United States District Court, C.D. California
Attorneys Present for Plaintiffs: Do Hyung Kim
Attorneys Present for Defendants: L. Geoffrey Lee
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
HER FOURTH AND FIFTH CLAIMS (Dkt. 31, filed June 10, 2016)
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.
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. 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.
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”).
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
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.
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).
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
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.
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
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
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.
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.
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.
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.
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.
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.
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.
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
Plaintiff’s Fifth Claim for Failure to Engage in the
Interactive Process, pursuant to Cal. Gov. Code §
12940(n) and 12926.1(e)
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.”).
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 ...