wood’s declaration in its entirety, not all of her declaration 24 expresses opinions, let alone opinions based on expertise. Some of it summarizes her first-hand 2 Ms. Wood’s declaration does not include all of the information required of a “written report” by an expert witness, such as a statement of “the compensation to be paid for the study and testimony in the case” and “a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition,” Fed. R. Civ. P. 26(a)(2)(B), but Swift does not object to that shortcoming. The court does not address these shortfalls on its own motion here. 1 knowledge. See, e.g., Wood Decl. ¶¶ 2, 6, 13–14. Swift’s objections cite only paragraph five, 2 which summarizes Ms. Wood’s understanding that Swift hires drivers with very little experience, 3 and paragraph sixteen, which summarizes Ms. Wood’s opinion that companies like Swift 4 regularly accommodate employees with injuries and other limitations. This order therefore 5 addresses those paragraphs only. 6 Swift makes three objections: (1) that Ms. Wood’s opinions are “conclusory allegations on 7 the ultimate legal issue,” (2) that she does not explain the foundational rationale of her opinions, 8 and (3) that her opinions are unreliable and irrelevant. See Evid. Objs. 9–10. The first objection 9 is overruled. “An opinion is not objectionable just because it embraces an ultimate issue,” Fed. 10 R. Evid. 704, and the opinions in paragraphs five and sixteen are not merely allegations; they 11 draw on Ms. Wood’s experience with Swift and similar companies. Swift’s second and third 12 objections rest on the same basis, challenging the reliability of Ms. Wood’s methods and the 13 relevance of her conclusions, and may be addressed together. 14 An expert qualified by “knowledge, skill, experience, training, or education” may give 15 opinion testimony if: 16 (a) the expert’s scientific, technical, or other specialized knowledge will help 17 the trier of fact to understand the evidence or to determine a fact in issue; 18 (b) the testimony is based on sufficient facts or data; 19 (c) the testimony is the product of reliable principles and methods; and 20 (d) the expert has reliably applied the principles and methods to the facts of the 21 case. 22 Fed. R. Evid. 702. “In sum, the trial court must assure that the expert testimony ‘both rests on a 23 reliable foundation and is relevant to the task at hand.’” Primiano v. Cook, 598 F.3d 558, 564 24 (9th Cir. 2010) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert I), 509 U.S. 25 579, 597 (1993)). An opinion is “relevant” if it “logically advances a material aspect of the 26 proposing party’s case.” Daubert v. Merrell Dow Pharm., Inc. (Daubert II), 43 F.3d 1311, 1315 27 (9th Cir. 1995). Reliability is a more difficult concept to pin down. “[T]here are many different 28 kinds of experts, and many different kinds of expertise,” so trial courts have “considerable 1 leeway” in deciding “how to go about determining whether particular expert testimony is 2 reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 152 (1999). The Supreme Court 3 has suggested several factors, such as testing and peer review. See id. at 149–50. But these 4 factors may not be helpful when, as here, the proposed expert relies on experience rather than 5 scientific testing. See id. at 151. For these types of expertise, it may be better to ask other 6 questions, such as whether the expert’s preparation “is of a kind that others in the field would 7 recognize as acceptable.” Id. 8 Ms. Wood’s opinions in paragraphs five and sixteen are admissible under these rules. 9 First, she is qualified by her experience to give those opinions. She worked in the trucking 10 industry for several years, including as a driver on some of the same routes Ms. Tolefree drove. 11 See Wood Decl. ¶¶ 1–2, 6, 14. She also has built relevant experience as the President of REAL 12 Women in Trucking, Inc. See id. ¶¶ 1, 4. Second, her opinions are helpful because jurors are 13 unlikely to understand the practical requirements of driving for a company like Swift, unlikely to 14 know about Swift’s reputation or hiring practices, and unlikely to know what accommodations 15 might be available and reasonable for drivers with physical limitations. Third, although she does 16 not describe her methods expressly, those methods can readily be inferred from her declaration. 17 She drew on what she learned first-hand and what she has gathered from speaking and working 18 with others in the industry over the years. See id. ¶ 16. In cases of “specialized or technical 19 expert opinion testimony” like this one, “‘reliability concerns may focus upon personal 20 knowledge or experience.’” United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir. 21 2006) (quoting Kumho, 526 U.S. at 150). Ms. Wood’s knowledge and experience create a 22 sufficiently reliable foundation under Rule 702. Swift’s objections are overruled. 23 Having clarified the factual record by resolving objections, the court turns to a review of 24 that record. 25 II. FACTUAL BACKGROUND 26 The following facts are undisputed except as noted. 27 Ms. Tolefree is a single mother of four children and the sole provider for her family. 