Order Submitted Matter

Cal. Super. - 6th Dist.October 5, 2017

OOOOQQLI‘IAL'JN- NNNNNNNNN--->--.--.-‘H_,_.._.._. OONONMfiWN-OOOONQUIADJNH SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA GEORGE HAFELY, Case N0. 17CV3 1 6847 Plaintiff, ORDER VS. GRANITE ROCK COMPANY, et al., Defendants. Defendant’s Motion for Summary Judgment or, in the Alternativé, Summary Adjudication came 0n for hearing before the Honorable Peter H. Kirwan on February 5, 201 9, at 9:00 a.m. in Department 19. The matter having been submitted, the court orders as follows: Factual and Procedural Background ln or around 2001 , plaintiff George Hafely (“Hafely”) began his employment with defendant Granite Rock Company (“Granite Rock”) as a Mixer Driver. (First Amended Complaint (“FAC”), 'fl6.) In 0r around 201 1, plaintiff Hafely was promoted to Plant Operator for one of defendant Granite Rock’s cement plants located iniSan Jose. (FAC, 117.) Case No. l7CV3 l6847 Order AWN O\OOO\IO\U1 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On 0r about June 3, 2014, plaintiffHafely loaded concrete mixture into a concrete truck, but the mixture was too dry and plugged up the hopper ofthe truck. (FAC, 118.) To clear the blockage, plaintiff Hafely climbed on top ofthe truck and used a specially designed tool to loosen the mixture. (Id) When plaintiff Hafely attempted to retract the tool, the tool became lodged in the hopper. (1d) In attempting to retract the tool and remove it from the hopper, plaintiff Hafely injured his back. (Id) Plaintiff Hafely immediately informed his supervisor, John Seith (“Seith”), of the injury and need to see a doctor. (1d) Seith asked ifplaintiff Hafely actually hurt his back at home and waited until he was at work t0 declare an injury. (Id) Seith reluctantly allowed plaintiff Hafely to leave work to see a workers" compensation doctor. (1d,) The workers’ compensation doctor gave plaintiff Hafely an anti-inflammatory shot and imposed work restrictions included limited lifting, pulling, and pushing only up to ten (1 0) pounds, and no stooping and bending. (FAC, 119.) Additionally, the workers’ compensation doctor noted plaintiff Hafely should be allowed to sit, stand, and walk as needed for comfort. (1d) After leaving the doctor’s office, plaintiff Hafely called Seith to request two days offto rest his back, but Seith denied plaintiff Hafely’s request without explanation. (FAC, 1|10.) On or about June 4, 2014, plaintiff Hafely returned to work and verbally informed Seith about the work restrictions which Seith initially acknowledged. (FAC, 111 1 .) Plaintiff Hafely was allowed to direct subordinates to assist him with plant maintenance and loading cement trucks. (ld.) However, when the concrete plant was busy, plaintiff Hafely was unable to get any assistance and Seith did not make any accommodations for plaintiff Hafely. (161.) Seith continued to instruct plaintiff Hafely to lift forty-five (45) pound bags and did not allow plaintiff Hafely to take any breaks to rest his back as required by the work restrictions. (1d) From June 2014 to June 201 5, Seith continued to ignore plaintiff Hafely’s work restrictions and continued to instruct plaintiff Hafely to carry forty-five (45) pound bags. (FAC, 111 2.) When plaintiff Hafely reminded Seith ofthe work restrictions, Seith disregarded Hafely’s concerns and said there was “no time to wait.” ([d.) On or about June 22, 2015, plaintiff Hafely filed a workers’ compensation claim for the back injury he suffered while working at defendant Granite Rock. (FAC, 111 3.) From June 22, Case No. I7CV3 16847 Order OOOONO‘LIIAUJNfl NNNNNNNNN-t--*--_._.._..__. OONOMAK’JN-‘OKOMNQMAUJN- 2015 until plaintiff Hafely’s termination, Seith and Division Manager, Mike McGarath (“McGarath”), increased their visits to the San Jose concrete plant that plaintiff Hafely operated to criticize plaintiff Hafely’s work, eager to find any mistakes to blame on plaintiff Hafely. (FAC, 1H4.) , In or around July 2015, plaintiff Hafely asked Seith ifhe could be transferred to another position where his work restrictions would be implemented, but Seith snickered and left without responding. (FAC, 1|15.) In or around July 201 5, McGarath told plaintiff Hafely, “Just get off worker’s compensation and get back to work.” (FAC, 1H6.) Plaintiff Hafely was confused because he was still working his regular hours. (1d.) In or around July 201 5, defendant Granite Rock upgraded to a new type of indicator that showed how much material was in each storage bin. (FAC, 1H7.) Hafely noticed the indicators were not working properly and contacted the indicator’s manufacturer who explained the indicators were not effective with the particular material being stored. (Id) Seith and McGarath issned a write-up to Hafely for not resolving the issue with the ineffective indicators. (Id.) 1n or around July 201 5, Seith noticed 300 tons of cement powder were unaccounted for in the inventory reports. (FAC, 111 8.) Seith accused Hafely of stealing the material and selling it to a competitor. (1d,) Seith wrote-up Hafely for the missing cement powder. (1d) Hafely conducted his own investigation and discovered the numerical discrepancy was due to a clerical error. (1d,) On or about July 21, 201 5, Seith implemented a new policy which required Hafely to complete spreadsheets twice a day to keep track ofthe amount 0f materials in the plant. (FAC, 1119.) No other plant operator was required to fill out these spreadsheets. (1d,) On or about July 24, 201 5, Hafely forgot to input inventory data into the spreadsheet. (FAC, 1120.) On or around July 25, 201 5, Hafely realized