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Mark Farmer v. Searles Valley Minerals

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 6, 2010

MARK FARMER, PLAINTIFF AND APPELLANT,
v.
SEARLES VALLEY MINERALS, INC., DEFENDANT AND RESPONDENT.

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

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.

FACTUAL AND PROCEDURAL BACKGROUND

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.

DISCUSSION

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.

1.

SUMMARY JUDGMENT STANDARD OF REVIEW

On appeal, we review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) In making this determination, courts view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at pp. 849, 850-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849, 850-851.) Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. (Aguilar, at p. 850.)

In reviewing the propriety of an order granting summary judgment, we "apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.) If there is no triable issue of material fact, "we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court or first addressed on appeal." (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.)

2.

ANALYSIS

A. Evidence Issues

In addition to the issues previously noted, plaintiff purports to challenge the trial court's rulings sustaining various objections SVM made to plaintiff's evidence in opposition to SVM's summary judgment motions and overruling all but one of plaintiff's nine objections to SVM's evidence in support of its summary judgment motions.*fn2 Plaintiff raises all of his evidence claims in the asserts, "The lower court sustained SVM's objection to Farmer Declaration ¶11, accepting SVM's claim that the statement contradicted Farmer's deposition testimony. However, the supporting citations listed by SVM in its papers do not support the contention, and the court's attempt to explain its rationale for the ruling at oral argument revealed that the court was confused as to the nature of the statement. The ruling was in error and an abuse of discretion."

As the appellant, plaintiff has the burden of demonstrating that error occurred and that the error was prejudicial. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766 [Fourth Dist., Div. Two] ["It is the appellant's burden to demonstrate the existence of reversible error."].) "The burden of proving error is to convince the court, by stating the law and calling relevant portions of the record to the court's attention, that the trial court decision contained reversible error. [Citations.]" (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710 [Fourth Dist., Div. Two].) Plaintiff has not met that burden with respect to his evidence claims. First, plaintiff does not cite any legal authority for his assertions that the trial court's rulings were incorrect. Moreover, although citations to the record on appeal, he nevertheless fails to demonstrate that the trial court's ruling is incorrect. Instead, plaintiff leaves it to this court to retrieve the pertinent information from the record and thereby determine whether the claimed error occurred. Plaintiff raises each of his evidence claims in this same manner.

Plaintiff not only has failed to demonstrate error, he also has not addressed the issue of prejudice. The erroneous admission or exclusion of evidence is only reversible error if it results in a miscarriage of justice, i.e., that a different result is reasonably probable absent the error. (Cal. Const., art. VI, § 13; Evid. Code, §§ 353, 354; see also Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) Because plaintiff has not supported his claims with citations to appropriate legal authority or pertinent facts, we may, and in this case do, deem the claims abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)

For each of the noted reasons, we will not address plaintiff's challenges to the trial court's rulings on the evidence submitted in support of and in opposition to SVM's summary judgment. We deem those claims abandoned and therefore will accept the trial court's rulings as correct.

We now address plaintiff's substantive challenges to the trial court's rulings granting SVM's summary judgment and summary adjudication motions.

B. Employment Termination in Violation of Public Policy

In Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, the California Supreme Court "noted four categories of employee conduct subject to protection under a claim of wrongful discharge in violation of fundamental public policy: '(1) refusing to violate a statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a statutory right or privilege [citation]; and (4) reporting an alleged violation of a statute of public importance [citations].'" (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889.) With the quoted principle in mind, we turn to the pertinent initial inquiry in reviewing a trial court's ruling granting summary adjudication on a wrongful termination of employment claim.

(1.) Step One - Issues Framed by the Pleadings

In his seventh cause of action for employment termination in violation of public policy, plaintiff alleged that SVM terminated his employment in retaliation for plaintiff exercising his rights under various statutes. As pertinent to this appeal, plaintiff alleged that SVM terminated his employment in retaliation for plaintiff (a) exercising his rights under Government Code sections 12940*fn3 et seq., and 12945.2*fn4 to take disability leave and CFRA leave; and (b) exercising his obligation under Labor Code section 6310*fn5 to report unsafe work practices.

