Featherstone v. Southern California Permanente Medical Group ( 2017 )

Filed 4/19/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
RUTH FEATHERSTONE, B275225
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC551005)
v.
SOUTHERN CALIFORNIA
PERMANENTE MEDICAL
GROUP,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gail R. Feuer, Judge. Affirmed.
Rushovich Mehtani, Aanand Ghods-Mehtani and
Lisa M. Watanabe-Peagler for Defendant and Appellant.
Nixon Peabody, Michael R. Lindsay, Alicia C. Anderson
and Mae K. Hau for Plaintiff and Respondent.
——————————
Ruth Featherstone (Featherstone) appeals from
summary judgment entered against her on claims that her
former employer, defendant and respondent Southern
California Permanente Medical Group (SCPMG), refused to
rescind her resignation in violation of the Fair Employment
and Housing Act (FEHA) (Gov. Code, § 12940 et seq.1) and
public policy.
Specifically, Featherstone alleged that while working
for SCPMG she suffered a “temporary” disability, which
arose as a result of a “relatively uncommon side effect of the
medication” she was taking in late December 2013; this
“adverse drug reaction” allegedly caused Featherstone to
suffer from an “altered mental state.” While under the
influence of this altered mental state, Featherstone resigned
from her position with SCPMG—first, she resigned orally in
a telephone conversation with her supervisor and then, a few
days later, confirmed her resignation in writing in an email
to her supervisor. A few days after confirming her
resignation in writing, Featherstone requested SCPMG to
allow her to rescind her resignation. SCPMG, after
considering Featherstone’s request, declined to do so.
Featherstone then sued, alleging that SCPMG acted with
discriminatory animus by refusing to allow her to rescind
her resignation.
1All further statutory references are to the
Government Code unless otherwise indicated.
2
We affirm for two principal reasons. First, SCPMG’s
refusal to allow Featherstone to rescind her resignation was
not an adverse employment action under the FEHA. Second,
Featherstone failed to raise a triable issue of fact as to
whether the SCPMG employees who accepted and promptly
processed her resignation knew of her alleged temporary
disability at the time they took those actions. Because
Featherstone failed to present evidence raising a triable
issue of material fact about the legality of SCPMG’s actions,
summary judgment was appropriate.
BACKGROUND
I. Featherstone’s employment with SCPMG
Featherstone began working for SCPMG as an “at-will”
employee in 2009. She reported to Vicky Sheppard
(Sheppard).
Prior to joining SCPMG, Featherstone had suffered
from chronic sinus conditions that had resulted in the
development of an inverted papilloma tumor in her sinus
cavity; between 1995 and 2008, she had five surgeries to
treat the tumor. Throughout her employment with SCPMG,
Featherstone suffered from chronic sinusitis.
In October 2013, Featherstone’s doctor informed her
that she needed to have surgery based on changes in her
sinus tumor. SCPMG granted Featherstone leave to have
and recover from the surgery. Featherstone’s medical leave
extended to December 13, 2013. On December 16, 2013,
Featherstone returned to work without any work
restrictions.
3
II. Featherstone’s resignation from SCPMG
On December 23, 2013, at approximately 8:30 a.m.,
Featherstone called Sheppard and informed her that she
was resigning from her employment with SCPMG effective
immediately. According to Sheppard, Featherstone told her
that “ ‘God had told [her] to do something else.’ ”
Prior to Featherstone’s resignation, neither Sheppard
nor Sheppard’s supervisor/manager were aware that
Featherstone was suffering from an altered mental state.
During their phone conversation, although Sheppard had to
ask Featherstone to “ ‘slow down,’ ” she did not consider
Featherstone to be “acting in a way that [she] would consider
to be odd in any manner.” On that same day, Sheppard
noticed a post by Featherstone on Facebook regarding her
resignation that seemed “a little out of the blue,” “a little
erratic”—Featherstone indicated that she had resigned in
order to “do God’s work.” Featherstone’s post, however, did
not cause any concern in Sheppard’s mind that Featherstone
was not in her right mind when she resigned, because the
reference to God was not inconsistent with Featherstone’s
character.
Following their conversation, Sheppard emailed
Featherstone, asking her to confirm her resignation in
writing and then informed her supervisor/manager and
SCPMG’s human resources department of Featherstone’s
resignation. SCPMG’s human resources department
instructed Sheppard to immediately process Featherstone’s
termination paperwork so that Featherstone could receive
4
her final paycheck and other discharge-related paperwork in
a timely manner. Sheppard’s supervisor/manager completed
and submitted Featherstone’s voluntary termination
paperwork later that same day.2 The paperwork indicated,
inter alia, that Featherstone was eligible to be rehired by
SCPMG.
On December 26, 2013, Featherstone responded to
Sheppard’s email, confirming her decision to resign effective
December 23, 2016.
