Armida Rivera v. Vishay Americas, Inc.

O [7] 8 United States District Court 9 Central District of California [10] 11 ARMIDA RIVERA, Case № 5:20-cv-01719-ODW (SPx) 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT 14 VISHAY AMERICAS, INC., et al., VISHAY SPRAGUE, INC.’S 15 Defendants. MOTION FOR SUMMARY JUDGMENT [27] [16] 17 I. INTRODUCTION 18 Plaintiff Armida Rivera brings this action pursuant to the California Fair 19 Employment and Housing Act (“FEHA”) against her former employer, Defendant 20 Vishay Sprague, Inc. for discrimination, retaliation, and related FEHA claims. (First 21 Am. Compl. (“FAC”), ECF No. 13.) 22 Before the Court is Defendant’s Motion for Summary Judgment or 23 Adjudication. (Mot. Summ. J. (“Mot.”), ECF No. 27.) For the following reasons, the 24 Court GRANTS IN PART and DENIES IN PART Defendant’s Motion.1 [27] 28 1 After considering the papers filed in connection with this Motion, the Court deemed this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 II. FACTUAL AND PROCEDURAL BACKGROUND 2 The following allegations and facts are uncontested. Rivera began working for 3 Vishay Sprague, Inc. (“Vishay”) on May 23, 1993, at its Ontario, California facility. 4 (FAC ¶ 16; Combined Statement Uncontroverted Facts & Conclusions of Law 5 (“CSF”) 1, ECF No. 29-1.) Rivera became a laser operator in 2003, and she held that 6 position until the events giving rise to this suit. (CSF 2.) The job of a laser operator is 7 such that Rivera needed to be physically present at the Ontario facility to perform her 8 job. (CSF 4.) 9 Rivera’s mother has Alzheimer’s disease, and for many years Rivera had been 10 her mother’s caretaker. (CSF 6–7.) This responsibility caused Rivera stress and 11 anxiety, and she frequently took intermittent leaves from her job at Vishay to care for 12 her mother. (CSF 8–9.) Rivera’s supervisors were aware of this leave and the reasons 13 for taking it, and Vishay readily granted the intermittent leave Plaintiff requested. 14 (CSF 10.) 15 On May 25, 2018, Rivera obtained a doctor’s note indicating that, “[d]ue to a 16 medical condition,”2 she was “under treatment” and unable to work beginning that day 17 and lasting until July 30, 2018. (Decl. of Irene Scholl-Tatevosyan (“Scholl18 Tatevosyan Decl.”) Ex. 5, ECF No. 27-10; CSF 27.) Vishay granted Rivera this leave 19 and did so “solely as an accommodation of her disability/medical condition.” 20 (CSF 28, 36.) 21 Later, Rivera provided Vishay with a second doctors’ note which similarly 22 indicated she would be on medical leave until “at least” October 29, 2018. (CSF 29– 23 30. Vishay accordingly extended Rivera’s leave to October 29, 2018. (CSF 31.) 24 Then, in October 2018, Rivera sent Vishay a third doctors’ note extending her leave 25 through January 28, 2019. (CSF 42.) [27] 2 The parties agree that stress and anxiety precipitated Rivera’s leave. Although identified both as 28 caretaking responsibilities and job responsibilities, the source of the stress and anxiety is immaterial for the purpose of this Motion. 1 Vishay’s leave of absence policy provides that “[i]f an employee remains on 2 disability leave for a full 26 weeks and is unable to return to work, the employee will 3 be terminated from active employment.” (CSF 37.) Consistent with this policy, 4 Vishay, through its Human Resources Manager Shannon Nabeta, began having 5 conversations with Rivera about a month before this 26-week period was set to expire, 6 to determine whether she would be able to return to work. (CSF 38–39.) These 7 efforts failed to yield results. Rivera was still on medical leave as of November 25, 8 2018, the date that Vishay terminated her employment consistent with its policy. 9 (CSF 45.) 10 Rivera continued to see her doctor following termination. Eventually, her 11 doctor gave her a note providing that she would be able to return to work on May 28, 12 2019, without restrictions. (CSF 46–47.) 13 On June 2, 2020, Rivera brought suit in the San Bernardino Superior Court. 14 (Notice of Removal ¶ 1, ECF No. 1.) Rivera asserts claims for (1) discrimination, Cal. 15 Gov’t Code § 12940(a); (2) retaliation, Cal. Gov’t Code § 12940(h); (3) failure to 16 prevent discrimination and retaliation, Cal. Gov’t Code § 12940(k); (4) retaliation, 17 Cal. Gov’t Code § 12945.2; (5) failure to provide reasonable accommodations, Cal. 18 Gov’t Code § 12940(m); (6) failure to engage in a good faith interactive process, Cal. 19 Gov’t Code § 12940(n); (7) wrongful termination in violation of public policy; and 20 (8) declaratory judgment. 21 On August 25, 2020, Vishay removed the case to federal court.3 On April 30, 22 2021, Vishay filed this Motion seeking summary judgment as to each of Rivera’s 23 eight claims. Vishay also moved for summary adjudication, a California state court 24 procedural device, which the Court takes as a motion for partial summary judgment on 25 one or more of Rivera’s claims. Compare Fed. R. Civ. P. 56(a) with Cal. Civ. Proc. 26 Code § 437c(f). [27] 28 3 Rivera replaced the erroneously-sued Vishay Americas, Inc. with the current Defendant, Vishay, in the FAC. 1 III. LEGAL STANDARD 2 A court “shall grant summary judgment if the movant shows that there is no 3 genuine dispute as to any material fact and the movant is entitled to judgment as a 4 matter of law.” Fed. R. Civ. P. 56(a). A disputed fact is “material” where the 5 resolution of that fact might affect the outcome of the suit under the governing law, 6 and the dispute is “genuine” where “the evidence is such that a reasonable jury could 7 return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 8 242, 248 (1986). The burden of establishing the absence of a genuine issue of 9 material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317 , 322– 10 23 (1986). 