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Mark Farmer v. Searles Valley Minerals

December 6, 2010


APPEAL from the Superior Court of San Bernardino County. Kirtland L. Mahlum, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super.Ct.No. CIVBS700564)

The opinion of the court was delivered by: McKinster J.

Farmer v. Searles Valley Minerals CA4/2

Opinion following rehearing


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


The appeal in this case is from the summary judgment entered against Mark Farmer, plaintiff and appellant (plaintiff), and in favor of defendant and respondent Searles Valley Minerals Operations, Inc. (SVM) on plaintiff's complaint seeking damages among other things for wrongful termination of employment in violation of public policy and discrimination based on disability. After we initially affirmed in part and reversed in part, SVM petitioned for rehearing and argued that we had incorrectly analyzed the disability discrimination issue. We now see that we erred and will affirm the summary judgment.


On November 7, 2007, plaintiff filed his original complaint against SVM, Arzell Hale, identified as SVM's executive director of administration, and Raymond Becker, the alleged maintenance supervisor of SVM's Argus facility and plaintiff's supervisor, seeking damages on nine purported theories of recovery including claims based on alleged violations of the Ralph Civil Rights Act and the Bane Civil Rights Act, interference with protected leave under the California Family Rights Act, disability discrimination, and wrongful employment termination. In that pleading, plaintiff alleged, in pertinent part, that SVM is a mining and crystallization company with operations in Trona and Argus. Plaintiff was hired in 1978 by SVM's predecessor, Kerr McGee, and has worked continuously in the Lubrication Department or "lube crew," eventually working his way up to "Senior Maintenance Journeyman/Technician with supervisory authority. First, [p]laintiff was in charge of the Preventative Maintenance Crew and later he was the head of the Lube Crew. Lubrication was a complicated job, requiring trained employees at all times. Plaintiff was in charge of the five trained journeymen on the Lube Crew."

According to the complaint, Becker became plaintiff's supervisor in 2005. Plaintiff alleged, "The only employee that [p]laintiff had difficulties with was Defendant Becker, who let it be known that he had problems with the men on the Lube Crew because of their interest and efforts in unionizing." Plaintiff alleged that Becker had threatened him in 2003 by telling plaintiff to meet him outside the gate where Becker said he would beat up plaintiff. Plaintiff immediately reported the incident to his own supervisor and to human resources. According to plaintiff, as executive director of administration, Hale's responsibilities include human resources, but Hale did not respond to the reported "assault" and neither he nor SVM took any action against Becker.

Plaintiff alleged that after Becker became his supervisor, plaintiff asked Hale for a transfer, but Hale told plaintiff "'to be patient.'" According to plaintiff, "Defendant Becker made being on the lube crew nearly intolerable. He threatened people. Defendant Becker said he would make an example out of the Lube Crew by firing someone and that their family would starve. He took away their good tools, he shifted trained workers out of the lube crew, and he reduced the men on the crew from five to three. Defendant Becker singled out [p]laintiff, the head of the Lube Crew, by moving [him] out of his office and into the tool room and by adding to his list of assigned tasks. Specifically, Defendant Becker made [p]laintiff responsible for checking the twenty-four dumpsters at the plant for hazardous materials, a dangerous and demeaning task, totally unrelated to supervising the Lube Crew. Other workers began calling [p]laintiff a 'dumpster diver,' and a 'dumpster detective,' and asked if he was 'looking for lunch.'"

Plaintiff believed that Becker wanted to give plaintiff's job to someone else. Plaintiff shared his concern with Hale, who confirmed plaintiff's belief. According to his complaint, "Defendant Becker was trying to give [plaintiff's] job away, even though [p]laintiff had been a productive employee . . . for 28 years and a supervisor for 10 years." Plaintiff alleged that Becker's "frightening and demeaning supervision began to have a negative effect on [p]laintiff's physical and mental health." In about July 2006, Becker demoted plaintiff. "Defendant Becker told [p]laintiff that he was demoted because he needed to decide if he was going to be a friend to the workers or their boss. He removed [p]laintiff's supervisory authority and sent him back to machine duty. Defendant Becker also broke from company policy by reducing [p]laintiff's pay; normally with a demotion, an employee will maintain his rate of pay, but not receive any raises until the rate of pay of his new position 'catches up' with his current rate." When plaintiff complained to Hale and again asked for a transfer, Hale ratified plaintiff's demotion and denied the transfer request, explaining there was a transfer freeze in effect because if SVM "let one person transfer from Defendant Becker's supervision, others would surely want to, and the company did not want to deal with it."

On July 11, 2006, plaintiff met with Carol Allan, a representative in SVM's employee assistance program. She recommended plaintiff "see an outside physician, Dr. Lusk." "The doctor proved unavailable" so on July 17, 2006, plaintiff "checked into urgent care" where he was diagnosed with hypertension and ordered off work for a week. On July 25, 2006, plaintiff's medical leave was extended until August 5, 2006. On August 3, 2006, plaintiff saw Dr. Lusk who confirmed the hypertension diagnosis and again extended plaintiff's medical leave. Plaintiff saw Dr. Lusk on September 7, 2006, at which time the doctor added stress-related depression to plaintiff's diagnosis and recommended plaintiff seek treatment from a psychiatrist. On September 11, 2006, Dr. Lusk faxed plaintiff's disability insurance form to SVM. According to that form, Dr. Lusk released plaintiff to return to work on September 18, 2006.*fn1

Through SVM's employee assistance program, plaintiff obtained referrals to a psychologist and psychiatrist. Plaintiff had appointments with both on September 22, 2006. Dr. Garewal, the psychiatrist, diagnosed plaintiff with "major depression." Consistent with that diagnosis, Dr. Garewal completed and faxed to AETNA, SVM's short-term disability administrator, a disability insurance form that ordered medical leave for plaintiff from September 22, 2006, to November 11, 2006. On September 28, 2006, plaintiff received a letter from SVM, signed by defendant Hale, that stated in pertinent part that plaintiff's employment was terminated effective September 27, 2006, because plaintiff did not return to work on September 18, 2006, the date Dr. Lusk released plaintiff to return from medical leave, and plaintiff had not contacted SVM during the intervening 10 days, oversights SVM considered to be "job abandonment."