he forgot to input the inventory data into the spreadsheet and apologized to Seith who told Hafely it was okay, not to worry, and reminded Hafely to continue filling out the spreadsheet in the future. (1d,) An hour later, Seith returned and gave Hafely a write-up for failing to input the inventory data. (Id) Case No. |7CV3 16847 Order OKOWNOLA¢DJN- NNNNNNNNNH--I-------H._. WNQMAwN-‘OQOONONMADJN-I In or around latevJuly 2015, Hafely and union representatives met with Seith, McGarath, and Human Resources Director, Shirley Ow (erroneously alleged as “Au;” hereafter, “Ow”) where Hafely provided paperwork indicating the missing cement powder was merely a clerical error. (FAC, 1|22.) McGarath refused to take the paperwork and stated, “I couldn’t care less. I don’t care.” (1d) On 0r about August 14, 2015, plaintiff Hafely called in sick to work. (FAC, 1123.) Plaintiff Hafely suffered from insomnia due to work-related stress. (Id) Plaintiff Hafely went to see his primary care physician who referred plaintiff Hafely to a psychiatrist, Dr. Belinda Sangrate (“Dr. Sangrate”). (Id) On or about August 21, 201 5, Dr. Sangrate diagnosed plaintiff Hafely with severe clinical depression and anxiety. (FAC, 1[24.) Dr. Sangrate put plaintiff Hafely on disability leave from August 21, 2015 to September 1, 201 5. (Id) Plaintiff Hafely informed defendant Granite Rock’s dispatch office that he would be on medical leave and faxed his Work Status Report to Seith. (Ida) On or about September l, 2015, Dr. Sangrate extended plaintiff Hafely’s leave to September 17, 2015. (FAC, 1|25.) Plaintiff Hafely called defendant Granite Rock’s dispatch office to inform them about his medical leave extension and again faxed his Work Status Report. (1d) On or about September 4, 201 5, Ow sent a letter to plaintiff Hafely stating defendant Granite Rock’s understanding that plaintiff Hafely was on leave for a non-work related injury. (FAC, 1126.) Ow enclosed a Request for Leave of Absence and Certification of Health Care Provider and instructed plaintiff Hafely to complete the forms by October 4, 20] 5. (Id) On or about September 1 l, 201 5, plaintiff Hafely filed a new workers’ compensation claim for stress. (FAC, 1127.) On or about September 17, 201 5, Dr. Sangrate extended plaintiffHafely’s medical leave to October 19, 201 5. (FAC, 1128.) Again, plaintiff Hafely called defendant Granite Rock’s dispatch office to inform the dispatcher that his medical leave was extended and faxed over the corresponding Work Status Repott. (1d) On or about September 24, 2015, Ow sent another letter to plaintiff Hafely indicating defendant Granite Rock considered plaintiff Hafely’s medical leave denied. (FAC, 1129.) Case No. 17CV316847 Order ._. OKOOONO‘MLUJN NNNNNNNNM-----.----.-_. OONO‘mAwN-‘OOOOQOKII4>WN-- On or about September 30, 2015, plaintiff Hafely sent an e-mail to Ow stating that he was advised by his attorneys not to fill out the Request for Leave ofAbsence form. (FAC, 1130.) On or about October 8, 2015, Ow sent a final letter to plaintiff Hafely terminating his employment, claiming plaintiff Hafely’s failure to complete the requested form resulted in an unexcused absence. (FAC, 1B 1 .) The termination caused plaintiff Hafely to have suicidal ideations. (Id) Throughout his employment as a Plant Operator for defendant Granite Rock, plaintiff Hafely worked twelve (12) to fifteen (1 S) hours per day. (FAC, 1132.) Plaintiff Hafely was regularly denied his meal and rest breaks approximately twice per week. (1d,) On October 5, 201 7, plaintiff Hafely commenced this action by filing a complaint. On November 29, 2017, plaintiff Hafely filed the operative FAC against defendant Granite Rock which asserts causes of action for: (1) Disability Discrimination (2) Failure to Engage in the Interactive Process (3) Failure to Accommodate (4) Retaliation (5) Failure to Prevent Discrimination and Retaliation (6) California Family Rights Act Interference (7) California Family Rights Act Retaliation (8) Adverse Employment Action in Violation of Public Policy On January 2, 2018, defendant Granite Rock filed an answer to plaintiff Hafely’s FAC. On November 21, 201 8, defendant Granite Rock filed the instant motion for summary judgment! adjudication. I. Phocedural violation. As a preliminary matter, the court notes that defendant Granite Rock’s memorandum of points and authorities exceeds the page limitations. California Rules of Court, rule 3.1 1 13, subdivision (d) states, in relevant part, “In a summaryjudgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.” Defendant Granite Case No. l7CV3 16847 Order H OOOQNOKIIAKIJN NNNNNNNNN-n-t-----n--u- OOVOMAWNHOWOOVQMbWNfl Rock’s memorandum of points and authorities is 25 pages. Defendant Granite Rock did not seek leave in advance from this court for a page extension as permitted by California Rules of Court, rule 3.1 l l3, subdivision (e). “A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1 1 13, subd. (g).) A court may, in its discretion, refuse to consider a late-filed paper but must indicate so in the minutes or in the order. (Cal. Rules of Court, rule 3.1300, subd. (d).) Defendant Granite Rock is hereby admonished for this procedural violation. Any future failure by defendant Granite Rock to comply with the California Rules of Court or rules of Civil Procedure may result in the court’s refusal to consider defectively filed papers. Plaintiff Hafely asks this court to disregard anything beyond page 20 of defendant Granite Rock’s memorandum of points and authorities. Should the court consider the entirety of defendant Granite Rock’s memorandum of points