Jones v. Telecare Corp. CA2/3 ( 2023 )

Filed 12/14/23 Jones v. Telecare Corp. CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
EDWIN JONES, as Successor B314977
in Interest, etc.,
Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
19STCV06933
v.
TELECARE CORPORATION et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel S. Murphy, Judge. Affirmed.
Shegerian & Associates, Carney R. Shegerian, Mahru
Madjidi and Rosie Zilifyan for Plaintiff and Appellant.
Seyfarth Shaw, Dana L. Peterson, Kiran A. Seldon,
Shardé T. Skahan, Catherine M. Dacre and Giovanna A. Ferrari
for Defendants and Respondents Telecare Corporation and
Cherie Harper.
Cabada & Hameed, Francisco Cabada, Sayema Hameed;
Pacific Employment Law and Joseph P. Mascovich for Defendant
and Respondent Michael Meyer.
_________________________
Rebecca Jones sued her former employer Telecare
Corporation for disability discrimination and related claims
under the Fair Employment and Housing Act, Government Code
section 12900 et seq. (FEHA).1 The trial court entered summary
judgment for Telecare, concluding the undisputed evidence
proved the company terminated Jones’s employment for a
legitimate reason and Jones did not request an accommodation
triggering Telecare’s related legal obligations under FEHA.
We affirm.
1 Statutory references are to the Government Code, unless
otherwise designated.
Jones also sued her individual supervisors Cherie Harper
and Michael Meyer. Although her notice of appeal purports
to challenge the entire judgment, Jones confirms in her reply
brief that she does not seek reversal of the judgment in favor
of the individual defendants. Jones also does not challenge the
summary adjudication of her claims for harassment and hostile
work environment; discrimination on the basis of age; failure
to pay wages, waiting time penalties, and civil penalties; failure
to provide meal and rest breaks; and unfair business practices.
Her briefs make no arguments with respect to her claim under
the California Family Rights Act, and we therefore deem any
challenge to the summary adjudication of that claim waived.
(See Benach v. County of Los Angeles (2007) 149 Cal.App.4th
836, 852.)
Jones passed away after she filed this appeal. We
subsequently granted her surviving spouse’s request for
2
BACKGROUND
Consistent with our standard of review, we state the facts
in the light most favorable to Jones as the nonmoving party,
resolving all evidentiary doubts or ambiguities in her favor.
(Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237,
1243, fn. 2 (Avila).)
Telecare provides inpatient services to mentally ill
residents. In June 2005, Telecare hired Jones as a social worker
at its La Paz Geriopsychiatric Center in Paramount, California.
Her duties included conducting assessments of residents,
teaching social and behavior skills, and preparing documentation
on the residents according to Telecare’s policies with the goal of
preparing the residents to transfer out of the facility.
Cherie Harper was Jones’s supervisor and the clinical
director at La Paz. Michael Meyer was Harper’s supervisor
and the administrator of the La Paz facility.
In December 2017, Jones was diagnosed with breast cancer.
A few days later, she notified Harper of the diagnosis and that
she would need to take medical leave for surgery.
Before Jones began her leave, Harper coached her about
“the lack of timeliness of her documentation.” In a January 5,
2018 email, Harper agreed to “assist [Jones] with catching up
with [her] monthly notes,” by “complet[ing] 16 notes” for some
of Jones’s assigned residents.
Jones took her first medical leave from January 15, 2018
to March 12, 2018. During her leave, Jones “noticed necessary
paperwork . . . was not completed even though Ms. Harper said
appointment as her successor in interest. For brevity, we
attribute the appellant’s arguments to Jones.
3
she would complete it.” Because she “did not want to get
in trouble or counseled for falling behind,” Jones “worked two
to three days a week for approximately three to four hours at
a time” during her disability leave. Although Jones maintained
Harper and Meyer “could see” she was working from home if they
had looked at the completed reports, she also admitted neither
supervisor asked her to work while on medical leave and she did
not record her time or otherwise notify Telecare management
she was performing the work.
Shortly after Jones returned from medical leave, Meyer
“verbally counseled” her for being behind on her paperwork.
Jones also observed that Harper began avoiding or “nitpicking”
her, and Harper made comments suggesting she “was very
agitated with having to do [Jones’s] workload while [Jones] was
out on disability.” Jones told Harper she “had too much work
and was under a lot of stress because of [her] medical condition,”
but the only limitation she disclosed to her supervisor was
that her “doctor said [she] could not lift more than five pounds.”
Other than this, Jones acknowledged her doctor released her
to return to work without restrictions.
In April 2018, Jones notified Harper that she needed
to take a second medical leave for reconstructive surgery.
She observed Harper became “even colder” after this. Harper
“stopped coming to supervise” Jones and she no longer
“check[ed] in” to “see how things were going.”
Before Jones took her second medical leave, she met with
Meyer and Harper to complete her annual performance review.
She received ratings of “Below Expectations” in two out of nine
categories (“Quality and Quantity of Work” and “Management,
Decision Making and Initiative”). She received “Meets
4
Expectations” ratings in all other categories, and an overall
rating of “Meets Expectations” with a corresponding salary
increase. Harper’s comments noted Jones was “at least 4 months
behind with turning in her monthly progress notes” and that
a “number of the residents on [Jones’s] caseload made several
complaints that [Jones] would not see them regularly or
consistently.” Jones objected to the lower ratings, writing
that “[s]udden [and] drastic changes within the facility as well
as a large increase in paper work, change of office, increased
[discharge] [and] admissions also affected relationship with
resident case load.” She also said she had been working
“extra time to do my best to improve my performance again
through med. issues.”