28 Tolefree Decl. ¶ 1. She began working as a truck driver with C.R. England in Sacramento in late 1 2017. Pl.’s Stmt. No. 1. She drove a route for Walmart between Sacramento and Nevada. See 2 id. Nos. 5–6. A few months after she started, she discovered she was pregnant and notified C.R. 3 England. Id. Nos. 2–3. This was in early 2018. See id. C.R. England offered her shorter driving 4 assignments or office work as an accommodation if it proved necessary, for example if the 5 weather in the Sierra was bad and she would have needed to install snow chains on the truck’s 6 tires, which can require heavy exertion. See Tolefree Decl. ¶¶ 5–6. 7 Swift acquired the Walmart contract from C.R. England in March 2018. See Pl.’s Stmt. 8 No. 4. Ms. Tolefree successfully applied for a position with Swift driving the same route. Id. 9 Nos. 4–5. Although everyone agrees Ms. Tolefree’s job at Swift was to move freight safely from 10 Sacramento to Nevada, see id. No. 6, the specifics are disputed. 11 According to Swift, her duties included inspecting her truck, which required her to lift the 12 hood of her truck; loading and unloading cargo that might weigh as much as 200 pounds; 13 coupling and uncoupling trailers, which might require pushing and pulling with up to 100 pounds 14 of force; and preparing for hazardous weather, which might require pulling with a force of up to 15 150 pounds and installing and removing tire chains. See Swift Truck Driver Job Description, 16 Byrne Decl. Ex. C-1, ECF No. 15-3; Tolefree Dep. at 28–29, Byrne Decl. Ex. A, ECF No. 15-3. 17 Swift relies primarily on its written job description for truck drivers for these requirements. See 18 Pl.’s Stmt. No. 8. It also cites Tolefree’s deposition testimony, in which she agreed she had read 19 the written job description and had often installed tire chains and lifted the hood of her truck. See 20 Tolefree Dep. at 28–29, 38. 21 Ms. Tolefree would tell the jury Swift’s description is misleading. She says her job 22 “required very little physical activity.” Tolefree Decl. ¶ 3. She was “never required to push, pull, 23 carry, or lift anything.” Id. At the beginning of a shift, she would inspect her truck, which had 24 already been loaded by the time she arrived. Id. The necessary inspection never required heavy 25 lifting. See id. ¶ 9. After the inspection, she would climb into the truck, which did not require 26 difficult lifting or climbing, drive to Nevada, wait for the truck to be unloaded, and return to 27 Sacramento. Id. ¶¶ 3, 14. It was no different once Swift became her employer. See id. ¶ 9. She 28 never loaded or unloaded any cargo, never coupled or uncoupled any trailers, and never exerted 1 any force to release her trailer. Id. ¶ 13.c–e. She agrees snowy winters in the Sierra might make 2 it necessary to install tire chains, which she has done herself, but because it does not snow in the 3 late spring and summer, she would not have installed or removed chains while she was pregnant, 4 so that duty is irrelevant. See id. ¶ 13.f. Even if the weather were bad, Swift’s policy and federal 5 regulations would have permitted her to pull over and wait out the storm, at least by her 6 understanding. See id. 7 Mr. Rose and Ms. Wood, the former supervisor and experienced driver, respectively, 8 mentioned above, offer similar testimony. In Mr. Rose’s experience, drivers on the Walmart 9 contract, including Ms. Tolefree, did no physical labor and no heavy lifting. Rose Decl. ¶ 6. “On 10 rare occasions,” drivers might need to install chains in the winter, but “chaining tires was not 11 required during the Spring and Summer months.” Id. ¶ 8. He thinks Ms. Tolefree would not have 12 needed to chain her tires during her pregnancy. Id. He also suggests accommodations for drivers 13 who needed more “flexibility,” such as shorter relay routes or office work. See id. ¶ 9. 14 Ms. Wood has never known of any driving positions comparable to Ms. Tolefree’s position at 15 Swift that required pushing, pulling and lifting forces like those in Swift’s job description. See 16 Wood Decl. ¶¶ 10–11. She does not believe tire chains would have been necessary during 17 Ms. Tolefree’s pregnancy. See id. ¶¶ 13–14. In Ms. Wood’s experience and opinion, 18 Ms. Tolefree could have safely driven a truck for Swift on the Walmart route during her 19 pregnancy. See id. ¶ 15. Also in her opinion, “starter” companies like Swift, companies that on 20 average employ less experienced drivers, can accommodate a pregnant driver if necessary by 21 assigning her to less strenuous work. See id. ¶ 16. 22 When she was about three months into her pregnancy, Ms. Tolefree gave Swift a note 23 from her doctor confirming her pregnancy and estimating when she would deliver. Pl.’s Stmt. 24 No. 11. She continued work without any problems for about two more weeks, then sent in 25 another doctor’s note that imposed a restriction: no lifting or pulling more than 20 pounds. See 26 id. Nos. 12–13; Byrne Decl. Ex. C-3, ECF No. 15-3; Tolefree Dep. at 80. A few minutes after 27 she gave her supervisor this second note, she got a call from a manager, who told her to turn her 28 keys in immediately and not to work again until she was “one hundred percent.” Tolefree Decl. 1 ¶ 15. He did not ask whether she could continue working safely and discussed no 2 accommodations that might permit her to keep working. See id. She understood this to mean she 3 could not drive while she was pregnant—no exceptions. See id. She asked another supervisor if 4 this was correct; she was told it was. Id. ¶ 16. 