Reyes v. Ralphs Grocery CA2/5 ( 2021 )

Filed 4/20/21 Reyes v. Ralphs Grocery CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CARLOS REYES, B297149
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC639129)
v.
RALPHS GROCERY COMPANY
et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Steven J. Kleifield, Judge. Affirmed.
Law Office of David R. Denis and David R. Denis for
Plaintiff and Appellant.
Baker & Hostetler, Nancy Inesta and Joseph S. Persoff,
for Defendants and Respondents.
Plaintiff Carlos Reyes (Plaintiff) sued his former employer,
Ralph’s Grocery Company (RGC), and its parent company after
he was fired for accruing too many points under RGC’s policies on
missing work, which generally require employees to provide at
least an hour’s notice if they will be absent or late. The primary
thrust of Plaintiff’s lawsuit is that he was terminated not because
of his noncompliance with the policies but because of his
disability (asthma) and his age. The trial court granted summary
judgment for RGC and its parent company (collectively,
Defendants). We consider whether Plaintiff raised an issue of
material fact requiring trial as to four of his causes of action:
disability discrimination, age discrimination, failure to provide a
reasonable accommodation, and failure to engage in the
interactive process to determine a reasonable disability
accommodation.1
1
Plaintiff’s complaint alleged nine causes of action,
including, other than those just mentioned, claims for
harassment, retaliation, failure to prevent discrimination and
retaliation, violation of the California Family Rights Act (CFRA),
and wrongful termination in violation of public policy. The
parties agree the failure to prevent discrimination and wrongful
termination claims rise and fall with the viability of his other
causes of action. Plaintiff does not adequately challenge the trial
court’s ruling on the retaliation, harassment, and violation of
CFRA causes of action (except perhaps insofar as he argues
Defendants’ absence and leave policies are unlawful, a point we
will address). We accordingly do not discuss these other claims.
(Cahill v. San Diego Gas & Elec. (2011) 194 Cal.App.4th 939, 956
[“‘“When an appellant fails to raise a point, or asserts it but fails
to support it with reasoned argument and citations to authority,
we treat the point as waived”’”].)
2
I. BACKGROUND
In 1986, Plaintiff began working for RGC at one of its
distribution centers. For most of his employment with RGC,
Plaintiff worked as a forklift driver and receiver. Plaintiff also
suffers from asthma. Beginning in 2005, pursuant to the federal
Family and Medical Leave Act (29 U.S.C. § 2601 et seq.) (FMLA)
and its California counterpart the CFRA (Gov. Code, § 12945.1 et
seq.), Plaintiff began requesting and receiving intermittent
FMLA/CFRA time off from work due to his asthma.
A. RGC’s Policies on Missing Work
In 2013, RGC implemented a call-in procedure that
required employees (including Plaintiff) to call an attendance
hotline to report an absence or late arrival at work at least one
hour before the employee’s scheduled start time. Plaintiff
received a copy of the policy, read it, understood it, and signed a
form acknowledging he had been given a card with the hotline’s
phone number. From his review of the policy, Plaintiff
understood he was required to call the hotline even if his absence
or late arrival was unrelated to the FMLA or CFRA. Between
February 2014 and April 2015, Plaintiff used the hotline 42 times
to report an absence or late arrival.
Five months after implementing the call-in policy, RGC
instituted a points-based attendance policy. Pursuant to this
policy, employees (including Plaintiff) would be assessed points
on a rolling 12-month basis for late arrivals, early departures,
and absences unrelated to protected leave. As an employee
garnered points under the policy, he or she would be subject to
progressively greater discipline: counseling at 4 points, a verbal
warning at 6 points; a written warning at 8 points, another
3
written warning and a 5-day unpaid suspension at 10 points, and
automatic termination at 12 points.
As with the call-in policy, the attendance policy was
provided to Plaintiff and he acknowledged in writing that he read
and understood it. After the attendance policy went into effect,
Plaintiff steadily accumulated points and was subjected to
increasing discipline, including a total of four written warnings
between April 2014 and February 2015 (and a five-day
suspension with a written warning issued in February 2015).
Plaintiff did not request an accommodation to comply with the
call-in policy at any point during this period of progressive
discipline.
