Salgado v. Iqvia, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] CINDY SALGADO, Case No. 18-cv-2785-BAS-WVG [11] Plaintiff, ORDER: 12 (1) GRANTING IN PART AND DENYING IN PART 13 v. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY 14 IQVIA, INC. and QUINTILES JUDGMENT; AND COMMERCIAL US, INC., (2) DENYING DEFENDANTS’ 15 MOTION FOR PARTIAL Defendants. SUMMARY JUDGMENT [16] [ECF Nos. 28, 29] [18] 19 Presently before the Court are cross motions for partial summary judgment by 20 Plaintiff Cindy Salgado and Defendants Quintiles Commercial U.S., Inc. and Iqvia 21 Inc. (“Def. Mot.,” ECF No. 28, “Pl. Mot.,” ECF No. 29.) Both motions are opposed, 22 (“Pl. Opp’n,” ECF No. 33, “Def. Opp’n,” ECF No. 34), and both have replies filed 23 in support, (“Def. Reply,” ECF No. 39, “Pl. Reply,” ECF No. 37). The Court finds 24 resolution of these Motions is suitable without the need for oral argument. See Civ. 25 L.R. 7.1(d)(1). For the reasons discussed below, the Court GRANTS IN PART and 26 DENIES IN PART Plaintiff’s Motion and DENIES Defendants’ Motion. 27 I. BACKGROUND 1 11, 2015. (Joint Statement of Undisputed Material Facts, “JSUMF,” ECF No. 38, at 2 ¶ 1.) In November 2017, following a merger, Quintiles became Iqvia, Inc. (Id.)1 3 Iqvia is a global provider of biopharmaceutical development and commercial 4 outsourcing services. (“Vick Decl.,” ECF No. 28-2, ¶ 2.) One of Iqvia’s contracts 5 for biopharmaceutical services is with AbbVie, Inc., a biopharmaceutical company 6 involved in the research, development, marketing, and distribution of 7 biopharmaceutical products, including Humira. (Id. ¶¶ 2–3.) Iqvia has a dedicated 8 workforce to support patient outreach for AbbVie’s Humira business. (Id.) The 9 Humira project includes approximately 200 to 250 “Nurse Ambassadors” who train 10 patients on administering their injections and provide patient care, paperwork help, 11 and other services. (Id. ¶¶ 3–8.) There are about 29 to 30 District Managers who 12 supervise, manage, and train the Nurse Ambassadors. (Id. ¶ 8.) At all times relevant 13 to Plaintiff’s Complaint, Iqvia utilized Unum Group (“Unum”), a third-party leave 14 management service, to administer employees’ leaves of absence. Unum evaluates 15 eligibility for leave, tracks the leave, and ensures compliance with applicable law. 16 (Def. Opp’n at 4.) 17 On May 12, 2016, Plaintiff was promoted to the position of District Manager 18 on the AbbVie/Humira Nurse Ambassador Project for the Southern California 19 Region. Plaintiff began working in that position on May 23, 2016. (JSUMF ¶ 2.) 20 On May 25, 2017, Plaintiff began a leave of absence related to her pregnancy. (Id. 21 ¶ 3.) Unum administered Plaintiff’s leave and disability benefits. (Def. Opp’n at 4.) 22 Plaintiff gave birth to her baby on July 23, 2017. (JSUMF ¶ 4.) Plaintiff’s anticipated 23 return date was November 25, 2017. (“Compl.,” ECF No. 1-1, at ¶ 14.) In October 24 2017, Plaintiff began treatment for postpartum depression and postpartum anxiety. 25 (JSUMF ¶ 15.) She was diagnosed with postpartum depression and received a 26 doctor’s note from Dr. Shahida Parveen to be placed off work through November 1, [27] 1 2017. (Exhibit P, ECF No. 34-12.) Plaintiff then received a second note to be placed 2 off work until November 29, 2017, a third note to be off work until December 13, 3 2017, a fourth to be off work until December 29, 2017, and a fifth to be off work 4 until January 10, 2018. (Exhibits Q, R, S, and T, ECF No. 34-13 to 34-16.) 5 On January 8, 2018, Plaintiff sent Human Resources Specialist Christal 6 Carmona an email, attaching a Work Status Note from her healthcare provider 7 providing a return to work date and restrictions. (Exhibit 14, ECF No. 29-16.) 8 Plaintiff requested to return to work on January 16, 2018, working no more than 20 9 hours a week or 4 hours a day for the first and second week and working no more 10 than 30 hours a week or 6 hours a day for the third and fourth weeks. (Id.) 11 On January 11, 2018, Carmona sent Plaintiff an email stating that Iqvia was 12 “unable to support the return to work accommodations” and suggesting that Plaintiff 13 contact her doctor to see if there were any other solutions or schedules that could be 14 provided. (JSUMF ¶ 8.) The same day, Plaintiff responded saying she would follow 15 up with her doctors and asked what modifications Iqvia could support. (Id. ¶ 9.) On 16 January 12, 2018, Iqvia told Plaintiff her employment was terminated, effective that 17 day. (Id. ¶ 10.) On January 16, 2018, Plaintiff received an email from Aliza Zaidi, 18 the Associate Director of Human Resources, explaining the termination. The email 19 stated Iqvia had received Plaintiff’s requested work schedule, and “[a]t this time we 20 are unable to accommodate this request, due [sic] critical business needs and needed 21 to have someone working the territory on a full-time basis, as such we made the 22 decision to terminate your employment . . . .” (Exhibit 18, ECF No. 29-16.) 23 In total, Plaintiff was on a pregnancy-related leave of absence from May 25, 24 2017 through January 12, 2018. Plaintiff’s leave consisted of leave provided for by 25 California’s Pregnancy Disability Leave Law, the California Family Rights Act, and 26 the California Fair Employment Housing Act. (JSUMF ¶ 6.) Unum was responsible 27 for determining whether Plaintiff was eligible for leave, and Iqvia relied on Unum’s 1 In October 2018, Plaintiff filed suit for: (1) discrimination, (2) failure to 2 accommodate, (3) failure to engage in the interactive process, (4) retaliation, (5) 3 interference with leave and violations of California’s Pregnancy Disability Leave 4 Law, (6) interference with leave and violations of the California Family Rights Act, 5 (7) failure to investigate and prevent discrimination, (8) wrongful termination in 6 violation of public policy, (9) violation of California Labor Code section 1030. 7 Plaintiff moves for summary judgment on her first, second, third, sixth, and 8 eighth causes of action. Iqvia moves for summary judgment on Plaintiff’s punitive 9 damages claim. 10 II. LEGAL STANDARD 11 Summary judgment is appropriate under Rule 56(c) where the moving party 12 demonstrates the absence of a genuine issue of material fact and entitlement to 13 judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 14 U.S. 317 , 322 (1986). A fact is material when, under the governing substantive law, 15 it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248 (1986). A dispute about a material fact is genuine if “the evidence is such 17 that a reasonable jury could return a verdict for the nonmoving party.” Id. 18 A party seeking summary judgment always bears the initial burden of 19 establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 20 The moving party can satisfy this burden in two ways: (1) by presenting evidence 21 that negates an essential element of the nonmoving party’s case; or (2) by 22 demonstrating that the nonmoving party failed to make a showing sufficient to 23 establish an element essential to that party’s case on which that party will bear the 24 burden of proof at trial. Id. at 322–23. “Disputes over irrelevant or unnecessary facts 25 will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. 26 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 27 If the moving party fails to discharge this initial burden, summary judgment 1 Adickes v. S.H. Kress & Co., 398 U.S. 144 , 159–60 (1970). If the moving party 2 meets this initial burden, however, the nonmoving party cannot defeat summary 3 judgment merely by demonstrating “that there is some metaphysical doubt as to the 4 material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 5 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) 6 (“The mere existence of a scintilla of evidence in support of the non-moving party’s 7 position is not sufficient.” (citing Anderson, 477 U.S. at 242, 252)). Rather, the 8 nonmoving party must “go beyond the pleadings” and by “the depositions, answers 9 to interrogatories, and admissions on file,” designate “specific facts showing that 10 there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 11 56(e)). 