Cotterman v. Jan X-Ray Services, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST COTTERMAN, an individual, No. 2:19-cv-01235-MCE-CKD 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 JAN X-RAY SERVICES, INC., a Michigan corporation, 15 Defendant. 16 17 18 On May 17, 2019, Plaintiff Ernest Cotterman (“Plaintiff”) initiated this lawsuit in the 19 Superior Court of California, County of Sacramento, against his former employer Jan 20 X-Ray Services, Inc. (“Defendant”) for alleged discrimination, retaliation, failure to 21 prevent discrimination and retaliation, failure to provide reasonable accommodations, 22 failure to engage in a good faith interactive process, declaratory judgment, denial of and 23 discrimination based upon the use of sick leave, and wrongful termination. Ex. A, Not. 24 Removal, ECF No. 1-2 (“Compl.”). Defendant subsequently removed the case to this 25 Court on diversity grounds pursuant to 28 U.S.C. § 1332. Not. Removal, ECF No. 1. 26 Presently before the Court is Defendant’s Motion for Summary Judgment or, in the 27 alternative, Partial Summary Judgment. ECF No. 17 (“Def.’s Mot.”). This matter has 28 /// 1 been fully briefed. ECF Nos. 19 (“Pl.’s Opp’n”), 21 (“Def.’s Reply”). For the reasons set 2 forth below, Defendant’s motion is GRANTED in part and DENIED in part.1 3 4 BACKGROUND2 5 6 A. Plaintiff’s Employment and Job Position with Defendant 7 Plaintiff is a former union employee of Defendant, who is a leading provider of 8 non-destructive testing solutions in the United States and specializes in pipeline and 9 facility new construction inspections. Pl.’s Response Def.’s Statement of Undisputed 10 Facts, ECF No. 19-4 ¶¶ 1, 3. Defendant utilizes a variable union workforce, meaning 11 that union employees are not engaged full-time, but rather are assigned project-by- 12 project, and when not actively working for Defendant, may be working for other 13 companies. Id. ¶ 2. Plaintiff belonged to the International Union of Operating Engineers, 14 Local 112, and consistent with Defendant’s use of its variable union workforce, had 15 multiple short-term stints performing assignments for Defendant. Id. ¶ 3. 16 Plaintiff worked as a Level I Technician. Id. ¶ 4. According to his job description: 17 The main function of the Level I Technician is to provide field support for the Level II Technician and perform basic NDT 18 [nondestructive testing] services under direct guidance of the Level II Technician. This will include using, supplying, and/or 19 holding materials or tools; transporting equipment and cleaning work area and equipment; learning different NDT 20 methods and techniques; following established methods of NDT inspection and procedures to determine compliance 21 under direct supervision; and learning field operational practices to compliment Level I certification. The Level I 22 Technician position is typically the mid-level position for [Defendant’s] employees and is a union position. 23 24 Ex. D, ECF No. 17-6, at 47 (Level I Technician job description). Level I Technicians 25 work in tandem with Level II Technicians and are often referred to as “helpers,” meaning 26 1 Because oral argument would not have been of material assistance, the Court ordered this matter submitted on the briefs. E.D. Local Rule 230(g). 27 2 Unless otherwise stated, the facts are assembled from Plaintiff’s Response to Defendant’s 28 Statement of Undisputed Facts in Support of Motion for Summary Judgment (ECF No. 19-4). 1 that their job is to help the Level II Technicians who are responsible for taking and 2 reading x-rays of welds in steel pipes to make sure there are no flaws in the weld. Pl.’s 3 Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶¶ 6–7. 4 A function of the Level I Technician is to carry, set up, and move the 55-pound 5 camera used by the Level II Technician to take x-rays.3 Ex. D, ECF No. 17-6, at 49 6 (Level I Technician job description). After the x-rays are taken, the Level II Technician 7 develops the x-rays and then analyzes them to evaluate the structural integrity of the 8 welds. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 41. While 9 the Level II Technician develops and analyzes the x-rays and completes the necessary 10 certification paperwork, the Level I Technician will move the camera and set it up for the 11 next x-ray. Id. ¶ 42. Additionally, a Level I Technician must be able to climb, crawl, 12 crouch, lift, pull, push, reach, and make repetitive motions. Ex. D, ECF No. 17-6, at 49– 13 50 (Level I Technician job description). 14 B. Defendant’s Policies 15 Defendant maintains an Accident Response & Reporting Policy (the “Reporting 16 Policy”), which provides the following: 17 2.0 SCOPE AND RESPONSIBILITIES: 18 1. Employees: All employees shall report all safety incidents to their immediate supervisor for investigation. This 19 reporting is to be IMMEDIATELY (at least within 1 hour) AFTER THE INCIDENT/INJURY. Employees will be expected 20 to participate in the incident investigations as required. Site Supervisors are responsible for reporting incidents on larger 21 work sites. 22 2. Supervisors: All supervisors are to immediately make an initial report to the Company Safety Officer. Also, [a]ll 23 supervisors shall promptly (WITHIN 24 HOURS) investigate all safety incidents and submit appropriate reports to the 24 25 3 The parties dispute the significance of this responsibility. Defendant states that this is the 26 primary and essential function of the Level I Technician position. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 8 (citing Ex. I, Hammond Dep., ECF No. 17-6, at 134–36). On the 27 other hand, Plaintiff agrees that carrying the camera was one of his job responsibilities but disputes that this was his primary responsibility. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 28 ¶ 8 (citing Cotterman Decl., ECF No. 19-1 ¶¶ 5–6). 1 JANX/Applus RTD4 Company Safety Officer for review. They shall determine causes and take immediate action to correct 2 any unsafe acts or conditions within their control. 3 3. Management: Initially the [Environmental,] Health & Safety [(“EHS”)]5 Director will advise and assist the employee’s 4 immediate supervisor on actions to be taken. The Local JANX/Applus RTD Company Safety Officer (Local EHS 5 Manager) shall promptly review all safety incident reports and develop the corrective action to prevent similar incidents. The 6 Corporate EHS Manager – USA will assist JANX/Applus RTD – USA in maintaining the required OSHA Logs and 7 communication with the insurance companies. All results shall be communicated to workers, by crew briefings or posting. 8 Incident records will be retained by JANX/Applus RTD for at least five years three years [sic], beyond the current year of 9 the incident date. 10 . . . 