III. Featherstone’s hospitalization
On or about December 21, 2013, Featherstone’s
behavior at home began to progressively change. For
example, Featherstone “took off her clothes and walked
around naked in front of others, repeatedly and
uncharacteristically swore at family and friends, and took
showers for no reason.”
On December 24, 2013—one day after she resigned—
Featherstone was hospitalized. On that same day, a friend
and coworker of Featherstone spoke with Featherstone’s
sister, who advised the coworker of Featherstone’s
hospitalization. The coworker discussed the matter with her
manager, who, because he was not Featherstone’s manager,
advised her to contact SCPMG’s HR department. The HR
department advised the coworker that it could not discuss
2 To facilitate the speedy termination of the
employment relationship, an employer is obligated to pay
the employee’s final wages within 72 hours. (Lab. Code,
§ 202.)
5
Featherstone’s situation with her since she was not a
member of Featherstone’s family. After this one
communication with the HR department, the coworker did
not have any other communications with any other SCPMG
employees about Featherstone’s hospitalization or medical
condition.
On December 26, 2013—the day she confirmed her
resignation in writing—Featherstone was released from the
hospital and transferred to a Kaiser mental health facility,
which released her later that same day.
IV. Featherstone’s request to rescind her resignation
On or about December 31, 2013, Featherstone informed
Eva Suarez (Suarez) in SCPMG’s HR department that at the
time of her resignation she was suffering from an adverse
drug reaction and, as a result, requested that SCPMG allow
her to rescind her resignation. Suarez told Featherstone to
send her any documents that she wanted Suarez to review in
connection with her rescission request.
On January 14, 2014, Featherstone sent an email to
Suarez describing the events pertaining to her resignation.
According to Featherstone, prior to her resignation she was
taking Phenergan with codeine for a cough and that
medication “caused her to do abnormal things.” Her
behavior became so abnormal that she was hospitalized for
72 hours.3 Featherstone further stated that she was told by
3 In her email, Featherstone states that she was placed
on a “5150.” Section 5150 of the Welfare and Institutions
Code authorizes a qualified officer or clinician to
6
a doctor on December 25, 2013, that she had “PCP and
cocaine in her system that caused [her] to behave so wildly
due to the Phenergan with codeine.” Attached to her email
was a note from Dr. An Hong Tran dated January 3, 2013,
which seemingly both confirmed and contradicted
Featherstone’s email. Dr. Tran confirmed that Featherstone
had been hospitalized “due to a behavioral change that
resulted from an adverse reaction from medication
phenergan with codeine.” Dr. Tran, however, also stated
that “[o]n confirmatory test, [Featherstone] does not have
any PCP or cocaine.”
After considering the email supporting Featherstone’s
rescission request and consulting with SCPMG’s legal
counsel, Suarez determined that there was nothing improper
about SCPMG’s acceptance of Featherstone’s resignation on
December 23, 2013 and that there were no facts requiring
SCPMG to allow Featherstone to rescind her resignation.
On January 21, 2014, Suarez notified Featherstone that
SCPMG would not accede to her request.
At no point following her resignation did Featherstone
reapply for her prior position with SCPMG.
involuntarily confine a person suspected to have a mental
disorder that makes them a danger to themselves, a danger
to others, and/or gravely disabled for up to 72 hours.
7
DISCUSSION
I. Standard of review
We review an order granting summary judgment de
novo, “considering all the evidence set forth in the moving
and opposition papers except that to which objections have
been made and sustained.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal. 4th 317, 334 (Guz).)
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 the
cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “In
performing our de novo review, we must view 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.)
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.)
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 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
8
opposing summary judgment. (Aguilar v. Atlantic Richfield
Co., supra, 25 Cal.4th at pp. 850, 856.)
II. Summary judgment and employment
discrimination claims
In an employment discrimination case, an employer
may move for summary judgment against a discrimination
cause of action with evidence of a legitimate,
nondiscriminatory reason for the adverse employment
action. (Guz, supra, 24 Cal. 4th 317, 357.) A legitimate,
nondiscriminatory reason is one that is unrelated to
prohibited bias and that, if true, would preclude a finding of
discrimination. (Id. at p. 358.) The employer’s evidence
must be sufficient to allow the trier of fact to conclude that it
is more likely than not that one or more legitimate,
nondiscriminatory reasons were the sole basis for the
adverse employment action. (Kelly v. Stamps.com Inc.
(2005) 135 Cal. App. 4th 1088, 1097–1098.)
