McDaniel v. FlashCo Manufacturing CA2/5

Filed 11/9/22 McDaniel v. FlashCo Manufacturing CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JEREMY MCDANIEL, B314274
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV09497)
v.
FLASHCO MANUFACTURING,
INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael P. Linfield, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Eldessouky Law and Mohamed Eldessouky; Bove Law
Group and Brooke L. Bove for Plaintiff and Appellant.
Kahana & Feld, Ron S. Brand, Avi M. Attal and Alexa P.
Stephenson for Defendants and Respondents.
____________________________
Plaintiff and appellant Jeremy McDaniel appeals a
summary judgment entered against him on his claims that he
was discharged from his employment by defendants and
respondents FlashCo Manufacturing, Inc. (FlashCo) and
Insperity PEO Services, L.P. (Insperity) in violation of the
California Fair Employment and Housing Act, Government Code
section 12900 et seq. (FEHA), the Moore-Brown-Roberti Family
Rights Act, commonly referred to as the California Family Rights
Act (CFRA), and public policy.1
McDaniel claims FlashCo and Insperity discharged him
“because of” his disability—an injury to his neck and back. As we
shall explain, to prevail on his FEHA causes of action, McDaniel
must prove that defendants knew about his alleged disability
before they discharged him. We affirm the trial court’s summary
adjudication of McDaniel’s FEHA claims because he failed to
raise a triable issue of fact as to whether defendants knew of his
disability.
Our analysis of McDaniel’s CFRA and wrongful
termination in violation of public policy causes of action is
different. To prevail on these claims, McDaniel need not prove
that defendants knew he was disabled. The trial court’s
determination that McDaniel was required to make that showing
was error. We thus reverse the trial court’s judgment in part and
remand the matter for the trial court to address in the first
1
Unless otherwise stated, all further statutory
references are to the Government Code. The CFRA is an
amendment to the FEHA codified in section 12945.2 in Part 2.8 of
Division 3 of Title 2 to the Government Code. For clarity and
convenience, we shall refer to the FEHA and CFRA as separate
statutory schemes.
2
instance defendants’ other arguments regarding McDaniel’s
surviving causes of action.
BACKGROUND
FlashCo is in the business of manufacturing and selling
prefabricated roof flashings. Insperity is a professional employer
organization that provides administrative and consulting services
to small companies. Under a Client Service Agreement with
FlashCo, Insperity administered payroll and employee benefits
for FlashCo and served as an off-site full-service human
resources department for the company.
In 2010, FlashCo hired McDaniel as a production worker.
In 2013, after FlashCo and Insperity executed the Client Service
Agreement, McDaniel signed an employment agreement with
Insperity. This contract provides that FlashCo and Insperity
have a “co-employment relationship” with McDaniel.
In March 2016, McDaniel was hired as the plant manager
for FlashCo’s Downey, California plant. Beginning in November
2016, FlashCo’s Director of Operations, Eric Compton, was
McDaniel’s direct supervisor. Compton reported directly to
FlashCo’s president, Greg Morrow, and did not work for
Insperity.
At his deposition, Morrow testified that when McDaniel
was hired as a plant manager, he was concerned McDaniel was
“over his head” due to his limited experience and management
skills and lack of a college degree. Morrow further testified that
he hoped McDaniel would develop into a competent plant
manager, but McDaniel never did so.
In his declaration in support of FlashCo’s motion for
summary judgment, Compton provided similar testimony.
Compton stated that when he began supervising McDaniel, he
3
advised Morrow that McDaniel was not qualified for the plant
manager position, but with hard work and additional training
McDaniel could be successful. Compton further stated that
McDaniel did not progress as fast or as well as he expected,
especially with respect to producing enough product to meet
customer demand. According to Compton, in 2016 and 2017, the
Downey plant managed by McDaniel did not have the product
output levels expected of a plant of its maturity and was
struggling to meet customer demand.
In performance reviews in 2016 and 2017, McDaniel
received an overall rating of 3 out of 5, and a rating of 2 out of 5
in two categories—labor expense and on-time shipments.