and authorities, plaintiff Hafely requests an opportunity to submit additional briefing to address any argument contained therein. The court will note that plaintiff Hafely’s memorandum of points and authorities in opposition consists of 15 pages (pages 8 - 22). The court notes further that plaintiff Hafely’s opposition brief responds to all the points raised in defendant Granite Rock’s opening brief, including points raised in pages 21 through 25. While it was a procedural violation for defendant Granite Rock to submit an opening brief in excess ofthe page limitations, the court finds plaintiffHafely has not suffered any prejudice. Plaintiff Hafely had five additional pages within which to respond, but elected not to do so. Plaintiff Hafely’s request to submit additional briefing is DENIED. II. Adequate notice ofmotion. In opposition to defendant Granite Rock’s motion, plaintiffHafely argues initially that he did not receive adequate notice ofthis motion because the motion was served 0n his counsel by overnight delivery which requires an additional two court days of notice. However, the proofof service attached to the motion indicates not only overnight delivery, but also personal service of the motion papers. Based on a valid proof 0f personal service, defendant Granite Rock’s motion is timely and afforded plaintiff with adequate notice. Case No. l7CV3 [6847 Order _ OWOONQMANM NNNNNNMNN-‘H-Ifl-----I-n- oodO’xmAwM--O\DOO\IO\UIAL.JN_ III. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s first cause of action [disability discrimination] and fourth cause of action [retaliation] is DENIED. “The specific elements ofa prima facie case [for discrimination] may vary depending on the particular facts. [Citations] Generally, the plaintiff must profide evidence that (1) he was a member ofa protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial ofan availablejob, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 3 l 7, 355 (Guz).) To establish a prima facie case ofdisability discrimination, a plaintiffmust prove that: “(1) plaintiff suffers from a disability; (2) plaintiffis a qualified individual; and (3) plaintiff was subjected to an adverse employment action because ofthe disability.” (Brundage v. Hahn (1 997) 57 Cal.App.4th 228 236 [internal citations, quotations marks and footnotes omitted].) “The FEHA makes it unlawful for an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” ([Gov. Code,] § 12940, subd. (h).)” (Scotch, supra, 173 Cal.App.4th at p. 1003.) “To establish a prima facie case of retaliation, the plaintiff must show (1) he 0r she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate reason for the adverse employment action. Ifthe employer produces a legitimate reason for the adverse employment action, the presumption 0f retaliation ‘drops out ofthe picture,’ and the burden shifts back te the employee to prove intentional retaliation.” (Akers v. County ofSarz Diego (2002) 95 Cal.App.4th 1441, 1453.) “California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims ofdiscrimination based on a theory ofdisparate treatment,” known as the McDonnell Douglas test. (Scotch v. Art Institute ofCalifomia (2009) 173 Case No. 17CV3 1 6847 Order \oooxloxmhwm... NNNNNNNNN~H-.-_._._.--- WNOMAWNflOOWNOM$WNflO Cal.AppAth 986, 1004 (Scotch).) Under the McDonnell Douglas test, “the plaintiff [first] has the burden of establishing a prima facie case ofdiscrimination. Second, ifthe plaintiff meets this burden, the employer must offer a legitimate nondiscriminatory reason for the adverse employment decision. Third, and finally, the plaintiff bears the burden of proving the employer's .proffered reason pretextual.” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.) “ ‘A defendant employer’s motion for summaryjudgment slightly modifies the order of these [McDonnell Douglas] showings.’ ” (Scotch, supra, 173 Ca1.App.4th at p. 1005.) To prevail on summaryjudgment, the defendant ethployer is “required to show either that (1) plaintiff could not establish one ofthe [prima facie] elements ofthe FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment.” (Avila v. ContinentalAirlines, Inc. (2008) 165 Ca1.App.4th 1237, 1247.) By defendant Granite Rock’s own recognition, plaintiff Hafely “asserts a variety of claims arising out ofthe termination of his employment, his June 12 and July 21, 201 5 write- ups, and the alleged denial of his request for leave to rest his back on June 3, 201 43" 1n the first cause of action for disability discrimination and fourth cause of action for retaliation, plaintiff Hafely alleges he was subjected to a number of“adverse employment actions including, but not limited to, failing to reasonably accommodate his disability, issuing baseless disciplinary write- ups, failing to adhere to his work restrictions, terminating his employment, and creating the overall hostile terms and conditions ofemployment.” (FAC, 1|43; see also 1191 .) Thus, for defendant Granite Rock to obtain summary adjudication of the first and fourth causes ofaction, defendant Granite Rock must identify each adverse employment decision and then offer a legitimate nondiscriminatory reason for each ofthe adverse employment decisions. Defendant Granite Rock begins with plaintiff Hafely’s termination. Defendant Granite Rock explains plaintiff Hafely went to see his doctor on or about August 20, 2015 and on August 21, 201 5, plaintiff Hafely’s psychiatrist took plaintiff Hafely off work for stress from August 21, ' See p. 13, line 26 to p. 14, line 2 of Defendant Granite Rock Company’s Memorandum of Points and Authorities in Support, etc. 8 