Hollis v. Federal Express CA2/7

Filed 6/10/15 Hollis v. Federal Express CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SHAWN HOLLIS, B255907
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC491567)
v.
FEDERAL EXPRESS CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Debre Katz Weintraub, Judge. Affirmed.
Golan Law and Jeremy M. Golan for Plaintiff and Appellant.
Carol Dwyer DeFreitas, Federal Express Corporation, for Defendant and
Respondent Federal Express Corporation.
____________________________________
INTRODUCTION
Plaintiff and appellant Shawn Hollis was employed as a part-time material handler
by defendant and respondent Federal Express Corporation (Fed Ex). He was terminated
from his position after he missed more than two months of work while he suffered from
back and leg pain. Hollis sued Fed Ex under the Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12900 et seq.),1 alleging that, among other things, the company
discriminated against him on the basis of physical disability. The trial court granted Fed
Ex’s motion for summary judgment, finding Hollis did not adequately inform the
company of any disability before he was terminated. The court entered judgment in Fed
Ex’s favor, and Hollis appealed. We affirm.
FACTUAL BACKGROUND
1. Fed Ex’s Attendance Policy
Fed Ex requires its employees to maintain a minimum 96.9 percent attendance
record. If an employee’s attendance falls below the minimum requirement, Fed Ex issues
the employee a performance reminder. If an employee receives three performance
reminders in a 12-month period, Fed Ex may terminate his or her employment.
Under Fed Ex’s attendance policy, only unexcused absences count against an
employee’s attendance record. Fed Ex has two policies governing unexpected absences
for medical reasons: a Medical Absence Policy and a Medical Leave Policy. Under the
Medical Absence Policy, an employee who misses seven consecutive days or less of
work due to an unexpected medical reason receives pay for those days missed. Although
the employee receives pay under this policy, the absences are counted against his or her
attendance record. If the employee is unable to return to work following the seven
consecutive days allotted under the Medical Absence Policy, he or she is placed on the
Medical Leave Policy. Under that policy, the employee does not receive pay for any
1
All further statutory references are to the Government Code unless otherwise
specified.
2
days missed beyond those allotted under the Medical Absence Policy, but those absences
are not counted against the employee’s attendance record.
Fed Ex also has a leave policy through which an employee may request an
unplanned personal leave of absence without pay (personal leave policy), which excuses
the employee’s absences during that period of leave. Fed Ex management has discretion
to grant or deny an employee’s personal leave request based on an evaluation of the
expected impact the absences will have on the company’s performance.
2. Hollis’s Employment
Fed Ex hired Hollis as a part-time material handler in 1994. Hollis typically
worked five four-hour shifts a week. At some point during his employment, he began
experiencing occasional back and leg pain. He never reported this pain to his supervisors
until immediately before his leave of absence leading to his termination.
During the 18 years he worked at Fed Ex, Hollis received 11 performance
reminders for poor attendance. Throughout 2011 and early 2012, Hollis missed work
several times for various reasons. In June 2011, he missed a week of work without
authorization and received a performance reminder informing him that his attendance had
fallen below Fed Ex’s minimum attendance requirement. In September and October
2011, Hollis missed several more days of work without authorization and received a
second performance reminder informing him that his attendance had again fallen below
Fed Ex’s minimum requirement. After receiving his second performance reminder in
less than 12 months, Hollis executed a performance agreement acknowledging he
understood that if he received another performance reminder by June 2012 his
employment would be terminated.
In December 2011, Hollis missed another period of work, but he was granted
personal leave to prevent his absences from counting against his attendance record. In
February 2012, Hollis unexpectedly missed a day of work due to a family medical
emergency. Although he did not request time off before missing work, Fed Ex granted
his request for personal leave to prevent his absence from counting against his attendance
record. When Hollis returned to work, his supervisor, Shawna Jackson, instructed him to
3
avoid any further absences because they could result in discipline under Fed Ex’s
attendance policy.
3. Hollis’s Injury and Leave of Absence
In March 2012, Hollis began experiencing severe pain in his back and legs after he
injured himself while parking his motorcycle. On March 13, 2012, he reported to work at
Fed Ex, but, due to the pain in his back and legs, he had difficulty performing his job
duties. After Jackson observed Hollis struggling with his work, she suggested that he
report to the company’s wellness center to be examined. While Jackson helped Hollis
walk to the wellness center, he explained to her the pain he was experiencing. After
remaining in the wellness center for two hours, Hollis was cleared to return home.
Jackson clocked Hollis out and helped him walk to his car.
On March 14, 2012, Hollis visited a chiropractor, Dr. Dilojan Abayaratna. Dr.