In May 2007, plaintiff's attorney sent SVM a letter that "detailed the numerous statutory violations committed by [SVM] in its treatment of [p]laintiff." In August 2007, SVM offered to reinstate plaintiff in response to that letter. Plaintiff accepted the reinstatement offer, and arrived at SVM on August 20, 2007, with a medical release that included the "sole accommodation of no overtime until December, 2007." SVM would not allow plaintiff to return to work with the restriction. Plaintiff alleged that SVM refused to engage in the interactive process required by law, and thereby violated plaintiff's rights under the Bane and Ralph Civil Rights Acts, the Fair Employment and Housing Act (FEHA), and the Labor Code.

Based on the foregoing facts, plaintiff purported to allege causes of action for violations of the Bane and Ralph Civil Rights Acts; interference with protected leave under Government Code section 12945.2, the California Family Rights Act (CFRA); discrimination based on disability in violation of the FEHA, Government Code section 12940 et seq.; wrongful termination; retaliation in violation of Labor Code section 6310; interference with the right to organize; assault; and intentional infliction of emotional distress. In their answer, in the form of a general denial under Code of Civil Procedure section 431.30, subdivision (d), Hale, Becker, and SVM asserted 36 purported affirmative defenses, including that the complaint failed to state a cause of action under any theory alleged.

Hale and Becker, neither of whom are parties to this appeal, moved for summary judgment in April 2008, on the ground that they are not personally liable for any of the acts plaintiff alleged in his complaint. The trial court granted their motions and entered judgments in their favor and against plaintiff, accordingly. Plaintiff did not appeal from those judgments.

SVM filed its summary judgment motion in July 2008. Plaintiff then sought leave to file an amended complaint, and the trial court granted that motion. In his amended pleading, filed on September 11, 2008, plaintiff added two purported causes of action based on alleged violations of the FEHA for failing to accommodate plaintiff and failing to engage in the interactive process.

In his opposition to SVM's summary judgment motion, plaintiff did not dispute the lack of evidence to support his allegations regarding the Bane and Ralph Act claims, the assault allegations, and the intentional infliction of emotional distress claim set out as the first, second, eighth, and ninth causes of action in his original complaint. The trial court granted summary adjudication on those four causes of action, accordingly. Although plaintiff asserted that triable issues of material fact existed with respect to his remaining causes of action or theories of recovery, the trial court disagreed with respect to plaintiff's third, fourth, and sixth causes of action that alleged violations of the CFRA, the FEHA, and Labor Code section 6310, respectively. Therefore, the trial court granted summary adjudication in favor of SVM on those three causes of action. With respect to the fifth and seventh causes of action in plaintiff's original complaint, alleging wrongful termination based on violation of the public policy set out in Labor Code section 923, which protects an employee's right to organize, and interference with the right to organize, respectively, the trial court requested further briefing.

In February 2009, SVM filed a motion for summary adjudication on the two new FEHA causes of action plaintiff alleged in his amended complaint. At a hearing on April 28, 2009, the trial court granted summary adjudication on the two new FEHA causes of action and on the wrongful termination and interference with right to organize claims, which were the two causes of action in plaintiff's original complaint on which the court had requested additional briefing. On June 12, 2009, the trial court entered summary judgment in favor of SVM and against plaintiff on plaintiff's first amended complaint.

Plaintiff filed a timely appeal from that judgment.

In our original opinion we affirmed the judgment except with respect to plaintiff's cause of action for employment discrimination based on disability. On that cause of action we concluded a triable issue of material fact existed because plaintiff presented evidence to show that Aetna, SVM's administrator for disability claims, had notice that plaintiff was on disability leave at the time SVM terminated his employment. At oral argument, SVM claimed our analysis was incorrect and that liability for discrimination in violation of the FEHA required actual knowledge of the employee's disability by the person who made the decision to terminate plaintiff's employment. SVM argued that plaintiff had not presented any evidence to show actual knowledge and therefore it was entitled to summary adjudication on the employment discrimination cause of action. When our opinion issued, SVM filed a petition for rehearing on the same ground it had asserted at oral argument--that actual knowledge of the employee's disability by the person making the employment termination decision is required in order to establish a claim for employment discrimination under the FEHA. We granted that petition in order to address and resolve what we now see as the error in the original opinion.


Plaintiff contends that triable issues of material fact exist with respect to his claims under the FEHA that when plaintiff returned to work in August 2007 with a work restriction of no overtime, SVM failed to reasonably accommodate plaintiff and failed to engage in the mandatory interactive process. Plaintiff also contends that a triable issue of material fact exists with respect to whether SVM had notice when it terminated plaintiff's employment that plaintiff suffered from a mental disability and was exercising his right to take CFRA leave. Finally, plaintiff contends a triable issue of material fact exists with respect to whether plaintiff made an unsafe work place claim under Labor Code section 6310. Because we vacated the original opinion in our order granting SVM's rehearing petition we address below each of the issues plaintiff raised in his appeal.



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