Jones took her second medical leave from May 22, 2018 to
June 23, 2018. A week after she returned to work, Meyer and
Harper reprimanded Jones for “dumping” her work on coworkers.
Jones “felt that [she] was being targeted because this was not
true.”
In early August 2018, Jones informed Harper that
she needed to take a third leave for a surgery scheduled on
September 18, 2018. Jones did not provide a doctor’s note
to Telecare’s human resources department regarding the
scheduled surgery.
On August 29, 2018, Jones had a confrontation with
a resident who suffered from schizophrenia and other mental
health conditions. The resident told Jones “to get out of his
space,” called her “ ‘white cracker cunt bitch,’ ” and said he would
“beat [her] up and ‘rip off’ [her] face if [Jones] did not get out of
his sight.” He also told Jones he “hated” her, he “wanted to hurt”
her, and he planned to “ ‘mess with her every time’ ” he saw her.
5
On several other occasions he had told Jones “he wanted to get
[her] fired.” According to Jones, “[t]his was nothing new,” as the
residents at La Paz regularly yelled or called the staff names.
After speaking with the resident’s social worker,
Jones reviewed his “care plan,” which suggested that staff
“intervene before his agitation escalates by engaging ‘calmly
in conversation.’ ” The care plan also instructed that, “if he
becomes aggressive[,] the staff is to walk away and approach
later.” Jones was “aware” of the resident’s propensity for
“verbal aggression” and “loud outbursts.” She also knew he could
become “argumentative when verbal intervention was provided.”
Later the same day, the resident again accosted Jones
with racial and sexist slurs. According to Jones, she decided
to intervene and “leaned over to calmly ask him why he was
saying those things about [her].” The resident immediately
started “screaming, yelling, [and] threatening” Jones while
accusing her of calling him the “ ‘n-word.’ ” Another staff
member, Gloria Ruffin, put her arm around Jones so they
“could walk away together.” As they walked away, Jones says
she “raise[d] [her] voice” to tell the staff what had happened.
At the direction of Telecare’s human resources department,
Ruffin prepared a written statement describing what she had
witnessed. She saw Jones exit an elevator near the facility’s
lobby that afternoon, and the resident “immediately” began
“verbally attack[ing]” Jones. Jones then “turned and walked
back towards” the resident, bent to the resident’s ear, and said
“something back to him,” sparking a “verbal altercation.”2 Ruffin
2 The resident’s social worker interviewed him in connection
with the incident. According to the resident, Jones “came up
and called him a ‘Black fucker.’ ”
6
said she “immediately intervened” by “pulling [Jones] away”
as the resident’s behavior “continue[d] to escalate” with physical
threats and abusive racially charged language. Jones also
exhibited “escalate[d] behavior,” and continued to ask the
resident “ ‘why are you taunting me,’ ” and “ ‘[w]hy do you keep
messing with me,’ ” while telling him “ ‘[y]ou will not keep
disrespecting me.’ ” Ruffin was forced to intervene a “second
time” to separate Jones from the resident.
After learning of the incident, Harper and Meyer
interviewed Jones, Ruffin, and another eyewitness—Rosa
Elizarraraz. Jones told Harper the resident had accosted her
earlier in the day “ ‘calling me bitches’ ” and she “ ‘did not say
anything to him at that time.’ ” But when he confronted her
later that day, Jones said she had “ ‘had enough’ ” and she
“ ‘did engage in a verbal exchange with the resident because
[he] called me a “white cracker bitch.” ’ ” She explained that
the resident had “ ‘been targeting me for a couple weeks now
calling me all kinds of bad names’ ” and she had “ ‘had enough
of him harassing’ ” her. When Harper asked Jones why she
did not disengage after “Ruffin intervened and instructed her
to move away from the resident,” Jones responded, “ ‘because
he kept on talking to me and calling me names and I wanted
him to stop and I wanted to know why does he keep bothering
me.’ ” Jones denied that she used profanity or a racial slur,
explaining, “ ‘All I was saying to him was why do you keep
bothering me, and enough is enough he should leave me alone.’ ”
When Meyer asked Jones if she had been trained “not to incite
or provoke” residents and to “utilize de-escalation techniques or
remove yourself from danger,” Jones acknowledged her training
but said, “ ‘in this situation I just really wanted to know why this
7
resident has it in for me.’ ” Harper and Meyer informed Jones
that she was on administrative leave until their investigation
concluded.
In her interview, Ruffin elaborated on her written
statement, explaining that Jones “ ‘continued yelling at the
resident,’ ” “ ‘[s]he just kept coming towards the resident and
getting very close to him,’ ” and “ ‘[s]he just would not walk
away.’ ” Elizarraraz likewise reported that Ruffin told Jones
“ ‘to move away from the resident, but [Jones] continued coming
towards the resident[,] yelling and getting in the resident[’s] face
. . . in an intimidating way,’ ” while “ ‘yelling at him[,] “[w]hy do
you always bother me” [and] “what’s your problem with me.” ’ ”
Based on the investigation, Harper concluded Jones had
“engaged in an inappropriate heated altercation with a resident.”
She reported: “Multiple witness[es] observed [Jones] engaged
in a verbal altercation with the resident and when staff tried to
re-direct [Jones] she would not dis-engage from the interactions.