Case No. |7CV3 16847 Order AWN OKOOONQU’I 11 12 l3 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2015 through September 1, 201 5. On or about September 1, 2015, plaintiff Hafely’s psychiatrist extended Hafely’s time offwork through September 17, 201 5. On September 4, 201 5, Ann Giusiana (“Giusiana”), defendant Granite R‘ock’s Human Resources representative, requested plaintiff Hafely complete and return “Request for Leave of Absence” form and “Certification 0f Health Care Provider,” by September 19, 2015.2 Hafely called and left a message with dispatch after hours on September 17, 201 5, stating that his leave had been extended to October 19, 2015.3 Giusiana called Hafely on September 18 and 22, 2015 and requested additional information regarding his leave extension and that the medical certification and leave of absence request forms be returned.“ Giusiana sent Hafely a letter on September 24, 2015 advising Hafely his time off was unapproved, requesting additional information regarding his leave extension, that the medical certification and leave ofabsence request forms be returned, and that failure to return the forms could result in the termination of his employments On September 30, 2015, Hafely notified Granite Rock that he would not return the “Request for Leave of Absence” form and “Certification of Health Care Provider” form.6 Hafely never submitted a “Request for Leave of Absence” form or “Certification of Health Care Provider” form to Granite Rock, and did not attempt to return the forms.7 Hafely understood that if he did not return the “Request for Leave of Absence” form or “Certification of Health Care Provider” form, his employment could be terminated.8 On October 8, 201 5, Granite Rock terminated Hafely’s employment for unexcused absence because he refused to return the medical certification and leave of absence forms related to his absenceg Based on the evidence above, defendant Granite Rock has met its initial burden by proffering a legitimate nondiscriminatory reason for its decision t0 terminate plaintiff Hafely’s 2 See Separate Statement ofUndisputed Material Facts in Support of Defendant’s Motion for Summary Judgment, etc. (“Granite Rock UMF”), Fact No. l9. 3 See Granite Rock UMF, Fact No. 20. 4 See Granite Rock UMF, Fact Nos. 2| - 22. 5 See Granite Rock UMF, Fact No. 23. 6 See Granite Rock UMF, Fact No. 25. 7 See Granite Rock UMF, Fact No. 26. 8 See Granite Rock UMF, Fact No. 27. 9 See Granite Rock UMF, Fact No. 28. Case No. I7CV3 16847 Order _. O\OOO\IO\UIJ>L'JN NNNNNNNNNr-I-a.-I.--.--_.._.._‘_. OOQQMAwN-‘OOOONOUIAWNw employment. “If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” (DeJung v. Super. Ct. (2008) I69 Cal.App.4th 533, 553, citing Cucuzza v. City ofSanta Clara (2002) 104 Cal. App. 4th 1031, 1038 (Cucuzza) and Guz, supra, 24 Cal.4th at p. 357.) In opposition, plaintiff Hafely raises a triable issue of material fact by producing evidence that the failure to complete a leave of absence form is not the true reason for his termination because other Granite Rock employees who suffered injury were not required to complete the form. Giusiana testified that Granite Rock’s policy requires that whenever an employee needs to take medical leave the employee must submit a completed Leave of Absence Request (“LOAR”) form and a medical certification form completed by their doctor.'° This interpretation of Granite - Rock’s medical leave policies was corroborated by Ow, Granite Rock’s Vice President of Human Resources, who asserted that Granite Rock requires employees to submit a medical cenification completed by their doctor for “any type ofmedical leave. ...”” Ow further testified that Granite Rock policy requires that whenever an employee needs leave for a non-work related serious health condition, the employee must submit a completed LOAR form and a medical certification form completed by their doctor. According to Ow, Granite Rock has never made any exception to this policy when the period of medical leave needed by the employee exceeds two weeks.” Tim Sanchez (“Sanchez”) worked with plaintiff Hafely at Granite Rock’s San Jose concrete plant.” Sanchez had to take approximately three consecutive months off from work to recover from a non-work-related back injury.” ln contrast to plaintiff, Granite Rock never ’° See Plaintiff’s Separate Statement ofAdditional Undisputed Material Facts in Opposition to Defendant’s Motion for Summary Judgment, etc. (“Plaintiff‘s AUMF”), Fact Nos. 1 - 2. " See Plaintiff‘s AUMF, FactNo. 3. '2 See Plaintiff‘s AUMF, Fact No. 4. '3 See Plaintiff‘s AUMF, Fact No. 5. '4 See Plaintiff‘s AUMF, Fact No. 6. 10 Case No. l7CV3 l6847 Order oooofloxuuhwwfl NNNNNNNNN--t»----.----_d mflmewN-‘OKOOONQUIAWN-- required Sanchez to return completed LOAR or medical certification fomas to authorize his medical leave. '5 In reply and at the hearing, defendant Granite Rock proffers evidence that Sanchez subsequently changed his deposition testimony. Sanchez now submits a declaration in which he states that he now recalls seeing and signing a LOAR and medical certification fomi.” While a party may not create a triable issue by submitting a declaration contradicting his own prior deposition testimony (see Gulhrey v. State ofCalifomia (1998) 63 Cal.App.4th 1 108, 1120), here we have differing testimony by a third party. The result is that the evidence is in conflict, thereby presenting a triable issue of material fact. For the court to accept Sanchez’s later declaration over his earlier deposition testimony necessarily requires an assessment of credibility, a function that this court cannot perform