Lungin v. Ulta Salon Cosmetics & Fragrance CA4/1

Filed 7/13/21 Lungin v. Ulta Salon Cosmetics & Fragrance CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
REBECCA LUNGIN, D077642
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00058268-CU-WT-CTL)
ULTA SALON COSMETICS &
FRAGRANCE, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Affirmed.
Hewgill Cobb & Lockard, Efaon Cobb and Daria Cortes, for Plaintiff
and Appellant.
Littler Mendelson, Jody A. Landry and Krystal Norris Weaver for
Defendants and Respondents.
Rebecca Lungin sued her former employer, Ulta Salon Cosmetics &
Fragrance, Inc. (Ulta), and two former managers, Rachel Meeker and Julie
Robisch, (collectively, respondents) and alleged, among other claims, that
respondents violated the California Fair Employment and Housing Act
(FEHA) by discriminating against her and failing to provide reasonable
accommodations after she disclosed that she was pregnant.
Following discovery, respondents moved for summary judgment. The
trial court concluded Lungin failed to establish a triable issue of material fact
as to any asserted cause of action, and that Lungin failed to demonstrate a
legally cognizable harm as to the first seven asserted causes of action.
Accordingly, the court granted summary judgment in favor of respondents on
the complaint.
Lungin appeals and asserts she established triable issues of material
fact with respect to the first seven claims in her complaint. Considering the
entirety of the record before us and resolving all doubts in favor of Lungin, we
conclude Lungin has not established a triable issue of material fact and
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Lungin’s Employment at Ulta
Lungin began working for Ulta in June 2017. After some initial
training, Lungin accepted a position as a Beauty Advisor in the Carlsbad
store. The job required Lungin to lift up to 50 pounds, typically on “truck
days” when employees assisted in unloading boxes and pallets from delivery
trucks and placing the items on the retail floor for sale.
Sometime in August, Lungin informed Ulta she was pregnant. On
August 29, 2017, Lungin’s doctor provided a letter, which Lungin provided to
Ulta, indicating Lungin was receiving prenatal care and should be excused
from work on August 29 and 30. The letter stated Lungin could return to
work on August 31 without any restrictions.
On October 11, 2017, Lungin’s doctor provided another letter indicating
Lungin would need certain accommodations to continue working through the
2
remainder of her pregnancy. Specifically, the letter stated Lungin should not
lift, push, or pull anything more than 20 pounds; should not stand for
prolonged periods of time; and should be allowed to take breaks as needed.
Lungin gave the letter to Ulta during her next shift. Thereafter, Ulta
scheduled Lungin to meet the requested accommodation. Truck days
typically began with unloading the pallets and boxes at 5:00 a.m., and those
tasks were typically completed by 7:00 a.m. or 8:00 a.m. After October 11,
Lungin started work at 7:00 a.m. on one occasion, at 8:00 a.m. on two other
occasions, and otherwise did not begin a shift before 9:00 a.m.
Approximately one week later, on or around October 18, 2017, Lungin
placed a call to Ulta’s human resources hotline. She complained she was
having difficulties with the general manager and comanager at her store.
Lungin reported the managers mistreated employees and put too much
pressure on employees to encourage customers to sign up for store credit or
rewards cards. In addition, Lungin indicated she had inquired about the lead
cashier position and was told she could not apply for the position because she
was not available on Sundays. The general manager subsequently told
Lungin she would be able to obtain the position if she continued to obtain
sufficient credit card and reward card enrollments. Lungin said she felt they
did not want her in the lead cashier position because she was pregnant.
Lungin did not raise any complaints regarding her request for
accommodation.
In a subsequent letter dated October 30, 2017, Lungin’s doctor
requested that Lungin be permitted to wear flat shoes and have access to a
chair at all times. Lungin gave the letter to Julie Robisch, the general
manager for the Carlsbad store, and Robisch forwarded a copy to the district
manager. In the associated e-mail, Robisch indicated Lungin “used a chair
3
the other day as she was struggling” and further stated, “I want to make sure
that we are adhering to whatever we should be doing for [Lungin],” Human
resources confirmed Lungin was permitted to sit if she needed to do so.
According to Lungin, Robisch and Meeker either refused to allow her to use a
chair or chastised her for using a chair on at least two separate occasions
thereafter, and she had to remind them that human resources had approved
the use of the chair.
Around the same time, in mid- to late October, Lungin requested a
transfer to the Oceanside store. The request was approved and Lungin was
transferred to the Oceanside store in early December 2017. She went on
maternity leave approximately two weeks later. Lungin had no complaints
regarding the provision of requested accommodations while at the Oceanside
store. Following her maternity leave, Lungin voluntarily chose not to return
to work at Ulta based on an inability to find suitable and cost-effective
childcare.
Lungin’s Complaint
In November 2018, Lungin filed a complaint against Ulta,1 Meeker,
and Robisch. Therein, Lungin asserted she was hired by Ulta as a Beauty
Advisor at the Carlsbad store in June 2017 and was initially recognized for
her top performance. Approximately four months later, in October, Lungin
disclosed that she was pregnant and provided documentation of her work
restrictions from her doctor, which included not lifting anything over 10
pounds, access to a chair at all times, and the ability to wear flat shoes.