5 For the next week, Ms. Tolefree tried unsuccessfully to contact Swift’s human resources 6 department. See id. ¶ 17. She eventually reached someone and explained she could and would 7 continue driving while she was pregnant. See id. ¶ 19. She also offered to take a “relay driver” 8 position driving shorter routes or work in the office, as she had done at C.R. England. See id. 9 She remembered that Swift was looking for someone to fill an office position at the time, and she 10 had experience in that work. See id. Her request was denied. Id. If she wanted an office job, she 11 would have to apply “like everybody else.” Id. 12 Meanwhile, Swift’s records show it placed Ms. Tolefree on a “medical hold” or “safety 13 hold” the same day it received the second doctor’s note. Byrne Decl. Ex. C-4, ECF No. 15-3; 14 Johnson Dep. at 50–51, Byrne Decl. Ex. D, ECF No. 15-3. As a result, she could not drive and 15 would receive no pay. See Tolefree Decl. ¶¶ 15–18. Without telling Ms. Tolefree, Swift then 16 faxed her doctor her job description—the same description Ms. Tolefree now argues is 17 inaccurate—along with a form asking the doctor whether, in her judgment, Ms. Tolefree could 18 perform the duties in the job description. See Byrne Decl. Ex. D-4, ECF No. 15-3. The faxed 19 version of the job description is slightly different from another version produced from Swift’s 20 files: it excludes a paragraph claiming Swift makes “[r]easonable accommodations” for 21 “individuals with disabilities” so that they can “perform the essential functions” of the job. 22 Compare Byrne Decl. Ex. C-1 with id. Ex. D-4. The Swift employee who was responsible for the 23 fax and the medical hold, Alys Johnson, could not explain that discrepancy in her deposition. See 24 Johnson Dep. at 70–71. 25 Ms. Tolefree’s opposition brief also claims Swift “forged” her “signature” on the form it 26 faxed to her doctor. See Opp’n at 3 (citing Pl.’s Stmt. No. 16). The record does not support that 1 claim.3 The faxed form does have a section marked “For Completion by the EMPLOYEE,” and 2 someone did write “Ronniesa Tolefree” in the space after “Your Name” in that section, but the 3 form never asks for a signature, and Ms. Tolefree’s signature appears nowhere on it. See Byrne 4 Decl. Ex. C-4 at 4-2. 5 The doctor’s office sent Swift the completed form the next week. See id. It confirms her 6 due date; the restriction against pulling, lifting or carrying more than twenty pounds; and the start 7 and end dates of her pregnancy-related “disability,” from thirty-six weeks to six weeks 8 postpartum. See id. at 4-3. The form also asked the doctor to review the attached job description 9 and decide whether Ms. Tolefree would be able to perform the duties on the description with an 10 accommodation, without an accommodation or not at all. See id. Her doctor checked the box 11 beside the third option: “No,” Ms. Tolefree would be “unable to perform [her] essential job 12 functions with or without accommodation.” See id. 13 The morning after Swift received the completed paperwork from Ms. Tolefree’s doctor, 14 Ms. Johnson emailed Ms. Tolefree and said she would be on unpaid leave until six weeks after 15 her due date. See Johnson Email (May 31, 2018, 8:58 a.m.), Byrne Decl. Ex. E-2, ECF No. 15-3. 16 Swift would not reassign her or create light duty assignments. Id. Ms. Johnson suggested 17 Ms. Tolefree visit Swift’s website and find an open job. Id. She listed a few openings in her 18 email. See id. Many were so far away that they were useless to Ms. Tolefree. See id. 19 (recommending position in Fontana, California, several hours away from Sacramento by car). By 20 contrast, Swift has offered modified work assignments to employees with work injuries. See 21 Martinez Dep. Tr. at 53–54, ECF No. 24-7. 22 Ms. Tolefree responded to Ms. Johnson’s email by writing that she had not given anyone 23 permission to talk to her doctor and explained that the only restriction on her work was “weights.” 24 Tolefree Email (May 31, 2018, 11:31 a.m.), Byrne Decl Ex. E-2, ECF No. 15-3. She told Swift 25 not to contact her doctor again without her permission. Id. Ms. Johnson responded and reiterated 26 the “only thing” she could do was go on an unpaid leave of absence and apply for a new job on 3 The court reminds counsel of the obligation imposed on attorneys by Federal Rule of Civil Procedure 11(b)(3). 1 Swift’s website—no driving, no light duty, no placement in an open or new position. Id. 2 Ms. Tolefree’s exasperation is clear in her emails, but she was not clearly “irate and hostile,” as 3 Swift now claims.4 See Mem. at 5. She applied for one of the open positions Ms. Johnson 4 suggested, but after several weeks, she had received no response. Tolefree Decl. ¶ 26. She felt 5 she had no choice but to resign. Id. ¶ 29; Byrne Decl. Ex. E-3, ECF No. 15-3. 