in ruling on a motion for summary judgment/ adjudication. Brian Lacerda (“Lacerda”) is another Granite Rock employee who worked with plaintiff at the San Jose plant.” Similar to Sanchez, Lacerda took approximately six consecutive months off to recover from a back injuly and was not required by Granite Rock to return completed LOAR and medical certification forms.” While Lacerda’s back injury was work-related and handled through the worker’s compensation system, according to Stephanie Kniffin, Granite '9 [In view ofRock’s policy still requires that he should have submitted a completed LOAR form. the triable issue raised above, the court need not address defendant Granite Rock’s argument in reply with regard to Lacerda.] As this evidence presents a triable issue of material fact with regard to whether defendant Granite Rock discriminated against plaintiff Hafely, the court need not decide whether defendant has met its initial burden of proffering a legitimate nondiscriminatory reason for each of the other adverse employment actions alleged by plaintiff Hafely in the first and fourth causes of '5 See Plaintiff‘s AUMF, Fact No. 7. '6 See 1|‘fl6 - 8 and 10 to the Reply Declaration ofTimothy J. Sanchez in Support of Defendants’ Notice ofMotion for Summary Judgment, etc. '7 See Plaintiff‘s AUMF, FactNo. 8. '3 See Plaintiff‘s AUMF, Fact No. 9. '9 See Plaintiff‘s AUMF, Fact No. 10. 1 1 Case No. 17CV3 16847 Order Ooooqauuhwmfl NNNNNNNNN--------‘_.___ OONOMAWN-Ooooflomhwmfi action. Code of Civil Procedure section 437C, subdivision (f) does not authorize partial summary adjudication. “The purpose ofthe enactment of Code of Civil Procedure section 437C, subdivision (f) was to stop the practice 0f piecemeal adjudication of facts that did not completely dispose of a substantive area.” (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.) Accordingly, defendant Granite Rock’s motion for summary judgment is DENIED. Defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s first cause of action for disability discrimination and fourth cause of action for retaliation is DENIED. IV. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s second cause 0f action [failure to engage in the interactive process] and third cause 0f action [failure t0 accommodate] is DENIED. “The FEHA makes it unlawful for an employer ‘to fail to engage in a timely, good faith, interactive process with the employee or applicant to detemiine effective reasonable accommodations, ifany, in response to a request for reasonable actommodation by an employee 0r applicant with a known physical or mental disability or known medical condition.” (§ 12940, subd. (n).) Section 12940, subdivision (n) imposes separate duties on the employer to engage in the ‘interactive process’ and to make ‘reasonable accommodations.’ [Citations.]” (Scotch, supra, 173 Cal.App.4th 986, 1003.) An employer’s failure to engage in this process is a separate FEHA violation. (Wysinger v. Automobile Club ofSouthern California (2007) 157 Cal.App.4th 413, 424 - 425.) “The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation] Ritualized discussions are not necessarily required. [Citati0n.]” (Wilson v. County ofOrange (2009) 169 Cal. App. 4th 1185, 1195.) The “obligation [to engage in the interactive process] is triggered by an employee or an employee’s representative giving notice ofthe employee’s disability and the desire for accommodation.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 .) “Although it is the employee’s burden to initiate the process, no magic words are necessary, and the 12 Case No. 17CV3 16847 Order O\OOO\IO\LlI-P-UJN~ NNNNNNNNN-n-‘Hflwu-n-a-p-fl OONQMAWNHOWOONOLh-wa-‘ obligation arises once the employer becomes aware of the need to consider an accommodation.” (Scotch, supra, 173 Ca1.App.4th at p. 1013.) “The FEHA imposes on the employer the obligation to make reasonable accommodation: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, 0r, except where based upon applicable security regulations established by the ‘United States or the State of California: [fl] [1]] (m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability ofan applicant or employee.” (§ 12940, subd. (m).) An employer is not required to make an accommodation “that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.” (Ibid.)” (Scotch, supra, 173 Cal.App.4th at p. 1003.) “The elements of a failure to accommodate claim are (l) the plaintiff has a disability under the FEHA, (2) the ~ plaintiffis qualified to perform the essential functions 0fthe position, and (3) the employer failed to reasonably aceommodate the plaintiff‘s disability. [Citation.]” (1d. at pp. 1009 - 1010.) Two- principles underlie a cause of action for failure t0 provide a reasonable accommodation. First, the employee must request an accommodation. (Prilliman v. UnitedAir Lines, Inc. (1997) 53 Cal.App.4th 935, 954, [62 Ca1.Rptr.2d 142].) Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. (See Jensen, supra, 85 Cal.AppAth at p. 266, 102 Cal.Rptr.2d 55.) While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54, [43 Ca1.Rptr.3d 874] (Gelfo).) (Moore v. Regents ofUniversily ofCaliforrzia (2016) 248 Cal.App.4th 216, 242.) “[t]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees” with the goal of “identify[ing] an accommodation that allows the employee to perform the job effectively.” (Ibid) The court noted that for the process to work “[b]oth sides l3 Case No. 17CV3 16847 Order OOWVOMAL~>M NNNNNNMMmt-‘fl-I-‘fl-flflHfl OONOWAWN-‘OOWQQMhWNfl must communicate directly, exchange essential information and neither side can delay or obstruct the process.” (Id‘ at pp. 1114-1 1 15, fn. omitted.) When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to “ ‘isolate the cause of the breakdown and then assign responsibility’ so that ‘[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility fof the breakdown.’ [Citation.]” (Id. at p. 1115, quoting Beck v. University 0f Wis. Bd. 0f Regents (7th Cir.1996) 75 F.3d 1130, 1135-1 137.) The court concluded that “an employer carmot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process.” (Barnett v. US. Air, Ina, supra, 228 F.3d at p. 1116, fn. omitted.) (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (Jensen).) Just as with the first cause ofaction, there are a number offactual instances which give rise to the second and third causes ofaction. Defendant Granite Rock argues it cannot be liable for either a failure to accommodate or a failure to engage in the interactive process because it either accommodated a11 of plaintiff‘s work restrictions, granted each request for leave supported by a doctor’s note, or was unaware of the need for further accommodation” “[A]ssuming the employee is disabled, the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that the employer did everything in its power to find a reasonable - accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Jensen, supra, 85 Ca1.App.4th at p. 263.) In opposition, plaintiff proffers evidence that raises a triable issue with regard to whether Granite Rock did everything in its power to find a reasonable accommodation prior to terminating him. On September 3, 2015, plaintiff put Granite Rock on notice that he had been diagnosed by his psychiatrist as clinically depressed and suffering from anxiety.“ On September 2° See Granite Rock UMF, Issue Nos. 2 - 3, Fact Nos. l - 9 and l9 - 28. 2‘ See Plaintiff’s AUMF, FactNo. ll. 14 Case No. 17CV3 16847 Order .._. NNNNNNNNN_._._._._.____._ mummwa-oowwmmbww- OOOOVQUIADJN 23, 2015, Kniffin communicated to Ow that plaintiff had filed a worker’s compensation claim for work-related stress.” Before terminating plaintiff, Granite Rock knew plaintiff was alleging that he was mentally disabled due to work-related stress.” Following its receipt ofplaintiff‘s Sept. 30, 2015 email in which he communicated his beliefthat he was mentally disabled due to work- related stress, Granite Rock did not reach out to plaintiff or his worker’s compensation attorney to ascertain what, ifany, reasonable accommodation it could provide him that would enable him to co.ntinue to perform the essential functions ofhisjob.“ Granite Rock did not consider offering plaintiff personal leave-as a reasonable accommodation, 0r any other reason-after he communicated that he was disabled due to stress.” Prior to terminating plaintiff‘s employment, Granite Réck did not consider or analyze how, ifat all, offering plaintiff personal leave may have imposed an undue hardship upon it.” In reply and at the hearing, defendant Granite Rock emphasized the fact that it did not receive any medical documentation to support Hafely’s leave after September 17, 2015. Nevertheless, as Hafely pointed out in opposition, defendant Granite Rock acknowledged communication from Hafely stating he was mentally disabled due to work-related stress. Under these particular factual circumstances, the court cannot state, as a matter of law, that summary adjudication is warranted. When the reasonableness ofthe parties’ conduct is at issue, the decision is better left to a trier of fact. Defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s second cause of action for failure to engage in the interactive process and third cause of action for failure to accommodate is DENIED. V. Defendant Granite Rock’s motion for summary adjudication 0f plaintiff Hafely’s ‘ fifth cause of action Ifailure to prevent discrimination and retaliation] is DENIED. A claim for “Failure to Prevent Harassment, Discrimination, and Retaliation” necessaxily depends upon establishing that harassment, discrimination, and/retaliation occurred in the first 22 See Plaintiff‘s AUMF, Fact No. l4. 23 See Plaintiff‘s AUMF, Fact No. l5. 2‘ See Plaintiff's AUMF, FactNo. 18. 2’ See Plaintiff‘s AUMF, Fact No. 22. 2° See Plaintiff‘s AUMF, Fact No. 26. 15 Case No. l7CV3 l 6847 Order OOOONQLIIAL’JNH NNNNNNNMN--.-___.-_‘~- ”NamwafloomVOM-hwmv- place. Under FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (See Gov. Code §12940, subd. (k).) A prerequisite to a finding of liability for the failure to take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Ca1.App.4th 280, 282 - 283; see also Scotch, supra, 173 Cal.App.4th at p. 102] .) Defendant Granite Rock argues that since there is no discrimination or retaliation in the first instance, there can be no claim for the failure to prevent it. In light of the rulings above, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s fifih cause of action for failure to prevent discrimination and retaliation is DENIED. VI. Defendant Granite Rock’s motion for summary adjudication 0f plaintiff Hafely’s sixth cause of action |California Family Rights Act interference] is DENIED. In 1991, the Legislature enacted the CFRA. (§ 12945.2.) The CFRA, which is contained within the FEHA (§ 12900 et seq.), “is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.” (Nelson v. United Technologies (1 999) 74 Ca1.App.4th 597, 606, 88 Ca1.Rptr.2d 239.) Generally, the CFRA makes it an unlawful employment practice for an employer of50 or more persons to refuse to grant a request by an employee to take up to 12 workweeks in any 12-m0nth period for family care and medical leave. (§ 12945.2, subds. (a), (c)(2)(A).) By prohibiting “employment discrimination based upon family and medical leave, the CFRA strengthens the FEHA'S general goal of preventing the deleterious effects of employment discrimination; and also furthers the CFRA'S specific goal 0f promoting stability and economic security in California families.” (Nelson v. United Technologies, supra, 74 Cal.App.4th at p. 610, 88 Ca1.Rptr.2d 239.) [Footnote omitted.] 