The complaint further alleged that, despite Lungin’s requests, Ulta
continued to schedule her for weekend shifts during which she was required
1 The complaint initially named Ulta Beauty Cosmetics, LLC as a
defendant, but Lungin later amended the complaint to replace Ulta Beauty
Cosmetics, LLC with Ulta Salon, Cosmetics & Fragrance, Inc.
4
to lift 15-pound boxes. When Lungin told her managers that the lifting
exceeded her restrictions, they disregarded her. They also denied her request
to use a chair and chastised her for moving slowly and being unable to stand
for an extended period of time. Lungin requested a transfer to a different
location based on her managers’ refusal to provide accommodations. Ulta
failed to acknowledge the request for approximately two months, but
ultimately moved her to a different store.
Based on these allegations, Lungin asserted the following nine causes
of action: violation of FEHA, hostile work environment (Gov. Code,2 § 12940,
subd. (j)); violation of FEHA, disability discrimination (§ 12940, subd. (a));
violation of FEHA, gender discrimination (§ 12940, subd. (a)); violation of
FEHA, failure to engage in an interactive process (§ 12940, subd. (n));
violation of FEHA, disability discrimination due to failure to provide a
reasonable accommodation (§ 12940, subd. (m)); violation of FEHA,
retaliation (§ 12940, subd. (j)); violation of FEHA, failure to prevent
discrimination (§ 12940, subd. (k)); wrongful termination in violation of
public policy3; failure to provide meal and rest periods (Lab. Code, §§ 218.5,
218.6, 226.7, 512).
Lungin attached a right to sue letter issued by the Department of Fair
Employment and Housing (DFEH) in November 2018 as an exhibit to the
complaint. In the associated DFEH complaint, Lungin alleged she was
discriminated against based on her gender, that she was denied
accommodations based on her pregnancy, and that she was denied a work
2 All further statutory references are to the Government Code, unless
otherwise noted.
3 Lungin subsequently dismissed this claim and, accordingly, it is not at
issue in the present appeal.
5
environment free of discrimination. In addition, she asserted she experienced
retaliation based on her request for accommodations.
Respondents entered a general denial and asserted a number of
affirmative defenses, including failure to exhaust administrative remedies.
Summary Judgment Proceedings
Approximately one year later, following discovery, respondents filed a
motion for summary judgment. Respondents asserted Lungin could not prove
at least one element of each of the asserted claims in light of admissions she
made during her deposition and in verified responses to written
interrogatories, that Lungin failed to exhaust her administrative remedies as
to certain claims, and that Lungin failed to establish any harm with respect
to claims one through seven.
In support of their motion, respondents submitted a separate statement
of undisputed facts and several declarations. Respondents also provided
Lungin’s responses to “Form Interrogatories—Employment Law” and
excerpts from the depositions of Lungin and Brittany Ludwig.
Ludwig was a manager at Ulta from February 2017 to September 2017.
Ludwig and Lungin confirmed that truck days began with unloading pallets
from the truck at 5:00 in the morning. Ludwig said the boxes were typically
off the pallets by 7:00 or 8:00, and she would try to schedule Lungin to start
later than that so Lungin would not have to lift the heavy boxes.
Devon Byrne, Ulta’s vice president of human resources, provided a copy
of Lungin’s time punch records, which confirmed Lungin did not start work
before 7:00 a.m. after October 2, 2017. He also set forth the various
discrimination, harassment, and retaliation policies and procedures in place
at Ulta during the relevant period and provided copies of the written policies
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and an e-mail documenting a call Lungin made to the human resources
hotline.
Robisch also provided a declaration. She provided a copy of the e-mail
she sent to the district manager regarding Lungin’s request to use a chair
and said she did not see any issue with the accommodations Lungin
requested.
Opposition to the Motion for Summary Judgment
Lungin opposed the motion and the separate statement of undisputed
facts. In her opposition papers, Lungin relied primarily on excerpts of her
deposition and the depositions of Ludwig and Alexis Braunreiter, as well as
unsigned, unverified e-mail statements and text messages from various Ulta
employees.
At her own deposition, Lungin said that she lifted a box in excess of 20
pounds on at least one occasion “because there was no one else to do it at the
moment.” In addition, she said she was not provided a chair “for the longest
time” after she provided the letter from her doctor and that her managers
told her she could not use a chair on at least two occasions.
Ludwig testified other managers continued to schedule Lungin to work
on truck days and she heard another manager say it was good for Lungin to
lift boxes in excess of 20 pounds. Ludwig stated she was aware of Lungin’s
lifting restrictions based on a letter from Lungin’s doctor, which she believed
she received in August 2017. However, when counsel showed her the letter
from Lungin’s doctor dated August 29, she could not explain why it said
Lungin could return to work without restrictions and admitted she no longer
worked at Ulta by October 2017.
Braunreiter was a Beauty Advisor with Ulta and worked with Lungin
in the Carlsbad store. Braunreiter said she knew Lungin was restricted from
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lifting heavy boxes, but she never worked with Lungin on a shipment day
once Lungin was visibly pregnant. She never saw Lungin use a chair while
working at the register. She heard Lungin request a chair, and heard from
others that management refused the request, but she never personally
witnessed anyone telling Lungin she could not have a chair. She also never
heard management deny Lungin a break but did hear them delay her breaks
sometimes when the store was busy.