6 III. PROCEDURAL HISTORY 7 Ms. Tolefree sued Swift in Sacramento County Superior Court the month after she 8 resigned. See Compl. at 1–2, McCalla Decl. Ex. A, ECF No. 1-2. The case was removed to this 9 court on the basis of the parties’ diversity. Not. Removal, ECF No. 1. Ms. Tolefree makes eight 10 claims, all but the eighth based on the California Fair Employment and Housing Act (FEHA), 11 Cal. Gov’t Code §§ 12940, et seq.: (1) gender discrimination; (2) pregnancy discrimination; 12 (3) disability discrimination; (4) retaliation; (5) failure to engage in the interactive process; 13 (6) failure to provide reasonable accommodations; (7) failure to maintain an environment free 14 from discrimination; and (8) wrongful termination in violation of public policy under Tameny v. 15 Atlantic Richfield Co., 27 Cal. 3d 167, 170 (1980) (“[W]hen an employer’s discharge of an 16 employee violates fundamental principles of public policy, the discharged employee may 17 maintain a tort action and recover damages traditionally available in such actions.”).5 Compl. at 18 6–17. 19 Swift now moves for summary judgment. ECF No. 15. The motion is fully briefed and 20 submitted. See Opp’n, ECF No. 24; Reply, ECF No. 25; Minutes, ECF No. 30. 21 IV. LEGAL STANDARD 22 A court may grant summary judgment “if . . . there is no genuine dispute as to any 23 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 24 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 25 resolved only by a finder of fact because they may reasonably be resolved in favor of either 4 See supra note 3. 5 The complaint erroneously cites California Government Code §§ 12940, et seq. as the legal basis of this claim. 1 party,” or conversely “whether it is so one-sided that one party must prevail as a matter of law.” 2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 251–52 (1986). 3 The moving party bears the initial burden of showing the district court “that there is an 4 absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 5 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish that there 6 is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 7 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular parts 8 of materials in the record . . . ; or show . . . that the materials cited do not establish the absence or 9 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 10 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[The 11 nonmoving party] must do more than simply show that there is some metaphysical doubt as to the 12 material facts.”). Moreover, “the requirement is that there be no genuine issue of material fact” 13 because “only disputes over facts that might affect the outcome of the suit under the governing 14 law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48 15 (emphasis omitted). 16 In deciding a motion for summary judgment, the court draws all inferences and views all 17 evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587–88 18 (citation omitted); Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record 19 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 20 ‘genuine issue for trial.’” Matsushita, 587 U.S. at 587 (quoting First Nat. Bank of Ariz. v. Cities 21 Service Co., 391 U.S. 253, 289 (1968)). 22 V. DISCUSSION 23 A. FEHA — Gender, Disability, and Pregnancy Discrimination (Claims 1–3) 24 The FEHA prohibits employers from subjecting their employees to adverse employment 25 actions because of their sex, gender, disability or pregnancy. See Cal. Gov’t Code §§ 12926(r)(1) 26 & 12940(a). “California has adopted the three-stage burden-shifting test established by the 27 United States Supreme Court for trying claims of discrimination . . . based on a theory of 28 disparate treatment,” such as the theory Ms. Tolefree advances here. Guz v. Bechtel Nat. Inc., 1 24 Cal. 4th 317, 354 (2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). 2 “At trial, [this] test places on the plaintiff the initial burden to establish a prima facie case of 3 discrimination.” Id. “Generally, the plaintiff must provide evidence that (1) [she] was a member 4 of a protected class, (2) [she] was qualified for the position [she] sought or was performing 5 competently in the position [she] held, (3) [she] suffered an adverse employment action, such as 6 termination, demotion, or denial of an available job, and (4) some other circumstance suggests 7 discriminatory motive.” Id. at 355. 8 If the plaintiff carries this burden, a presumption of discrimination forms. Id. To rebut 9 the presumption, the employer must “produc[e] admissible evidence, sufficient to ‘raise a genuine 10 issue of fact’ and to ‘justify a judgment for the employer,’ that its action was taken for a 11 legitimate, nondiscriminatory reason.” Id. at 355–56 (other alternations omitted) (quoting Texas 12 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981)). 