Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Velasquez v. Constellation Brands U.S. Operations, Inc.

United States District Court, E.D. California

June 27, 2019

MAURICIO VELASQUEZ, Plaintiff,
v.
CONSTELLATION BRANDS U.S. OPERATIONS, INC., et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 18)

         Currently before the Court is Defendants Constellation Brands U.S. Operations, Inc.'s (“Constellation US”), and Constellation Brands, Inc.'s (“Constellation Brands”) (collectively “Defendants” or “Constellation”), motion for summary judgment or partial summary judgment against Plaintiff Mauricio Velasquez (“Velasquez” or “Plaintiff”). Having considered the moving, opposition and reply papers, the declarations and exhibits attached thereto, as well as the Court's file, the Court issues the following order awarding summary judgment in favor of Defendants on all claims.

         I.

         BACKGROUND

         Defendants' operated a winery under the name of Mission Bell Winery in the County of Madera, California. (Compl., ECF No. 1.) Plaintiff worked at Defendants' winery from 1999 until his termination in December of 2016. (Compl. at 10-11.)[1] Following termination, on February 8, 2018, Plaintiff commenced this action by filing a complaint in the Superior Court of California, County of Madera, bearing No. MCV76854. (ECF No. 1 at 5.) Plaintiff brought causes of action for: (1) disability discrimination in violation of the California Fair Employment and Housing Act (“FEHA”), California Government Code Section 12940; (2) retaliation for taking protected leave under the California Family Rights Act (“CFRA”), California Government Code Section 12945.2(1); (3) retaliation for requesting accommodation under the FEHA, California Government Code Section 12940; and (4) declaratory relief as to the issue of whether Plaintiff was subjected to adverse treatment and an adverse employment action in violation of the FEHA and the CFRA. (Compl. at 9-17.)

         On March 13, 2018, Defendants filed an answer to Plaintiff's complaint in the California Superior Court. (ECF No. 1 at 21.) On March 15, 2018, Defendants removed this action to this Court, the U.S. District Court for the Eastern District of California, claiming the action is proper for removal due to the diversity of citizenship between Plaintiff and Defendants. (ECF No. 1 at 1.)

         On May 8, 2019, Defendants filed the instant motion for summary judgment or partial summary judgment against Plaintiff. (ECF No. 18.) On May 29, 2019, Plaintiff filed an opposition to Defendants' motion for summary judgment. (ECF No. 21.) On June 5, 2019, Defendants filed a reply to Plaintiff's opposition, as well as a reply to Plaintiff's response to Defendants' separate statement of undisputed facts, a reply to Plaintiff's separate statement of undisputed facts, and evidentiary objections to Plaintiff's evidence submitted in his opposition. (ECF Nos. 22, 23, 24, 25.)

         The Court found Defendants' motion for summary judgment suitable for decision without oral argument pursuant to Local Rule 230(g), and on June 11, 2019, the Court issued an order vacating the scheduled hearing on the motion for summary judgment. (ECF No. 26.)

         II.

         SUMMARY JUDGMENT LEGAL STANDARD

         Any party may move for summary judgment, and the court shall grant summary judgment if the movant shows that 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); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 322.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         “In judging the evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence, ” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citation omitted), and it “must draw all reasonable inferences in favor of the non-moving party, and determine whether a genuine issue of material fact precludes entry of summary judgment, ” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (citations omitted).

         III.

         UNDISPUTED FACTS AND EVIDENTIARY OBJECTIONS

         The Court will now identify those facts submitted by the parties which are undisputed for the purposes of this motion. Facts identified by “JUMF” are those submitted in the joint statement attached to Defendants' motion for summary judgment. (ECF No. 18-2.) Facts identified by “DUMF” are those submitted in Defendants' separate statement of undisputed facts which are undisputed by Plaintiff. (ECF No. 24.) Facts identified by “PUMF” are those submitted in Plaintiff's separate statement of undisputed facts which are undisputed by Defendants. (ECF No. 25.) If necessary to the adjudication of the motion, the Court will examine any additional disputed facts and determine if any can be considered undisputed based on the parties' proffers, whether any genuine material disputes preclude summary judgment, and incorporate such facts into the discussion and analysis throughout this opinion.

         A. The Undisputed Facts Submitted by the Parties

         During his employment by Constellation, Plaintiff Mauricio Velasquez was a member of a union and, to the extent set forth in the Collective Bargaining Agreement (“CBA”), the terms of his employment were governed by a CBA. (JUMF 1; Dep. of Pl. Maurice Velasquez (“Pl. Dep.”), 19:14-16, 20:2-7, 23:25-24:6.) Plaintiff received a copy of Constellation's Handbook, Code of Conduct, the CBA and Constellation's written Attendance Policy. (JUMF 2; Pl. Dep. 19:24-20:9, 111:18-23, Ex. 26 (the “Attendance Policy”).)

