Horn v. Safeway Inc.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] DEBRA HORN, 7 Case No. 19-cv-02488-JCS Plaintiff, [8] v. ORDER GRANTING IN PART AND 9 DENYING IN PART MOTION FOR SAFEWAY INC., PARTIAL SUMMARY JUDGMENT [10] Defendant. Re: Dkt. No. 60 [12] 13 I. INTRODUCTION 14 Plaintiff Debra Horn brought this disability discrimination action against her employer, 15 Defendant Safeway Inc. (“Safeway”), in Alameda County Superior Court. She asserts claims for, 16 inter alia, discrimination, harassment and retaliation based on disability, as well as failure to 17 provide reasonable accommodation for her disability, under the American’s with Disabilities Act 18 (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”). Safeway removed the 19 case to this Court and now brings a Motion for Partial Summary Judgment (“Motion”). A hearing 20 on the Motion was held on April 30, 2021. For the reasons stated below, the Motion is 21 GRANTED in part and DENIED in part.1 22 II. BACKGROUND 23 A. Factual and Procedural Background2 24 Safeway hired Horn in 2003. Declaration of Andrew Chan Kim in Opposition to Motion 25 for Summary Judgment (“Kim Decl.”) ¶ 2 & Ex. A (Deposition of Debra Horn (“Horn Depo.”)) at [27] 1 The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 1 15-17. From 2003 to 2017, she stocked product shelves, worked as a cashier, assisted with self2 checkout, and performed general customer service. Id. at 16, 19, 223-224, 389-390. 3 In 2005, Horn suffered a work injury to her foot. Id. at 18. She required three surgeries 4 on her foot between 2005 and 2007. Id. at 271-272; Declaration of Debra Horn in Opposition to 5 Motion for Summary Judgment (“Horn Decl.”) ¶ 2. On July 8, 2010, Horn began to experience 6 persistent pain in her hands associated with work. Horn Decl. ¶ 3. She required “multiple 7 surgeries” to her hands, which she underwent in 2012. Id. On November 24, 2016, Horn slipped 8 and fell on melted ice at work, injuring her knees. Id. ¶ 4. 9 According to Horn, between September 2005 and December 2016, she provided numerous 10 doctors’ notes informing Safeway of her need for various accommodations, including her need for 11 a stool to sit on and a limitation of no more than two hours at a time, four hours total, with at least 12 a 15 minute break in between, working as a checker. See Chun Decl., Ex. E (Plaintiff’s Responses 13 to Defendant’s Interrogatories, Set One) at 3-57.3 Horn alleges these limitations were not 14 followed, however, and that she was harassed and retaliated against by her managers and 15 coworkers in connection with her requests for accommodation. Id. 16 It is undisputed that on May 18, 2012, Horn’s doctor reported that she needed the 17 following accommodation: “She will continue doing her normal job. She is best if she checks no 18 more than 2 hours at a time, 4 hours total per day.” Chun Decl., Ex. B (Horn Depo.) & Depo. Ex. 19 68 (Notice of Offer of Modified or Alternative Work). This recommendation was quoted in a 20 Notice of Offer of Modified or Alternative Work (“Modified Work Offer”) prepared by Safeway, 21 along with the further statement, “We understand that you further requested a stool to be in the 22 checkstand. A stool will be available to be utilized on an as-needed basis.” Id. The Modified 23 Work Offer was signed by a Safeway representative on August 15, 2012 and by Horn on 24 September 6, 2012. Id. According to Horn, however, these restrictions continued to be ignored 25 and managers continued to harass and retaliate against her and to refuse to provide reasonable [26] 3 Safeway objects to some of the statements in Plaintiff’s Opposition brief regarding work [27] restrictions she contends were recommended by her doctors on the basis that they are hearsay and 1 accommodations of her disability. Chun Decl., Ex. E (Plaintiff’s Responses to Defendant’s 2 Interrogatories, Set One) at 11-19. 3 It appears to be undisputed that the store director at the Safeway where Horn worked was 4 Brian Sullivan from 2009 through 2014, Amadeo Olivira sometime in 2015 and Michael Vasquez 5 between May 3, 2015 and August 26, 2017. Vasquez Decl. ¶ 1; Chun Decl., Ex. A (Horn Depo.) 6 at 23.4 Horn’s Complaint and interrogatory responses describe a series of incidents in which Horn 7 contends her managers engaged in disability harassment and failed to accommodate her between 8 2009 and 2017. Id. at 3-57. These involved Safeway store directors Brian Sullivan and Michael 9 Vasquez, as well as assistant store managers Michael Gravelle, Ben Beede, Jessica Taylor and 10 Jerry Hunt, and front-end managers Robin Hill, Kelli Snow and Alfonso Balboa. Chun Decl., Ex. 11 E (Plaintiff’s Responses to Defendant’s Interrogatories, Set One) at 3-57. 12 On March 25, 2017, an incident occurred in which Horn called the police to report two 13 African-American customers, a mother and daughter, whom she suspected of shoplifting. Chun 14 Decl., Ex. C (Horn Depo. Ex. 167) (arbitrator’s decision). A Safeway Asset Manager, Celia 15 Kettle, investigated the incident and concluded that Horn had violated multiple Safeway policies 16 including its Shoplifting Deterrence Policy. Declaration of Celia Kettle in Support of Defendant 17 Safeway Inc.’s Motion for Partial Summary Judgment (“Kettle Decl.”) ¶ 5. According to Kettle, 18 she had already counseled Horn in connection with a previous incident that occurred about a year 19 before in which Horn called the police to report suspected shoplifters, telling Horn that she was [21] 4While Safeway supplied a declaration from Vasquez that contains the specific dates of his tenure as store director, it did not provide evidence as to the specific dates when Olivira and Sullivan [22] were store director. The only evidence in the record as to when these individuals were store director is contained in Horn’s deposition testimony, in which she responded to a question asking [23] how long Sullivan was store director as follows: “Oh, at least from – from what I can recall two thousand – the end of 2008 until ’14. Maybe right up to [Olivira] ’15. From ’08 to ’15.” See [24] Chun Decl., Ex. A (Horn Depo.) at 23. At oral argument, the Court asked Safeway if it could provide the approximate dates when Sullivan and Olivira held the position of store director (or to [25] point to any evidence on this question other than Horn’s testimony) but counsel was unable to do so. Therefore, the Court must rely on the limited testimony in the record by Horn on this question. [26] As there is no evidence in the record that the store had more than one director at a time (and Horn’s testimony indicates that these three individuals held this position sequentially), the [27] undisputed evidence in the record reflects that Olivira held the store director position for 1 “not authorized to assist in the detention of suspected shoplifters, including by contacting police.” 2 Id. ¶ 3.5 3 On April 17, 2017, Horn was suspended from her job on the basis that she had failed to 4 follow Safeway’s policies, and she was terminated on June 28, 2017. Declaration of Kevin Lovell 5 in Support of Defendant Safeway Inc’s Motion for Summary Judgment (“Lovell Decl.”) ¶ 2. 