The opinion of the court was delivered by: United States District Judge Irma E. Gonzalez
Order Denying Defendants' Motion for Summary Judgment on All Claims [Doc. 73]; Denying Defendants' Motion to Preclude the EEOC from and Recovering on Behalf of Anyone Other than Corina Scott, Irma Moreno, and Allyson Mazon [Doc. 76]
The EEOC brought this action under 42 U.S.C. § 12112 on behalf of Charging Party Corina Scott*fn1 and others similarly-situated who were adversely affected by the Attendance Policy maintained by Defendants Dillard's, Inc. and Dillard Store Services, Inc. (Dillard's) between March of 2005 and July of 2007. The EEOC also seeks relief on behalf of Ms. Scott for retaliatory discharge in violation of 42 U.S.C. § 12203. Presently before the Court are two motions filed by Dillard's seeking: (1) summary judgment on all claims asserted by the EEOC as well as on the remedies available, and (2) summary judgment precluding the EEOC from pursuing claims on behalf of individuals not already identified and adjudicating the claims of Corina Scott, Irma Moreno, and Allyson Mazon. For the reasons set forth herein, the Court DENIES both motions.
When Dillard's El Centro Store opened in March of 2005, it had in place an Attendance Policy. [Declaration of Nanette Savage-Coley, Doc. 73-2, ¶ 4, Exhibit 1.] According to that policy, an employee's health-related absence would not be excused unless the employee submitted a doctor's note stating "the nature of the absence (such as migraine, high blood pressure, etc ...." [Id.; EEOC Exhibit A.] Dillard's reaffirmed this policy in June of 2006, clarifying that the doctor's note "must state the condition being treated." [Savage-Coley Decl., Exhibit 2, p. 2, ¶ 6.] This policy applied to all employees with health-related absences. [Savage-Coley Decl., ¶ 4.] An employee who accumulated four unexcused absences of any kind would be terminated. [Declaration of Penny Ervin, Doc. 76-2, ¶ 4.]
As applied in this case, Charging Party Corina Scott was absent from work between May 29 and June 3, 2006. [Declaration of Corina Scott, EEOC Exhibit D, ¶ 6.] Ms. Scott's absence was due to a health-related condition for which she sought medical attention. [Id.] To excuse the absence, Ms. Scott obtained a signed note from her doctor stating "off work this week return 6/5/06." [Deposition of Corina Scott, Doc. 76-8, Exhibit 33 (ECF page 21).] The note did not state her medical condition. [Id.] Ms. Scott submitted the note to the Assistant Store Manager, Penny Ervin, but Ms. Ervin did not accept the note because it did not state the condition being treated. [Scott Decl., ¶ 6; Ervin Decl., ¶ 6.] Ms. Ervin clarified she was not looking for a specific diagnosis, but just the "nature of the illness" or the "nature of the absence." As an example, Ms. Ervin stated would have accepted a note that said Ms. Scott went to the doctor, the doctor decided she needed some medication, and it would take a few days for the medication to work. [Ervin Decl., ¶ 6.] In requiring a more specific note, Ms. Ervin was looking to verify Ms. Scott had a legitimate medical reason for being unable to work. [Id.] Ms. Scott believed she was not required to provide Dillard's with any additional explanation, and her doctor told her she did not need to disclose her condition. [Scott Decl., ¶ 6.] Because she did not provide any further information, the absence was unexcused and Ms. Scott's employment was terminated on June 6, 2006. [Scott Decl., ¶ 7.]
Irma Moreno also worked at the Dillard's El Centro Store beginning in December of 2005.