         During his employment by Constellation, Plaintiff knew Constellation policy prohibited harassment and discrimination based on disability. (JUMF 3; Pl. Dep. 20:25-21:9.) During his employment by Constellation, Plaintiff knew that, according to the Attendance Policy, attendance infractions would lead to discipline; up to eight attendance infractions would result in a written warning and nine unexcused absences or “occurrences” could result in termination. (JUMF 4; Pl. Dep. 21:22-22:24, 112:8-24, 118:18-23, Ex. 26; Decl. Roman Noriega (“Noriega Decl.”) ¶ 4, ECF No. 18-4.) During his employment by Constellation, Plaintiff was aware that failing to give 30-minutes notice of an absence (a “Failure to Notify”) was another basis for discipline and that three Failure to Notify offenses could also result in termination. (JUMF 5; Pl. Dep. 112:8-24, Ex. 26; Dep. of Roman Noriega as PMQ of Constellation (“PMQ Dep.”), 33:19-35:10, Ex. 6.) The company PMQ testified it has discretion not to write someone up for a “failure to notify, ” and will review the situation on a “case-by-case basis.” (PUMF 2; PMQ Dep. 34:12-35:14, 112:12-113:8.) During his employment by Constellation, Plaintiff was aware that attendance infractions were counted on a rolling 12-month basis, and that he could avoid discipline by keeping his attendance infractions below the policy thresholds. (JUMF 6; Pl. Dep. 41:22-42:4.) The CBA applicable to Plaintiff's employment by Constellation states that the first instance of falsifying a company record will result in dismissal and the fourth instance of “chronic absenteeism” will result in dismissal. (JUMF 7; PMQ Dep. 50:1-51:13, Ex. 8; Noriega Decl. ¶ 4.)

         Prior to becoming eligible for intermittent Family Medical Leave Act (“FMLA”) leave in September 2015, Plaintiff was absent from work for reasons that were not FMLA-protected, including his alcohol use. (DUMF 5; Pl. Dep. 34:17-35:7, 35:21-37:4, 97:8-99:12, 100:14-101:3, 102:21-103:16, 106:16-108:11, 207:14-19.) Effective September 1, 2015, Plaintiff was eligible for up to four days per month of Family Medical Leave Act/California Family Medical Leave Act leave for absences caused by the FMLA qualifying reason of his diabetes. (JUMF 8; Pl. Dep. 32:18-33:5, 72:11-21; PMQ Dep. 27:10-28:6, Ex. 2.) During 2015 and 2016, Plaintiff was aware that, if he was unable to work for a legitimate FMLA qualifying reason, he had to notify: (1) Constellation of the absence; and (2) report to third-party administrator Liberty Mutual that the absence was FMLA-protected. (JUMF 9; Pl. Dep. 66:16-67:9, 70:13-71:1; PMQ Dep. 30:15-31:9.) After becoming eligible for intermittent FMLA leave in September 2015, Plaintiff was absent from work for reasons, including illness and his alcohol use. (DUMF 6; Pl. Dep. 98:9-18, 98:23-99:12, 100:14-101:3, 102:21-103:16, 106:16-108:11.) Plaintiff did not inform Constellation that he suffered from alcoholism or depression. (JUMF 10; Pl. Dep. 91:11-17.)

         Plaintiff was issued a DAR dated August 12, 2015, which included infractions for absences that occurred on 8/4/2015 and 8/5/2015. (PUMF 4.)[2] After the issuance of the DAR, CFRA/FMLA was later requested and approved for the dates of 8/4/15 and 8/15/15. (PUMF 4.) Plaintiff was issued a DAR dated August 12, 2015, which included infractions for absences that occurred on 8/4/2015, 8/5/2015, 8/10/2015, and 8/11/2015. (PUMF 5.) After the issuance of the DAR, CFRA/FMLA was later requested and approved for the dates of 8/4/15, 8/15/15, 8/10/15, and 8/11/2015. (PUMF 5.) An August 12, 2015 DAR is referenced in Plaintiff's termination document under the section related to previous discipline. (PUMF 5.)

         Plaintiff was issued a DAR dated August 23, 2016, that included infractions for absences that occurred on 8/10/2016, 8/12/16, and 8/22/16. (PUMF 6.) Under employee comments, a handwritten note says “FMLA Pending”. (PUMF 6.) After the issuance of the DAR, CFRA/FMLA was later requested and approved for the dates of 8/10/16, 8/12/16, and 8/22/16. (PUMF 6.) An August 23, 2016 DAR is referenced in Plaintiff's termination document under the section related to previous discipline. (PUMF 6.) The DAR also references the previous DAR issued 8/18/16. (PUMF 6.)