According to FlashCo’s policies, a rating of 3 means the employee
“Achieves Standard,” while a rating of 2 means an employee
“Needs Improvement.”
On Thursday, February 22, 2018, outside of work,
McDaniel sustained neck and back injuries in an automobile
accident. On that day McDaniel and Compton communicated
about the accident by text and telephone.
McDaniel did not work on Friday, February 23, 2018.
Compton and McDaniel exchanged the following text messages:
McDaniel: “Good morning, they put me on muscle relaxers,
steroids, naproxen. They gave me a shot of steroids, and a shot
for the pain last night. I have back spasms from my neck down to
my hip on the right side. Needless to say I won’t be going in this
morning. . . . Wanted to keep you in the loop.”
Compton: “Ok, thanks.”
McDaniel: “P.S. I hate shots, and muscle relaxers. Guess
I have to man up though.”
4
Compton: “I usually tough it out. I don’t like the fogginess
that comes with it.”
McDaniel: “Me neither. I don’t do any pills well, but these
things absolutely knock me out.”
On Monday, February 26, 2018, Compton texted McDaniel,
asking him how he was feeling. McDaniel responded, “Hurting
pretty good. Just leaving work now to go to the doctor.”
On March 23, 2018, Compton received an email from
McDaniel, stating: “I’m having issues with my back today. It
froze up on me last night, and isn’t much better today. I’m not
going to be able to go in today.” Compton did not object to
McDaniel taking the day off and responded with an email stating,
“I hope you feel better.”
On March 26, 2018, McDaniel emailed Compton a note
from his chiropractor. The note stated McDaniel was “[t]otally
incapacitated” due to lumbar myalgia “from 3/23/18 to 3/23/18.”
In response, Compton told McDaniel that he did not need to
submit a doctor’s note in the future if he was feeling unwell or
took the day off of work.
On March 28, 2018, McDaniel emailed Compton stating his
“back and neck are out again,” and that he planned on taking the
day off. Compton replied via email, “Okay, I hope you feel
better.” McDaniel did not request any time off after March 28,
2018.
On April 17, 2018, Compton spoke to McDaniel and advised
him that “the sales team was concerned about the plant
performance, especially given that the plant was not yet in the
year’s busy season.” Around this time—the record is not clear
exactly when—Compton sent Morrow a summary of his
inspections of the Downey plant and McDaniel’s alleged poor
5
work performance. On April 18, 2018, Morrow responded by
directing Compton to prepare a short-term performance
improvement plan (PIP).
Compton prepared a PIP and on April 19, 2018, sent it via
email to Cindy Bailey, a senior human resource specialist at
Insperity. In his email, Compton asked Bailey to “look this pip
over” and call him. Although Bailey did not have authority to
approve or disapprove the PIP, she reviewed the document and
advised Compton that “the contents of the PIP did not present
any obvious human resource problems.”
On April 20, 2018, Compton sent McDaniel the PIP. The
document set specific goals for the period of April 20 to May 21,
2018. For example, the PIP stated: “The plant needs to meet its
speed goals of 90% shipped within 3 days of purchase order.”
McDaniel believed the PIP set “unrealistic” expectations.
In a telephone conference with McDaniel on April 20, 2018,
Compton advised McDaniel he had three options: (1) abide by
the PIP and improve his performance; (2) accept the position of
operations supervisor (one step below the plant manager
position) at FlashCo’s South Carolina plant; or (3) voluntarily
resign. Compton told McDaniel that he felt the operations
supervisor position was the “right job” for him, commensurate
with his skills and education level. Compton also informed
McDaniel that if he chose to resign, FlashCo would offer him
$10,000.
On April 24, 2018, McDaniel sent Compton an email
advising him that he would take the “severance option.”
McDaniel’s employment was terminated on that date.
6
On March 9, 2020, McDaniel commenced this action by
filing a complaint against FlashCo and Insperity in superior
court.
