Vega v. YapStone, Inc. CA1/2 ( 2021 )

Filed 6/30/21 Vega v. YapStone, Inc. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
PAULA VEGA et al.,
Plaintiffs and Appellants,
A160884
v.
YAPSTONE, INC., (Contra Costa County
Super. Ct. No. MSC18-01535)
Defendant and Respondent.
Paula Vega appeals from a summary judgment entered in favor of her
former employer in an action under the California Fair Employment and
Housing Act. She contends the trial court erred in failing to find there were
disputed issues of fact regarding her claim of associational disability
discrimination and related claims. We affirm.
BACKGROUND
YapStone, Inc. is a payment services company located in Walnut Creek,
California. YapStone hired Marcela Vega as an accounting associate in
December 2014. Paula Vega, Marcela’s older sister, was hired in February
2015, to work in the company’s call center and subsequently moved to the
1
position of on-line risk fraud analyst.1 According to their declarations, the
sisters lived together and Paula had raised Marcela “like a mother.”
Marcela was granted a leave of absence beginning August 31, 2016, to
travel to Colombia, the sisters’ country of origin, for a second opinion on
treatment for carpal tunnel syndrome and epicondylitis. A doctor detected a
hernia during a physical examination, and Marcela underwent surgery on
October 18, 2016, then developed sepsis and pancreatitis and was placed in
the intensive care unit. When she began to experience post-surgical
complications, Paula advised her manager at YapStone that she might need
to go to Colombia and he told her “not to worry, that family came first.”
On October 26, Paula sent text messages to two “superiors” saying she
needed to go to Colombia to take care of Marcela and anticipated returning in
a week. On November 7, she emailed that she had changed her return flight
to November 14, and expected to return to work on November 15, “ ‘if all goes
well.’ ” Paula was using paid time off benefits during this period.
Marcela did not recover as well as anticipated and on November 14,
Paula emailed her employer again, saying Marcela remained in the hospital
and Paula would return to California on November 20, and to work on
November 21, “ ‘if all goes well.’ ” Paula said she had a letter she could
provide to human resources stating that Marcela was still in the hospital.
On November 17, Paula received an email from YapStone Human
Resources Specialist Ina Jezildzic, who thanked Paula for “looping us in on
your expected return date” and said Paula’s manager had approved her time
out of the office as paid and unpaid time off through November 21, 2016.
1We refer to plaintiffs by their first names for convenience and clarity,
as they share the same surname.
2
Jezildzic advised that she did not think Paula qualified for the Family
Medical Leave Act (FMLA).
Paula responded by email that she would not be able to return to work
as expected on November 21, 2016, because Marcela was still in the hospital
and Paula “needed to help her ‘until further notice.’ ” Paula attached a
November 11, 2016 letter from Marcela’s doctor stating Marcela was in the
intensive care unit, and asked why Jezildzic felt Paula did not qualify for
FMLA leave.
On November 21, 2016, Jezildzic emailed Marcela, acknowledging the
November 11 doctor’s note Paula had provided, and asking for an updated
doctor’s note and expected return date so the company would “know if we are
able to grant an additional extension of your leave.” On the same date,
Jezildzic emailed Paula a letter that “officially” informed her, “ ‘given the
current business needs, your manager is only able to extend your time off
through November 25, 2016.’ ” The letter stated that Paula was expected to
return to work on Monday, November 28, and if she did not return by that
date, “we will consider this a resignation of your employment from YapStone.
You will be eligible to reapply for your position or any open position within
YapStone whenever you are able to return, however, we cannot guarantee a
position will be available.” It additionally stated, in response to Paula’s
question about FMLA leave, that care of a sister was not a qualified reason
for such leave, and listed the reasons for which FMLA and/or California
Family Rights Act (CFRA) leave could be taken.2
2 The qualifying reasons listed in the letter were to care for “an
immediate family member (employee’s spouse, registered domestic partner,
child, registered domestic partner’s child or parent) with a serious health
condition,” for the employee’s own “serious health condition that makes the
3
Paula spoke with Jezildzic by telephone on November 23, 2016, then
emailed to confirm “ ‘I am NOT resigning from my job.’ ” Paula told Jezildzic
she loved her job, had to take an unplanned leave “because my sister was
dying,” felt it was unfair the company was “making me choose between my
job and my loved one,” and “by forcing me to return by the following Monday
the company was choosing to fire me.” Regarding YapStone’s stated need to
fill her position, Paula said, “ ‘As I mentioned over the phone, in order for the
team to replace me, you would have to interview, hire and then train
someone to replace me, which training by the way can be 2 or more weeks.
That can probably take longer to do than for me to get back to work once I
know my sister is stable and I can be sure it is OK for me to return to the
US.’ ” Paula reiterated, “ ‘I AM NOT ‘RESIGNING’ ” and said, “ ‘I might not
make it back to work” by November 28, 2016, “ ‘I hope we can work
something out’ ” and “ ‘I am not trying to stay here longer than I need to.’ ”
Paula stated, “I want to make sure my sister is stable and in good condition
for me to return to the US and then I would love to continue to work with
YAPSTONE but if that is not possible, that is YAPSTONE’s choice not mine.”
