United States District Court, C.D. California, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT  AND GRANTING MOTION FOR SUMMARY JUDGMENT 
DAVID O. CARTER, District Judge.
Before the Court are the Motion for Summary Judgment filed by Macy's West Stores, Inc. (Dkt. 69) and the Motion for Summary Judgment filed by Macy's Retail Holdings, Inc. and Macy's Corporate Services, Inc. (Dkt. 81).
A. Ms. Dezham's Employment with Macy's
In 1997, Plaintiff Hourvash Dezham began working as a sales associate in Macy's intimate apparel department. Macy West Stores, Inc.'s Statement of Uncontroverted Material Facts and Conclusions of Law ("Macy's UF") 8. Ms. Dezham started working at the Valley Fair location but later transferred to the South Coast Plaza location in Costa Mesa, California. Macy's UF 9. On July 9, 2010, Ms. Dezham injured her foot in a fall at work. Macy's UF 13-14. Afterward, Macy's filed a workers' compensation claim on behalf of Ms. Dezham and she was placed on a leave of absence at the request of her physician. Macy's UF 16.
At that time, Macy's had a Workers' Compensation Return to Work Policy, which stated as follows:
Macy's policy is to comply with the American With Disabilities Act, as amended ("ADA"). Macy's will ensure compliance with the ADA by entering into the interactive dialogue with employees who have work related injuries/illnesses by doing one or more of the following: 1.) attempt to provide a reasonable accommodation(s) to enable the employee to return to his/her same job; 2.) reassign the employee to an open available equivalent job if his/her medical restrictions prevent him/her from returning to his/her same job or if his/her job has been filled as a result of an undue hardship; or 3.) if an equivalent position is not available, reassign the employee to a non-equivalent job that meets his/her medical restrictions, either with or without an accommodation, pay and benefits commensurate with the non equivalent job. A reasonable accommodation enables a disabled employee to perform the essential functions of his/her job or any other job for which he/she is qualified. An employee is able to return to his/her regular job if he/she is able to perform the essential functions of the job, with or without reasonable accommodations.
If no accommodation is possible and if the employee is unable to perform the essential functions of his/her job, Macy's will determine whether the employee can be given a light duty job. A light duty job is a job that is not a bona fide budgeted open position, but is one that has been created solely for the purpose of allowing an employee with a work incurred injury/illness to temporarily return to work. If the employee needs a light duty job, the length of this assignment will not exceed 90 days on a per claim basis. (The 90 day period is determined by counting calendar days from the date the employee begins the light duty.)
If restrictions require an employee to work a reduced hour or intermittent schedule, the hours not worked will run concurrently with FMLA** (if the employee is eligible) and any other applicable statutory leave law.** If medical restrictions include working a reduced hour schedule or to work intermittently, and the employee is not FMLA eligible, then working a reduced schedule or intermittently as light duty can not last longer than 90 days. At the conclusion of the 90 day period, Macy's will again conduct the interactive dialogue with the employee to determine whether the medical restrictions have changed to allow the employee to transition back to either his/her original position or an equivalent bona fide, open budgeted job for which he/she is qualified, or if no equivalent job is available, another job for which he/she is qualified, pay and benefits commensurate with that other job. Macy's must also determine whether intermittent or reduced schedule leave is available in the employee's same position under the FMLA, equivalent state leave law or the ADA. Restrictions limiting the number of hours worked can not be accommodated in light duty positions for salaried executives who are ineligible for FMLA. Whether a salaried executive with hours restrictions is eligible for a bona fide salaried executive position will be evaluated on a case by case basis considering the amount of hours restricted and the type of job.
Smaili Decl., Ex. D.
On July 30, 2010, Macy's Return to Work Coordinator sent Ms. Dezham a letter stating that Ms. Dezham's physician had informed Macy's that Ms. Dezham could return to work with certain restrictions. Smaili Decl., Ex. C, Dkt. 89-3. The letter identified a temporary assignment and requested that Ms. Dezham report to work on August 5, 2010. Id. The letter also stated that it was Macy's goal "to eventually return you to your full duty position." Id. Ms. Dezham testified that when she reported to work on August 5, 2010, Macy's human resources representative, Roberta Eagle, was surprised to see her, told her that a modified position was not ready, and sent her home. Dezham Dep. 131:11-132:10, May 16, 2014.