In his operative first amended complaint, McDaniel set
forth nine causes of action, six of which were for violation of the
FEHA based on (1) disability discrimination, (2) failure to
accommodate, (3) failure to engage in the interactive process, (4)
retaliation, (5) failure to prevent harassment and discrimination,
and (6) hostile work environment. McDaniel also stated two
causes of action for violation of the CFRA, one for interference
and another for retaliation. Finally, McDaniel asserted a
wrongful termination in violation of public policy cause of action
based on defendants’ alleged FEHA and CFRA violations.
FlashCo and Insperity filed separate motions for summary
judgment or, in the alternative, summary adjudication of each of
McDaniel’s nine causes of action. After a hearing, the trial court
entered an order granting both defendants summary judgment.
On June 7, 2021, the trial court entered judgment against
McDaniel and in favor of FlashCo and Insperity. McDaniel
timely appealed the judgment.
DISCUSSION
I. Standard of Review
A defendant moving for summary adjudication of a cause of
action bears the burden of showing there is no triable issue of
material fact and that it is entitled to prevail as a matter of law.
(Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th
757, 761.) If the defendant shows the plaintiff cannot establish
an element of a cause of action or does not possess the needed
evidence to establish that element, the court shall summarily
7
adjudicate the cause of action in its favor. (Leyva v. Garcia
(2018) 20 Cal.App.5th 1095, 1102.) If the defendant makes this
showing with respect to all the plaintiff’s causes of action, it is
entitled to summary judgment. (Code Civ. Proc., § 437c, subd.
(c).)
In determining whether there is a triable issue of material
fact, the court must make all reasonable inferences in favor of the
party opposing summary judgment or summary adjudication.
(Kaney v. Custance (2022) 74 Cal.App.5th 201, 213.) “There is a
triable 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, 850.)
We examine the record de novo to determine whether
triable issues of material fact exist. (Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 767.)
II. McDaniel’s FEHA Causes of Action
A. McDaniel’s Alleged Disability
McDaniel claims he had a physical disability. Under the
FEHA, a “physical disability” includes having any “physiological
disease, disorder, condition, cosmetic disfigurement, or
anatomical loss” that (A) affects one or more of certain body
systems, including the musculoskeletal system, and (B) “[l]imits a
major life activity.” (§ 12926, subd. (m)(1).) A “major life
activity” includes “physical, mental, and social activities and
working.” (§ 12926, subd. (m)(1)(B)(iii).) “[P]ain alone without
some corresponding limitation on activity is insufficient to
8
establish a disabling impairment.” (Arteaga v. Brink’s, Inc.
(2008) 163 Cal.App.4th 327, 348 (Arteaga).)
A “disability” does not include conditions with “little or no
residual effects, such as the common cold; seasonal or common
influenza; minor cuts, sprains, muscle aches, soreness, bruises, or
abrasions; non-migraine headaches, and minor and non-chronic
gastrointestinal disorders.” (Cal. Code Regs., tit. 2, § 11065,
subd. (d)(9)(B), italics added.) Accordingly, if a person suffers
short-term pain arising from a back sprain, he or she is not
“disabled” for purposes the FEHA.
In their motions for summary judgment, defendants argued
that McDaniel did not have a disability because there is no
evidence that he had a chronic back injury. The trial court did
not decide this issue. We shall assume, without deciding, that
there is sufficient evidence in the record for a trier of fact to
conclude that McDaniel had a physical disability, namely a
chronic back injury.
B. McDaniel Cannot Prevail on His FEHA Causes of
Action Unless He Shows Defendants Knew of His
Alleged Disability
Each of McDaniel’s FEHA causes of action have a common
requirement: McDaniel must show that defendants knew of his
alleged physical disability.
In his first, fourth, fifth, and eighth causes of action,
McDaniel alleges defendants engaged in wrongful conduct
“because of” his disability:
• Plaintiff’s first cause of action is for disability
discrimination in violation of section 12940, subdivision (a),
which prohibits “an employer, because of . . . physical
disability” from discharging any person from employment.