[Jones] was observed physically close to [the] resident, using a
raised voice talking in the resident[’s] face. Multiple witness[es]
observed [Jones] whisper something in the resident’s ear,
which cause[d] [the] resident to react in a loud voice.” Harper
recommended Jones’s termination. Telecare’s human resources
department ultimately approved the recommendation based
on the investigation’s findings.
On September 5, 2018, Telecare issued Jones a notice of
discharge. Citing Telecare’s policies prohibiting “[d]isrespectful,
discourteous, or demeaning conduct towards residents,” the
notice stated: “An investigation determined that you got into
an inappropriate verbal altercation with a resident in which
you were witnessed yelling in the resident’s face. A coworker
8
tried to get you to stop and move away from the resident.
Despite your coworker’s efforts you continued to yell and
argue with the resident. This is unacceptable.”
On February 28, 2019, Jones filed this action against
Telecare. Her operative first amended complaint asserts claims
for disability discrimination; retaliation; failure to prevent
discrimination and retaliation; wrongful discharge in violation
of public policy; failure to engage in a good faith interactive
process; and failure to provide reasonable accommodation.3
Telecare moved for summary judgment, submitting
a supporting declaration by Harper; deposition testimony
from Jones; and other documentary evidence. In addition
to challenging Jones’s prima facie case, Telecare argued it had
a legitimate nondiscriminatory and nonretaliatory reason for
her discharge—namely, that it genuinely determined based
on the results of its investigation that Jones had engaged in
gross misconduct by persisting in an abusive verbal altercation
with a mentally ill resident even after her coworker attempted
to pull her away from the confrontation. As for the disability
accommodation and interactive process claims, Telecare
maintained Jones could not prove liability because the
undisputed evidence established it granted all of Jones’s
requests for leave; Jones returned to work without restrictions;
and Jones did not submit documentation to Telecare about
her need for additional leave before her termination.
3 As noted, Jones asserted other claims against Telecare,
Harper, and Meyer that are not at issue in this appeal. (See
fn. 1, ante.)
9
In opposition, Jones principally relied upon her own
declaration and deposition excerpts; excerpts from Harper’s
and Meyer’s depositions; and other documentary evidence.
She also submitted declarations from Linda Kimborough
and Jacqueline Lambert—two former employees of Telecare
who had worked with Jones and vouched for her character.
Neither witnessed Jones’s altercation with the resident.
Jones argued her negative performance review and her
supervisors’ needless faultfinding concerning her paperwork
after she returned from medical leave, coupled with Harper’s
comments about picking up her workload and the timing of
her discharge only about two weeks before her third scheduled
surgery, established the causal connection element of her
prima facie case for disability discrimination and retaliation.
As for pretext, in addition to the evidence supporting her
prima facie case, Jones argued other evidence demonstrating
her supervisors did not thoroughly investigate the incident and
that they had given shifting reasons for her discharge supported
an inference that Telecare’s true motives were discriminatory
and/or retaliatory. Finally, Jones argued evidence that Telecare
terminated her shortly after she notified Harper that she would
need to take a third medical leave proved Telecare did not engage
in a good faith interactive process and failed to accommodate
her known disability.
The trial court granted Telecare’s summary judgment
motion. The court concluded Jones had presented no admissible
evidence of discriminatory animus or retaliation to satisfy her
prima facie burden and she likewise failed to submit “specific
and substantial” evidence of pretext in response to Telecare’s
showing that it discharged her for a legitimate reason. As for
10
the interactive process and disability accommodation claims,
the court concluded undisputed evidence that Telecare granted
each of Jones’s leave requests before her termination irrefutably
proved “Telecare fulfilled its duty to engage in the interactive
process and provided [Jones] with all of her requested
accommodations.”
The trial court entered judgment in favor of Telecare on
all claims. After an unsuccessful motion for new trial, Jones
filed a timely notice of appeal.
DISCUSSION
1. Standard of Review
A defendant moving for summary judgment must show
the plaintiff cannot establish one or more elements of the cause
of action or cannot refute an affirmative defense. (Code Civ.
Proc., § 437c, subd. (o).) “From commencement to conclusion,
the moving party bears the burden of persuasion that there is no
genuine issue of material fact and that he is entitled to judgment
as a matter of law. There is a genuine issue of material fact if,
and only if, the evidence would allow a reasonable trier of fact
to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845,
fn. omitted; see Slovensky v. Friedman (2006) 142 Cal.App.4th
1518, 1522.)
We review the record and trial court’s determination
de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
First, we identify the issues raised by the pleadings, as these
are the allegations to which the motion must respond. Second,
we determine whether the moving party’s showing has
established facts negating the opponent’s claims and justifying
11
a judgment in the moving party’s favor. When this showing
is made, the final step is to determine whether the opposition
demonstrates the existence of a triable issue of material fact.
(Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129
Cal.App.4th 281, 290.) In conducting this analysis, we strictly
construe the moving party’s evidence, while liberally construing
the evidence offered in opposition, and we accept as undisputed
facts only those parts of the moving party’s evidence that are
not contradicted by the evidence of the opposing party. (Arteaga
v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342 (Arteaga).)
