United States District Court, C.D. California, Southern Division
ORDER GRANTING DEFENDANT COX COMMUNICATIONS, INC.'S MOTION FOR
SUMMARY JUDGMENT  GRANTING IN PART AND DENYING IN PART DEFENDANTS COX COMMUNICATIONS CALIFORNIA, LLC'S AND COXCOM, LLC'S MOTIONS SUMMARY JUDGMENT 
DENYING AS MOOT DEFENDANT COX ENTERPRISES, INC.'S MOTION FOR SUMMARY JUDGMENT
 DENYING PLAINTIFF'S MOTION FOR SANCTIONS  SETTING MANDATORY SETTLEMENT
CONFERENCE WITH MAGISTRATE JUDGE MCCORMICK ON MONDAY, APRIL 13, 2015, AT 11:00
A.M. SETTING BRIEFING SCHEDULE FOR MOTIONS IN LIMINE                  
REQUIRING LODGING OF AMENDED FINAL PRETRIAL ORDER 
DAVID O. CARTER, District Judge.
Before the Court are Defendant Cox Communications, Inc.'s Motion for Summary Judgment ("CCI Mot.") (Dkt. 48), Defendants Cox Communications California, LLC's and CoxCom, LLC's Motion for Summary Judgment ("CCC Mot.") (Dkt. 49), Defendant Cox Enterprises, Inc.'s Motion for Summary Judgment ("CEI Mot.") (Dkt. 50), and Plaintiff's Motion for Sanctions ("Sanctions Mot.") (Dkt. 52).
This case arises from Plaintiff Dave DelGiacco's claim that his employer suspended him for taking Family Medical Leave Act (FMLA) leave and that his employer failed to reasonably accommodate his need to check his blood sugar levels to manage his type II diabetes. See generally Compl. (Dkt. 1).
1. Plaintiff's Job
Plaintiff worked as a retention representative for "Cox, " a cable television and internet services provider, in Orange County, California from approximately May 2008 to December 2011. The parties dispute which Cox entities actually employed Plaintiff. This issue is discussed in greater detail infra. His job was to answer phone calls from customers who wanted to cancel service, to resolve customer concerns and issues, and to upsell services. CCC-PAF Nos. 1-2.
His direct supervisor from 2009 to October 2011 was Erica Wilson. Wilson's replacement Mariza Garcia was Plaintiff's direct supervisor from November 2011 until his suspension on December 7. Erica Wilson Dep. 162:1-163:16. Wilson, and later Garcia, oversaw Plaintiff's work on a day-to-day basis. They, in conjunction with their boss, retention department manager Jessica Allsopp, made decisions on scheduling the work day of Plaintiff and approximately twelve other retention representatives. CCC-SUF Nos. 13, 28, 95. In 2011, the human resources employee who consulted with Plaintiff's department was Chona Boretti. CCC-SUF No. 21.
Plaintiff had two fifteen-minute rest breaks and a half-hour lunch break provided every day. In addition to regular breaks, all agents were permitted to use a "personal" code in their phone system to temporarily stop calls for personal needs, such as going to the bathroom. CCC-SUF Nos. 49-50. The expectation of Plaintiff's position was that he would be available to answer phone calls 88% of the day, excluding meal and rest breaks. Plaintiff can recall only one month, in 2010 or 2011, when Erica Wilson raised any issues with his occupancy level on the phones. CCC-SUF Nos. 54-55. Plaintiff sometimes smoked during his rest breaks. He sometimes sent personal emails and joked and bantered with his friends at Cox in person or over chat messages during the workday. CCC-SUF Nos. 58-59.
2. Plaintiff's Health Issues and Alleged Requests for Accommodations
Plaintiff was first diagnosed with type II diabetes in January 2010. CCC-SUF No. 36. At the time of his diagnosis, he was educated on the course of care he should follow for diabetes, including the need to "test your blood before you eat, test your blood after you eat, test your blood if you're not feeling well." CCC-SUF No. 37. The blood test would take 30 seconds to a couple of minutes. After his diagnosis in January 2010, Plaintiff needed to test his blood from one to ten times a day. He usually tested his blood from one to four times per day during work hours. He usually tested his blood at his desk or sometimes in his car, both during and outside of rest break and meal break times. CCC-SUF Nos. 38-44, 46. Sometimes Plaintiff took intermittent FMLA leave during a workday, ranging in duration from a few minutes to a few hours, to test his blood sugar levels. On the days when he took FMLA leave, he may have tested his blood sugar other times during that same day, without needing to take FMLA leave for that other testing. CCC-SUF No. 47.