         Plaintiff was issued a DAR dated August 23, 2016 related to a “Failure To Notify” for 8/22/16. (PUMF 7.) Under employee comments, there is a handwritten comment that says “FMLA Pending.” (PUMF 7.) CFRA/FMLA was later requested and approved for the date of 8/22/16. (PUMF 7.) An August 23, 2016 DAR is referenced in Plaintiff's termination document under the section related to previous discipline. (PUMF 7.)

         Plaintiff was issued a DAR dated August 24, 2016, that included infractions for absences that occurred on 8/10/2016, 8/12/16, 8/22/16, 8/24/16, and 8/25/16. (PUMF 8.) Under employee comments, is a handwritten comment that says “FMLA Pending”. (PUMF 8.) CFRA/FMLA was later requested and approved for the dates of 8/10/16, 8/12/16, 8/22/16, 8/24/16, and 8/25/18. (PUMF 8.) An August 23, 2016 DAR is referenced in Plaintiff's termination document under the section related to previous discipline. (PUMF 8.) The DAR also references the 8/18/16 and 8/22/16 DARs. (PUMF 8.)

         Plaintiff was issued a DAR dated August 26, 2016 related to a “Failure To Notify” for 8/24/16. (PUMF 9.) Under employee comments, there is a handwritten comment that says “FMLA Pending”. (PUMF 9.) CFRA/FMLA was later approved for the date of 8/24/16. (PUMF 9.) An August 26, 2016 DAR is referenced in Plaintiff's termination document under the section related to previous discipline. (PUMF 9.) The DAR also references the 8/18/16 and 8/22/16 DARs. (PUMF 9.) On Friday August 26, 2016, Plaintiff received DAR notices for: (1) six attendance infractions between April 2016 and August 2016, including August 10-12, 2016; (2) attendance infractions, including August 22, 2016; (3) a Failure To Notify for August 22, 2016; (4) attendance infractions, including for August 24-25, 2016; and (5) a Failure To Notify for August 26, 2016 for not calling in until 12 minutes before his shift. (JUMF 11; PMQ Dep. 77:20-78:4, Ex. 15, 79:18-25, Ex. 16, 80:20-81:7, Ex. 17, 81:18-25, Ex. 18, 83:15-84:2, Ex. 19.)

         According to documentation provided by Liberty Mutual to Constellation, on Monday, August 29, 2016, Plaintiff called Liberty and asked to designate August 10, 12, 22, 24 and 25 as FMLA-protected. (DUMF 7; PMQ Dep. 75:2-77:7, 123:23-124:5, Ex. 14.)

         On September 27, 2016, Plaintiff was issued a DAR for leaving work early without telling his supervisor, but Plaintiff was not given an attendance infraction for September 27, 2016 and Plaintiff's absences on August 10, 12, 22, 24 and 25 were not listed as infractions on the September 28, 2016 DAR. (DUMF 8; PUMF 10; PMQ Dep. 86:13-21, Ex. 20.)

         CFRA/FMLA was approved for the date of 9/27/16. (PUMF 10.) A September 27, 2016 DAR is referenced in Plaintiff's termination document under the section related to previous discipline. (PUMF 10.)

         Plaintiff was scheduled to work at 11:45 p.m. on Saturday November 26, 2016 but did not call in 30 minutes before his shift, resulting in a Failure to Notify. (DUMF 9; Constellation Dep. 87:12-88:12, Ex. 21.) Plaintiff was issued a DAR dated November 28, 2016 related to the “failure to notify management that he was leaving” on 11/26/16. (PUMF 11.) CFRA/FMLA was approved for the date of 11/26/16. (PUMF 11.) A November 29, 2016 DAR references the DAR issued 8/23/16 and 8/24/16. (PUMF 11.) Plaintiff's termination document references this November 28, 2016 DAR. (PUMF 11.)

         When Plaintiff completed a chiller log as part of his work duties, Plaintiff circles the numbers of certain chillers to document that those chillers were “running, that they are in operation.” (DUMF 10; Pl. Dep. 139:14-140:6; Dep. of Kenneth Putnam (“Putnam Dep.”), 40:23-41:24.) On November 27, 2016, Plaintiff did not turn on chillers 1, 12, and 19 as documented on the chiller log he turned into Constellation. (DUMF 11; Pl. Dep. 144:1-24, 145:12-25; Putnam Dep. 42:3-16.)