11 Once the moving party satisfies its burden, the nonmoving party cannot simply 12 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 13 material issue of fact precludes summary judgment. See id.; Matsushita Elec. Indus. 14 Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Cal. Architectural Bldg. 15 Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466 , 1468 (9th Cir. 1987). The 16 non-moving party must show that there are “genuine factual issues that . . . may 17 reasonably be resolved in favor of either party.” Franciscan Ceramics, 818 F.2d 18 at 1468 (quoting Anderson, 477 U.S. at 250 ) (emphasis omitted). The court should 19 grant summary judgment against a party who fails to demonstrate facts sufficient to 20 establish an element essential to his case when that party will ultimately bear the 21 burden of proof at trial. See Celotex, 477 U.S. at 322 . 22 In ruling on summary judgment motions, courts view the facts and draw 23 reasonable inferences in the light most favorable to the nonmoving party. Scott v. 24 Harris, 550 U.S. 372, 378 (2007). However, “uncorroborated and self-serving” 25 testimony will not create a genuine issue of material fact. Villiarimo v. Aloha Island 26 Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). “Conclusory” or “speculative” 27 testimony is likewise “insufficient to raise genuine issues of fact and defeat summary 28 judgment. See Hous. Rights Ctr. v. Sterling, 404 F. Supp. 2d 1179, 1183 (C.D. Cal. 1 2004). Though the Court may not weigh conflicting evidence or make credibility 2 determinations, a plaintiff must ultimately provide more than a “scintilla” of 3 contradictory evidence to avoid summary judgment. Anderson, 477 U.S. at 251–52; 4 Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 5 Pursuant to the Local Rules, parties moving for summary judgment must file a 6 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should 7 set out “the material facts as to which the moving party contends there is no genuine 8 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 9 Genuine Disputes” setting forth all material facts as to which it contends there exists a 10 genuine dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that material facts as 11 claimed and adequately supported by the moving party are admitted to exist without 12 controversy except to the extent that such material facts are (a) included in the 13 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 14 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3. 15 IV. DISCUSSION 16 The Court considers each of Rivera’s eight claims in turn. In this case, the 17 reasonableness of the length of leave Vishay granted Rivera is a central issue that 18 arises in several of Rivera’s causes of action. Accordingly, the Court begins with 19 analysis of Rivera’s reasonable accommodation claim. 20 A. Fifth Claim: Failure to Provide Reasonable Accommodation (Cal. Gov’t 21 Code § 12940(m)) 22 Rivera’s fifth claim is for Vishay’s failure to provide reasonable 23 accommodation. (FAC ¶ 73–80.) California Government Code section 12940(m) 24 makes it unlawful for “an employer . . . to fail to make reasonable accommodation for 25 the known . . . disability of an . . . employee.” The essential elements of a failure to 26 accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the 27 plaintiff is a qualified individual (i.e., he or she can perform the essential functions of 28 the position with or without reasonable accommodation); and (3) the employer failed 1 to reasonably accommodate the plaintiff’s disability. Jensen v. Wells Fargo Bank, [2] 85 Cal. App. 4th 245, 256 (2000). “[I]n appropriate circumstances, reasonable 3 accommodation can include providing the employee accrued paid leave or additional 4 unpaid leave.” Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226 (1999). In 5 such cases, an employee who is on a reasonable, non-indefinite leave of absence is 6 considered a qualified individual because the employee will be able to return to work 7 (i.e., to the essential functions of the position) after a reasonable amount of leave has 8 been granted as an accommodation. See, e.g., id. 9 This Motion places the first two elements of Rivera’s reasonable 10 accommodation claim at issue. The Court examines each element in turn. 11 1. Disability 12 Vishay does not dispute that Rivera took medical leave due to stress and 13 anxiety. (CSF 36.) Vishay does briefly dispute, however, whether stress and anxiety 14 qualify as a disability under FEHA. (Mot. 8.) 15 FEHA expressly defines mental disability and includes it within FEHA’s ambit. 16 “‘Mental disability’ includes . . . [h]aving any mental or psychological disorder or 17 condition, such as intellectual disability, organic brain syndrome, emotional or mental 18 illness, or specific learning disabilities, that limits a major life activity,” as well as 19 “[b]eing regarded or treated by the employer or other entity covered by this part as 20 having, or having had, any mental condition” that makes or could make achievement 21 of a major life activity difficult. Cal. Gov’t Code § 12926(j)(1), (4), (5). Case law 22 generally recognizes anxiety disorders as disabilities, with particular exceptions not 23 applicable here. Alejandro v. ST Micro Elecs., Inc., 129 F. Supp. 3d 898, 908 (N.D. 24 Cal. 2015 ) (recognizing allegations of bipolar and generalized anxiety disorder as 25 sufficient allegation of disability); cf. Cal. Gov’t Code § 12926.1(c) (“[M]ental 26 disabilities include, but are not limited to, chronic or episodic conditions such as . . . 27 clinical depression . . . .”); but see Higgins-Williams v. Sutter Med. Found., 237 Cal. 28 App. 4th 78, 84 (2015) (“An employee’s inability to work under a particular 1 supervisor because of anxiety and stress related to the supervisor’s standard oversight 2 of the employee’s job performance does not constitute a disability under FEHA.” 3 (emphasis added)). Working is considered a major life activity, Cal. Gov’t Code 4 § 12926(j)(1)(C), and “repeated or extended absences from work may constitute a 5 limitation on the major life activity of working,” Soria v. Univision Radio L.A., Inc., [6] 5 Cal. App. 5th 570, 588 (2016). 