12 When making this determination, the court must view all inferences drawn 13 from the underlying facts in the light most favorable to the nonmoving party. See 14 Matsushita, 475 U.S. at 587 . “Credibility determinations, the weighing of the 15 evidence, and the drawing of legitimate inferences from the facts are jury functions, 16 not those of a judge, [when] he [or she] is ruling on a motion for summary judgment.” 17 Anderson, 477 U.S. at 255. 18 III. ANALYSIS 19 Plaintiff’s Motion for Summary Judgment 20 A. Procedural Issues 21 Both parties have filed objections to certain pieces of evidence filed by the 22 other. To begin with, the Court notes that it does not consider the parties’ relevance 23 objections. See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. 24 Cal. 2006 ) (noting that various evidentiary objections, such as relevance, are 25 redundant at the summary judgment stage where the court can award summary 26 judgment only in the absence of a genuine issue of material fact based on evidence 27 the contents of which must be admissible). The Court addresses the remaining 1 Iqvia objects to various pieces of evidence submitted by Plaintiff. (ECF No. 2 35.) Most objections are to portions of Plaintiff’s declaration. Upon review of the 3 declaration, the Court finds it need not consider these objected-to portions of the 4 declaration because the information is available through other documents. For 5 example, Plaintiff describes various communications between her and others, and the 6 Court can review the documents without Plaintiff’s description of the conversations. 7 Iqvia also objects to one portion of the deposition of Krista Wall, wherein she 8 testified that, in her opinion, AbbVie did not have any concerns regarding making an 9 exception for Plaintiff in attending the national sales meeting in 2018 because 10 Plaintiff was on a leave of absence. (Exhibit 7, ECF No. 29-9, at 39:12–19.) The 11 Court finds Iqvia’s objections to the statement (lacks personal knowledge, lacks 12 foundation, and hearsay) are unfounded and overrules the objection. Wall was 13 discussing her own personal opinions and testifying to what she knew based on her 14 position of employment. 15 Iqvia also objects to two of Plaintiff’s exhibits, which are text message chains 16 between Plaintiff and Candace Grover. (ECF Nos. 29-13, 29-14.) Ironically, Iqvia 17 objects that the text messages lack foundation and authentication, but the text 18 messages were authenticated by Plaintiff in her declaration—to which Iqvia also 19 objected. Plaintiff attests the text messages are true and correct copies of her message 20 exchange with Grover. Thus, they are authenticated. The Court also disagrees with 21 Iqvia’s contention that the text messages are hearsay; the texts are not admitted for 22 the truth of the matter asserted, but rather admitted to show that Plaintiff was 23 communicating with Grover about her employment and leave. 24 Plaintiff objects to pieces of evidence Iqvia attached to its opposition. (ECF 25 No. 40.) First, Plaintiff objects to the expert report of Dr. Matthew Carroll as hearsay. 26 Generally, expert reports are inadmissible hearsay. See Hunt v. City of Portland, 599 27 F. App’x. 620, 621 (9th Cir. 2009) (concluding that expert report was inadmissible 1 (explaining that Federal Rule of Evidence 703 “does not allow the admission of 2 [expert] reports to establish the truth of what they assert”). But “a district court may 3 consider hearsay evidence submitted in an inadmissible form, so long as the 4 underlying evidence could be provided in an admissible form at trial, such as by live 5 testimony,” JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098 , 1110 6 (9th Cir. 2016). Dr. Carroll is a designated expert in this case and can testify to his 7 opinions in trial, thus, the Court considers his expert report. 8 Plaintiff also objects to a December 2017 email between herself and her 9 therapist. She contends that the document does not stand for the proposition Iqvia 10 cites it for. i.e., that Plaintiff did not introduce the issue of returning to work with her 11 medical providers until December 27, 2017. (See Def. Opp’n 7 n.4.) This is not a 12 true objection to the admission of the email as evidence but is a disagreement with 13 Iqvia’s argument. An objection is not the proper procedure to contest an argument, 14 instead, Plaintiff should simply respond to the argument. Finally, the email is not 15 hearsay because it was written by Plaintiff herself and thus admissible as a statement 16 of a party opponent. See Fed. R. Evid. 801(d)(2)(A).2 17 The Court now turns to the merits of Plaintiff’s Motion. 18 B. Failure to Reasonably Accommodate 19 Plaintiff brings a cause of action for failure make a reasonable 20 accommodation. The Fair Employment and Housing Act (“FEHA”) makes it 21 unlawful “for an employer . . . to fail to make reasonable accommodation for the 22 known physical . . . disability of an applicant or employee.” Cal. Gov’t Code 23 § 12940(m). The elements of a prima facie claim are: (1) the plaintiff has a disability 24 covered by FEHA; (2) the plaintiff is qualified to perform the essential functions of 25 the position; and (3) the employer failed to reasonably accommodate the plaintiff’s 26 disability. Scotch v. Art Inst. of Cal.-Orange Cnty., Inc., 173 Cal. App. 4th 986 , [27] 1 1010 (2009). An adverse employment action need not be shown, nor is any showing 2 of a causal nexus between one’s disability and an adverse employment action 3 required. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245 , 255–56 (2000). 4 1. Disability 5 Plaintiff states she was disabled due to her pregnancy and the mental issues 6 following her pregnancy. (Pl. Mot at 7.) A mental disability is defined as having 7 “any mental or psychological disorder or condition . . . that limits a major life 8 activity” such as working. Cal. Gov’t Code § 12926(j)(1). A physical disability 9 includes any physiological condition that affects certain body systems and limits a 10 major life activity. Id. at subsection (m). The Code of Regulations state, “[a] woman 11 is ‘disabled by pregnancy’ if, in the opinion of her health care provider, she is unable 12 because of pregnancy to perform any one or more of the essential functions of her 13 job or to perform any of these functions without undue risk to herself . . . [or she] 14 needs to take time off for . . . post-partum depression.” Cal. Code. Regs, tit. 2 15 § 11035(f). But “[t]o establish a prima facie case of failure to accommodate a 16 physical disability under section 12940(m), plaintiff must first demonstrate that her 17 pregnancy conditions constituted a physical disability within the meaning of the 18 statute.” Mayfield v. Trevors Store, Inc., No. C-04-1483 MHP, 2004 WL 2806175 , 19 at *5 (N.D. Cal. Dec. 6, 2004) 20 Iqvia concedes that there were periods of time during Plaintiff’s pregnancy in 21 which she was disabled, but it disputes that she suffered from a disability after 22 October 5, 2017. (Def. Opp’n at 12.) Plaintiff produced doctor’s notes showing a 23 doctor diagnosed her with postpartum depression and opined that she was to be off 24 work until January 10, 2018. (Exhibits Q, R, S, T; ECF No. 34-13 to 34-16.) In 25 response, Iqvia produced Dr. Carroll’s report. Dr. Carroll reviewed Plaintiff’s 26 treatment records and conducted an Independent Medical Examination of Plaintiff in 27 September 2019. From this, he determined that the records do not demonstrate that 1 to work. (Exhibit L, ECF No. 34-8.) 