Gutierrez v. Kenneth Cole Productions, Inc.

          ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this employment discrimination action, both sides move for summary judgment. For the reasons stated below and to the extent stated below, plaintiff’s motion is Denied, and defendant’s motion is Granted in part and Denied in part.

         STATEMENT

         Defendant Kenneth Cole Productions, Inc., an apparel fashion and design company, operated retail stores for shoes and apparel throughout the country, including one store in San Francisco. In 2013, the retail segment of Kenneth Cole’s business performed below expectations, losing several million dollars (Seelig Decl., Exhs. A-B; Seelig Dep. at 29-31; Catropa Dep. at 159). The San Francisco store suffered particularly sharp losses in 2013 as well as the preceding four years (Massoni Dep. at 37; Seelig Decl., ¶ 7, Exh. D). One factor that Kenneth Cole identified as contributing to the poor performance of the San Francisco store from 2009-13 was that it lacked a dedicated store manager (Massoni Dep. at 35-38). Nevertheless, Kenneth Cole forecasted significant overall financial growth in 2014 (Phillips Decl., Exh. 25).

         In August 2013, Kenneth Cole hired plaintiff Cynthia Gutierrez as the store manager in San Francisco. Kenneth Cole did not hire any other store managers for the San Francisco store, although it had an assistant store manager. The San Francisco store was the only full-priced retail store in northern California although Kenneth Cole operated four outlet stores between thirty and one hundred miles away.^[1]

         On November 25, 2013, Gutierrez was diagnosed with breast cancer. Her physician referred her to an oncologist and a reproductive specialist to preserve her last fertile eggs before undergoing chemotherapy. Gutierrez called her direct supervisor, district manager Sally Terpenning, to inform her of her diagnosis. Gutierrez told Terpenning that she needed to take several days away from work to meet with her oncologist and her fertility specialist (Gutierrez Decl. ¶¶ 3-5; Eigelberger Dep. at 21-23).

         Sometime between December 9-13, Gutierrez spoke by telephone with human resources director Megan Doyle and vice president of benefits Christina Kincel. Gutierrez informed them that she needed to undergo cancer treatment. They told Gutierrez that she would not be covered by the Family Medical Leave Act or the California Family Rights Act (because she had not worked for Kenneth Cole for twelve months) and that Kenneth Cole retained discretion to terminate her employment following a request of even two days of leave (Gutierrez Decl. ¶¶ 7-8; Gutierrez Dep. at 148-49).

         On December 13, Kincel emailed Gutierrez to inform her that Kenneth Cole would consider a request for unpaid leave supported by a doctor’s note (Kincel Dep., Exh. 27):

As we [Doyle, Gutierrez, and Kincel] all discussed today, you told us that your surgery is scheduled for 1/3/2014 and that your last day of work will be 12/31/2013. As you are aware, you are not eligible for a leave. In order for us to assess an accommodation for your absence from work we require a note or letter from your physician stating the last day you are able to work and your estimated return to work date. The note/letter must be provided no later than December 31, 2013.

         The email also provided information about short-term disability benefits available to Gutierrez.

         Although she does not specify when, Gutierrez avers she told Terpenning she might be able to work throughout her treatment (Gutierrez Decl. ¶ 9). Gutierrez testified that Terpenning told Gutierrez to obtain a doctor’s note that covered the entire length of her treatment and that the duration of any leave could be revisited with the length of treatment to serve as a starting point (Gutierrez Dep. at 167-68). Terpenning testified that she asked for a note that supported the length of leave Gutierrez intended to request so that Terpenning could begin the process of evaluating the proper accommodation (Terpenning Dep. at 206-08).

         In total, Terpenning, Doyle, and Kincel informed Gutierrez that her job was not protected by FMLA or CFRA no fewer than six times. Throughout December, Terpenning began directing communication to the assistant store manager instead of Gutierrez. Additionally, when Gutierrez expressed concerns that the cold temperature in the store might be problematic because cancer suppressed her immune system, Terpenning told Gutierrez she could wear layers or use a space heater (Gutierrez Dep. at 127-32).

         Terpenning contacted the district manager of the outlet stores in northern California (all at least thirty miles away) to ask whether they could spare any store managers during Gutierrez’s leave, although Terpenning did not yet know the duration of the leave Gutierrez would request. She learned the outlet stores already lacked sufficient coverage and couldn’t spare any managers for a substantial period of time (Terpenning Dep. at 167-70).

         On December 19 and 24, Gutierrez provided two doctor’s notes from her fertility specialist stating that she would need to be absent from work on December 24, 26, and 27 to undergo surgery to retrieve her last fertile eggs before her cancer treatment began. On December 26, Gutierrez sent an email to Terpenning, Doyle, and Kincel, which included a doctor’s note from her oncologist, Dr. Tiffany Svahn, stating that Gutierrez would need a nine-month leave of absence for her cancer treatment with leave to begin on December 29 (Kincel Decl., Exh. A). Gutierrez also submitted a request for unpaid leave in which Gutierrez wrote “9 months” by hand (ibid.). Gutierrez took leave beginning December 29, 2013, for lumpectomy surgery scheduled for January 3, 2014 (Gutierrez Decl. ¶¶ 12-13).

         The vice president of human resources, Gayle Catropa, evaluated Gutierrez’s request in light of conversations with her supervisors and the financial outlook for Kenneth Cole’s retail division. Catropa directed efforts to find replacement managers either from surrounding outlet stores or by promoting from within, but those efforts failed. Catropa concluded, based on conversations with others involved in management, that the San Francisco store needed to have a dedicated permanent store manager in order to survive the financial trouble it faced. Although Catropa did not specifically calculate the expense that might result from accommodating Gutierrez’s request for nine months of unpaid leave, she determined that holding her job open for nine months would impose an undue hardship that could jeopardize the San Francisco store’s viability (Catropa Dep. at 114-15, 144-45, 219-20).

         On January 4, Terpenning filled out an official separation record regarding Gutierrez, which indicated that she would be terminated because she would be undergoing an extensive nine-month treatment and that her position was not protected under the FMLA. On January 8, Doyle and Terpenning called Gutierrez to inform her that Kenneth Cole would be terminating her employment. Gutierrez testified that she informed them that her surgery had gone well and that she believed she would be able to return to work right ...