7 Here, the parties do not dispute that Rivera took leave due to anxiety, and that 8 Vishay at first granted her leave based on a doctor’s note indicating a “medical 9 condition.” Thus, the parties do not dispute that Rivera’s anxiety, which is a mental 10 condition, prevented her from working. (See also CSF 19 (“Rivera’s depression and 11 anxiety is the disability and/or medical condition at issue in this action.”).) Whether a 12 condition constitutes a disability is either a question of fact for the jury or a question 13 of law for the Court, depending on whether the underlying facts are disputed. 14 Compare Atkins v. City of Los Angeles, 8 Cal. App. 5th 696, 715 (2017) (“Questions 15 of statutory interpretation, and the applicability of a statutory standard to undisputed 16 facts, present questions of law . . . .”), with Diaz v. Fed. Express Corp., 373 F. Supp. 17 2d 1034, 1053 (C.D. Cal. 2005) (finding questions of fact precluded summary 18 judgment on issue of disability, where record showed employee suffered from 19 temporary anxiety and depression). Here, it is sufficient to note that (1) the 20 undisputed facts do not compel the conclusion that, as a matter of law, Rivera was not 21 disabled, and (2) to the extent the facts are disputed, a reasonable jury could find 22 Rivera’s anxiety qualifies as a disability. Accordingly, summary judgment will not be 23 granted on this ground. 24 2. Qualified individual; reasonableness of accommodation 25 To recover for a failure to provide reasonable accommodation, the plaintiff 26 must also show that, at the time of the failure, she was able to perform the functions of 27 her job with or without reasonable accommodation. Jensen, 85 Cal. App. 4th at 255 . 28 In Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331, 1341 (2013), the California 1 Court of Appeal took up the case of a pregnant employee who had been out on leave 2 due to a high-risk pregnancy for almost five months. Id. at 1335 . Rather than wait for 3 the employee to carry her baby to term, the employer terminated her employment. Id. 4 The California Supreme Court found—despite a provision in a related California law, 5 the Pregnancy Disability Leave Law (“PDLL”), capping PDLL pregnancy leave at 6 four months—that a further leave of absence might reasonably have constituted a 7 reasonable accommodation of the employee’s pregnancy. Id. at 1341 (collecting cases 8 and noting that “[a] finite leave of greater than four months may be a reasonable 9 accommodation for a known disability under the FEHA”). 10 This case parallels Sanchez. Vishay argues that, by the time it terminated 11 Rivera’s employment, it had already provided all possible reasonable accommodation, 12 and that any request for additional leave would have been unreasonable. (Mot. 13.) 13 Vishay’s argument is based solely on the fact of Rivera’s six-month leave; Vishay 14 presents no evidence that providing additional leave would have burdened it. If 15 anything, the sole assertion Vishay makes on this point—that, from June to November 16 2018, Vishay retained a temporary employee to cover Rivera’s work in her absence— 17 suggests that granting additional leave would not have been a burden. (CSF 44.) 18 Upon this factual presentation, reasonable minds might differ as to whether Rivera’s 19 request for an additional three months of leave after six continuous months of leave 20 was reasonable. Anderson, 477 U.S. at 248 (precluding summary judgment when a 21 reasonable jury could return a verdict for the nonmoving party). 22 Some of the cases frame the employer’s right to lawfully terminate a disabled 23 employee’s employment in terms of whether the employee’s leave is “finite,” as it was 24 in Sanchez, or “indefinite,” as it was in Hanson, where the evidence showed that a 25 meat cutter was permanently disabled and would likely never be able to return his old 26 job and that there was no other available position with modified duties. 74 Cal. App. 27 4th at 227. On one hand, “[r]easonable accommodation does not require the employer 28 to wait indefinitely for an employee’s medical condition to be corrected.” Id. at 226– 1 27. On the other hand, “[a] finite leave can be a reasonable accommodation under 2 FEHA, provided it is likely that at the end of the leave, the employee would be able to 3 perform his or her duties.” Id. at 226. In the cases that employ this framework, 4 however, the employee’s condition was known to the employer and was such that the 5 employer was on clear notice whether the condition itself (as opposed to merely the 6 leave) was finite or indefinite. In Sanchez, the employee was pregnant; the obvious 7 implication was that the pregnancy-related disability would conclude after nine 8 months and the employee would be able to return to work shortly thereafter. By 9 contrast, in Myers v. Hose, 50 F.3d 278 (4th Cir. 1995)4, a bus driver’s chronic, 10 recurrent, and sudden-onset health conditions clearly precluded him from safely 11 operating a bus at any time in the future, and the Fourth Circuit held that nothing in 12 the ADA’s “reasonable accommodation provision requires an employer to wait an 13 indefinite period for an accommodation to achieve its intended effect.” Id. at 283 ; see 14 also Tipton v. Airport Terminal Servs., No. CV 18-09503-AB (JEMx), 2020 WL 15 3980127 (C.D. Cal. Mar. 31, 2020) (utilizing finite/indefinite framework where 16 employee had a serious shoulder injury and was admittedly unable to state when she 17 would be able to return to work). 