9
• In McDaniel’s fourth cause of action for retaliation, he
alleges defendants retaliated against him in violation of
2
section 12940, subdivision (h) “because of disability.”
• McDaniel’s eighth cause of action is for hostile work
environment harassment pursuant to section 12940,
subdivision (j)(1), which prohibits an employer from
harassing an employee “because of . . . physical disability.”
• McDaniel’s fifth cause of action is for failure to prevent
harassment and discrimination. The discrimination
McDaniel complains of allegedly occurred because of his
disability. Although the first amended complaint does not
state any facts regarding harassment, McDaniel testified at
his deposition that Compton harassed him by firing him
“because of disability” and giving him the PIP.
“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; accord Avila
v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247
(Avila).)
2
Section 12940, subdivision (h) provides that it is
unlawful for an employer to take adverse employment action
against “any person because the person has opposed any
practices forbidden [by the FEHA] or because the person has filed
a complaint, testified, or assisted in any proceeding under [the
FEHA].” In his first amended complaint and in opposition to
defendants’ motion for summary judgment, McDaniel did not
allege that prior to his termination, he, or anyone else, filed a
complaint, testified, or assisted in any FEHA proceeding.
McDaniel does not argue on appeal that his FEHA retaliation
cause of action rests on any basis other than defendants’ alleged
discrimination against him because of his disability.
10
McDaniel’s second and third causes of action are for failure
to accommodate and failure to engage in the interactive process.
Section 12940, subdivision (m) requires an employer “to make
reasonable accommodation for the known” physical disability.
(Italics added.) Likewise, section 12940, subdivision (n) requires
an employer who receives a request for an accommodation to
“engage in a timely, good faith, interactive process” with an
employee “with a known” physical disability. (Italics added.)
C. McDaniel Does Not Have Evidence That FlashCo
or Insperity Knew of His Alleged Disability
“ ‘An employee cannot demand clairvoyance of his
employer.’ ” (Doe v. Department of Corrections & Rehabilitation
(2019) 43 Cal.App.5th 721, 738 (Doe).) “ ‘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.’ ” (King v. United Parcel Service,
Inc. (2007) 152 Cal.App.4th 426, 443.)
“ ‘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 v. Art Institute of California (2009) 173 Cal.App.4th 986,
1013.) “ ‘Reliance on medical opinion and an individualized
assessment is especially important when the symptoms are
subjective and the disease is of a type that varies widely between
people.’ ” (Doe, supra, 43 Cal.App.5th at p. 739.)
“ ‘While knowledge of the disability can be inferred from
the circumstances, knowledge will only be imputed to the
11
employer when the fact of disability is the only reasonable
interpretation of the known facts. “Vague or conclusory
statements revealing an unspecified incapacity are not sufficient
to put an employer on notice of its obligations under the [FEHA].”
[Citation.]’ ” (Avila, supra, 165 Cal.App.4th at p. 1248.)
McDaniel argues that he did not need to show that FlashCo
knew he was actually disabled. Rather, McDaniel contends, he
“need only show that it is reasonable to infer that FlashCo . . .
regarded him as potentially disabled to defeat a motion for
summary judgment.” (Italics added.) For FEHA purposes,
“physical disability” includes being “regarded” by the employer as
having a condition “that has no present disabling effect but may
become a physical disability.” (§ 12926, subd. (m)(5).)
“[E]vidence that a discharged employee had non disabling
symptoms—pain and numbness—during his employment does
not support an inference that the employer discharged him
because of a potential disability. Something more must be
shown. Otherwise, every headache would give rise to a triable
claim.” (Arteaga, supra, 163 Cal.App.4th at pp. 350–351.)
An employee is potentially disabled only if he or she has a
physical or mental condition that creates “a greater than normal
risk of disability or death.” (Arteaga, supra, 163 Cal.App.4th at
p. 351.) Examples of such conditions include high blood pressure
(American National Ins. Co. v. Fair Employment & Housing Com.