From August 2010 to January 2011, Plaintiff took FMLA leave first to care for his wife while she was dying from cancer, and after her death, to take care of his own post-traumatic stress disorder ("PTSD"), anxiety disorder, and major depressive disorder. CCC-PAF Nos. 23-25. Prior to returning from caring for his wife and himself, he was asked to identify any medical restrictions that he may have, and his doctor stated that he was prepared to "resume his duties from a medical perspective as of 1/3/11." CCC-SUF No. 61. When Plaintiff returned from leave in January 2011, he says everyone was "Very professional, very congenial, very welcoming." CCC-SUF No. 135.
a. Request for "Medical" Code
After returning to work, Plaintiff claims to have asked his supervisor Erica Wilson about a code that he could use to log off the phone system, without any adverse consequences, such that he could take additional short breaks during his shift to check his blood sugar levels and manage his diabetes. CCC-PAF No. 12. Plaintiff claims that he was told there was no code and that there was no other alternative accommodation available, even though Cox in fact did have a "medical" code for its employees. CCC-PAF Nos. 14-15.
b. Request to Stand Up and Walk Around
Plaintiff also claims that he vocalized a need for accommodation to Erica Wilson. Plaintiff testified at his deposition that he recalls
going in and talking to Erica that I'm a diabetic, and I need accommodations. And one of the accommodations that I need was for my neuropathy. You know, Erica was a fantastic supervisor over there at Cox, you know, directing me towards Chona. As you can see. I spoke to Erica about my medical condition, and then she directed me to Chona.... Chona was in human resources department.
CCC-SUF Nos. 63-64.
On July 7, 2011 at 5:27 p.m., Plaintiff sent an email to Chona Boretti in HR stating that he spoke to his supervisor about his medical condition and its "nothing that seems to be serious, although she mentioned I should speak to you to document. My medical condition requires that I walk around at times to increase circulation in my legs to slow the progression of the disease, " and inquired if he could get a code to log off the phones so he could get up and move around. CCC-SUF No. 66. Boretti responded in writing the next morning stating "it appears from your information below that you are not seeking a medical leave of absence but requesting temporary restrictions to be made at work due to a medical condition you have, " and that she needed a doctor's note "indicating the specific restriction and how long a period these restrictions would be for." She gave examples such as "no bending, kneeling, walking on right leg for two weeks beginning 6.8.11" for specificity to be included in the note. Her letter concluded, "due to HIPPA regulations, please do not disclose the specific medical condition you have." CCC-SUF No. 67. Neither Plaintiff nor Boretti recall Plaintiff providing her a medical note. Plaintiff claims he provided medical documentation to Cox's FMLA administrator. DelGiacco Decl. ¶ 24 (Dkt. 53-3).
In 2011, Cox contracted with an ergonomics consultant, Mike Gee, who runs a company called Pro-Fit Ergonomic Solutions, and he engaged in workplace assessments, including recommending changes to work stations to avoid injury. In 2011, Gee visited company offices every week or two and met with employees who had been identified as needing his assistance with ergonomic related issues. Plaintiff believes that either his supervisor or Boretti sent Gee an email, instructing Gee to contact Plaintiff. Plaintiff states that Gee "came over, he accommodated, he put a thing on my desk that I could lift it up so I could stand up." Gee also provided Plaintiff some exercises he could do. Plaintiff had a wireless headset in 2011. For a time, Plaintiff could walk around the office while on the phone without limitation, but later he was told he had to stay closer to his own desk. CCC-SUF Nos. 77-83.
c. Request for Private Space
Plaintiff also claims to have vocalized a need for accommodation to Mariza Garcia. Garcia became Plaintiff's supervisor in November 2011, after transferring from another department. CCC-SUF Nos. 84-85. Plaintiff claims there was a nurse who worked for Aetna who suggested to him that he test in "a private area where he can be calm." He never asked for or was provided a note from this nurse discussing this suggestion to test in a private area. On November 16, 2011, Plaintiff sent an email to Garcia stating, "Mariza... did you find out about a place to test my glugose [sic] levels? No big.... just checking...." CCC-SUF Nos. 86-88. Garcia summarized Plaintiff's concerns in an email to Chona Boretti in HR in November 2011, and Boretti responded to her with specific questions. CCC-SUF No. 89. Plaintiff claims he never heard back from Garcia or anyone else at Cox. DelGiacco Decl. ¶ 9. Garcia recalls telling him he could use an empty office or a locking bathroom close to him. Garcia Decl. ¶ 10 (Dkt. 49-3).