Abayaratna diagnosed Hollis with sciatic neuralgia, or sciatica. Sciatica is a series of
symptoms, including numbness, tingling, and pain in the leg, which results from a
pinched, compressed, or irritated sciatic nerve. Because Hollis’s sciatica caused him
difficulty walking and standing upright, Dr. Abayaratna placed him on bed rest.
Hollis remained off work due to his sciatica and lower back pain from March 14
through June 19, 2012. During that period, he submitted to Fed Ex several notes from
Dr. Abayaratna. Two of the notes, dated March 14 and March 21, 2012, stated that
Hollis was under Dr. Abayaratna’s care and noted under the “Additional remarks”
section: “Lower back pain.” Six of the notes, each entitled “Doctor’s Excuse,” stated that
Dr. Abayaratna “recommend[ed] that [Hollis] be excused from work” for the period
between March 14 and June 19, 2012. Three of the “Doctors Excuse” notes also stated
under the “Additional remarks” section either “Lower back pain” or “Continues to have
recurring lower back pain.” The other three “Doctor’s Excuse” notes did not indicate the
reason why Dr. Abayaratna recommended that Hollis remain off work. None of the notes
indicated what was causing Hollis’s back pain; whether Hollis could actually perform his
job duties at Fed Ex; or whether he required any medical restrictions if he were to return
to Fed Ex.
4
Hollis notified Jackson each time he submitted one of Dr. Abayaratna’s notes.
However, he never informed Jackson or anyone else at Fed Ex that he had any physical
or work restrictions while he was on leave.
On March 15, 2012, Jackson sent an email to a worker in Fed Ex’s human
resources department inquiring about how she should handle Hollis’s leave of absence.
On March 16, 2012, Jackson emailed Fed Ex’s human resources advisor to inform her of
Hollis’s status. The email stated: “[T]his employee [Hollis] reported into work in pain
and worked until he could not do it anymore. He was sent to the wellness center barely
able to walk due to sciatic nerve problems. He is now under the doctors [sic] care and
cannot afford to miss time. His last occurrence was in October[.] [I]s there anything we
can do instead of termination?”
Hollis was placed on leave under Fed Ex’s Medical Absence Policy from March
14 through March 20, 2012. Hollis was paid for the days he missed work during that
period, but his absences were counted against his attendance record. On March 21, 2012,
Hollis was placed on leave under Fed Ex’s Medical Leave Policy. On March 28, 2012,
Fed Ex sent Hollis a letter outlining his rights and duties while on medical leave. Hollis
remained on medical leave until June 20, 2012. Hollis’s absences while on leave under
the Medical Leave Policy were not counted against his attendance record. While on
leave, Hollis never requested an accommodation for his back injury, and he never
requested to be placed on Fed Ex’s personal leave policy. Hollis testified he understood
his first week of absences would be counted against his attendance record unless he was
placed on personal leave.
4. Hollis’s Suspension
On June 20, 2012, Dr. Abayaratna cleared Hollis to return to work. As of that
date, Dr. Abayaratna believed that Hollis could perform his material handler duties at Fed
Ex without any medical restrictions.
That same day, Fed Ex suspended Hollis while Jackson investigated whether to
issue him a third performance reminder. According to Jackson, the first day of Hollis’s
5
absences, March 14, 2012, caused his attendance rating to drop below Fed Ex’s minimum
attendance requirement.
On July 5, 2012, after reviewing Hollis’s attendance record and consulting with
Fed Ex’s human resources department, Jackson issued Hollis a third performance
reminder and a termination letter. The letter explained that the first week of Hollis’s
leave, March 14 through March 20, 2012, was counted against his attendance record,
causing his attendance record to fall below Fed Ex’s minimum requirement. The letter
further explained that, as a result of Hollis’s deficient performance, Fed Ex was issuing
Hollis his third performance reminder in a 12-month period. Fed Ex terminated Hollis’s
employment because he had received three performance reminders in a 12-month period.
After Fed Ex terminated Hollis’s employment, Dr. Abayaratna sent the company a
letter dated July 5, 2012, explaining the reason for Hollis’s extended absence. The letter
stated that Dr. Abayaratna had treated Hollis for lower back pain and sciatic neuralgia
since March 14, 2012. Dr. Abayaratna had placed Hollis on temporary work disability
and ordered him to engage in little to no activity until his condition improved. According
to the letter, Hollis was temporarily totally disabled from March 14 through June 20,
2012 and subject to the following work restrictions: “Refrain from heavy lifting, frequent
bending at the hips/pelvis and/or lumbar spine, twisting movements and prolonged
sitting/standing.” The letter also stated that after June 20, 2012, Hollis was subject to
“minimal restrictions.” The letter did not define the term “minimal restrictions.” None
of this information, except for the fact that Dr. Abayaratna was treating Hollis for lower
back pain, was communicated to Fed Ex prior to Hollis’s termination.