By presenting such evidence, the employer shifts the
burden to the plaintiff to present evidence that the
employer’s decision was motivated at least in part by
prohibited discrimination.4 (Guz, supra, 24 Cal.4th at
4 This burden-shifting test is derived from the three-
stage burden-shifting test established by the United States
Supreme Court for use at trial in cases involving claims,
such as those at issue here, of employment discrimination
based on disparate treatment, known as the McDonnell
Douglas test (McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792; Guz, supra, 24 Cal.4th at pp. 354, 357.) A plaintiff
9
pp. 353, 357.) The plaintiff’s evidence must be sufficient to
support a reasonable inference that discrimination was a
substantial motivating factor in the decision. (Harris v. City
of Santa Monica (2013) 56 Cal. 4th 203, 232; Guz, at pp. 353,
357.) The stronger the employer’s showing of a legitimate,
nondiscriminatory reason, the stronger the plaintiff’s
evidence must be in order to create a reasonable inference of
a discriminatory motive. (Guz, at p. 362 & fn. 25.)
Although an employee’s evidence submitted in
opposition to an employer’s motion for summary judgment is
construed liberally, it “remains subject to careful scrutiny.”
(King v. United Parcel Service, Inc. (2007) 152 Cal. App. 4th
426, 433.) The employee’s “subjective beliefs in an
employment discrimination case do not create a genuine
issue of fact; nor do uncorroborated and self-serving
declarations.” (Ibid.) The employee’s evidence must relate
to the motivation of the decision makers and prove, by
nonspeculative evidence, “an actual causal link between
has the initial burden at trial to establish a prima facie case
of employment discrimination. (Guz, at p. 354.) On a
summary judgment motion, in contrast, a moving defendant
has the initial burden to show that a cause of action has no
merit (Code Civ. Proc., § 437c, subd. (p)(2)) and therefore has
the initial burden to present evidence that its decision was
motivated solely by legitimate, nondiscriminatory reasons.
(Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at
pp. 1097–1098.)
10
prohibited motivation and termination.” (Id. at pp. 433–
434.)
To show that an employer’s reason for termination is
pretextual, an employee “ ‘cannot simply show that the
employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated
the employer, not whether the employer is wise, shrewd,
prudent or competent.’ ” (Hersant v. Department of Social
Services (1997) 57 Cal. App. 4th 997, 1005.) To meet his or
her burden, the employee “ ‘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,” ’ ” and hence
infer “ ‘that the employer did not act for [the asserted] non-
discriminatory reasons.’ ” (Ibid.) “[I]f nondiscriminatory,
[the employer’s] true reasons need not necessarily have been
wise or correct. [Citations.] While the objective soundness
of an employer’s proffered reasons supports their
credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally. Thus,
‘legitimate’ reasons [citation] in this context are reasons that
are facially unrelated to prohibited bias, and which, if true,
would thus preclude a finding of discrimination.” (Guz,
supra, 24 Cal.4th at p. 358.)
In short, where the case has been decided on summary
judgment, “ ‘ “[i]f the employer presents admissible evidence
either that one or more of plaintiff’s prima facie elements is
11
lacking, or that the adverse employment action was based on
legitimate, nondiscriminatory factors, the employer will be
entitled to summary judgment unless the plaintiff produces
admissible evidence which raises a triable issue of fact
material to the defendant’s showing.” ’ ” (Arteaga v. Brink’s,
Inc. (2008)163 Cal.App.4th 327, 344, italics omitted.)
III. Summary judgment was properly granted on all
of Featherstone’s employment discrimination claims
In her operative complaint, Featherstone alleged five
causes of action: (a) unlawful discrimination based on
disability in violation of FEHA; (b) failure to prevent
unlawful discrimination in violation of FEHA; (c) failure to
accommodate a disability in violation of FEHA; (d) failure to
engage in the interactive process to determine a reasonable
accommodation in violation of FEHA; and (e) wrongful
termination in violation of public policy.
As discussed more fully below, Featherstone failed to
meet her prima facie burden with respect to each of those
claims.
A. SCPMG WAS ENTITLED TO JUDGMENT AS A MATTER
OF LAW ON FEATHERSTONE’S DISABILITY CLAIM
FEHA provides, in relevant part, that “[i]t is an
unlawful employment practice. . . . [¶] (a) For an employer,
because of the . . . physical disability [or] medical
condition . . . of any person, to refuse to hire or employ the
person . . . or to bar or to discharge the person from
employment . . . .” (§ 12940, subd. (a); see Ross v.
RagingWire Telecommunications, Inc. (2008) 42 Cal. 4th 920,
12
925–926.) FEHA proscribes two types of disability
discrimination: (1) discrimination arising from an
employer’s intentionally discriminatory act against an
employee because of his or her disability (referred to as
disparate treatment discrimination), and (2) discrimination
resulting from an employer’s facially neutral practice or
policy that has a disproportionate effect on employees
suffering from a disability (referred to as disparate impact
discrimination). (Knight v. Hayward Unified School Dist.
(2005) 132 Cal. App. 4th 121, 128–129, disapproved on other
grounds in Williams v. Chino Valley Independent Fire Dist.
