The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION
Before the Court is a Motion for Summary Judgment filed by Defendant Alta Dena Certified Dairy, LLC (Docket 15). After considering the moving, opposing, and replying papers, as well as oral argument, where Plaintiff's counsel agreed with the tentative order granting summary judgment in favor of Defendant, the Court GRANTS the Motion for Summary Judgment.
The following facts are undisputed, except where noted:
Plaintiff Joaquin Ramirez ("Plaintiff") had been warned on numerous occasions for accumulating excessive absences and failing to submit doctors' notes for those absences. Plaintiff's Response to Undisputed Statement of Facts ("Response to SOF"), ¶ 1. Cathy Ehlert ("Ehlert"), an administrative assistant, was responsible for the accuracy of the time cards of Defendant's employees, including Plaintiff. Id. at ¶ 3. Ehlert was on vacation during the week of February 22, 2009; when she returned, she had to review to time records from the previous week. Id. at ¶ 4. Because Ehlert noticed certain anomalies that deviated from Plaintiff's scheduled hours, she met with Plaintiff on March 1, 2009 to discuss the discrepancies. Id. at ¶ 5-6. Ehlert recalls printing a copy of Plaintiff's time records from the preceding week and asking him to give her the correct "in" and "out" punches, as well as the punches for meal periods. Id. at ¶ 9. While meeting with Plaintiff, Ehlert made certain corrections on Plaintiff's time sheet; the only relevant correction here is that she wrote that Plaintiff worked from 10:00 am to 1:51 a.m. on February 22, 2009. Id. at ¶ 10. According to Ehlert, she wrote that time down and then confirmed the change with Plaintiff. Id. at ¶ 15. According to Plaintiff, however, he did not tell Ehlert what time he worked on February 22, 2009 but rather told her that he had to go home and ask his wife what time he had worked that day. Id. at ¶ 10, 15.
Don Cook ("Cook"), Plaintiff's supervisor at the time, advised Stephanie Schlose ("Schlose"), then the HR Director overseeing that facility, that Plaintiff had actually arrived much later than 10:00 a.m. on February 22, 2009. Id. at ¶ 11. Schlose examined a videotape in which Plaintiff's car was seen arriving at work at 12:47 p.m., not 10:00 am, on February 22, 2009. Id. at ¶ 12. Schlose then met with Plaintiff and informed him that she was going to suspend his employment pending investigation into the matter. Id. at ¶ 13. Based on the evidence before her, Schlose believed that Plaintiff falsified his time card and, as such, decided to terminate him. Id. at ¶ 17.
On March 3, 2010, Plaintiff filed an administrative complaint with the California Department of Fair Employment of Housing ("DFEH"), which stated that Plaintiff "was terminated from [his] position of Driver"; that "Stephanie Raasveld, Human Resources Manager, told [him] it was because of discrepancies on [his] time card"; and that he "believe[d] that [he] was suspended and terminated because of [his] disability (Irritable Bowel Syndrome) and because [he] had taken leave under the California Family Rights Act." Id. at ¶ 19.
Plaintiff also sets forth the following additional facts:
Plaintiff alleges that, in 2006, Distribution Manager Lee Miller ("Miller") called him and Plaintiff's wife to "demand" proof of Plaintiff's surgery. Id. at ¶ 41. Then, in March 2008, Plaintiff returned to work after two months of medical leave and was given a Disciplinary Notice by Miller, despite the fact that another worker "was contacted by Miller for the same reason but was not given a written warning." Id. at ¶ 47B. In October 2008, Defendant suspended Plaintiff for five days because he had returned to work without a doctor's note; according to Plaintiff, he had not been told to bring one. Id. at ¶ 53A.
According to Defendant, during Plaintiff's employment, Defendant had a practice of requesting that all employees who took leave under the Family and Medical Leave Act ("FMLA") or California Family Rights Act ("CFRA") provide a "fitness for duty" note from their health care provider, confirming their ability to return to work. Id. at ¶ 31. Plaintiff disputes that such policy existed. Id. at ¶ 31.
Plaintiff asserts the following causes of action: (1) "Unlawful Employment Practice: Physical Disability, Mental Disability and/or Medical Condition Discrimination" in violation of Govt. Code Section 12940(a); (2) "Unlawful Employment Practice: Employer's Inquiry Re: Plaintiff's Physical Disability, Mental Disability or Medical Condition" in violation of Govt. Code Section 12940(f); (3) "Unlawful Employment Practice: Employer's Failure to Take All Reasonable Steps Necessary to Prevent Discrimination" in violation of Govt. Code Section 12940(k); (4) "Unlawful Employment Practice: Employer's Failure to Maintain Group Health Plan During FEHA Leave" in violation of Govt. Code Section 12945.2(f); (5) "Unlawful Employment Practice: Employer's Inquiry Re: Plaintiff's Physical Disability, Mental Disability and/or Medical Condition Discrimination" in violation of Govt. Code 12940(k); (6) "Unlawful Employment Practice: Employer's Return to Work Certification" in violation of Govt. Code 12940(k); (7) "Unlawful Employment Practice: Retaliation" in violation of Govt. Code Section 12945.2(l); (8) Violation of Confidentiality of Medical Information Act, Civil Code Section 56.20; (9) Invasion of Privacy in violation of the California Constitution, Article I, Section I; and (10) Wrongful Termination in Violation of Public Policy.
Defendant seeks summary judgment on each of these claims.
Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is to be granted cautiously, with due respect for a party's right to have its factually grounded claims and defenses tried to a jury. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1992); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Celotex, 477 U.S. at 323. When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact as to an essential element of its case. See Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).
Once the moving party meets its burden, the burden shifts to the opposing party to set out specific material facts showing a genuine issue for trial. See Liberty Lobby, 477 U.S. at 248-49. A "material fact" is one which "might affect the outcome of the suit under the governing law . . . ." Id. at 248. A party cannot create a genuine issue of material fact simply by making assertions in its legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Rather, there must be specific, admissible evidence identifying the basis for the dispute. Id. The court need not "comb the record" looking for other evidence; it is only required to consider evidence set forth in the moving and opposing papers and the portions of the record cited therein. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Liberty Lobby, 477 U.S. at 252.
A. Claim One: Disability Discrimination
FEHA declares "as a public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of ... physical disability, mental disability, [or] medical condition ...." Cal. Govt. Code, § 12920. California Government Code section 12940(a) provides that it is unlawful "[f]or an employer, because of ... physical disability, mental disability, [or] medical condition ... to refuse to hire or employ the person ... or to bar or to ...