5. Hollis’s Internal Appeals
Hollis appealed his termination using Fed Ex’s Guaranteed Fair Treatment
Procedure, which provides for a three-strep review process for certain adverse
employment actions, including termination. At each level, Hollis explained that he had
missed work between March and June 2012 because he had experienced severe pain in
his lower back and legs as a result of his sciatica. He also provided his review panels
with Dr. Abayaratna’s July 5, 2012 letter. All three panels denied Hollis’s appeals,
6
finding that he either did not suffer from a disability while he was absent from work or
that he had failed to notify Fed Ex of any disability he may have suffered before the
company terminated his employment.
PROCEDURAL BACKGROUND
In September 2012, Hollis filed a complaint against Fed Ex, alleging six causes of
action stemming from his termination: (1) disability discrimination (§ 12940, subd. (a));
(2) failure to reasonably accommodate his disability (§ 12940, subd. (m)); (3) failure to
engage in a good-faith interactive process (§ 12940, subd. (n)); (4) failure to take all
reasonable steps to prevent discrimination (§ 12940, subd. (k)); (5) retaliation (§ 12940,
subd. (h)); and (6) wrongful termination in violation of public policy.
Fed Ex moved for summary judgment or in the alternative summary adjudication.
Fed Ex argued Hollis could not prevail on any of his claims because either he was not
disabled during his medical leave of absence or Fed Ex was not aware that he was
disabled during that period. Fed Ex also argued Hollis could not prevail on his
discrimination claim because the company had a legitimate, business-related reason for
terminating Hollis, namely enforcement of its neutral attendance policy. Fed Ex further
argued Hollis could not prevail on his retaliation claim because he did not engage in
“protected activity” as defined under FEHA.
In opposition to Fed Ex’s motion, Hollis argued a triable issue of material fact
existed as to whether Fed Ex was aware he suffered from a disability that limited a major
life activity. Hollis argued Fed Ex was made aware of his disability and the effect it had
on his ability to work when Jackson observed him struggling to perform his duties and
escorted him to the company’s wellness center on March 13, 2012, and when he
submitted Dr. Abayaratna’s notes recommending that he remain off work due to his
lower back pain. He further argued a triable issue of material fact existed as to whether
Fed Ex failed to reasonably accommodate his disability. According to Hollis, Fed Ex
should have offered him a protected leave of absence that would have prevented any of
his absences between March and June 2012 from counting against his attendance record.
He also contended a triable issue of material fact existed as to whether Fed Ex retaliated
7
against his exercise of rights under FEHA. He argued his request for a protected leave of
absence qualified as “protected activity” under FEHA, and that Fed Ex’s denial of that
request constituted “retaliation” under the statute.
The trial court granted Fed Ex’s motion for summary judgment. Although the
court disagreed with Fed Ex that, as a matter of law, Hollis was not disabled while he was
absent from work, it found Fed Ex was never aware of any disability Hollis may have
suffered before it terminated his employment. Specifically, it found Hollis failed
adequately to inform Fed Ex about any disability he may have suffered while he was on
leave. It reasoned that prior to his termination, Hollis never informed anyone at the
company about the true nature or severity of his condition or any of the symptoms and
limitations resulting from that condition. It observed that none of the notes submitted by
Dr. Abayaratna before Hollis was terminated provided such information; rather, the notes
simply recommended that Hollis remain off work for specific periods of time due to his
“lower back pain.” The court also observed that Hollis never requested to be placed on
protected leave prior to his termination. With respect to Dr. Abayaratna’s statement that
Hollis was temporarily totally disabled and had been diagnosed with severe lower back
pain and sciatic neuralgia, the court found that information had not been provided to Fed
Ex until after Hollis was terminated. The court concluded that since Fed Ex was not
aware of any disability before it terminated Hollis’s employment, it could not be held
liable for any claims under FEHA.
The court entered judgment in Fed Ex’s favor, and Hollis timely appealed.
DISCUSSION
Hollis contends the trial court erred in granting Fed Ex’s motion for summary
judgment because a triable issue of material fact exists as to whether Fed Ex was aware
he was disabled before it terminated his employment. Fed Ex argues the trial court
properly granted summary judgment because Hollis failed to provide sufficient
information to put the company on notice that he was disabled before it terminated his
employment.