[Deposition of Irma Moreno, Doc. 80, Exhibit I, p. 54; Declaration of Irma Moreno, Doc. 80, Exhibit J, ¶ 2.] On November 14, 2006, Ms. Moreno was unable to attend work due to a health-related condition for which she sought medical attention. [Moreno Depo., p. 53; Moreno Decl., ¶ 6.] Ms. Moreno obtained a note from her medical provider, but the note did not state her medical condition. Dillard's would not accept the note, so Ms. Moreno returned to her medical provider and obtained a signed note stating her medical condition. [Moreno Depo., p. 100; Moreno Decl.,
¶ 6.] Dillard's accepted this second note, and Dillard's excused her absence based thereon. [Moreno Decl., ¶ 7.] Ms. Moreno again missed work due to a health-related condition for which she sought medical attention beginning on April 20, 2007. [Moreno Depo., p. 65; Moreno Decl.,
¶ 8.] The first note Ms. Moreno obtained from her health care provider did not state her medical condition, and Dillard's Supervisor Amy Camacho told her the note was insufficient for that reason. [Moreno Depo., p. 65; Moreno Decl., ¶ 8.] Ms. Moreno returned to her medical provider to obtain a note stating her medical condition, and Dillard's accepted this second note. [Moreno Depo., p. 70; Moreno Decl., ¶ 9.] Dillard's terminated Ms. Moreno's employment on May 17, 2007, after she failed to return from a leave of absence.*fn2 [Moreno Depo., p. 65; Moreno Decl., ¶ 3; Declaration of Nanette Savage-Coley, Doc. 76-4, ¶ 5, Exhibit 2 (ECF p.9).]
Allyson Mazon began working at Dillard's El Centro Store on September 27, 2005. [Deposition of Allyson Mazon, Doc. 80, Exhibit K, p. 53; Declaration of Allyson Mazon, Doc. 80, Exhibit L, ¶ 2.] On four separate occasions, Ms. Mazon was unable to attend work due to a health-related condition for which she sought medical attention. [Mazon Depo., pp. 74-76, 87-88, 94-96; Mazon Decl., ¶¶ 6, 8, 9, and 11.] On each of those four occasions, Ms. Mazon initially provided Dillard's with a signed note from her medical provider, but which did not state her medical condition. After Dillard's would not accept the notes, Ms. Mazon returned to her medical provider and obtained a note stating her medical condition. [Id.] Dillard's accepted these notes stating her medical condition, and excused her absence on each of those occasions. [Id.] On one additional occasion when Ms. Mazon was unable to attend work due to a health-related condition, she initially obtained a note from her medical provider that stated her medical condition. [Mazon
Depo., p. 74 and 93; Mazon Decl., ¶ 10.] Ms. Mazon voluntarily resigned her employment with Dillard's on February 16, 2006. [Mazon Depo., p. 22; Mazon Decl., ¶ 3; Ervin Decl., ¶ 9, Tab 4.]
Dillard's El Centro Store rescinded the Attendance Policy in July of 2007. [Savage-Coley Decl., ¶ 6.] The Policy since July of 2007 requires only that employees with health-related absences "report off work prior to their scheduled start time." [Id., ¶ 6, Exhibit 3.] An employee is no longer required to submit a doctor's note or advise her supervisor of the health condition requiring absence.
On January 27 and January 31, the EEOC disclosed the names of 60 individuals who it asserts were subjected to Dillard's allegedly unlawful Attendance Policy. The EEOC seeks relief in this case on behalf of each of these individuals.
Summary judgment is proper where the pleadings and materials demonstrate "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact is a question a trier of fact must answer to determine the rights of the parties under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court must review the record as a whole and draw all reasonable inferences in favor of the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008).
1. Dillard's Motion for Summary Judgment on All Claims
In its first motion, Dillard's seeks summary judgment on all the EEOC's claims, arguing (a) 42 U.S.C. § 12112(d)(4)(A) does not prohibit employers from making the type of inquiry Dillard's made of employees before excusing health-related absences; (b) Dillard's policy was jobrelated and consistent with business necessity; and (c) the relief the EEOC seeks (compensatory and punitive damages and injunctive relief) is unavailable.
a. Did Dillard's policy requiring employees to "state the condition being treated" constitute a prohibited inquiry under ...