Moore v. Regents of University of California

         APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2013-00032193- CU-OE-CTL, Katherine A. Bacal, Judge.

          Sheik Law and Mani Sheik for Plaintiff and Appellant.

          Andrews · Lagasse · Branch · Bell, Margaret C. Bell and Lisa M. Magorien for Defendant and Respondent.

          AARON, J.

         I.

         INTRODUCTION

         Plaintiff Deborah Moore appeals from a judgment entered in favor of defendant The Regents of the University of California (Defendant). Moore sued Defendant for claims under the Fair Employment and Housing Act (FEHA) (Gov. Code, ^[1] §§ 12900-12966) and the California Family Rights Act (CFRA) (§§ 12945.1, 12945.2).

         The trial court granted summary judgment in favor of Defendant. Our review of the record demonstrates that summary judgment was improperly granted with respect to Moore's first, second, third, fifth and sixth causes of action. Summary adjudication in favor of Defendant was appropriate, however, with respect to Moore's fourth cause of action.

         We reverse the judgment and remand the matter for further proceedings in the trial court.

         II.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual background

         Moore began working in UCSD's Marketing and Communications Department (the Department) in 2008. In February 2010, Moore became the Director of Marketing. Around that same time, the Executive Director of the Department resigned unexpectedly.

         In June 2010, Kimberly Kennedy was hired as the new Executive Director of the Department. According to a declaration submitted in support of Defendant's motion for summary judgment, after she was hired, Kennedy sought to restructure the department.

         In early September 2010, Moore was diagnosed with idiopathic cardiomyopathy. On or around September 10, 2010, Moore was prescribed and began wearing a heart monitor called a "LifeVest." The "LifeVest" is a monitor and external defibrillator. The "LifeVest" is worn outside of a person's clothing, like a vest, and the monitor, which is approximately six or eight inches by four to five inches in size, is attached to the vest by wires. Moore had to wear the "LifeVest" for two to three weeks.

         On the first day that Moore wore the vest to work, she met with Kennedy. Moore "told [Kennedy] what [her] condition was, " "told her what the heart monitor was for, " and informed Kennedy "that there was nothing to worry about, that it would take care of itself." Moore also told Kennedy that she "would be able to do [her] job, no problem, just continue, " that she did not feel any different, and that she would be doing therapy and taking medication to see whether her heart condition improved. If her condition did not improve, she would be getting a device similar to a pacemaker. Moore told Kennedy, "I'm fine, seriously." At that first meeting, in response to Moore informing Kennedy that she could "do [her] work and [her] job fine, " Kennedy responded, " 'The first thing we need to do is lighten your load to get rid of some of the stress.' "

         After speaking with Moore, Kennedy spoke with someone in the human resources department and asked, " '[I]f I have an employee who has a medical event, do I call the hospital or do I call- like, who do I call.' " Kennedy also requested from human resources information on what to do about an employee "with adverse health issues." (Italics added.)

         When Moore was told that she no longer needed to wear the "LifeVest, " and that it had been "overprescribed" to her, she informed Kennedy about the change. Kennedy told Moore that she had "been in touch with HR" to ask "how to handle [Moore] as a liability to the department." (Italics added.)

         Moore testified that her relationship with Kennedy changed after Kennedy became aware of Moore's heart condition. Based on this perceived change, Moore believed that Kennedy did not like the fact that Moore had a heart condition. Moore related a few instances in which she believed that Kennedy had unfairly criticized her work product, including Kennedy yelling at Moore in January 2011 regarding an advertising project, Kennedy seeking to change "the branding process to 'be her own, ' " and Kennedy being "hostile and snippy" when informing Moore and advertising agency representatives that she did not want to use the music that Moore and some coworkers had chosen for a commercial. Moore also testified that during three different meetings, Kennedy had "humiliated" Moore in disagreeing with the department's "previous branding look, " which Moore had had a role in creating.

         According to Moore, after Kennedy became aware of Moore's heart condition, she began eliminating Moore's "main responsibilities, " including her work on an "open enrollment program and advertising." Moore did not know why Kennedy reassigned the open enrollment program to someone else. In addition, Kennedy began overseeing the advertising herself rather than allowing Moore to continue doing so. Kennedy had started "sending work to freelancers, " including work that had previously been done internally. While Kennedy initially had Moore "oversee" the work of the freelancers, Kennedy later "took [Moore] off of overseeing the freelancers."

         In addition, as of November 2010, Kennedy began to meet with two of Moore's "reports" on issues that Moore believed she should have been overseeing. Kennedy also began arranging meetings that Moore had previously been in charge of coordinating.

         Moore testified that Kennedy assigned Moore to work on " 'less important' " projects, such as " secondary things to do that [Kennedy] didn't consider important to the department but had to be done." According to Moore, Kennedy was "taking away [Moore's] job responsibilities, " and Moore came to believe that Kennedy "was positioning to get rid of [Moore]."

         In approximately mid-November 2010, Kennedy demoted Moore, through a Department restructuring, to a new classification. Moore's new title became "Director of Marketing and Brand Management." Moore's salary did not change, but certain other benefits were reduced. Also in November 2010, Kennedy implemented reclassifications of Department positions and laid off two full-time employees.^[2] At that time, Kennedy told her staff that this "was the last layoff that was going to happen."