2 The Court finds the notes from Plaintiff’s doctor do not “conclusively 3 establish” that Plaintiff was disabled but instead establish that the doctor “made 4 certain diagnoses and recommended certain treatments.” See Cortez v. Chipotle 5 Mexican Grill, Inc., No. CV 17-4787-GW (JPRx), 2018 WL 6071093 , at *10 (C.D. 6 Cal. Aug. 9, 2018) (finding same). A reasonable factfinder could find that Plaintiff 7 was not disabled under the terms of the statute, in that she could still perform major 8 life activities despite her pregnancy and despite the opinions of her doctor. The Court 9 also does not take Dr. Carroll’s report as conclusive proof that Plaintiff was not 10 disabled, as Carroll only reviewed past medical records and met with Plaintiff years 11 after the relevant time period. However, Carroll’s report shows that a factfinder 12 could look at all available medical information and determine that Plaintiff was not 13 disabled. Thus, the Court concludes that whether Plaintiff was disabled is a disputed 14 issue of material fact.3 15 2. Qualified to Perform Essential Functions 16 “Essential duties” are broadly defined as “the fundamental job duties of the 17 employment position of the individual with a disability holds or desires.” Cal. Gov’t 18 Code § 12926(f)(1). Determining the essential functions of a position requires a 19 “highly fact-intensive inquiry.” Lui v. City & Cnty. of San Francisco, 211 Cal. App. 20 4th 962, 971 (2012). Evidence of whether a particular function is essential includes, 21 but is not limited to: the employer’s judgment as to which functions are essential, 22 written job descriptions prepared before advertising or interviewing applicants for 23 the job, the amount of time spent on the job performing the function, the [24] 25 3 Plaintiff also argues that if it is not determined that she was disabled, Iqvia perceived her as disabled. (Pl. Mot. at 18 n.8); see Cal. Gov’t Code § 12926(m)(4) (defining physical disability as 26 “[b]eing regarded by the employer . . . as having, or having had, any physical condition that makes achievement of a major life activity difficult”). In support of her argument, Plaintiff cites Vick’s [27] testimony that Iqvia took Plaintiff’s request for accommodations at face value. (Pl. Mot. at 18 n.8) 1 consequences of not requiring the incumbent to perform the function, the terms of a 2 collective bargaining agreement, the work experiences of past incumbents in the job, 3 and the current work experience of incumbents in similar jobs. Cal. Gov’t Code 4 § 12926(f)(2). 5 Iqvia contends that “the essential functions of a District Manager include 6 attending mandatory meetings in Chicago and Florida in mid-January and early 7 February, as well as go through the 3-week [Initial Humira Ambassador Training 8 (“IHAT training”)] customer-required, compliance-driven recertification process in 9 the first quarter of 2018 before she could return to the field.” (Def. Opp’n at 16.) 10 First turning to the IHAT trainings, Iqvia points to a document titled District 11 Manager Expectations for AbbVie Projects. (Exhibit V, ECF No. 34-18.) The 12 expectations provide that if an employee is out for more than three months, “re13 training with certification may take place upon return to the role.” (Id.) Iqvia’s 14 Senior Director, Business Unit Head, Michael Vick, testified to the same—that if an 15 employee is absent for more than three months, he or she is required to recertify. 16 (“Vick Depo.,” ECF No. 28-5, at 53:15–25.) To become recertified, the employee 17 attends IHAT training which is put on by AbbVie. (Id. at 54:4–22.) IHAT trainings 18 are offered quarterly in Chicago, Illinois. (Id. at 60:8–16.) The employee seeking to 19 become re-certified must attend the “true ambassador context portion” and the 20 “systems portion” of the training class which takes about three to four weeks. (Id. at 21 54:16–55:1.) The recertification is required because Iqvia’s systems “become more 22 complex” over time and employees returning from a leave of absence may 23 “struggle[] to come in and perform at an appropriate level,” for example, in 24 “compliance and how to enter the information for tracking into the system.” (Id. at 25 55:10–19.) 26 There are also two Regional Manager Meetings (“RMDM”) per year. 27 (“Marucci Depo.,” ECF No. 28-6, at 65:6–14.) The RMDM “are mandatory 1 coaching of and training of their team members during the National Sales Meetings 2 (‘NSM’ or ‘NXM’), where product launches and education are discussed.” (Def. 3 Opp’n at 3.) At these meetings, District Managers “are trained to participate in the 4 coaching of and training of their team members during the National Sales Meeting, 5 where product launches and patient education are discussed.” (Id. at 14.) The 6 RMDM and National Sales Meetings “usually last from 8:00 in the morning until 7 5:00, then [the employees] have a break from 5:00 to 5:30, and [they] have an activity 8 at night from 6:30 usually until about 10:30.” (Marucci Depo. at 148:5–16.) 9 When deciding whether to terminate Plaintiff, Vick testified that he and others 10 evaluated the capacity of patient enrollments, and based on that capacity, “we needed 11 somebody in a position . . . that could actually work to see patients almost effective 12 immediately.” (Vick Depo. at 84:7–25.) Plaintiff “would not have been certified to 13 see patients without traveling for training in the near future and would not have been 14 able to attend the [RMDM].” (Id. at 85:13–17.) 15 Plaintiff does not seem to contest that the above are essential functions of the 16 job, nor does she contest that she could not attend certain meetings full time. 17 Plaintiff, by asking for a shorter workweek, acknowledged that she could not work a 18 full 40-hour week. Thus, this shows that she could not attend all-day meetings with 19 evening events. The Court need not determine whether these meetings were 20 “essential functions” of the job, because, assuming they are, it appears that Plaintiff 21 could have performed portions of these functions with accommodation, i.e., she 22 could have worked a 6-hour day at the February conference (if she was able and 23 willing to travel there.) However, the issue is whether such an accommodation would 24 have been “reasonable” under the circumstances. 25 3. Reasonable Accommodation 26 “[A] woman disabled by pregnancy is entitled to the protections afforded any 27 other disabled employee—a reasonable accommodation that does not impose an 1 1331, 1339 (2013). “Reasonable accommodation” means a “modification or 2 adjustment to the workplace that enables a disabled employee to perform the 3 essential functions of the job held or desired.” Lui, 211 Cal. App. 4th at 971. The 4 term is defined in the FEHA regulations only by means of example. Reasonable 5 accommodation 6 may include either of the following: [¶] (1) Making existing facilities used by employees readily accessible to, and usable by, individuals [7] with disabilities. [¶] (2) Job restructuring, part-time or modified work 8 schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of [9] examinations, training materials or policies, the provision of qualified 10 readers or interpreters, and other similar accommodations for individuals with disabilities. [11] 12 Cal. Gov’t Code § 12926(p). The reasonableness of an accommodation is generally 13 a question of fact. Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215 , 228 n.11 14 (1999). 15 Plaintiff argues that Iqvia was unreasonable in not allowing her to work part 16 time for a month before returning to work full time. But Iqvia points out that it 17 already granted Plaintiff extensive leave, and it argues it was not required to provide 18 any further accommodation. Plaintiff asks the Court to only look at her request for 19 a modified January/February schedule in evaluating the reasonableness of the 20 accommodation, (Pl. Reply at 1), but the Court must evaluate the situation as a whole. 21 It would be inappropriate to view Plaintiff’s one request in isolation and determine 22 its reasonableness while ignoring the accommodations Iqvia had already granted. 