11 5.0 LATE AND/OR FALSE REPORTING 12 Any employee, who delays or falsifies reporting, will be subject to discipline, up to the possibility of termination. 13 14 Ex. G, ECF No. 17-6, at 120–22; Ex. 4, ECF No. 19-6, at 86–88 (same). According to 15 Defendant, the Reporting Policy requires employees to report all safety incidents to their 16 immediate supervisor within one hour of the occurrence and then submit an Incident- 17 Accident-Injury Report form to the EHS Manager within 24 hours. Def.’s Mot. at 7. 18 Plaintiff interpreted the Reporting Policy to mean that he was permitted to report his 19 injury to his immediate supervisor, which he believed to be his Level II Technician, and 20 that it was the supervisor’s responsibility to submit an incident report to the EHS 21 Manager. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶¶ 12– 22 14. 23 Defendant also has a policy regarding reasonable accommodations (the “RA 24 Policy”): 25 /// 26 4 Applus RTD USA, Inc. is the parent company of Defendant. See Gross Decl., ECF No. 17-3 ¶ 1. 27 5 The parties’ briefs and supporting documentation interchangeably refer to EHS Manager or Supervisor as the “Health, Safety, & Environmental” (“HSE”) Manager or Supervisor. The Court assumes 28 that both EHS and HSE designations refer to the same position. 1 [Defendant] is committed to principles of equal opportunity for all job applicants and employees. In keeping with this policy, 2 [Defendant] does not engage in impermissible discrimination based on any protected characteristic, including but not limited 3 to an individual’s disability or religion. [Defendant] will also make reasonable accommodations that are necessary to 4 comply with the state and federal disability and religious discrimination laws. This means that [Defendant] will make 5 reasonable accommodations for the known physical or mental disability, known medical condition, or religious practice or 6 dress of an applicant or employee, consistent with its legal obligation to do so. 7 As part of its commitment to make reasonable 8 accommodations, [Defendant] also wishes to participate in a timely, good faith, interactive process with the applicant or 9 employee to determine effective reasonable accommodations, if any, that can be made in response to a request for 10 accommodations. Applicants and employees are invited to identify reasonable accommodations that can be made to 11 assist them to perform the essential functions of the position they seek or occupy. They should contact Management or 12 Human Resources as soon as possible to request the opportunity to participate in a timely interactive process. By 13 working together in good faith, [Defendant] hopes to implement any reasonable accommodations that are appropriate and 14 consistent with its legal obligations. 15 Ex. F, ECF No. 17-6, at 61–62 (union employees handbook). 16 C. Plaintiff’s Injury and Medical Treatment 17 Plaintiff’s most recent assignment with Defendant took place between May 8 and 18 June 3, 2017, in Sacramento, California. Pl.’s Response Def.’s Statement of Undisputed 19 Facts, ECF No. 19-4 ¶¶ 5, 10. On May 18, 2017, Plaintiff suffered an injury to his right 20 shoulder while lifting the 55-pound camera. Id. ¶ 11; Cotterman Decl., ECF No. 19-1 21 ¶ 10. After sustaining the injury, Plaintiff informed his Level II Technician Dustin Jones 22 (“Jones”), who Plaintiff considered to be his immediate supervisor. Id. ¶ 11. However, 23 Plaintiff did not report his injury to his manager, Wes Summers (“Summers”), or 24 complete an Incident-Accident-Injury report within the required time frames. Def.’s Mot. 25 at 7–8 (citing Ex. G, ECF No. 17-6); see Ex. A, Cotterman Dep., ECF No. 17-6, at 12. 26 Initially, Plaintiff did not think his injury was severe enough to seek immediate medical 27 care and thus it did not merit a report higher than Jones. Pl.’s Response Def.’s 28 Statement of Undisputed Facts, ECF No. 19-4 ¶ 14. However, over the next ten days, 1 Plaintiff told Jones several times that he was in pain, but Jones minimized the issue and 2 told Plaintiff to walk it off. Cotterman Decl., ECF No. 19-1 ¶¶ 12–13. Jones also told 3 Plaintiff that he should wait several days before seeking treatment so Jones could 4 accompany him to the doctor. Id. ¶ 14. 5 On May 28, 2017, Plaintiff went to the hospital for treatment and the physician’s 6 assistant who examined Plaintiff prepared a Doctor’s First Report of Occupational Injury 7 or Illness (“Doctor’s First Report”), in which Plaintiff stated he “pulled a muscle in [his] 8 right shoulder while doing [his] normal task at work,” specifically lifting the camera and 9 cranking the motion. Ex. 6, ECF No. 19-6, at 154. Plaintiff was diagnosed with right 10 shoulder pain and prescribed pain medication, but the physician’s assistant wrote that 11 Plaintiff is able to perform usual work as long as he could tolerate the pain and that 12 Plaintiff needs to follow-up with his primary care provider. Id. After his hospital visit, 13 Plaintiff returned to work, told Jones about his treatment at the hospital, and gave Jones 14 the Doctor’s First Report to fax it to the upper management. Pl.’s Opp’n at 7; see Ex. A, 15 Cotterman Dep., ECF No. 17-6, at 12 (stating that Plaintiff did not inform Summers that 16 he was seeking medical treatment). According to Plaintiff, Jones was very upset that 17 Plaintiff sought medical care without permission and told Plaintiff that he would be 18 “blackballed” by Defendant, meaning Plaintiff would be prevented from working in the 19 field for Defendant. Cotterman Decl., ECF No. 19-1 ¶ 18. 20 The following day, Plaintiff told a fellow employee that he injured himself using the 21 camera crank, and that employee relayed this conversation to Summers. Ex. J, ECF 22 No. 17-6, at 144 (Summers’s investigative notes). On May 30, 2017, Summers spoke to 23 Defendant’s EHS Manager Steve Hammond (“Hammond”) about Plaintiff’s injury. Pl.’s 24 Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 18. Later that same 25 day, Summers called Plaintiff, who then informed Summers of his injury and subsequent 26 medical treatment. Id. ¶ 19. When Summers asked why Plaintiff did not report his injury 27 to him, Plaintiff responded that he told Jones. Ex. J, ECF No. 17-6, at 144 (Summers’s 28 investigative notes). Summers reminded Plaintiff that the Reporting Policy requires 1 employees to report any incidents within 24 hours to Summers or to the EHS 2 department. Id. Plaintiff acknowledged the reporting requirement but asserts that he did 3 not violate the Reporting Policy because his understanding was that he was permitted to 4 report his injury to Jones, his immediate supervisor, and that it was Jones’s responsibility 5 to submit an incident report to the EHS Manager. Pl.’s Response Def.’s Statement of 6 Undisputed Facts, ECF No. 19-4 ¶¶ 12–14. 