When an employee asserts a claim for employment
discrimination or retaliation, she must first establish a
prima facie case that she suffered an adverse employment action
due to an unlawful motivation. The employer can then rebut the
employee’s claim by offering substantial evidence of a legitimate,
nondiscriminatory reason for its employment decision. “ ‘ “If
the employer presents admissible evidence either that one
or more of plaintiff’s prima facie elements is 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, supra, 163 Cal.App.4th
at p. 344; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
356–357 (Guz); Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1042 (Yanowitz).) To resist summary judgment, the
employee’s evidence must demonstrate the existence of a
material controversy as to pretext or unlawful animus on the
part of the employer. (Arteaga, at p. 344.) It is not enough to
make a bare prima facie showing or to simply deny the credibility
12
of the employer’s witnesses or to speculate as to discriminatory
motive. (Guz, at pp. 360–361; Hersant v. Department of Social
Services (1997) 57 Cal.App.4th 997, 1004–1005 (Hersant);
Arteaga, at p. 343.)
Moreover, the employee cannot prevail by simply showing
the employer’s decision was wrong or mistaken, as the factual
dispute is over whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent,
or competent. (Hersant, supra, 57 Cal.App.4th at p. 1005.)
Instead, the employee must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its actions
that a trier of fact could legitimately find them “ ‘ “unworthy
of credence” ’ ” and infer that the employer did not act for the
asserted nondiscriminatory reason—that is, the employee
must show the employer’s proffered reason is pretextual. (Ibid.;
Arteaga, supra, 163 Cal.App.4th at pp. 342–343.) The ultimate
issue is whether the employer acted with a motive to discriminate
or retaliate. (Guz, supra, 24 Cal.4th at p. 358.) On summary
judgment, the question is whether a triable issue of fact exists
as to the employer’s motivations.
2. FEHA Disability Discrimination and Retaliation
Claims: Jones Failed to Offer Substantial Evidence
of Illegitimate Animus or Pretext
“ ‘A prima facie case for discrimination “on grounds of
physical disability under the FEHA requires plaintiff to show:
(1) he suffers from a disability; (2) he is otherwise qualified to do
his job; and, (3) he was subjected to adverse employment action
because of his disability.” ’ ” (Arteaga, supra, 163 Cal.App.4th
at pp. 344–345.) Similarly, to establish a prima facie case of
13
retaliation under the FEHA, a plaintiff must show “(1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s action.”
(Yanowitz, supra, 36 Cal.4th at p. 1042.) Under either theory,
“ ‘the plaintiff must produce evidence sufficient to show that an
illegitimate criterion was a substantial factor in the particular
employment decision.’ ” (Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 232.)
In summarily adjudicating the disability discrimination
and retaliation claims in Telecare’s favor, the trial court
concluded Jones lacked sufficient evidence to show an illegitimate
criterion motivated the company’s discharge decision and,
in any event, Telecare had offered credible and uncontroverted
evidence that it fired Jones for a nondiscriminatory and
nonretaliatory reason. We need not address the former ground,
because we conclude the latter one supports the court’s ruling.
(See, e.g., Guz, supra, 24 Cal.4th at p. 357 [the reviewing court
“need not resolve the ‘prima facie burden’ issue” where the
employer moving for summary judgment sets forth “competent,
admissible evidence” of its legitimate reasons for an adverse
employment action].)
The employer’s proffered reason is “legally sufficient to
establish [an employee’s] FEHA cause of action ha[s] no merit”
if it is “manifestly unrelated” to intentional discrimination
or retaliation against the employee. (Guz, supra, 24 Cal.4th
at p. 360.) “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.” (Id. at p. 358.) Thus, “if
14
nondiscriminatory, [the employer’s] true reasons need not
necessarily have been wise or correct.” (Ibid.) “[A]n employer
is entitled to summary judgment if, considering the employer’s
innocent explanation for its actions, the evidence as a whole is
insufficient to permit a rational inference that the employer’s
actual motive was discriminatory.” (Id. at p. 361.)
Telecare presented competent and admissible evidence
demonstrating it terminated Jones’s employment for a
nondiscriminatory and nonretaliatory reason. As stated in
the company’s notice of discharge to Jones, “[a]n investigation
determined that [Jones] got into an inappropriate verbal
altercation with a resident in which [Jones] [was] witnessed
yelling in the resident’s face” in violation of company policies
prohibiting “[d]isrespectful, discourteous, or demeaning
conduct towards residents.” One of the witnesses, Gloria Ruffin,
recounted seeing Jones get “ ‘really close to the resident’s face
and [a] verbal exchange escalated.’ ” Ruffin said she tried
“ ‘to pull and re-direct [Jones] away from the resident,’ ” but
“ ‘[Jones] continued yelling at the resident asking the resident
why was he bothering her and why was he targeting her.’ ”
Ruffin said she “ ‘ask[ed] [Jones] to just walk away and not
talk back to the resident but [Jones] would not listen’ ”; “ ‘[Jones]
just kept coming towards the resident and getting very close
to him’ ”; and “ ‘[Jones] just would not walk away.’ ” Consistent
with Ruffin’s account, the other witness, Rosa Elizarraraz,
reported that “ ‘[Ruffin] was telling [Jones] to move away from
the resident, but [Jones] continued coming towards the resident[,]
yelling and getting in the resident[’s] face . . . in an intimidating
way[,] yelling at him[,] “[w]hy do you always bother me” [and]
“what’s your problem with me.” ’ ” In her interview, Jones herself
15
confirmed that she continued to engage in a verbal exchange
with the resident instead of walking away “ ‘because I [Jones]
am tired of him calling me all kinds of names and threatening
me. . . . I just wanted to know from him why he keeps messing
with me.’ ”
As stated in her supporting declaration, La Paz’s clinical
director, Cherie Harper, concluded “Jones engaged in and
escalated an inappropriate heated altercation with a resident,”
which Harper believed “constituted, at a minimum, a violation
of Telecare’s workplace policies.” Harper recommended Jones’s
termination, and the evidence shows Telecare’s human resources
department ultimately approved the recommendation based on
the investigation’s findings. In the face of Telecare’s showing of
a legitimate reason for her discharge, the burden shifted to Jones
to respond with substantial evidence putting the company’s
motive “in material dispute by raising a triable issue, i.e.,
a permissible inference, that, in fact, [Telecare] acted for
discriminatory purposes.” (Guz, supra, 24 Cal.4th at p. 362;
Arteaga, supra, 163 Cal.App.4th at p. 353.)