B. Plaintiff’s Termination
On March 29, 2015, a little over a month after he was
suspended without pay for five days for accumulating 10 points,
Plaintiff did not report to work and did not call in to advise he
would be absent. The points Plaintiff received for this “no call, no
show” on March 29 were sufficient to trigger the attendance
policy’s termination threshold.2
Once Plaintiff met the threshold for termination, RGC
suspended him while one of its senior labor relations
2
Defendants initially calculated Plaintiff’s point total for the
rolling 12-month period up to March 29, 2015, at 12.5 points, i.e.,
half a point above the termination threshold. Defendants would
later concede, however, that Plaintiff had been incorrectly
assessed a half a point on February 9, 2015, for a late arrival that
he had in fact reported in an advance call-in. The half-point
error, however, does not affect whether Plaintiff was subject to
termination under the attendance policy.
4
representatives, Monique DeGuia-Jones (DeGuia-Jones),
investigated the matter and reviewed Plaintiff’s work record. A
manager at the distribution center told DeGuia-Jones that
Plaintiff was never approved to take March 29 off; instead,
Plaintiff “simply made an assumption that he had the day off and
did not check his schedule.”3 Plaintiff’s union representative told
DeGuia-Jones that Plaintiff failed to appear on March 29 because
he forgot to check his work schedule.
In view of Plaintiff’s work record that showed, among other
things, a history of warnings for “attendance and/or tardiness,”
DeGuia-Jones recommended Plaintiff be terminated. At a
subsequent grievance meeting, Plaintiff’s union representative
described his unreported absence on March 29 as a “bonehead”
mistake. Plaintiff did not claim, at this meeting, that RGC’s past
and proposed discipline of him was attributable to unlawful
discrimination, nor did he assert RGC failed to accommodate
Plaintiff’s medical condition or miscalculated his attendance
points. Following the grievance hearing, DeGuia-Jones upheld
Plaintiff’s termination.
C. Plaintiff’s Lawsuit, and Summary Judgment for
Defendants
Plaintiff sued Defendants after he was terminated. As
relevant for our purposes, Plaintiff alleged causes of action for
disability and age discrimination in violation of the Fair
3
Plaintiff had requested the following day, March 30, as a
vacation day.
5
Employment and Housing Act (FEHA) (Gov. Code,4 § 12900 et
seq.), failure to accommodate a disability as required by FEHA,
and failure to engage in the interactive process as required by
FEHA.
Defendants moved for summary judgment or, in the
alternative, summary adjudication. Defendants argued they
were entitled to judgment on the discrimination causes of action
because Plaintiff was fired for a legitimate, nondiscriminatory
reason, namely his repeated violations of the call-in policy, which
resulted in termination pursuant to the terms of the attendance
policy. Defendants also maintained there was no evidence to
support Plaintiff’s causes of action for failure to participate in the
interactive process or failure to accommodate. Defendants
emphasized that throughout Plaintiff’s employment they had
accommodated Plaintiff’s asthma through his FMLA requests for
time off from work and continued to do so after the call-in and
attendance polices were put in place.
Plaintiff opposed the motion for summary judgment. With
regard to his disability discrimination claim, Plaintiff contended
the call-in and attendance polices were overly burdensome and
violative of the FMLA and its implementing regulations.
Plaintiff also argued that even if the policies were legally
permissible, his termination was nonetheless improper as he had
not actually accumulated sufficient points for termination.
Plaintiff in particular focused on RGC’s assessment of one point
for a late arrival on February 5, 2015 (in addition to the
aforementioned half-point on February 9, 2015, that RGC agreed
4
Undesignated statutory references that follow are to the
Government Code.
6
was incorrectly assessed). Plaintiff conceded he did not file any
grievances at the time the contested points were awarded, and as
for the point assessed for a violation of the call-in policy on
February 5, 2015, Plaintiff did not dispute the call logs for RGC’s
attendance hotline did not reflect a late arrival call-in notice from
him (he testified at his deposition that he could not remember if
he called the hotline that day).
In connection with his age discrimination claim, Plaintiff
conceded no one working for RGC had ever commented on his age
and admitted that he could not recall ever complaining about age
discrimination prior to his termination. But relying on a
declaration submitted by another former RGC employee Ricky
Wasp (Wasp), Plaintiff argued RGC had a practice of terminating
older, higher-paid employees and replacing them with younger,
lower-paid employees.5
Wasp’s two-page declaration averred he could not recall a
single instance when a “terminated employee who was or
appeared to be older than 40 years old was ever replaced with
someone who was or appeared to be older than 40 years old.”