(2.) Step Two - SVM's Showing in Support of Summary Judgment

To prevail on its summary judgment motion, SVM had to show that it terminated plaintiff's employment for a legitimate reason, and not one that violated the statutory policies plaintiff alleged in his complaint. To that end, SVM showed in its moving papers that plaintiff was on short-term disability leave beginning about July 11, 2006. Although Dr. Lusk, plaintiff's physician, extended plaintiff's leave several times, he ultimately released plaintiff to return to work on September 18, 2006. Plaintiff did not return to work. Hale checked with various SVM employees including plaintiff's immediate supervisor, to determine if anyone knew when plaintiff intended to return to work. Each of the employees with whom he spoke told Hale that he or she had not heard from plaintiff. Hale then sent plaintiff a letter on September 27, 2006, advising him that SVM construed his absence from work after September 18, 2006, as abandonment of his job and on that basis terminated plaintiff's employment effective September 27, 2006. Plaintiff did not dispute the noted facts.

SVM's showing in support of its summary judgment motion on plaintiff's claim for wrongful termination of employment in violation of public policy established that it did not terminate plaintiff's employment for any reason that violated public policy but did so because plaintiff failed to return to work after being released by Dr. Lusk. Because SVM made a prima facie showing that it did not terminate plaintiff's employment in violation of public policy, the burden shifted to plaintiff to present evidence that created a triable issue of material fact. (Hernandez v. Modesto Portuguese Pentecost Assn., supra, 40 Cal.App.4th at p. 1279.) In other words, in order to defeat summary judgment, plaintiff had to present evidence to show that SVM terminated his employment because he exercised one or all of the statutory rights noted above.

(3.) Step Three - Plaintiff's Showing in Opposition

In order to defeat SVM's summary judgment motion, plaintiff had to present evidence that created a triable issue of material fact with respect to at least one of the public policy violations alleged in his complaint. In this appeal, plaintiff appears to challenge only the trial court's ruling on the allegation regarding disability discrimination. However, because plaintiff also challenges the trial court's ruling on his separate causes of action alleging violations of the CFRA and Labor Code section 6310, we will address those claims in the context of plaintiff's wrongful termination of employment cause of action.

(a.) Disability Discrimination

To support his claim that SVM terminated his employment in violation of his statutory rights under the FEHA not to be discriminated against based on physical or mental disability, plaintiff asserted that on September 27, 2006, the date SVM terminated his employment, SVM knew plaintiff remained disabled because plaintiff's psychiatrist had sent notice of that disability to Aetna, SVM's short term disability administrator. The evidence to support this claim shows that although Dr. Lusk had released plaintiff to return to work on September 18, 2006, plaintiff consulted Dr. Garewal, a psychiatrist, on September 22, 2006. Dr. Garewal diagnosed plaintiff with severe depression, and sent by facsimile, or fax, directly to Aetna a copy of the Disability Attending Physician's Statement. That statement included in the prognosis section the notation that plaintiff would need three to six months to reach "maximum medical improvement," and that December 1, 2006, is the "estimated date of [plaintiff's] return to work."

SVM did not dispute the fact that Dr. Garewal sent notice to Aetna of plaintiff's continuing need for disability leave. However, SVM argued in the trial court, as it does on appeal, that notice to Aetna does not constitute notice to Arzell Hale, the SVM employee who made the decision to terminate plaintiff's employment. Because Arzell Hale did not have actual knowledge that plaintiff's disability persisted on September 27, 2006, the date SVM terminated plaintiff's employment, SVM argues plaintiff cannot prevail on his FEHA disability discrimination claim.

