The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING DEFENDANT STARBUCKS' MOTION FOR SUMMARY JUDGMENT
Defendant Starbucks Coffee Company ("Starbucks") moves for summary judgment on all claims in Plaintiff Britta Burke's ("Burke") Complaint.
A party seeking summary judgment "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig., --- F.3d ----, 2010 WL 4608794 at *5 (9th Cir. 2010). If this burden is satisfied, "the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor." Id. "Where disputed issues of material fact exist, . . . [a]ll reasonable inferences must be drawn in favor of the non-moving party." Bryan v. McPherson, 608 F.3d 614, 619 (9th Cir. 2010) (citations omitted).
Further, under Local Rule 260: "Each motion for summary judgment . . . shall be accompanied by a 'Statement of Undisputed Facts' that . . . enumerate[s] discretely each of the specific material facts relied upon in support of the motion." L.R. 260(a). This statement is required to be supported by citations to "the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact." Id. Local Rule 260 also prescribes:
Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial. The opposing party may also file a concise 'Statement of Disputed Facts,' and the source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment or adjudication.
If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006)) (finding that a party opposing summary judgment who "fail[s] [to] specifically challenge the facts identified in the [moving party's] statement of undisputed facts . . . is deemed to have admitted the validity of [those] facts . . . .").
II. Uncontroverted Facts, Plaintiff's Claims, and Procedural History
"Burke was involved in a [non employment-related] car accident at around 12:30 a.m. on October 28, 2008." (Separate Statement of Undisputed Facts in Supp. of Defendant Starbucks Corporation's Mot. for Summ. J. or, in the Alternative, Partial Summ. J. ("Def.'s SUF") ¶ 14.) At the time of the car accident, Burke was employed as a Barista at a Starbucks location in Sacramento, California. Id. ¶ 3. Burke reported for her scheduled shift at Starbucks on October 31, 2008. Id. ¶ 30. During this shift, Burke informed a supervisor that "she was hit by a drunk driver, totaled her car, had pain in her back and legs, and that she was on the right medication and could go into work." Id. ¶ 27. Burke also told her co-workers she might not be "as fast as them." (Dep. of Britta Burke ("Burke Depo") 80:14-15.) Burke fully completed her shift on October 31, 2008, and also fully completed her work shifts on November 1, 2008, and November 2, 2008. Id. ¶ 30. The three work shifts "total[ed] over 17 hours." Id.
"Burke was scheduled to work from 2:45 p.m. until 10:15 p.m. on November 3, 2008. She did not report to work on that day [;and, she] did not inform Starbucks, prior to or during her shift, that she would not be reporting to work." Id. ¶ 43. Two of Burke's supervisors called Burke on November 3, 2008, "regarding her failure to show up for her shift" and left messages asking Burke to return their calls. Id. ¶¶ 44-45. "Burke never responded." Id. One of the supervisors also called Burke on November 4, 2008, and left a message asking Burke "to call him and let him know if she intended to report to her November 5, 7, 8, and 9 shifts." Id. ¶ 46. The supervisor "also stated that he would assign these shifts to other [employees] and leave [Burke] off the schedule for the coming week . . . if he did not hear from [Burke] on the same day." Id. The supervisor "did not hear from Burke. Therefore, he found coverage for Burke's November 5, 7, 8, and 9 shifts. He also did not assign Burke to any shifts for the week starting November 10, 2008 . . . . Burke did not report to work on November 5, 7, 8, or 9, 2008." Id. Burke was terminated on November 11, 2008 "for violating Starbucks Attendance and Punctuality Policy and abandoning her job." Id. ¶ 47.
Burke alleges in her Complaint that Starbucks violated California's Fair Employment and Housing Act ("FEHA") by failing to engage her in an interactive process concerning injuries she received in the automobile accident; failing to provide her a reasonable accommodation concerning those injuries; discriminating against her because of a disability resulting from those injuries; and retaliating against her because of her requests to engage in an interactive process and because she requested a reasonable accommodation. Burke also alleges a Whistleblower Retaliation claim under California Labor Code section 1102.5(b), and a claim for intentional infliction of emotional distress.
Burke also alleged a FEHA medical condition discrimination claim, which she abandoned in her opposition brief to Starbucks' summary judgment motion; therefore, this claim is dismissed.
Starbucks argues it is entitled to summary judgment on Burke's FEHA claims since each claim is premised on Starbucks' knowing that Burke had a disability, and the uncontroverted facts show that Starbucks did not know Burke had a disability.
FEHA proscribes "an employer's intentionally discriminatory act against an employee because of . . . [the employee's] disability . . . ." Scotch v. Art Inst. of California-Orange Cnty., Inc., 173 Cal. App. 4th 986, 1002 (2009). "An employee cannot demand clairvoyance of [her] employer." King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426, 443, (2007). "It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee." Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 266 (2000). "While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under [FEHA]." Brundage v. Hahn, 57 Cal. App. 4th 228, 237 (1997) (citation and quotations omitted).
Starbucks presents the following statement of undisputed facts in support of its position that Burke did not have a known disability: Burke stated she had pain in her back and legs but could work if she was on the right medication, and Burke worked three consecutive shifts in full after the accident. (Def.'s SUF ¶¶ 27, 30.) Starbucks argues there is no evidence that Burke provided further details of her injuries, or told her supervisors that her injuries prevented her from performing employment duties.
Burke argues she made it "abundantly clear to [a supervisor] that she was injured from a head-on auto collision, that she was experiencing pain in her neck, back, legs, and dizziness and light-headedness, that she would need to be 'moving more slowly' at work and that she would be unable to engage in more strenuous activities such as move [sic] tables, chairs, and umbrellas." (Separate Statement in Opp. to Mot. for Summ. J./Adjudication ("Pl.'s SUF") ¶ 28.) Burke relies on the following portions of her deposition testimony as support for her arguments that she told a supervisor about her disability:
Q. What did you tell [your supervisor]?
A. The same thing about the car accident.
Q. So you told him that your car was totaled?
Q. You told him that you were hit by a drunk driver?
A. Yes. Q. You told him that you had pain in your back ...