(2015) 61 Cal. 4th 97, 115.) In opposing SPMG’s motion for
summary judgment, Featherstone asserted only disparate
treatment discrimination.
To establish a prima facie case for disparate treatment
discrimination, plaintiff must show (1) she suffers from a
disability, (2) she is otherwise qualified to do her job, (3) she
suffered an adverse employment action, and (4) the employer
harbored discriminatory intent. (See Guz, supra, 24 Cal.4th
at p. 355.)
Assuming arguendo that a temporary disability, such
as the one Featherstone allegedly suffered from, qualifies as
a disability under FEHA,5 summary judgment in favor of
5 See Diaz v. Federal Express Corp. (C.D.Cal. 2005) 373
F. Supp. 2d 1034. In Diaz, the plaintiff was diagnosed with
an “Adjustment Disorder with Mixed Anxiety and Depressed
Mood” and had several bouts with depression, anxiety. (Id.
at pp. 1040–1042.) The defendant moved for summary
13
SCPMG on Featherstone’s disability claim was appropriate
because refusing to allow a former employee to rescind a
voluntary discharge—that is, a resignation free of employer
coercion or misconduct—is not an adverse employment
action.
judgment, claiming the plaintiff suffered from a temporary
disability under the FEHA and sought to have the federal
district court apply a categorical exclusion based on the
short duration of the condition. (Id. at pp. 1047–1048.) The
district court in Diaz, after examining the language of
FEHA, the legislative history of its 2001 amendments, and
the relevant case law, rejected the defendant’s arguments,
concluding that “the trier of fact will need to determine
whether Plaintiff’s condition, although temporary,
constituted a disability.” (Id. at p. 1053.) However, the Diaz
court felt obliged to acknowledge that exclusion of the
“durational issue” from FEHA analysis would lead to
“absurd” results: “every citizen in California who suffered
from a cold, the flu, or the degree of stress or depression that
most employees in the workplace experience would be
‘disabled’ under the FEHA.” (Id. at 1052; see 29 C.F.R.
§ 1630.15(f) [“transitory and minor impairments” are a
defense to ADA discrimination claims].) Because the issue of
whether Featherstone’s alleged temporary disability should
be considered a disability under FEHA was not raised in
connection with SCPMG’s motion for summary judgment, we
decline to consider it here.
14
1. Absent evidence of constructive discharge or
contractual obligation, refusal to allow rescission is not an
adverse employment action
In Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal. 4th
1028, our Supreme Court recognized that what constitutes
an adverse employment action “is not, by its nature,
susceptible to a mathematically precise test,” and, as a
result, “the significance of particular types of adverse actions
must be evaluated by taking into account the legitimate
interests of both the employer and the employee.” (Id. at
p. 1054.) Yanowitz, nonetheless, defined an adverse
employment action generally as one that “materially affect[s]
the terms, conditions, or privileges of employment.” (Id. at
p. 1051, fn. 9, italics added; see generally id. at pp.1049–
1055.) “[T]he determination of whether a particular action
or course of conduct rises to the level of actionable conduct
should take into account the unique circumstances of the
affected employee as well as the workplace context of the
claim.” (Id. at p. 1052.) “[T]he phrase ‘terms, conditions, or
privileges’ of employment must be interpreted liberally and
with a reasonable appreciation of the realities of the
workplace in order to afford employees the appropriate and
generous protection against employment discrimination that
the FEHA was intended to provide.” (Id. at p. 1054.) The
protections against discrimination in the workplace
therefore are “not limited to adverse employment actions
that impose an economic detriment or inflict a tangible
psychological injury upon an employee.” (Id. at p. 1052.)
15
Rather, FEHA “protects an employee against unlawful
discrimination with respect . . . to . . . the entire spectrum of
employment actions that are reasonably likely to adversely
and materially affect an employee’s job performance or
opportunity for advancement in his or her career.” (Id. at
pp. 1053–1054.) “[T]here is no requirement that an
employer’s retaliatory acts constitute one swift blow, rather
than a series of subtle, yet damaging, injuries.” (Id. at
p. 1055.) Thus, “it is appropriate to consider plaintiff’s
allegations collectively under a totality-of-the circumstances
approach.” (Id. at p. 1052, fn. 11.)
In sum, given the focus in Yanowitz v. L’Oreal USA
Inc., supra, 36 Cal. 4th 1028 on guarding against employer
conduct that materially affects an employee’s job
performance and/or opportunity for advancement, an
adverse employment action is one that affects an employee,
not a former employee, in the terms, conditions or privileges
of his or her employment, not in the terms, conditions or
privileges of his or her unemployment.
The text of FEHA is silent with respect to whether an
employer’s refusal to allow a former employee to rescind a
resignation constitutes an adverse employment action.