Evidentiary Objections and Trial Court Ruling
Respondents provided written objections to the exhibits and deposition
testimony submitted by Lungin. In particular, respondents asserted much of
the evidence presented was irrelevant to the claims presented by Lungin, and
that Lungin could not rely upon the testimony of another witness to create an
issue of fact regarding her own previous admissions. In addition,
respondents asserted the unsigned e-mail statements and text messages
lacked foundation and were not admissible. The trial court ruled separately
on the objections and sustained the vast majority of them.
After hearing argument, the trial court concluded Lungin had not
established a triable issue of fact as to any of the asserted claims and granted
summary judgment in favor of respondents.
Lungin appeals.
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DISCUSSION
Lungin asserts the trial court erred in granting summary judgment
and that she did establish a triable issue of fact with respect to the first seven
causes of action asserted in the complaint.4
I. General Legal Principals Governing Summary Judgment
Summary judgment is appropriate when the moving party establishes
there is no triable issue of material fact and that the moving party is entitled
to judgment as a matter of law. (Aguilar v. Atlantic Richfield Company
(2001) 25 Cal.4th 826, 850 (Aguilar).) A triable issue of material fact exists if
the evidence would allow a reasonable trier of fact to make a factual finding
that is necessary under the pleadings in favor of the party opposing the
motion. (Id. at pp. 843, 850.) The court may not weigh the evidence and
must deny the motion if the evidence presented by the opposing party, or any
inferences reasonably drawn therefrom, raises any triable issue of material
fact. (Id. at p. 856.)
Where, as here, a defendant moves for summary judgment, the
defendant has the initial burden of presenting evidence sufficient to establish
the plaintiff either cannot prove at least one element of each asserted cause
of action, or that there is a complete defense. (Code Civ. Proc., § 437c, subd.
(p)(2); Aguilar, supra, 25 Cal.4th at p. 853.) If the defendant does so, the
burden shifts to the plaintiff to present evidence demonstrating there is a
4 Lungin initially included her ninth cause of action for meal and rest
break violations, but subsequently stipulated she had agreed to release such
claims in connection with a class action settlement. Respondents relied on
that representation in their responsive briefing and Lungin did not file a
reply brief. Accordingly, we do not address Lungin’s arguments with respect
to the ninth cause of action.
9
triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar,
supra, at p. 850.)
On appeal from a summary judgment, we apply the same legal
standard as the trial court and independently assess the correctness of the
trial court’s ruling. (Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 231 (Moore).) We first identify the issues framed by the
pleadings. (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4
Cal.App.5th 608, 617 (Pierson).) We determine whether respondents, as the
moving party, have established facts justifying judgment in their favor and, if
so, determine whether Lungin, as the nonmoving party, has demonstrated a
triable issue of material fact with respect to any issue or defense raised by
respondents. (Id. at pp. 617–618.)
In conducting that analysis, we consider all the evidence set forth in
the moving papers and the opposition, but do not consider any evidence to
which objections have been made and properly sustained. (Code Civ. Proc.,
§ 437c, subd. (c); Pierson, supra, 4 Cal.App.5th at p. 618; Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).) Like the trial court, we
consider the evidence in the light most favorable to Lungin, scrutinize
respondents’ evidentiary showing, and make all reasonable inferences and
resolve all evidentiary doubts in favor of Lungin. (Pierson, at p. 618;
Yanowitz, at p. 1037.)
II. Analysis
A. Evidentiary Issues
As an initial matter, respondents assert Lungin continues to rely on
evidence previously rejected by the trial court, and that this court should not
consider any evidence for which the trial court sustained objections. We
agree.
10
Although we apply a de novo standard of review on appeal, our review
of the evidence is limited by the evidentiary rulings of the trial court. (See
Yanowitz, supra, 36 Cal.4th at p. 1037; State Dept. of Health Services v. Sup.
Ct. (McGinnis) (2003) 31 Cal.4th 1026, 1035; Guz v. Bechtel Nat’l, Inc. (2000)
24 Cal.4th 317, 334.) Here, respondents provided written objections to
numerous pieces of evidence submitted by Lungin in support of her
opposition to the motion for summary judgment, and the trial court sustained
a number of those objections. Most notably, the trial court sustained
objections to the unsigned, unverified e-mail statements and text message
screenshots submitted by Lungin. (See Gonzalez v. Kalu (2006) 140
Cal.App.4th 21, 25, fn. 2 [unsigned declaration is not admissible evidence as
required to support opposition to summary judgment motion].) Lungin
continues to rely on this evidence on appeal, but does not dispute, or even
acknowledge, the trial court’s evidentiary rulings.
As Lungin does not contest the evidentiary rulings of the trial court on
appeal, we will not consider any of the evidence for which the trial court
sustained objections.
B. Lungin Has Not Established a Triable Issue of Material Fact with
Respect to any Asserted Claim
1. First Cause of Action: Hostile Work Environment
The first cause of action in Lungin’s complaint asserts a hostile work
environment in violation of section 12940, subdivision (j).
Section 12940, subdivision (j)(1) makes it unlawful for an employer to
harass an employee because of a physical disability or medical condition.