8
I. Standard of Review
On appeal from a grant of summary judgment, we review the record and the ruling
of the trial court de novo. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 334 (Guz).)
We consider all the evidence set forth in the moving and opposition papers, except that
evidence to which objections have been made and sustained. (Ibid.) However, “[w]e do
not resolve conflicts in the evidence as if we were sitting as the trier of fact. [Citation.]
Instead, we draw all reasonable inferences from the evidence in the light most favorable
to the party opposing summary judgment. [Citation.]” (Nadaf-Rahrov v. Neiman Marcus
Group, Inc. (2008) 166 Cal. App. 4th 952, 961 (Nadaf-Rahrov).)
A grant of summary judgment is proper if the evidence set forth shows there is no
triable issue as to any material fact and the moving party is entitled to judgment as a
matter of law. (Code Civ. Proc. § 437c, subd. (c); see also Guz, supra, 24 Cal.4th at p.
334.) A triable issue of fact exists when the evidence reasonably permits the trier of fact,
applying the applicable standard of proof, to find the underlying fact in favor of the party
opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, fn.
Omitted (Aguilar).) A material issue of fact may not be based on inferences, if
contradicted by other inferences or evidence. (Code Civ. Proc., § 437c, subd. (c);
Aguilar, supra, 25 Cal.4th at p. 856.) “[T]he court may not weigh the plaintiff’s evidence
or inferences against the defendants’ as though it were sitting as the trier of fact,” but
must determine the question of law of “what any evidence or inference could show or
imply to a reasonable trier of fact.” (Aguilar, supra, 25 Cal.4th at p. 856.) Where the
evidence and inferences would allow a reasonable trier of fact to find the underlying fact
in favor of a plaintiff in accordance with the applicable standard of proof, then a
defendant’s motion for summary judgment must be denied. (Id. at p. 850; accord, Faust
v. California Portland Cement Co. (2007) 150 Cal. App. 4th 864, 877 (Faust).)
For summary judgment in the employment discrimination context, “‘“[i]f 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
9
plaintiff produces admissible evidence which raises a triable issue of fact material to the
defendant's showing. . . .” [Citation.]’” (Arteaga v. Brink’s, Inc. (2008) 163 Cal. App. 4th
327, 344 (Arteaga); italics removed.)
II. Disability Discrimination
Hollis contends Fed Ex discriminated against him on the basis of a physical
disability, namely his back condition and sciatica, when it terminated his employment.
Under section 12940, subdivision (a), it is illegal for an employer to discharge an
employee because of his physical disability. To establish a prima facie case of disability
discrimination, a discharged employee must establish that (1) he suffered from a
disability; (2) he was otherwise qualified to perform his job; and (3) he was subjected to
an adverse employment action because of his disability. (Arteaga, supra, 163
Cal.App.4th at pp. 344-345.) Once the employee establishes a prima facie case of
discrimination, the burden shifts to the employer to show a legitimate, non-discriminatory
reason for the adverse employment action. (Id. at p. 343.) The burden then shifts back to
the employee to establish that the employer’s proffered justification is mere pretext for
discrimination. (Ibid.)
Under FEHA, “‘physical disability’ includes having a physiological disease,
disorder, or condition that, by affecting the neurological or musculoskeletal body
systems, special sense organs or skin, ‘limits’ a ‘major life activity.’ (§ 12926, subd.
(k)(1)(A), (B).) ‘Limits’ is synonymous with making the achievement of a major life
activity ‘difficult.’ (Id., subd. (k)(1)(B)(ii).) ‘Major life activity’ is construed broadly
and includes physical, mental, and social activities, and working. (Id., subd.
(k)(1)(B)(iii).) ‘“[W]orking” is a major life activity, regardless of whether the actual or
perceived working limitation implicates a particular employment or a class or broad
range of employments.’ (§ 12926.1, subd. (c).)” (Arteaga, supra, 163 Cal.App.4th at p.
345.) “An adverse employment decision cannot be made ‘because of’ a disability, when
the disability is not known to the employer.” (Brundage v. Hahn (1997) 57 Cal. App. 4th
228, 236 (Brundage).)
10
The trial court found Fed Ex could not be held liable under any of Hollis’s FEHA
claims because the company was not aware that Hollis suffered from a disability before it
terminated his employment. As noted above, an employee cannot be discriminated
against on the basis of his disability when his disability is not known to his employer.