Jones contends she presented sufficient evidence to prove
Telecare’s stated reason was a “false” pretext to cover up its true
illegitimate motive for discharging her. As our Supreme Court
explained in Guz, “an inference of intentional discrimination
cannot be drawn solely from evidence, if any, that the company
lied about its reasons”; however, “[p]roof that the employer’s
proffered reasons are unworthy of credence may ‘considerably
assist’ a circumstantial case of discrimination, because it
suggests the employer had cause to hide its true reasons.”
(Guz, supra, 24 Cal.4th at pp. 360–361, italics added.) “Still,
there must be evidence supporting a rational inference that
16
intentional discrimination, on grounds prohibited by [FEHA],
was the true cause of the employer’s actions.” (Id. at p. 361.)
“[S]ummary judgment for the employer may thus be appropriate
where, given the strength of the employer’s showing of innocent
reasons, any countervailing circumstantial evidence of
discriminatory motive, even if it may technically constitute
a prima facie case, is too weak to raise a rational inference that
discrimination occurred.” (Id. at p. 362.)
The record contains no direct evidence, and little if any
relevant circumstantial support, for Jones’s contention that
Telecare misrepresented its true reason for terminating her
employment. Citing her declaration, Jones asserts Telecare’s
investigation was flawed in that “her version of events was not
recorded, witnesses that would have testified to her credibility
and character were not interviewed, and the investigation only
lasted for one day and was not thorough.” As to the first point,
Jones’s declaration merely states she “told [the interviewers]
all the names [the resident] was calling me, including all the
racial names,” but it provides no other details about events that
supposedly were not recorded. The omission hardly casts doubt
on Telecare’s motives, especially given that Jones’s declaration
(like her interview) confirmed the critical fact that she “engaged
with the resident rather than ignoring him” because she “wanted
to find out why he felt so nasty towards me and wanted him to
calm down and stop calling me names.” Harper, who interviewed
Jones, recorded this fact in the investigation documentation; the
fact substantiated Ruffin’s and Elizarraraz’s accounts of Jones’s
refusal to disengage when a verbal altercation with the resident
escalated; and the admission is consistent with Telecare’s stated
17
reason for Jones’s discharge—namely, that despite a “coworker’s
efforts[,] [Jones] continued to yell and argue with the resident.”
Because Jones did not substantively dispute the other
witnesses’ accounts, Telecare had no reason to investigate her
credibility, and no rational inference of pretext can be drawn
from the company’s decision not to interview her proposed
character witnesses. The fact that the investigation lasted only
one day is likewise irrelevant. Telecare interviewed Jones and
two other eyewitnesses. Their accounts were largely consistent
with respect to the material details and supported the finding
that Jones persisted in a verbal altercation with a mentally
ill resident while Ruffin tried to pull her away. Apart from
interviewing irrelevant character witnesses and the patient’s
social worker (who did not witness the incident and at most
would have confirmed the resident’s mental illness and past
abusive behavior), Jones does not identify what more Telecare
should have done with a longer investigation. None of this
raises a rational inference of illicit motive or pretext. (See, e.g.,
Guz, supra, 24 Cal.4th at p. 365 [“neither any failure by [the
employer] to conduct the reorganization with full formality,
nor [the decisionmaker’s] lack of complete information about
[the employee’s] background and availability, strongly suggests
that the reasons [the employer] gave for releasing [the employee]
are false”].)4
4 In opposing summary judgment, Jones argued she
followed the resident’s treatment plan in confronting him about
his abusive behavior. Even if that was true, it was insufficient
to raise an inference of pretext. As discussed, an employee
cannot resist summary judgment simply by showing “the
employer’s decision was wrong or mistaken, since the factual
18
Jones’s other attempts to cast doubt on Telecare’s
investigation fare no better. She contends Harper “solely relied”
on the resident’s account of the altercation, “despite the fact that
the patient had a reputation for caus[ing] havoc, making racist
comments, and harassing Jones herself with no provocation.”
Similarly, she maintains Meyer’s decision to recommend her
termination was based entirely on the resident’s unsubstantiated
allegation that she used a racial slur. The summary judgment
evidence supports neither assertion.
When asked at her deposition whether she believed the
resident’s accusations, Harper testified it was “not for me to
believe or not,” as Jones’s alleged use of a racial slur “[was] not
why [Jones] was fired.”5 Rather, consistent with Telecare’s notice
dispute at issue is whether discriminatory animus motivated
the employer, not whether the employer is wise, shrewd, prudent,
or competent.” (Hersant, supra, 57 Cal.App.4th at p. 1005.) In
view of the eyewitness accounts that Jones persisted in a verbal
altercation with the resident, the prospect that the resident’s
social worker would have confirmed Jones’s understanding of the
care plan does not create a controverted issue of fact. (See, e.g.,
King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426,
435–436 (King) [evidence suggesting co-worker may have made
false statements about plaintiff were irrelevant to establishing
pretext; “[i]t is the employer’s honest belief in the stated reasons
for firing an employee and not the objective truth or falsity of
the underlying facts that is at issue in a discrimination case”].)