7 D. Meeting Between Plaintiff, Summers, and Hammond on June 2, 2017 8 On June 2, 2017, Summers and Hammond met with Plaintiff to discuss Plaintiff’s 9 violation of Defendant’s policies and employee handbook for failing to report his injury in 10 a timely manner and for seeking medical treatment without notifying management 11 (“June 2 Meeting”). Def.’s Mot. at 8; Ex. A, Cotterman Dep., ECF No. 17-6, at 15–16. 12 Plaintiff was provided a written warning in an Employee Corrective Action form for not 13 abiding with Defendant’s accident reporting policies, which stated that “[a]dditional 14 deviations from policy or procedure may result in termination.” Ex. E, ECF No. 17-6, at 15 53–54. Although he was given an opportunity to contest the written warning, Plaintiff 16 signed the form. Id. (“It has been reported by your own statement, that you had 17 knowledge of the reporting procedures but opted not to follow them.”); Pl.’s Response 18 Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 24. Regardless, Plaintiff 19 continues to assert that he abided the Reporting Policy by notifying Jones. Id. The 20 parties dispute as to what next transpired at the meeting. 21 1. Defendant’s Version of Events 22 Aside from discussing Plaintiff’s failure to report his injury, Defendant states that 23 the other main purpose of the June 2 Meeting was for Defendant to engage with Plaintiff 24 in a timely, good faith interactive process as required by Defendant’s RA Policy. Def.’s 25 Mot. at 9. Plaintiff provided the Doctor’s First Report, which stated that Plaintiff required 26 further treatment, namely, to follow up with his primary care provider. Ex. B, ECF 27 No. 17-6, at 43. Based on that report, Plaintiff’s current physical complaints, and his 28 stated need for additional medical treatment, Defendant claims it provided Plaintiff with a 1 reasonable accommodation by granting him time off work and paying for Plaintiff’s flight 2 home to Pennsylvania so he could obtain treatment with his primary care provider there. 3 Def.’s Mot. at 9 (citing Ex. I, Hammond Dep., ECF No. 17-6, at 138). Defendant denies 4 informing Plaintiff that he was terminated during the course of this meeting. See Ex. E, 5 ECF No. 17-6, at 53–54 (Employee Corrective Action form) (showing that none of the 6 termination boxes were marked and stating that Defendant was “removing [Plaintiff] from 7 duty until [he] ha[s] been evaluated by [his] personal care provider as directed by the 8 treating physician/PA.”); Ex. I, Hammond Dep., ECF No. 17-6, at 139–40 (stating that he 9 never told Plaintiff he was terminated or laid off during the June 2 Meeting). 10 2. Plaintiff’s Version of Events 11 In addition to the written warning, Plaintiff alleges that Defendant informed him 12 that it was denying Plaintiff’s worker’s compensation claim and sending Plaintiff home to 13 Pennsylvania. Cotterman Decl., ECF No. 19-1 ¶¶ 22–23. Ultimately, Plaintiff says that 14 the main purpose of the meeting was to terminate his employment. Pl.’s Response 15 Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 24. Plaintiff does not dispute that 16 Summers and Hammond did not verbally or explicitly state that he was terminated, or 17 that they did not provide him with a formal termination notice, but nonetheless Plaintiff 18 contends that termination is the only reasonable interpretation of Summers and 19 Hammond’s words and conduct. See Ex. A, Cotterman Dep., ECF No. 17-6, at 23 20 (stating that Plaintiff did not think he would be allowed to return to work, but no one said 21 anything verbally); Ex. A, Cotterman Dep., ECF No. 19-6, at 36–38; Pl.’s Response 22 Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 34. In the past, Defendant hired 23 Plaintiff on a job-by-job basis and Plaintiff was laid off after a job was completed; when 24 Defendant needed Plaintiff for a new assignment, it would rehire him. Cotterman Decl., 25 ECF No. 19-1 ¶ 8; Ex. A, Cotterman Dep., ECF No. 19-6, at 5–8. Thus, removing 26 Plaintiff from the job in question and flying him back home to Pennsylvania was in effect 27 a termination and would have been understood as such by Summers and Hammond. 28 Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 29. 1 Plaintiff asked not to be sent home, showed Summers and Hammond the 2 Doctor’s First Report which did not impose any work restrictions aside from pain 3 tolerance, and told them that he could continue to work so long as he was taking pain 4 medication and Jones helped him temporarily with more strenuous tasks such as lifting 5 the camera. Cotterman Decl., ECF No. 19-1 ¶¶ 24, 29. Summers and Hammond 6 allegedly ignored Plaintiff’s requests, did not inquire as to whether Plaintiff could do his 7 job, and did not offer or discuss any other reasonable accommodation. See Ex. A, 8 Cotterman Dep., ECF No. 19-6, at 24–26. Instead of sending Plaintiff to see his primary 9 care provider in Pennsylvania, Summers and Hammond gave Plaintiff the business card 10 of a physician’s assistant in Pennsylvania who worked with Defendant and its workers’ 11 compensation carrier, WorkPlace Health. Cotterman Decl., ECF No. 19-1 ¶ 26; Ex. A, 12 Cotterman Dep., ECF No. 19-6, at 25. Hammond told Plaintiff to “go home, get better 13 and then call them back and maybe they’ll bring [Plaintiff] back.” Ex. A, Cotterman Dep., 14 ECF No. 19-6, at 24. 15 E. Subsequent Events 16 Plaintiff returned to Pennsylvania and Defendant claims it continued the ongoing 17 interactive process through its medical management provider AllOne Health (“AllOne”) to 18 determine if Defendant could accommodate Plaintiff’s restrictions. Gross Decl., ECF 19 No. 17-3 ¶ 10. On June 15, 2017, Plaintiff visited the physician’s assistant referred by 20 Summers and Hammond. See Ex. C, ECF No. 17-6, at 45 (email from worker’s 21 compensation claim representative); Ex. 7, ECF No. 19-6, at 156–58 (report completed 22 by physician’s assistant). That same day, the nurse case manager from AllOne emailed, 23 among others, Hammond and the worker’s compensation claim representative, stating 24 that Plaintiff attended his medical appointment and that the medical provider ordered 25 magnetic resonance imaging (“MRI”) of Plaintiff’s right shoulder to rule out rotator cuff 26 tear and changed Plaintiff’s pain medication. Ex. C, ECF No. 17-6, at 45 (email from 27 worker’s compensation claim representative). Shortly thereafter, the worker’s 28 compensation claim representative responded to AllOne’s nurse case manager and 1 stated that Plaintiff’s duties would be modified to “no lifting pushing or pulling over 2 10lbs,” “no overhead work,” and “no repetitive reaching.” Id. Plaintiff returned for a 3 follow-up visit on June 23, 2017, to review the results of the MRI, and the report 4 completed by the physician’s assistant also provided that Plaintiff’s current restrictions 5 were modified to no lifting, pushing, or pulling over ten pounds; no overhead work; and 6 no repetitive reaching. Ex. 7, ECF No. 19-6, at 158 (report completed by physician’s 7 assistant); Ex. 8, ECF No. 19-6, at 161–62 (emails from AllOne’s nurse case manager). 