18 The present case is different in one key respect: nothing in the record indicates 19 that Vishay was aware of the specific nature of Rivera’s medical condition beyond the 20 bare fact that it was a medical “condition,” “conditions,” or “complication.” (Scholl21 Tatevosyan Decl. Exs. 5, 6, 8.) And the evidence submitted regarding Rivera’s 22 conversations with Shannon Nabeta, Vishay’s Human Resources Manager, indicates 23 only that the two discussed whether Rivera could return to work. (Scholl-Tatevosyan 24 Decl. Ex. 1 (“Rivera Dep.”) 54:18–56:23, ECF No. 27-6 (Rivera testifies to no 25 discussion of specifics of medical condition); Ex. 2 (“Nabeta Dep.”) 57:1–21, ECF [26] 4 It appears that Myers was one of the first circuit-level cases to tie the concept of indefiniteness of [27] leave to reasonableness of accommodation. Myers was cited by the Sixth Circuit in Gantt v. Wilson 28 Sporting Goods Co., 143 F.3d 1042, 1047 (1998), and in turn by the California Court of Appeal in Hanson, a foundational state-court opinion on this issue. 1 No. 27-7 (Nabeta testifies to no recollection of discussion of specifics of medical 2 condition). 3 This distinction renders the present case distinguishable from Sanchez, Myers, 4 and other cases utilizing the finite/indefinite framework. However, the reasoning in 5 these cases is not altogether irrelevant, because ultimately, an employer is entitled to 6 terminate an employee based on its reasonable assessment that the employee’s leave is 7 indefinite, and the employer’s knowledge of the specific details of the employee’s 8 medical condition is relevant to whether the employer’s assessment is reasonable. 9 However, at the summary judgment stage, that Vishay was not aware of the specific 10 details of Rivera’s condition cuts both ways. One reasonable person might take this 11 fact into account and determine that, in light of Rivera’s twenty-five year history with 12 this relatively large employer, (Decl. of Samvel Setyan Ex. B (“Plf.’s Nabeta Dep.”) 13 10:14–19, 12:23–14:7, 18:21–19:7, ECF No. 28-4), along with the fact that a 14 temporary worker appeared to be covering Rivera’s job responsibilities without 15 incident, (CSF 44), Vishay was not reasonable in terminating her employment after 16 only six months without giving her more time to address her condition and recover 17 from it. Another reasonable person might view these same circumstances and find 18 that requiring Vishay to wait longer than six months without any indication of the 19 nature, severity, or longevity of Rivera’s disability would be unreasonable. Summary 20 judgment is not appropriate here because reasonable minds may differ on this 21 conclusion. 22 The cases under FEHA or the ADA5 in which a six-month disability leave was 23 found to be the upper bound of reasonable as a matter of law are distinguishable. The 24 Ninth Circuit in Lawler v. Montblanc North Am., LLC, 704 F.3d 1235 (9th Cir. 2013), 25 found a five-month leave to be the upper limit of reasonable, but the distinguishing 26 facts were (1) the job was an active retail position; (2) the employee had a serious [27] 28 5 Where the ADA and FEHA align, courts applying California law may look to cases analyzing the ADA as instructive. Hanson, 74 Cal. App. 4th at 224 n.7. 1 physical condition that materially hindered her ability to perform her job and appeared 2 to be getting worse; and (3) the employee had been at the company for eight years. Id. 3 at 1238–39. The Lawler court did not examine whether extending the employee’s 4 leave would have been a reasonable accommodation because the employee “admitted 5 that her disability ma[de] it impossible for her to fulfill the duties of her position” and 6 did not argue that this would change in the future. Id. at 1243; see also Tipton, [7] 2020 WL 3980127 at *8 (same). 8 Finally, the existence of an employer policy regarding disability leave makes 9 little to no difference in this reasonableness analysis because the reasonableness of a 10 disability leave is to be determined on a case-by-case basis, accounting for all the facts 11 and circumstances. 12 The Court cannot conclude as a matter of law that Vishay had fulfilled its duty 13 to reasonably accommodate when it terminated Rivera’s employment after six months 14 of medical leave. There remains a genuine dispute as to whether Rivera would have 15 been able to perform her job responsibilities after full reasonable accommodation had 16 been granted—i.e., whether she was a qualified individual. Accordingly, summary 17 judgment cannot be granted on this ground. 18 In summary, Vishay has not met its burden as to Rivera’s claim for failure to 19 reasonably accommodate. In the alternative, Rivera has demonstrated genuinely 20 disputed issues of material fact. The Court DENIES Vishay’s Motion as to Claim 21 Five. 22 B. Claim One: Discrimination (Cal. Gov’t Code § 12940) 23 Rivera’s first claim is for discrimination. (FAC ¶¶ 32–43.) FEHA makes it 24 unlawful for an employer to take an adverse employment action against an employee 25 because of that person’s disability. Cal. Gov’t Code § 12940(a). To establish a prima 26 facie case of FEHA disability discrimination, the employee-plaintiff must prove: 27 (1) she suffered from a disability; (2) with or without reasonable accommodation, she 28 could perform the essential functions of the employment position she held or desired; 1 and (3) she was subjected to an adverse employment action because of her disability. 2 Jensen, 85 Cal. App. 4th at 254 . Termination is a widely recognized example of an 3 adverse employment action. See, e.g., Villiarimo, 218 F.3d at 1064. 