United States District Court, N.D. California
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
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
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).
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.
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).
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).
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.
email also provided information about short-term disability
benefits available to Gutierrez.
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
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).
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).
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).
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).
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 ...