The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING DEFENDANTS' 12 MOTION FOR SUMMARY JUDGMENT
Plaintiff Cynthia Lawler ("Plaintiff") brings suit against her former employer Montblanc North America LLC ("Montblanc") and Montblanc's Chief Executive Officer Jan-Patrick Schmitz 18 under four causes of action: (1) disability discrimination against Montblanc only; (2) retaliation 19 against Montblanc only; (3) harassment against both Montblanc and Schmitz; and (4) intentional 20 infliction of emotional distress against both Montblanc and Schmitz. Presently before the Court is 21
Defendants' motion for summary judgment with respect to all four causes of action. The Court 22 deems this matter appropriate for resolution without oral argument and vacates the May 5, 2011 23 motion hearing, case management conference, and pretrial conference. See Civ. L. R. 7-1(b). For 24 the reasons described below, the Court GRANTS Defendants' motion for summary judgment with 25 respect to all four claims and closes the case.
Plaintiff began her employment as a Manager of Montblanc's Santa Clara boutique store, 5 located at Valley Fair Mall, in September 2001. See Deposition of Cynthia Lawler ("Lawler Dep.") at 32, attached as Exh. A to Defs.' Mot. for Summary Judgment ("Defs.' MSJ"). Plaintiff 7 held this managerial position from September 2001 until her termination effective October 31, 8
Defendant Montblanc is a maker of fine writing instruments, jewelry, watches, and otherluxury products, which it sells wholesale and retail through boutique stores in the United States.
2009. Id. According to Plaintiff's testimony, her duties as a boutique manager involved hiring, 9 training and supervising sales staff, developing relationships with customers for the luxury end 10 market, personally interacting with customers and handling customer complaints, overseeing the
August 2009, the last time Plaintiff performed any duties as a Montblanc employee, the Santa Clara boutique had four full-time employees, including Plaintiff, and two-part time employees. Id. 14 at 54-55. In the months before her last day of work in August 2009, Plaintiff worked between sixty 15 and seventy hours a week, all of that in the store. Id. at 32, 62. Finally, Plaintiff testified that the 16 store operates increasingly longer hours in the holiday season between November and January, and 17 that the sales in those weeks account for a third of the store's annual sales. Id. at 56-58.
In June 2009, Plaintiff was diagnosed with a chronic medical condition known as psoriatic arthritis. In a note dated June 30, 2009, Plaintiff's rheumatologist, Dr. Neelakshi Patel, 20 recommended that Plaintiff work reduced hours of twenty hours per week "due to medical 21 reasons." See Exh. 4 to Pl.'s Opp'n to Defs.' Mot. for Summary Judgment ("Pl.'s Opp'n"). In July 22 2009, however, Plaintiff worked thirty-six to forty hours a week in order to keep the store operating 23 while others were sick or out on vacation. See Lawler Dep. 67-68. 24 25
Pl.'s Opp'n. On July 23, 2009, Plaintiff sent an e-mail to her immediate supervisor, Montblanc's
Regional Director Teresa Eyre, informing Ms. Eyre of Dr. Patel's recommendation regarding 5 reduced work hours. See Exh. 5 to Pl.'s Opp'n. On July 24, 2009, Plaintiff had a telephone 6 conversation with Mary Gorman, Montblanc's Human Resources Director, to discuss the reduced-7 hours recommendation. See Pl.'s Opp'n at 4. According to Plaintiff, Ms. Gorman expressed 8 concern about the recommendation to work reduced hours. On July 25, 2009, Plaintiff sent Ms. 9
June 30, 2009. See Exh. 6 to Pl.'s Opp'n.
On July 29, 2009, Ms. Gorman wrote an e-mail asking Plaintiff to provide additional
information with respect to the reduced-hours recommendation. Specifically, Ms. Gorman wrote:
Dr. Patel, in a note dated July 20, 2009, excused Plaintiff from work on July 20 and 21, 2009 due to "medical reasons," and stated that Plaintiff may return on July 22, 2009. See Exh. 4 to Gorman a follow-up e-mail, with an attachment indicating the hours Plaintiff had worked since
This letter is a follow-up to our conversation regarding your request for a reduced work week of no more than 25 hours per week, due to your medical condition.