6 Horn’s union filed a grievance on her behalf and she was reinstated to her position with a one-year 7 suspension following binding arbitration. Chun Decl., Ex. C (Horn Depo. Ex. 167). The 8 arbitrator found that Horn had “engaged in serious misconduct by indulging in racial profiling and 9 falsely accusing customers of theft without having a reasonable basis for doing so.” Id. at 31. 10 Nonetheless, he found that Safeway’s policy prohibiting Horn from calling the police under the 11 circumstances of the incident had not been made sufficiently clear to Horn to justify termination as 12 an appropriate sanction. Id. at 31-32. In his February 10, 2019 decision, the arbitrator ordered 13 that Horn be reinstated immediately to her position at Safeway without loss of seniority and that 14 she receive all lost wages except for those she would have earned during the one-year suspension. 15 Id. at 32. 16 Horn filed a charge of disability discrimination with both the Department of Fair 17 Employment and Housing (“DFEH”) and the Equal Employment Opportunity Commission 18 (“EEOC”) on May 9, 2017. See Safeway’s Request for Judicial Notice (“RJN”), Ex. A 19 (“EEOC/DFEH Charge”).6 According to Horn, the EEOC issued a right-to-sue letter on 20 September 25, 2018. Complaint ¶ 40. On March 11, 2019, Horn initiated this action in state 21 court, asserting the following claims in her complaint: 1) retaliation based on disclosure of 22 violations of the law under Cal. Labor Code section 1102.5 (“Claim One”); 2) retaliation in [24] 5 Horn does not concede that she violated Safeway policy and contends her suspension was retaliatory. That specific question, though, need not be resolved here as Safeway’s summary [25] judgment arguments are not based on the propriety (or lack of propriety) of the 2017 termination. 6 Safeway requests that the Court take judicial notice of the EEOC/DFEH Charge under Rule 201 [26] of the Federal Rules of Evidence. Horn does not oppose the request, which is GRANTED. See Dornell v. City of San Mateo, 19 F. Supp. 3d 900, 904 (N.D. Cal. 2013) (taking judicial notice of [27] EEOC gender discrimination charge under Rule 201 of the Federal Rule of Evidence on the 1 violation of FEHA, Cal. Gov’t Code section 12940 (“Claim Two”); 3) harassment in violation of 2 FEHA, Cal. Gov’t Code section 12940 (“Claim Three”); 4) aiding and abetting harassment under 3 FEHA, Cal. Gov’t Code section 12940 (“Claim Four”); 5) disability discrimination in violation of 4 FEHA, Cal. Gov’t Code section 12940 (“Claim Five”); 6) failure to prevent discrimination based 5 on disability in violation of FEHA, Cal. Gov’t Code section 12940 (“Claim Six”); 7) failure to 6 reasonably accommodate disability in violation of FEHA, Cal. Gov’t Code section 12940 (“Claim 7 Seven”); 8) failure to engage in interactive process in violation of FEHA, Cal. Gov’t Code section 8 12940 (“Claim Eight”); 9) disability discrimination in violation of the ADA, 42 U.S.C. § 12101 et 9 seq. (“Claim Nine”); 10) failure to reasonably accommodate disability in violation of the ADA, 42 10 U.S.C. § 12101 et seq. (“Claim Ten”); 11) harassment in violation of the ADA, 42 U.S.C. § 12101 11 et seq. (“Claim Eleven”); 12) retaliation in violation of the ADA, 42 U.S.C. § 12101 et seq. 12 (“Claim Twelve”). In the complaint, Horn seeks, inter alia, compensatory and punitive damages 13 and injunctive relief. 14 B. The Motion 15 In the Motion, Safeway asks the Court to grant summary judgment in its favor on Claims 16 Seven and Ten, for failure to reasonably accommodate under FEHA and the ADA, arguing that 17 each of these claims is partially time-barred and that for the remaining period of time these claims 18 fail based on the undisputed facts. Motion at 1. Likewise, Safeway contends it is entitled to 19 summary judgment on Claim Eight, for failure to engage in the interactive process in violation of 20 the FEHA, based on the undisputed facts. Id. In addition, Safeway contends Horn’s remaining 21 claims are partially time-barred. In particular, Safeway contends: 22 • Plaintiff’s claims for disability discrimination (Claim Five), failure to prevent 23 discrimination (Claim Six) and retaliation (Claim Two) in violation of the FEHA 24 based on alleged incidents prior to May 9, 2016 are time-barred; 25 • Plaintiff’s claims for disability discrimination (Claim Nine) and retaliation (Claim 26 Twelve)7 in violation of the ADA based on alleged incidents prior to July 13, 2016 [27] 1 are time-barred; 2 • Plaintiff’s claims for harassment (Claim Three) and aiding, abetting, inciting, 3 compelling or coercing harassment (Claim Four) in violation of the FEHA based on 4 alleged incidents prior to May 9, 2016 are time-barred; 5 • Plaintiff’s claim for harassment in violation of the ADA (Claim Eleven) based on 6 alleged incidents prior to July 13, 2016 is time-barred; and 7 • Plaintiff’s claim for retaliation in violation of California Labor Code Section 8 1102.5 (Claim One) based on alleged incidents prior to March 11, 2016 is time9 barred. 10 Motion at 1-2. Finally, Safeway asks the Court to grant summary judgment in its favor as to 11 Horn’s request for punitive damages. 12 In her Opposition, Horn concedes that the continuing violation doctrine does not apply to 13 her disability discrimination, failure to accommodate, and retaliation claims under the ADA. 14 Opposition at 3. She also concedes that she is not entitled to punitive damages. Id. at 4 . 15 III. ANALYSIS 16 A. Legal Standard Under Fed. R. Civ. P. 56 17 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 18 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 19 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 20 the absence of a genuine issue of material fact with respect to an essential element of the non21 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 22 persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 23 Once the movant has made this showing, the burden then shifts to the party opposing 24 summary judgment to designate “ ‘specific facts showing there is a genuine issue for trial.’ ” Id. [25] allege that she engaged in any protected activity under Title VII for purposes of a retaliation [26] claim.” Bowling v. Diamond Resorts Int’l, Inc., No. CV 17-00562 DKW-RLP, 2018 WL 3244068 , at *6 (D. Haw. July 3, 2018). The Court assumes that this was a clerical error on the [27] part of Safeway’s counsel. As the applicable standards for Title VII and ADA retaliation claims 1 (citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely 2 disputed must support the assertion by . . . citing to particular parts of materials in the record 3 . . . .”). “[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the 4 substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. 5 Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of 6 identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan 7 v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the 8 record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237 9 F.3d 1026 , 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3). 