Oddly, the email ends, “Thank you for your time and have a great day!
resigning [¶] Paula Vega.”
On the morning of November 28, 2016, Paula emailed Jezildzic to
provide another doctor’s note regarding Marcela’s status. The note said
Marcela was “in recovery from multiple surgical procedures for sepsis and
pancreatitis” and “ ‘temporary incapacity for sixty (60) days from 18 October
2016.’ ”
employee unable to perform his or her job” and in connection with pregnancy,
birth of a child, or placement of a child with the employee for adoption or
foster care.
4
At the end of the workday on November 28, Paula received an email
and letter from Jezildzic stating, “as of close of business on November 28,
your manager nor HR have not received any communication from you in
regards to your status to return to work. Your failure to return to work is an
indication of job abandonment. We are notifying you that your employment
with the company is terminated effective November 28th, 2016.” The letter
explained, “we have attempted to accommodate your continual requests for
time off to be with an ill family member by providing you unpaid time off
even though you do not qualify for FMLA or CFRA. At this point in time,
your continued requests to extend your time off from work is [sic] hindering
the ability to perform our business. We acknowledge and empathize with you
on the ill health of your family member, however, as stated in our previous
communication, we are unable to extend your time off any further.”
An email from Jezildzic to other YapStone employees involved in
drafting and reviewing Paula’s termination letter, sent at 5:12 p.m. on
November 28, 2016, stated, “Paula did send an email over today but it was on
behalf of Marcella Vega and not referencing herself or intent to return. . . .
The last communication Paula sent to us regarding her absence was on the
23rd . . . .”
The following day, November 29, Jezildzic emailed Paula that she had
received the doctor’s note Paula sent on November 28, and asked if Paula
would be speaking on behalf of Marcela going forward.
Paula never requested to work remotely during her leave. She testified
at her deposition that there were a total of five people, including herself,
working as fraud analysts. Asked whether her team was adequately staffed
or overworked when she worked there, Paula testified that they were
overworked.
5
YapStone solicited applications to replace Paula, interviewed
candidates and extended an offer to one on December 9, 2016. The candidate
accepted and began work on December 19, 2016.
Meanwhile, Jezildzic emailed Marcela on December 7, 2016, that
pursuant to the doctor’s note Paula had provided on November 28, Marcela
was expected to return to work by December 19, 2016, and that her FMLA
leave would expire on January 9, 2017.
YapStone approved Marcela’s leave of absence for the entire time she
was in Colombia, first as an unpaid personal leave, then under the FMLA
beginning on October 18, 2016, then as a reasonable accommodation.
Paula and Marcela returned to California on January 13, 2017.
Marcela remained on leave until YapStone terminated her employment on
March 14, 2017. Paula testified at her deposition that she did not apply for a
job with YapStone when she returned from Colombia because she felt “the
company was unfair to fire me and fire my sister because you couldn’t
accommodate to doctors’ orders and I would not want to work for a company
that treats its employees that way.”
Marcela and Paula filed the complaint in this action on July 31, 2018,
alleging two causes of action on behalf of Marcela and four on behalf of Paula,
either singly or jointly with Marcela. This appeal is concerned only with the
latter four: Wrongful termination in violation of public policy (third cause of
action), failure to engage in good faith in the interactive process under the
California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940,
subd. (n))3 (fourth cause of action), failure to take all steps necessary to
prevent discrimination under FEHA (§ 12940, subd. (k)) (fifth cause of action)
3Further statutory references will be to the Government Code except
as otherwise specified.
6
and associational disability discrimination under FEHA (§ 12926, subd. (o))
(sixth cause of action).
YapStone moved for summary judgment or summary adjudication of
Paula’s claims, arguing she never requested a reasonable accommodation and
the termination of her employment was due to her indefinite absence, not her
association with her sister. The trial court issued a lengthy tentative ruling
granting the motion for summary judgment. Neither party requested a
hearing, and the tentative ruling became the court’s order. YapStone served
notice of entry of judgment, and Paula appealed.
DISCUSSION
“A defendant moving for summary judgment must show ‘that one or
more elements of the cause of action . . . cannot be established, or that there
is a complete defense to that cause of action.’ (Code Civ. Proc., § 437c,
subd. (p)(2).)” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016)
2 Cal.App.5th 1028, 1035–1036 (Castro-Ramirez).) We review an order
granting summary judgment de novo, viewing the evidence “ ‘in a light
favorable to plaintiff as the losing party [citation], liberally construing [his or]
her evidentiary submission while strictly scrutinizing defendants’ own
showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s
favor.’ (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)” (Id. at
pp. 1035–1036.) “We accept as true both the facts shown by the losing party’s
evidence and reasonable inferences from that evidence. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 856; Sada v. Robert F. Kennedy Medical
Center (1997) 56 Cal.App.4th 138.)” (Id. at p. 1036.) “Summary judgment is
appropriate only when ‘all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) A triable
7
issue of material fact exists if the evidence and inferences therefrom would
allow a reasonable juror to find the underlying fact in favor of the party
opposing summary judgment. (Aguilar[, at p.] 850.)” (Ibid.)