23 See Joseph v. Target Corp., No. 2:12-CV-01962-KJM, 2015 WL 351444 , at *12 24 (E.D. Cal. Jan. 23, 2015) (“Determining whether reasonable accommodation has 25 been made is a fact-specific individualized inquiry that takes into account the totality 26 of the circumstances.”). 27 “FEHA does not obligate an employer to choose the best accommodation or 1 of Burbank, 135 Cal. App. 4th 1215, 1222 (2006). “[A] finite leave can be a 2 reasonable accommodation under FEHA, provided it is likely that at the end of the 3 leave, the employee would be able to perform his or her duties.” Hanson, 74 Cal. 4 App. 4th at 226. From Iqvia’s perspective, Plaintiff had been granted extensive 5 leave, and having her work part time for another month would have made it difficult 6 or impossible for her to attend the required trainings and meetings. Plaintiff had not 7 been able to attend the January RMDM. (Pl. Mot. at 12.) The National Sales Meeting 8 was set for February 5 to 8, 2018 and IHAT training was set for February 19 to March 9 23, 2018. (Id.) 10 Whether it would have been reasonable for Iqvia to extend one further leave 11 to Plaintiff and allow her to work part time for a month is a question of fact that 12 cannot be decided at this stage. For Iqiva to do so would have allowed Plaintiff to 13 skip all or part of the February 2018 sales meeting. Plaintiff points out that her 14 replacement did not attend the February meeting, (see Marucci Depo. at 229:7–10), 15 but Iqvia could have reasonably thought that Plaintiff had missed enough work such 16 that it was essential for her to attend the meeting. See Nealy v. City of Santa Monica, [17] 234 Cal. App. 4th 359, 375 (2015) (“[E]limination of an essential function is not a 18 reasonable accommodation.”). Thus, whether or not it would have been reasonable 19 for Iqvia to make an exception for Plaintiff so that she was not required to attend all 20 or parts of the meeting is a disputed question of fact. See Nunes v. Wal-Mart Stores, 21 Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (“In the summary judgment context, a court 22 should weigh the risks and alternatives, including possible hardships on the 23 employer, to determine whether a genuine issue of material fact exists as to the 24 reasonableness of the accommodation.”). 25 Further, Plaintiff would have had to recertify through an IHAT training before 26 returning to the field, which would have caused more delay. Michael Vick testified 27 that Plaintiff was terminated because of her “inability to either see patients in the 1 Plaintiff was not re-certified, she would have not been able to work at all within the 2 “nursing realm” or “within the district manager role.” (Id. at 94:1–8.) She would 3 not have been able to oversee nurse ambassadors in her district. (Id. at 95:20–96:2.) 4 If she was not retrained in new documentation procedures, she would not be able to 5 complete certain audits. (Id. at 96:9–17.) She also could not perform performance 6 reviews for her team. (Id. at 97:3–8.) In sum, without attending the retraining and 7 recertification process, she would not have been able to do the “three things” which 8 form the primary role of a district manager (Id. at 97:9–13). 9 The IHAT training was to begin late February, approximately one week after 10 Plaintiff stated she could begin working full time. But Iqvia argues it reasonably 11 believed that Plaintiff may request further leave (as she had done previously) and 12 therefore would not have been able to attend the recertification. (See Marucci Depo. 13 at 119:24–220:3 (“We had concerns that maybe she would not come back. She was 14 to come back on the 25th of November . . . and had pushed it forward, and so we 15 were concerned from a . . . business perspective”).) Indeed, it is unclear when 16 Plaintiff originally intended to return. She informed Iqvia that she intended to return 17 in November, but Kimberly Murdock, Plaintiff’s co-manager for the region, testified 18 regarding text messages between her and Plaintiff, where Plaintiff stated that she had 19 an “original plan” of returning to work in January after the holidays. (“Murdock 20 Depo.,” ECF No. 28-8, at 113:6– 114:4.) Plaintiff also informed Merdock that her 21 plan to return to work depended on childcare, as “she needed somebody to watch the 22 baby when she went back to work.” (Id. at 111:8–112:1, 115:9–14.) Iqvia argues 23 that it was therefore Plaintiff’s plan all along to take longer leave so she could care 24 for her baby for the remainder of the calendar year, but neither party addresses 25 whether Murdock shared this information with anyone at Iqvia such that Iqvia would 26 have had these concerns when it terminated Plaintiff. 27 Considering the months of leave Plaintiff took and Plaintiff’s further request 1 reasonably accommodated Plaintiff. An issue of fact also exists as to whether the 2 accommodation sought would have imposed an undue hardship on Iqvia. See Cal. 3 Gov’t Code § 12940(m) (an employer is to provide reasonable accommodation for 4 an employee’s known disability, unless the employer demonstrates that the 5 accommodation would produce “undue hardship . . . to its operation”).4 For the 6 above reasons, the Court DENIES Plaintiff’s Motion for Summary Judgment on her 7 reasonable accommodation cause of action. 8 C. Discrimination 9 FEHA provides, in pertinent part, that it is an unlawful employment practice 10 “[f]or an employer, because of the . . . physical disability . . . of any person, to refuse 11 to hire or employ the person or . . . discharge the person from employment . . . or to 12 discriminate against the person in compensation or in terms, conditions or privileges 13 of employment.” Cal. Gov’t Code § 12940(a). A prima facie disability 14 discrimination case requires that a plaintiff show that she (1) suffered from a 15 disability, or was regarded as suffering from a disability; (2) could perform the 16 essential duties of the job with or without reasonable accommodation; and (3) was 17 subjected to an adverse employment action because of the disability or perceived 18 disability. Wills v. Superior Court, 195 Cal. App. 4th 143 , 159–60 (2011). Plaintiff 19 claims as a result of her “sex/pregnancy, need to breastfeed, disability, and/or 20 perceived disability,” Iqvia discriminated against her by, among other things, 21 terminating her employment. (Compl. ¶ 41.)5 [22] 23 4 Plaintiff argues Iqvia waived the undue hardship affirmative defense because it did not raise undue hardship in its answer. Other courts have found that “the claim of ‘undue hardship’ is not a true [24] affirmative defense that is waived if not pled.” Chou v. Potter, No. CV 06-5683 GAF (RCX), 2009 25 WL 10674159 , at *2 (C.D. Cal. June 12, 2009). This is because it is part of the burden-shifting analysis, i.e., a plaintiff has the burden to establish “a case of disability discrimination, which 26 includes a failure to reasonably accommodate, at which point the burden of production shifts to the defendant to show ‘undue hardship.’” Id. The Court agrees. [27] 5 In many discrimination cases, courts apply the three-stage burden shifting test set forth in 1 The Court found above that whether Plaintiff was disabled and whether Iqvia 2 reasonably accommodated Plaintiff is a genuine issue of material fact that cannot be 3 decided at this stage. 4 As to the final element, the standard for determining whether an employee has 5 been subjected to “adverse employment action” is whether the employment action 6 materially affected “terms and conditions of employment,” with that term being 7 liberally construed in order to afford employees “appropriate and generous protection 8 against employment discrimination.” Cal. Gov’t Code §§ 12940(a) and (h); Yanowitz 9 v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1054 (2005). “[T]ermination, dissemination 10 of a negative employment reference, issuance of an undeserved negative 11 performance evaluation and refusal to consider for promotion” all constitute adverse 12 employment actions. Brooks v. City of San Mateo, 229 F.3d 917 , 928–29 (9th Cir. 13 2000). 