(Brundage, supra, 57 Cal.App.4th at p. 237; Avila v. Continental Airlines, Inc. (2008)
165 Cal. App. 4th 1237, 1247 (Avila).) “[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. The employer need only know the underlying facts, not the legal
significance of those facts.” (Faust v. California Portland Cement Co. (2007) 150
Cal. App. 4th 864, 887 (Faust).) “Evidence that a decision maker learned of a plaintiff’s
disability after 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. Such evidence is irrelevant to determining whether the decision maker acted
from a discriminatory animus.” (Avila, supra, 165 Cal.App.4th at p. 1251; italics in
original.)
Fed Ex argues the trial court properly granted summary adjudication as to Hollis’s
disability discrimination claim because it had a legitimate reason for terminating his
employment: Hollis’s poor attendance record that led to the company’s issuance of three
attendance deficiency notices in a 12-month period. Specifically, Fed Ex argues its
decision to terminate Hollis was premised solely on its application of its neutral
attendance policy because it had no knowledge of any disability Hollis may have suffered
before it terminated his employment.
Fed Ex contends Hollis failed adequately to inform the company that he was
suffering from a qualifying disability before it terminated his employment. The company
argues the notes it received from Dr. Abayaratna prior to Hollis’s termination were
inadequate to put the company on notice that Hollis was suffering from a disability
because those notes do not: (1) specify a diagnosis or prognosis of Hollis’s condition;
11
(2) indicate Hollis was unable to perform any or all of his job duties; or (3) specify any
work restrictions or physical limitations Hollis was subject to while he was on leave. At
the time it terminated Hollis, the company believed his condition was temporary and did
not prevent him from performing his job duties during his absence. Fed Ex argues this
conclusion is further supported by the fact Hollis was ultimately cleared to work with no
limitations or restrictions before he was terminated, and Hollis made no claim that he was
disabled or subject to limitations until after he was terminated.
Hollis contends Fed Ex was aware of his disability before he was terminated. He
cites the fact that Jackson observed him unable to perform his job duties because of his
back pain the day before he stopped reporting to work. He also cites Dr. Abayaratna’s
notes, which recommend he take time off work because he was suffering from “lower
back pain.” Hollis contends this information sufficiently informed Fed Ex he was
disabled under FEHA because it demonstrated that he was suffering from a physical
condition (back pain) that limited a major life activity (the ability to work). We disagree.
The trial court properly found Fed Ex was not aware Hollis was disabled at the
time it terminated his employment. “While knowledge of [a] 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.” (Brundage, supra,
57 Cal.App.4th at p. 237.) Vague or conclusory statements that reveal only an
unspecified incapacity are insufficient to make the employer aware of its obligations
under FEHA. (Avila, supra, 165 Cal.App.4th at p. 1249.) Here, the facts known to Fed
Ex at the time it terminated Hollis’s employment support a reasonable belief that Hollis
was only temporarily injured, and not disabled, while he was absent from work.
At the time Hollis left work on March 13, 2012, he complained to Jackson that he
could not continue working that day because he was experiencing severe pain in his back
and legs. This was the first time that Jackson, or any other supervisor at Fed Ex, had
observed Hollis suffering from back and leg pain at work. Hollis had never provided the
company with documentation or other information prior to this incident demonstrating he
suffered from such pain. Indeed, he testified he never told anyone at Fed Ex that he
12
suffered from a back condition, or that he could not otherwise perform his job, prior to
March 13, 2012. Further, he had never been absent, or at least never disclosed that he
had been absent, because of his pain. Rather, he had been unexpectedly absent on
numerous occasions throughout his period of employment for medical issues concerning
his son and mother, as well as for reasons unrelated to his back condition. There is no
evidence in the record that prior to the March 13, 2012 incident, Hollis’s supervisors
observed Hollis suffering pain in his back and legs, or that they were otherwise aware he
had a back or sciatic nerve condition.
The fact Hollis submitted doctor’s notes recommending he remain home from
work between March and June 2012 does not establish Fed Ex was aware he was
disabled during that period. As noted, vague or conclusory statements revealing an
unspecified incapacity are insufficient to put an employer on notice of a disability.
(Avila, supra, 165 Cal.App.4th at p. 1249.) Dr. Abayaratna’s notes do nothing more than
merely identify an unspecified incapacity.
For example, three of the notes simply state Dr. Abayaratna “recommended”
Hollis remain off work; however, those three notes do not state Hollis was suffering from
any type of physical condition or injury or provide any reason why Hollis needed to
remain off work. The other three notes Hollis submitted were also insufficient to put Fed
Ex on notice of any disability. Although they indicate Hollis was experiencing “lower
back pain,” they too only recommend Hollis remain off work. They do not state that
Hollis was unable to work, or that he was able to work but only under certain conditions
or with certain limitations. In addition, none of the six notes include any information
concerning the status or progress of Hollis’s back pain. They all either state Hollis was
experiencing “lower back pain” or provide no information concerning his physical
condition. They do not indicate whether the condition was improving, deteriorating, or
remaining the same.