I.
Paula’s primary claim against YapStone is for associational disability
discrimination. FEHA makes it unlawful for an employer, unless based upon
a “bona fide occupational qualification,” to discharge or otherwise
discriminate against a person because of specified characteristics, including
“physical disability.” (§ 12940, subd. (a).) The specified characteristics
expressly “include[] a perception that the person has any of those
characteristics or that the person is associated with a person who has, or is
perceived to have, any of those characteristics.” (§ 12926, subd. (o).)
“Accordingly, when FEHA forbids discrimination based on a disability, it also
forbids discrimination based on a person’s association with another who has a
disability.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1036.)
“California has adopted the three-stage burden-shifting test for
discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792.” (Sandell v Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307
(Sandell); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354–356
(Guz).) Briefly stated, at trial, the plaintiff has the initial burden to establish
a prima facie case of discrimination; if the plaintiff does so, “a presumption of
discrimination arises” and the burden shifts to the employer to rebut the
presumption with evidence that its action was taken for a legitimate,
nondiscriminatory reason; if the employer sustains this burden, the
presumption of discrimination disappears and the plaintiff may attempt to
show the employer’s proffered reasons were pretextual or offer other evidence
of discriminatory motive. (Guz, at p. 356.) “This so-called McDonnell
8
Douglas test reflects the principle that direct evidence of intentional
discrimination is rare, and that such claims must usually be proved
circumstantially. Thus, by successive steps of increasingly narrow focus, the
test allows discrimination to be inferred from facts that create a reasonable
likelihood of bias and are not satisfactorily explained.” (Guz, at p. 354.)4
4Paula maintains the McDonnell-Douglas test is unnecessary in the
present case because there is direct evidence she was fired because of her
association with her disabled sister. “ ‘[T]he McDonnell Douglas test is
inapplicable where the plaintiff presents direct evidence of discrimination.’ ”
(Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133,
1144, quoting Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111,
121.)
What Paula sees as direct evidence is the combination of YapStone’s
acknowledgments that it terminated her because she did not return to work
by the deadline it gave her and that it was aware she could not return
because of her association with her disabled sister. This, Paula maintains, is
just like the situation in cases holding that where an employee’s absences
from work are caused by a disability, termination of employment due to
excessive absence is termination due to the disability. (Humphrey v.
Memorial Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128, 1139–1140; Teahan
v. Metro-North Commuter R. Co. (2d Cir. 1991) 951 F.2d 511; Kimbro v.
Atlantic Richfield Co. (9th Cir. 1989) 889 F.2d 869, 875.)
YapStone’s termination of Paula’s employment when she did not return
to work, even with awareness that her absence was due to her caring for
Marcela, does not amount to direct evidence of discrimination. Direct
evidence is evidence which proves a fact without inference or presumption.
(Trop v. Sony Pictures Entertainment, Inc., supra, 129 Cal.App.4th at p.
1145.) YapStone’s awareness of the reason for Paula’s absence does not
necessarily mean YapStone fired Paula because of some sort of hostility
toward Marcela’s disability and, therefore, Paula’s connection to it. YapStone
maintains it terminated Paula because her absence—regardless of the reason
for it—was interfering with its ability to perform its business operations.
Linking Paula’s termination to discrimination based on her association with
her disabled sister requires an inference that YapStone’s awareness reflects
discriminatory intent. The cases Paula relies upon support the conclusion
that an employer cannot evade liability by delinking a disability from conduct
9
A prima facie case of disability discrimination under FEHA requires a
showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was
otherwise qualified to do his or her job, with or without reasonable
accommodation, and (3) the plaintiff was subjected to adverse employment
action because of the disability. (Green v. State of California (2007) 42
Cal.4th 254, 262 (Green); see Nealy v. City of Santa Monica (2015) 234
Cal.App.4th 359, 378–379; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th
245, 255 (Jensen).) Adapting this framework to the associational
discrimination context, the ‘disability’ from which the plaintiff suffers is his
or her association with a disabled person. Respecting the third element, the
disability must be a substantial factor motivating the employer’s adverse
employment action. (Cal. Code Regs., tit. 2, § 11009, subd. (c); Harris v. City
of Santa Monica (2013) 56 Cal.4th 203, 229, 232; Rope v. Auto-Chlor System
of Washington, Inc. (2013) 220 Cal.App.4th 635, 658 (Rope).)
When, as here, a defendant employer’s motion for summary judgment
“ ‘relies in whole or in part on a showing of nondiscriminatory reasons for the
discharge, the employer satisfies its burden as moving party if it presents
evidence of such nondiscriminatory reasons that would permit a trier of fact
to find, more likely than not, that they were the basis for the termination.
[Citations.] To defeat the motion, the employee then must adduce or point to
evidence raising a triable issue, that would permit a trier of fact to find by a
preponderance that intentional discrimination occurred. [Citations.]’ ”
(Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378–
caused by the disability, not that an employer’s awareness that conduct is
caused by a disability is direct evidence of discrimination.