         On November 28, 2016, the same date that Plaintiff's foreman told Plaintiff that he had won money in a football pool, Plaintiff left work before the end of his shift. (DUMF 12; Pl. Dep. 115:9-25, 116:1-18, 129:5-25, 130:1-3, 134:15-135:10; Noriega Decl. ¶ 8, Ex. B.) On Tuesday November 29, 2016, Plaintiff received DAR for absences on November 26 and 28, 2016. (JUMF 12; PUMF 12; PMQ Dep. 89:7-16, Ex. 22, 91:14-19, Ex. 23.) CFRA/FMLA was approved for the dates of 11/26/16 and 11/28/16. (PUMF 12.) The November 29, 2016 DAR references the DAR issued 8/24/16. (PUMF 12.) Plaintiff's termination document incorporates the November 29, 2016 DAR. (PUMF 12.)

         Roman Noriega (“Noriega”) had to personally approve the termination and actually did approve the termination. (PUMF 3; PMQ Dep. 40:2-9.) Noriega testified that himself, Ken Putnam (“Putnam”), and possibly a general manager made the decision to terminate Plaintiff. (PUMF 16; PMQ Dep. 37:25-38:22.) Noriega declared under oath that the only people he recalled being part of the decision were himself and Putnam. (Noriega Decl. ¶ 6.)

         Noriega testified that the company relied on the “attendance policy, ” the “call-off records, ” and “previous discipline issued for excessive absenteeism problems, ” as a factor in the termination decision. (PUMF 3; PMQ Dep. 43:24-44:4, 52:13-53:19.) Noriega testified he would have looked at the daily attendance calendar when deciding to terminate Plaintiff. (PUMF 23; PMQ Dep. 73:20-74:15, Ex. 13.) The 2016 calendar confirms several absences protected under CFRA. (PUMF 24.) Noriega testified it did not consider whether Plaintiff was “abusing” leave under the FMLA. (PUMF 14; PMQ Dep. 37:2-6.) Noriega testified he met Plaintiff two or three times. (PUMF 15; PMQ Dep. 12:19-22.) Noriega testified that he does not recall exactly what information was given to him related to Plaintiff's termination, nor does he recall who gave him the information. (PUMF 17; PMQ Dep. 40:10-41:13.) Noriega claims “he most likely would have” talked to Ken Putnam about the termination, but does not recall enough to testify as to what was talked about. (PUMF 18; PMQ Dep. 41:22-42:9.) Noriega doesn't recall following up with anybody about what was meant that Plaintiff was falsifying information in the chiller log. (PUMF 19; PMQ Dep. 47:9-18.)[3]

         Putnam does not recall discussing the termination with either Plaintiff's direct supervisor, Ron Mehlhoff, or Roman Noriega, and does not recall email correspondence or discussions generally regarding the termination. (PUMF 21; Putnam Dep. 10:5-19.) Ron Mehlhoff first learned of Plaintiff's termination at his deposition. (PUMF 22; Mehlhoff Dep. 11:15-24.) Ron Mehlhoff was not consulted on the termination. (PUMF 22; Mehlhoff Dep. 14:18-15:14.) Ron Mehlhoff does not recall talking to anyone about the “chiller log” incident. (PUMF 22; Mehlhoff Dep. 45:18-46:4.)

         The Court now turns to the evidentiary objections submitted by Defendants.

         B. Defendants' Evidentiary Objections

         On June 5, 2019, Defendants filed objections to the evidence submitted by Plaintiff in his opposition. (ECF No. 23.) The Court now addresses Defendants' objections.

         Objection No. 1 as to foundation for Exhibit 4 to the Migliazzo Declaration is overruled. In reviewing the deposition testimony cited by Plaintiff and the actual document produced, the Court finds the evidence supports the fact that the document is proffered for, that Plaintiff's CFRA/FMLA leave was extended through February 27, 2017, and the Court may consider that fact as established for purposes of this motion. (See PMQ Dep. 28:23-29:15, Ex. 3; JUMF 8.)

         Objection Nos. 2 and 3 as to Exhibit 5 to the Migliazzo Declaration are overruled.

         Defendants cite to this same policy in identical form in their joint statement of undisputed facts, and the exhibit was authenticated as the attendance policy in deposition. (See JUMF 2-5, Pl. Dep. 112:8-24, Ex. 26; PMQ Dep. 33:19-35:10, Ex. 6.)

         Objections Nos. 6 and 7 to Exhibit 7 of the Migliazzo Declaration are overruled as the document was authenticated at the PMQ deposition as the 2015 Attendance Calendar to the best of the PMQ witness's knowledge, and associated testimony and exhibits further establish the fact. (See PMQ Dep. 54:1-60:11, Ex. 9.) However, Defendants' concerns as to, for example, when the document was modified, are noted by the Court in considering the document for purposes of this motion. Objections Nos. 14 and 15 to Exhibit 11 of the Migliazzo Declaration are similarly overruled, as the document was identified as the 2016 attendance calendar to the best of the PMQ witness's knowledge. (See PMQ Dep. 62:23-64:15, Ex. 13.) The Court will remain cognizant of the parties' dispute concerning the date the calendar was last modified. (See ECF No. 25 at 11.)