4 In rendering summary judgment on a discrimination claim, courts typically 5 follow the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, [6] 411 U.S. 792 (1973), to determine whether triable issues of fact exist for a jury to 7 resolve. However, there is a subset of disability discrimination claims for which the 8 McDonnell Douglas framework is not appropriate, namely, cases in which the 9 plaintiff’s disability or perceived disability is the employer’s stated reason for 10 terminating the employee. In such cases, there is no need to make any further inquiry 11 into the employer’s motive—i.e., into whether the “because of” requirement is met, 12 Jensen, 85 Cal. App. 4th at 254—because the employer has already made clear that 13 the reason employment was terminated was “because of” the employee’s disability. 14 See Wallace v. County of Stanislaus, 245 Cal. App. 4th 109, 115 (2016) (“California 15 law does not require an employee with an actual or perceived disability to prove that 16 the employer’s adverse employment action was motivated by animosity or ill will 17 against the employee. Instead, California’s statutory scheme protects employees from 18 an employer’s erroneous or mistaken beliefs about the employee’s physical 19 condition.”) 20 This is one such case. Rivera is not alleging that she was fired because of a 21 discriminatory animus toward people with anxiety; instead, Rivera is alleging that her 22 employer concluded (perhaps with no animus at all) that she had a disability that made 23 her unable to do her job and fired her on that basis. With these clarifications in mind, 24 the Court examines each element of Rivera’s discrimination claim to determine if it 25 raises triable issues. The first element—a disability—is identical to the first element 26 of the reasonable accommodation claim and was addressed above. [28] 1 1. Ability to perform job functions with or without reasonable 2 accommodation 3 The parties do not dispute that Rivera’s termination qualifies as an adverse 4 employment action. The key issue presented by the second element of Rivera’s 5 discrimination claim is whether, at the time of Rivera’s termination, she was able to 6 perform her job functions “with or without reasonable accommodation.” Jensen, [7] 85 Cal. App. 4th at 263 . 8 As the foregoing analysis of the reasonable accommodation claim makes clear, 9 Vishay has failed in its burden of showing that it exhausted all reasonable 10 accommodation before terminating Rivera’s employment. Certainly, at the time 11 Vishay terminated Rivera’s employment, Rivera was not working or coming to the 12 jobsite. Because her job required her to be on site to operate the laser, she was, at that 13 time, unable to perform her job functions. But that is not the end of the inquiry. 14 Rivera was a qualified individual if she could have done her job with reasonable 15 accommodation. Id. at 254, n.3 . Qualified individuals include those who can perform 16 their job after a leave of reasonable length. See Sanchez, 213 Cal. App. 4th at 1341 17 (finding that, had the pregnant plaintiff “been granted additional leave until childbirth, 18 she would have been able to perform the essential functions of her job with little or no 19 further accommodations”). 20 As discussed above, it is an open, triable question whether it was reasonable of 21 Vishay to terminate Rivera’s employment after six months of leave, or whether 22 Vishay’s duty to accommodate might have required it to grant additional leave. Thus, 23 summary judgment will not be granted on this basis. 24 2. Adverse employment action and causal nexus 25 The third element of a FEHA discrimination claim is an adverse employment 26 action that is causally connected to the plaintiff’s disability. Jensen, 85 Cal. App. 4th 27 at 254 . “[A]n employer has treated an employee differently ‘because of’ a disability 28 when the disability is a substantial motivating reason for the employer’s decision to 1 subject the employee to an adverse employment action.” Wallace, 245 Cal. App. 4th 2 at 128. Here, Rivera’s termination was the adverse employment action. Villiarimo, 3 218 F.3d at 1064. In turn, by indicating that it took this adverse employment action 4 because Rivera did not return from disability leave after six months, Vishay 5 effectively concedes that there is a causal connection between Rivera’s disability and 6 her termination. Wallace, 245 Cal. App. 4th at 128 . Accordingly, summary judgment 7 will not be granted for lack of adverse employment action or for lack of a causal nexus 8 to a disability. 9 Whether Vishay discriminated when it terminated Rivera’s employment 10 remains a genuinely disputed issue, and Vishay has not otherwise shown entitlement 11 to judgment as a matter of law. Accordingly, the Court DENIES summary judgment 12 as to Claim One. 13 C. Claim Two: Retaliation (Cal. Gov’t Code § 12940(h)) 14 Rivera’s second claim is for retaliation. FEHA provides that no employer may 15 “discharge, expel, or otherwise discriminate against any person because the person has 16 opposed any practices forbidden under [FEHA] or because the person has filed a 17 complaint, testified, or assisted in any proceeding under this part.” Cal. Gov’t Code 18 § 12940(h). “Employees may establish a prima facie case of unlawful retaliation by 19 showing that (1) they engaged in activities protected by the FEHA, (2) their employers 20 subsequently took adverse employment action against them, and (3) there was a causal 21 connection between the protected activity and the adverse employment action.” 22 Miller v. Dep’t of Corr., 36 Cal. 4th 446, 472 (2005). Seeking an accommodation of a 23 disability qualifies as a protected activity. Scott v. Mabus, 618 F. App’x 897 , 902 24 (9th Cir. 2015); Cal. Gov’t Code § 12940(m)(2). Here, Rivera’s requests for disability 25 leave are the sole protected activity the parties place at issue. (Mot. 16; Opp’n 13.) 