(§ 12940, subd. (j)(1).) A hostile work environment claim is one theory upon
which a plaintiff may prove harassment in violation of section 12940,
subdivision (j). (See Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 461–
462 (Miller). “[T]o prevail, an employee claiming harassment based upon a
11
hostile work environment must demonstrate that the conduct complained of
was severe enough or sufficiently pervasive to alter the conditions of
employment and create a work environment that qualifies as hostile or
abusive to employees.” (Miller, at p. 462; see also Aguilar v. Avis Rent A Car
Sys. Inc. (1999) 21 Cal.4th 121, 129–131.)
a. Lungin Admitted She Was Not Subjected to Unlawful
Harassment
In her complaint, Lungin alleged she was subjected to “unwanted
harassing conduct that was both severe and pervasive because of her gender
and pregnancy,” and that “Robisch and Meeker participated in and caused
the harassing conduct.” However, Lungin subsequently denied those
allegations in response to respondents’ “Form Interrogatories—Employment
Law.” Specifically, Interrogatory No. 203.1 asked whether Lungin contended
that she was “unlawfully harassed” in her employment and, if so, asked her
to set forth the details of any such contention. In her verified response,
submitted on October 28, 2019, Lungin stated, “No” and did not provide any
response to any of the related subsections seeking additional detailed
contentions. As the trial court concluded, in the context of the motion for
summary judgment, Lungin was bound by this and other admissions she
made during discovery. (See Visueta v. General Motors Corp. (1991) 234
Cal.App.3d 1609, 1613 (Visueta) ; D’Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1, 22 (D’Amico).)
Lungin asserts the trial court erred in relying on Visueta because the
admission at issue in Visueta was made at deposition, and not in written
discovery responses. (See Visueta, supra, at p. 1613.) However, nothing in
Visueta limits the general rule to deposition testimony and, to the contrary,
the court in Visueta, and the trial court in this case, relied on D’Amico, in
which the court specifically addressed admissions made in the context of
12
written discovery. (Visueta, supra, at p. 1613, D’Amico, supra, 11 Cal.3d at
pp. 10–11, 22–23, fn. 17; see also Rivera v. Southern Pacific Trans. Co. (1990)
217 Cal.App.3d 294, 299 [finding no issue of material fact based on plaintiff’s
answer to interrogatories].)5
Lungin further asserts, without authority, that even if we apply the
“D’Amico rule,” we should credit her deposition testimony and the testimony
of numerous other witnesses over her response to an “outlier response to a
vague, ambiguous, and overbroad Form Interrogatory.” As previously
discussed, the trial court sustained objections to much of the evidence Lungin
relies upon. Moreover, the interrogatory at issue was part of the Judicial
Council approved set of “Form Interrogatories—Employment Law” and
Lungin does not explain how the interrogatory at issue was vague,
ambiguous, or overbroad. (See Code Civ. Proc., § 2033.710.) It is clear on the
face of the document the form interrogatories are intended to provide
additional detail on the scope of the plaintiff’s claims, and the interrogatory
at issue clearly related to claims based on harassment under FEHA. Despite
this, and despite including a claim for hostile work environment in the
complaint, Lungin provides no explanation for denying the existence of
unlawful harassment or failing to provide any further detail regarding her
claims in her response. (Compare Mason v. Marriage & Family Ctr. (1991)
228 Cal.App.3d 537, 546 [triable issue of fact established despite admission in
interrogatory response where plaintiff adequately explained the error].)
5 Lungin also asserts respondents mischaracterize the court’s holding in
Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510 (Scalf) regarding
the effect of admissions made during discovery. We need not address this
assertion as the trial court did not rely on Scalf, and neither do we.
13
We therefore conclude Lungin is bound by her response to the
interrogatory and, accordingly, cannot establish a claim for harassment in
violation of FEHA. (See D’Amico, supra, 11 Cal.3d at p. 22.)
b. The Alleged Conduct Was Not Sufficiently Severe or
Pervasive
Even if we were to consider the merits of Lungin’s hostile work
environment claim, we would conclude Lungin has not established a triable
issue of material fact because the alleged conduct was not sufficiently severe
or pervasive. (See Miller, supra, 36 Cal.4th at p. 462.)
Indeed, Lungin herself characterizes much of the alleged conduct as
“passive micro-aggressions.” She asserts her managers used negative body
language, responded with short answers or a curt voice, and rolled their eyes
at her requests. None of those actions are sufficiently severe or pervasive to
create a hostile work environment. (See Ibid.; Aguilar v. Avis Rent A Car
Sys. Inc., supra, 21 Cal.4th at pp. 129–131; Mokler v. County of Orange (2007)
157 Cal.App.4th 121, 142 [plaintiff must prove conduct interfered with work
performance and would have seriously affected the psychological well-being of
a reasonable employee].) Further, much of the other conduct Lungin
identifies—such as asking Lungin to work faster or praising the
accomplishments of other employees—is conduct within the scope of common
managerial tasks and, thus, does not constitute harassment as a matter of
law. (See Reno v. Baird (1998) 18 Cal.4th 640, 646–647 [acts commonly
necessary for personnel management may result in discrimination, but not
harassment].)