10
379, quoting Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–
1098.)5
Published California cases discussing associational disability
discrimination are rare, as the only two we are aware of noted. (Castro-
Ramirez, supra, 2 Cal.App.5th at p. 1036 [“seldom-litigated cause of action”];
Rope, supra, 220 Cal.App.4th at p. 656 [“subject of very little litigation”].)
Rope involved an employee who, when hired, told the employer he planned to
donate a kidney to his sister and requested a leave of absence to do so. (Rope,
at p. 642.) He later requested his leave be extended and paid, pursuant to a
newly enacted statute establishing protections for employees who donate
organs, and was fired two days before the statute’s effective date—
purportedly for poor performance, although he had received satisfactory
performance reviews. (Id. at pp. 642–643.) He sued, and the trial court
sustained the employer’s demurrer. Rope reversed as to several of the
5 Paula relies upon the statement in Sandell, supra, 188 Cal.App.4th at
page 309, that the McDonnell Douglas “burden is reversed” on a summary
judgment motion. Guz observed that California courts have adopted differing
views on how to apply the McDonnell Douglas test on an employer’s motion
for summary judgment. (Guz, supra, 24 Cal.4th at pp. 356–357.) “Several
California decisions have suggested that because a plaintiff opposing
summary judgment need not demonstrate triable issues until the moving
defendant has made an initial no-merit ‘show[ing],’ the McDonnell Douglas
burdens are ‘reversed’ on a defense motion for summary judgment against a
claim of discrimination in employment. [Citations.] Other California cases,
however, have indicated that the plaintiff can survive an employer’s motion
for summary judgment only by presenting, at the outset, triable evidence
satisfying the prima facie elements of McDonnell Douglas. [Citations.]”
(Guz, at pp. 356–357.) The court found it unnecessary to resolve the issue
because the employer had produced evidence of nondiscriminatory reasons for
terminating the plaintiff’s employment that the plaintiff failed to rebut. The
same is true here.
11
alleged causes of action, including associational discrimination in violation of
FEHA. (Rope, at pp. 644, 655–658.)
Rope relied upon Larimer v. International Business Machines Corp.
(7th Cir. 2004) 370 F.3d 698 (Larimer), which it described as “the seminal
authority on disability-based associational discrimination under the ADA
(Americans with Disabilities Act of 1990; 42 U.S.C. § 12101 et seq.).” (Rope,
supra, 220 Cal.App.4th at p. 656.) “Larimer delineated the parameters of a
claim of associational discrimination as follows: ‘Three types of situation are,
we believe, within the intended scope of the rarely litigated . . . association
section. We’ll call them “expense,” “disability by association,” and
“distraction.” They can be illustrated as follows: an employee is fired (or
suffers some other adverse personnel action) because (1) (“expense”) his
spouse has a disability that is costly to the employer because the spouse is
covered by the company’s health plan; (2a) (“disability by association”) the
employee’s homosexual companion is infected with HIV and the employer
fears that the employee may also have become infected, through sexual
contact with the companion; (2b) (another example of disability by
association) one of the employee’s blood relatives has a disabling ailment that
has a genetic component and the employee is likely to develop the disability
as well (maybe the relative is an identical twin); (3) (“distraction”) the
employee is somewhat inattentive at work because his spouse or child has a
disability that requires his attention, yet not so inattentive that to perform to
his employer’s satisfaction he would need an accommodation, perhaps by
being allowed to work shorter hours.’ ” (Rope, at p. 657, quoting Larimer, at
p. 700.)
Rope considered only the “expense” category, and concluded that
although the claim “does not fit neatly within Larimer’s narrow description of
12
that category, Larimer provided an ‘illustrat[ive],’ rather than an exhaustive,
list of the kind of circumstances which might trigger a claim of associational
discrimination.” (Rope, supra, 220 Cal.App.4th at p. 657.) “Moreover, and
more importantly, Larimer was decided under the ADA; and the provisions of
FEHA are broadly construed and afford employees more protection than the
ADA.” (Rope, at p. 657.) Rope reasoned that since the employer fired the
employee “on the pretext of poor performance” two days before the effective
date of the statute that would have required a paid leave, “[t]he reasonable
inference is that Auto-Chlor acted preemptively to avoid an expense
stemming from Rope’s association with his physically disabled sister.” (Id. at
p. 658.)
In Castro-Ramirez, supra, 2 Cal.App.5th 1028, the employee had to
administer daily dialysis to his son. After several years of supervisors
scheduling the employee’s shifts so he could be home at night for the dialysis,
a new supervisor changed the schedule and ultimately fired the employee for
refusing to work a shift that did not allow him to be home in time. (Id. at
pp. 1031, 1034.)
Castro-Ramirez agreed with Rope that FEHA provides additional
protections beyond the “floor” established by the ADA, and that the Larimer
examples of associational disability discrimination were only illustrative.