13 “If the employer sustains this burden, the presumption of discrimination disappears.” Id. 14 at 356. The burden then shifts back to the plaintiff to “attack the employer’s proffered reasons as 15 pretexts for discrimination, or to offer any other evidence of discriminatory motive.” Id. The 16 plaintiff must “produce evidence sufficient to show that an illegitimate criterion was a substantial 17 factor in the particular employment decision.” Harris v. City of Santa Monica, 56 Cal. 4th 203, 18 232 (2013) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 278 (2013) (O’Connor, J. 19 concurring)). Evidence supporting this determination can be circumstantial or direct. Id. (citing 20 Desert Palace, Inc. v. Costa, 539 U.S. 90, 99–100 (2003)). 21 On a motion for summary judgment, however, “the burden is reversed.” Dep’t of Fair 22 Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011) (quoting Hanson v. 23 Lucky Stores, Inc., 74 Cal. App. 4th 215, 224 (1999)). To prevail at summary judgment on a 24 FEHA disparate-treatment claim, the employer must show either (1) the plaintiff cannot establish 25 an element of her claim or (2) the employer had a “legitimate nondiscriminatory reason” for the 26 adverse employment action. Id. 27 Here, Swift concedes Ms. Tolefree is a member of a protected class, Mem. at 8, but it 28 argues she cannot establish the remaining three elements of her prima facie case. The first is her 1 competence as a truck driver, or, as the state supreme court has said, that “she was able to do the 2 job.” Green v. State of California, 42 Cal. 4th 254, 262 (2007). In answering this question, 3 California courts often rely on federal cases interpreting the Americans with Disabilities Act 4 because “the FEHA is strikingly similar to the ADA.” Id. at 262. As a result, California courts 5 have adopted the federal-law concept of “essential functions” or “essential duties”: a plaintiff who 6 asserts a discrimination claim under the FEHA must prove she “can perform the essential duties 7 of the employment position,” with a “reasonable accommodation” if necessary. See id. at 264. In 8 other words, an employee must show she is a “qualified individual.” Bates v. United States 9 Parcel Service, Inc., 511 F.3d 974, 999 (9th Cir. 2007). 10 The ADA offers guidance on the question of “essential duties.” It requires, for example, 11 “consideration” of the “employer’s judgment as to what functions of a job are essential.” 12 42 U.S.C. § 12111(8). A “written description” of the job is for that reason “evidence of the 13 essential functions of the job.” Id. But “an employer may not turn every condition of 14 employment which it elects to adopt into a job function, let alone an essential job function, 15 merely by including it in a job description.” Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 16 1071 (9th Cir. 2000), rev’d on other grounds, 536 U.S. 73 (2002). A written job description is, in 17 other words, “not conclusive” evidence of what the essential duties are. Cripe v. City of San Jose, 18 261 F.3d 877, 887 (9th Cir. 2001). A written duty may not be essential, for example, if the 19 employer does not require employees to perform that duty in practice. See Bates, 511 F.3d at 20 991. Federal regulations interpreting the ADA also list several other types of evidence that might 21 show “whether a particular function is essential,” including “[t]he amount of time spent on the job 22 performing the function,” the work experience of those who have the job, and “the consequences 23 of not requiring [an employee] to perform the function.” 29 C.F.R. § 1630.2(n)(3). In short, 24 determining “essential job functions is generally a question of fact.” Weeks v. Union Pac. R. Co., 25 137 F. Supp. 3d 1204, 1223 (E.D. Cal. 2015). And if that question is unresolved, summary 26 judgment cannot be granted. See, e.g., Bates, 511 F.3d at 991 (citing Taylor v. Rice, 451 F.3d 27 898, 907 (D.C. Cir. 2006)). 28 ///// 1 Here, many factual uncertainties about the essential functions of Ms. Tolefree’s job 2 preclude summary judgment. As summarized above, Swift’s written job description requires 3 drivers to load and unload heavy cargo, couple and uncouple trailers using up to one hundred 4 pounds of force, and prepare truck tires for hazardous weather, which might demand more than 5 one hundred pounds of pulling force. See supra section II at 11. But Ms. Tolefree has pointed to 6 contradictory evidence. She avers she was never required to push or pull or lift with such force. 7 See id. at 11–12. She never loaded or unloaded any cargo, never coupled or uncoupled any 8 trailers, and never exerted any force to release her trailer. See id. Mr. Rose agrees that drivers on 9 the Walmart contract never exert themselves as Swift argues they must, and in Ms. Wood’s 10 experience, it would be unprecedented in the industry if they did. See id. Ms. Tolefree, Mr. Rose 11 and Ms. Wood each would also testify that snow chains would likely have been unnecessary 12 during Ms. Tolefree’s pregnancy. See id. A jury could credit that testimony and find that Swift’s 13 written job description was inaccurate. As a result, Swift has not established that Ms. Tolefree 14 could not perform her essential duties. 15 An adverse employment action is the next element in Ms. Tolefree’s prima facie case. See 16 Guz, 24 Cal. 4th at 355. Swift claims she suffered no adverse employment action because she 17 resigned. See Mot. at 3. This argument has two flaws. 