14 Plaintiff was terminated. Iqvia does not argue that there are any factual issues 15 as to whether Plaintiff was subjected to an adverse employment action. This element 16 is met. But because there are genuine issues of material fact that exist as to this cause 17 of action, the Court DENIES Plaintiff’s Motion for Summary Judgment on her 18 discrimination cause of action. 19 D. Failure to Engage in the Interactive Process 20 Under FEHA, an employer’s failure “to engage in a timely, good faith, [21] 22 discrimination cases where . . . the plaintiff presents direct evidence of the employer’s motivation for the adverse employment action.” Wallace v. County of Stanislaus, 245 Cal. App. 4th 109 , 123 23 (2016). “[D]isability discrimination cases often involve direct evidence of the role of the employee’s actual or perceived disability in the employer’s decision to implement an adverse [24] employment action.” Id. “Instead of litigating the employer’s reasons for the action, the parties’ 25 disputes in disability cases focus on whether the employee was able to perform essential job functions, whether there were reasonable accommodations that would have allowed the employee 26 to perform those functions, and whether a reasonable accommodation would have imposed an undue hardship on the employer.” Id. [27] Here, it is undisputed that Iqvia terminated Plaintiff because it believed she was unable to 1 interactive process with the employee . . . to determine effective reasonable 2 accommodations” is a violation of the statute. Cal. Gov’t Code § 12940(n). FEHA 3 imposes on employers a mandatory obligation to engage in the interactive process 4 once an employee requests an accommodation for his or her disability, or when the 5 employer itself recognizes the need for one. Brown v. Lucky Stores, Inc., 246 F.3d 6 1182, 1188 (9th Cir. 2001). “Once initiated, the employer has a continuous 7 obligation to engage in the interactive process in good faith.” Swanson v. Morongo 8 Unif. Sch. Dist., 232 Cal. App. 4th 954, 971 (2014). The interactive process “requires 9 communication and good-faith exploration of possible accommodations between 10 employers and individual employees with the goal of identifying an accommodation 11 that allows the employee to perform the job effectively.” Yeager v. Corr. Corp. of 12 Am., 944 F. Supp. 2d 913, 919 (E.D. Cal. 2013). Whether the employer engages in 13 an interactive process is a question of fact. Wilson v. County of Orange, 169 Cal. 14 App. 4th 1185, 1193 (2009). 15 First, to prevail on this claim, an employee must identify a reasonable 16 accommodation that would have been available at the time the interactive process 17 should have occurred. Nealy, 234 Cal. App. 4th at 379 . Plaintiff has identified an 18 accommodation—her modified work schedule for a month before returning to work 19 full time. Whether or not this accommodation is reasonable in this situation is a 20 disputed genuine issue of material fact, as noted above. 21 But even if an employer claims there is no available reasonable 22 accommodation, “if it did not engage in a good faith interactive process, ‘it cannot 23 be known whether an alternative [accommodation] would have been found.’” 24 Wysinger v. Auto. Club of S. Cal., 157 Cal. App. 4th 413 , 424–25 (2007). “The 25 interactive process determines which accommodation is required. Indeed, the 26 interactive process could reveal solutions that neither party envisioned.” Id. at 425 27 (citations omitted). And, even if it is determined that Iqvia reasonably 1 determined that Iqvia then “failed in its continuing duty to engage in the interactive 2 process” following this. See Perona v. Time Warner Cable, No. EDCV-14-25013 MWF (SPx), 2016 WL 8941101 , at *1 (C.D. Cal. Dec. 6, 2016); see also A.M. v. 4 Albertsons, LLC, 178 Cal. App. 4th 455 , 463–64 (2009) (“The failure to 5 accommodate and the failure to engage in the interactive process are separate, 6 independent claims involving different proof of facts.”). 7 In Swanson v. Morongo Unified School District, an employee asked to switch 8 from teaching fifth grade to second grade following her cancer diagnosis. 232 Cal. 9 App. 4th 954. The employer instead assigned her to teach a kindergarten class. The 10 court held that even if the employer accommodated the employee by switching her 11 from fifth grade to kindergarten, it did not “engage in an ongoing dialogue regarding 12 the accommodations [the employee] believed she needed to mitigate her . . . 13 conditions.” For example, the employer “offers no evidence to show it discussed 14 with [the employee] the second grade assignment she sought or provided any 15 explanation why it could not grant her request as a reasonable accommodation. To 16 the contrary, the evidence shows the District simply assigned [her] to teach 17 kindergarten and failed to engage in any further discussion with her.” Id. at 972. 18 “Each party must participate in good faith, undertake reasonable efforts to 19 communicate its concerns, and make available to the other information which is 20 available, or more accessible, to one party. Liability hinges on the objective 21 circumstances surrounding the parties’ breakdown in communication, and 22 responsibility for the breakdown lies with the party who fails to participate in good 23 faith.” Id. 24 Plaintiff points to various instances of Iqvia’s failure to engage with her and 25 keep her informed regarding her employment situation. For example, Plaintiff’s job 26 was posted to be filled in December 2017. (Marucci Depo. at 121:22–122:3.) 27 Marucci testified that this was done because Iqvia was “unsure as to whether or not 1 (Id. at 122:4–8.) No one at Iqvia informed Plaintiff of the posting, and when she 2 heard of it from a friend, she reached out to her supervisor Candace Grover saying 3 that she saw her job had been posted and asking, “did I get fired?” (Exhibit 11, ECF 4 No. 29-13.) Plaintiff testified that Grover told her the posting was “just a formality.” 5 (“Salgado Depo.,” ECF No. 29-11 at 215:7–10.) Plaintiff states she was not 6 reassured by this conversation, so she told Grover she intended to return, and Grover 7 said, “If you’re coming back, you’re coming back. And let us know what we can do 8 to help you get back.” (Id. at 17–23.) Grover testified that the job was posted “in 9 case [Plaintiff] did not return. . . . [W]e wanted to identify candidates that . . . met 10 criteria and eligibility and could possibly be ready to go in the event that [Plaintiff] 11 didn’t return to work.” (Grover Depo. at 95:21–96:21.) There is no indication this 12 information was relayed to Plaintiff; a company posting a job as a “formality” is 13 different than one identifying potential candidates for a position held by an employee 14 who intends to return. 15 Plaintiff testified when she brought up the idea of returning to work on a 16 modified schedule, Grover said something like, “okay. Great” and did not express 17 any concern. (Salgado Depo. at 261:2–13.) On December 19, Plaintiff emailed 18 Carmona and told her she “was cleared to return to work on 1/11 on a modified work 19 schedule to be up to full time hours by mid February.” (Exhibit 13, ECF No. 29-15.) 