Castro-Ramirez explained, “[t]he common thread among the Larimer
categories is simply that they are instances in which the ‘employer has a
motive to discriminate against a nondisabled employee who is merely
associated with a disabled person.’ ” (Castro-Ramirez, supra, 2 Cal.App.5th
at p. 1042, quoting Larimer, supra, 370 F.3d at p. 702.) Although the facts of
its case did not “fit neatly within one of the Larimer categories,” the Castro-
Ramirez court held the evidence supported a reasonable inference that the
13
supervisor engineered a situation that would give him a reason to terminate
the employee in order to avoid scheduling needs that were inconvenient for
the supervisor: “In other words, [the employee’s] termination for refusal to
work the shift was a pretext for [the supervisor’s] desire to be rid of someone
whose disabled associate made [the supervisor’s] job harder.” (Id. at
p. 1043.)6 The employee thus demonstrated a triable issue of fact as to
discriminatory motive. (Id. at pp. 1043–1044.)
Drawing on the Larimer categories of associational disability
discrimination, Paula argues her absences were an “expense” to YapStone,
pointing to the emails in which another employee commented to Jezildzic,
“[t]he Paula thing is hard but at the same time we have to run a business,”
and Jezildzic responded, “I knowww and I do feel bad and I get it because it is
your sister but dude its been 4 weeks, there is only so much I can do.” Paula
argues this exchange shows Paula was being discharged because her absence
was interfering with business operations, and a reasonable inference can be
drawn that interference with business operations costs a company money.
This is too amorphous a basis for finding a triable issue of fact as to whether
6 As described by the court, the evidence showed that the new
supervisor was aware of the employee’s need to have shifts that would allow
him to administer his son’s dialysis and had been asked by the out-going
supervisor to work with the employee on this; the new supervisor scheduled a
shift he knew to be later than any the employee had had before, despite there
being earlier shifts available that he assigned to other employees and a
customer on one of those shifts expressly having asked for the employee; the
supervisor falsely told the employee that customer was unhappy with him
and did not want him making its deliveries; when the employee said he could
not work the late shift and asked to return the next day for an assignment,
the supervisor laughed and said the previous supervisor was not in charge
anymore; and the supervisor fired the employee for this one-time refusal of a
shift despite the company policies allowing for less severe disciplinary action.
(Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1042–1043.)
14
YapStone fired Paula to avoid costs associated with Marcela’s disability. As
the trial court pointed out, Paula presented no evidence of any direct cost to
YapStone resulting from her absence: She was on an unpaid leave at the
time of termination, there was no evidence Marcela was covered under
Paula’s health insurance plan, and no evidence of additional expenditures
such as a temporary hire to replace Paula or any lost business opportunity.
Moving beyond the Larimer categories, Paula argues that, as in Castro-
Ramirez, since her employer knew her obligation to a disabled relative was
the reason she was refusing to work, a reasonable inference can be drawn
that the employer’s motivation in discharging her was concern that she would
continue to miss work due to her relative’s disability. But Paula’s situation
was quite different from the one she points to in Castro-Ramirez. There, the
employee refused to work one shift that would have prevented him from
attending to his son’s dialysis; because the new supervisor refused to
schedule the employee for available early shifts as prior supervisors had
done, the evidence supported an inference that the supervisor fired the
employee to avoid the inconvenience his scheduling needs would cause the
supervisor in the future. (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1043–
1044.) Here, after YapStone twice extended her leave, Paula simply told her
employer she would be away from work “until further notice.” The
discriminatory motivation inferable from the circumstances in Castro-
Ramirez are not similarly present here. We agree with the Rope and Castro-
Ramirez courts that Larimer did not delineate the exclusive circumstances in
which associational disability discrimination can be found, but the
circumstances must suggest some motive for the employer to discriminate
against the nondisabled employee on the basis of his or her association with a
disabled person.
15
As Paula recognizes, an employer is not required to wait indefinitely for
an employee’s disability to end. (Hanson v. Lucky Stores, Inc. (1999)
74 Cal.App.4th 215, 226–227 [“Reasonable accommodation does not require
the employer to wait indefinitely for an employee’s medical condition to be
corrected”]; Cal. Code Regs., tit. 2, § 11068, subd. (c).) In order to prove
disability discrimination, “the plaintiff employee bears the burden of proving
he or she was able to do the job, with or without reasonable accommodation.”
(Green, supra, 42 Cal.4th at pp. 258, 262.) Paula never suggested to
YapStone, and produced no evidence in the trial court, that she could perform
the essential functions of her job while in Colombia. She did not request to
work remotely and has presented no evidence that the essential functions of
her job could be performed remotely, and her argument that “no evidence has
been presented that [she] could not perform some of her duties remotely
while in Colombia” reverses the burden of demonstrating her ability to
perform her job. A leave of absence was the only apparent accommodation
that would allow her to continue her employment upon her return. The
statement that she would need to be away until further notice was not a
request for a reasonable accommodation, and upon being informed she could
not remain on leave indefinitely, Paula did not request an additional finite
period of leave.
Paula argues YapStone should have inferred there was a relatively
close end-date for the leave she would require from the update she provided
as to Marcela’s status—the doctor’s note indicating Marcela’s period of
disability was October 18 to December 18, 2016. But Paula never asked her
employer to make this connection. Moreover, given the repeated extensions
of Paula’s leave due to Marcela not recovering as quickly as had been
expected or hoped, the doctor’s note did not necessarily provide assurance
16
Marcela would return to work immediately after December 18 (a Sunday) or,
inferentially, that Paula would. And, in fact, Marcela did not return to work
as the note projected: The sisters did not return to California until mid-
January 2017, and Marcela did not return to work before her employment
was terminated in March 2017.