On August 23, 2010, Ms. Dezham's doctor filled out a Work Restriction Summary form, which provided the following work restrictions: "Use cast shoe for ambulation. Seated/desk work only. No climbing or uneven surfaces. Must be allowed to use cane, splint as directed." Smaili Decl, Ex. F (MACYS001574). The form also indicated that Ms. Dezham could return to modified duty with the indicated restrictions on August 23 through September 3, 2010.
In late August 2010, Macy's assigned Ms. Dezham to perform modified/light duty in the Administrative Support Team ("AST") department. Macy's UF 18, 21. This temporary position was created to meet Ms. Dezham's restrictions of sitting for most of the shift but would also allow her flexibility to stand and walk when able as well. Macy's UF 21. Ms. Dezham was not "coded" as an AST associate. Macy's UF 22. She was simply placed in the executive office to do clerical work until her health improved and she was able to return to her previous position or until Macy's could find another position that met her restrictions. Macy's UF 22. This assignment was to last no more than 90 days, pursuant to Macy's policy. Macy's UF 22. Ms. Dezham's role in the AST department was similar to that of a temporary employee and her duties included making photocopies, answering phones, and other administrative tasks. Macy's UF 24. Ms. Dezham testified that, while she was in the temporary AST assignment, she was asked on two occasions to help in the fitting room in the store. Dezham Dep. 148:9-17.
On October 20, 2010, Ms. Dezham's doctor filled out an updated Work Restriction Summary, which, among other things, placed a restriction on Ms. Dezham to "[s]tand and walk 30 minutes per hour, 4 hours total out of an 8 hour shift for the next 3 weeks. Then return to normal work." Eagle Dep., Ex. D, p. 2 (MACYS001572). On December 21, 2010, Ms. Dezham's doctor updated the restrictions as follows: "Stand no more than 10 cumulative minutes per hour, for no more than 1 hour(s) per day. Walk no more than 10 cumulative minutes per hour, for no more than 1 hour(s) per day." Smaili Decl., Ex. V. On January 12, 2011, Ms. Dezham's doctor again updated Ms. Dezham's restrictions as follows: "Lift/carry no more than 10 pounds. Push/pull no more than 10 pounds. Should not stand or walk more than 20 minutes per hour. May work 8 hrs. shift. No climbing or uneven surfaces." Eagle Decl., ¶ 13, Ex. D, Dkt. 76-1.
It is not clear exactly when but at some point between November 2010 and January 2011, Ms. Dezham was returned to her position on the sales floor in the intimate apparel department. During Ms. Dezham's temporary assignment in the AST department, Ms. Eagle and a member of Macy's return to work department reviewed Ms. Dezham's restrictions to determine what accommodations could be made that would allow Ms. Dezham to return to her sales position. Macy's UF 29. They decided that purchasing a motorized scooter would allow Ms. Dezham to perform her job duties on the sales floor while still meeting her restrictions. Macy's UF 29-30.
Ms. Dezham performed her job duties with the assistance of the scooter for approximately five months. Macy's UF 38. Ms. Dezham was able to honor the restrictions imposed by her doctor while working with the scooter. Macy's UF 37. However, Ms. Dezham contends that use of the scooter and difficulties she had in meeting her sales goals caused her to develop extreme back pain. On May 27, 2011, Ms. Dezham's physician placed her back on a leave of absence because of her pain. Macy's UF 38. On July 6, 2011, Ms. Dezham had exhausted her eligibility for leave under the Family Medical Leave Act but she remained on leave. On October 12, 2011, Ms. Dezham exhausted all eligible leave under Macy's leave policy. Subsequently, Macy's granted Ms. Dezham multiple extensions of her leave of absence, the last of which authorized an extension through January 2, 2012. On January 6, 2012, Ms. Dezham's doctor provided a note stating that he was "unable to give a return date in the reasonably foreseeable future as the leave is indefinite."
After she was placed on a leave of absence in May 2011, Macy's granted several requests to extend the leave of absence until January 2012. Macy's UF 40.
On January 16, 2012, Macy's sent Ms. Dezham a letter stating that, because Ms. Dezham's doctor could not give a return date in the reasonably foreseeable future, it was denying her request for another extension of the leave of absence and it would take her "off roll, effective January 24, 2011 [sic]." Smaili Decl., Ex. M. The letter also stated that Ms. Dezham was free to reapply for a position with Macy's in the future. Id.