In order to establish a prima facie case of disability discrimination under the FEHA, plaintiff must prove: "(1) [he] suffered from a disability; (2) with or without reasonable accommodation, [he] could perform the essential functions of the employment position [he] held or desired; and (3) that [he] was subjected to an adverse employment action because of [his] disability. [Citation.] At a motion for summary judgment in a discrimination case, the defendant 'may meet its burden by showing that one or more of these prima facie elements is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors. [Citation.] [¶] If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus . . . .' [Citation.]" (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 603 [Fourth Dist., Div. Two], italics omitted.)

"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.) The disability is known to the employer when the evidence shows that the person making the adverse employment decision knew of the plaintiff's disability. (Ibid.; Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248.) That person in this case is Arzell Hale. SVM showed in its summary judgment motion that on September 27, 2006, when he wrote the letter terminating plaintiff's employment all Arzell Hale knew was that plaintiff failed to return to work even though he had been released by Dr. Lusk on September 18, 2006. Plaintiff, in turn, showed that Dr. Garewal notified Aetna on September 22, 2006, that plaintiff suffered from severe depression and would need additional short term disability leave in order to recover.

Plaintiff did not present any evidence to show that Arzell Hale knew at the time he wrote the letter terminating plaintiff's employment, that Dr. Garewal had extended plaintiff's disability leave. Plaintiff's evidence showed only that Aetna had received notice. There is no evidence to show that Aetna had advised Arzell Hale. Because liability for employment discrimination requires proof the decision maker had actual rather than imputed knowledge of the employee's disability, plaintiff's evidence fails to create a triable issue of material fact with respect to discrimination based on disability. Therefore, the trial court correctly granted summary judgment in favor of SVM on that theory of recovery.

(b.) CFRA Leave Violation

Plaintiff, as noted above, also alleged that SVM terminated his employment in violation of the public policy embodied in the CFRA. Plaintiff did not present any evidence to support this claim. Government Code section 12945.2, subdivision (a), previously quoted, "generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of 'family care and medical leave.'" (Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 6.) "[T]he elements of a cause of action for retaliation in violation of CFRA . . . are as follows: (1) the defendant was an employer 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 . . . because of her exercise of her right to CFRA leave." (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261, fn. omitted.)

Plaintiff did not present any evidence in the trial court to show that he expressly or impliedly exercised his right to take CFRA leave. Instead he purports to distinguish between a claim "for discrimination and a claim for interference under CFRA." Plaintiff asserts that the elements of the two claims are different, and that his claim is one for interference rather than discrimination. Despite his assertion, plaintiff does not explain the purported difference between the two claims, nor does he discuss the elements of an interference claim or cite any legal authority to support his argument that an interference claim exists as a separate theory of recovery. Moreover, the heading that precedes his discussion of the CFRA claim describes the issue as follows: "A Triable Issue Of Fact Exists As To Whether [SVM] Had Notice When It Terminated [Plaintiff] For 'Job Abandonment' That He Was Exercising His Right To Take CFRA-Qualifying Leave." That heading describes a claim for retaliation in violation of the CFRA. Therefore, the issue is whether plaintiff presented evidence to show that SVM knew or should have known at the time it terminated his employment that plaintiff was taking leave under the CFRA.

According to the undisputed evidence in this case, on September 22, 2006, Dr. Garewal notified Aetna of the need to extend plaintiff's short term disability leave. On September 27, 2006, SVM terminated plaintiff's employment because it believed he had abandoned his job. The evidence is also undisputed that plaintiff had only requested leave under SVM's short term disability leave program, and at the time SVM terminated his employment plaintiff had not exhausted his short term disability leave. At most, the evidence shows SVM should have known at the time it terminated plaintiff's employment that plaintiff was on short term disability leave authorized by Aetna. Plaintiff's evidence does not create a triable issue of material fact regarding whether SVM should have assumed when plaintiff failed to return to work on September 18, 2006, that he was exercising his right to take CFRA leave. Plaintiff's assertion is inconsistent with the undisputed fact that through Dr. Garewal plaintiff had requested an extension of his short term disability leave.