26 The McDonnell Douglas burden-shifting framework applies to retaliation 27 claims. Flait v. N. Am. Watch Corp. 3 Cal. App. 4th 467, 476 (1992). Unlike with 28 discrimination, there is no special exception for disability-based retaliation claims; all 1 retaliation claims require that a plaintiff show a causal nexus between the protected 2 activity (here, Rivera’s requesting additional leave) and the retaliatory act (here, the 3 termination). Under McDonnell Douglas, the plaintiff has the initial burden to 4 establish a prima facie case. McDonnell Douglas, 411 U.S. at 802 . If the prima facie 5 case is shown, a presumption of discrimination arises, and the burden shifts to the 6 defendant to show that the adverse employment action was taken for a legitimate, 7 nondiscriminatory reason. Id. If the defendant states a legitimate, nondiscriminatory 8 reason, the presumption is negated, and the burden shifts back to the plaintiff to 9 demonstrate that the proffered reason is mere pretext for discrimination. Id. at 804 . 10 However, when an employer moves for summary judgment, “the burden is 11 reversed . . . because the defendant who seeks summary judgment bears the initial 12 burden.” Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728 , 745 13 (9th Cir. 2011) (internal quotation marks omitted). Thus, to prevail on summary 14 judgment, the employer is required to “show either that (1) plaintiff could not 15 establish one of the elements of [the] FEHA claim or (2) there was a legitimate, 16 [nonretaliatory] reason for its decision to terminate plaintiff’s employment.” Lawler, [17] 704 F.3d at 1242 (first alteration in original). If the employer meets its burden, then 18 the “employee must demonstrate either that the defendant’s showing was in fact 19 insufficient or . . . that there was a triable issue of fact material to the defendant’s 20 showing.” Id. (internal quotation marks omitted). 21 Here, Vishay argues that it had a nonretaliatory reason for terminating Rivera’s 22 employment: she had been out on disability leave for six continuous months and 23 company policy limited disability leave to twenty-six continuous weeks. Thus, 24 Vishay has met its burden on summary judgment to show a legitimate nonretaliatory 25 reason for termination, and the burden shifts to Rivera to show that Vishay’s reason 26 was pretextual. 27 Rivera has not met this burden. Rivera argues that the temporal proximity 28 between her third doctor’s note and her termination provides sufficient evidence of 1 pretext for summary judgment. (Mot. 13–14.) “[T]o support an inference of 2 retaliatory motive based on timing alone, the adverse action must have occurred 3 ‘fairly soon after the employee’s protected expression.’ Causation will only be 4 inferred from timing alone if the proximity is ‘very close.’” Anderson v. City & 5 County of San Francisco, 169 F. Supp. 3d 995, 1028 (N.D. Cal. 2016) (citation 6 omitted). Here, the record is not clear on exactly when Rivera submitted her doctor’s 7 note, indicating only that it was sometime in October 2018. Vishay terminated her 8 employment on November 26, 2018, meaning the gap between the protected activity 9 and the adverse employment action was about one to two months. However, 10 November 26, 2018, was the six-month anniversary of Rivera’s leave, which 11 reinforces Vishay’s claim that it terminated her employment pursuant to policy, rather 12 than in retaliation for having submitted a doctor’s note one or two months before. 13 That Vishay had, in the past, readily granted Rivera kin care leave further militates 14 against any inference of pretext. 15 Given the overwhelming evidence of the essentially undisputed reason Vishay 16 terminated Rivera’s employment, a request for accommodation in the form of a 17 doctors’ note submitted one or two months prior is, in this case, only a “scintilla” of 18 evidence of pretext, which is insufficient to withstand summary judgment. Addisu, [19] 198 F.3d at 1134 . Accordingly, the Court GRANTS summary judgment as to Claim 20 Two. 21 D. Claim Three: Failure to Prevent Discrimination and Retaliation (Cal. 22 Gov’t Code § 12940(k)) 23 Rivera’s third claim is for failure to prevent discrimination or retaliation. (FAC 24 ¶¶ 56–61.) California Government Code section 12940(k) provides that an employer 25 must take all reasonable steps necessary to prevent unlawful harassment and 26 discrimination from occurring. “The employer’s duty to prevent harassment and 27 discrimination is affirmative and mandatory.” Northrop Grumman Corp. v. Workers’ 28 Comp. Appeals Bd., 103 Cal. App. 4th 1021, 1035 (2002). 1 In most cases, when the issue of discrimination is triable, the issue of whether 2 the employer failed to prevent discrimination is likewise triable. See, e.g., Lelaind v. 3 City & County of San Francisco, 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008). As 4 discussed above, the issue whether Vishay discriminated is triable. Vishay does not 5 offer any argument or evidence suggesting this case is an exception to this rule—that 6 is, that whether Vishay discriminated is genuinely disputed, but whether Vishay failed 7 to prevent discrimination is not. Accordingly, the issue of failure to prevent 8 discrimination is for the trier of fact, and the Court DENIES summary judgment as to 9 Claim Three. 10 E. Claim Four: Retaliation (Cal. Gov’t Code § 12945.2) 11 Rivera’s fourth claim is for retaliation for exercise of rights under the California 12 Family Rights Act (“CFRA”) in violation of California Government Code 13 section 12945.2(l). (FAC ¶¶ 62–72.) The CFRA is part of the FEHA, Rogers v. 14 County of Los Angeles, 198 Cal. App. 4th 480, 487 (2011), and provides “[i]t shall be 15 an unlawful employment practice for an employer to . . . discharge . . . or discriminate 16 against, any individual because of . . . [¶] (1) An individual’s exercise of the right to 17 family care and medical leave provided by” the CFRA, Cal. Gov’t Code § 12945.2(l). 