Finally, the fact that Hollis was cleared to work on June 20, 2012 without any
restrictions supports the conclusion Fed Ex believed he had been only temporarily
injured, and not disabled, before the company terminated his employment. Both Hollis
13
and Dr. Abayaratna testified that when Hollis was cleared to work on June 20, 2012, he
was no longer subject to any work restrictions. Although Dr. Abayaratna’s letter sent to
Fed Ex on July 5, 2012 stated Hollis was in fact subject to unspecified “minimal”
restrictions, that information was not known to Fed Ex when it decided to terminate
Hollis’s employment. Fed Ex was not made aware of that information until Hollis sent
the company Dr. Abayaratna’s letter after he was terminated. (See Avila, supra, 165
Cal.App.4th at p. 1251 [information addressing the disability received after the
employer’s adverse employment action is not probative as to whether the employer knew
the employee was disabled before taking such action].) Accordingly, from the time
Hollis began his leave of absence up to the time he was fired, Fed Ex was never aware
that he was ever subject to work restrictions. Even after Fed Ex suspended Hollis on
June 20, 2012 for his deficient attendance, Hollis never attempted to inform Fed Ex he
had been disabled or was subject to restrictions before his employment was terminated.
When information necessary to give notice of a disability, such as the existence of the
disability or the disability’s corresponding restrictions, is not obvious to the employer, it
is the employee’s responsibility to bring that information to the employer’s attention.
(Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986,
1013 (Scotch).) Hollis did not fulfill that responsibility here.
Hollis relies on Faust, supra, to argue the information he provided Fed Ex put the
company on notice of his disability. In Faust, the plaintiff was placed on disability leave
by his psychiatrist after he suffered panic attacks and severe anxiety at work after his
coworkers discovered he had accused them of stealing from their employer. (Faust,
supra, 150 Cal.App.4th at pp. 869-870.) Shortly before his period of disability leave
expired, the plaintiff consulted a chiropractor for treatment of severe back pain he had
been experiencing while on leave. (Id. at p. 870.) The chiropractor submitted to the
plaintiff’s employer a medical certification form, which recommended the plaintiff
engage in physiotherapy, chiropractic therapy and rest, and stated: “‘[t]he patient is
unable to perform regular job duties [for one month].’” (Ibid.) The chiropractor did not
14
fill out the form’s “Authorization for Absence” section or list any work restrictions.
(Id. at p. 871.)
The day after the chiropractor submitted the certification form, the plaintiff’s
employer tried to contact the plaintiff. (Faust, supra, 150 Cal.App.4th at p. 870.) The
employer believed the form did not clear the plaintiff from work because it was not
executed by a physician or medical doctor, it did not explicitly authorize plaintiff’s
absence from work, and it did not list any medical restrictions. (Ibid.) The employer
tried contacting the plaintiff several times by phone and mail. (Ibid.) The plaintiff never
returned the employer’s calls or responded to the employer’s letter, but plaintiff’s wife
told the employer it could discuss the letter with her, the plaintiff’s doctor, or the
plaintiff’s attorney. (Ibid.) The employer never discussed its concerns about plaintiff’s
absence with the plaintiff’s wife, attorney or doctor. (Ibid.) Several weeks after
receiving the chiropractor’s letter, and while the plaintiff was still on leave, the employer
terminated the plaintiff’s employment. (Id. at p. 872.)
The plaintiff sued the employer for disability discrimination and retaliation under
FEHA. (Faust, supra, 150 Cal.App.4th at p. 872.) The employer filed a motion for
summary judgment, which the trial court granted, finding in part that the employer was
not aware of the plaintiff’s disability. (Id. at pp. 872-876.) The court of appeal reversed,
holding that the employer was aware of the plaintiff’s back condition. (Id. at pp. 886-
887.) The court held that the chiropractor’s statement that the plaintiff was “unable to
perform regular job duties,” coupled with the recommendation that the plaintiff remain
off work, put the employer on notice of the plaintiff’s disability. (Id. at p. 887.)
Hollis’s case is distinguishable from Faust in two respects. First, Dr.
Abayaratna’s notes do not indicate whether Hollis was capable of performing his job.