         Moore told Kennedy in December 2010 that she would likely have to have a pacemaker surgically implanted in early 2011 and would need "only" a "few days off work." In January 2011, Moore informed Kennedy that she had postponed her surgery and "would need 'like two or three' days off in April 2011." Kennedy did not say anything in response to Moore's statements regarding the need for time off for surgery. Kennedy has no recollection of discussing Moore's need for surgery or her statements about having to take time off for such surgery.

         On February 2, 2011, Kennedy sent an e-mail to Courtney Morris, a Director of Compensation and Benefits in the Human Resources Department, indicating that she wanted to eliminate Moore's position, effectively terminating Moore's employment, as of February 15, 2011. According to Kennedy, the job functions that Moore was performing had decreased to such a point that Kennedy could assume them, and therefore, Kennedy decided to eliminate Moore's position.

         In response to Kennedy's e-mail regarding the elimination of Moore's position, Morris asked Kennedy to "please explain why Karen [Shea] should be retained out of seniority (see policy clause below). I want to make sure that this is reflected in the file." The policy to which Morris was referring stated:

         At the time Kennedy requested to eliminate Moore's position and terminate her employment, Moore and Shea "f[e]ll in the same payroll, title, and the same classification."

         Kennedy's response to Morris's request for an explanation as to why Kennedy was not adhering to the policy with respect to Moore and Shea was as follows:

         Thus, in responding to the request from Human Resources for an explanation as to why the policy was not being followed, Kennedy explained the reasons for the elimination of Moore's position, but did not provide information regarding her assessment as to any "special skills, knowledge, or abilities" that Shea possessed and Moore did not. Kennedy conceded during her deposition that Moore "[p]robably" had the "skills to fill" the role that Shea fulfilled. Kennedy also acknowledged that Shea had "only held that role for a few months" at the time Moore was terminated.

         Defendant also has a policy regarding a reduction in force that requires Defendant to " '[g]ive regular status employees preferential opportunities for reassignment or transfer prior to indefinite layoff.' " As interpreted by Andrea Balestrieri, Defendant's identified person most knowledgeable about reduction in force policies in effect at the time of Moore's termination, the "idea [behind the policy] is to minimize impact to employees and to minimize the need to lay someone off." Balestrieri also testified regarding another policy referred to as a "right to recall." Pursuant to this policy, "if a position is opened after an individual is laid off and the position is in the same classification, the same salary grade, they would have the right to recall"-i.e., be rehired into that position.

         Defendant eliminated Moore's position on February 15, 2011, and Moore was terminated. Moore was informed that she was being laid off because her position was being eliminated due to "lack of work" and "budget reasons."

         Shea testified that after Moore was terminated, Kennedy and Shea discussed "[Shea] taking over duties that Deb Moore used to have, " and that some of Moore's "direct reports reported in to [Shea] for a short period of time, " after which they reported to "Beth Reagan, who reported directly to Kim Kennedy." Moore understood that her "position and [her] tasks were given to somebody else on staff there who just had a slightly different title."

         A year and a half after terminating Moore, Kennedy "made some additional restructuring redundancies."

         Kennedy did not ask Moore if she would accept a pay reduction, nor did Kennedy consider Moore for a freelance position. There is no evidence that Kennedy offered Moore any of the positions that were filled around the time of, or after, her termination.

         B. Procedural background

         Moore filed her complaint on January 28, 2013, alleging causes of action under FEHA for disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation, as well as causes of action for interference with CFRA and retaliation in violation of CFRA.

         Defendant moved for summary judgment a little over a year after the case was filed. The trial court ruled in favor of Defendant on the motion, concluding that Moore had not demonstrated that there remained triable issues of material fact with respect to any of her causes of action.

         The trial court subsequently entered judgment in favor of Defendant. Moore filed a timely notice of appeal from the judgment.

         III.

         DISCUSSION

         A. Applicable legal standards

         1. Summary judgment standards

         "Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. [Citation.] On appeal, the reviewing court makes ' "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." ' " (Hesperia Citizens for Responsible Development v. City of Hesperia (2007) 151 Cal.App.4th 653, 658.)

         In independently examining the record on appeal "to determine whether triable issues of material fact exist, " we " 'consider[ ] all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.' " (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530 (Ambriz).) Further, " 'we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [the plaintiff's] evidentiary submission while strictly scrutinizing the defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.' " (Ibid.)

         " 'In the summary judgment context, ... the evidence must beincapable of supporting a judgment for the losing party in order to validate the summary judgment.' " (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877 (Faust), italics added.) " 'Thus even though it may appear that a trial court took a "reasonable" view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.' " (Ibid, italics added.)

         2. Overview of FEHA and CFRA

         a. Overview of FEHA as relevant to Moore's case

         FEHA makes it an unlawful employment practice to discharge a person from employment or discriminate against the person in the terms, conditions, or privileges of employment because of physical or mental disability or medical condition. (§ 12940, subd. (a).) FEHA, however, "does not prohibit an employer from... discharging an employee with a physical or mental disability, ... where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations...." (§ 12940, subd. (a)(1).) FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her disability (disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (disparate impact discrimination). (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129, disapproved on other grounds in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.)

         FEHA also imposes on the employer the obligation to make reasonable accommodation: "It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶]... [¶] (m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." (§ 12940, subd. (m).) An employer is not required to make an ...