California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of San Diego County,
No. 37-2013-00032193- CU-OE-CTL, Katherine A. Bacal, Judge.
Law and Mani Sheik for Plaintiff and Appellant.
Andrews · Lagasse · Branch · Bell,
Margaret C. Bell and Lisa M. Magorien for Defendant and
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,  §§
12900-12966) and the California Family Rights Act (CFRA)
(§§ 12945.1, 12945.2).
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.
reverse the judgment and remand the matter for further
proceedings in the trial court.
AND PROCEDURAL BACKGROUND
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.
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
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
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.' "
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.)
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.)
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.
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."
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
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
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. At that time,
Kennedy told her staff that this "was the last layoff
that was going to happen."
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.
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.
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
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."
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:
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.
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.
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."
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
and a half after terminating Moore, Kennedy "made some
additional restructuring redundancies."
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
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.
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.
trial court subsequently entered judgment in favor of
Defendant. Moore filed a timely notice of appeal from the
Applicable legal standards
Summary judgment standards
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.)
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.' "
'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,
Overview of FEHA and CFRA
Overview of FEHA as relevant to Moore's case
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.)
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