20 There is no indication Carmona responded to this. On January 8, 2018, Plaintiff 21 emailed Carmona and Grover a copy of a doctor’s note placing her off work until 22 January 15, 2020 with a modified work schedule for the following month. (Exhibit 23 14, ECF No. 29-16.) On January 11, Carmona advised Plaintiff that Iqvia was 24 “unable to support your return to work accommodations. At this time you will 25 remain out on disability until you are able to return on a full time basis . . . It may be 26 good to connect with doctor [sic] to discuss to see if there are any other solutions or 27 schedules that can be provided.” (Exhibit 15, ECF No. 29-17.) Plaintiff responded, 1 specifically with my doctor.” (Id.) There is no indication anyone responded to this 2 email. (“Salgado Decl.,” ECF No. 29-3, ¶ 4; see also Carmona Depo. at 138:12–20 3 (Carmona testifying she does not recall if she responded to Plaintiff but if she had, it 4 would have been over email)). Plaintiff was terminated the next day. Plaintiff then 5 made a same-day appointment with her doctor and “obtained a clearance to return to 6 work with no restrictions on January 13, 2018.” (Salgado Decl. ¶ 5.) She informed 7 Iqvia of this, but she was not rehired. 8 Throughout her leave, Plaintiff made her position known to Iqvia. She kept 9 her employer informed of the extensions of her leave and informed Iqvia of her intent 10 to return to work. And up until January, it seems that Plaintiff and her supervisors 11 were communicating often. But this open dialogue ended. See Nadaf-Rahrov v. 12 Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 985 (2008) (“If the employer is 13 responsible for a later breakdown in the process, it may be held liable [under section 14 12940(n)].”). When Plaintiff saw her job had been posted for hire, she reached out 15 to ensure she would still have a job when she returned from leave. She was assured 16 she would, but was not told that Iqvia was identifying candidates to take her place in 17 case she did not return. Over time, she sent various doctor’s notes extending her 18 leave, and there is no indication Iqvia expressed an issue with these. Iqvia now 19 argues that Plaintiff was taking “indefinite” leave, (Def. Opp’n at 15) but there is no 20 evidence that anyone at Iqvia informed Plaintiff that her leave was becoming 21 unreasonable or too far extended. There is no indication Iqvia warned Plaintiff that 22 critical business needs were not being met and that she was needed at work, or that 23 other employees were feeling burdened or stressed by her leave. (See ECF No. 29-8 24 at 32:8–23 (Vick testifying that he does not know if anyone “specifically contacted 25 [Plaintiff] to find out if” she could change her accommodations to attend the national 26 sales meeting; “We took the accommodations from the position at their face 27 value.”).) See Swanson, 232 Cal. App. 4th at 972 (taking issue with the fact that the 1 reasonable accommodation”). And when Plaintiff requested a modified work 2 schedule, Iqvia did not advise her as to why the schedule was unreasonable, nor did 3 it ask her if she could change her schedule to attend meetings or events; instead, it 4 terminated her. And finally, when Plaintiff responded by obtaining clearance to work 5 full-time, this did not change Iqvia’s decision to terminate her. Iqvia argues that the 6 termination decision “could not be simply reversed” even after the doctor’s 7 clearance, (Def. Opp’n at 10) but does not explain this contention; there is no 8 indication that someone had been immediately hired to replace Plaintiff or that 9 anything would have stopped Iqvia from cancelling the termination due to Plaintiff’s 10 willingness to work full time. 11 In sum, Plaintiff “under[took] reasonable efforts to communicate [her] 12 concerns” but the “breakdown in communication” occurred due to Iqvia. See 13 Swanson, 232 Cal. App. 4th at 972 . Plaintiff continuously expressed her desire and 14 intent to return. Iqvia now states it was concerned that Plaintiff was never going to 15 return to work and that it believed that a modified work schedule was impossible or 16 unreasonable, but this information was not communicated to Plaintiff. “[I]nstead of 17 sitting down with” Plaintiff to discuss her proposed plan, Iqvia effectively “slammed 18 and locked the door.” See Hernandez v. Rancho Santiago Com. College Dist., 22 19 Cal. App. 5th 1187, 1197 (2018). 20 The Court finds that Plaintiff has established there is no genuine issue of 21 material fact that Iqvia failed to engage in the interactive process. Iqvia did not raise 22 a disputed fact. Thus, the Court GRANTS Plaintiff’s Motion for Summary 23 Judgment on this claim. 24 E. Violations of the California Family Rights Act 25 Plaintiff claims Iqvia violated the California Family Rights Act (“CFRA”) by 26 failing to designate and provide her with twelve weeks of leave. (Pl. Mot. at 27.) 27 Specifically, Plaintiff claims Iqvia (through Unum) failed to properly designate 1 California has two separate statutory provisions providing for unpaid leave. 2 The CFRA provides a right to a maximum of twelve weeks of unpaid leave in a 3 twelve-month period. Cal. Gov’t Code § 12945.2(a). The Pregnancy Disability 4 Leave Law (“PDL”) provides a right to “a female employee disabled by pregnancy, 5 childbirth, or a related medical condition to take a leave for a reasonable period of 6 time not to exceed four months and thereafter return to work.” Id. § 12945(a)(1). 7 “The right to take a pregnancy disability leave under Government Code section 8 12945 and these regulations is separate and distinct from the right to take leave under 9 the” CFRA. Cal. Code Regs. tit. 2, § 11046 (a). At the end of the employee’s 10 period(s) of pregnancy disability, or at the end of four months of pregnancy disability 11 leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA 12 leave of up to twelve work weeks for reason of the birth of her child. Id. at subsection 13 (c). 14 A California regulation explains the interplay between the CFRA and the PDL: 15 “The maximum statutory leave entitlement for California employees, provided they 16 qualify for CFRA leave, for both pregnancy disability and CFRA leave for reason of 17 the birth of a child and/or the employee’s own serious health condition is the working 18 days in 29 1/3 workweeks.” Cal. Code Regs. tit. 2 § 11046(d). The same regulation 19 notes that to reach this maximum period, the CFRA leave must follow the PDL leave. 20 Id. (explaining that PDL leave would be used for pregnancy and CFRA leave used 21 after delivery). 22 Plaintiff contends that her leave was provided as follows: 23 May 25 to September 2, 2017: PDL leave September 3 to October 4, 2017: CFRA leave [24] October 5 to 25, 2017: PDL and CFRA leave 25 October 26 to November 24, 2017: CFRA leave 26 (Pl. Mot. at 15.) She takes issue with the October period where the PDL and CFRA 27 leave periods ran concurrently. Indeed, PDL leave is to run consecutively with 1 portions of Plaintiff’s leave period overlapped in October, Plaintiff took leave until 2 January 12, 2018 (the day she was terminated). (JSUMF ¶ 6.) She argues, “at no 3 point has IQVIA sought to designate any part of [her] leave from November 25, 2017 4 through January 15, [sic] 2018 as CFRA leave.” (Pl. Mot. at 28.) But she does not 5 point out what this leave was, if not CFRA. In Rincon v. American Federation of 6 State, County, and Municipal Employees, Case No. C 12-4158 MEJ, 2013 WL 7 4389460, at *13 (N.D. Cal. Aug. 13, 2013), the court held that if the plaintiff cannot 8 show prejudice arising out of the employer’s failure to inform her that her leave 9 “would count against” her CFRA entitlement, she states no claim under CFRA. The 10 same is true here; there is no dispute that Plaintiff was granted more than 29 1/3 11 weeks of leave, which is more leave than CFRA and PDL allow. Thus, she has not 12 been prejudiced by Iqvia not officially designating the additional time as CFRA 13 leave. The Court DENIES Plaintiff’s Motion for Summary Judgment for this cause 14 of action. 