18 An employee establishes a prima facie case of retaliation in violation of the 19 CFRA by showing: “(1) the defendant was a covered employer; (2) the plaintiff was 20 eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying 21 leave; and (4) the plaintiff suffered an adverse employment action because he or she 22 exercised the right to take CFRA leave.” Rogers, 198 Cal. App. 4th at 487–88. The 23 McDonnell Douglas burden-shifting framework applies in CFRA retaliation cases. 24 Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 885 (2007). 25 Rivera’s CFRA retaliation claim fails for two independent reasons. First, prior 26 to January 1, 2021, California Government Code section 12945.2(c)(2)(A) defined an 27 “employer” subject to the CFRA as one who directly employed 50 or more persons. 28 The parties do not dispute that Rivera was not eligible for medical leave under the 1 CFRA because Vishay had less than 50 employees and was therefore not a covered 2 employer. (CSF 35.) Thus, this claim fails outright on the first and second elements. 3 Second, this retaliation claim also fails for the same reasons the FEHA 4 retaliation claim fails. The parties do not dispute that Vishay terminated Rivera’s 5 employment because she was not reporting for work and had reached the end of the 6 twenty-six weeks provided pursuant to company policy. Rivera points to the nebulous 7 temporal proximity between her request for additional leave and her termination, but, 8 as above, this scintilla of evidence is insufficient. 9 Accordingly, the Court GRANTS summary judgment as to Claim Four. 10 F. Claim Six: Failure to Engage in a Good Faith Interactive Process (Cal. 11 Gov’t Code § 12940(n)) 12 Rivera’s sixth claim is for Vishay’s failure to engage in the interactive process. 13 (FAC ¶¶ 81–88.) California Government Code section 12940(n) requires employers 14 to engage in a good faith interactive process to determine effective reasonable 15 accommodations, if any, “in response to a request for reasonable accommodation by 16 an employee . . . with a known physical or mental disability.” Raine v. City of 17 Burbank, 135 Cal. App. 4th 1215, 1222 (2006). To recover, an employee must allege 18 and prove facts to support a finding that she suffered from a disability, that the 19 employer was aware of her alleged disability, and that the employer failed to engage 20 in a good faith process to identify reasonable accommodations for her. Cal. Gov’t 21 Code § 12940(n). 22 Vishay argues that “Rivera cannot identify a reasonable accommodation that 23 was available at the time beyond her . . . request for a further . . . leave.” (Mot. 15.) 24 This argument is well taken and is sufficient to meet Vishay’s burden. At first, Rivera 25 and Vishay participated in the interactive process when Rivera provided Vishay 26 doctors’ notes and Vishay granted leave. This constituted a complete interactive 27 process and the provision of an accommodation. The doctor’s notes, however, were 28 not specific; they indicated only that Rivera had a medical “condition” or 1 “complication” and that she could not work as a result. (Scholl-Tatevosyan Decl. 2 Exs. 5, 6, 8.) Thus, it was Rivera who bore responsibility to continue or resume the 3 interactive process by giving Vishay more information. See Raine, 135 Cal. App. 4th 4 at 1222 ; see also Zarco v. VWR Int’l, LLC, No. 20-cv-00089-HSG, 2021 WL 5 1927528, at *7–8 (N.D. Cal. May 13, 2021) (rejecting employee’s argument that 6 employer could have continued the interactive process by offering employee a 7 modified position because employer was entitled to rely on medical evidence 8 indicating employee was unable to work in determining that the interactive process 9 would have been futile). Vishay’s evidence suggests Rivera did not give Vishay more 10 information, which is sufficient to meet Vishay’s initial burden. 11 Rivera, in turn, fails in her burden of showing a triable issue. Rivera submits no 12 evidence indicating she told Vishay about her medical diagnosis and the limitations it 13 imposed with sufficient detail to allow Vishay to evaluate whether it could 14 accommodate her condition with something less drastic than leave, such as modified 15 job duties or an alternate position. Vishay cannot be tasked with offering Rivera 16 modified or alternate positions when the record lacks any indication that Rivera 17 communicated to Vishay any details about her limitations. 18 Accordingly, the Court GRANTS summary judgment as to Claim Six. 19 G. Claim Seven: Wrongful Termination in Violation of Public Policy 20 Rivera’s seventh claim is for wrongful (or tortious) termination in violation of 21 public policy. (FAC ¶¶ 89–99.) “[W]hen an employer’s discharge of an employee 22 violates fundamental principles of public policy, the discharged employee may 23 maintain a tort action and recover damages traditionally available in such actions.” 24 Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 170 (1980). 25 An employer’s violation of a statute or an authorized regulation is typically the 26 basis for the public policy violation at stake in a Tameny claim. See, e.g., Green v. 27 Ralee Eng’g Co., 19 Cal. 4th 66, 71 (1998). Unsurprisingly, “the statutes that most 28 clearly support a cause of action for tortious termination in violation of public policy 1 are those that expressly prohibit termination of employment . . . for certain reasons.” 2 Grant-Burton v. Covenant Care, Inc., 99 Cal. App. 4th 1361, 1372 (2002). Here, as 3 discussed above, Rivera’s FEHA discrimination claim presents genuine disputes of 4 material fact precluding summary judgment. Thus, a genuine dispute also exists as to 5 whether Vishay violated the public policy embodied in the FEHA discrimination 6 statutes. Accordingly, the Court DENIES summary judgment as to Claim Seven. 