Lungin’s only remaining allegation is that her managers denied her the
use of a chair “[i]n a couple instances.” This is not sufficient to create a
hostile work environment but, even if it were, we conclude post in the context
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of Lungin’s failure to accommodate claims that the undisputed evidence
indicates Ulta did ultimately provide Lungin access to a chair as needed.
c. Lungin Failed to Exhaust Her Administrative Remedies
Further, respondents assert, and the trial court concluded, Lungin
failed to exhaust her administrative remedies with respect to this particular
cause of action. To exhaust administrative remedies in the context of a
FEHA claim, the plaintiff must specify the particular unlawful act forming
the basis of the claim in the DFEH complaint. (See §§ 12960, subd. (d),
12965, subd. (b); Okoli v. Lockheed Technical Operations Co. (1995) 36
Cal.App.4th 1607, 1613 (Okoli).) Here, Lungin did not identify harassment
or a hostile work environment as a basis for her DFEH complaint.
Lungin contends it was sufficient that she alleged she was denied a
workplace free of discrimination and/or retaliation. However, under FEHA,
discrimination and retaliation are separate and distinct causes of action from
harassment and hostile work environment. (See Roby v. McKesson Corp.
(2009) 47 Cal.4th 686, 708–709; Miller, supra, 36 Cal.4th at pp. 460–466.)
While acts of discriminatory intimidation, ridicule, and insult may be
sufficient to form a claim for harassment or hostile work environment
pursuant to FEHA, allegations of discrimination or retaliation, without more,
are not. (See Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409;
Miller, at pp. 460–466.)
Accordingly, we agree with respondents and the trial court that Lungin
failed to exhaust her administrative remedies with respect to her hostile
work environment claim.
2. Second and Third Causes of Action: Disability and Gender
Discrimination
Lungin’s second and third causes of action are for disability
discrimination and gender discrimination in violation of section 12940,
15
subdivision (n). We address these claims together as both are based on the
fundamental allegation that Ulta discriminated against Lungin because of
her pregnancy. (§ 12926, subd. (r)(1) [“sex,” or gender, under FEHA includes
pregnancy and childbirth].)
Discrimination claims pursuant to FEHA are analyzed under the
burden-shifting approach set forth in McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203,
214 (Harris); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz);
Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181
(Husman)). The “plaintiff has the initial burden to make a prima facie case of
discrimination by showing that it is more likely than not that the employer
has taken an adverse employment action based on a prohibited criterion. A
prima facie case establishes a presumption of discrimination. The employer
may rebut the presumption by producing evidence that its action was taken
for a legitimate, nondiscriminatory reason. If the employer discharges this
burden, the presumption of discrimination disappears. The plaintiff must
then show that the employer’s proffered nondiscriminatory reason was
actually a pretext for discrimination, and the plaintiff may offer any other
evidence of discriminatory motive. The ultimate burden of persuasion on the
issue of discrimination remains with the plaintiff.” (Harris, at pp. 214–215;
see also Guz, at pp. 354–356.)
Respondents assert, and the trial court concluded, summary judgment
is appropriate with respect to each of Lungin’s discrimination causes of action
because Lungin failed to establish that she suffered an adverse employment
action. (See Husman, supra, 12 Cal.App.5th at p. 1181; Featherstone v.
Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150,
16
1158 [trial court properly granted summary judgment where plaintiff failed
to establish an adverse employment action].)
In the complaint, Lungin alleged Ulta refused to accommodate her
pregnancy, refused to approve her transfer to the Oceanside store for almost
two months, and subjected her to harassing conduct. In responses to the
“Form Interrogatories—Employment Law,” Lungin identified the following
two adverse employment actions: 1) respondents’ refusal and failure to
provide pregnancy related accommodations, and 2) respondents failure to
provide all rest and meal breaks owed under the law. In a related
interrogatory response, Lungin further alleged Meeker continued to schedule
her on truck days, other managers required her to lift boxes over 20 pounds,
and Robisch refused to let her use a chair on the salesfloor and insisted that
she walk back to the break room after she nearly fainted.
In response to the motion for summary judgment, however, Lungin
asserted she suffered “various adverse employment actions after disclosing
that she was pregnant, such as discriminatory intimidation (her managers
attitudes towards Plaintiff deteriorated more and more with each request for
accommodation), refusal of a deserved promotion, disproportionate
monitoring or targeting and overscrutinization [sic], among other things.” In
her briefing on appeal, Lungin focuses solely on the assertion that Ulta
refused to consider her for a promotion to the position of lead cashier.
As with her hostile work environment claim, Lungin is limited by the
allegation in the complaint and the disclosures made in her written discovery
responses. (See Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th
at p. 850; Pierson, supra, 4 Cal.App.5th at pp. 617–618; Visueta, supra, 234
Cal.App.3d at p. 1613; D’Amico, supra, 11 Cal.3d at p. 22.) Specifically,
Lungin did not identify failure to promote as an adverse employment action
17
in her complaint or her written discovery responses and has not provided any
explanation for the omission.
Regardless, even if we were to consider the record before us with
respect to Lungin’s contention that she was denied a promotion because of
her pregnancy, we would conclude Lungin has not established a triable issue
of material fact. To establish a prima facie claim for discrimination based on
failure to promote, Lungin had to prove that she did everything that was
required of her as an applicant and met all of the qualifications of the
position but still was not hired. (See Levy v. Regents of University of
California (1988) 199 Cal.App.3d 1334, 1347.) Lungin asserts Robisch’s
explanation that she was not qualified because she did not work on Sundays
was clear pre-text, but Lungin does not provide a job description or any other
evidence regarding the actual qualifications for the position or indicating she
met those qualifications. Further, despite testifying that other managers told
her she was qualified for the position, Lungin does not allege, let alone
present evidence, that she made any formal attempt, or otherwise did all that
was necessary, to apply to the position. In fact, her own testimony indicates
she was not really looking for a promotion and was not sure whether she was
qualified.