(c.) Labor Code Section 6310 Violation

The other public policy violation plaintiff alleged in his wrongful termination cause of action and raises on appeal is that SVM violated Labor Code section 6310, which makes it unlawful to discharge an employee "because the employee has made a bona fide oral or written complaint to . . . his or her employer . . . of unsafe working conditions, or work practices, in his or her employment or place of employment . . . ." (Lab. Code, § 6310, subd. (b).)

SVM asserted in its summary judgment motion that plaintiff did not report any bona fide unsafe working conditions to the plant safety engineer and therefore plaintiff could not have been terminated for that reason. In his opposition filing, plaintiff submitted his own declaration in which he stated, in pertinent part, that in 2005 Raymond Becker became head of maintenance at SVM's Argus plant; Becker made various changes including shifting tools and employees away from plaintiff's lubrication crew to other departments. Plaintiff stated that some of Becker's changes made work on the lubrication crew more difficult and in plaintiff's view, "unsafe--even dangerous." Plaintiff cited as a purported example the fact that Becker's changes reduced the number of workers on the lube "crew from five to three while increasing their responsibilities." This change "required inexperienced lubers to do dangerous jobs that they were not properly trained to do" and "created risks that a luber could be pulled into a piece of equipment and seriously injured, given that, at times lubers are required to pour oil into running equipment. Going from five lubers to three lubers while increasing the amount of duties made us dangerously overworked." According to his declaration, because he was "concerned for [his own] health and safety, and that of [his] crew, [he] complained about these changes to Arzell Hale . . . . Specifically, [he] told Mr. Hale that [he] had safety concerns related to the changes that Mr. Becker had made." Plaintiff also stated in his declaration that he complained to Arzell Hale that Becker was "threatening employees with violence. Mr. Becker had personally threatened me with violence a few years before, and so I believed that these new threats by Mr. Becker were real and should be taken seriously."

SVM objected to the above-quoted portions of plaintiff's declaration on various grounds including that the quoted statements conflict with plaintiff's deposition testimony.*fn6 The trial court sustained that objection. As previously noted, plaintiff purports to take issue with the trial court's rulings on various objections SVM raised to plaintiff's evidence, including this ruling. However, plaintiff simply fails to meet his burden of demonstrating that the trial court's ruling is incorrect. In challenging the noted ruling, plaintiff states only that the statements in his declaration do not contradict the deposition excerpts SVM cited in the trial court. Plaintiff does not support that assertion with the quotations from his deposition testimony that SVM relied on in its objection or with citations to that testimony in the record on appeal. Plaintiff's bald assertion that his declaration does not conflict with his deposition testimony is insufficient to demonstrate error.

The trial court, in sustaining SVM's objection, noted that at his deposition plaintiff stated when he met with Hale in June 2006 that he complained about a personal conflict he had with Becker, and that plaintiff could not remember complaining about safety concerns to anyone other than his immediate supervisor, Mark Ford. Because plaintiff has not demonstrated that the trial court's ruling was erroneous, we must conclude plaintiff failed to raise a triable issue of material fact with respect to whether SVM terminated plaintiff's employment in violation of Labor Code 6310.

Our conclusion that plaintiff failed to create a triable issue of material fact with respect to his disability discrimination, CFRA, and Labor Code section 6310 claims as alleged in his wrongful termination cause of action also disposes of plaintiff's third, fourth, and eighth causes of action in his amended complaint which, respectively, seek recovery based on those purported violations.

