The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
ORDER GRANTING AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant moves for summary judgment, or in the alternative, partial summary judgment on each of Plaintiff's claims. Plaintiff alleges in her Complaint federal and state employment claims under the Americans with Disabilities Act ("ADA"), California's Fair Employment and Housing Act ("FEHA"), the Family and Medical Leave Act ("FMLA"), the California Family Rights Act ("CFRA"), and wrongful termination in violation of public policy. For the reasons stated below, Defendant's motion will be granted and denied in part.
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust and Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims,
[The defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)(citations omitted).
If the movant satisfies its initial burden, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks omitted). The "non-moving [party] cannot rest upon the mere allegations or denials of the adverse party's pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (citation and internal quotation marks omitted).
Further, Local Rule 260(b) requires: Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] 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.
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).
Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf.
Simmons v. Navajo Cnty., Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010) (citation and internal quotation marks omitted).
Evidence must be "view[ed] . . . in the light most favorable to the non-moving party[,]" and "all reasonable inferences" that can be drawn from the evidence must be drawn "in favor of [the non-moving] party." Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010) (quoting Bank of N.Y.C. v. Fremont Gen. Corp., 523 F.3d 902, 909 (9th Cir. 2008)).
Based upon the respective undisputed facts and supporting evidence submitted by each party under Local Rule 260(b), the following facts are uncontroverted in the summary judgment record:
Plaintiff Sujla Maharaj ("Plaintiff") began working for Defendant California Bank & Trust ("CBT") as a teller at its Millbrae, California branch on January 16, 1990. (Pl.'s Separate Statement of Disputed Facts ("DF") #1.) In approximately December 2002, Plaintiff transferred to a Customer Service Representative ("CSR") position*fn1 in Defendant's Sacramento main branch. Id. Plaintiff subsequently obtained promotions up to a CSR III position. Id. Plaintiff remained in Defendant's Sacramento main branch from 2002 until she was terminated in 2010. (Def.'s Separate Statement of Undisputed Facts ("UF") #1.)
Plaintiff took a medical leave of absence from May 15, 2009 until July 27, 2009 ("first leave of absence"). Id. #2. This leave of absence lasted ten weeks and one day. (Decl. of Regina Parker ("Parker Decl.") ¶9, ECF No. 45-4.) Plaintiff was hospitalized on multiple occasions during the first leave of absence and was diagnosed with Rheumatoid Arthritis. (Dep. of Sujla Maharaj ("Pl.'s Dep.") 121:19-124:9, Ex. 1 to the Decl. of Alan Adelman ("Adelman Decl."), ECF No. 57-5; Report of Lloyd Ito, M.D. ("Ito Report"), as Ex. 8 to Adelman Decl., ECF No. 57-12.) Plaintiff submitted eleven signed doctor's notes to Defendant in connection with the first leave of absence, which state Plaintiff was "ill and unable to attend work" or "unable to attend work" during the pendency of her leave. (Parker Decl. ¶6, Exs. B1-B11.)
Plaintiff began a second medical leave of absence ("second leave of absence") on December 28, 2009. (UF #5.) Reports prepared by Plaintiff's health care providers indicate she was hospitalized from December 26, 2009 through January 11, 2012 for diagnoses including a kidney infection. See generally, Report of Anvarali Velji, M.D. ("Velji Report"), Ex. 7 to Adelman Decl., ECF 57-11; Ito Report.) In connection with the second leave of absence, Plaintiff submitted five doctor's notes to Defendant, which state Plaintiff was "ill[,]" "ill and unable to attend work[,]" or "unable to attend work" through March 31, 2010. (UF #7, Parker Decl. ¶11, Exs. E1-E5.) Plaintiff was released to return to work without restrictions on April 1, 2010. (Parker Decl. ¶11, Ex. E5.)
As of February 2, 2010, Plaintiff had taken more that twelve workweeks of medical leave in the twelve-month period prior to February 2, 2010. (Parker Decl. ¶13.) On February 4, 2010, Defendant sent a letter to Plaintiff, which states in part, "due to our business needs and the expiration of the FMLA Job Protection leave of 12 weeks reached on February 2, 2010, the Sacramento Branch needs to begin the process of filling your Customer Service Representative position to meet the ongoing demands within the Branch." (Parker Decl. ¶15, Ex. G.)