5 Harper also clarified that the resident’s conduct had
essentially no impact on her recommendation, as she understood
the residents were “mentally ill people and they say things all
the time. They have delusions. They hear voices. So that kind
of stuff, it kind of comes with the territory.”
19
of discharge, Harper confirmed Jones was terminated for
“[t]he yelling and the screaming” she directed at the resident,
which constituted “verbal abuse” under Telecare’s policies. As
for Meyer, although he initially said Jones would not have been
discharged if she had not used a racial slur, he later clarified that
the incident happened “too long” ago to recall the circumstances
surrounding the allegation and, in any event, regardless of
whether Jones used the slur, the fact that she continued to yell
at a mentally ill resident alone constituted “abuse” and grounds
for discharge.6 Meyer’s recanted deposition testimony, stemming
from his foggy recollection of an incident that happened almost
three years earlier, is insufficient to raise a triable issue in
the face of Telecare’s compelling contemporaneous evidence
that it discharged Jones for a reason unrelated to her disability
or protected activity. (See, e.g., Guz, supra, 24 Cal.4th at
p. 364 [evidence that a company official “once used the phrase
‘downturn in . . . workload,’ ” or that “cost efficiencies of
eliminating [the employee’s division] [were] debatable on
their merits,” insufficient to raise triable issue of pretext
based on purported “ ‘shifting,’ and ‘inconsistent’ statements”
of employer’s management].)
Apart from her objections to Telecare’s investigation, Jones
contends the temporal proximity between her medical leaves and
a purported “pattern of consistent retaliatory conduct” supports
an inference of prohibited bias. Jones emphasizes she received
largely positive performance reviews throughout her tenure at
6 Meyer also testified that he “totally agree[d]” with Harper’s
account that Jones was not terminated for using a racial slur, but
rather because she “engaged in a verbal altercation that resulted
in an escalation of a situation with an upset resident.”
20
Telecare and maintains it was only after she returned from her
medical leave that her “performance reviews began to suddenly
contradict an otherwise commendable record of employment.”
She says her “first medical leave was met by a cold shoulder,
lack of communication, more work, and negative performance
reviews” from Harper, all of which “only worsened upon [her]
return from her second leave.” In a similar vein, she argues
the timing of her discharge—“48 hours after the incident, and
only 18 days before her third scheduled surgery”—suggests
Telecare acted with an illicit purpose.
It is settled that “temporal proximity alone is not sufficient
to raise a triable issue as to pretext once the employer has
offered evidence of a legitimate, nondiscriminatory reason for
the termination.” (Arteaga, supra, 163 Cal.App.4th at p. 353.)
“ ‘Employers are sometimes forced to remove employees who
are performing poorly, engaging in improper work conduct,
or severely disrupting the workplace. . . . Precedent does not
prevent [an employer] from removing such an employee simply
because the employee [recently] engaged in a protected work
activity.’ ” (Id. at p. 354.) Nevertheless, “temporal proximity,
together with the other evidence, may be sufficient to establish
pretext,” if the evidence as a whole demonstrates there is a
disputed fact as to the reason for the adverse employment action.
(Id. at pp. 353–354; see Guz, supra, 24 Cal.4th at p. 361.)
The evidence here does not create a triable controversy on
this decisive issue.
The “retaliatory conduct” Jones cites as evidence of pretext
concerns counseling and a performance review she received
regarding a four-month backlog on her patient documentation
and complaints by a number of the residents about her lack of
21
regular and consistent contact with them. Although Jones
objected to these negative ratings at the time, she did not dispute
the existence of the backlog or the residents’ reports, nor did
she attribute the ratings to discriminatory or retaliatory animus.
Instead, she asserted the deviation from her “over a decade” of
“exemplary” resident interactions and “timely” documentation
was due to “drastic changes within the facility as well as
a large increase in paper work, [a] change of office, [and]
increased [discharge] [and] admissions,” all of which “affected
relationship[s] with resident[s] [and] case load.” More
importantly, these negative ratings did not affect Jones’s
employment—she received an overall rating of “Meets
Expectations” on the performance review as well as a
corresponding salary increase, and, critically, Telecare did
not invoke these minor performance issues as the reason for
her termination. Rather, as stated in its notice of discharge,
the company fired Jones because its investigation determined
she engaged in an inappropriate verbal altercation with a
resident in violation of Telecare’s policies. Notwithstanding the
temporal proximity to her medical leave and her past exemplary
work performance, evidence that Jones received a handful of
negative ratings unrelated to the company’s demonstrated reason
for her discharge does not raise a reasonable inference of pretext.
(Cf. Arteaga, supra, 163 Cal.App.4th at pp. 353–354 [temporal
proximity may be relevant to pretext where employee has
excellent performance record, and then, after engaging in
protected activity, is suddenly accused of serious performance
problems, subjected to derogatory comments, and terminated
for supposed performance issues]; see also King, supra, 152
Cal.App.4th at pp. 433–434 [“plaintiff’s evidence must relate
22
to the motivation of the decision makers to prove, by
nonspeculative evidence, an actual causal link between
prohibited motivation and termination”].)