18 First, it ignores the California Supreme Court’s holding that adverse employment actions 19 include any action that “materially affects the terms, conditions, or privileges of employment.” 20 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1051 (2005). Here, a factfinder could 21 reasonably conclude that Swift put Ms. Tolefree on a months-long unpaid leave of absence soon 22 after learning she was pregnant. It would then be reasonable to conclude that a long, unpaid leave 23 of absence “materially affected” the terms of Ms. Tolefree’s employment and was thus an adverse 24 employment action. Swift does not show otherwise by calling the leave of absence an 25 accommodation. See Mem. at 9. Under California regulations, “[w]hen an employee can work 26 with a reasonable accommodation other than a leave of absence, an employer may not require that 27 employee to take a leave of absence.” Cal. Code Regs. tit. 2 § 11068(c); see also Ravel v. 28 Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1096–97 (E.D. Cal. 2017) (finding leave 1 inappropriate where plaintiff was still capable of performing duties of her position, albeit from 2 different location). 3 Second, a reasonable factfinder could conclude Ms. Tolefree was constructively 4 discharged. The doctrine of constructive discharge “transforms what is ostensibly a resignation 5 into a firing.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1251 (1994). “In order to 6 establish a constructive discharge, an employee must plead and prove . . . that the employer either 7 intentionally created or knowingly permitted working conditions that were so intolerable or 8 aggravated at the time of the employee’s resignation that a reasonable employer would realize 9 that a reasonable person in the employee’s position would be compelled to resign.” Id. These 10 conditions “must be sufficiently extraordinary and egregious to overcome the normal motivation 11 of a competent, diligent, and reasonable employee to remain on the job.” Id. at 1246. Here, when 12 the evidence is viewed in the light most favorable to Ms. Tolefree’s case, it could permit the 13 conclusion that her work environment became intolerable. As summarized above, a jury could 14 find that soon after Swift learned Ms. Tolefree was pregnant, it took away her keys, stopped 15 giving her work, delayed responses to her calls, stopped paying her, refused her proposed 16 accommodations out of hand, spoke to her doctor without telling her, sent her doctor an 17 inaccurate job description that inexplicably omitted a paragraph that mentioned the possibility of 18 reasonable accommodations and ignored her application for another open position. See supra 19 section II at 13–15. The sole provider for a family of four children could reasonably find these 20 conditions intolerable and feel as though she had no choice but to resign. 21 The final disputed element of Ms. Tolefree’s prima facie case requires her to prove at trial 22 that the circumstances of her termination suggest discriminatory intent. See Guz, 24 Cal. 4th at 23 355. Swift has not shown Ms. Tolefree cannot prove this element at trial. Its refusal to discuss 24 any accommodation other than a months-long unpaid leave of absence suggests that her 25 pregnancy was the reason for its decision, not her ability to do her job. Swift has also given 26 modified duties to injured employees, but not to pregnant employees. See supra section II 27 at 12–13. 28 ///// 1 Swift argues it was not required to transfer Ms. Tolefree to another position or create a 2 new position for her, but that argument misreads the statute on which it relies. See Mem. at 8 3 (citing Cal. Gov’t Code § 12945(a)(3)(C)). The provision it cites requires a transfer only if the 4 employee requests a transfer.6 Ms. Tolefree does not allege a transfer request was denied; her 5 primary contention is that she was still capable of performing the tasks required by her position as 6 a truck driver with only minor accommodations, if any. Compl. ¶ 10; Tolefree Decl. ¶ 19. Nor 7 does she contend that Swift should have created a new position for her; she points out that Swift 8 has considered modified work assignments for employees with disabilities unrelated to pregnancy 9 as evidence of a discriminatory motive, and she would testify that Swift had an open position she 10 could fill. See Tolefree Decl. ¶ 19. 11 Swift could also prevail on summary judgment if it had proof beyond dispute that it had a 12 legitimate nondiscriminatory reason for the adverse employment action. See Dep’t of Fair Emp’t, 13 642 F.3d at 745. It argues its decision was indisputably nondiscriminatory because it did not put 14 Ms. Tolefree on leave immediately after receiving the first note from her doctor, but rather only 15 after the second, which included a weight restriction. See Mem. at 8. That is one reasonable 16 interpretation of the evidence. Another reasonable interpretation, however, supports 17 Ms. Tolefree’s claim: Swift waited because it was searching for a pretext, and it found one in the 18 second doctor’s note, namely her weight restriction. This interpretation is reasonable, as 19 explained above, because a jury could agree with Ms. Tolefree that her job did not actually 20 require any heavy lifting, pulling or exertion. 