Similarly, even if considered, Lungin’s remaining assertions are also
insufficient to establish an adverse employment action. An act or omission
“that is merely contrary to the employee’s interests or not to the employee’s
liking” does not constitute an adverse employment action. (Malais v Los
Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357–358 (Malais).)
Instead, the act or omission must have a material and detrimental effect on
the terms, conditions, or privileges of the plaintiff’s employment. (Id. at p.
358; Holmes v. Petrovich Developments Co., LLC (2011) 191 Cal.App.4th
181047, 1063 (Holmes).) Here, Lungin makes vague allegations regarding
discriminatory intimidation, disproportionate monitoring, targeting, and
overscrutinization, and “other things” but, as with her claim for harassment,
she has not made a prima facie showing that any of these had a substantial
or detrimental impact on the terms, conditions, or privileges of her
employment. (See Malais, supra, 150 Cal.App.4th at pp. 357–358; Holmes, at
p. 1063 [minor or trivial adverse actions that are likely to do no more than
anger or upset an employee are not adverse employment actions].)
Lungin’s remaining allegations relate more directly to her failure to
accommodate claim, which we address post, and her failure to provide
adequate meal and rest breaks claim, which she no longer asserts. (See
Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092,
1107 (Brown) [declining to construe failure to accommodate allegations as
adverse employment actions sufficient to support a discrimination claim].)
Accordingly, we conclude Lungin has not presented a triable issue of
material fact with respect to her claims for gender or disability
discrimination.
3. Fourth and Fifth Causes of Action: Failure to Engage in the
Interactive Process and Failure to Accommodate
In her fourth and fifth causes of action, Lungin asserted Ulta failed to
engage in the interactive process in violation of section 12940, subdivision (n)
and failed to provide reasonable accommodations in violation of section
12940, subdivision (m). We address these claims together as well.
Once an employee notifies her employer of a disability, the employee
has a duty to cooperate with the employer and to explain his or her disability,
and the employer has a duty to take positive steps to provide a reasonable
accommodation for any associated limitations. (Brown, supra, 60
Cal.App.5th at p. 1108.) “A ‘reasonable accommodation’ [is] a modification or
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adjustment to the workplace that enables the employee to perform the
essential functions of the job held or desired.” (Ibid.)
“Reasonable accommodation thus envisions an exchange between
employer and employee where each seeks and shares information to achieve
the best match between the employee's capabilities and available positions.
[citation] If a reasonable accommodation does not work, the employee must
notify the employer, who has a duty to provide further accommodation.”
(Brown, supra, 60 Cal.App.5th at p. 1108.) An employer violates section
12940, subdivision (n) if the employer fails to engage in a good faith
interactive process with the employee to determine an effective reasonable
accommodation. (Id. at p. 1109; § 12940, subd. (n).)
“Failure to accommodate and failure to engage in the interactive
process are separate, independent claims involving different proof of facts.
The purpose of the interactive process is to determine what accommodations
is required. Once a reasonable accommodation has been granted, then the
employer has a duty to provide that reasonable accommodation.” (Brown,
supra, 60 Cal.App.5th at p. 1109.) The employer violates section 12940,
subdivision (m) if it fails to actually provide the agreed upon accommodation.
(Ibid.; § 12940, subd. (m).)
Here, Lungin asserts Ulta did not engage in the interactive process in
good faith and did not provide reasonable accommodations and, instead,
effectively ignored her requests. Specifically, she asserts respondents
continued to schedule her for truck days, regularly required her to lift over 20
pounds, did not allow and/or chastised her for using a chair, and spoke
negatively about her when she needed to take time off for a doctor’s
appointment. As the trial court concluded, the undisputed evidence
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established Ulta engaged in the interactive process and provided reasonable
accommodations to Lungin with respect to each of these assertions.
a. Lungin’s Lifting Restriction
It is undisputed that Lungin was aware the beauty consultant position
required her to lift up to 50 pounds and that Lungin’s doctor initially stated
that she was able to work without any restrictions. Thus, any lifting Lungin
may have done during this initial period of employment at Ulta, even while
pregnant, is not relevant. Instead, we focus our analysis on events that
occurred after October 11, 2017, when Lungin first provided notice to
respondents regarding her need for an accommodation.
After providing the note, Lungin asserts she requested that she either
not be scheduled for truck days or that she be assigned work that did not
require her to lift more than 20 pounds. The undisputed evidence indicates
respondents complied with Lungin’s request.
Truck days typically began at 5:00 a.m. and the heavy boxes were
typically off the pallets by 7:00 a.m. or 8:00 a.m. Lungin’s verified time
records indicate that, as of October 11, 2017, she was generally scheduled to
begin work at or after 9:00 a.m. On one occasion, she began work at 7:00 a.m.
and on two other occasions, she began work at 8:00 a.m., but Lungin presents
no evidence suggesting these were truck days or that she was asked to unload
heavy boxes on any of these three occasions. To the contrary, Lungin herself
testified that there were jobs that did not require heavy lifting even on truck
days, such as sorting smaller containers of makeup into bins. These tasks
were generally done an hour and a half after the unloading of pallets, which
began at 5:00 a.m.