15 F. Wrongful Termination in Violation of Public Policy 16 Plaintiff contends that because she has established that she was terminated in 17 violation of the FEHA and CFRA, she has a tort claim for wrongful termination in 18 violation of public policy. (Pl. Mot. at 29.) Because the Court found disputed issues 19 of material fact regarding Plaintiff’s termination, as noted herein, the same applies 20 to this cause of action. See Markowitz v. United Parcel Serv., Inc., 711 F. App’x 21 430, 431 (9th Cir. 2018) (holding the plaintiff’s “claims for wrongful termination in 22 violation of public policy fail for the same reasons that her underlying claims for 23 disability discrimination” fail). The Court DENIES Plaintiff’s Motion for Summary 24 Judgment for this cause of action. 25 G. Summary 26 In sum, the Court grants Plaintiff’s Motion for Summary Judgment on her 27 claim of failure to engage in the interactive process. The Court denies the remainder 1 Iqvia’s Motion for Summary Judgment 2 A. Procedural Issues 3 Plaintiff objects to various pieces of evidence Iqvia submitted in support of its 4 Motion. (ECF No. 36.) Plaintiff first objects to various statements in Michael Vick’s 5 declaration. (“Vick Decl.,” ECF No. 28-2.) 6 Plaintiff objects to Vick’s statement that the projects he oversees (AbbVie 7 projects) constitute a “small percentage” of Iqvia’s total business. (Id. ¶¶ 5, 13.) At 8 his deposition, Vick testified that he had “no idea” what percentage of Iqvia revenue 9 was made up of projects or contracts with AbbVie. (“Vick Depo.” ECF No. 33-5, at 10 60:5–7.) These statements are contradictory. 11 Where a party proffers an affidavit that contradicts or seeks to explain earlier 12 deposition testimony, the court must make a factual determination as to whether the 13 declaration is an attempt to create a “sham” issue of fact and avoid summary 14 judgment. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 , 266–67 (9th Cir. 1991). 15 An affidavit is not a sham if (1) it “merely elaborat[es] upon, explain[s] or clarif[ies] 16 prior testimony[,]” Messnick v. Horizon Indust., Inc., 62 F.3d 1227 , 1231 (9th Cir. 17 1995)); (2) if “the witness was confused at that time of the earlier testimony and 18 provides an explanation for the confusion[,]”; or (3) if the declaration concerns newly 19 discovered evidence. Pac. Ins. Co. v. Kent, 120 F. Supp. 2d 1205, 1213 (C.D. Cal. 20 2000) (citing Kennedy, 952 F.2d at 266 ). It is possible that after his deposition, Vick 21 received new evidence regarding Iqvia’s breakdown of business as it relates to the 22 AbbVie projects, and then he included the information in his declaration based on 23 his own personal knowledge. Thus the Court does not find the declaration to be a 24 sham produced merely to contradict the deposition testimony or avoid summary 25 judgment. The Court overrules Plaintiff’s objection. 26 Plaintiff next objects to Vick’s conclusory statements, (Vick Decl. ¶¶ 11, 14), 27 which the Court addresses in its analysis below. Plaintiff further objects to Vick’s 1 Board of Directors. Plaintiff claims Vick has no personal knowledge for this 2 statement. But Vick may testify as to his understanding of the organization. See In 3 re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000) (“Personal knowledge may be 4 inferred from a declarant’s position.”). The Court overrules this objection. 5 Plaintiff also objects to various statements in the declaration of Aliza Zaidi. 6 (“Zaidi Decl.,” ECF No. 28-3.) Plaintiff objects that certain statements by Zaidi are 7 conclusory. Again, the Court addresses the use of conclusory statements below. As 8 to Plaintiff’s objections regarding Zaidi’s lack of personal knowledge regarding the 9 corporate structure and decisions of Iqvia, the Court again notes that Zaidi may make 10 statements based on her understanding of the organization. In re Kaypro, 218 F.3d 11 at 1075 . The Court overrules Plaintiff’s objections. 12 B. Punitive Damages 13 Plaintiff’s Complaint contains a request for punitive damages against Iqvia, 14 and Iqvia moves for summary judgment on this issue. Under California law, an 15 employer may be liable for punitive damages based upon acts of an employee if the 16 employer “authorized or ratified the wrongful conduct for which the damages are 17 awarded or was personally guilty of oppression, fraud, or malice.” Cal. Civ. Code § 18 3294. Further, “[w]ith respect to a corporate employer, the advance knowledge and 19 conscious disregard, authorization, ratification or act of oppression, fraud, or malice 20 must be on the part of an officer, director, or managing agent of the corporation.” Id. 21 1. Managing Agent 22 Iqvia contends that the decision to terminate Plaintiff was made by Michael 23 Vick (who was in charge of the Humira project), and Aliza Zaidi (a human resources 24 director). (Def. Mot. at 11.) Iqvia contends that neither of these individuals, nor 25 anyone else involved in the decision, are “managing agents” of Iqvia. (Id.) It is 26 essentially undisputed that neither of these individuals were officers or directors of 27 Iqvia. Thus, a triable issue on punitive damages could arise only if the evidence 1 “[B]y selecting the term ‘managing agent,’ and placing it in the same category 2 as ‘officer’ and ‘director,’ the Legislature intended to limit the class of employees 3 whose exercise of discretion could result in a corporate employer’s liability for 4 punitive damages.” White v. Ultramar, Inc., 21 Cal.4th 563, 573 (1999). 5 [T]he Legislature intended that principal liability for punitive damages not depend on employees’ managerial level, but on the extent to which [6] they exercise substantial discretionary authority over decisions that 7 ultimately determine corporate policy. Thus, supervisors who have broad discretionary powers and exercise substantial discretionary [8] authority in the corporation could be managing agents. Conversely, 9 supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered [10] managing agents even though they may have the ability to hire or fire 11 other employees. In order to demonstrate that an employee is a true managing agent under section 3294, subdivision (b), a plaintiff seeking [12] punitive damages would have to show that the employee exercised 13 substantial discretionary authority over significant aspects of a corporation's business. [14] 15 Id at 577; see Cruz v. HomeBase, 83 Cal. App. 4th 160, 167 (2000) (defining 16 “corporate policy” as “the general principles which guide a corporation, or rules 17 intended to be followed consistently over time in corporate operations”). Whether 18 employees exercise sufficient authority is determined on a case-by-case basis. White, [19] 21 Cal. 4th at 567 . 20 Iqvia has the initial burden to show there are no triable issues as to whether 21 Vick and Zaidi (and any other managers or employees involved in Plaintiff’s 22 termination) were managing agents of Iqvia. 23 a. Michael Vick 24 Vick is a Senior Director, Business Unit Head for Iqvia. (Vick. Decl. ¶ 1.) 25 Vick declares he has no “substantial independent authority and judgment in the Iqvia 26 corporate decision-making process.” (Id. ¶ 11.) This is simply a restatement of the 27 rule from White and the Court cannot take this legal conclusion at face value. See 1 satisfy its initial burden of production of evidence by making a conclusory statement 2 of law, whether directly or through a declaration of one of its employees”). The 3 Court turns to the remainder of the declaration. 4 Vick describes his job and the portions of the company over which he has 5 authority. He oversees Iqvia’s relationship with one of its commercial clients: 6 AbbVie, Inc. (Vick Decl. ¶ 3.) He only manages this one client relationship, which 7 encompasses about 500 Iqvia employees (out of a total of 58,000 Iqvia employees 8 worldwide). (Id. ¶¶ 5, 10, 13.) And “even within the realm of the AbbVie projects” 9 he oversees, he states he does not have independent authority to determine corporate 10 policy. (Id. ¶ 14.) He states he does not have authority to fire employees “without 11 review and approval of an employees’ direct supervisors in the project leadership, 12 our legal department, human resources, my direct supervisor (Kirk Harmon), and 13 other departments.” (Id. ¶ 15.) The Court finds that Iqvia, through Vick’s declaration 14 which describes his job responsibilities and the nature and extent of his authority and 15 discretion, has met its initial burden of showing that Vick was not a managing agent. 