C. Remaining FEHA Claims

"In addition to a general prohibition against unlawful employment discrimination based on disability, [the] FEHA provides an independent cause of action for an employer's failure to provide a reasonable accommodation for an applicant's or employee's known disability. ([Gov. Code,] § 12940, subds. (a), (m).) 'Under the express provisions of the FEHA, the employer's failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself.' [Citations.] Similar reasoning applies to violations of Government Code section 12940, subdivision (n), for an employer's failure to engage in a good faith interactive process to determine an effective accommodation, once one is requested. [Citations.]" (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).) "Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other." (Ibid.)

(1.) Step One - Issues Framed by the Pleadings

In his fifth cause of action entitled "Failure to Accommodate," plaintiff alleged in pertinent part that SVM was subject to Government Code section 12940 et seq. which requires among other things that SVM "make reasonable accommodations for the disability of any employee"; "[d]efendants failed to make reasonable accommodation for Plaintiff's known disability by terminating his employment while he was on a medically-ordered [sic] leave, by refusing to allow Plaintiff to return to work unless his doctor removed an overtime restriction, by failing to engage in the interactive process to determine if Plaintiff could be given a reasonable accommodation and by failing to provide Plaintiff with such reasonable accommodation."

Similarly, in the sixth cause of action, entitled "Failure to Engage in the Interactive Process," plaintiff alleged in pertinent part that Government Code section 12940 et seq., requires SVM "to engage in an interactive process of communication with Plaintiff regarding possible reasonable accommodations for his known disability," and that SVM "failed to engage in a timely, good faith, interactive process with Plaintiff to determine effective reasonable accommodations for Plaintiff's known disability and instead terminated his employment and later refused to allow Plaintiff to return to work with a medically-ordered [sic] restriction."

(2.) Step Two - Defendant's Showing

In its summary judgment motion, SVM asserted that it had reasonably accommodated plaintiff's known disability when it provided him with paid medical leave from July 2006 to September 18, 2006. SVM further asserted that it did not know at the time it terminated plaintiff's employment that plaintiff was disabled, and therefore needed accommodation, because Dr. Lusk had released plaintiff to return to work effective September 18, 2006, and plaintiff did not communicate with anyone at SVM when, on September 22, 2006, Dr. Garewal diagnosed plaintiff's severe depression. To support these claims, SVM submitted the same evidence, recounted above, that it relied on to support its motion for summary adjudication on plaintiff's wrongful termination cause of action.

With respect to plaintiff's allegation that SVM failed in August 2007 to reasonably accommodate him by refusing to allow him to return to work with the no overtime restriction ordered by Dr. Garewal, SVM asserted that Dr. Garewal released plaintiff to return to work on August 20, 2007, without restrictions, and SVM had no reason to question that release.

(3.) Step Three - Plaintiff's Showing in Opposition

In his opposition, plaintiff submitted his own declaration to support his contention that he met with Arzell Hale in June and July of 2006, at both meetings he asked to be transferred, and he also told Hale that he was "stressed" and "not feeling good." According to plaintiff that evidence is sufficient to put SVM on notice that plaintiff suffered from a disability that required reasonable accommodation. Government Code section 12940, subdivision (m) of the FEHA provides that it shall be an unlawful employment practice for an employer "to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." Plaintiff does not present any authority to support his argument that unspecified "stress" and "not feeling good" are physical or mental disabilities under the FEHA.

Moreover, a leave of absence is itself a "form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future." (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263; see also Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 226 ["We hold that a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties."].) By providing plaintiff with paid medical leave in July 2006, SVM reasonably accommodated plaintiff's disability, which at that time was described by Dr. Lusk as hypertension. Government Code section 12940, subdivision (m), quoted above, requires reasonable accommodation. In this case, where the undisputed evidence shows that plaintiff only notified SVM that he suffered from hypertension, and then later depression, both of which required that he take time off work to recuperate, SVM reasonably accommodated plaintiff by providing him with that time off.