(1982) 32 Cal.3d 603, 610), acquired immunodeficiency syndrome,
better known as AIDS (Raytheon Co. v. Fair Employment &
Housing Com. (1989) 212 Cal.App.3d 1242, 1249), and diagnosed
psychiatric disorders (Goldman v. Standard Ins. Co. (9th Cir.
2003) 341 F.3d 1023).
12
Here, there is no evidence FlashCo knew that McDaniel
was actually or potentially disabled. Before his discharge,
McDaniel did not inform FlashCo that he had a chronic back or
neck injury or that he had a history of such injuries. Apart from
requesting three days off in his last two months at work,
McDaniel never indicated that his pain affected his work
performance, prevented him from completing his work duties, or
interfered with his major life activities.
McDaniel also did not inform FlashCo that the back pain
that caused him to take two days off at the end of March 2018
was related to his automobile accident in February. McDaniel’s
supervisor, Compton, never observed McDaniel’s alleged injury
affecting his work, or McDaniel showing signs of distress or a
need for an accommodation. There is no evidence that anyone
else at FlashCo made such observations.
FlashCo only knew of McDaniel’s sporadic, subjective
complaints of pain, which itself is not an actual or potential
disability. The sole document FlashCo received from a health
care provider, the note from McDaniel’s chiropractor, indicated
that McDaniel could not work on one day—beginning and ending
on March 23, 2018—due to “lumbar myalgia” (pain in the lower
back). No doctor ever informed FlashCo that McDaniel had a
chronic back condition or some other disability.
After McDaniel took March 28, 2018, off from work,
FlashCo had no reason believe McDaniel would take more time
off from work due to back pain. As there are many potential
causes of sporadic, short-term subjective back pain and McDaniel
only asked for a few days off, FlashCo was not notified that
McDaniel had, or claimed to have, an actual disability.
13
The same is true for any potential disability. An employer’s
knowledge of sporadic back pain, without more, is not analogous
to an employer’s knowledge of high blood pressure, AIDS, a
diagnosed psychiatric disorder, or other condition that creates a
greater than normal risk of an actual disability. McDaniel thus
did not notify FlashCo that he had a potential disability.
McDaniel argues that “any ignorance on the part of
[FlashCo] as to the severity of [his] injuries was due in large part
to Mr. Compton’s response to [his] initial communications.” He
does not, however, articulate any legal theory for this argument
or cite any authorities to support it.
In any case, Compton’s response to McDaniel’s
communications does not change our analysis. In response to
McDaniel’s statement that he did not like taking pain
medication, Compton stated that he would “usually tough it out”
to avoid the fogginess that comes with such medication. Compton
also told McDaniel that he did not need to present a doctor’s note
if he needed to take a day off because he was unwell. These
statements did not relate to any disability claim by McDaniel or
prevent McDaniel from informing FlashCo of an alleged
disability.
Insperity had even less information than FlashCo. On or
before April 24, 2018, when McDaniel’s employment was
terminated, Insperity had no knowledge that he allegedly injured
his back or neck. While FlashCo’s records show McDaniel took a
total of three days off from work for back pain, McDaniel did not
ask Insperity to take this time off or inform Insperity he would be
taking this time off. Neither McDaniel nor FlashCo forwarded to
Insperity any medical documentation regarding McDaniel’s
14
absences, his condition, or any need for time off or any other
accommodation.
FlashCo and Insperity could not have taken adverse
employment action against McDaniel “because of” his disability
because they did not know of McDaniel’s alleged disability. For
this reason, defendants are entitled to summary adjudication in
their favor on all of McDaniel’s FEHA causes of action.
The cases McDaniel cites do not support his position. In
Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 (Gelfo),
the court held that an employee could maintain a FEHA action
against an employer who “regarded” him as disabled, even
though he was not actually disabled. (Id. at p. 50.) Here, by
contrast, there is no evidence that FlashCo or Insperity regarded
McDaniel as disabled. Gelfo is distinguishable from the present
case.
In Taylor v. Phoenixville School District (3rd Cir. 1999) 184
F.3d 296 (Taylor), the defendant employer knew the plaintiff
employee was hospitalized after becoming psychotic at work.