         Objections Nos. 4 and 5 to Exhibit 6 of the Migliazzo Declaration are overruled as the document was authenticated at the PMQ deposition as disciplinary action report delivered to Plaintiff. (See PMQ Dep. 59:10-18, Ex. 10.) Objections Nos. 8 and 9 to Exhibit 8 of the Migliazzo Declaration are overruled. (See PMQ Dep. 60:13-61:3, Ex. 11.) Objections Nos. 10 and 11 to Exhibit 9 of the Migliazzo Declaration are overruled. (See PMQ Dep. 37:11-24, Ex. 7.) Objections Nos. 12 and 13 to Exhibit 10 of the Migliazzo Declaration are overruled. (See PMQ Dep. 77:24-79:11, Ex. 15.) Objections Nos. 16 and 17 to Exhibit 13 of the Migliazzo Declaration are overruled. (See PMQ Dep. 79:18-80:14, Ex. 16.) Objections Nos. 18 and 19 to Exhibit 14 of the Migliazzo Declaration are overruled. (See PMQ Dep. 80:20-81:13, Ex. 17.) Objections Nos. 20 and 21 to Exhibit 15 of the Migliazzo Declaration are overruled. (See PMQ Dep. 81:18-83:9, Ex. 18.) Objections Nos. 22 and 23 to Exhibit 16 of the Migliazzo Declaration are overruled. (See PMQ Dep. 83: 15-84:10, Ex. 19.) Objections Nos. 24 and 25 to Exhibit 17 of the Migliazzo Declaration are overruled. (See PMQ Dep. 86:13-21, Ex. 20.) Objections Nos. 26 and 27 to Exhibit 18 of the Migliazzo Declaration are overruled. (See PMQ Dep. 87:12-88:16, Ex. 21.) Objections Nos. 28 and 29 to Exhibit 19 of the Migliazzo Declaration are overruled. (See PMQ Dep. 89:7-91:7, Ex. 22.) Objections Nos. 30 and 31 to Exhibit 20 of the Migliazzo Declaration are overruled. (See PMQ Dep. 91:14-92:12, Ex. 23.)

         Objections Nos. 32, 33, 34 to certain sections of the deposition transcript of Noriega are overruled, however, the Court notes Defendants' concerns regarding the cited testimony, and if relevant to the instant motion, the Court will weigh such considerations when evaluating the testimony in relation to the applicable issue.

         Objections Nos. 35 through 39 pertain to Plaintiff's declaration submitted with his opposition to the current motion. As to Plaintiff's testimony that he never used FMLA for an improper purpose, Objection No. 35 is overruled on the basis of being vague and ambiguous, however Objection No. 36 is sustained as to Plaintiff's statement being an improper legal conclusion. As to Plaintiff's testimony regarding his union being unhelpful, Objection No. 37 on the basis of the testimony being vague and ambiguous is overruled, however Objection No. 38 for irrelevancy is sustained. Objection No. 39 is sustained as to Plaintiff's declaration stating the stress caused his diabetes to become worse, as it is a medical diagnosis that lacks proper foundation.

         IV. DISCUSSION AND ANALYSIS

         Defendants move for summary judgment on each of the following of Plaintiff's claims: (A) Plaintiff's disability discrimination claim; B) Plaintiff's FEHA retaliation claim; (C) Plaintiff's CFRA retaliation claim; (D) Plaintiff's claim for declaratory relief; and (E) Plaintiff's claim for punitive damages. (Def.'s Mem. P. & A. Supp. Mot. Summ. J. (“Mot.”) 2, ECF No. 18-1.) The Court addresses each of the challenges to Plaintiff's claims in turn.

         A. Plaintiff's Disability Discrimination Claim

         Discrimination claims under FEHA are analyzed under the three-step burden-shifting framework established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). See Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013); Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 353 (2000). Under this framework, at the trial stage, the plaintiff has the initial burden of establishing a prima facie case of discrimination. Lawler, 704 F.3d at 1242. However, this burden-shifting framework is reversed where, as here, an employer defendant moves for summary judgment. Id.; Arteaga v. Brink's, Inc., 163 Cal.App.4th 327, 344 (2008). For purposes of this motion, Defendants bear the initial burden of showing that either: (1) Plaintiff cannot establish one of the elements of the FEHA claim; or (2) there was a legitimate, nondiscriminatory reason for the decision to terminate Plaintiff's employment. See Lawler, 704 F.3d at 1242. If Defendants meet this initial burden, Plaintiff must then demonstrate that either: (1) Defendants' showing was insufficient; or (2) that there was a triable issue of fact material to the Defendants' showing. Id.