8 Plaintiff agrees that these work restrictions were imposed but alleges the 9 physician’s assistant imposed them on Plaintiff prior to seeing the results of his MRI and 10 in direct contradiction of the Doctor’s First Report. Ex. A, Cotterman Dep., ECF No. 19- 11 6, at 29–31. Furthermore, both the physician’s assistant and nurse case manager noted 12 in their reports and correspondence that Plaintiff said “he was let go” by Defendant, but 13 Plaintiff states that Defendant never made any attempt to correct him. Ex. 7, ECF 14 No. 19-6, at 156 (report completed by physician’s assistant); Ex. 8, ECF No. 19-6, at 163 15 (email from AllOne’s nurse case manager); but see Hammond Dep., ECF No. 17-6, at 16 140 (stating that it was not true that Plaintiff had been let go by Defendant despite 17 Plaintiff’s statements and thus “nothing was followed up on.”). 18 Defendant, reiterating that it did not terminate Plaintiff’s employment, claims that 19 after receiving and considering Plaintiff’s recently imposed work restrictions, Defendant 20 determined that it could not accommodate those restrictions in his current position as a 21 Level I Technician: 22 Accordingly, Plaintiff being able to carry, set up, and manipulate the x-ray camera, which weighed approximately 55 23 pounds, was an essential job function of his Level I Technician position, and could not be eliminated and/or simply handled by 24 the Level II Technician because the Level II Technician has other job duties. To require the Level II Technician to move 25 and set up the x-ray camera would turn a two man job into a one man job. Thus, this was not a reasonable accommodation 26 that Defendant could provide. 27 Defendant also determined that it had no alternative work available for Plaintiff. Defendant could not reassign Plaintiff to 28 perform administrative work because Defendant does not 1 have any administrative offices in California or Pennsylvania (where Plaintiff resides). Additionally, there were no available 2 light duty positions, as all of Defendant’s California and Pennsylvania employees are considered field workers, either 3 Level I or Level II Technicians. Additionally, based on his qualifications, certifications, and experience, Plaintiff was not 4 qualified to be a Level II Technician. 5 The reasonable accommodation that Defendant did provide Plaintiff was time off work, beginning on June 2, 2017 when it 6 agreed to fly him home so he could receive follow up medical treatment with his primary care physician, as well as additional 7 time off while he recovered from his injury and subsequent treatment. 8 9 Gross Decl., ECF No. 17-3 ¶¶ 12–14; see also Ex. D, ECF No. 17-6, at 49 (Level I 10 Technician job description). 11 Plaintiff’s injury ultimately proved to be more serious and on November 20, 2017, 12 Plaintiff had shoulder surgery. Pl.’s Response Def.’s Statement of Undisputed Facts, 13 ECF No. 19-4 ¶ 51; see Ex. H, ECF No. 17-6, at 126 (medical report). As a result, 14 Plaintiff was unable to work for one year, or until November 2018, while recovering from 15 the surgery. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 52 16 (citing Ex. A, Cotterman Dep., ECF No. 17-6, at 33). Although Plaintiff says he would 17 have been able to work as a Level I Technician without any accommodations between 18 November 2018 and November 2019, Plaintiff did not reach out to Defendant or his 19 union about continuing his employment, believing that his employment had already been 20 terminated by Defendant. Id. ¶¶ 53–54. 21 As a union employee with a variable, project-based work schedule, Plaintiff was 22 responsible for notifying his union when he was ready or able to work. Id. ¶ 55. At the 23 time, Defendant had a policy that union employees who had not been assigned to a job 24 for 180 days were considered inactive but were eligible to perform assignments without 25 having to go through the new hire process again for up to one year. Id. ¶¶ 56–57. 26 According to Defendant, it placed Plaintiff on layoff status after 180 days of inactivity but 27 did not terminate his employment. Id. ¶ 56. After a year of inactivity and Plaintiff’s 28 failure to follow-up with Defendant regarding his status, Defendant claims that, this time, 1 Plaintiff’s employment was terminated in June 2018. Id. ¶ 58. While Plaintiff does not 2 dispute these facts, he continues to assert that he was already terminated by then so 3 such facts are irrelevant. See Pl.’s Response Def.’s Statement of Undisputed Facts, 4 ECF No. 19-4 ¶¶ 52–59. 5 6 STANDARD 7 8 The Federal Rules of Civil Procedure provide for summary judgment when “the 9 movant shows that there is no genuine dispute as to any material fact and the movant is 10 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 11 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 12 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 13 Rule 56 also allows a court to grant summary judgment on part of a claim or 14 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 15 move for summary judgment, identifying each claim or defense—or the part of each 16 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 17 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a 18 motion for partial summary judgment is the same as that which applies to a motion for 19 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 20 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 21 judgment standard to motion for summary adjudication). 22 In a summary judgment motion, the moving party always bears the initial 23 responsibility of informing the court of the basis for the motion and identifying the 24 portions in the record “which it believes demonstrate the absence of a genuine issue of 25 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 26 responsibility, the burden then shifts to the opposing party to establish that a genuine 27 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. 28 /// 1 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 2 391 U.S. 253, 288–89 (1968). 