On or about February 25, 2012, Defendant posted on its internal and external job posting websites a full-time teller position at the Sacramento main branch with the title CSR II ("CSR II position"). (UF #15.) On or about March 10, 2010, Defendant offered, and a candidate accepted, the CSR II position. (UF #16.) When Defendant offered the candidate the CSR II position, Defendant was aware that Plaintiff had been released to return to work on April 1, 2010. (Dep. of Regina Parker ("Parker Dep.") 176:15-25, Ex. 3 to Adelman Decl., ECF No. 57-7.) When the candidate accepted the position, Defendant knew she would be unable to start working until April 5, 2010. (Dep. of Deborah Fredrickson ("Fredrickson Dep.") 118:10-119:20, Ex. 4 to Adelman Decl., ECF No. 57-8) And due to new employment orientation and training, the candidate would not be able to work independently until at least April 20, 2010. Id. at 119:23-121:16.
Plaintiff applied for a CSR I position at Defendant's Sacramento Arden branch on March 18, 2010. Id. at 147:3-148:5. The Sacramento Arden branch CSR I position was filled on April 19, 2010. Id. at 147:23-24, 154:20-22. Plaintiff applied for a CSR III position in Defendant's Gardena, California branch on March 21, 2010. Id. at 97:7-17, 164:4-164:19. The Gardena CSR III position was filed on April 1, 2010. Id. at 164:23-24. Plaintiff applied for a CSR II position in Defendant's San Mateo, California branch on April 12, 2010. Id. at 97:21-98:9, 156:25-157:18. The San Mateo CSR II position was filed on May 3, 2010. Id. at 157:7-15. Plaintiff indicated her willingness to relocate on both the San Mateo and Gardena job applications. Id. at 94:14-25, 158:8-13, 165:3-6.
A. Disability Discrimination under the ADA and the FEHA
Defendant seeks summary judgment on Plaintiff's disability discrimination claims under the ADA and the FEHA arguing Plaintiff cannot satisfy her initial burden of establishing a prima facie case of discrimination. (Def.'s Mem. of P.&A. in Supp. of Mot. for Summ. J. ("Mot.") 1:28-2:2.) Defendant further argues that "[e]ven if Plaintiff could establish a prima facie case, . . . [Defendant] ha[d] legitimate, nondiscriminatory reasons for its employment decisions, and Plaintiff cannot meet her burden of establishing specific, substantial evidence of pretext for [Defendant's] employment decisions." Id. at 2:5-8.
When considering motions for summary judgment in employment discrimination cases under federal and state law, federal courts apply the McDonnell Douglas burden-shifting scheme as a federal procedural rule. Dawson v. Entek Intern., 630 F.3d 928, 934-36 (2011)(stating the McDonnell Douglas burden-shifting framework applies to state discrimination claims "regardless of th source of the federal court's subject matter jurisdiction over [the state] claim[s,]" i.e. diversity or supplemental).
The burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) has three steps. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). "The employee must first establish a prima facie case of discrimination." Id. To establish a prima facie case of disability discrimination under both the ADA and the FEHA, Plaintiff must show: "(1) [she] is a disabled person within the meaning of the statute; (2) [she] is a qualified individual with a disability; and (3) [she] suffered an adverse employment action because of [her] disability." Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 892 (9th Cir. 2001); Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007) (requiring a Plaintiff establish the following for a FEHA claim: "(1) [she] suffers from a disability; (2) [she] is otherwise qualified to do [her] job; and, (3) [she] was subjected to adverse employment action because of [her] disability").
An individual is "qualified" under both the ADA and the FEHA if he or she is able to perform the essential functions of the employment position that he or she holds or desires with or without reasonable accommodation. Samper v. Providence St. Vincent Medical Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012)(discussing the meaning of "qualified individual" under the ADA); Green v. State, 42 Cal. 4th 254, 264 (2007) (stating "the FEHA and the ADA both limit their prospective scope to those employees with a disability who can perform the essential duties of the employment position with reasonable accommodation").
"If the plaintiff establishes a prima facie case, the burden of production-but not persuasion-then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002).
"Finally, if the employer satisfies this burden, the employee must show that the 'reason is pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Davis, 520 F.3d at 1089 (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir.2000)).
1) Prima Facie Case of Discrimination
Defendant does not challenge Plaintiff's ability to satisfy the first element of her prima facie case for disability discrimination, i.e. whether she was "disabled" when Defendant decided to fill her position on February 4, 2010. Therefore, the issues to be decided are whether Plaintiff was a "qualified individual" at ...