Unlike the notes in Faust, Dr. Abayaratna’s notes do not state that Hollis was unable to
perform his job duties, or that he was somehow restricted in performing his regular job
duties. Rather, the notes only recommended that Hollis remain off work. Even with a
doctor’s recommendation to refrain from working, Hollis still may have been able to
perform all of his job duties despite his back pain. As noted above, when information
15
concerning the employee’s ability to perform his job is not obvious to the employer, it is
the employee’s responsibility to bring that information to the employer’s attention.
(Scotch, supra, 173 Cal.App.4th at p. 1013.)
Second, unlike the plaintiff in Faust, Hollis returned to work before his
termination without any medical restrictions or other signs of being disabled. When
Hollis returned to work, it appeared that he had a clean bill of health. Accordingly, it was
not unreasonable for Fed Ex to believe at the time it terminated Hollis’s employment that
Hollis had missed work because of a temporary injury, and not a disability. (See Avila,
supra, 165 Cal.App.4th at p. 1248 [knowledge of a disability will not be inferred unless it
is the only reasonable interpretation of the known facts]; see also Winarto v. Toshiba
American Electronics Components (9th Cir. 2001) 274 F.3d 1276, 1291 [due to the
temporary nature of the employee’s back and ankle injuries, the fact that she submitted
two doctor’s notes excusing her from work because of the injuries did not prove that her
employer perceived her as disabled when she introduced no other evidence demonstrating
the employer was aware that she was disabled, and not just temporarily injured].)
In light of the foregoing, we conclude the trial court properly found that Fed Ex
had no knowledge of any disability Hollis may have suffered prior to his termination.
Since Fed Ex was unaware of any disability, it could not have discriminated against
Hollis on the basis of a disability when it terminated his employment. (Brundage, supra,
57 Cal.App.4th at p. 237; Avila, supra, 165 Cal.App.4th at p. 1247.) Accordingly, we
affirm the trial court’s grant of summary adjudication as to Hollis’s disability
discrimination claim.
III. Reasonable Accommodation
Hollis next asserts Fed Ex failed to reasonably accommodate his back injury. He
argues the company should have placed him on protected leave to prevent his absences
from counting against his attendance record. This claim fails for the same reasons
expressed above.
Under section 12940, subdivision (m), an employer must provide a “reasonable
accommodation for the known physical or mental disability of an applicant or employee.”
16
An employer’s duty to reasonably accommodate an employee’s disability is not triggered
until the employer knows of the disability. (Avila, supra, 165 Cal.App.4th at p. 1253.)
The employee is responsible for providing his employer with notice of his disability.
(Raine v. City of Burbank (2006) 135 Cal. App. 4th 1215, 1222 [“Generally, ‘“[t]he
employee bears the burden of giving the employer notice of the disability.”’”].)
“‘“[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. . . . [Citation.]”’” (Avila, supra, 165 Cal.App.4th at pp. 1252-1253, quoting
Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App. 4th 935, 950.)
As explained above, Fed Ex lacked knowledge of any disability Hollis may have
suffered prior to his termination. Further, Hollis never told Fed Ex that he wanted to be
placed on protected leave, even though he knew he was able to do so. Without
establishing Fed Ex knew he was disabled or that he desired an accommodation, Hollis
cannot establish a claim that his employer failed to accommodate his disability.
Accordingly, the trial court properly granted summary adjudication as to Hollis’s
reasonable-accommodation claim. (Avila, supra, 165 Cal.App.4th at p. 1253.)
IV. Interactive Process
Hollis next contends Fed Ex failed to engage in an interactive process to discuss
possible accommodations that could have prevented him from accruing unexcused
absences. Although Hollis did not request an accommodation prior to his termination, he
asserts Fed Ex was obligated to initiate a discussion about possible accommodations
because it was aware Hollis was disabled. Again, this claim fails because Fed Ex was
unaware of any disability Hollis may have suffered prior to his termination.
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
17
Corp. (2006) 140 Cal. App. 4th 34, 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. [Citation.]” (Scotch, supra, 173 Cal.App.4th at p. 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, 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
resulting limitations, and to suggest the reasonable accommodations.’ [Citation.]” (Ibid.)
While employed with Fed Ex, including while he was absent and suspended,
Hollis never identified for Fed Ex his disability and its resulting limitations. As
discussed above, the doctor’s notes he submitted simply indicate that Hollis was suffering
from lower back pain and that Dr. Abayaratna recommended he remain home from work.
None of the notes list any limitations Hollis was subject to, nor do they state that Hollis
was unable to perform any of his duties at work. Further, Hollis admitted he never
reached out to Fed Ex to request an accommodating leave that would have prevented his
absences from counting against his attendance record, despite his awareness of his ability
to do so. Fed Ex was not otherwise aware Hollis was disabled and subject to work
restrictions. Accordingly, it was not obligated to engage in an interactive process with
him. The trial court properly granted summary adjudication as to Hollis’s interactive-
process claim.