3 In attempting to establish the existence or non-existence of a genuine factual 4 dispute, the party must support its assertion by “citing to particular parts of materials in 5 the record, including depositions, documents, electronically stored information, 6 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 7 not establish the absence or presence of a genuine dispute, or that an adverse party 8 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 9 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 10 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 11 Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 12 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing party must also 13 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 14 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 15 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 16 before the evidence is left to the jury of “not whether there is literally no evidence, but 17 whether there is any upon which a jury could properly proceed to find a verdict for the 18 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 19 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 20 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 21 Rule [56(a)], its opponent must do more than simply show that there is some 22 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 23 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 24 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587. 25 In resolving a summary judgment motion, the evidence of the opposing party is to 26 be believed, and all reasonable inferences that may be drawn from the facts placed 27 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. 28 at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing 1 party’s obligation to produce a factual predicate from which the inference may be drawn. 2 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 3 810 F.2d 898 (9th Cir. 1987). 4 5 ANALYSIS6 6 7 Defendant moves for summary judgment on all of Plaintiff’s causes of action in 8 the following order: (1) failure to provide reasonable accommodations; (2) failure to 9 engage in a good faith interactive process; (3) disability discrimination in violation of 10 California’s Fair Employment and Housing Act (“FEHA”); (4) retaliation in violation of 11 FEHA; (5) failure to prevent discrimination and retaliation; (6) declaratory judgment; (7) 12 denial of and discrimination based upon the use of sick leave; and (8) wrongful 13 termination. The Court will address each cause of action in that order as well. 14 A. Fourth Cause of Action: Failure to Provide Reasonable Accommodations in Violation of FEHA 15 16 A failure to reasonably accommodate an employee who has a known physical or 17 mental disability is an unlawful employment practice violative of FEHA. Cal. Gov’t Code 18 § 12940(m); A.M. v. Albertsons, LLC, 178 Cal. App. 4th 455, 463–64 (2009). “A 19 reasonable accommodation is ‘a modification or adjustment to the workplace that 20 enables the employee to perform the essential functions of the job held or desired.’” 21 Lui v. City and Cnty. of S.F., 211 Cal. App. 4th 962, 971 (2012) (quoting Nadaf-Rahrov v. 22 Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 974 (2008)); see also Cal. Gov’t Code 23 § 12926(p) (listing examples of reasonable accommodations to include “[j]ob 24 6 Plaintiff’s opposition was due on April 29, 2021, but the opposition was not filed until April 30 at 25 8:39 a.m. The Court recognizes Defendant’s request that Plaintiff’s opposition be stricken because it was filed late. Def.’s Reply at 4–5. Because Plaintiff’s opposition was filed together with two declarations from counsel and a paralegal explaining that the opposition, while timely prepared, was filed late due to 26 technical issues, the Court believes that good cause has been shown under Federal Rule of Civil Procedure 6(b) to permit the late filing. See ECF No. 20. While Defendant also claims that Plaintiff did not 27 serve Defendant with his opposing papers until April 30 at 12:48 a.m., counsel for Defendant does not allege that it was precluded from filing an adequate reply. Defendant’s request to strike Plaintiff’s 28 opposition is therefore DENIED. 1 restructuring, part-time or modified work schedules, reassignment to a vacant position, 2 acquisition or modification of equipment or devices, adjustment or modifications of 3 examinations, training materials or policies, the provision of qualified readers or 4 interpreters, and other similar accommodations for individuals with disabilities.”). “An 5 employer, however, is not required to provide ‘an accommodation that is demonstrated 6 by the employer . . . to produce undue hardship to its operation.’” Dep’t of Fair Emp. and 7 Hous. v. Lucent Tech., Inc., 642 F.3d 728, 743 (9th Cir. 2011) (quoting Cal. Gov’t Code 8 § 12940(m)). 9 The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the 10 plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed 11 to reasonably accommodate the plaintiff’s disability. 12 Cuiellette v. City of L.A., 194 Cal. App. 4th 757, 766 (2011); Taylor v. Trees, Inc., 13 58 F. Supp. 3d 1092, 1111 (E.D. Cal. 2014). Here, Defendant claims that Plaintiff 14 cannot establish the second or third prongs.7 15 Defendant first claims that Plaintiff could not have performed the essential 16 functions of the Level I Technician position, specifically carrying and lifting the 55-pound 17 camera. Def.’s Mot. at 13. In support, Defendant relies on the medical restrictions 18 imposed after Plaintiff’s visit with the physician’s assistant in Pennsylvania on June 15, 19 2017, arguing “that following the incident and up until his surgery in November 2017, 20 Plaintiff[] had medical restrictions of no lifting or pulling over 10 pounds, no overhead 21 work, and no repetitive reaching.” Id.; see Ex. C, ECF No. 17-6, at 45. However, those 22 medical restrictions were not imposed until after the June 2 Meeting when Defendant 23 already decided to put Plaintiff on leave to return to Pennsylvania for a follow-up visit 24 with his primary care provider. See Ex. C, ECF No. 17-6, at 45 (email from worker’s 25 compensation claim representative); Ex. 7, ECF No. 19-6, at 156–58 (report completed 26 7 Defendant argues for the first time in its Reply brief that it was not on notice of a qualifying 27 disability under FEHA on June 2, 2017. See Def.’s Reply at 5–7. “The district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). 28 Therefore, the Court will not grant summary judgment for Defendant on that basis. 1 by physician’s assistant). The fact that such restrictions were imposed at a later date is 2 irrelevant as to what Defendant knew at the time it made the decision to first put Plaintiff 3 on leave on June 2, 2017. 