Moreover, the parties have not directed us to, and we are not
aware of, any California appellate decisions addressing this
issue. However, we are not without recourse to other
authorities for guidance. As our Supreme Court has stated,
“Because of the similarity between state and federal
employment discrimination laws, California courts look to
16
pertinent federal precedent when applying our own
statutes.” (Guz, supra, 24 Cal.4th at p. 354.) Two such
federal laws are the Federal Americans with Disabilities Act
of 1990 (ADA) (42 U.S.C. § 12101 et seq.) and title VII of the
federal Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e
et seq.). (See Gelfo v. Lockheed Martin Corp. (2006) 140
Cal. App. 4th 34, 56–57; Walker v. Blue Cross of California
(1992) 4 Cal. App. 4th 985, 997–998, disapproved on other
grounds in Guz, supra, 24 Cal. 4th 317.)6
6 In undertaking this analysis, we are mindful of the
fact that the ADA provides only a “floor of protection” and
that FEHA not only “provides protections independent from
those in the[ADA]” but also “afford[s] additional protections”
from those provided by the ADA. (§ 12926.1, subd. (a).)
Nonetheless, “[b]ecause the ADA and FEHA share the goal
of eliminating discrimination, we often look to federal case
authority to guide the construction and application of
FEHA.” (Gelfo v. Lockheed Martin Corp., supra, 140
Cal.App.4th at pp. 56–57.) Moreover, where federal courts
have addressed issues involving employment discrimination
that California courts have yet to consider, those federal
decisions “provide substantial guidance.” (Id. at p. 55.) In
addition, as our Supreme Court has noted, “ ‘conformity [to
the ADA rules] will benefit employers and businesses
because they will have one set of standards with which they
must comply in order to be certain that they do not violate
the rights of individuals with physical or mental
disabilities.’ ” (Green v. State of California (2007) 42 Cal. 4th
254, 263.)
17
In ruling on summary judgment motions, federal
district courts have regularly found in employment
discrimination cases brought pursuant to the ADA, Title VII,
and related federal and state civil rights statutes (such as
title 42 United States Code sections 1981 and 1983) that
“[a]n employer’s refusal to allow an employee to rescind his
[or her] resignation . . . [is] not . . . an adverse employment
action.” (Williams v. Rowan University (D.N.J. Dec. 11,
2014, Civil No. 10–6542 (RMB/AMD) 2014 WL 7011162, at
*9 [granting summary judgment on 42 U.S.C. §§ 1981, 1983
claims].)
The reason why “[a]n employee who voluntarily resigns
cannot show that he or she has suffered an adverse
employment decision” is self-evident: refusing to accept
rescission of a resignation is “not an adverse employment
action for the simple reason that the employment
relationship has ended.” (Schofield v. Metropolitan Life Ins.
Co. (M.D.Pa. Sept.15, 2006, No. 03–357) 2006 WL 2660704
at *8-9, italics added [granting summary judgment on ADA
claim]; Hammonds v. Hyundai Motor Mfg. Ala. L.L.C.
(M.D.Ala. June 28, 2011, No. 2:10–cv–103) 2011 WL
2580168, at *4 [“voluntary resignation is not an adverse
employment action” (title VII case)].)
In MacLean v. City of St. Petersburg (M.D.Fla. 2002)
194 F. Supp. 2d 1290, the district court granted summary
judgment in favor of the defendant employer in a Title VII
action, finding that, unless “the employer forces the
[employee’s] resignation by coercion or duress” or “obtains
18
the resignation by deceiving or misrepresenting a material
fact,” an employee’s resignation is “presumed to be
voluntary,” and, therefore, the employer’s “failure to accept
[the employee’s] rescission of her voluntary resignation [is]
not an adverse employment action.” (Id. at p. 1299.)
Federal appellate courts have reached similar
conclusions. For example, the Sixth and Eight Circuits have
held that an employee cannot voluntarily submit a
resignation and then claim the employer’s acceptance of the
resignation is an adverse employment action. (See Jones v.
Butler Metropolitan Housing Auth. (6th Cir. 2002) 40
Fed.Appx. 131, 137 [title VII action]; Hammon v. DHL
Airways, Inc. (6th Cir. 1999) 165 F.3d 441, 450 [ADA case];
Curby v. Solutia, Inc. (8th Cir. 2003) 351 F.3d 868, 872 [title
VII case].)7
In Wilkerson v. Springfield Public School Dist. No. 186
(7th Cir. 2002) 40 Fed.Appx. 260, the Seventh Circuit
focused on the voluntary nature of the resignation (i.e., the
absence of employer coercion) and the absence of any
contractual obligation to allow rescission. In that case, the
Court of Appeals affirmed summary judgment in favor of a
defendant employer and against a former employee who
argued that he suffered an adverse employment action when
the employer refused to allow him to rescind his resignation.
7 But see Porter v. Houma Terrebonne Housing Auth.
Bd. of Comm'rs (5th Cir. 2015) 810 F.3d 940, 945–947 [in
retaliation action failure to accept rescission may be adverse
employment action].)