Plaintiff’s physicians also advised defendant that plaintiff needed
to continue her mediation to avoid future psychotic episodes. (Id.
at pp. 313−314.) No analogous facts exist here. Taylor, too, is
distinguishable.
III. McDaniel’s CFRA Causes of Action
Under the CFRA, an employer is prohibited from refusing
an eligible employee’s3 request for medical leave. (§ 12945.2,
3
To be eligible, the employee must meet certain
criteria, including working for the employer at least 12 months.
(§ 12945.2, subd. (a).) It is undisputed that McDaniel is an
eligible employee protected by the CFRA.
15
subd. (a).) “Medical leave” includes leave “because of an
employee’s own serious health condition that makes the employee
unable to perform the functions of the position of that employee.”
(§ 12945.2, subd. (b)(4)(C).) A “serious health condition” includes
an “an illness, injury, impairment, or physical or mental
condition” that involves “[c]ontinuing treatment or continuing
supervision by a health care provider.” (§ 12945.2, subd.
(b)(12)(B).)
“CFRA ‘is intended to give employees an opportunity to
take leave from work for certain personal or family medical
reasons without jeopardizing job security.’ ” (Bareno v. San Diego
Community College Dist. (2017) 7 Cal.App.5th 546, 558.)
Violations of the CFRA generally fall into two types of claims: (1)
interference claims (2) retaliation claims. (Id. at pp. 558–559.)
McDaniel’s sixth cause of action is for CFRA interference.
It is unlawful for an employer “to interfere with, restrain, or deny
the exercise of, or attempt to exercise, any right provided” under
the CFRA. (§ 12945.2, subd. (q).) The elements of a CFRA
interference cause of action are “ ‘(1) the employee’s entitlement
to CFRA leave rights; and (2) the employer’s interference with or
denial of those rights.’ ” (Moore v. Regents of University of
California (2016) 248 Cal.App.4th 216, 250.) To prevail on this
cause of action, the plaintiff does not need to show the defendant
took an adverse employment action against the plaintiff “because
of” the plaintiff’s “disability.”
McDaniel’s seventh cause of action is for CFRA retaliation.
It is unlawful for an employer to discharge any individual
“because of” the individual’s “exercise of the right to . . . medical
leave.” (§ 12945.2, subd. (k)(1).) The elements of a CFRA
retaliation cause of action are “(1) the defendant was an employer
16
covered by CFRA; (2) the plaintiff was an employee eligible to
take CFRA leave; (3) the plaintiff exercised her right to take
leave for a qualifying CFRA purpose; and (4) the plaintiff suffered
an adverse employment action, such as termination, fine, or
suspension, because of her exercise of her right to CFRA leave.”
(Dudley v. Department of Transportation (2001) 90 Cal.App.4th
255, 261, italics added.)
In contrast to his FEHA causes of action, McDaniel does
not need to prove defendants discharged him “because of
disability” to prevail on his CFRA retaliation cause of action.
“The ‘because of’ language in section 12945.2, subdivision [(k)]
requires only proof of a causal connection between the employee’s
protected status or conduct and the adverse employment action
taken by the employer. [Citations.] The decision maker must
have knowledge, but just knowledge of the protected conduct—
the absences.”4 (Avila, supra, 165 Cal.App.4th at p. 1258.)
In its order granting defendants’ motions for summary
judgment, the trial court did not address the elements of
McDaniel’s CFRA causes of action, including the “because of”
language in the CFRA. Instead, it assumed McDaniel’s CFRA
interference and retaliation claims are “based on adverse
employment decisions that were made because of a disability.”
(Italics added.) As explained, that assumption is incorrect. The
trial court therefore erred in summarily adjudicating McDaniel’s
CFRA causes of action in defendants’ favor on the grounds stated
in its order.