4 Plaintiff does not dispute that carrying and lifting the camera is an essential 5 function, but instead claims that he could have performed the other functions and only 6 needed Jones’ assistance in lifting the camera. Pl.’s Opp’n at 12. Citing to the Doctor’s 7 First Report, Plaintiff states that no work restrictions were in place at the June 2 Meeting. 8 Id. at 13; see Ex. 6, ECF No. 19-6, at 153–54. In fact, the Doctor’s First Report provides 9 that Plaintiff hurt his shoulder while lifting and cranking the camera, presumably the 10 same function Defendant claims Plaintiff cannot perform, and yet, the physician’s 11 assistant still wrote that Plaintiff could perform his usual work as long as he tolerates the 12 pain. Id. at 154. Therefore, a genuine factual dispute arises as to whether Plaintiff could 13 have performed the essential functions of his job with or without accommodation when 14 Defendant decided to put Plaintiff on leave on June 2, 2017. 15 The parties also dispute whether Defendant failed to reasonably accommodate 16 Plaintiff’s disability. According to Defendant, “[t]he reasonable accommodation that 17 Defendant did provide Plaintiff was time off work, beginning on June 2, 2017[,] when it 18 agreed to fly him home so he could receive follow up medical treatment with his primary 19 care physician, as well as additional time off while he recovered from his injury and 20 subsequent treatment.” Pl.’s Response Def.’s Statement of Undisputed Facts, ECF 21 No. 19-4 ¶ 50 (emphasis added); see also Def.’s Mot. at 9, 11. “[A] finite leave [of 22 absence] can be a reasonable accommodation under FEHA, provided it is likely that at 23 the end of the leave, the employee would be able to perform his or her duties.” Hanson 24 v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226 (1999); see Cal. Code Regs. tit. 2, 25 § 11068(c). However, “[w]hen an employee can work with a reasonable accommodation 26 other than a leave of absence, an employer may not require that the employee take a 27 leave of absence.” Cal. Code Regs. tit. 2, § 11068(c); see also Wallace v. Cnty. of 28 Stanislaus, 245 Cal. App. 4th 109, 134 (2016). 1 As discussed above, there is a triable issue of fact as to whether Plaintiff could 2 have performed the essential functions of his job with or without accommodation on 3 June 2, 2017. Defendant contends that it was abiding by the Doctor’s First Report “by 4 flying him home so that he could follow up with his primary care provider.” Def.’s Mot. at 5 14. However, in assessing what accommodations are appropriate, an employer cannot 6 simply point to medical reports that have been generated to escape liability under FEHA; 7 it “cannot slavishly defer to a physician’s opinion without first pausing to assess the 8 objective reasonableness of the physician’s conclusions.” Gelfo v. Lockheed Martin 9 Corp., 140 Cal. App. 4th 34, 50 n.11 (2006). Defendant relied solely on the statement in 10 the Doctor’s First Report that Plaintiff needed to follow-up with his primary care provider 11 and seemingly ignored the other statement that Plaintiff could perform his usual tasks as 12 long as he tolerates pain. Furthermore, even accepting Defendant’s argument that 13 further evaluation was needed and thus it was a reasonable accommodation to grant 14 Plaintiff leave on June 2, 2017, to return to Pennsylvania to see his primary care 15 provider, it is undisputed that Plaintiff was not sent home to see his primary care provider 16 but instead the physician’s assistant referred by Summers and Hammond.8 See Ex. C, 17 ECF No. 17-6, at 45; Ex. 7, ECF No. 19-6, at 156–58. 18 In sum, making all inferences in favor of Plaintiff, the Court finds that there are 19 triable issues of fact as to whether Plaintiff could have performed the essential functions 20 of his position and whether Defendant reasonably accommodated Plaintiff’s disability on 21 June 2, 2017. Accordingly, Defendant’s Motion for Summary Judgment as to this cause 22 of action is DENIED. 23 /// 24 /// 25 8 Defendant further claims that there was no vacant, light duty position for Plaintiff, and that Plaintiff was not qualified to be promoted to a Level II Technician. See Def.’s Mot. at 14. However, such 26 alternatives were not considered until after June 15, 2017, when the modified restrictions were imposed. See Gross Decl., ECF No. 17-3 ¶¶ 10–14. As a result, Plaintiff’s ex parte Objection to and Motion to Strike 27 Evidence Introduced on Reply is DENIED as moot. ECF No. 22 (seeking to strike the Supplemental Declaration of Stacy Gross and its accompanying exhibits submitted in support of Defendant’s argument 28 that Plaintiff was not qualified to be promoted to a Level II Technician). 1 B. Fifth Cause of Action: Failure to Engage in Good Faith Interactive Process in Violation of FEHA 2 3 Defendant states that “[t]he other main purpose of the June 2, 2017[,] meeting 4 was so that Defendant could engage Plaintiff in a timely, good faith interactive process 5 based on Plaintiff’s reported symptoms.”9 Def.’s Mot. at 9, 16 (stating that Defendant, in 6 part, “engaged in the good faith interactive process by flying Plaintiff home so that he 7 could follow up with his primary care provider, as the [Doctor’s First Report] presented to 8 Defendant recommended.”) (citing Ex. F, ECF No. 17-6, at 61–62 (RA Policy)). Under 9 California law, an employer must engage in a “timely, good faith, interactive process . . . 10 in response to a request for reasonable accommodation by an employee or applicant 11 with a known physical or mental disability or known medical condition.” Cal. Gov’t Code 12 § 12940(n). A failure to so engage constitutes an unlawful employment practice under 13 FEHA, and independent of liability for other FEHA claims. Wysinger v. Automobile Club 14 of So. Cal., 157 Cal. App. 4th 413, 424 (2007). Triggering an employer’s obligation to 15 engage in this regard requires no special request; it simply arises once the employer 16 becomes aware of the need to consider an accommodation. Scotch v. Art Institute of 17 Cal., 173 Cal. App. 4th 986, 1013 (2009); Cal. Code Regs. tit. 2, § 11069(b). The 18 employer must accordingly explore various accommodations even in the absence of a 19 specific request from the employee. See Nadaf-Rahrov, 166 Cal. App. 4th at 984 (“The 20 interactive process requires communication and good-faith exploration of possible 21 accommodations between employers and individual employees with the goal of 22 identifying an accommodation that allows the employee to perform the job effectively.”) 23 (internal quotation marks and alterations omitted). Moreover, “for the process to work 24 /// 25 9 Once again, Defendant argues for the first time in its Reply brief that, because Defendant had 26 insufficient information to put it on notice that Plaintiff had a qualifying disability, the duty to engage in a timely, good faith interactive process was not triggered at the June 2 Meeting. See Def.’s Reply at 13–14. 