Additionally, unlike Castro-Ramirez, where past experience showed the
employee’s scheduling needs could be accommodated without causing
problems for the company, here, there is evidence Paula’s department was
short-staffed. The evidence upon which YapStone relied was Paula’s
deposition testimony that her team of five fraud detection analysts was
overworked even when she worked there, and Jezildzic’s declaration that the
company quickly hired a replacement for Paula, extending an offer 11 days
after Paula’s termination to a candidate who began work 10 days later.
Paula argues this evidence was insufficient to show her absence caused an
undue burden for YapStone. But YapStone’s burden was to show a
legitimate reason for Paula’s termination—a nondiscriminatory reason “that
would permit a trier of fact to find, more likely than not, that [it was] the
basis for the termination.” (Dinslage v. City and County of San Francisco,
supra, 5 Cal.App.5th at p. 379.) YapStone’s evidence was sufficient for this
purpose: It is reasonable to infer that an already overworked unit would be
significantly affected by a long absence of one of its members.7
7 YapStone repeatedly emphasizes that it continued to employ Marcela
for several months after it terminated Paula, viewing this as “proof positive”
it did not fire Paula because of her association with Marcela. If the company
“intended to discriminate against Paula based on her association with
Marcela,” YapStone maintains, “it would have terminated Marcela at the
same time.” The point is unconvincing if not disingenuous. YapStone could
not have fired Marcela at the time it fired Paula: At a minimum, the record
17
It then became Paula’s burden to “ ‘offer substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse action was
untrue or pretextual, or evidence the employer acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier of fact could
conclude the employer engaged in intentional discrimination.” (Horn v.
Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806–807,
quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1004–1005.) To meet this burden, an employee cannot “simply show the
employer’s decision was wrong, mistaken, or unwise” but rather “ ‘ “must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them
‘unworthy of credence,’ [citation], and hence infer ‘that the employer did not
act for the [. . . asserted] non-discriminatory reasons.’ [Citations.]”
[Citations.]’ ” (Horn, at p. 807, quoting Hersant, at p. 1005.) Paula did not do
so.
Paula argues it could reasonably be inferred that YapStone fired her
because she was upset with Jezildzic for being unwilling to accommodate her
need to care for Marcela. The basis for this argument is a November 23, 2016
redacted electronic conversation in which Jezildzic said to another employee,
“then i got yelled at by paula and told im not human and have no empathy
. . . which is annoying.”
Paula offers two cases to support this argument. In Kelleher v. Fred A.
Cook, Inc. (2d Cir. 2019) 939 F.3d 465, an ADA case, an employee whose
reflects that Marcela was protected by the FMLA until January 9, 2017. And
YapStone’s decisions regarding Marcela’s employment had to be made with
consideration of her right to reasonable accommodation of her disability
under FEHA.
18
young daughter had a severe neurological disorder was told he could not
leave work immediately after his shifts, his request to work shortened shifts
(eight hours rather than 10 to 12 hours) for one week was denied, and he was
told his problems at home were not the company’s problems. (Kelleher, at
pp. 466–467.) When he missed a day of work after his daughter suffered a
near-fatal seizure, he was demoted, another request for shortened shifts (to
enable him to visit his daughter in the hospital) was denied, and he was
terminated upon arriving to work 10 to 15 minutes late one day. (Id. at
p. 467.) In reversing the trial court’s dismissal of the complaint, Kelleher
stated, “[t]hough the ADA does not require an employer to provide a
reasonable accommodation to the nondisabled associate of a disabled person,
an employer’s reaction to such a request for accommodation can support an
inference that a subsequent adverse employment action was motivated by
associational discrimination. Thus, in this case, [the employer’s] demand
that Kelleher ‘leave his personal problems at home’ after Kelleher requested
one week of shortened workdays supports Kelleher’s claim that his later
termination was motivated by associational discrimination.” (Id. at p. 469.)
The comment Paula points to was not a response to Paula’s request for
an accommodation; it was a response to Paula’s expression of anger at being
denied further leave. Additionally, in Kelleher, the employer’s dismissive
comment about problems at home was in response to the employee’s initial
request for accommodations. Here, it appears Jezildzic’s comment about
Paula yelling at her was made on the day Paula spoke by telephone with
Jezildzic after receiving the letter informing Paula of the requirement that
she return to work by November 28. YapStone had already extended Paula’s
leave twice, and the letter was responding to Paula’s statement that she
would not be returning until further notice.
19
Even more important than these factual differences, Kelleher was
reviewing the dismissal of a complaint: The issue was whether the plaintiff
pleaded a claim for associational discrimination, not, as here, whether he
raised a triable issue of fact. (Kelleher, supra, 939 F.3d at p. 470.)
Distinguishing the case upon which the defendant and district court had
relied, the Kelleher court stated, “More fundamentally, Graziadio [v. Culinary
Inst. of Am. (2d Cir. 2016) 817 F.3d 415] was decided on summary judgment.