10 A party need not present evidence to support or oppose a motion for summary judgment in 11 a form that would be admissible at trial, but the contents of the parties’ evidence must be amenable 12 to presentation in an admissible form. See Fraser v. Goodale, 342 F.3d 1032 , 1036−37 (9th Cir. 13 2003). Neither conclusory, speculative testimony in affidavits nor arguments in moving papers 14 are sufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., 15 Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). On summary judgment, the court draws all 16 reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372 , 378 17 (2007), but where a rational trier of fact could not find for the non-moving party based on the 18 record as a whole, there is no “genuine issue for trial” and summary judgment is appropriate. 19 Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). [20] B. Whether Horn’s FEHA Claims are Partially Time-Barred [21] 1. Legal Standards Governing Limitations Period Under FEHA and the 22 Continuing Violation Doctrine 23 An employee who seeks to bring a FEHA action may not sue an employer directly but 24 must first file a complaint with the DFEH. Cal. Gov’t Code § 12960; see also Richards v. CH2M 25 Hill, Inc., 26 Cal. 4th 798, 820 (2001). “If the Department determines that it will not issue an 26 ‘accusation’ after the filing of the complaint, or when 150 days have elapsed after the filing of the 27 complaint, it ‘shall issue’ a ‘right-to-sue’ notice to the aggrieved employee.” Richards v. CH2M 1 her DFEH/EEOC Charge, on May 9, 2017, the time allowed to file a complaint with the DFEH 2 was one year from the alleged unlawful conduct. Cal. Gov’t Code § 12960(d) (West 2019).8 3 California courts have held, however, that the limitations period for filing a DFEH charge may be 4 extended under the continuing violation doctrine with respect to certain types of FEHA claims. 5 In the context of claims for failure to reasonably accommodate an employee’s disability, or 6 for disability harassment, the California Supreme Court has held that application of the continuing 7 violation doctrine is appropriate because of the legislature’s intent that FEHA be construed 8 liberally to safeguard employee’s “right to hold employment without experiencing 9 discrimination.” Richards, 26 Cal. 4th at 821 (citation omitted). In particular, the court has 10 explained that the FEHA statute of limitations should not “be interpreted to give a disabled 11 employee engaged in the process of seeking reasonable workplace accommodation or ending 12 disability harassment two unappealing choices: on the one hand resigning and bringing legal 13 action soon after the first signs that her rights have been violated, or on the other hand attempting 14 to persist in the informal accommodation process and risk forfeiture of the right to bring such an 15 action altogether.” Id. at 820-821 . Moreover, the court in Richards explained, “t]here is 16 particularly good reason to view the failure over time to reasonably accommodate a disabled 17 employee as a single course of conduct[,]” namely, because doing so is consistent with the 18 informal interactive process for achieving workplace accommodation that is envisioned under 19 FEHA and the ADA. 20 The court in Richards adopted the following test for applying the continuing violation 21 doctrine to FEHA claims: 22 [A]n employer’s persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a 23 disabled employee, is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in kind—recognizing . . . 24 that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may 25 take a number of different forms . . . ; (2) have occurred with [26] 8 Effective January 1, 2020, the time to file a charge with the DFEH for an alleged FEHA violation [27] was extended to three years. Horn does not, however, contend that this change extended the time reasonable frequency; (3) and have not acquired a degree of 1 permanence. [2] Id. at 823 . In Yanowitz v. L’Oreal USA, Inc., the California Supreme Court made clear that the [3] continuing violation doctrine applies to FEHA disability discrimination claims and also held that it [4] applies to claims for retaliation asserted under FEHA. 36 Cal. 4th 1028, 1058 (2005). [5] 2. Claim Seven (Failure to Reasonably Accommodate under FEHA) [6] a. Contentions of the Parties [7] Because Horn filed her DFEH/EEOC Charge on May 9, 2017, her FEHA claim for failure [8] to accommodate is limited to conduct that occurred on May 9, 2016 or later unless earlier conduct [9] can be considered under the continuing violation doctrine. Safeway contends Horn’s claim is [10] time-barred as to conduct that occurred before Michael Vasquez became store manager, on May 3, [11] 2015, implicitly conceding that conduct that occurred between May 3, 2015 and May 9, 2016 is [12] actionable under the continuing violation doctrine. Safeway argues that the continuing violation [13] doctrine does not reach conduct before Vasquez became store manager, however, because Horn [14] allegedly admitted in her deposition “that during the one to two year time prior to Vasquez [15] becoming the Store Director, her restrictions were properly accommodated.” Motion at 8 (citing [16] Chun Decl., Ex. C (Horn Depo.) at 425:22-426:20, 427:22-428:24). [17] According to Safeway, “Given this one to two year gap in time, Plaintiff cannot establish [18] that the alleged failure to accommodate that occurred prior to Vasquez becoming the Store [19] Director are part of a continuing violation, and therefore, properly part of this lawsuit.” Id. In [20] particular, Safeway argues that Horn has not satisfied the “frequency” requirement of the [21] continuing violation test. Id. at 9 (citing Brennan v. Townsend & O’Leary Enterprises, Inc., 199 22 Cal.App.4th 1336, 1354 (2011); Kaldis v. Wells Fargo Bank, N.A., 263 F. Supp. 3d 856, 863 (C.D. 23 Cal. 2017 ); Adetuyi v. City & Cty. of San Francisco, 2011 WL 1878853 , *7 (Cal. Ct. App. May [24] 17, 2011); Rabara v. Heartland Employment Servs., LLC, 2019 WL 1877351 , *13 (N.D. Cal. [25] Apr. 26, 2019)). [26] The deposition testimony Safeway relies upon to show that Horn admits that reasonable [27] accommodations were provided in the one to two years before Vasquez became store manager is 1 as follows: 2 Q: Do you know someone named Amadeo Olivira? 3 A: Amadero, yes. 4 Q: And who is that? 5 A: Store manager. 6 Q: From when to when? 7 A. I don’t know. 8 Q: Do you know when he stopped being a store manager? 9 A: He stopped and then Brian -- or Michael came to our store. 10 Q: Michael who? 11 A: Michael Vasquez. 12 Q: Michael Vasquez. And so whenever he started -- whenever he was there -- would it be 13 accurate that you very seldom had any issues with regard to your accommodation while Amadeo 14 was the store manager? 15 A: Yes, he was great. 16 Q: He was great. So he was the store manager throughout 2015, wasn’t he? 17 A: I don't know what time again, the time period. It was, like, maybe less than two years, I 18 would assume. 19 . . . 