B. Ms. Dezham's Reapplication
In March 2013, Ms. Dezham was released by her doctor to work. Macy's UF 47. In the spring of 2013, Ms. Dezham submitted online applications for positions at both the Laguna Hills and Costa Mesa Macy's locations. All application vetting is done by Macy's Employment Support Center, which is located in Clearwater, Florida. An employee in Florida reviews each application and considers the qualifications of the candidate, the pay rate requested versus the pay rate allowed for the position, the applicant's response to the various questions on the application, and other factors. The only information that the reviewer in Florida will know about the applicant is what appears on the application itself. Macy's UF 50.
After submitting her application to work at the Laguna Hills location, Ms. Dezham received an e-mail response stating, "Unfortunately, we are unable to consider your application further for this opportunity. We invite you to continue to visit www.macysJOBS.com to discover and apply for new employment opportunities as they become available." Dezham Decl., Ex. A.
After submitting her application to work at the Costa Mesa location, Ms. Dezham received an e-mail asking her to schedule an interview. Macy's UF 51-52. Ms. Dezham was interviewed on June 1, 2013. During the interview, Ms. Dezham state that she needed a seated position and wanted to be in the AST department. After the interview was over, the interviewer exchanged text messages with the manager of the AST department, Shawn Fahey, about Ms. Dezham. In the exchange, Mr. Fahey (who had supervised Ms. Dezham while she was in her temporary position in AST) indicated that Ms. Dezham was good at sales but not a good fit for AST. He also stated that there were no openings in AST.
Ultimately, Ms. Dezham was not hired. Macy's contends that she was not hired because when the interviewer checked Macy's job board after the interview, the openings had all been filled. Macy's UF 53. Instead, the interviewer "benched" Ms. Dezham's application for future consideration. Macy's UF 53. Benched applications are put in a file in the store to be available to any managers seeking to fill an opening. Macy's UF 54.
C. Corporate Structure of Macy's Defendants
Defendant Macy's Retail Holdings, Inc. ("MRH") is the parent company of Defendant Macy's West Stores, Inc. ("MWS" or "Macy's") and Macy's Corporate Services, Inc. ("MCS"). Dkt. 82, MRH's Statement of Uncontroverted Material Facts and Conclusions of Law ("MRH's UF") 1. MRH is a wholly-owned subsidiary of Macy's, Inc., which is not a party to this action. MRH's UF 2. MRH operates department stores across the United States but does not operate the stores in California under the Macy's trade name. MRH UF 4.
MWS is the employer of all individuals-including Ms. Dezham-who work in retail stores in California operating under the trade name "Macy's." MRH UF 5. MWS is responsible for directing the day-to-day activities of all store employees. MRH UF 6. MCS does not operate any retail department stores nor does it offer any merchandise for purchase on-line in any state. MRH UF 7. Neither MCS nor MRH employs any store personnel in California. MRH UF 8-9.
D. Ms. Dezham's Claims and the Motions of Summary Judgment
On October 17, 2013, Ms. Dezham filed a lawsuit against MWS, MCS, and MRH in Orange County Superior Court. On November 27, 2013, the defendants removed the action to federal court. The operative complaint-Ms. Dezham's First Amended Complaint ("FAC")- asserts nineteen claims: (1) age discrimination; (2) race/national origin discrimination; (3) physical and mental disability/medical condition discrimination; (4) discrimination based on participation in protected conduct; (5) failure to prevent or remedy discrimination and harassment; (6) retaliation; (7) harassment; (8) intentional infliction of emotional distress; (9) refusal to accommodate disability/medical condition; (10) violation of Article I, § 8 of the California Constitution; (11) refusal to hire/reinstate; (12) wrongful termination; (13) failure to pay vacation time/wages; (14) violation of California Labor Code §226(b); (15) violation of the Age Discrimination in Employment Act; (16) violation of the Americans with Disabilities Act; (17) violation of Title VII (42 U.S.C. § 2000); (18) violation of the Civil Rights Act of 1866 (42 U.S.C. § 1981); and (19) unfair competition. The Court previously dismissed Ms. Dezham's Eighth claim.
Macy's filed its Motion for Summary Judgment seeking adjudication of Ms. Dezham's remaining eighteen claims. Dkt. 69. MCS and MRH filed their Motion for Summary Judgment arguing that they cannot be liable for Ms. Dezham's claims because they were not her employer. Dkt. 81.
II. LEGAL STANDARD
Summary judgment or partial 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 (1962); 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.
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. Whether a fact is material is determined by the substantive law governing the claim or defense. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
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 required only to consider evidence set forth in the moving and opposing papers and in 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 mere existence of a ...