21 The court denies summary judgment of the gender, disability, and pregnancy 22 discrimination claims. 6 California Government Code section 12945 provides, in pertinent part, that it is an “unlawful employment practice” “[f]or an employer to refuse to temporarily transfer a pregnant employee to a less strenuous or hazardous position for the duration of the pregnancy if the employee so requests, with the advice of the employee’s physician, where that transfer can be reasonably accommodated.” Cal. Gov’t Code 12945(a)(3)(C). But an employer is not required “to create additional employment that the employer would not otherwise have created, nor shall the employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.” Id. 1 B. FEHA — Retaliation (Claim 4) 2 Under the FEHA, an employer may not “retaliate or otherwise discriminate against a 3 person for requesting accommodation . . . , regardless of whether the request was granted.” Cal. 4 Gov’t Code § 12940(l)(4); see also Moore v. Regents of Univ. of Cal., 248 Cal. App. 4th 216, 5 245–46 (2016) (recognizing retaliation claim based on request for reasonable accommodations). 6 To establish a prima facie case of retaliation under the FEHA, a plaintiff must show: (1) she 7 engaged in a protected activity; (2) she was subjected to an adverse employment action; and 8 (3) there was a causal link between the protected activity and the adverse action. Yanowitz, 9 36 Cal.4th at 1042. 10 Here, a jury could find Swift constructively terminated Ms. Tolefree’s employment soon 11 after she asked for an accommodation that would permit her to continue working as a truck driver 12 while she was pregnant and relied on an inaccurate job description to do so. Swift does not 13 address this evidence or explain why section 12940(l)(4) is inapplicable. See Mem. at 10; Reply 14 at 7. Accordingly, the court denies summary judgment as to the retaliation claim. 15 C. FEHA — Failure to Engage in the Interactive Process (Claim 5) 16 The FEHA requires employers to engage in a “timely, good faith, interactive process with 17 the employee . . . to determine effective reasonable accommodations, if any, in response to a 18 request for reasonable accommodation . . . .” Cal. Gov’t Code § 12940(n). Ultimately, “[t]o 19 prevail on a claim for failure to engage in the interactive process, the employee must identify a 20 reasonable accommodation that would have been available at the time the interactive process 21 occurred.” Nealy v. City of Santa Monica, 234 Cal. App.4th 359, 379 (2015). 22 A factfinder could conclude on this record that soon after learning of Ms. Tolefree’s 23 condition, Swift placed her on a “safety hold” and unpaid leave. See Pl.’s Stmt. No. 15. The 24 record could therefore support her claim that Swift unilaterally presented her with a stark choice 25 without any sort of interactive process: go on leave or apply to other jobs within the company. 26 See Opp’n at 17. Ms. Tolefree has also proposed accommodations, as required, which a 27 factfinder could agree were reasonable: (1) allowances for lighter duty or shorter routes in the 28 event of bad weather; or (2) an assignment to a current open position in an office setting. See id. 1 She is also prepared to testify essentially that she could do her job without any accommodations 2 and that this would have been clear to Swift if it had undertaken any interactive process. Thus, 3 the court denies summary judgment on this claim. 4 D. FEHA — Failure to Provide Reasonable Accommodations (Claim 6) 5 The FEHA requires employers to “make reasonable accommodation for the known 6 physical or mental disability of an . . . employee.” Cal. Gov’t Code § 12940(m)(1). California 7 regulations provide that “[w]hen an employee can work with a reasonable accommodation other 8 than a leave of absence, an employer may not require that employee to take a leave of absence.” 9 Cal. Code Regs. tit. 2, § 11068(c); see also Ravel, 228 F. Supp. 3d at 1096 (finding leave 10 inappropriate where plaintiff was still capable of performing duties of her position, but from 11 different location). 12 Swift contends the unpaid leave of absence it offered was a reasonable accommodation. 13 See Mem. at 11; Reply at 8. As explained above, however, a jury must decide what plaintiff’s job 14 actually entailed and whether she required any accommodation to perform it. Construing the 15 evidence in the light most favorable to plaintiff, significant testimonial evidence supports her 16 argument she could have performed the essential functions of her job as a truck driver even 17 without any accommodation and that alternatives to an unpaid leave might have been reasonable. 