On a motion to dismiss, we do not consider potential nondiscriminatory
reasons for termination; we examine the complaint to determine whether it
contains ‘at least minimal support for the proposition that the employer was
motivated by discriminatory intent.’ Littlejohn [v. City of New York (2d Cir.
2015)] 795 F.3d [297,] 311. Whether such motivation was ‘the true reason (or
in any event not the sole reason) for the employment decision’ is a question
that cannot be resolved on these pleadings alone. [Citation.]”
Paula also points to Fenn v. Mansfield Bank (D.Mass. 2015) 2015
U.S.Dist. LEXIS 17235, in which an employee whose wife was disabled was
directed by the employer to attend a week-long training session in another
city. Because of his need to care for his wife, the employee asked to take the
training in a closer location or online; these requests were denied and he was
terminated. In the ensuing lawsuit, the employer moved to dismiss a claim
for associational discrimination on the ground that it was based on the
employee being fired for demanding a work accommodation to which he was
not entitled. Denying the motion, the district court explained that the
complaint alleged not only that the employee requested an accommodation
the employer was unwilling to give, but also that the employee’s wife’s
disability “was a determining factor in [the employer’s] abrupt decision to
terminate him and that [the employer] harbored animosity against him even
20
for asking for the accommodation.” (Id. at p. 8.) “Such allegations, which the
Court is obligated to assume as true at this stage of the litigation, sufficiently
assert that [the employer’s] decision to terminate him was ‘premised on
hostility toward the handicapped condition of [his] spouse’ and, thus, was
‘because of his association with his handicapped wife.’ ” (Ibid.) The court
noted that its decision was based “solely on the face of the amended
complaint.” (Ibid.)
Here, the question is whether Paula presented evidence raising a
triable issue of fact as to whether YapStone’s asserted reason for firing her—
her refusal to return to work by November 28—was pretextual and the
termination actually motivated by hostility toward Paula due to her
association with Marcela’s disability. Jezildzic’s comment that Paula yelled
at her and told her she was “not human” and had “no empathy,” apparently
after Paula was told she had to return to work by November 28, was
insufficient to support a reasonable inference that Paula was fired because
YapStone was hostile toward Paula for asking for leaves of absence or
Jezildzic was tired of the “nuisance of communicating” with Paula in
Colombia, as Paula suggests.
In sum, Paula failed to submit evidence raising a triable issue of fact as
to whether her association with a disabled person was a substantial
motivating factor in the termination of her employment.8
8YapStone asks us not to follow Rope and Castro-Ramirez, but rather
to adopt the reasoning of the dissent in Castro-Ramirez, which concluded that
a claim of associational disability discrimination under FEHA should be
analyzed consistently with such a claim under the ADA. The fundamental
disagreement between the majority and dissent in Castro-Ramirez concerned
whether FEHA requires an employer to provide reasonable accommodations
to an employee who is only associated with a disabled person. The question
21
II.
Section 12940, subdivision (n), makes it unlawful for an employer to
“fail 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.” Although she did
not allege a cause of action for denial of a reasonable accommodation, Paula
did allege a claim for failure to engage in good faith in the interactive process
to determine a reasonable accommodation.
YapStone argues we should not recognize a cause of action for failure to
engage in the interactive process under section 12940, subdivision (n), for a
person who is merely associated with a disabled person, urging us to follow
ADA caselaw holding there is no duty to provide reasonable accommodations
to an employee who is not himself or herself disabled. (42 U.S.C.
turns on differences in statutory language between FEHA and the ADA,
which does not require such accommodation. (42 U.S.C. § 12112(b)(5)(A);
Larimer, supra, 370 F.3d at p. 700; see fn. 9, post.) The Castro-Ramirez
majority observed that FEHA could reasonably be read as requiring
reasonable accommodation based on association with a disabled person, but
stated it was not deciding the issue because the plaintiff had abandoned his
claim for denial of reasonable accommodations. (Ibid.) The dissent viewed
the majority as having “in effect” decided accommodation is required,
reasoning that refusing a schedule change in order to allow an employee to
care for a disabled relative could be seen as evidence of disability
discrimination only if there is a duty to provide the accommodation. (Castro-
Ramirez, supra, 2 Cal.App.5th at pp. 1052, 1059–1060, 1062.)
The present case does not require us to decide the issue, because Paula
did not allege a claim for denial of a reasonable accommodation and, as we
have explained, the accommodation she sought was not reasonable. But we
have no disagreement with the Castro-Ramirez majority that analysis of a
claim for associational disability discrimination under FEHA must take into
consideration any relevant differences between FEHA and the ADA.
22
§ 12112(b)(5)(A); Larimer, supra, 370 F.3d at p. 700.) Paula relies upon dicta
in Castro-Ramirez stating that because section 12926, subdivision (o), makes
association with a disabled person a part of “physical disability,” the
requirement that an employer accommodate an employee’s physical disability
(§ 12940, subd. (m)) “may reasonably be interpreted to require
accommodation based on the employee’s association with a physically
disabled person.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1039.)9 We
9 The text of the ADA makes clear that it does not require an employer
to accommodate an employee on the basis of his or her association with a
disabled person. The ADA protects against associational disability
discrimination by defining the prohibited “ ‘discriminat[ion] against a
qualified individual on the basis of disability. . . .’ (42 U.S.C. § 12112(a)” as
including “ ‘discriminat[ion] against a qualified individual . . . because of the
known disability of an individual with whom the qualified individual is
known to have a relationship or association.’ (42 U.S.C. § 12112(b)(4).)”