         A plaintiff may establish a prima facie case of disability discrimination by showing they: “(1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations; and (3) was subjected to an adverse employment action because of the disability or perceived disability.” Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th 297, 310 (2010); see also Holtzclaw v. Certainteed Corp., 795 F.Supp.2d 996, 1015 (E.D. Cal. 2011). Phrased differently, the Plaintiff must generally provide evidence that: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 355 (2000) (“The specific elements of a prima facie case may vary depending on the particular facts.”). In Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (2013), the California Supreme Court held that a plaintiff alleging discrimination under FEHA must show that discrimination was a “substantial motivating factor” for the adverse employment action, rather than simply a “motivating factor.” The Court will now address Defendants' challenge to Plaintiff's prima facie case of disability discrimination.

         1. Plaintiff Cannot Establish a Prima Facie Case of Disability Discrimination

         Defendants do not challenge Plaintiff's evidence that he suffered from a qualifying disability, that he was generally qualified for his position, or that he suffered an adverse employment action. Defendants argue Plaintiff cannot establish a prima facie case of disability discrimination because neither Cellar Director Kenneth Putnam (“Putnam”) nor Human Resources Manager Roman Noriega (“Noriega”), the employees responsible for the decision to terminate Plaintiff, knew that Plaintiff had any alleged disability, and Plaintiff testified that he did not have a disability while he worked at Constellation and needed no accommodation. (Mot. 18.) Alternatively, to the extent the eligibility for FMLA leave creates an inference that Plaintiff was disabled, Defendants argue Plaintiff lacks evidence of a causal connection between such and the adverse employment action. In this regard, Defendants highlight that Plaintiff received discipline for performance and attendance both before and after he was eligible for FMLA leave, and argue there is no temporal proximity with the adverse employment action as he was approved for FMLA leave effective September 1, 2015, and was not terminated until performance problems escalated fifteen months later. (Mot. 19.)

         Plaintiff responds that his disability is established as he was seeking CFRA/FMLA leave for his diabetes. (Pl.'s Mem. P. & A. Opp'n Def.'s Mot. Summ. J. (“Opp'n”) 26, ECF No. 21.) Plaintiff argues Defendants' claim that the decision-makers were unaware of the disability is not credible, given Noriega had access to and consulted the daily calendar in deciding to terminate (PMQ Dep. 73:20-74:15, Ex. 13), and Noriega had access to the eleven DARs that referenced CFRA-protected absences.

         The Court now turns to the facts put forth by the parties on the issue of knowledge of the disability, both disputed and undisputed.

         It is undisputed that effective September 1, 2015, Plaintiff was eligible for up to four days per month of FMLA/CFRA leave for absences caused by the qualifying reason of his diabetes. (JUMF 8.) On April 4, 2016, Plaintiff received a letter extending his FMLA/CFRA leave through February 27, 2017 (Constellation PMQ Dep. 28:23-29:12, Ex. 3), and on October 13, 2016, Plaintiff received a letter from Liberty Mutual, updating the allowable intermittent leave to five days per month, and four days per year for treatment. (Pl. Decl. ¶ 6, Ex. 1, ECF No. 21-4.) Plaintiff testified that he became qualified for FMLA leave for his diabetes about a year and a half before he was terminated. (Pl. Dep. 32:18-33:5.)

         Defendants emphasize that when asked if he had any disability while he worked at Constellation, Plaintiff answered no. (Pl. Dep. 31:10-20.) It is not clear exactly what is meant from this answer though, as when he is asked if he has a disability now, he answers: “Not at this time. I mean I am on disability -- I do suffer from having to control my sugar and all of that, ” and then states he had diabetes during the last two years of his employment with Constellation. (Pl. Dep. 31:21-32:12.)

         Defendants proffer that according to Plaintiff, while at work, he needed no accommodation and was not disabled. (Mot. 18; DUMF 1-2, ECF No. 21-1 at 2.) Plaintiff responds that he requested reasonable accommodations through his request for CFRA medical leave of absences. (ECF No. 21-1 at 2.) Plaintiff was asked in an interrogatory to state all facts relating to any medical restrictions requiring a reasonable accommodation from June 2014 to the present. (ECF No. 18-9 at 55.) Plaintiff responded that he could do all parts of his job duties unless he was taking his prescribed medication, and when he takes the medication, he is unable to work at all. (ECF No. 18-9 at 55.) During his deposition, Plaintiff stated he did not remember what medication this was, as his doctor gave him several types, but remembers one medication had warnings stating he could not drive while taking such medication. (Pl. Dep. 165:3-14.) Plaintiff confirmed in deposition that if the doctor said you cannot work when taking such medication, he would have stayed home when taking, and would have called the sick line at Liberty Mutual. (Pl. Dep. 166:16-24.) Plaintiff also testified that after showing up to work on a given day, he didn't recall ever telling a foreman that he took the medication prohibiting him from working but was there regardless, and confirmed that if he showed up, he felt he could finish the day's work. (Pl. Dep. 167:6-15.)