Wasp, however, did not identify by name or job title any of the
other employees who appeared to him to have been terminated
for age-related reasons and he conceded he was “unsure” why
other employees had been terminated. Wasp did not offer any
details about the worker who filled Plaintiff’s position other than
he was a man who “appeared to be in his late 20s to early 30s.”
5
Wasp, who had also sued Defendants for age
discrimination, worked at the same warehouse as Plaintiff during
the same time period and he was terminated, at age 60, several
months after Plaintiff—also for a “no call, no show.”
7
Finally, Wasp acknowledged he did not have any direct
knowledge that he himself was replaced by a significantly
younger worker; he had only heard from a former co-worker that
this was so.
As for Plaintiff’s claims of a failure to accommodate a
disability and to participate in the interactive process, Plaintiff
had already admitted at his deposition that he never requested
an accommodation from RGC other than FMLA leave in
accordance with the call-in and attendance polices. Accordingly,
Plaintiff opposed Defendants’ motion on these causes of action by
arguing those polices were “draconian,” illegal under the FMLA,
and could not be considered reasonable accommodations.
The trial court held a hearing to consider the arguments of
counsel and later issued an order granting summary judgment
for Defendants.6 With respect to Plaintiff’s disability
6
The trial court prepared a tentative ruling for the summary
judgment hearing that reached a bottom line significantly more
favorable for Plaintiff. Plaintiff relies heavily on the court’s
tentative ruling in his briefing on appeal even though the court
did not adopt the tentative as its final ruling. That reliance gets
Plaintiff nowhere, as we are unconcerned with the court’s
tentative ruling. (In re Marriage of Ditto (1988) 206 Cal.App.3d
643, 646-647 [“‘[A] court is not bound by its statement of intended
decision and may enter a wholly different judgment than that
announced.’ [Citation.] ‘Neither an oral expression nor a written
opinion can restrict the power of the judge to declare his [or her]
final conclusion in his [or her] findings of fact and conclusions of
law. [Citation.] The findings and conclusions constitute the final
decision of the court and an oral or written opinion cannot be
resorted to for the purpose of impeaching or gainsaying the
findings and judgment’”]; accord, Fagelbaum & Heller LLP v.
Smylie (2009) 174 Cal.App.4th 1351, 1363, fn. 3 [following “the
8
discrimination cause of action, the court found RGC’s call-in and
attendance polices permissible under FMLA and a legitimate,
nondiscriminatory basis for firing Plaintiff. The court also found
Plaintiff did not produce any evidence RGC’s stated reason for
firing him (his accrual of termination of points under the
attendance policy) was actually a pretext for discriminatory
animus. As to Plaintiff’s age discrimination claim, the court
found “there was no evidence to indicate that age played any
factor in Defendants’ decision to terminate him.” Finally, as to
Defendants’ interrelated causes of action for failure to engage in
the interactive process and to provide a reasonable disability
accommodation, the court found Defendants had no duty to
engage in the interactive process because Plaintiff “did not
need, . . . [or] ask for, a change in his working conditions. As
Plaintiff himself states, he had asthma for years, and had been
using FMLA leave as a buffer during that period.”
II. DISCUSSION
We have no difficulty concluding the trial court’s summary
judgment ruling is correct. RGC’s call-in and attendance policies
are not unlawful under FMLA or its implementing regulations.
Plaintiff produced no substantial evidence RGC’s stated
legitimate, nondiscriminatory reason for firing him—repeated
failures to comply with the call-in policy and unexcused absences
from work—was a mere pretext for disability or age
discrimination. And as for the summary adjudication of the two
remaining causes of action challenged on appeal, Plaintiff
general rule that written orders supersede tentative decisions”
and disregarding the trial court’s tentative ruling].)
9
presented no evidence he ever requested an accommodation other
than FMLA leave, which dooms both the reasonable
accommodation claim and the interactive process claim.
A. Summary Adjudication of the Discrimination Causes
of Action Was Proper
A defendant employer may seek summary judgment on an
employee’s discrimination claim by presenting “competent,
admissible evidence” that the defendant took action against the
plaintiff for a legitimate, nondiscriminatory reason. (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 357 (Guz).) Absent
direct evidence of discrimination, the plaintiff can defeat
summary judgment “by pointing to evidence which . . . raises a
rational inference that intentional discrimination occurred.”