3. Plaintiff's Suspension
On December 7, 2011, Plaintiff was suspended from his job after a meeting with his supervisor Garcia, her supervisor Jessica Allsopp, and HR representative Chona Boretti. Defendants maintain that Plaintiff was suspended because he mishandled some customer calls by intentionally hanging up on them or transferring them to other departments. Defendants claim that Garcia and Allsopp discovered these allegedly mishandled calls on December 6, 2011 when Allsopp used tapes of calls handled by Plaintiff and others to train Garcia on using Qfiniti software to monitor agents' calls. See CCC-SUF Nos. 101-114. The problematic calls included calls where Plaintiff disconnected before the customer did, where Plaintiff allegedly transferred a customer who wished to disconnect to the sales department, where Plaintiff allegedly transferred to tech a customer who wished to cancel voicemail, and where Plaintiff allegedly improperly told a customer who wished to cancel in two weeks that it was too soon and they should go to a retail store. See CCC-SUF Nos. 112-113. That day, Allsopp called and emailed her boss, Pablo Pareja, about the issues she identified with Plaintiff's calls. CCC-SUF No. 140. The next day, on December 7, she sent an email to the IT department seeking records that would show which calls where Plaintiff hung up before the customer. CCC-SUF No. 112.
Plaintiff does not dispute that handling calls in the manner described would be against the company's policy. CCC-SUF Nos. 116-118, 124, 129. However, he vigorously disputes that he actually mishandled any calls. He asked at the December 7 meeting to listen to the calls, but Allsopp refused to allow him to listen to the calls. CCC-PAF Nos. 79-80, 83. The tapes of the calls have since disappeared. The only records left are Allsopp's notes and a spreadsheet sent by the IT department.
Plaintiff was told on December 7 that it would be about a week until the investigation was completed. CCC-SUF No. 141. On December 12, Plaintiff certified that he was disabled and unable to work due to a medical condition as of December 6, 2011. CCC-SUF No. 131. He has not returned since. Cox made the decision to fire him a few days after he went on medical leave. However, they never formally notified Plaintiff of their decision. CCC-PAF No. 4.
B. Procedural History
Plaintiff has filed three complaints with California's Department of Fair Employment and Housing (DFEH) alleging that Cox discriminated against him on the basis of disability. The first was on September 14, 2012. CCC-SUF No. 3. The second and third were after this lawsuit began, on January 8, 2014 and March 9, 2015. CCC-SUF No. 1; Mazda Decl. Ex. L (Dkt. 53-2).
Plaintiff brought suit in Orange County Superior Court on July 23, 2013, alleging two causes of action: (1) discrimination and retaliation for taking FMLA leave; and (2) disability discrimination in violation of the California Fair Employment and Housing Act (FEHA), specifically, failure to reasonably accommodate Plaintiff's disability and failure to engage in an interactive process with Plaintiff. See generally Compl.
The lawsuit was removed to federal court on February 11, 2014. Notice of Removal (Dkt. 1). The instant Motions for Summary Judgment and Motion for Sanctions were filed on March 2 and 5, 2015, respectively (Dkts. 48, 49, 50, 52). After briefing was completed, oral argument was held on April 2 (Dkt. 94).
II. Legal Standard
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. Cox Enterprises, Inc. Motion for Summary Judgment
On March 11, 2015, the parties stipulated for Plaintiff to dismiss all claims against Cox Enterprises, Inc. (Dkt. 57). Accordingly, Cox Enterprises, Inc.'s Motion for Summary Judgment is DENIED AS MOOT.
B. Whether Cox Communications, Inc. is Plaintiff's Employer for FMLA and FEHA Purposes
Defendant Cox Communications, Inc. ("CCI") argues that Plaintiff's claims against CCI should be dismissed because CCI is not Plaintiff's employer within the meaning of the FMLA or FEHA, unlike its subsidiaries Defendants CoxCom, LLC ("CoxCom") and Cox Communications California, LLC ("CCC").