(Castro-Ramirez, supra, 2 Cal.App.5th at p. 1040.) But with regard to
accommodation, the ADA provides that “ ‘ “discriminat[ion] against a
qualified individual on the basis of disability” ’ includes “ ‘not making
reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or
employee.’ (42 U.S.C. § 12112(b)(5)(A), italics added.)” (Castro-Ramirez, at
p. 1040.) This language cannot be read to require reasonable accommodation
for an employee who is not personally disabled.
By contrast, since FEHA includes association with the disabled in its
definition of disability (§ 12926, subd. (o)), FEHA’s requirement for employers
to make reasonable accommodation for the “known physical or mental
disability of an applicant or employee” (§ 12940, subd. (m)(1)) “may
reasonably be interpreted to require accommodation based on the employee’s
association with a physically disabled person.” (Castro-Ramirez, supra,
2 Cal.App.5th at pp. 1038–1039.)
To our knowledge, and according to the parties, no published California
case has directly decided this issue. The federal district court in Castro v.
Classy, Inc. (S.D.Cal. Mar. 2, 2020) 2020 WL 996948, however, in denying an
employer’s motion to dismiss, accepted the argument that accommodation on
the basis of association with a disabled person is required because
23
find it unnecessary to resolve the question because even if we assume
YapStone was required to provide reasonable accommodations on this basis,
Paula failed to raise a triable issue of fact as to whether YapStone engaged in
good faith in the interactive process.
The purpose of the interactive process is to identify an accommodation
that allows the employee to perform his or her job effectively. (Scotch v. Art
Institute of California (2009) 173 Cal.App.4th 986, 1013 (Scotch); Nadaf-
Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984.)
“Both employer and employee have the obligation ‘to keep communications
open’ and neither has ‘a right to obstruct the process.’ [Citation.] ‘Each party
must participate in good faith, undertake reasonable efforts to communicate
its concerns, and make available to the other information[,] which is
available, or more accessible, to one party. Liability hinges on the objective
circumstances surrounding the parties’ breakdown in communication, and
responsibility for the breakdown lies with the party who fails to participate in
good faith.’ [Citation].” (Scotch, at pp. 1013–1014.)
Here, YapStone responded to Paula’s need to care for Marcela by
agreeing to her initial leave and extending it twice at her request before
imposing a deadline for Paula’s return to work after she stated she would be
gone until further notice. We assume Paula’s claim of failure to engage in the
interactive process in good faith is directed at this imposition of a deadline, as
YapStone cannot be seen as failing to engage in good faith during the period
it was approving her leave extensions. The deadline—imposed, as we have
said, together with another extension of the leave—was YapStone’s response
subdivisions (m) and (n) of section 12926—requiring reasonable
accommodation and engagement in the interactive process to determine
reasonable accommodations—“are subject to the same broad definition of
physical disability encompassed in” section 12926, subdivision (o).
24
to Paula’s statement that she would not return to work until further notice;
YapStone’s letter explained that its business needs would not permit Paula to
remain on leave beyond the date stated. Paula protested YapStone’s
statement that she would be viewed as having voluntarily abandoned her job
if she did not return by November 28, 2016, but she did not request a further
leave of specific duration or any other accommodation. “To prevail on a claim
under section 12940, subdivision (n), for failure to engage in the interactive
process, an employee must identify a reasonable accommodation that would
have been available at the time the interactive process should have occurred.”
(Scotch, supra, 173 Cal.App.4th at pp. 1018–1019; Nadaf-Rahrov v. Neiman
Marcus Group, Inc., supra, 166 Cal.App.4th at p. 984.) Paula’s assertion that
she needed to remain away from work indefinitely, if construed as a request
for accommodation, was not a request for a reasonable accommodation. She
did not submit evidence to refute the legitimacy of YapStone’s need for her to
return by November 28, 2016, or demonstrate the company could have
permitted a lengthier leave without undue hardship. Paula has not
demonstrated a triable issue as to this cause of action.
III.
The trial court concluded that Paula’s causes of action for wrongful
termination and failure to take all reasonable steps necessary to prevent
discrimination necessarily failed because the underlying cause of action for
associational disability discrimination did not survive summary adjudication.
Paula makes no argument regarding these causes of action except to note the
Rope and Castro-Ramirez courts’ conclusions that causes of action for
wrongful termination and failure to prevent discrimination survived where
claims for associational disability discrimination survived. Our
determination that summary adjudication was proper as to Paula’s
25
associational disability claim necessarily means it was proper as to the
wrongful termination and failure to prevent discrimination causes of action
as well.
DISPOSITION
The judgment is affirmed.
Costs to YapStone.
26
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
Vega et al. v. YapStone, Inc. (A160884)
27