19
The Wilkerson court explained its decision as follows:
“Adverse employment actions are typically events such as
termination, demotion, suspension, failure to promote, or
decreased pay. [Citation.] But the [the employer] was under
no duty to allow [the plaintiff-employee] to rescind his
resignation after he submitted his signed resignation, turned
in his keys, and stopped working.” (Id. at 263, italics added.)
In other words, if the parties’ contract does not permit an
employee to rescind his or her voluntary resignation, the
employer does not commit an adverse employment action by
refusing to allow rescission.
2. SCPMG did not coerce Featherstone’s
resignation
Featherstone does not allege constructive discharge—
that is, she does not allege that SCPMG coerced or otherwise
improperly pressured her to resign.8 Nor can it be inferred
that her resignation was actually a constructive discharge.
On the record before us the evidence does not show or even
suggest that SCPMG made or allowed Featherstone’s
working conditions to become “intolerable.” (Turner v.
8 “Constructive discharge occurs when the employer's
conduct effectively forces an employee to resign. Although
the employee may say, ‘I quit,’ the employment relationship
is actually severed involuntarily by the employer’s acts,
against the employee’s will. As a result, a constructive
discharge is legally regarded as a firing rather than a
resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7
Cal. 4th 1238, 1244–1245.)
20
Anheuser-Busch, supra, 7 Cal.4th at p. 1247.) Indeed, the
facts strongly suggest the opposite—that is, conditions at
SCPMG were so tolerable that Featherstone sought to stay
with the company by asking to rescind her resignation. (See,
e.g., Trinidad v. New York City Dept. of Correction
(S.D.N.Y.2006) 423 F. Supp. 2d 151, 168 [employee’s request
for reinstatement established that working conditions were
not intolerable]. In fact, Featherstone testified at her
deposition that her job at SCPMG was “one of the best
positions” she ever had.
To the extent, Featherstone’s resignation was coerced,
it was apparently coerced by an adverse drug reaction, not
by anything SCPMG did or failed to do.
3. SCPMG was not contractually obligated to
permit rescission of Featherstone’s resignation
Here, there is no evidence that SCPMG was under any
contractual duty to allow Featherstone to rescind her
resignation after it had accepted it by processing the
necessary paperwork. First, it is undisputed that
Featherstone was an “at-will” employee. Second, there is
nothing in the record before us establishing or even
suggesting that SCPMG and Featherstone had contracted
for some arrangement amending her at-will status so as to
require SCPMG to allow her to rescind her resignation even
after it had accepted her resignation on the same day that it
was tendered. These two facts mean that the normal rules
governing resignations by at-will employees applied.
21
“An at-will employment may be ended by either party
‘at any time without cause,’ for any or no reason, and subject
to no procedure except the statutory requirement of notice.”
(Guz, supra, 24 Cal.4th at p. 335; Lab. Code, § 2922.)
Because the “ ‘the employment relationship is fundamentally
contractual’ ” (Guz, supra, 24 Cal.4th at p. 336), California
courts have similarly held that “[r]esignations are
contractual in nature.” (Mahoney v. Board of Trustees (1985)
168 Cal.App.3d 789,799.) “As such, a resignation is an offer
which may be withdrawn prior to its acceptance.” (Ibid.,
italics added; Civ. Code, § 1586; T.M. Cobb Co. v. Superior
Court (1984) 36 Cal. 3d 273, 278.) In other words, “[u]nder
California law, an employee has a right to rescind a
resignation unilaterally (like any contract offer) only prior to
its acceptance.” (Ulrich v. City and County of San Francisco
(9th Cir. 2002) 308 F.3d 968, 975.)
As one federal district court has stated, “in the absence
of a duty to permit an employee to rescind his resignation, it
is not an adverse employment action—for the purposes of a
discrimination claim or a retaliation claim—for an employer
to take the employee at his word that he wants out and not
reinstate him if he changes his mind.” (Cadet v. Deutsche
Bank Sec., Inc. (S.D.N.Y. June 18, 2013, No.
11Civ.7964(CM)) 2013 WL 3090690, at *13.)
Under certain labor laws, an employer is required to
investigate the circumstances surrounding an employee’s
request to alter his/her employment. For example, when an
employee indicates a need for leave under the California
22
Family Rights Act (§ 12945.1 et seq.) (CFRA), “ ‘[t]he
employer should inquire further of the employee if necessary
to determine whether the employee is requesting CFRA
leave and to obtain necessary information concerning the
leave (i.e., commencement date, expected duration, and other
permissible information).” (Cal. Code Regs., tit. 2, § 11091,
subd. (a)(1).)9 But we are unaware of any similar duty for an
employer to investigate the circumstances surrounding a
voluntary resignation (i.e., one free of employer coercion) by
an at-will employee.