Lungin asserts Ulta ignored her request because she was still
scheduled to work on truck days. Even if true, though, that fact alone is not
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sufficient to establish a failure to accommodate. Lungin request to not work
truck days or that she be assigned work on a that did not require her to life
more than 20 pounds. Ulta accommodated that request by scheduling her to
begin work on truck days after the heavy lifting was complete.
Lungin also asserts she lifted more than 20 pounds while working at
Ulta after October 11, 2017, but she presents no credible evidence indicating
Ulta required her to do so. At her deposition, Lungin stated she lifted an
item over 20 pounds “[b]ecause there was no one else to do it.” On one
occasion, she let her coworker know she could not lift a box because it was too
heavy, and the coworker lifted it for her. On another occasion, she said she
told Meeker a box was too heavy for her to lift and Meeker said, “Okay. We
need to get this box to the back, because the store is about to open.” Rather
than asking someone else for assistance, Lungin lifted the box herself and
brought it to the back. On yet another occasion, Lungin was asked to push a
cart, on wheels, containing more than 20 pounds of shampoo and conditioner.
Lungin asked if she could use a smaller dolly to move fewer items at a time
and Meeker told her she could use a basket that had been provided to carry a
smaller number of items. When that was still too heavy, Robisch allowed her
to use a smaller cart. Even viewing the evidence in the light most favorable
to Lungin, Lungin was not required to lift, push, or pull an item over 20
pounds in any of these circumstances.
Lungin also relies on the testimony of Ludwig and Braunreiter, but
neither present a triable issue of fact on this issue. Ludwig did not work at
Ulta at all after October 11, 2017, and Braunereiter said she never worked a
truck day with Lungin and never actually witness Lungin lift more than 20
pounds.
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Accordingly, Lungin has not raised a triable issue of material fact with
respect to Ulta failing to accommodate her lifting restrictions. Further, while
failure to engage in an interactive process is a separate cause of action, the
purpose of the associated process is to determine what accommodations are
required. (Brown, supra, 60 Cal.App.5th at p. 1109.) Here, once Lungin
presented her request for an accommodation precluding her from having to
lift more than 20 pounds, respondents granted the request and provided the
accommodation. (Ibid.) No further interactive process was necessary.
b. Access to a Chair
On October 20, 2017, Lungin provided a second doctor’s note to Ulta
requesting that she have access to a chair at all times. Again, the
uncontroverted evidence establishes Ulta accommodated this request.
In the motion for summary judgment, respondents asserted Lungin
always had access to a chair after October 30, 2017. They relied upon a
declaration from Robisch in which Robisch stated she did not see a problem
in accommodating Lungin’s request to have access to a chair at all times,
along with a copy of the e-mail Robisch sent indicating she wanted to “make
sure that we are adhering to whatever we should be doing for [Lungin].” In
addition, respondents pointed to Lungin’s deposition, in which she conceded
that human resources told her she was permitted to sit if she needed to and
that she did sit down in the break room while working.
In response, Lungin provided an unsigned e-mail from a coworker at
Ulta, for which the trial court sustained an objection, and her own deposition
testimony. In the cited deposition testimony, counsel asked Lungin if she
was provided a chair once human resources confirmed she was permitted to
sit when needed. Lungin responded, “Not for the longest time. And then we
had to come back to me giving this note. And I had to mention, like, ‘If you
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guys don't believe me, just call HR. They're the ones that said, if I have this
note, that I'm okay. I'm okay to work with a chair if I need it.’ ”
Although Lungin may have needed to remind her managers of the
accommodation, the uncontroverted evidence indicates Lungin did have
access to a chair thereafter. At her deposition, Lungin explained that she
“grabbed a chair” on one occasion when she realized she needed it, suggesting
the chair was nearby and within reach. Although she was initially told she
could not have a chair, Lungin testified she stated, “[a]ctually, I can have a
chair,” and there is no indication she was not permitted to sit thereafter, or
that she ever informed Ulta that her managers were not complying with the
accommodation. On another occasion, Lungin said she sat down in a chair
that a coworker provided after nearly fainting. She said Robisch told her a
few minutes later that she could not have the chair “there”—presumably, at
the register—and asked her to take her break in the break room. When
Lungin returned, Robisch permitted her to sit in a chair at the register for
the remainder of the day. Thus, Lungin’s own testimony indicates that, while
there may have been some disagreement about where she could use a chair,
she was ultimately provided access to a chair as needed.
The only contrary evidence is Lungin’s vague statement that she was
not permitted to use a chair “for the longest time” after speaking with human
resources. However, such conclusory statements alone are insufficient to
raise a trial issue of material fact to defeat summary judgment. (See Shugart
v. Regents of University of Cal. (2011) 199 Cal.App.4th 499, 508.) Moreover,
the mere fact that Lungin initially had to remind her managers that human
resources had approved the requested accommodation did not result in
serious mental or physical consequences and does not equate to a failure to
engage in the interactive process or to provide the accommodation. The
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uncontroverted evidence indicates human resources granted Lungin’s request
for accommodation, and that Lungin was ultimately permitted access to and
use of a chair in each alleged instance.