         As for the representatives of the employer that were responsible for the decision to terminate Plaintiff's employment, Putnam testified that he did not discuss anything related to Plaintiff's requests for leave, would not have known if Plaintiff requested FMLA leave during the employment, and that during Plaintiff's employment, Putnam did not have any knowledge that Plaintiff had a disability. (Putnam Dep. 47:5-24.) Noriega, in an affidavit, declares that “[a]t no time was I aware that Mauricio Velasquez suffered from any mental of [sic] physical disability.” (Noriega Decl. ¶ 5, ECF No. 18-4, at 2.) Noriega also declares that he only recalls himself and Putnam taking part in the decision to terminate Plaintiff, and states “[n]either his requests for FMLA leave nor any alleged disability was a factor in the termination decision.” (Noriega Decl. ¶ 6.)

         Based on these facts, Defendants argue that no decision-maker perceived Plaintiff to be disabled or treated him as if he were. (Mot. 18.) To establish the disability claim, “a plaintiff must prove the employer had knowledge of the employee's disability when the adverse employment decision was made.” Jackson v. Kaplan Higher Educ., LLC, No. 1:14-CV-00073-AWI, 2015 WL 3655155, at *3-4 (E.D. Cal. June 11, 2015) (quoting Scotch v. Art Inst. of California, 173 Cal.App.4th 986, 1008 (2009); see also Pensinger v. Bowsmith, Inc., 60 Cal.App.4th 709, 712 (1998) (“We conclude that in order to meet the knowledge requirement of the FEHA, an employer must have actual knowledge an employee suffers from a specific disability.”); Foster v. City of Oakland, 649 F.Supp.2d 1008, 1018 (N.D. Cal. 2009) (“a plaintiff must prove that the employer had knowledge of the employee's disability when the adverse employment decision was made.”). Generally, the specific individuals who made the decision to terminate Plaintiff must have actual knowledge of the disability when they made the adverse employment decision. See Avila v. Cont'l Airlines, Inc., 165 Cal.App.4th 1237, 1248 (2008) (hereinafter “Avila”) (to show employer acted with discriminatory intent, “plaintiff was required to produce evidence that the Continental employees who decided to discharge him knew of his disability.”); Gutierrez v. Nor-Cal Ready Mix, Inc., No. A121754, 2009 WL 1362802, at *7-8 (Cal.Ct.App. May 15, 2009) (unpublished) (“Because the FEHA targets intentional discrimination, the actual individuals who made the adverse employment decision must have known about the disability when they made that decision.”)

         The employee generally bears the burden of giving the employer notice of his disability. Featherstone v. S. California Permanente Med. Grp., 10 Cal.App.5th 1150, 1167 (Ct. App. 2017). “An employee's ‘vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the FEHA.' ” English v. Estes Express Lines, No. 516CV01353CASSKX, 2017 WL 5633037, at *16 (C.D. Cal. Nov. 21, 2017) (quoting Brundage v. Hahn, 57 Cal.App.4th 228, 237 (1997)). However, “[i]f an employer disclaims actual knowledge of the employee's condition, an employer can still be found liable for disability discrimination in cases where knowledge of a disability can be inferred.” Lambert v. Nat'l R.R. Passenger Corp., No. CV 13-08316 DDP MANX, 2015 WL 1967044, at *6 (C.D. Cal. Apr. 29, 2015) (quoting Jadwin v. Cnty. of Kern, 610 F.Supp.2d 1129, 1179 (E.D. Cal. 2009). “While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts.” Jackson v. Kaplan Higher Educ., LLC, No. 1:14-CV-00073-AWI, 2015 WL 3655155, at *3-4 (E.D. Cal. June 11, 2015) (quoting Scotch v. Art Inst. of California, 173 Cal.App.4th 986, 1008 (2009) (emphasis added); English v. Estes Express Lines, No. 516CV01353CASSKX, 2017 WL 5633037, at *16 (C.D. Cal. Nov. 21, 2017) (same); Featherstone v. S. California Permanente Med. Grp., 10 Cal.App.5th 1150, 1167 (Ct. App. 2017) (same).