20 Q. He was great, as you just said, wasn’t he? 21 A: Yes. 22 Q: And you didn't have any issues with your accommodations while he was there, did 23 you? 24 A: Not that I recall. 25 Q: Okay. And he was there for a full two years. Right? 26 A: I don’t remember, as I said. 27 Q: Did you not just say he was there about two years? 1 Q: (BY MR. LAFAYETTE):· I’m just asking. Ma’am, didn’t you just say that under 2 penalty of perjury? 3 A: I don’t know how long he was there. I don’t know. 4 Q: Did it seem to you like it was about two years? 5 A: I don’t know. I can’t recall. 6 Q: So why did you say that a couple minutes ago? 7 A: I’m -- I don’t know how long. A year or two. Yeah, I don’t know the time period, what 8 part of the year. I don’t -- I don’t recall. 9 Q: Okay. And whatever the time period was when he was there, as you said, it was great. 10 Right? 11 MR. KIM: Asked and answered. 12 THE WITNESS: Yes. 13 Chun Decl., Ex. C (Horn Dep.) at 425:22-426:20, 427:22-428:24. 14 b. Discussion 15 Safeway contends any alleged ongoing failure to accommodate cannot, as a matter of law, 16 be based on conduct that occurred before Vasquez became store director because of what it 17 contends is an admission that it reasonably accommodated Horn in the “one to two years” before 18 Vasquez became director. The Court disagrees. 19 First, Safeway has not pointed to any evidence (undisputed or otherwise) establishing the 20 length of time Olivira was store director, even though it presumably is in possession of this 21 information. Moreover, despite counsel’s aggressive efforts to elicit testimony from Horn during 22 her deposition that Olivira was store manager “about two years” or “throughout 2015[,]” she 23 offered no such testimony. When pressed, she stated that Olivira may have been store director “a 24 year or two” but she went on to state that she did not “know the time period, what part of the 25 year[,]” suggesting Olivira may have been store director for less than a year. See Chun Decl., Ex. 26 C (Horn Depo.) at 25-28. At another point in her deposition, Horn testified that Sullivan was store 27 director until 2015, when Olivira replaced him. Chun Decl., Ex. A (Horn Depo.) at 23. Given that 1 testimony (which is uncontroverted by Safeway) in a manner that draws all reasonable inferences 2 in her favor, the undisputed facts establish that Olivira was store director only from the beginning 3 of 2015 until May 3, 2015, when Vasquez became store director. Thus, even assuming Horn’s 4 deposition testimony constitutes an admission that she was provided reasonable accommodation 5 during the period Olivira was store director, it does not establish that the frequency requirement of 6 the continuing violation doctrine is not met as to conduct that occurred before Olivira was store 7 director as Olivira’s tenure was much shorter than Safeway contends. 8 Second, Safeway overstates Horn’s testimony and ignores other evidence of ongoing 9 failure to accommodate involving very similar complaints over a period of years prior to Vasquez 10 becoming store manager. Horn’s interrogatory responses describe a history going back at least to 11 July 2010 of managers and assistant managers failing to ensure that she had access to a stool, 12 asking her to work longer than two hours at a time as a checker without a break and retaliating 13 against her for complaining that she was not being provided with reasonable accommodations. 14 Horn states in her interrogatory responses, “From the time period of July 2010 the stool 15 that Safeway knew I needed to accommodate my disability while checking would be unavailable 16 to me.” See Chun Decl., Ex. E (Plaintiff’s Responses to Defendant’s Interrogatories, Set One) at 17 20. She elaborates that “[s]ometimes it would just be gone. Sometimes another employee would 18 take it and not want to give it back and the managers would not provide one for me. Sometimes it 19 would be placed in a locked room where I could not get to it.” Id. According to Horn, she “would 20 tell Safeway verbally about the need for a stool and the lack of a stool quite often with little 21 result.” Id.; see also Horn Decl. ¶ 6 (“Beginning in 2014, I verbally complained every day that my 22 accommodations were not being met.”). Indeed, the record contains copies of ten handwritten 23 notes, spanning the period January 2, 2014 through November 9, 2016, that Horn left for her 24 managers. Horn Decl., Exs. A-J. The content of these notes (which were addressed generally to 25 “management” and not to any particular store manager or store director) indicates that the missing 26 stool was not a series of relatively isolated incidents but a constant problem. In her June 8, 2015 27 note, for example, Horn stated that she had not been able to locate her stool, continuing, “It is 1 Likewise, Horn offers evidence that she was required to work “beyond [her] time 2 restrictions at the check stand” approximately 50 times between January 2, 2014 and April 26, 3 2017. Horn Decl. ¶ 17.9 She states in her interrogatory responses, “During the period of January 4 2, 2014 to February 8, 2014 I worked 22 days and on 18 of those days, Safeway required me to 5 work check out for more than 2 hours in a 4 hour period, without a stool. Safeway did this through 6 Michael Vasquez, Michael Gravelle, Brian Sullivan, Armando last name unknown (person in 7 charge), Ben Beede, Front End Manager Robin Hill, Kelli Snow, and Alfonso Balboa (person in 8 charge).” Chun Decl., Ex. E (Plaintiff’s Responses to Defendant’s Interrogatories, Set One) at 21. 9 Horn states further, “During the period of July 2, 2014 to July 7, 2014, I worked 6 days. On 4 of 10 those 6 days, I was required to work the check[-]out stand for more than 2 hours in a 4 hour 11 period.” Id. at 21 . This problem continued when Vasquez became store manager, according to 12 Horn. See id. at 23 (“During September of 2016, Store Manager Michael Vasquez would 13 constantly ask me to check more than 2 hours out of 4 in spite of me pointing out to him that this 14 went against my accommodations for my disability.”); id. at 24-26 (describing numerous specific 15 incidents in 2016 when Horn was required to work as a checker for more than two hours without a 16 break). 17 Drawing all reasonable inferences in Horn’s favor, the evidence discussed above is 18 sufficient to meet the requirements of the continuing violation test, including the “reasonable 19 frequency” requirement that is the focus of Safeway’s Motion. Safeway’s narrow focus on 20 Vasquez runs counter to the California Supreme Court’s admonition in Richards that courts must 21 recognize that “similar kinds of unlawful employer conduct, such as acts of harassment or failures 22 to reasonably accommodate disability, may take a number of different forms.” 26 Cal. 4th at 823 . 