Jones likewise fails to demonstrate that her supervisor’s
“cold shoulder” or “lack of communication” had any bearing
on Harper’s response to the incident that precipitated Jones’s
discharge. Indeed, Jones’s own contemporaneous evidence
suggests she did not believe Harper was motivated by unlawful
antipathy. On the contrary, in an email directed to Telecare’s
CEO in the days after her suspension, Jones wrote it was
Harper’s need “to illustrate advocacy for the resident,” because
their “program [was] currently under survey,” that explained
why the “clinical director [Harper] handled [the] incident in
this way”—not any supposed resentment about Jones taking
medical leave.7
Moreover, while Jones attributed Harper’s response to the
ongoing survey at the time, at her deposition she acknowledged
that “yelling” and “intimidating behavior” directed at a resident
7 In relevant part, Jones wrote to Telecare’s CEO: “I
am so stunned and upset about an incident at work . . . and
the manner in which I was treated. I am currently under
investigation and put on administrative leave without pay until
some time next week when they decide if they will terminate me.
It was an incident of the type that happens often with others too
but usually works itself out, so I don’t understand how the
tables turned and it suddenly became such a bad thing that
I caused. . . . Our program is currently under survey which is
why I think my clinical director handled this incident in this way,
to illustrate advocacy for the resident. But what the clinical
director and administrator did was not right and was not fair.”
(Italics added.)
23
would be considered “abuse” and “grounds for termination”
from Telecare. The fact that this incident occurred only 18 days
before her third scheduled surgery does not create a reasonable
inference of pretext. (See, e.g., King, supra, 152 Cal.App.4th at
p. 436 [“mere fact that [employer] found plaintiff had breached
its integrity policy shortly after returning to work is insufficient
to raise an inference that his blood disorder prompted his
discharge”; “a disabled employee has no greater prerogative
to compromise his integrity than any other employee”]; accord,
Arteaga, supra, 163 Cal.App.4th at p. 354 [“ ‘Employers are
sometimes forced to remove employees who are . . . engaging
in improper work conduct’ ” and the law “ ‘does not prevent
[an employer] from removing such an employee simply because
the employee [recently] engaged in a protected work activity.’ ”].)
Finally, Jones’s insinuation that Telecare had a “corporate
culture” of animus is insufficient to put the company’s motives
in material dispute. Jones makes much of Meyer’s response to
a deposition question about whether he agreed “the corporate
culture at Telecare is such that if they want to get rid of an
employee, they will find an excuse to do so.” But Meyer merely
affirmed that he thought the hypothetical might be true on
“some occasions,” while, with respect to Jones’s discharge, he
confirmed he “totally agreed” with Harper’s assessment that the
eyewitnesses’ accounts of Jones’s conduct “constituted grounds
for termination because it was akin to verbal abuse of a resident.”
All told, Jones presented evidence of, at most, suspicious
timing and minor slights that, if left unexplained, might have
supported a claim for unlawful discrimination or retaliation.
However, in the face of Telecare’s strong showing of a lawful
reason for her discharge, this largely irrelevant circumstantial
24
evidence was “too weak to raise a rational inference that
discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 362.)
3. The Failure to Prevent Discrimination and Wrongful
Termination Claims: Telecare’s Legitimate
Discharge Decision Precludes Liability on the
Derivative Claims
Having concluded Telecare was entitled to summary
judgment of Jones’s disability discrimination and retaliation
claims, we necessarily reach the same conclusion with
respect to Jones’s “ ‘derivative’ claims” for failure to prevent
discrimination or retaliation and wrongful termination in
violation of public policy. (Lin v. Kaiser Foundation Hospitals
(2023) 88 Cal.App.5th 712, 727–728.) We affirm the summary
adjudication of these claims as well.
4. The Failure to Accommodate and Interactive Process
Claims: Jones Did Not Disclose a Relevant
Limitation or Request an Accommodation
Necessitating an Interactive Process
“In addition to a general prohibition against unlawful
employment discrimination based on disability, FEHA provides
an independent cause of action for an employer’s failure to
provide a reasonable accommodation for an . . . employee’s
known disability.” (Gelfo v. Lockheed Martin Corp. (2006)
140 Cal.App.4th 34, 54 (Gelfo), citing § 12940, subds. (a), (m).)8
“ ‘Under the express provisions of the FEHA, the employer’s
failure to reasonably accommodate a disabled individual is
8 Section 12940, subdivision (m)(1) makes it an unlawful
employment practice for an employer “to fail to make reasonable
accommodation for the known physical or mental disability of
an applicant or employee.”
25
a violation of the statute in and of itself.’ [Citations.] Similar
reasoning applies to violations of [FEHA] for an employer’s
failure to engage in a good faith interactive process to determine
an effective accommodation, once one is requested.” (Gelfo,
at p. 54, citing § 12940, subd. (n).)9
“Two principles underlie a cause of action for failure to
provide a reasonable accommodation. First, the employee must
request an accommodation. [Citation.] Second, the parties
must engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for
the failure rests with the party who failed to participate in
good faith. [Citation.] While a claim of failure to accommodate
is independent of a cause of action for failure to engage in an
interactive dialogue, each necessarily implicates the other.”
(Gelfo, supra, 140 Cal.App.4th at p. 54.)