         It is possible that knowledge of the disability on behalf of biased non-decision-making employees can be imputed to the decision-makers. For example, “if the supervisors who knew that [the employee] was disabled set the disciplinary process in motion, and they were motivated by animus, that is sufficient to impute the motive to the company.” Lambert v. Nat'l R.R. Passenger Corp., No. CV 13-08316 DDP MANX, 2015 WL 1967044, at *7 (C.D. Cal. Apr. 29, 2015) (citing Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir.2007) (in federal age discrimination case, holding “if a subordinate, in response to a Plaintiff's protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate's bias is imputed to the employer if the plaintiff can prove the allegedly independent adverse employment decision was not actually independent because the biased subordinate influence or was involved in the decision or decisionmaking process.”)); Alejandro v. ST Micro Elecs., Inc, 129 F.Supp.3d 898, 909 (N.D. Cal. 2015) (“A supervisor's knowledge of an employee's disability is imputed to the employer because ‘[a] supervisor is the employer's agent for purposes of vicarious liability for unlawful discrimination.' ”) (quoting California Fair Employment & Hous. Com. v. Gemini Aluminum Corp., 122 Cal.App.4th 1004, 1015, 18 Cal.Rptr.3d 906, 913 (2004)).

         Plaintiff has submitted no evidence demonstrating any knowledge of a disability or perceived disability on the part of any biased supervisors or other employees that can be imputed to Noriega, Putnam or the employer as a whole. Cf. Lambert v. Nat'l R.R. Passenger Corp., No. CV 13-08316 DDP MANX, 2015 WL 1967044, at *7 (C.D. Cal. Apr. 29, 2015) (“A rational jury could therefore conclude that the decision-makers at Amtrak either had direct knowledge of Plaintiff's disability or disciplined her in a process set in motion by or influenced by supervisors who had knowledge.”) Plaintiff only submits evidence that because he took protected leave, and because the protected leave was referenced on disciplinary records and on a calendar that a decision-maker had access to when making the termination decision, his disability was known. The facts of Brundage, widely cited for its analysis of knowledge, are instructive in this regard:

Brundage attempted to create a triable issue of fact of County's imputed knowledge by demonstrating that County employees knew she had taken a substantial amount of leave for medical appointments. Brundage submitted copies of her leave requests for medical appointments. None of the documents even hinted at any mental disability. This evidence is therefore insufficient to impute knowledge to County of Brundage's manic-depressive disorder. Nor did Brundage claim that she directly informed any County employee of her disability. As such, there is no triable issue of fact as to County's actual or imputed knowledge. Because County did not know about Brundage's manic-depressive disorder, it could not have terminated her because of that disorder.

Brundage v. Hahn, 57 Cal.App.4th 228, 237 (1997). Here, Plaintiff attempts to create a triable issue given the fact that the calendar references FMLA leave, and that the DARs referenced FMLA leave. However, taking leave under the FMLA does not necessarily mean Plaintiff is disabled, and like in Brundage, none of the documents that Plaintiff contends that Noriega and Putnam had access to referenced a specific medical condition, let alone contained enough information to extrapolate that Plaintiff was suffering from a disability. (PMQ Dep., Exs. 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23.)

         The parties provided no direct authority on the issue of whether knowledge of protected leave status may impute knowledge of a disability on the part of the employer. The Court was not able to locate authority under California law or the Ninth Circuit which pointedly addresses this issue, but some authority alludes to such considerations or related factors. See Featherstone v. S. California Permanente Med. Grp., 10 Cal.App.5th 1150, 1167 (Ct. App. 2017) (finding no evidence of actual or constructive knowledge of temporary disability, noting employee returned from “medical leave without any restrictions, ” and nothing in the work status reports submitted “during her medical leave disclosed any information about her medical condition or prescribed medications.”); Martinez v. Taco Bell Corp., No. G052170, 2018 WL 1633511, at *7 (Cal.Ct.App. Apr. 5, 2018) (unpublished) (“Evidence that Taco Bell granted all of her requests for time off work and that the third party administrator granted her request for benefits during her lengthy leaves of absence, does not establish Taco Bell's knowledge that Martinez had a disability under FEHA. Martinez does not cite evidence showing the third party administrator's criteria for determining whether to grant such benefits, much less how those criteria align with FEHA's definition of disability. The record does not support a finding Gallegos, or any other decision maker at Taco Bell, regarded Martinez as disabled within the meaning of FEHA.”).

         Other courts have found FMLA leave requests, in the context of ADA[4] discrimination or FMLA retaliation, do not in of themselves impute knowledge of a disability to the employer. See Nilles v. Givaudan Flavors Corp., 521 Fed.Appx. 364, 367 (6th Cir. 2013) (affirming district court's grant of summary judgment where plaintiff had taken FMLA leave, finding plaintiff had failed to show that the sole decision-maker had any knowledge of plaintiff's disability and thus could not establish prima facie case of disability discrimination under the ADA, in addition to failing to demonstrate a causal connection between taking FMLA leave and termination, thus could not state a prima facie case of FMLA retaliation); Guasch v. Carnival Corp., 723 Fed.Appx. 954, 957-58 (11th Cir. 2018) (holding district court properly granted summary judgment on FMLA retaliation or interference claim because Plaintiff could not demonstrate causal connection ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.