Accordingly, we conclude that Lungin has not raised a triable issue of
material fact with respect to Ulta failing to engage in the interactive process
or failing to accommodate Lungin’s request to have access to a chair.
c. Medical Appointments
Lungin also asserts Ulta failed to accommodate her because her
managers spoke negatively about her when she needed to take time off for a
doctor’s appointment. Lungin has not previously raised this assertion in the
context of her failure to engage in the interactive process or failure to
accommodate claims and relies solely on inadmissible evidence to support the
assertion. Regardless, Lungin does not allege, or provide any evidence to
suggest, she was not permitted to take time off to attend necessary doctor’s
appointments. Even taking her allegation as true, a manager speaking
negatively about her need to take time off does not give rise to a cause of
action for failure to engage in the interactive process or failure to
accommodate.
d. Transfer to Oceanside
Although not specifically raised on appeal, Lungin previously alleged
she requested transfer for the Oceanside store in mid- to late-October at least
in part because Meeker and Robisch refused provide the accommodations she
had requested. Lungin never told anyone at Ulta that her request to transfer
was at all related to her need for accommodation, but, regardless, she was
transferred to the Oceanside location in early December, less than two
months after she made the request. Lungin concedes she had no further
complaints regarding the provision of accommodations after the transfer.
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Thus, even if we were to conclude that Meeker or Robisch failed to implement
the approved accommodations, Ulta ultimately provided the requested
accommodations by transferring Lungin to the Oceanside store.
Accordingly, Lungin failed to establish a triable issue of material fact
and summary judgment was appropriate for both the fourth and fifth
asserted causes of action.
4. Sixth Cause of Action: Retaliation
The sixth cause of action in Lungin’s complaint is for retaliation in
violation of section 12940, subdivision (h).
The three-step McDonnell Douglas burden shifting framework
discussed above with respect to the discrimination claims in Lungin’s second
and third causes of action also applies to claims of retaliation. (See Yanowitz,
supra, 36 Cal.4th at p. 1042.) Accordingly, to prove the claim, Lungin needed
to establish the existence of an adverse employment action. (Ibid.)
In the context of retaliation claims, an adverse employment action is
one that materially affects the conditions, or privileges of employment.
(Yanowitz, supra, 36 Cal.4th at p. 1060.) “Minor or relatively trivial adverse
actions or conduct by employers or fellow employees that, from an objective
perspective, are reasonably likely to do no more than anger or upset an
employee cannot properly be viewed as materially affecting the terms,
conditions, or privileges of employment and are not actionable, but adverse
treatment that is reasonably likely to impair a reasonable employee's
job performance or prospects for advancement or promotion falls within the
reach of the antidiscrimination provisions of [section 12940, subdivision (h).]”
(Id. at pp. 1054–1055.)
As with her claims for discrimination, Lungin asserts she was denied a
promotion to lead cashier based on her pregnancy and pregnancy related
26
accommodation requests.6 As with her discrimination claim, Lungin did not
identify failure to promote prior to her response to the motion for summary
judgment and, thus, cannot rely upon it now. (See Code Civ. Proc., § 437c,
subd. (c); Aguilar, supra, 25 Cal.4th at p. 850; Pierson, supra, 4 Cal.App.5th
at pp. 617–618; Visueta, supra, 234 Cal.App.3d at p. 1613; D’Amico, supra, 11
Cal.3d at p. 22.)
In addition, Lungin relies solely on her own testimony, and evidence to
which the trial court sustained objections. For the same reasons as discussed
ante, Lungin has not presented prima facie evidence establishing she was
qualified for the lead cashier position, that the individual that received the
position was not more qualified, or that she was denied the opportunity to
apply to the position at all, let alone based on her pregnancy or request for
accommodation.
Accordingly, Lungin has not presented a triable issue of material fact
with respect to her claim for retaliation.
5. Seventh Cause of Action: Failure to Prevent Discrimination,
Retaliation, and/or a Hostile Work Environment
Lungin’s seventh cause of action is for failure to prevent discrimination,
retaliation, and/or a hostile work environment. As we have already
concluded Lungin did not establish a triable issue of material fact with
respect to her discrimination, retaliation, and hostile work environment
claims, the same conclusion necessarily follows with respect to this cause of
action. (See Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307,
1314.)
6 In the complaint, Lungin asserted she was wrongfully termination as a
result of her request for accommodations but, as previously noted, she
subsequently dismissed her wrongful termination claim.
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6. Lungin Has Not Demonstrated a Legally Cognizable Harm for
Any Asserted Claim
As a final matter, the trial court also concluded Lungin failed to
demonstrate a legally cognizable harm with respect to each of the first seven
causes of action. We agree.
In response to the motion for summary judgment, Lungin conceded she
did not suffer any economic damage but alleged she did suffer emotional
distress. However, as the trial court noted, Lungin testified the year after
she resigned from Ulta was the happiest year of her life and admitted “she
did not see a medical professional or take any medication for any alleged
emotional distress that she attributes to Ulta, even though she saw a
therapist for unrelated issues.” Accordingly, the trial court concluded Lungin
also could not establish a legally cognizable claim for damages based on
emotional distress. Lungin does not address this separate basis for summary
judgment in her briefing on appeal and we find no error in the trial court’s
conclusion.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
O'ROURKE, J.
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