16 Case No. l7CV3 16847 Order OWOOQQMAWNfl NNNNNNMNN-----.---u--.---_-._. OO\IO\Lh#wN-O\DOO\IO\U~ADJN# An interference claim under the FMLA (and thus the CFRA) does not involve the burden’shifting analysis articulated by the United State Supreme Court in McDonnell Douglas, supra, 411 U.S. 792, 93 S.Ct. I817, 36 L.Ed.2d 668. As stated in Bachelder v. America Wes! Airlines, Inc. (9th Cir.200]) 259 F.3d 1112, 1131 (Bachelder), “there is no room for a McDonnell Douglas type of pretext analysis when evaluating an ‘interference’ claim under this statute.” A violation of the FMLA “simply requires that the employer deny the employee's entitlement to FMLA leave.” (Xin Liu v. Amway Corp. (9th Cir.2003) 347 F.3d 1125, 1135.) (Faust v. California Portland Cement C0. (2007) 150 Ca1.App.4th 864, 878-879 (Faust).) Plaintiff‘s sixth cause of action alleges, in relevant part, “Plaintifftook medical leave to rest his back injury and took medical leave for stress. Defendant refused to grant Plaintiff‘s request for CFRA leave for his back injury, and ultimately terminated Plaintiffaftet he took medical leave for stress.” (FAC, 1111123 and 125.) In moving for summary adjudication ofthis cause of action, defendant Granite Rock apparently argues that it did not deny plaintiff’s entitlement to CFRA leave following his request for medical leave for stress because plaintiff Hafely did not respond to defendant Granite Rock’s requests for information to determine that the leave qualifies as CFRA leave. “An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth ofa child or for medical treatment. The employer should inquire further of the eihployee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken.” 17 Case No. |7CV3 16847 Order OOOONQLh-bswmfl NNNNNNNNN-n---------._‘- OOVQmAwN-‘OKOOONOLAAL'JN- (Faust, supra, 150 Cal.App.4th at pp. 879-880.) If the employer needs further infomation to determine whether the employee is requesting CFRA leave or the reason for the leave, it must request such infomation from the employee. (2 CCR §1 1091(a)(l); see also Avila v. ContinentalAirlines, Inc. (2008) 165 Cal.App.4th 1237, 1256.) Here, as outlined above, defendant Granite Rock proffers evidence that it contacted plaintiff Hafely from September 4, 18, 22, and 24, 201 5, requesting additional infomlation and completion of the medical certification form, but that plaintiff notified Granite Rock on September 30, 2015 that he would not return the requested forms. Admittedly, plaintiff did not submit the LOAR or requested medical certification form to defendant Granite Rock.” In opposition, plaintiff proffers evidence that he, nevertheless, submitted a “Work Status Report” t0 defendant Granite Rock on September 17, 2015 which indicated that his medical leave had been further extended.” Plaintiff also proffers evidence that he had previously, on September 3, 201 5, put Granite Rock on notice that he had been diagnosed by his psychiatrist as clinically depressed and suffering from anxiety.” As of September 23, 201 5, Granite Rock knew that plaintiff had filed a worker’s compensation claim for work-related stress.” If an employer tires an employee who has given the employer a facially valid certification in support ofa request for medical leave and the employee then sues for violation ofthe CFRA, the employer may not defend the suit by asserting that the employee, when requesting leave, provided insufficient evidence that the employee fell within the provisions ofthe CFRA. (Lonicki v. Sutler Health Central (2008) 43 Cal.4th 201, 21 1 (Lonicki).) Plaintiff‘s evidence at least presents a triable issue with regard to whether he has provided defendant Granite Rock with facially valid certification of his medical condition and, thus, whether plaintiff was entitled to CFRA leave.“ The court need not address defendant 27 See Granite Rock UMF, Fact No. 26. Z“ See Plaintiff‘s Separate Statement ofUndisputed Material Facts in Opposition, etc., Fact No. 24. 29 See Plaintiff‘s AUMF, Fact No. 1|. 3° See Plaintiff‘s AUMF, Fact No. 14. 3' “The employer may require the employee to submit a certification by the employee's health care provider, which ‘shall be sufficient if it includes all ofthe following: [11] (A) The date on which the serious health condition 18 Case No. |7CV3 16847 Order ._. OOOOVQLIIAWN NNNNNNNNN------l.--.-‘_._._.._. WNGMAwN-OKOOOQQm-DWN-‘ Granite Rock’s additional argument that plaintiff‘s request for CFRA leave to rest his back injury is time barred. Accordingly, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s sixth cause ofaction for California Family Right Act interference is DENIED. Vll. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s seventh cause of action [California Family Rights Act retaliation] is DENIED. A plaintiff can establish a prima facie case of retaliation in violation ofthe CFRA by showing the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave. (Rogers vt County ofLos Angeles (201 l) I98 Ca1.App.4th 480, 49]; see also Dudley v. Department ofTransportalion (200]) 90 Cal.App.4th 255, 260-261 .) “Once an employee ‘establishes a prima facie case,'the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] Ifthe employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “ 3:93:‘ “drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation. [Citation.]’ [Citation.]” (Faust, supra, 150 Cal.App.4th at p. 885.) Defendant Granite Rock’s arguments in support of summary adjudication ofthe seventh cause of action are the same arguments raised above with regard to the fourth and sixth causes of action. For the same reasons discussed above, defendant Granite Rock’s alternative motion for summary adjudication ofplaintiff Hafely’s seventh cause of action for California Family Right Act retaliation is DENIED. VIII. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s eighth cause of action [adverse action in violation 0f public policy] is DENIED. commenced. [1|] (B) The probable duration ofthe condition. [1|] (C) A statement that, due to the serious health condition, the employee is unable to perform the function [sic] ofhis or her position.’ (§ |2945.2, subd. (k)(l).)" (Lonicki, supra, 43 Ca|.4th at p. 208.) 19 Case No. l7CV3 l 6847 Order _ OOOQVQLh-AK'JN NNNNNNNNN---_--.-.-.-n-n WVOMAwN-OKOOOVQMAMN- Defendant Granite Rock contends plaintiff Hafely’s eighth cause of action for adverse employment action in violation of public policy is duplicative of his other claims and argues that since the other claims fail, so too does this eighth cause of action. However, in light ofthe rulings above, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s eighth cause 0f action for adverse employment action in violation of public policy is DENIED. IX. Defendant Granite Rock’s motion for summary adjudication 0f plaintiff Hafely’s claim for punitive damages is DENIED. “A party may move for summary adjudication as to one or more claims for damages ifthat party contends that there is no merit t0 a claim for damages, as specified in Section 3294 ofthe Civil Code. A motion for summary adjudication shall be granted only ifit completely disposes of a claim for damages.” (Code Civ. Proc. §437c, suhd. (0(1)) “Summary adjudication may also be granted as to a claim for punitive damages even though it does not dispose of an entire cause of action.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) 1110241, p. 10-12 citing Code Civ. Proc., §4é7c, subd. (f)(1); Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96-“[A] claim for punitive damages is one ofthe substantive areas which is properly the subject ofa motion for summary adjudication”) Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” A claim for punitive damages requires “clear and convincing evidence” that defendant has been guilty of“oppression, fraud or malice” in the commission ofa tort. [1]] Thus, defendants may seek summary adjudication either that: [1] some element ofthe tort claim cannot be established; or [2] defendants’ conduct does not constitute “oppression, malice or fraud” (as defined by Civil Code §3294(c)); or [3] plaintiff‘s proofis not “clear and convincing” as required by Civil Code §3294(a). (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 201 8) 111 0:42, p. 10-12.) 20 Case No. |7CV3 1 6847 Order OOOONO‘xUI-bWNfl NNNNNNNNN-‘Hu-HH_._.--- mflamth-‘OOWNOMAWN- 1n 1980, the Legislature added subdivision (b) to section 3294, to add a special qualification for employer liability for those damages. Subdivision (b) states, in relevant part, that an employer shall not be liable for punitive damages based on an employee's acts unless “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” The statute includes an additional qualification for corporate employers, who may not be liable for punitive damages unless “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice [is] on the part ofan officer, director, or managing agent ofthe corporation.” (White v. Ultramar, Inc. (1999) 2| Cal.4th 563, 566, fn. l.) Defendant Granite Rock contends it is not liable for punitive damages by arguing that Ow, to the extent she is an officer, director or managing agent of Granite Rock, had a legitimate reason for terminating plaintiff Hafely’s employment, i.e., Hafely refused to return the medical certification and leave of absence forms related to his absence.” However, as explained above, a triable issue of material fact exists with regard to whether defendant Granite Rock’s purported reason for terminating plaintiff Hafely’s employment was pretextual. Accordingly, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s claim for punitive damages is DENIED. Datedzlé {i iq E')_~_, n. \L-t,.~¢__\ Hon. Peter H. Kirwan Judge 0f the Superior Court 32 See Granite Rock UMF, Fact No. 28. 21 Case No. |7CV3 I6847 Order DOWNTOWN COURTHOUSE V 191 NORTH FIRST STREET SANJosE. CALIFORNIA 951 l3 CIVIL DIVISION SUPERIOR COURT 0F CALIFORNIA . . COUNTY 0F SANTA CLARA fi I L CCU” . n47 Ola RE: George Hafely vs Granite Rock Company 05F "a Case Number: 17cv316847 4W PROOF OF SERVICE was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. ‘ If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with ,Disabilities Act, please contact the Court Administrators office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the VoicefTDD California Relay Service (800) 73529221 DECLARATION OF SERVICE BY MAIL: I declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to each person whdse name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on . CLERK OF THE COURT, by Ingrid Stewart, Deputy. cc: Tracy C Law Bohm Law Group Inc 4600 Northgate Boulevard Suite 210 SACRAMENTO CA 95834 Brian Samuel Fong Four Embarcadero Center 17th Floor SAN FRANCISCO CA 941 11 Erik Michael Roper 2121 Natomas Crossing Dr Ste 200-117 Sacramento CA 95834 CW-9027 REV 12/08/16 PROOF OF SERVICE