As you know, the nature of your position as Boutique Manager makes it essential that you personally be present at the store to perform among other duties: supervise and coach sales
associates; interact with and provide service to customers; and manage the store's operations. Thus, Boutique Managers typically are present in the store at least 40 hours per week.
We will need to assess whether we can accommodate your request for reduced hours, or if there is some other accommodation that would enable you to perform the essential
functions of your position. Kindly have your treating doctor provide us, in writing, details of the following: (i) the nature, severity and duration of your impairment; (ii) the activities
the impairment limits; (iii) the extent to which the impairment limits your ability to perform those activities; (iv) what, if any, accommodation can be provided that would enable you to
perform the essential functions of your position. Kindly have your doctor provide us with this information as soon as possible.
See Exh. 7 to Pl.'s Opp'n. On August 4, 2009, before Plaintiff or her treating doctor had an 24 opportunity to respond to the request for additional information, Plaintiff fell at home and broke 25 her foot. See Lawler Dep. at 86. The next day, August 5, 2009, Plaintiff's podiatrist, Dr. Matthew 26
Smith, set Plaintiff's foot and put on an orthopedic shoe. Id. at 79-80. Dr. Smith wrote Plaintiff a 27 note advising that she would be unable to work from August 5, 2009 to September 2, 2009 because 28
Plaintiff had fractures on her third and fourth toes. See Exh. L to Defs.' MSJ. Gorman asked Plaintiff to fax medical documentation so that she (Ms. Gorman) could inform Montblanc's disability carrier. Not having a fax machine at home, Plaintiff drove from the 5 podiatrist's office to the Santa Clara boutique store in order to fax the medical documentation and 6 to call her Regional Supervisor, Ms. Eyre, to advise her of the need for disability leave.*fn2
On August 5, 2009, after her examination with the podiatrist, Plaintiff called to inform Ms. Gorman of the accident, and to explain her need for temporary medical disability leave. Ms. While Plaintiff was using the fax machine in the store's back office, Schmitz and Montblanc's Vice President of Retail, Michael Giannattasio arrived on a routine inspection-visit.*fn3
See Lawler Dep. 90. According to Plaintiff, Schmitz, in an "abrupt, brisk" manner, asked her why 10 she was not dressed properly, to which Plaintiff responded she was "off work on disability." Id. at 96. Schmitz then advised Plaintiff that he and Giannattasio were going to walk around the mall to check out the competition, which, according to Plaintiff, was "a customary procedure when a visit 13 occurs." Id. Plaintiff responded that she would not be there and needed to go home, but Schmitz 14 said, "We will talk when I get back," and was very "intimidating," "abrupt," and "gruff." Id. 15
Schmitz and Giannattasio returned to the store around thirty to forty minutes later. Schmitz told Plaintiff they needed to look around the store, and stared at Plaintiff until she walked onto the 17 sales floor. Id. at 100. According to Plaintiff, Schmitz "herded" Plaintiff and the other present 18 employees around the store, criticized Plaintiff for not having the latest eyewear on display, and "just got mad" when Plaintiff tried to answer his questions. Id. at 101. At one point, Plaintiff's co-20 worker accidentally stepped on her broken foot, after which Plaintiff remained sitting in a chair. 21
Id. Schmitz then asked Plaintiff about the specific demographics of the customers and the area, and wanted Plaintiff to have all the information "on his desk by Monday" (August 5, 2009 was a Wednesday). Id. at 102. When Plaintiff reminded Schmitz that she was not working, Schmitz 3 said: "You will do it or else." Plaintiff then responded: "Okay, I'll e-mail it from home." Id. 4
Although Montblanc maintains video footage of the store, the footage is overwritten thirty days 5 after it is taken. Thus, the August 5, 2009 video footage was overwritten on or around September 6
Shortly after Schmitz's visit, Plaintiff called her immediate supervisor, Ms. Eyre, to give her a rundown of the visit, express concern about getting the paperwork done because Plaintiff was 9 on pain pills at that point, and to express concern about being fired for not doing the work. Id. at 10108. According to Plaintiff, Ms. Eyre told Plaintiff not to worry about the paperwork and that she 11 was sorry that Plaintiff had a bad visit.
