Horn v. Coldwater Creek Us Inc

          Attorneys Present for Plaintiffs: Do Hyung Kim

          Attorneys Present for Defendants: L. Geoffrey Lee

         Proceedings: PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO HER FOURTH AND FIFTH CLAIMS (Dkt. 31, filed June 10, 2016)

         DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFF’S SECOND, SIXTH, TENTH, AND ELEVENTH CLAIMS (Dkt. 34, filed June 17, 2016)

          CHRISTINA A. SNYDER J.

         I. INTRODUCTION

         On December 3, 2012, plaintiff Sheryl Horn (“plaintiff”) filed the instant action in the Los Angeles Superior Court against defendants Coldwater Creek U.S. Inc. (“Coldwater Creek” or “defendant”); Debra Sexton-Johnson; and Does 1 through 50, inclusive.^[1] Dkt. 1, Ex. A (Complaint). On January 18, 2016, Coldwater Creek removed this action to federal court, asserting federal question jurisdiction. Dkt. 1 (Notice of Removal). The operative complaint asserts the following ten claims: (1) Wrongful termination in violation of public policy, pursuant to Cal. Gov. Code § 12940, et seq.; (2) harassment based upon disability, pursuant to Cal. Gov. Code § 12940, et seq.; (3) discrimination based upon disability, pursuant to Cal. Gov. Code § 12940, et seq.; (4) failure to accommodate, pursuant to Cal. Gov. Code § 12940(k) and (m); (5) failure to engage in the interactive process, pursuant to Cal. Gov. Code § 12940(n) and 12926.1(e); (6) retaliation, pursuant to Cal. Gov. Code § 12940, et seq.; (7) failure to take all reasonable steps to prevent harassment, discrimination, and retaliation, pursuant to Cal. Gov. Code § 12940, et seq.; (8) violation of the Family Medical Leave Act; (9) violation of the California Family Rights Acts; (10) intentional infliction of emotional distress; and (11) negligent hiring, retention, supervision, and training.

         On June 10, 2016, plaintiff filed a motion for partial summary judgment as to her fourth and fifth claims, under California’s Fair Employment and Housing Act (“FEHA”), for failure to accommodate and failure to failure to engage in the interactive process. Dkt. 31 (“P’s Motion”). On June 17, 2016, defendant filed an opposition to plaintiff’s motion for partial summary judgment. Dkt. 37 (“D’s Opp’n”). On July 1, 2016, plaintiff filed a reply. Dkt. 41 (“P’s Reply”).

         On June 17, 2016, defendant filed a motion for partial summary judgment as to plaintiff’s second claim (harassment based upon disability), sixth claim (retaliation), tenth claim (intentional infliction of emotional distress), and eleventh claim (negligent hiring, retention, supervision, and training). Dkt. 34 (“D’s Motion”). On June 27, 2016, plaintiff filed an opposition to defendant’s motion for partial summary judgment. Dkt. 38 (“P’s Opp’n”). On July 1, 2016, defendant filed a reply. Dkt. 39 (“D’s Reply”).

         On July 18, 2016, the Court provided the parties with a tentative order and held oral argument on the instant motion. Having carefully considered the parties’ arguments, the Court finds and concludes as follows.

         II. LEGAL STANDARD

         Summary judgment is appropriate where “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). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed.R.Civ.P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make “conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322; see also Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).

         In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.

         III. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

         A. Background

         The following facts are undisputed unless otherwise noted:

From approximately March 2009 through February 22, 2012, plaintiff Sheryl Horn was employed as a “sales lead” in the Simi Valley, California store location of clothing retailer Coldwater Creek. See Plaintiff’s Separate Statement of Undisputed Facts ISO P’s Motion (“PS”), at Nos. 1-3. In June 2010, plaintiff requested leave under the Family Medical Leave Act of 1993 (“FMLA”) from her work at Coldwater Creek in order to undergo bunion surgery on her left foot. Id. at No. 7. Coldwater Creek approved the FMLA leave request, and on or about June 18, 2010, plaintiff underwent the surgery and later returned to her work position following her recuperation. Id. at Nos. 8-10.

         In November 2011, plaintiff requested a second FMLA leave from Coldwater Creek to have the same bunion surgery, this time on her right foot. Id. at No. 11. Coldwater Creek’s Leave Coordinator, Grace Polan, approved the request, and on or about November 28, 2011, plaintiff had the bunion surgery on her right foot. Id. at No. 13. Thereafter, plaintiff remained on FMLA leave for several months. Id. at No. 14. Coldwater Creek anticipated that plaintiff’s return-to-work date was February 21, 2012, based upon Coldwater’s expectation that plaintiff would take twelve weeks of FMLA leave. Id. at No. 15.

         On Feb 20, 2012, the day before plaintiff was expected to return to work, Ms. Polan and plaintiff spoke on the phone about plaintiff’s return-to-work date. Id. at No. 16. Ms. Polan informed plaintiff that she “only ha[d] a doctor’s note for March 26, 2012.” Id. at No. 17. Plaintiff informed Ms. Polan that she actually had a doctor’s note that had her returning to work on March 5, 2012 without any work restrictions. Id. at No. 18. Ms. Polan informed plaintiff that she had exhausted her twelve weeks of FMLA leave, but that Polan would request a 48-hour extension of her FMLA leave while plaintiff again consulted with her doctor. Id. at Nos. 21-22. Thereafter, Coldwater Creek approved a 48-hour extension of the FMLA leave, thereby extending the leave from February 21, 2012, to February 23, 2012. Id. at No. 22.