(Ibid.) If there is no substantial evidence that the
nondiscriminatory reason proffered by the employer is
pretextual, summary judgment for the defendant will be
appropriate. (DeJung v. Superior Court (2008) 169 Cal.App.4th
533, 553 [once employer satisfies its burden, “the employee must
demonstrate a triable issue by producing substantial evidence
that the employer’s stated reasons were untrue or pretextual, or
that the employer acted with a discriminatory animus, such that
a reasonable trier of fact could conclude that the employer
engaged in intentional discrimination”]; see also, e.g., Guz, supra,
at 362 [summary judgment for employer appropriate where,
“given the strength of the employer’s showing of innocent
reasons, any countervailing circumstantial evidence of
discriminatory motive, even if it may technically constitute a
prima facie case, is too weak to raise a rational inference that
discrimination occurred”]; Moore v. Regents of University of
10
California (2016) 248 Cal.App.4th 216, 238.) We review a trial
court’s summary judgment ruling de novo, viewing the evidence
in the light most favorable to the non-moving party. (Schachter
v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)
1. The call-in and attendance policies are lawful
Congress passed the FMLA in 1993 in an attempt “to
balance the demands on the workplace with the needs of
families.” (29 U.S.C. § 2601(b)(1).) The FMLA “entitle[s]
employees to take reasonable leave for medical reasons” (29
U.S.C. § 2601(b)(2)), but employees must do so “in a manner that
accommodates the legitimate interests of employers.” (29 U.S.C.
§ 2601(b)(3).) That means that while an employee has a right to
take leave under the FMLA, the employee must give his employer
notice of his intention to take leave to be entitled to it. (29 U.S.C.
§ 2612(e)(1) & (2).)
According to FMLA’s implementing regulations, when the
need for leave is foreseeable, the employee generally “must
provide the employer at least 30 days advance notice before
FMLA leave is to begin.” (29 C.F.R. § 825.302(a).) If extenuating
circumstances make that impracticable, “notice must be given as
soon as practicable” (29 C.F.R. § 825.302(d)) and “[a]n employer
may require an employee to comply with the employer’s usual
and customary notice and procedural requirements for requesting
leave, absent unusual circumstances” (29 C.F.R. § 825.303(a)).
The regulations state an employer’s procedural requirements for
leave requests can appropriately require the employee to contact
a specific individual or call a designated phone number. (29
C.F.R. § 825.303(c) [“When the need for leave is not foreseeable,
an employee must comply with the employer’s usual and
11
customary notice and procedural requirements for requesting
leave, absent unusual circumstances. For example, an employer
may require employees to call a designated number or a specific
individual to request leave”]; see also 29 C.F.R. § 825.302(d)
[“Unusual circumstances would include situations such as when
an employee is unable to comply with the employer’s policy that
requests for leave should be made by contacting a specific
number because on the day the employee needs to provide notice
of his or her need for FMLA leave there is no one to answer the
call-in number and the voice mail box is full”]; Acker v. General
Motors (5th Cir. 2017) 853 F.3d 784, 790.) When an employee
does not comply with the employer’s customary notice and
procedural requirements, and no unusual circumstances justify
the failure to comply, FMLA-protected leave may be delayed or
denied. (29 C.F.R. § 825.302(d); 29 C.F.R. § 825.303(c).)
Plaintiff argues RGC’s call-in and attendance policies are
“void” because they “conflict with, and violate[ ] the express terms
and purpose of the [FMLA]” and are “burdensome and oppressive
as applied to Plaintiff . . . .” He also asserts, without citation to
the record, that “[i]t can be reasonably inferred that [the call-in
policy] was adopted to rid the company of employees, including
[Plaintiff], who exercise their FMLA rights on a regular basis.”
Neither point is persuasive.
As just discussed, FMLA’s implementing regulations
expressly contemplate employers may implement call-in policies
that will be fully consistent with FMLA (and the regulations
themselves). In urging the contrary, Plaintiff does not rely on
any provision of FMLA itself, and he cites parts of the regulations
that actually provide no support for his view that a call-in
requirement of the type implemented by RGC is too burdensome.