Because Featherstone’s rescission request was made
after SCPMG accepted her resignation, SCPMG was under
no contractual obligation to accede to her request.
Accordingly, under the totality of the circumstances,
SCPMG’s refusal was not an adverse employment action.
With Featherstone unable to establish one of the required
elements of her prima facie case for employment
discrimination, judgment as a matter of law in favor of
SCPMG was appropriate.
B. SCPMG WAS ENTITLED TO JUDGMENT AS A MATTER
OF LAW ON FEATHERSTONE’S FAILURE TO PREVENT UNLAWFUL
DISCRIMINATION CLAIM
Where, as here, a plaintiff cannot establish a claim for
discrimination, the employer as a matter of law cannot be
9 The federal analog to the CFRA, the Family and
Medical Leave Act (29 U.S.C. § 2601 et seq.) (FMLA),
requires similar follow-up inquiry by the employer. (See,
e.g., 29 C.F.R. § 825.302(c); 29 C.F.R. § 825.303(b).)
23
held responsible for failing to prevent same: “ ‘[T]here’s no
logic that says an employee who has not been discriminated
against can sue an employer for not preventing
discrimination that didn’t happen . . . .’ ” (Trujillo v. North
County Transit Dist. (1998) 63 Cal. App. 4th 280, 288–289.)
On appeal, Featherstone does not dispute that her
failure to prevent claim is entirely derivative of her
disability discrimination claim. Because Featherstone
cannot establish her underlying cause of action for disability
discrimination, she cannot maintain a derivative claim for
violation of section 12940, subdivision (k). Accordingly, the
trial court properly granted judgment as a matter of law on
Featherstone’s failure to prevent discrimination claim.
C. SCPMG WAS ENTITLED TO JUDGMENT AS A MATTER
OF LAW ON FEATHERSTONE’S FAILURE TO ACCOMMODATE CLAIM
Under section 12940, subdivision (m), an employer
must provide a “reasonable accommodation for the known
physical or mental disability of an applicant or employee.”
(Italics added.) An employer’s duty to reasonably
accommodate an employee’s disability is not triggered until
the employer knows of the disability. (Avila v. Continental
Airlines, Inc. (2008) 165 Cal. App. 4th 1237, 1252–1253
(Avila).)
“Generally, ‘ “[t]he employee bears the burden of giving
the employer notice of the disability.” ’ ” Raine v. City of
Burbank (2006) 135 Cal. App. 4th 1215, 1222.) An employer,
in other words, has no affirmative duty to investigate
whether an employee’s illness might qualify as a disability.
24
“ ‘ “[T]he employee can’t expect the employer to read his
mind and know he secretly wanted a particular
accommodation and sue the employer for not providing it.
Nor is an employer ordinarily liable for failing to
accommodate a disability of which it had no knowledge.” ’ ”
(Avila, supra, 165 Cal.App.4th at pp. 1252–1253; see
Hedberg v. Indiana Bell Telephone Co. (7th Cir. 1995) 47
F.3d 928, 934 [“ADA does not require clairvoyance”].)
“[A]n employer ‘knows an employee has a disability
when the employee tells the employer about his condition, or
when the employer otherwise becomes aware of the
condition, such as through a third party or by observation.’ ”
(Faust v. California Portland Cement Co. (2007) 150
Cal. App. 4th 864, 887.) For example, in Faust, the Court of
Appeal held that the employer was on notice of the plaintiff’s
disability when a chiropractor wrote to the employer and
stated that the plaintiff was “ ‘unable to perform regular job
duties’ ” and recommended that the plaintiff remain off
work. (Ibid.)
“While knowledge of the disability can be inferred from
the circumstances, knowledge will only be imputed to the
employer when the fact of disability is the only reasonable
interpretation of the known facts. ‘Vague or conclusory
statements revealing an unspecified incapacity are not
sufficient to put an employer on notice of its obligations
under the [FEHA].’ ” (Brundage v. Hahn (1997) 57
Cal. App. 4th 228, 237, italics added.) Moreover, “[e]vidence
that a decision maker learned of a plaintiff’s disability after
25
deciding to take adverse employment action is not probative
of whether the decision maker was aware of the plaintiff’s
disability when he or she made the decision.” (Avila, supra,
165 Cal.App.4th at p. 1251.) In addition, “ ‘[n]ot every
illness qualifies as [a] disability.’ ” (Id. at p. 1249.) Indeed,
federal courts have repeatedly rejected the contention that
under the ADA “any condition requiring temporary
hospitalization is disabling.” (Burch v. Coca–Cola Co. (5th
Cir. 1997) 119 F.3d 305, 317 [citing cases].)