Plaintiff did not present any evidence to show prior to termination of his employment that he requested an accommodation other than time off work. The undisputed evidence shows that SVM reasonably accommodated plaintiff by providing him paid medical leave. Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, which plaintiff cites to support his claim that SVM had a duty to investigate an accommodation that would allow plaintiff to return to work, is factually distinguishable because the employer knew that the employee in that case was disabled with AIDS, an ailment from which he could not recover before returning to work. In short, absent evidence that plaintiff's disability was a permanent condition, or that he requested an accommodation of his disability other than medical leave, we must also reject plaintiff's assertion that SVM failed to engage in the interactive process. The interactive process only comes into play when the particular disability and necessary accommodation actually require it. (See Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 228 ["As the Ninth Circuit Court of Appeals has held, '[t]he ADA and its regulations do not . . . create independent liability for the employer for failing to engage in ritualized discussions with the employee to find a reasonable accommodation. [Citations.]' [Citations.]")*fn7 Plaintiff's disability required that he receive time off work in order to recuperate. SVM accommodated that disability by providing plaintiff with paid medical leave.

Once SVM terminated plaintiff's employment on September 27, 2006, based on its belief that plaintiff had abandoned his job, its duty to accommodate plaintiff's disability ended. Plaintiff's claim at that point became one for wrongful termination of employment in violation of public policy.

Plaintiff also contends that he presented evidence to show that he was disabled when he returned to work in August of 2007 and that SVM failed to reasonably accommodate him when it refused to allow him to return to work with the restriction that he not work overtime. To support that assertion, plaintiff submitted his own deposition testimony in which he stated in pertinent part that the day he returned to work he talked to Sandy Martel, and he thinks he also spoke with Arzell Hale, and "they" would not let him work that day because he had a "restriction" of "no overtime" on the medical release from Dr. Garewal.

In its reply, SVM pointed out that the release in question which is dated August 17, 2007, states that plaintiff is released to return to work on August 20, 2007, with "no restrictions" but also indicates that overtime is not allowed until December 31, 2007. SVM also noted that on August 22, 2007, plaintiff provided SVM with a work release that did not include the limit on overtime work, a copy of which SVM included in its summary judgment motion. SVM argues that the noted evidence demonstrates that the limit on overtime was not a restriction related to any disability, and instead reflected plaintiff's preference to not work overtime until the weather cooled in December. To support this argument SVM cites plaintiff's deposition testimony in which plaintiff stated that when he was asked after he returned to work whether he wanted to work overtime, he said no because he was not "acclimated, you know, the heat and all of that and [he had] worked all day."

The internal contradiction in the August 17 work release, noted above, combined with the fact Dr. Garewal removed the overtime restriction from the August 22 work release supports the inference that the overtime restriction did not relate to any ongoing disability plaintiff suffered and instead reflected only plaintiff's personal preference to not work overtime. Plaintiff did not demonstrate in the trial court and has not demonstrated on appeal that he remained disabled in August 2007 when Dr. Garewal released him to return to work. Both of Dr. Garewal's work releases indicate that plaintiff's episode with major depression had ended and his symptoms had resolved. According to the information in both releases plaintiff's treatment, which consisted of a course of psychotropic medication, lasted only three months and had long since ended. In short, plaintiff did not demonstrate that he remained disabled at the time he returned to work at SVM in August of 2007. Absent such evidence, SVM was not required to provide any accommodation to plaintiff. Plaintiff showed only that SVM would not allow him to return to work with a restriction that prohibited him from working overtime. That conduct does not violate the FEHA unless plaintiff also demonstrates that he was disabled and that the restriction was related to that disability and therefore SVM was obligated to honor that restriction as a reasonable accommodation of plaintiff's disability.

For each of the reasons discussed, we conclude the trial court properly granted summary adjudication in favor of SVM on plaintiff's causes of action alleging violation of the FEHA by failure to accommodate and failure to engage in the interactive process.

DISPOSITION

The summary judgment in favor of SVM and against plaintiff is affirmed.

Defendant to recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/

We concur:

/s/ Ramirez

P.J.

/s/ Hollenhorst

J.


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