12
(See, e.g., 29 C.F.R. § 825.303(a) [“It generally should be
practicable for the employee to provide notice of leave that is
unforeseeable within the time prescribed by the employer’s usual
and customary notice requirements applicable to such leave”]; 29
C.F.R. § 825.220(c) [stating, in general terms, that FMLA’s
“prohibition against interference prohibits an employer from
discriminating or retaliating against an employee or prospective
employee for having exercised or attempted to exercise FMLA
rights” and barring counting FMLA leave under no fault
attendance policies—which RGC’s does not].) There is nothing in
FMLA itself or its implementing regulations that prohibits an
employer from adopting an evenhanded advance call-in policy,
particularly one like the policy here that requires only an hour’s
advance notice.7 Indeed, many cases hold, as we do, that such a
7
Plaintiff cites Roby v. McKesson Corp. (2009) 47 Cal.4th
686 (Roby) for the proposition that RGC’s call-in and attendance
policies are burdensome and oppressive. In that case, our
Supreme Court did not address the lawfulness of a FMLA call-in
policy; the court instead was asked to decide the constitutionality
of a punitive damages award and, in discussing why the
employer’s conduct was not reprehensible, observed: “With
respect to the discrimination claim, employer McKesson’s
wrongdoing was limited to its one-time decision to adopt a strict
attendance policy that, in requiring 24-hour advance notice
before an absence, did not reasonably accommodate employees
who had disabilities or medical conditions that might require
several unexpected absences in close succession.” (Id. at 713.)
Roby does not stand for the proposition Plaintiff claims, and even
if it did, the 24-hour advance notice policy was significantly more
stringent than the one-hour advance notice call-in policy at issue
here.
13
call-in requirement is not overly burdensome or inconsistent with
FMLA. (Lewis v. Holsum of Fort Wayne, Inc. (7th Cir. 2002) 278
F.3d 706, 708-709 [employer’s policy of requiring employees to
call in at least an hour before being unable to report for duty is
permissible under FMLA]; accord, Srouder v. Dana Light Axle
Mfg., LLC (6th Cir. 2013) 725 F.3d 608, 614 [affirming grant of
summary judgment to employer because employee failed to follow
the call-in requirements of employer’s attendance policy]; Twigg
v. Hawker Beechcraft Corp. (10th Cir. 2011) 659 F.3d 987, 1008-
09 [affirming summary judgment for employer where employee
failed to comply with employer’s notification policy]; Brown v.
Auto. Components Holdings, LLC (7th Cir. 2010) 622 F.3d 685,
690; Bacon v. Hennepin County. Med. Ctr. (8th Cir. 2008) 550
F.3d 711, 715 [“Employers who enforce [call-in] policies by firing
employees on FMLA leave for noncompliance do not violate the
FMLA”].)
In addition, Plaintiff adduced no evidence that RGC
implemented the policy to, as he asserts, rid the company of
employees who exercise their FMLA rights. Such argumentative
speculation is not reasonable inference.
2. There is no evidence sufficient to permit a jury
to find RGC’s stated legitimate, non-
discriminatory reason for firing Plaintiff was
pretext for discrimination
Defendants presented evidence that Plaintiff was
terminated for a legitimate, nondiscriminatory reason, namely
nonadherence to the call-in and attendance policies, which
further valid business objectives. To rebut Defendants’ showing,
Plaintiff needed to present substantial evidence on which a jury
14
could rely to conclude the policy noncompliance was pretextual
and unlawful disability or age discrimination was instead a
substantial motivating factor in Plaintiff’s termination.
There is no such evidence in the summary judgment record.
It is undisputed Plaintiff was aware of the policy, understood it,
and used it successfully dozens of times in the year preceding his
dismissal to obtain FMLA leave for an absence or late arrival. It
is also undisputed Plaintiff steadily accumulated points when he
failed to comply with RGC’s call-in policy, did not timely contest
those points, and was repeatedly advised by RGC (orally, in
writing, and through a five-day suspension without pay) that his
rising point total was placing him in increasing danger of being
terminated for noncompliance with the policy. Although Plaintiff
ultimately challenged the assessment of certain points prior to
his termination, he did not present evidence that the challenged
points were incorrectly assessed (other than assessment of half a
point for being late on February 9, 2015, which Defendants
concede was an administrative error).8
In addition, Plaintiff did not present evidence that RGC
gave shifting, contradictory, implausible, uninformed, or factually
8
Plaintiff asserts the point he received as the result of a late
arrival on February 5, 2015, should not have been assessed, but
his reason for so asserting is difficult to pin down. He cites no
record evidence that he called at least an hour in advance of his
scheduled start time to report he would be late, RGC’s records
indicated he did not make such a call, and Plaintiff himself
testified during his deposition that he did not remember whether
he called in advance that day.