“The employee bears the burden of giving the employer
notice of his or her disability. [Citation.] Although no particular
form of request is required [citation], ‘ “[t]he duty of an employer
reasonably to accommodate an employee’s handicap does not
arise until the employer is ‘aware of [the employee’s] disability
and physical limitations.’ [Citations.]” ’ ” (Avila, supra, 165
Cal.App.4th at pp. 1252–1253, italics added.) “ ‘[I]t is important
to distinguish between an employer’s knowledge of an employee’s
disability versus an employer’s knowledge of any limitations
9 Section 12940, subdivision (n) makes it an unlawful
employment practice for an employer “to fail to engage in a
timely, good faith, interactive process with the employee or
applicant to determine effective reasonable accommodations,
if any, in response to a request for reasonable accommodation
by an employee or applicant with a known physical or mental
disability or known medical condition.”
26
experienced by the employee as a result of the disability.
This distinction is important because the [applicable law]
requires employers to reasonably accommodate limitations,
not disabilities.’ ” (Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1013 (Scotch).)
The interactive process “imposes burdens on both the
employer and employee. The employee must initiate the process
unless the disability and resulting limitations are obvious.
‘Where the disability, resulting limitations, and necessary
reasonable accommodations, are not open, obvious, and apparent
to the employer, . . . the initial burden rests primarily upon the
employee . . . to specifically identify the disability and resulting
limitations, and to suggest the reasonable accommodations.’ ”
(Scotch, supra, 173 Cal.App.4th at p. 1013.) “An employee
cannot demand clairvoyance of his employer. [Citation.]
‘ “[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. . . .” ’ [Citation.] ‘It is an
employee’s responsibility to understand his or her own physical
or mental condition well enough to present the employer at the
earliest opportunity with a concise list of restrictions which
must be met to accommodate the employee.’ [Citation.] [The
employee] therefore [is] obliged ‘to tender a specific request for
a necessary accommodation.’ ” (King, supra, 152 Cal.App.4th
at p. 443.)
In support of its motion for summary adjudication of the
failure to accommodate and interactive process claims, Telecare
presented evidence that management granted all Jones’s
requests for medical leaves of absence; management never
asked Jones to work during her leaves of absence and Jones
27
understood she should not work during her leaves; Harper
covered Jones’s caseload during her leave; Jones never provided
Telecare with a doctor’s note requiring modified job duties; and
Jones admitted her medical care provider released her to return
to work without restrictions. Based on this evidence, Telecare
successfully argued Jones did not request an accommodation
or initiate an interactive process, apart from requesting the
medical leaves that Telecare granted.
On appeal, Jones argues she “communicated her concern
about being spread too thin in an email and communicated
her struggles with meeting deadlines after she returned from
medical leave during her performance review.” However, in the
cited email, Jones said nothing about any purported limitations
stemming from her disability, and she did not request any sort
of accommodation due to a unique limitation. On the contrary,
Jones wrote that “[w]e”—i.e., all the social workers—“are just
overwhelmed with all the changes, new paperwork, a tougher
population of residents, and being expected to work miracles,”
emphasizing, “I speak for us all.” (Italics added.)
As for her performance review, although Jones wrote
she had been “working extra time to do my best to improve my
performance again through med. issues,” there is no evidence
that she disclosed any limitation or need for an accommodation
to assist her in this task. More importantly, Jones’s doctor
released her to return to work without restrictions and Jones
never suggested her performance difficulties stemmed from
her medical limitations. Rather, she maintained any shortfall
in performance was entirely due to “sudden [and] drastic changes
within the facility as well as a large increase in paper work,
change of office, [and] increased [discharge] [and] admissions”—
28
in other words, the same issues she had complained of in her
email on behalf of all the social workers at La Paz. In light of
her return to work without restrictions, Jones’s vague reference
to “med. issues” on her performance review and complaints
about workload issues unrelated to her medical condition were
insufficient to initiate an interactive process. (See, e.g., King,
supra, 152 Cal.App.4th at p. 444 [absent evidence that employee
“communicated his distress to his supervisors or made the
kind of specific request for a modified work schedule required
to trigger an employer’s duty to provide accommodation,”
employee’s vague complaint about hours he was required to work
when he returned from leave was insufficient to raise triable
issue of fact, particularly in view of physician’s note containing
no specific restrictions].)
Finally, Jones argues Telecare did not make a reasonable
or good faith accommodation when it granted her request for
medical leave because she “was required to work eight hour days
during her medical leave” to keep up with her paperwork. The
record simply does not support this assertion. The undisputed
evidence shows Jones had a backlog of paperwork before her
first medical leave, and Harper had agreed to “assist [Jones]
with catching up” by completing some of the paperwork. In her
declaration, Jones said she “noticed necessary paperwork” was
not completed during her leave, and she felt compelled to work
on it because she “did not want to get in trouble or counseled
for falling behind.” However, at her deposition, Jones admitted
no one asked her to work while on medical leave and she did not
record her work time or otherwise notify Telecare that she was
working while on leave. Telecare cannot be faulted for failing
to accommodate Jones when Jones, by her own admission, took
29
it upon herself to work without any notice to or urging from
Telecare. (See, e.g., Spitzer v. Good Guys, Inc. (2000) 80
Cal.App.4th 1376, 1384 [if employer did not know a reasonable
accommodation was not working, a duty to provide further
accommodation never arose]; accord, Brown v. Los Angeles
Unified School Dist. (2021) 60 Cal.App.5th 1092, 1108 [“[i]f
a reasonable accommodation does not work, the employee
must notify the employer”].)
DISPOSITION
The judgment is affirmed. Defendants Telecare
Corporation, Michael Meyer, and Cherie Harper are entitled
to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
30