18 See supra section II at 11–13. This dispute precludes summary judgment of this claim 19 E. FEHA — Failure to Take Reasonable Steps Under FEHA to Prevent 20 Discrimination and Harassment (Claim 7) 21 The FEHA requires employers “to take all reasonable steps necessary to prevent 22 discrimination and harassment from occurring.” Cal. Gov’t Code § 12940(k). As Ms. Tolefree 23 clarified at hearing, her claim rests on alleged discrimination, not harassment. See Compl. ¶¶ 93– 24 94. Such a claim requires a plaintiff to show (1) she was discriminated against, (2) the employer 25 failed to take all reasonable steps to prevent discrimination, and (3) that failure caused injury to 26 the plaintiff. Viloria v. Adams & Assocs., Inc., No. 16 -00314, 2017 WL 4422363, at *7 (E.D. 27 Cal. Oct. 5, 2017) (citing Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 804 (N.D. Cal. 28 2015)). “The employer’s duty to prevent discrimination is affirmative and mandatory.” Northrop 1 Grumman Corp. v. Workers’ Comp. Appeals Bd., 103 Cal. App. 4th 1021, 1035 (2002). Courts 2 have considered such claims to be “essentially derivative of a discrimination claim.” See Achal, 3 114 F. Supp. 3d at 804; see also Viloria, 2017 WL 4422363, at *8. 4 As discussed above with respect to the discrimination claims, there is a genuine dispute 5 whether Swift’s actions were discriminatory. The record would also permit a reasonable 6 factfinder to conclude that Ms. Johnson, the employee ostensibly responsible for policing 7 discriminatory practices for Swift, knew about the discriminatory effect of Swift’s policies. See 8 generally Byrne Decl. Ex. E-2. Therefore, a reasonable factfinder could impute knowledge of 9 discrimination to Swift. See Achal, 114 F. Supp. 3d at 804–05 (imputing knowledge of 10 discrimination to organization where human resources director had actual knowledge). Finally, 11 Ms. Tolefree could establish injury by establishing her constructive discharge, among other 12 harms. 13 The court denies summary judgment on this claim. 14 F. Wrongful Termination in Violation of Public Policy (Claim 8) 15 “An employer may not discharge an at will employee for a reason that violates 16 fundamental public policy.” Keshe v. CVS Pharmacy Inc., No. 14-08418, 2016 WL 1367702, *4 17 (C.D. Cal. Apr. 5, 2016) (quoting Stevenson v. Super. Ct. of Los Angeles Cty., 16 Cal. 4th 880, 18 887 (1997)). A claim for termination in violation of public policy is commonly called a Tameny 19 claim after Tameny v. Atlantic Richfield Co., supra. A successful FEHA discrimination claim 20 supports a “derivative” claim of wrongful termination in violation of public policy. Viloria, 2017 21 WL 4422363, at *6 (citing Ayala, 263 F. Supp. 3d at 913); see also Rojo v. Kliger, 52 Cal. 3d 65, 22 70–71 (1990) (“[S]ex discrimination in employment may support a claim of tortious discharge in 23 contravention of public policy.”). Because the court has denied summary judgment for the 24 discrimination claims, this derivative claim also necessarily survives. 25 Defendant’s motion for summary judgment on this claim is denied. 26 G. Punitive Damages 27 Under California law, for a plaintiff to succeed on a claim of punitive damages, she must 28 prove by “clear and convincing evidence” that the defendant is “guilty of oppression, fraud, or 1 | malice.” Cal. Civil Code § 3294(a). Ms. Tolefree does not point to any evidence as independent 2 | proof of “oppression, fraud or malice” but argues that “[d]iscrimination 1s in and of itself 3 | fraudulent, malicious, oppressive, or done with conscious disregard as to plaintiffs rights.” Opp’n 4 | at 19-20 (citing Cloud v. Casey, 76 Cal. App. 4th 895, 912 (1999)). In Cloud, the evidence 5 | permitted a finding not only that defendants had discriminated on the basis of gender, but also 6 | that they had “attempted to hide the illegal reason for their decision with a false explanation.” 7 | 76 Cal. App. 4th at 912. When an employer does not attempt to hide the discriminatory reason 8 | for its action, “oppression, fraud, or malice” are not automatically present; rather some additional 9 | evidence of wrongful conduct is needed. See Scott v. Phoenix Schools, Inc., 175 Cal. App. 4th 10 | 702, 716-17 (2009) (“The only evidence of wrongful conduct directed toward Scott was her 11 | termination for an improper reason. .. . There was no evidence Phoenix attempted to hide the 12 | reason it terminated [her].”). 13 Plaintiff's reliance on Cloud alone, without providing any independent evidence, means 14 | there is no basis for a jury to find “oppression, fraud or malice.” See Opp’n at 19-20. The court 15 | grants defendant’s motion with respect to punitive damages. 16 | VI. CONCLUSION 17 The motion for summary judgment is granted in part as to the request for punitive 18 | damages. The motion is otherwise denied. 19 A Status Conference re: Trial Setting is scheduled for July 8, 2021, at 2:30 p.m. No later 20 | than fourteen days before that conference, the parties shall meet and confer and file a joint 21 | statement informing the court (1) whether any party objects to referral to a settlement conference 22 | before the assigned magistrate judge or another judge of this court, and (2) if any party has 23 | demanded a jury trial, whether the parties stipulate to withdrawing that demand and conducting a 24 | bench trial. 25 This order resolves ECF No. 15. 26 IT IS SO ORDERED. 27 DATED: May 26, 2021. (] 28 l oe / { g_/ CHIEF NT] ED STATES DISTRICT JUDGE