23 Horn’s complaints that she was being asked to work more than two hours at a time as a checker 24 and was not provided with a stool were not aimed only at the store directors but also at a number [25] 9 Horn also provides a chart listing her total daily hours as a checker during this period. Horn [26] Decl., Ex. K. Safeway object to this exhibit on the basis that it is not properly authenticated and argues further that because it contains only the total number of hours she worked as a checker each [27] day it does not show that Horn worked more than two hours at a time. Reply at 14. The Court 1 of lower-level managers and were remarkably consistent over time. Horn’s testimony that store 2 director Olivira was “great” does not establish as a matter of law that these ongoing alleged 3 violations ended for the purposes of FEHA’s limitation period given the short time he held that 4 position and the fact that Horn’s complaints were not aimed solely at the specific individuals who 5 held the position of store director. 6 Nor do the cases cited by Safeway stand for a contrary result as they are factually 7 distinguishable. In Brennan v. Townsend & O’Leary Enterprises, Inc., 199 Cal. App. 4th 1336 , 8 1355 (2011), the court addressed whether judgment notwithstanding verdict in favor of the 9 defendant on a sexual harassment claim was warranted. The main question in that case was 10 whether the evidence at trial was sufficient to establish “a concerted pattern of harassment of a 11 repeated, routine, or a generalized nature.” 199 Cal. App. 4th at 1354 (citation omitted). In a 12 footnote, the court noted that some of the incidents of alleged harassment were likely time-barred, 13 observing that “On this record, we cannot see how the incidents of wrongful conduct relied upon 14 by plaintiff in this action can be considered as continuing with reasonable frequency when the 15 incidents are spaced apart no less than six months and sometimes more than a year.” Id. at 1354 16 n. 4. This statement is dicta, however, because the court assumed without deciding that none of 17 the conduct at issue was time-barred. Id. More importantly, the case is distinguishable on the 18 facts as the plaintiff in Brennan relied only on a handful of specific incidents of gender-based 19 conduct that occurred over a period of years whereas Horn has offered evidence that supports a 20 plausible inference that she continuously and regularly experienced problems obtaining reasonable 21 accommodation, both before and after Vasquez became store manager, especially with respect to 22 the availability of a stool to sit on. Adetuyi v. City & Cty. of San Francisco, 2011 WL 1878853 23 (Cal. Ct. App. May 17, 2011), and Rabara v. Heartland Employment Servs., LLC, 2019 WL 24 1877351 (N.D. Cal. Apr. 26, 2019) are factually distinguishable for the same reason, namely, that 25 those cases involved gaps in actionable conduct of six months or more. 26 Safeway’s reliance on Kaldis v. Wells Fargo Bank, N.A., 263 F. Supp. 3d 856, 863 (C.D. 27 Cal. 2017 ) is also misplaced. In Kaldis, the plaintiff sought to assert claims for harassment based 1 filed her DFEH charge. 263 F. Supp. 3d at 863 . It was undisputed that the only allegedly 2 harassing conduct that fell within the one-year period, however, was her termination; the allegedly 3 harassing comments occurred more than a year before that. Id. The court found that the 4 harassment claim was time-barred not only because of the time that elapsed between the 5 comments and the termination but also because the comments were not sufficiently similar to the 6 timely conduct, namely, her termination, to satisfy the continuing violation test. Id. In particular, 7 the court concluded that the “verbally harassing comments concerning gender are entirely distinct 8 in kind from a purportedly wrongful termination based on taking disability leave” and that “while 9 verbally harassing comments concerning her disability have a marginally closer connection to the 10 reason for her allegedly wrongful termination, it is still insufficiently similar for purposes of the 11 continuing violations doctrine.” Id. In contrast, the timely conduct upon which Horn bases her 12 claim for failure to accommodate is very similar to the conduct that is the basis for her claim prior 13 to the arrival of Vasquez as store director, as discussed above. Therefore, the court’s conclusions 14 in Kaldis do not apply here. 15 The Court therefore concludes that Safeway is not entitled to summary judgment that 16 Horn’s FEHA claim for failure to provide reasonable accommodation is partially time-barred. 17 3. Claim Eight (Failure to Engage in Interactive Process under FEHA) 18 Safeway contends Horn’s FEHA claim for failure to engage in the interactive process is 19 partially time barred for the same reason her FEHA claim for failure to provide reasonable 20 accommodation is partially time-barred, namely, that she admits that in the “year or two” before 21 Vasquez became store director, “her restrictions were properly accommodated.” Motion at 12. 22 The Court rejects this argument for the same reasons it rejects Safeway’s argument as to the 23 FEHA claim for failure to provide reasonable accommodation. Therefore, it concludes that 24 Safeway is not entitled to summary judgment that this claim is partially time-barred. 25 4. Claim Three (Harassment Under FEHA) and Claim Four (Failure to Prevent Harassment Under FEHA) [26] a. Contentions of the Parties [27] Safeway argues that Horn’s claims for harassment and failure to prevent harassment under 1 FEHA are barred to the extent they are based on conduct that occurred before May 9, 2016 (one 2 year before she filed her DFEH/EEOC Charge) because there is a break of approximately two 3 years between the incidents of harassment Horn alleges occurred when Brian Sullivan was store 4 director and the alleged harassment by Vasquez, Assistant Managers Jerry Hunt and Jessica 5 Taylor, bookkeeper Kelli Snow and cashier Maniya Darden that occurred beginning in 2016. 6 Motion at 16 (citing Chun Decl., Ex. E (Plaintiff’s Responses to Defendant’s Interrogatories, Set 7 One) at 45-48); Chun Decl., Ex. A (Horn Depo.) at 23). According to Safeway, given this break, 8 Horn cannot establish that conduct that occurred before May 9, 2016 was part of a continuing 9 violation as to these claims. Id. (citing Brennan, 199 Cal.App.4th at 1354 ; Kaldis, 263 F. Supp. 3d 10 at 863 (C.D. Cal. 2017); Adetuyi v. City & Cty. of San Francisco, 2011 WL 1878853 , *7; Rabara 11 v. Heartland Employment Servs., LLC, 2019 WL 1877351 , *13). 