“Put simply, unless there is some evidence an employer
knows an employee is suffering from a disability, it is
impossible for an employee to claim he or she was discharged
because of it or that an employer refused to accommodate
the disability.” (Pensinger v. Bowsmith, Inc. (1998) 60
Cal. App. 4th 709, 722, disapproved on other grounds by
Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal. 4th
1019, 1031, fn. 6.)
Here, when Featherstone resigned SCPMG did not
know—actually or constructively—that Featherstone was
suffering from a temporary disability caused by an adverse
drug reaction. It is undisputed that prior to her resignation
neither Featherstone’s direct manager, Sheppard, nor
Sheppard’s supervisor/manager knew that Featherstone was
suffering from an altered mental state. Nor could
Featherstone’s managers have reasonably suspected that
she might be suffering from an altered mental state.
Featherstone returned to work from her sinus-related
medical leave without any restrictions. Moreover, none of
26
the work status reports that Featherstone submitted to
SCPMG during her medical leave disclosed any information
about her medical condition or prescribed medications.
Featherstone’s references to God during her telephone
conversation with Sheppard and on Facebook were not
inconsistent with Featherstone’s character.
The lone, incomplete communication from
Featherstone’s coworker to the HR department on the day
Featherstone resigned not only occurred after Featherstone
had resigned, but was insufficient by itself to put SCPMG on
notice. In Miller v. National Cas. Co. (8th Cir. 1995) 61 F.3d
627, 629–630, the Eight Circuit, in affirming summary
judgment on a reasonable accommodation claim under the
ADA, held that a relative’s statements that the employee
was “ ‘mentally falling apart’ ” and “ ‘[s]he’s really lost it’ ”
and the family was “ ‘trying to get her into the hospital’ ”
were insufficient to put an employer on notice of the
employee’s manic-depression.
In short, the conclusion that SCPMG was on notice of
Featherstone’s temporary disability at the time of the
resignation is not the only reasonable interpretation of the
known and undisputed facts. Because there is more than
one reasonable interpretation and because SCPMG first
learned that Featherstone suffered from the alleged
temporary disability only after she had tendered her
resignation and that resignation had been accepted by
SCPMG—that is, after Featherstone ceased being a SCPMG
27
employee—the trial court properly granted judgment as a
matter of law on Featherstone’s accommodation claim.
D. SCPMG WAS ENTITLED TO JUDGMENT AS A MATTER
OF LAW ON FEATHERSTONE’S FAILURE TO ENGAGE IN THE
INTERACTIVE PROCESS CLAIM
Under section 12940, subdivision (n), it is separately
actionable 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.” (§ 12940, subd. (n); Gelfo v.
Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 54.)
“The ‘interactive process’ required by the FEHA is an
informal process with the employee or the employee’s
representative, to attempt to identify a reasonable
accommodation that will enable the employee to perform the
job effectively.” (Scotch v. Art Institute of California (2009)
173 Cal. App. 4th 986, 1013.)
Both the employer and the employee are responsible
for participating in the interactive process. Typically, the
employee must initiate the process “unless the disability and
resulting limitations are obvious.” (Scotch v. Art Institute of
California, supra, 173 Cal.App.4th at p. 1013.) “ ‘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
28
resulting limitations, and to suggest the reasonable
accommodations.’ ” (Ibid.)
While employed with SCPMG, Featherstone never
identified for SCPMG her temporary disability. As discussed
above, Featherstone’s temporary disability was not open,
obvious or apparent to her supervisors/managers prior to her
resignation. Moreover, Featherstone never reached out to
SCPMG to request any kind of accommodation for her
temporary disability before she resigned. As SCPMG was
not otherwise aware that Featherstone was temporarily
disabled, it was not obligated to engage in an interactive
process with her. Accordingly, the trial court properly
granted judgment as a matter of law on Featherstone’s
interactive-process claim.
E. SCPMG WAS ENTITLED TO JUDGMENT AS A MATTER
OF LAW ON FEATHERSTONE’S WRONGFUL TERMINATION CLAIM
Featherstone’s fifth and final claim is pleaded as a
common law claim for wrongful termination in violation of
FEHA.10 Specifically, Feather alleges that she was
wrongfully terminated under FEHA because of her
temporary disability and her right to take medical leave.
Under California law, if an employer did not violate
FEHA, the employee’s claim for wrongful termination in
violation of public policy necessarily fails. (Esberg v. Union
10 In her operative complaint, Featherstone alleged
that this claim was also based on a violation of the California
Constitution. During discovery, however, she clarified that
it was limited to a violation of FEHA only.
29
Oil Co. (2002) 28 Cal. 4th 262, 272–273, superseded by
statute on another point as stated in Alch v. Superior Court
(2004) 122 Cal. App. 4th 339, 396–397.)
As Featherstone has not established a violation of
FEHA and because FEHA does not confer on employees or
applicants the right to take a medical leave, SCPMG is also
entitled to judgment as a matter of law on Featherstone’s
claim for wrongful termination in violation of public policy.
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
30