7 H. Claim Eight: Declaratory Judgment 8 Rivera’s eighth claim is for a declaratory judgment pursuant to California Code 9 of Civil Procedure section 1060. (FAC ¶¶ 100–109.) The purpose of a declaratory 10 judgment is to “serve some practical end in quieting or stabilizing an uncertain or 11 disputed jural relation.” Meyer v. Sprint Spectrum L.P., 45 Cal. 4th 634, 647 (2009). 12 Moreover: 13 [D]eclaratory relief is intended to offer guidance in shaping future 14 conduct so as to avoid breach of a party’s obligations. If that conduct has already matured, no such opportunity is present. Consequently, where a [15] party can allege a substantive cause of action, a declaratory relief claim 16 should not be used as a superfluous “second cause of action for the determination of identical issues” subsumed within the first. [17] 18 Pub. Serv. Mut. Ins. Co. v. Liberty Surplus Ins. Corp., 51 F. Supp. 3d 937 , 950 19 (E.D. Cal. 2014) (applying California law). Here, Rivera’s employment has already 20 been terminated, and any violations of her rights will be fully addressed and remedied 21 by her other viable causes of action. Rivera’s declaratory relief claim is thus 22 superfluous, and the Court GRANTS summary judgment as to Claim Eight. 23 I. Punitive Damages 24 Finally, Vishay seeks summary judgment on Rivera’s claim for punitive 25 damages. (Compl., Prayer for Relief ¶ 5 (seeking punitive damages under California 26 law); see, e.g., Compl. ¶ 42.) A claim for punitive damages requires “clear and 27 convincing” evidence that a defendant has been guilty of “oppression, fraud, or 28 malice.” Cal. Civ. Code § 3294 (a), (c). Here, Rivera does not allege or argue that 1 Vishay committed fraud, so the issue is whether the evidence demonstrates that no 2 reasonable juror could find that Vishay acted with oppression or malice. Aguilar v. 3 Atl. Richfield Co., 25 Cal. 4th 826 , 850 n.11 (2001). 4 “Malice” is statutorily defined as “conduct which is intended by the defendant 5 to cause injury to the plaintiff or despicable conduct which is carried on by the 6 defendant with a willful and conscious disregard of the rights or safety of others.” [7] Cal. Civ. Code § 3294 (c)(1). “Oppression” is statutorily defined as “despicable 8 conduct that subjects a person to cruel and unjust hardship in conscious disregard of 9 that person’s rights.” Id. § 3294(c)(2). 10 Rivera points to two actions that she argues warrant punitive relief, but neither 11 is sufficient to meet her burden of introducing a genuine dispute. The first is the act of 12 terminating her employment pursuant to Vishay’s disability leave policy. But Rivera 13 submits no evidence suggesting anyone other than Nabeta was involved the 14 termination decision, and the parties do not dispute that Nabeta is not an officer, 15 director, or managing agent of Vishay. (CSF 55–57); Cal. Civ. Code § 3294 (b) 16 (allowing punitive damages when an officer, director, or managing agents has acted 17 wrongfully). Nor did Rivera submit evidence that an officer, director, or managing 18 agent authorized or ratified Nabeta’s conduct. Cal. Civ. Code § 3294 (b) (allowing 19 punitive damages when an officer, director, or managing agent authorizes or ratifies 20 an employee’s wrongful acts). Moreover, when Nabeta terminated Rivera’s 21 employment, Nabeta did so according to company policy; indeed, Rivera’s 22 employment was terminated on the exact six-month anniversary of the start of her 23 leave. Rivera submitted no evidence that would allow a jury to reasonably infer that 24 Nabeta executed this policy maliciously or oppressively or in conscious disregard of 25 Rivera’s rights. 26 The second action Rivera identifies is Vishay’s creation and distribution of the 27 disability leave policy itself, and a similar conclusion applies. (Opp’n 16.) Rivera 28 admits by implication that she is unaware of who at Vishay was responsible for 1 writing or maintaining this policy. (See id.) In the Butte Fire Cases, 24 Cal. App. 5th 2 1150, 1170 (2018), the plaintiffs sought punitive damages from the California PG&E 3 on the basis that PG&E’s risk management controls and fire mitigation policies and 4 procedures justified punitive relief. The Court of Appeal observed that plaintiffs 5 pursuing punitive damages must present evidence “inconsistent with the hypothesis” 6 that conduct was “the result of a mistake of law or fact, honest error of judgment, 7 over-zealousness, mere negligence.” Id. The Court of Appeal affirmed that PG&E’s 8 risk management policies themselves, without more, showed “mere carelessness or 9 ignorance” at most. Id. 10 Similarly, here, if Rivera is not accusing any particular individual of oppression 11 or malice, then Rivera must demonstrate that the face of the policy alone is 12 “inconsistent” with any hypothesis that the policy was a result of less culpable states 13 of mind such as an honest error of judgment, overzealousness, negligence, “or other 14 such noniniquitous human failing.” Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 15 4th 1269, 1288 n.14 (1994). This is a very high burden, and given the evidence as 16 presented, it is one the Court finds no reasonable jury could determine Rivera has met. 17 Neither action Rivera identifies supports punitive damages. Accordingly, the 18 Court GRANTS summary judgment on Rivera’s punitive damages claim. [28] 1 Vv. CONCLUSION 2 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN 3 || PART Defendant’s Motion for Summary Judgment. (ECF No. 27.) Summary 4|| judgment is GRANTED as to Claim Two (FEHA retaliation), Claim Four (CFRA 5 || retaliation), Claim Six (failure to engage in the interactive process), Claim Eight 6 || (declaratory judgment), and Rivera’s claim for punitive damages. Summary judgment 7 | is DENIED as to Claim One (discrimination), Claim Three (failure to prevent), Claim 8 | Five (failure to reasonably accommodate), and Claim Seven (wrongful termination). [9] 10 IT IS SO ORDERED. [11] 12 October 12, 2021 [13] 14 wg Leda 16 OTIS D. WRIGHT, II 4 UNITED STATES,DISTRICT JUDGE