12 Horn responds that the continuing violation doctrine applies to these claims because they 13 are “predicated on her accommodations not being met” and between 2012 and 2016 she repeatedly 14 could not find her stool and was asked to work as a checker more than two hours at a time. 15 Opposition at 12. She also asserts that the continuing violation doctrine applies because between 16 2011 and 2017 “her coworkers harassed her in front of Mr. Sullivan and Mr. Vasquez.” Id. 17 b. Discussion 18 Under FEHA, it is an unlawful employment practice for an employer to harass an 19 employee on the basis of disability, and employers must take “all reasonable steps” to prevent 20 such harassment from occurring. Cal. Gov’t Code section 12940(j)(1). The law prohibiting 21 harassment is violated “[w]hen the workplace is permeated with discriminatory intimidation, 22 ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s 23 employment and create an abusive working environment.” Nazir v. United Airlines, Inc., 178 Cal. 24 App. 4th 243, 263–64 (2009) (internal quotations and citations omitted). “In determining what 25 constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot 26 be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of 27 harassment of a repeated, routine or a generalized nature.” Mokler v. Cty. of Orange, 157 Cal. 1 As a preliminary matter, the Court rejects Horn’s argument in her Opposition that the 2 ongoing alleged failure to accommodate her physical disability was, by itself a form of harassment 3 sufficient to establish an ongoing violation. Horn has cited no authority for the proposition that 4 incidents involving failure to provide reasonable accommodation are sufficient, as a matter of law, 5 to establish an ongoing violation with respect to a harassment claim. Further, while it is no doubt 6 possible to allege conduct that establishes both a failure to accommodate and harassment, in this 7 case Horn’s general allegations with respect to the failure to accommodate, such as her ongoing 8 difficulties locating the stool that was supposed to be available to her, do not necessary reflect any 9 discriminatory animus that would show that these difficulties rose to the level of harassment. 10 Although she does point to a specific instance when a manager intentionally deprived her of use of 11 a stool, in August of 2012, the next time similar conduct allegedly occurred was in October 2016, 12 that is, more than four years later, and involved different managers. Id. at 45-46 . This period of 13 time during which no similar incidents are alleged to have occurred is too long to warrant 14 application of the continuing violation doctrine to Horn’s harassment claim based on allegations 15 that she was denied reasonable accommodation. 16 The Court further finds that the types of harassment that Horn described in her 17 interrogatory responses that occurred within the statutory period (that is, after May 9, 2016) are 18 not particularly similar to the incidents she alleges occurred during Sullivan’s tenure as store 19 director. In her interrogatory responses, Horn described specific incidents when she was allegedly 20 harassed that occurred in October 2009, when Brian Sullivan allegedly threw a restriction sheet in 21 Horn’s face, and August 2012, when Assistant Manager Beede allegedly kept her from using her 22 stool while checking. Id. at 45 . The next specific incidents she describes largely involve conduct 23 by Vasquez “[i]n Fall 2016 and Spring 2017.” Id. at 45 . Horn alleges Vasquez “would stand over 24 [her] . . . looking for something to nit-pick[,]” “ridicule [her] in front of customers” for not 25 knowing a produce code, and on one occasion told Horn he might not have work for her and could 26 not accommodate her restrictions because he had “other employees who need[ed] to be placed in 27 [her] position.” Id. at 45-46 . 1 of a similar sort under Sullivan and Vasquez is her statement that she was harassed “over a dozen 2 times between 2011 and April 27, 2017” by coworkers in connection with her need for 3 accommodation “in front of [her] supervisors, including Brian Sullivan and Michael Vasquez.” [4] Id. In particular, she stated that coworkers allegedly “yell[ed] and scream[ed]” at her for seeking 5 to use a stool or requesting that her time as a checker be limited to two hours at a time. Id. She 6 continued, “In each of these cases, Brian Sullivan would silently watch and allow the harassment 7 to happen.” Id. Because Horn did not specifically allege that Vasquez stood by and allowed 8 coworkers to harass her, the Court asked for clarification at oral argument. Horn stipulated that 9 her allegations with respect to this sort of harassment were based on incidents involving Sullivan 10 and that she could not point to any such incidents involving Vasquez. Based on that clarification, 11 the Court concludes that Horn has not offered evidence sufficient to establish a genuine dispute of 12 fact that alleged conduct showing harassment that occurred outside the statutory period was part of 13 a continuing violation. 14 Therefore, the Court finds that Safeway is entitled to summary judgment that these claims 15 are partially time-barred. 16 5. Claim Five (Discrimination under FEHA), Claim Six (Failure to Prevent Discrimination under FEHA and Claim Two (Retaliation Under FEHA) [17] a. Contentions of the Parties [18] Safeway contends Horn’s FEHA claims for discrimination, failure to prevent [19] discrimination and retaliation are time-barred as to any conduct that occurred more than a year [20] before she filed her DFEH/EEOC Charge, that is, before May 9, 2016. Motion at 14-15. In [21] support of its position, it observes that an adverse employment action is a required element of each [22] of these claims and that in her interrogatory responses, Horn’s list of adverse employment actions [23] contains a four-year gap between an incident on October 14, 2012, when assistant manager Ben [24] Beede gave Horn a written warning and November 14, 2016, when Horn alleges she was written [25] up for providing poor customer service. Motion at 14 (citing Chun Decl., Ex. E (Plaintiff’s [26] Responses to Defendant’s Interrogatories, Set One) at 66-67).10 [27] 1 Horn responds that “denial of a requested accommodation without an offer of a reasonable 2 alternative . . . is an adverse employment action.” Opposition at 12 (citing Ravel v. Hewlett3 Packard Enter., Inc., 228 F. Supp. 3d 1086, 1093 (E.D. Cal. 2017). Safeway counters, however, 4 that Horn’s argument should be rejected because it is an improper effort to amend her 5 interrogatory responses. Reply at 8. In any event, it argues, Ravel is inapposite because in that 6 case the defendant employer “made a decision to deny the plaintiff-employee’s accommodation 7 request to work from home, and the issue was whether the alternative accommodation request 8 offered by the defendant-employer was reasonable.” Id. In contrast, Safeway asserts, Horn does 9 not allege that Safeway denied her request for accommodation and instead concedes that Safeway 10 agreed to an accommodation in 2012. Id. To the extent that Horn asserts that each instance in 11 which Safeway failed to abide by the 2012 agreement was an adverse employment action, that 12 argument should be rejected, Safeway contends, because Horn “cites no authority standing for the 13 proposition that each of these alleged instances constituted adverse employment actions.” Id. 14 b. Discussion 15 “[I]n order to establish either a discrimination or a retaliation claim, ‘an employee must 16 demonstrate that he or she has been subjected to an adverse employment action that materially 17 affects the terms, conditions, or privileges of employment [.]’ ” Jones v. Lodge at Torrey Pines 18 Partnership, 42 Cal.4th 1158, 1168 (2008) (quoting Yanowitz, 36 Cal.4th at 1051 ). “[A]n adverse 19 employment action is not limited to ‘ultimate’ employment acts, such as hiring, firing, demotion 20 or failure to promote, but also includes the entire spectrum of employment actions that are 21 reasonably likely to adversely and materially affect an employee’s job performance or opportunity 22 for career enhancement.” Jones v. Department of Corrections and Rehabilitation, 152 Cal.App.4th 23 1367, 1380 (2007) (citing Yanowitz, 36 Cal.4th at 1053–54). 24 In Ravel, the plaintiff brought claims for disability discrimination under the ADA and 25 FEHA based on her employer’s refusal to allow her to work from home to accommodate an [27] adverse employment action you contend you were subjected to by the Defendant and separately 1 alleged disability, instead requiring her to take a medical leave that entailed a 30% salary cut. 228 2 F. Supp. 3d at 1090-1091. Her employer brought a motion to dismiss asserting, inter alia, that the 3 plaintiff had not alleged an adverse employment action and therefore, that she failed to state a 4 claim for disability discrimination under FEHA. Id. at 1091. The court rejected the employer’s 5 argument, finding that under FEHA, requiring an employee to take medical leave where other 6 reasonable accommodations would have allowed the employee to remain on the job is an adverse 7 employment action “when it leads to loss of income.” Id. at 1097 (citing Wallace v. Cty. of 8 Stanislaus, 245 Cal. App. 4th 109, 134-137 (2016)). 9 Horn relies on Ravel to oppose Safeway’s Motion as to her FEHA claims for 10 discrimination, failure to prevent discrimination and retaliation, but she fails to meaningfully 11 address in her opposition brief how the holding of Ravel applies here. There is no evidence in the 12 record that Safeway ever placed Horn on disability leave rather than offering a reasonable 13 accommodation. Moreover, to the extent Horn seeks to rely on various incidents between 2012 14 and 2016 of which there is evidence in the record in which Horn was asked to work more than two 15 hours as a checker or denied use of a stool, that effort fails as she has neither identified any 16 particular incident that might constitute an adverse employment action or explained how any 17 particular incident rises to the level of an adverse employment action under FEHA. Nor has she 18 addressed why these unidentified “adverse employment actions” fall under the continuing 19 violation doctrine. Neither Safeway nor the Court is required to speculate as to the factual basis for 20 Horn’s theory as to these claims. Accordingly, the Court finds that these claims are time-barred as 21 to conduct that occurred before May 9, 2016. [22] C. Whether Horn’s Claim Under Cal. Labor Code section 1102.5 (Claim One) is 23 Partially Time-Barred 24 Horn asserts a claim for retaliation under California Labor Code section 1102.5, which is 25 “California’s general whistleblower statute.” McVeigh v. Recology San Francisco, 213 Cal. App. 26 4th 443, 468 (2013) (internal quotation and citation omitted). To make a prima facie case of 27 retaliation under this provision, a plaintiff “must show (1) she engaged in a protected activity, (2) 1 between the two.” Id. (internal quotations and citation omitted). Because a claim under section 2 1102.5 seeks to establish “liability created by statute” it is governed by the three-year statute of 3 limitations set forth in Cal. Civ. Code section 338(a). However, claims for retaliation under 4 section 1102.5, like FEHA retaliation claims, may be asserted based on conduct that is outside of 5 the statutory period under the continuing violation doctrine. See Eng v. Cty. of Los Angeles, No. 6 CV0502686MMMSSX, 2006 WL 8442227 , at *17 (C.D. Cal. June 14, 2006) (holding that at the 7 pleading stage of the case, a claim asserted under section 1102.5 was not time-barred, even though 8 it was based in part on conduct that occurred outside the limitation period, because a continuing 9 violation was sufficiently alleged). 10 Because Horn filed her complaint on March 11, 2019, Safeway contends this claim is 11 barred as to conduct that occurred more than three years before that, that is, before March 11, 12 2016. Motion at 18. Safeway further asserts that in light of the four year gap in the adverse 13 employment actions listed in Horn’s interrogatory responses, discussed above, the frequency 14 requirement of the continuing violation doctrine is not satisfied as to the alleged incidents that 15 occurred in 2012 and before. The Court agrees. For the reasons discussed above, the Court 16 concludes that the continuing violation doctrine does not apply to this claim. Accordingly, 17 Safeway is entitled to summary judgment on this claim to the extent it is based on conduct that 18 occurred before March 11, 2016. 19 D. Whether Horn’s ADA Claims are Partially Time-Barred 20 1. Legal Standards Governing Limitation Period for ADA Claims 21 “Before filing an ADA suit, a plaintiff must timely file a discrimination charge with the 22 EEOC.” Douglas v. California Dep’t of Youth Auth., 271 F.3d 812, 823 (9th Cir.), amended, 271 23 F.3d 910 (9th Cir. 2001) (citing 42 U.S.C. § 12117 (a)). A charge is timely if it is filed with the 24 EEOC within 180 days after the alleged violation or, if the charge is filed with an appropriate state 25 agency, within 300 days after the alleged violation. Id. (citing 42 U.S.C. § 2000e–5(e)). Under 26 the ADA, claims that are based on “discrete discriminatory acts are not actionable if time barred, 27 even when they are related to acts alleged in timely filed charges” because “[e]ach discrete 1 Corp. v. Morgan, 536 U.S. 101, 113 (2002). On the other hand, hostile work environment claims, 2 by their [v]ery nature involve[ ] repeated conduct” and therefore, conduct outside the statutory 3 period may be actionable under the continuing violation doctrine. Id. at 115-118 . 4 2. Claim Nine (Discrimination under the ADA) and Claim Twelve (Retaliation Under the ADA) [5] Horn concedes that the continuing violation doctrine does not apply to her ADA claims for [6] discrimination and retaliation. Opposition at 3. Accordingly, Safeway is entitled to summary [7] judgment limiting those claims to conduct that occurred within 300 days of filing her [8] DFEH/EEOC Charge, that is, on or after July 13, 2016. [9] 3. Claim Eleven (Harassment Under the ADA) [10] Safeway contends its ADA harassment claim is time-barred as to conduct that occurred [11] before July 13, 2016 because the continuing violation doctrine does not apply. For the same [12] reasons the Court finds that the continuing violation doctrine does not apply to Horn’s harassment [13] claim under FEHA it also concludes that it does not apply to her ADA harassment claim. [14] Therefore, the Court finds that Safeway is entitled to summary judgment on this issue. [15] 4. Claim Ten (Failure to Reasonably Accommodate) [16] Horn concedes that the continuing violation doctrine does not apply to her ADA claim for [17] failure to reasonably accommodate. Opposition at 3. Accordingly, Safeway is entitled to [18] summary judgment limiting that claim to conduct that occurred within 300 days of filing her [19] DFEH/EEOC Charge, that is, on or after July 13, 2016. [20] E. Whether Safeway is Entitled