27 As previously stated, the Court will not grant summary judgment on such a basis, especially here where Defendant explicitly stated in its Motion that it engaged in a good faith interactive process with Plaintiff on 28 June 2, 2017. 1 ‘[b]oth sides must communicate directly, exchange essential information and neither side 2 can delay or obstruct the process.’” Id. at 984–85. 3 As stated above, there are triable issues of fact as to whether Plaintiff could have 4 performed the essential functions of his position with or without accommodation, as well 5 as whether Defendant failed to reasonably accommodate Plaintiff on June 2, 2017. For 6 example, the Doctor’s First Report, which was presented to Summers and Hammond at 7 the June 2 Meeting, states that Plaintiff could have continued working so long as he 8 tolerated the pain. A jury could reasonably infer that, as of June 2, 2017, alternative 9 accommodations besides putting Plaintiff on leave should have been considered, such 10 as Plaintiff’s suggestion that Jones assist him in lifting the camera. See Ex. 1, 11 Cotterman Dep., ECF No. 19-6, at 32; Cotterman Decl., ECF No. 19-1 ¶ 29. 12 Furthermore, during his deposition, Hammond testified that he could not recall if 13 Plaintiff “espouse[d] any kind of opinion about whether he should go see his primary 14 doctor, whether he shouldn’t return to work, [or] whether he could return to work[.]” 15 Ex. 2, Hammond Dep., ECF No. 19-6, at 52–54. Similarly, Plaintiff testified that, at the 16 June 2 Meeting, there was no discussion as to what Plaintiff could or could not do with 17 his injury despite Plaintiff presenting Summers and Hammond with the Doctor’s First 18 Report that said he could work. Ex. 1, Cotterman Dep., ECF No. 19-6, at 24; see also 19 Cotterman Decl., ECF No. 19-1 ¶ 24 (stating that Summers and Hammond ignored 20 Plaintiff’s request to not be sent home). Accordingly, the Court finds triable issues of fact 21 as to whether Defendant engaged in a good faith interactive process and thus, summary 22 judgment as to this cause of action is DENIED. 23 C. First, Second, Third, and Sixth Causes of Action: Disability Discrimination, Retaliation, and Failure to Prevent Discrimination and 24 Retaliation in Violation of FEHA and Declaratory Judgment 25 The FEHA prohibits discriminatory discharge stemming from an employee’s 26 actual disability, or the employer’s perception that he or she is disabled, if the employee 27 can otherwise perform with reasonable accommodations. Cal. Gov’t Code § 12940. 28 Under subdivision (a) of the statute, it is unlawful employment practice to discharge an 1 employee based on a disability. FEHA also explicitly declares its legislative intent as 2 providing “protection when an individual is erroneously or mistakenly believed to have 3 any physical . . . condition . . .” even if he or she actually does not. Id. § 12926.1. 4 A three-step burden shifting framework, first enunciated by the United States 5 Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is generally 6 used to assess discrimination claims in the absence of direct evidence of discrimination. 7 Scotch, 173 Cal. App. 4th at 1004–05. Under the so-called McDonnell Douglas test, a 8 plaintiff must make a prima facie case of discrimination by producing evidence that he or 9 she (1) was either disabled or perceived to be disabled; (2) was qualified for the position 10 with the requisite skills to perform its essential functions with or without 11 accommodations; (3) suffered an adverse employment action like discharge that was 12 (4) substantially motivated by the plaintiff’s disability or perceived disability. Id. (citing 13 Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 355 (2000); see also Nadaf-Rahrov, 166 14 Cal. App. 4th at 962). If the required prima facie showing is made, a presumption of 15 discrimination arises and the burden shifts to the employer to rebut that presumption with 16 evidence of a legitimate, non-discriminatory reason for its adverse action against the 17 employee. Scotch, 173 Cal. App. 4th at 1004–05. Finally, if that burden is met, the 18 employee must then offer evidence that the reasons proffered by the employer to justify 19 its decisions were mere pretexts. Id. 20 Similarly, FEHA prohibits any retaliation against an employee in response to a 21 request for accommodation. Cal. Gov’t Code § 12940(m)(2). To establish retaliation 22 under FEHA, the employee must show that he was engaged in protected activity, and 23 that he was subsequently subjected to an adverse employment action that was 24 substantially motivated by that activity. Moore v. Regents of the Univ. of Cal., 25 248 Cal. App. 4th 216, 244 (2016). The McDonnell Douglas burden shifting analysis 26 applies. Id. at 248. In addition, close temporal proximity between an employee’s 27 protected conduct and an adverse employment action may support an inference that the 28 /// 1 action was retaliatory. Rope v. Auto-Chlor Sys. of Wash., 220 Cal. App. 4th 635, 653 2 (2013) (abrogated by statute on other grounds). 3 Here, Defendant claims that “Plaintiff cannot establish a triable issue that 4 Defendant subjected him to an adverse employment action for requesting reasonable 5 accommodation” because Defendant did not terminate Plaintiff at the June 2 Meeting.10 6 Def.’s Mot. at 17–18. It is undisputed that Plaintiff “was not explicitly told he was 7 terminated, and was not given a formal termination notice.” Pl.’s Opp’n at 20; see Ex. E, 8 ECF No. 17-6, at 53–54 (showing that none of the termination boxes were marked and 9 stating that “[f]urther violations may result in further disciplinary action, up to and 10 including termination.”); Ex. I, Hammond, Dep., ECF No. 17-6, at 139–40 (stating that he 11 never explicitly told Plaintiff he was terminated or laid off during the June 2 Meeting). 12 Nevertheless, Plaintiff argues that “it was clear to Plaintiff based on Defendant’s conduct 13 that it had terminated him.” Pl.’s Opp’n at 20–21 (“To Plaintiff, this clearly constituted a 14 termination because Plaintiff was being separated from the job he was specifically and 15 solely hired to perform, and flown thousands of miles away.”). 