         On February 21, 2012--the day on which plaintiff had previously been scheduled to return--plaintiff and Ms. Polan had another phone conversation, during which plaintiff informed Ms. Polan that she could return on March 1, 2012. Id. at No. 24. On this same date, Ms. Polan received via fax a doctor’s note releasing plaintiff to return to work on March 1, 2012 (“the March 1, 2016 Note”), albeit with certain restrictions. Id. at No. 25. Specifically, the doctor’s note stated:

Sheryl Horn is able to return to work on 3/1/2012. Restrictions: No pushing, pulling, climbing, stooping, kneeling, squatting, no lifting over 5 pounds. Must take a break every two hours for 15 minutes.

Id. at No. 26.

         It is undisputed that Coldwater Creek “did not have a problem with the March 1st return to work date, ” but instead was concerned with the various restrictions cited in the March 1, 2016 Note. Id. at Nos. 33-34. Coldwater Creek’s District Manager, Keisha Piazza, discussed plaintiff’s restrictions with other members of the Coldwater Creek “Leadership Team” and decided that Coldwater Creek could not accommodate plaintiff’s restrictions. Id. at Nos. 4, 35, 41. Although this is disputed, Coldwater Creek avers that it “understood” the various restrictions outlined in the March 1, 2016 Note to be “indefinite” in duration. See Defendant’s Separate Statement of Undisputed Facts ISO D’s Opp’n (“DS”), at No. 47.

         During the afternoon of February 22, 2012, at approximately 2:00 p.m., Ms. Piazza called plaintiff on the phone to terminate her employment. PS at No. 48. Ms. Piazza told plaintiff that Coldwater Creek was unable to accommodate her restrictions and therefore would be terminating her employment, but that “when she was feeling better, she could reapply.” Id. at No. 49. Plaintiff avers that she informed Ms. Piazza that she had another doctor’s note that had her returning her to work on March 5, 2012 with no restrictions; however, Coldwater Creek disputes this point, as Ms. Piazza avers that she does not think plaintiff provided a date. See PS at No. 50; DS at No. 50. However, it is undisputed that Ms. Piazza then told plaintiff that she had “terminated herself” because she had “exhausted her leave, we’d given her the additional 48 hours, [and] because she couldn’t comply with that, it was just [that] she was terminated herself.” PS at No. 52.

         After she was terminated on February 22, 2012, plaintiff contacted Ms. Polan that same day to tell her again that she had a doctor’s note releasing her to work on March 5, 2012 without any restrictions. PS at No. 54. Later in the day, plaintiff also faxed the March 5, 2012 doctor’s note to Ms. Polan, PS at No. 55; according to defendant, plaintiff faxed the note at 5:03 p.m., after she had already been terminated, DS at No. 55. Ms. Polan then emailed the March 5, 2012 doctor’s note to Ms. Piazza and other members of the Leadership Team. PS at No. 55.

         The following day, on February 23, 2012, Ms. Polan sent a termination letter to plaintiff, stating,

Regrettably, I must inform you that as of February 23, 2012 your Family Medical Leave has ended. You have exhausted all available leave and due to business needs, we are unable to hold your position for you. Therefore, your last day of employment with Coldwater Creek is February 22, 2012.

Id. at No. 59.

         B. Discussion

         Through the instant motion, plaintiff moves for summary judgment as to her fourth and fifth claims under FEHA for failure to accommodate and failure to failure to engage in the interactive process. For reasons articulated in the discussion that follows, the Court denies plaintiff’s motion.

         1. Plaintiff’s Fifth Claim for Failure to Engage in the Interactive Process, pursuant to Cal. Gov. Code § 12940(n) and 12926.1(e)

         Plaintiff’s fifth claim, asserted under FEHA, is for failure to engage in the interactive process. Under California Government Code section 12940(n), defendant Coldwater Creek is required to “engage in a timely, good faith, interactive process with an employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability or known medical condition.” Cal. Gov. Code § 12940(n); Wysinger v. Automobile Club of Southern California, 157 Cal.App.4th 413, 424 (2007) (“Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability.”).

         Here, plaintiff contends that she is entitled to summary judgment on her claim for failure to engage in the interactive process because “Coldwater Creek completely failed in its affirmative duty to engage in the interactive process and failed to accommodate [plaintiff].” P’s Motion at 1 (emphasis added). Specifically, plaintiff contends that after Coldwater Creek received a doctor’s note indicating that plaintiff could return to work on March 1, 2016, albeit with certain restrictions, defendant “did nothing to determine whether [plaintiff’s] restrictions should or should not be accommodated, ” (2) “did not review the Sales Lead job description to see what the essential job functions were, ” (3) “did not call [plaintiff] to discuss the restrictions on the doctor’s note, ” (4) “did not ask someone . . . from Coldwater Creek to meet with [plaintiff] to discuss the restrictions on the doctor’s note, ” (5) “did not discuss alternative jobs for [plaintiff], ” (6) did not request ...