By letter and by phone on August 11 and August 13, 2009, Plaintiff complained to Montblanc's Human Resources Director, Ms. Gorman, about the way Schmitz spoke to and treated 14 her at the August 5, 2009 store visit. See Exh. 8 to Pl.'s Opp'n. Specifically, Plaintiff complained 15 that: (1) despite her medical situation, Schmitz expected her to stay at work while he and Giannattasio walked around the mall evaluating the competition; (2) as a result of her remaining at 17 the store, a co-worker accidentally stepped on her foot causing her significant pain; and (3) again 18 ignoring her disability, Schmitz gave her assignments with short deadlines." Id. Plaintiff also 19 expressed concern about "disciplinary action" and other consequences if she did not complete the 20 assignments. In their August 13, 2009 phone conversation, Ms. Gorman, as did Ms. Eyre 21 previously, assured Plaintiff that she would not be fired for complaining about Schmitz, and 22 informed Plaintiff that her assistant manager would complete the requested work so that Plaintiff 23 did not have to worry. Lawler Dep. 139.
reduced hours to a recommendation that Plaintiff not work at all until January 5, 2010 due to 5, 2009.
On August 7, 2009, Dr. Patel changed the previous recommendation that Plaintiff work Plaintiff's chronic condition of psoriatic arthritis. See Exh. 12 of Pl.'s Opp'n. On September 10, 2009, Ms. Gorman sent Dr. Patel a letter inquiring whether any accommodations could be made 28 that would allow Plaintiff to work as a Boutique Manager, and noted that the position did not
involve strenuous lifting or other physical activity. See Exh. N. to Defs.' MSJ. Ms. Gorman also 2 asked Dr. Patel to advise when, if at all, Plaintiff would be able to resume her regular duties. On 3
October 6, 2009, Dr. Patel responded that Plaintiff's condition had not changed, and thus the 4 recommendation that she not work at all until January 5, 2010 had not changed. See Exh. O to 5
Defs.' MSJ. Dr. Patel did not provide an answer as to when, if ever, Plaintiff could resume her 6 regular duties. 7
8 mid-October 2009. On October 13, 2009, Ms. Gorman advised Plaintiff that Montblanc was 9 terminating her employment, as of October 31, 2009, because Plaintiff could not perform her 10 regular job duties as a Boutique Manager. See Exh. Q to Defs.' MSJ. Montblanc offered Plaintiff 11
Plaintiff has not worked, or applied for employment, since her termination from Montblanc.
Plaintiff applied for and exhausted Montblanc-provided and State-provided disability benefits 14 between August 2009 and October 2010 due to her inability to work. See Lawler Dep. 38-43. In 15
November 2010, Plaintiff has also applied for Social Security disability benefits on the grounds 16 that her medical condition renders her unable to work. Id. at 37-38. 17
18 removed the case, pursuant to diversity jurisdiction, on March 17, 2010. Now pending before the 19
Court is Defendants' motion for summary judgment. 20
22 as to any material fact, and that the moving party is entitled to judgment as a matter of law. See 23
Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The party seeking 24 summary judgment bears the initial burden of informing the court of the basis for its motion and of 25 identifying the portions of the declarations, pleadings, and discovery that demonstrate an absence 26 of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact 27 is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. 28
Plaintiff received short-term disability benefits through Montblanc from August through a severance package, ...