V. Failure To Prevent Discrimination
Hollis next contends Fed Ex failed to prevent disability discrimination.
Specifically, he argues Fed Ex should have reversed his termination once he supplied
information explaining that he was disabled with a back injury while he was absent
between March and June 2012. This claim fails for reasons similar to those discussed
above: because Hollis cannot establish a claim for discrimination as a result of Fed Ex’s
18
lack of knowledge of any disability he may have suffered before it terminated his
employment, he cannot prevail on a claim that Fed Ex failed to prevent discrimination.
In other words, Hollis cannot succeed on this claim because there was no discrimination
to prevent.
Under section 12940, subdivision (k), it is illegal for an employer “to fail to take
all reasonable steps necessary to prevent discrimination and harassment from occurring.”
To prevail on a claim for failure to prevent discrimination, a plaintiff must establish three
elements: (1) he was subjected to discrimination, harassment, or retaliation; (2) the
defendant failed to take all reasonable steps to prevent discrimination, harassment, or
retaliation; and (3) the defendant’s failure caused the plaintiff to suffer injury, damage,
loss, or harm. (Lelaind v. City and County of San Francisco (2008) 576 F. Supp. 2d 1079,
1103; see also CACI No. 2527.) An employee cannot establish a claim for failure to
prevent disability discrimination if he cannot demonstrate he was subject to
discrimination on the basis of his disability. (Trujillo v. North County Transit Dist.
(1998) 63 Cal. App. 4th 280, 282, 289 (Trujillo) [“‘[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, . . . .”]; see also Dickson v. Burke Williams, Inc. (2015)
234 Cal. App. 4th 1307, 1315, 1317 [discussing Trujillo and explaining that, before an
employer may be held liable for failure to prevent discrimination or harassment under
section 12940, subdivision (k), there must be a finding that actionable harassment or
discrimination, as defined under FEHA, occurred; otherwise, an employer may be held
liable for failing to prevent conduct that is legally permissible].)
As discussed above, the evidence establishes Fed Ex was not aware of any
disability Hollis may have suffered prior to his termination. As a result, Fed Ex did not
discriminate against Hollis on the basis of a disability. (Brundage, supra, 57 Cal.App.4th
at pp. 236-237.) It follows then that Fed Ex did not breach any duty to prevent
discrimination. (Trujillo, supra, 63 Cal.App.4th at p. 289.) Accordingly, the trial court
properly granted summary adjudication as to Hollis’s failure to prevent discrimination
claim.
19
VI. Retaliation
Hollis contends his termination was an act of retaliation under FEHA. He argues
he was entitled to an accommodating protected leave of absence, and Fed Ex failed to
provide such a leave as an act of retaliation. This claim fails because Hollis did not
engage in any activity protected under FEHA.
Under section 12940, subdivision (h), an employer may not retaliate or
discriminate against an employee who engages in protected activity under FEHA. That
subdivision provides: “It is an unlawful employment practice . . . [f]or any employer . . .
to discharge, expel, or otherwise discriminate against any person beause the person has
opposed any practices forbidden under [FEHA] or because the person has filed a
complaint, testified, or assisted in any proceeding under [FEHA].” (§ 12940, subd. (h).)
“Protected activity” under FEHA involves the employee engaging in some type of
conduct that opposes, or complains of, the employer’s actions based on the employee’s
reasonable belief that some act or practice of the employer is unlawful. (See Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1043 (Yanowitz).)
Hollis did not engage in protected activity under FEHA. Hollis never opposed, or
complained of, Fed Ex’s employment practices as unlawful prior to his termination.
Hollis does not assert that he engaged in such activity before he was fired, and our review
of the record reveals no evidence that he engaged in such activity. Accordingly, he
cannot prevail on a claim for retaliation under FEHA. (Yanowitz, supra, 36 Cal.4th at p.
1043.)
VII. Wrongful Termination
Finally, Hollis contends he was terminated in violation of public policy. Hollis
argues a termination that violates FEHA also gives rise to a claim in tort for wrongful
termination; he sets forth no independent grounds for his claim of wrongful termination.
Accordingly, his wrongful termination claim rises and falls with his FEHA claims.
Because Hollis cannot prevail on any of his claims brought under FEHA, he necessarily
cannot prevail on his claim for wrongful termination. The trial court properly granted
summary adjudication as to this claim.
20
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
IWASAKI, J.*
We concur:
PERLUSS, P. J. ZELON, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
21