16 For example, Plaintiff claims that the nature of his employment with Defendant, 17 i.e., having to be hired on a job-by-job basis and being laid off at the end of each job, 18 supports the conclusion that Defendant sending Plaintiff back to Pennsylvania was in 19 effect a termination. Id. at 20–21. Additionally, Plaintiff testified at his deposition that 20 Summers and Hammond told him at the June 2 Meeting to “go home, get better and 21 then call them and maybe they’ll bring [him] back.” Ex. A, Cotterman Dep., ECF No. 17- 22 6, at 24 (emphasis added); see Pl.’s Opp’n at 21 (“Instead, there is a reasonable – and 23 triable – inference that Hammond deliberately gave reason to doubt he would ever be 24 allowed to return to work with Defendant, because Defendant did not want Plaintiff to 25 return to work.”). However, even considering Plaintiff’s arguments, they raise nothing 26 10 Regarding the disability discrimination cause of action, Defendant argues that Plaintiff cannot establish the second element, i.e, that he is a qualified individual, and relies on arguments it previously 27 made with regard to Plaintiff’s failure to reasonably accommodate claim. Def.’s Mot. at 17. As explained above, however, there is a triable issue of fact as to whether Plaintiff could have performed the essential 28 functions of his job on June 2, 2017, with or without accommodation. 1 more than speculation that he was terminated especially in light of the Employee 2 Corrective Action form issued at the June 2 Meeting which does not state Plaintiff was 3 terminated but instead provides that Plaintiff was issued a written warning for not abiding 4 by the Reporting Policy and that he was being removed from duty “until [he has] been 5 evaluated by [his] personal care provider as directed by the treating 6 physician/[physician’s assistant].”11 See Ex. E, ECF No. 17-6, at 53–54. 7 Alternatively, in the event the Court finds that there was no actual termination, 8 Plaintiff claims that the same facts suggest there was constructive termination. Pl.’s 9 Opp’n at 22 n.3. In order to prove a constructive discharge, Plaintiff must show that 10 Defendant “either intentionally created or knowingly permitted working conditions that 11 were so intolerable or aggravated at the time of the employee’s resignation that a 12 reasonable employer would realize that a reasonable person in the employee’s position 13 would be compelled to resign.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1251 14 (1994). However, Plaintiff has not made any specific allegations or presented any 15 evidence to such an effect. 16 Accordingly, Defendant’s Motion for Summary Judgment as to Plaintiff’s disability 17 discrimination and retaliation causes of action is GRANTED. Furthermore, because 18 Plaintiff’s causes of action for failure to prevent discrimination and retaliation and 19 declaratory relief are derivative of the discrimination and retaliation claims, summary 20 judgment is also GRANTED as to those causes of action. See Glynn v. Superior Ct., 21 42 Cal. App. 5th 47, 56 (2019). 22 /// 23 /// 24 /// 25 11 Plaintiff points to notes made by the physician’s assistant in Pennsylvania and AllOne’s nurse 26 case manager stating that Plaintiff claimed he was let go as further evidence that Defendant terminated Plaintiff. See Ex. 7, ECF No. 19-6 (report completed by physician’s assistant); Ex. 8, ECF No. 19-6, at 163 27 (email from nurse case manager). In addition to being inadmissible hearsay, see Fed. R. Evid. 801, such statements still only evince Plaintiff’s subjective belief and is insufficient to raise a triable issue of fact as to 28 whether Plaintiff was actually terminated. 1 D. Seventh Cause of Acton: Denial of and Discrimination Based Upon the Use of Sick Leave in Violation of California Labor Code §§ 233, 2 234, and 246.5 3 California Labor Code § 233 states that “[a]ny employer who provides sick leave 4 for employees shall permit an employee to use in any calendar year the employee’s 5 accrued and available sick leave entitlement, in an amount not less than the sick leave 6 that would be accrued during six months at the employee’s then current rate of 7 entitlement, for the reasons specified in subdivision (a) of Section 246.5.” See also Cal. 8 Lab. Code § 234 (“An employer absence control policy that counts sick leave taken 9 pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, 10 demotion, or suspension is a per se violation of Section 233.”). Under California Labor 11 Code § 246.5(a)(1), “[u]pon the oral or written request of an employee, an employer shall 12 provide paid sick days for . . . [d]iagnosis, care, or treatment of an existing health 13 condition of, or preventative care for, an employee or an employee’s family member.” 14 In his Complaint, Plaintiff alleges that he “used and attempted to use accrued sick 15 leave to seek treatment for a medical condition” but “[i]n response, Defendant[] 16 threatened Plaintiff with termination, disciplined Plaintiff and ultimately terminated 17 Plaintiff.” Compl. ¶ 88; see also Pl.’s Opp’n at 24 (contending that Defendant “fail[ed] to 18 permit [Plaintiff] to use his accrued and available sick leave to diagnose, care for, and 19 treat his health condition in Sacramento, California, on or prior to June 2, 2018”12 and 20 instead terminated Plaintiff at the June 2 Meeting). As outlined above, there is no triable 21 issue of fact based on the present record that Plaintiff was terminated on June 2, 2017, 22 let alone that his termination was based on any use of sick leave. See Def.’s Reply at 23 15–16. Therefore, summary judgment is GRANTED as to this cause of action. 24 /// 25 /// 26 /// 27 12 Given that Plaintiff reiterates he was terminated at the June 2 Meeting, the Court assumes that 28 Plaintiff intended to say 2017, not 2018. 1 E. Eighth Cause of Action: Wrongful Termination in Violation of Public Policy 2 3 Wrongful termination requires a showing of the following elements: (1) an 4 || employer-employee relationship; (2) termination or other adverse employment action; 5 | (3) a violation of public policy; (4) causation; and (5) damages. See, e.g., Holmes v. 6 | Gen. Dynamics Corp., 17 Cal. App. 4th 1418, 1426 (1993). This cause of action is 7 | derivative of Plaintiff's disability discrimination and retaliation causes of action and | because the evidence before the Court on summary judgment does not show that g | Plaintiff was terminated, summary judgment is GRANTED as to this cause of action. 10 11 CONCLUSION 12 13 For the foregoing reasons, Defendant's Motion for Summary Judgment, ECF 44 | No. 17, is GRANTED as to Plaintiff's First, Second, Third, Sixth, Seventh, and Eighth 15 | Causes of Action. The Motion for Summary Judgment is otherwise DENIED as to 16 | Plaintiff's Fourth and Fifth Causes of Action. Plaintiff's ex parte Objection to and Motion 17 | to Strike Defendant's Evidence Introduced on Reply, ECF No. 22, is DENIED as moot. 18 IT |S SO ORDERED. 49 | Dated: March 17, 2022 ar LE Mtg» _{ ZL SNC. 21 SENIOR UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 24