16 See Davis, 220 Cal. App. 4th at 372. 17 In response, Plaintiff points to various depositions and to Iqvia’s discovery 18 responses. Anna Marucci testified that it is a written policy that if an employee is 19 out for three months, he or she must attend IHAT training. (ECF No. 33-3, at 50:20– 20 23.) Vick testified that he and Marucci, “with input from both the regional project 21 leads as well as the client operational program[,]” made the decision to make this a 22 policy. (“Vick Depo.,” ECF No. 33-5, at 118:15–24.) This policy, which Vick had 23 a role in forming and implementing, applies to all Humira patient ambassador 24 employees. (Id.) 25 This shows that Vick had authority over, had a part in implementing policy 26 covering, and supervised many employees as it relates to the AbbVie projects. His 27 authority does not appear to extend outside of these projects. But, “California’s 1 imputed to a corporation even when the managing agent’s authority was limited to 2 only one or a few locations.” Garcia v. New Albertson’s, Inc., No. 2:13-CV-059413 CAS, 2014 WL 4978434 , at *8 (C.D. Cal. Oct. 3, 2014). In White, the supervisor 4 was a “zone manager” responsible for overseeing operations of several convenience stores in the San Diego area. As such, she was not a high5 level manager or final policy maker for Ultramar, Inc. (Ultramar)—a 6 large corporation that operates a chain of stores and gasoline service stations throughout California. In effect, she was an [sic] local [7] supervisor; indeed, according to the testimony of her supervisors, she 8 apparently lacked the authority to terminate plaintiff without the approval of Ultramar’s human resources manager and division [9] manager. Nor did she purport to set any firm-wide or official policy 10 concerning termination of employees for testifying at unemployment hearings. . . . [H]owever, she exercised authority that “necessarily [11] result[ed] in the ad hoc formulation of policy” that adversely affected 12 plaintiff. Specifically, she engaged in a local practice of retaliating against, by firing, an employee who testified at the unemployment [13] hearing of another Ultramar employee. A corporate manager with such 14 authority may fairly be deemed a managing agent. [15] 21 Cal.4th at 563 ; see also Egan v. Mut. of Omaha Ins. Co., 24 Cal.3d 809 , 822–23 16 (1979) (imputing to a national insurance company the actions of a single office’s 17 manager). 18 Further, the fact that an employee “supervised a small percentage” of the 19 defendant’s employees is not sufficient to avoid trial on whether he was a managing 20 agent. Garcia, 2014 WL 4978434 , at *8; see also DesRosiers v. Hartford, 979 F. 21 Supp. 2d 1036, 1053 (E.D. Cal. 2013) (despite description “as a mid-level manager 22 who supervised only about 100 employees, a small fraction of Hartford’s 29,000 23 employees nationwide,” and argument that “corporate policies are developed and 24 authorized by its home office executives in Hartford,” the question of “[w]hether or 25 not [the employee] exercised ad hoc authority over Hartford policy requires a factual 26 inquiry not suitable for summary judgment”). The same is true for Vick. 27 Next, Plaintiff presents evidence that shows whether or not Vick has authority 1 without approval of others, including the legal and human resources departments. 2 (Vick Decl. ¶ 15.) But in its interrogatory responses, Iqvia stated that those involved 3 in the decision to terminate Plaintiff were Michael Vick, Candace Grover, Anna 4 Marucci and Aliza Zaidi. (Exhibit 31, ECF No. 33-6, at 5.) The answer does not 5 identify anyone in the legal department. Thus, it is unclear to the Court just how 6 much power Vick had over Plaintiff’s termination and whether he was the most 7 senior employee involved in the decision to terminate her. And, as noted above, it 8 appears that Vick had a major role in implementing a policy that affected a portion 9 of Iqvia’s employees. Given all of these factors, Plaintiff has raised a disputed issue 10 of fact as to whether Vick was a managing agent. 11 b. Aliza Zaidi 12 Aliza Zaidi is an Associate Director of Human Resources for Iqvia. (Zaidi 13 Decl. ¶ 1.) She is “responsible for overseeing human resources functions for human 14 resources policy, compensation, benefits, and employee relations.” (Id. ¶ 3.) She 15 only oversees human resources functions for the employees in the division(s) to 16 which she has been assigned. (Id. ¶ 5.) Like Vick, Zaidi declares that she does “not 17 exercise substantial independent authority and judgment in this IQVIA corporate 18 decision-making process” and lacks “authority to modify of develop” Iqvia’s 19 corporate policies. (Id. ¶ 7.) As the Court noted above, it cannot simply take these 20 legal conclusions at face value. See Davis, 220 Cal. App. 4th at 369. 21 The Court finds it has insufficient information to determine Zaidi’s role and 22 level of power within Iqvia. She vaguely states she “oversee[s] human resources 23 functions” for employees in certain groups. (Zaidi Decl. ¶ 4.) Without further detail, 24 it is unclear what this means. Does this include creating human resources policies or 25 implementing decisions? The declaration does “not contain a sufficient description 26 of [Zaidi’s] job duties and responsibilities and the nature and extent of [her] authority 27 and discretion, as well as [her] exercise of that authority and discretion, to support a 1 over [significant] aspects of [Iqvia’s] business.’” See Davis, 220 Cal. App. 4th at 2 372 (quoting White, 21 Cal.4th at 577 ). Iqvia has not met its burden of establishing 3 there is no disputed issue of material fact as to Zaidi’s status and managing authority 4 within the company. 5 2. Analysis of Punitive Conduct 6 Assuming one of the above employees is found to be a managing agent, the 7 Court turns to Plaintiff’s argument of Iqvia’s punitive conduct. 8 As evidence of Iqvia’s malice, Plaintiff argues that Iqvia did not actually 9 terminate her due to its stated reason of “critical business needs” because her 10 replacement did not begin until after Plaintiff would have been released to work full 11 time and thus the needs must not have been critical. (Pl. Opp’n at 13.) She also 12 argues that Iqvia refused to engage in the interactive process with “conscious 13 disregard” for her rights, did not grant her the full leave under CFRA, and posted her 14 job while she was still on leave. (Id. at 14.) 15 Because Plaintiff’s FEHA claim for disability discrimination and her claim for 16 failure to reasonably accommodate survive summary judgment, the Court finds it 17 would be “premature to dismiss [her] request for punitive damages.” See McInteer 18 v. Ashley Distrib. Servs., Ltd., 40 F. Supp. 3d 1269, 1295 (C.D. Cal. 2014). This is 19 especially true because the Court has found for Plaintiff on her claim of Iqvia’s 20 failure to engage in an interactive process. The Court therefore DENIES Iqvia’s 21 Motion for Summary Judgment. 22 IV. CONCLUSION 23 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN 24 PART Plaintiff’s Motion for Summary Judgment and DENIES Defendants’ Motion 25 for Summary Judgment. Subject to the Order of the Chief Judge No. 24, In re Matter 26 of Extending Suspension of Jury Trials and Other Proceedings During the COVID27 19 Public Emergency (S.D. Cal. April 15, 2020), the Court orders the parties to | ||conference. Upon conclusion of this conference, the parties shall coordinate with the 2 || Magistrate Judge to set new dates for a pretrial conference and trial. 3 IT ISSO ORDERED. /\ 4 || DATED: May 8, 2020 asf dg 5 Ainha sh 5 United States District Judge