4
When Avila was decided, the “because of” language in
the CFRA was in section 12945.2, subdivision (l). (Avilia, supra,
165 Cal.App.4th at p. 1253.)
17
This conclusion does not end our analysis. We generally
review “the correctness of the trial court’s ruling, not its
reasoning.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1049.)
In their motions for summary judgment, FlashCo and
Insperity did not argue McDaniel’s CFRA claims fail for the
reasons stated by the trial court. Rather, FlashCo argued that it
was not an “employer” subject to the 2018 version of the CFRA
because it “did not have 50 or more employees within 75 miles of
the plant Plaintiff worked at in April 2018.” Insperity argued
that McDaniel’s CFRA causes of action failed because it was not
his “employer” under the factors set forth in Vernon v. State of
California (2004) 116 Cal.App.4th 114, 125, including the extent
of Insperity’s right to control the means and manner of
McDaniel’s work.
The trial court did not address whether FlashCo or
Insperity were “employers” for purposes of the CFRA. On appeal,
McDaniel only discussed the issue in his briefs in passing. While
FlashCo and Insperity discussed the issue in their background
section on their brief, they did not make legal arguments or cite
authorities regarding the matter.
After the case was fully briefed, pursuant to Government
Code section 68081, the court advised the parties they could file
letters concerning the effect, if any, of the holding and discussion
in Avila regarding the CFRA on the issues raised by McDaniel on
appeal. The court did not ask the parties to brief the issue of
whether FlashCo and/or Insperity were employers for purposes of
the CFRA.
In their responsive letter, FlashCo and Insperity argued
Avila was “irrelevant” because they were not employers subject to
the CFRA, and Insperity was not a joint employer. For the first
18
time in this appeal, defendants cited legal authorities and made
legal arguments on these issues. FlashCo and Insperity also
argued that Avila was factually distinguishable from the present
case, though they made no attempt to argue Avila’s analysis of
the CFRA was erroneous.
In our discretion, we exercise judicial restraint and refrain
from adjudicating whether FlashCo or Insperity were employers
for purposes of McDaniel’s CFRA causes of action. The better
course is for the trial court to first adjudicate the issue on
remand.
IV. McDaniel’s Tameny Cause of Action
McDaniel’s ninth cause of action is for wrongful
termination in violation of public policy. In Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167 (Tameny), the California
Supreme Court “recognized that although employers have the
power to terminate employees at will, they may not terminate an
employee for a reason that is contrary to public policy.” (Little v.
Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1076.) “[E]mployees
who assert Tameny claims must show that the important public
interests they seek to protect are ‘tethered to fundamental
policies that are delineated in constitutional or statutory
provisions.’ ” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th
66, 71.)
Here, McDaniel bases his Tameny cause of action on
defendants’ alleged violations of both the FEHA and the CFRA.
To the extent McDaniel’s Tameny cause of action is based on the
FEHA, it fails for the reasons stated above. Likewise, to the
extent McDaniel’s Tameny cause of action is based on the CFRA,
the trial court’s order was erroneous.
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In its motion for summary judgment, FlashCo argued that
McDaniel could not prevail on his Tameny claim because he
“voluntarily resigned” from the company. Insperity argued in its
motion that McDaniel’s Tameny cause of action failed because,
among other things, Insperity was not McDaniel’s “employer” and
Insperity was not responsible for “terminating” McDaniel.
The trial court did not address these arguments. On
appeal, the parties only mention these issues in their briefs in
passing, without legal analysis and citation to authorities. We
therefore remand the matter to the trial court to adjudicate in the
first instance defendants’ arguments regarding McDaniel’s
Tameny claim not discussed in this opinion.
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DISPOSITION
The judgment is affirmed with respect to McDaniel’s first,
second, third, fourth, fifth, and eighth causes of action. The
judgment is reversed with respect to McDaniel’s sixth, seventh,
and ninth causes of action and the matter is remanded to the
trial court for further proceedings consistent with this opinion.
The motion for sanctions of respondents FlashCo and Insperity,
dated June 8, 2022, is denied. All parties are to bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J. *
We concur:
RUBIN, P.J.
BAKER, J.
*
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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