The FMLA defines an employer as "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, " including "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer" and "any successor in interest of an employer." 29 U.S.C. § 2611(4). FEHA defines an "employer" as "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly...." Cal. Gov't Code § 12926(d). A parent corporation can be treated as a single employer with its subsidiaries under "integrated enterprise" or "joint employer" tests developed by the courts. Based on these statutory definitions, a parent corporation can also be held liable if it acted as its subsidiary's agent.
The Court will address each test in turn.
1. Integrated Enterprise Test
The integrated enterprise test is often used by federal courts and has been adopted for FEHA claims. The test has four factors: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. Laird v. Capital Cities/ABC, Inc., 68 Cal.App.4th 727, 737 (1998). To demonstrate a triable issue of fact on the "interrelations of operations" prong at summary judgment,
the plaintiff must do more than merely show that officers of the subsidiary report to the parent corporation or that the parent benefits from the subsidiary's work. Since these facts exist in every parent-subsidiary situation, such a showing would create a triable issue of material fact in every case. What the plaintiff must show, rather, is that the parent has exercised control "to a degree that exceeds the control normally exercised by a parent corporation."
Id. at 738 (quoting Frank v. U.S. W., Inc., 3 F.3d 1357, 1362 (10th Cir. 1993)). To satisfy the centralized control of labor relations prong, often considered the most important, the parent must control the subsidiary's day-to-day employment decisions, not just make broad general policy statements about employment matters. Id. Defendants concede that the fourth factor is met. However, common ownership or control alone is never enough to establish parent liability. Id. at 738. Therefore, the Court must consider whether the first three factors have been met.
The relevant facts are as follows:
Plaintiff's 2011 W-2 identified "CoxCom, Inc." as his employer. CCC-SUF No. 12. CoxCom is a wholly-owned subsidiary of CCI. CCI-PAF No. 235. CoxCom was organized as a corporation until mid-2011, when it was reformed into CoxCom, LLC. In 2011, CoxCom owned and operated the cable system in Orange County where Plaintiff worked. CCC-SUF Nos. 8-9. In January 2012, CCC was formed as a wholly-owned subsidiary of CoxCom to hold and operate all CoxCom's California cable television assets, which consist of cable systems in San Diego, Orange County, Palos Verde, and Santa Barbara. CCC-SUF No. 10.
In December 2011, CCI had 89 officers and CoxCom had 56 officers. Of these, 14 persons were simultaneously officers of both CCI and CoxCom. CCI and CoxCom also had one director in common at that time. CCI-SUF Nos. 10, 35. This factor weighs against finding CCI to be an integrated enterprise with its subsidiaries.
CCI provides a number of services for CoxCom and CCC employees in California. Some are services that support local personnel. For instance, CCI has a human resources department that provides support for its subsidiaries' human resources personnel. Sangston Dep. 34:17-35:11. CCI develops training materials and provides training in areas where CCI believes it is important to have consistent messaging across its subsidiaries, such as ethics. Local subsidiaries also develop and conduct much of their own training in areas such as product and service offerings, installation, and programming. Id. at 10:12-14:4, 27:14-29:8, 45:15-46:25. Similarly, the local subsidiaries have their own public affairs and government relations personnel, but CCI provides support in those areas. Id. at 35:25-36:12. CCI also provides support with email and records retention, IT, tax, accounting, payroll administration, marketing and sales, technology and engineering. Id. at 36:18-38:21.
Some functions are maintained only at CCI. For instance, CCI interfaces with UNUM, a third-party vendor that administers an FMLA leave program for all Cox employees throughout the country. Id. at 36:13-17. CCI's legal department functions as the legal department for all of its subsidiaries. CCI employs Joe Freeman, a senior employment attorney who provides legal advice to human resources personnel regarding CCI and CCI subsidiaries' employees. Id. at 10:12-14:4, 37:2-5. CCI's legal department issues litigation holds and conducts electronic discovery, including in this case. Id. at 60:21-61:15.
In 2014, as part of a broad decision to take certain functions out of the local market and "into a center of excellence model, " CCI made the decision to close the Rancho Santa Margarita call center, where Plaintiff worked, and to ...