to Summary Judgment on Horn’s Failure to 21 Accommodate Claims under FEHA and the ADA (Claims Seven and Ten) 22 Safeway argues to the extent Horn’s claims for failure to accommodate is not time-barred 23 it is meritless because Horn “cannot establish that Safeway failed to accommodate her work 24 restrictions.” Motion at 10. In support of this position, Safeway points to the Modified Work 25 Offer, which provided that a stool would be available as needed and that it would be “best” if she 26 checked no more than two hours at a time, total 4 hours per day. Id. at 11. To the extent Horn 27 contends these accommodations were not actually provided, Safeway points to the “flexible” 1 hours at a time or four hours total. Id. 2 As to the evidence that a stool was not always available, Safeway points to deposition 3 testimony in which Horn allegedly “admits that (1) she was in fact provided with a stool, (2) no 4 one ever told her that she could not use a stool, (3) she is not aware of any manager moving the 5 stool from the office where it was supposed to be stored while not in use, (4) she never heard any 6 manager say they would take stool out of office, (5) she never heard anyone tell anyone to move 7 the stool, and (6) she is not aware of any witness who would be able to state that the stool was 8 ever missing.” Id. at 12 (citing Chun Decl., Ex. C (Horn Depo.) at 329:13-21, 333:23-335:19, 9 340:19-24, 346:24-347:2). Safeway’s argument has no merit. 10 Safeway relies on somewhat ambiguous language in the Modified Work Offer to argue that 11 as a matter of law, it was not required to limit Horn’s time as a checker to two hours at a time or 12 four hours total and further suggests that because Horn accepted the offer, Horn agreed that a 13 promise that Safeway would do its best (but not guarantee) to ensure that her time as a checker 14 would be limited this arrangement was a reasonable accommodation under the ADA and FEHA. 15 Safeway cites no authority for its position, which flies in the face of the standards that apply on 16 summary judgment. Drawing all reasonable inferences in Horn’s favor, a jury could conclude that 17 Horn understood the Modified Work Offer to contain an actual commitment to limit her time as a 18 checker and that her acceptance was in no way an admission that merely doing its “best” to limit 19 her time as a checker to two hours would be a reasonable accommodation. A jury could also 20 conclude that to the extent the Modified Work Offer contained no meaningful commitment to 21 limit Horn’s time as a checker, it did not offer Horn a reasonable accommodation. 22 Likewise, the deposition testimony Safeway cites in support of the alleged admissions by 23 Horn with respect to the availability of a stool does not establish that there are no material 24 disputed facts on this question. Safeway points to various admissions by Horn that she never saw 25 anyone move the stool, but she also testified that this was because the stool was moved before she 26 arrived at work. See Chun Decl., Ex. C. (Horn Depo.) at 329, 334-335, 340. She further testified 27 that given the stool was supposed to be kept in a locked office, she concluded that “everybody 1 Horn left for her managers about the missing stool. From this evidence, a jury could reasonably 2 conclude that Horn’s managers knew that the stool Horn was supposed to have access to was 3 frequently unavailable and yet did nothing. It could on that basis conclude that despite the 4 Modified Work Offer promising that a stool would be available on an as-needed basis, that 5 Safeway did not provide Horn with a reasonable accommodation – regardless of who actually 6 removed the stool from the office. 7 The Court therefore denies Safeway’s request for summary judgment on Horn’s claims for 8 failure to provide a reasonable accommodation. 9 F. Whether Safeway is Entitled to Summary Judgment on Horn’s Claim for Failure to Engage in the Interactive Process Under FEHA (Claim Eight) [10] Safeway argues it is entitled to summary judgment on its claim for failure to engage in the [11] interactive process because it is undisputed that a Modified Work Offer was made to Horn in [12] 2012, that she accepted that offer, and that the Modified Work Offer was never rescinded. Motion [13] at 13. However, given that Safeway has taken the position that the Modified Work Offer did not [14] require it to limit Horn’s time as a checker, despite evidence (construed in the light most favorable [15] to Horn) that Horn’s doctors recommended such limitations, material disputes of fact remain as to [16] whether Safeway satisfied its obligation to engage in the interactive process to determine a [17] reasonable accommodation. Therefore, the Court denies summary judgment on this claim. [18] G. Whether Horn is Entitled to Punitive Damages [19] Horn does not dispute that she is not entitled to punitive damages. Accordingly, the Court [20] GRANTS summary judgment in favor of Safeway on that question and dismisses Horn’s claim for [21] punitive damages. [22] 23 IV. CONCLUSION 24 For the reasons stated above, the Motion is GRANTED in part and DENIED in part as 25 follows: 1) Claim One (retaliation under Cal. Labor Code section 1102.5): GRANTED. This [26] claim is time-barred as to conduct that occurred before March 11, 2016. [27] 2) Claim Two (retaliation in violation of FEHA): GRANTED. This claim is time-barred 1 3) Claim Three (harassment in violation of FEHA): GRANTED. This claim is time2 barred as to conduct that occurred before May 9, 2016. 3 4) Claim Four (aiding and abetting harassment in violation of FEHA): GRANTED. This 4 claim is time-barred as to conduct that occurred before May 9, 2016. 5 5) Claim Five (disability discrimination in violation of FEHA): GRANTED. This claim is time-barred as to conduct that occurred before May 9, 2016. [6] 6) Claim Six (failure to prevent discrimination based on disability in violation of FEHA): 7 GRANTED. This claim is time-barred as to conduct that occurred before May 9, 2016. [8] 9 7) Claim Seven (failure to reasonably accommodate disability in violation of FEHA: DENIED. [10] 8) Claim Eight (failure to engage in interactive process in violation of FEHA): DENIED. [11] 9) Claim Nine (disability discrimination in violation of the ADA): GRANTED. This 12 claim is time-barred as to conduct that occurred before July 13, 2016. © = 13 10) Claim Ten (failure to reasonably accommodate disability in violation of the ADA): GRANTED to the extent this claim is time-barred as to conduct that occurred before July 13, 2016. Otherwise DENIED. [15] 11) Claim Eleven (harassment in violation of the ADA): GRANTED. This claim is timeA 16 barred as to conduct that occurred before July 13, 2016. [17] = 12) Claim Twelve (retaliation in violation of the ADA): GRANTED. This claim is time7 18 barred as to conduct that occurred before July 13, 2016. 19 || Finally, the Court GRANTS summary judgment in favor of Safeway with respect to Horn’s 29 || request for punitive damages, which is dismissed. 21 IT IS SO ORDERED. [22] 23 Dated: May 6, 2021 [24] J PH C. SPERO 25 ief Magistrate Judge