15
baseless justifications for his termination.9 On the contrary, the
evidence indicated RGC acted in an informed, consistent, and
rational manner. Before terminating Plaintiff, RGC investigated
his absence on March 29 and reviewed his work history,
including his many approved and unapproved absences, and
ultimately decided to terminate Plaintiff in accordance with the
terms of the attendance policy for his failure to comply with the
call-in policy. Additionally, at the time of his termination,
Plaintiff and his representatives advised RGC he failed to comply
with the call-in policy on March 29, not because of his medical
condition or because the policies were incomprehensible and/or
unreasonable in light of his medical condition, but because he
made a mistake and forgot to check his work schedule.
9
The vague and speculative Wasp declaration, which does
not detail how he and Plaintiff might have been similarly
situated, is not substantial evidence establishing a triable issue
of material fact as to whether the non-discriminatory reason
proffered by Defendants for their termination of Plaintiff’s
employment was pretext for age discrimination. (Cucuzza v. City
of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [affirming
summary judgment in favor of employer, stating “‘[S]peculation
cannot be regarded as substantial responsive evidence’”]; accord,
McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1535 [affirming summary judgment for
employer and holding speculative evidence of disparate
treatment was insufficient to show employer’s proffered
justification was untrue or pretextual under FEHA].)
16
B. Summary Adjudication of the Causes of Action for
Failure to Accommodate and Engage in the
Interactive Process Was Proper
FEHA requires employers “to make reasonable
accommodation for the known physical or mental disability of
an . . . employee.” (Gov. Code, § 12940, subd. (m)(1).) The statute
further requires employers “to engage in a timely, good faith,
interactive process with the employee . . . to determine effective
reasonable accommodations, if any, in response to a request for
reasonable accommodation by an employee . . . with a known
physical or mental disability or known medical condition.” (Gov.
Code, § 12940, subd. (n).) Although these obligations are distinct
and may support separate legal claims, it is established that each
obligation “necessarily implicates the other.” (Gelfo v. Lockheed
Martin Corp. (2006) 140 Cal.App.4th 34, 54.)
“The employee must initiate the [interactive] process unless
the disability and resulting limitations are obvious. ‘Where the
disability, resulting limitations, and necessary reasonable
accommodations, are not open, obvious, and apparent to the
employer, . . . the initial burden rests primarily upon the
employee . . . to specifically identify the disability and resulting
limitations, and to suggest the reasonable accommodations.’
[Citation.]” (Scotch v. Art Institute of California (2009) 173
Cal.App.4th 986, 1013.)
It is undisputed that Plaintiff never requested an
accommodation that would permit him to comply more
consistently with the call-in and attendance policies, nor does he
in any event specify what such an accommodation might have
been. Instead, Plaintiff argues he did not have to request an
accommodation because his need for one was “obvious” in view of
17
his history of noncompliance with the call-in policy. Plaintiff’s
argument cannot be squared with the record.
In the decade after Plaintiff first notified RGCthat he
suffered from asthma, RGC accommodated his disability by
granting him intermittent FMLA leave whenever he complied
with generally applicable requirements for obtaining such leave.
After RGC instituted call-in and attendance polices, Plaintiff
successfully used the policies on dozens of occasions in the year
preceding his termination to avoid being assessed points for
absences or late arrivals. In response to the series of written
warnings that he received for his steadily increasing point total,
Plaintiff never requested or indicated a need for a further
accommodation in order to comply with the policies. Further,
both Plaintiff and his union representative attributed the points
that triggered his automatic termination (the “no call, no show”
on March 29, 2015), not to any limitations his disability placed on
his ability to comply with the policies, but on a simple failure by
him to check his work schedule, an omission that he and his
representative characterized as a “bonehead” mistake on his part.
Even viewing the evidence in the light most favorable to
Plaintiff, no reasonable jury could find on this record that
Defendants were responsible for a breakdown in the interactive
process or refused to make a reasonable accommodation.
Accordingly, Defendants were entitled to judgment as a matter of
law on Plaintiff’s causes of action for failure to participate in the
interactive process and failure to accommodate Plaintiff’s
physical disability.
18
DISPOSITION
The judgment is affirmed. Defendants shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
19