Mil No 5 Re Ada Reasonable Accommodation

Motion

Cal. Super. - 6th Dist.January 2, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18CV321343 Santa Clara - Civil ; Electronically Filed Richard Alexander, Esq. (48432) . ra@alexanderlaw.com by Superior Court of CA, Nina G. Shapirshteyn, Esq. (251122) County of Santa Clara, ns@alexanderlaw.com on 8/5/2019 2:15 PM ALEXANDER LAW GROUP, LLP Reviewed By: A. Floresca 99 Almaden Blvd., Suite 575 Case #18CV321343 San Jose CA 95113 : Telephone: 408.289.1776 EEE Facsimile: 408.287.1776 Attorneys for Plaintiff Cinthia da Roza SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED CIVIL JURISDICTION CINTHIA DA ROZA, CASE NO. 18CV321343 Plaintiff, V. PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE REFERENCE TO DENNY'S INC., a corporation; SAGAR ADA REASONABLE FAMILY CORPORATION, doing TN Ca? Sk business as DENNY'S #7416; SHAPIRSHTEYN NATIONAL RETAIL PROPERTIES, LP, fka COMMERCIAL NET LEASE REALTY, LP, a limited partnership, and MOTION IN LIMINE NO. 5 DOES 1-20, Complaint Filed: January 2, 2018 Trial Date: August 5, 2019 Defendants Dept.: 21 Judge: Thang Barrett The evidence at trial will establish that, because plaintiff Ms. Da Roza’s right arm and shoulder are functioning at 50 - to 75 percent of normal due to her injury, she is currently working with pain and heavy fatigue. Plaintiff argues she should not be required to work through pain and should be compensated by Denny’s for the damage it caused. In a last-ditch effort to shift responsibility for plaintiff’s disabling injury to plaintiff's employer, defendant argues that plaintiff “should” be able to continue working by demanding workplace accommodation under the Americans with Disabilities Act and its California -1- MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION A. Fl resca 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 counterpart, the Fair Employment and Housing Act, (Govt. Code § 12900 et seq). As will be demonstrated below, such testimony is without foundation, speculative and marginally probative at best. Any probative value is substantially outweighed to the prejudice to plaintiff and the confusion to the jury, and therefore properly excluded under Evidence Code section 352. Plaintiff moves in limine for an order precluding any testimony or opinion as to whether plaintiff should have reasonable accommodation in the workplace and/or whether unknown and unidentified accommodations would permit plaintiff to work without pain. I. FACTUAL BACKGROUND. Plaintiff Cinthia Da Roza works as a Biology Instructional Technician at West Valley College, a position she held for a number of years before this injury. Physically similar to a job of a server at a restaurant, the Technician job requires constant moving around, preparing solutions and chemicals, lifting, stocking and moving heavy supplies. The job description requires her to lift 25 Ibs. While she returned to work three months post-injury, the return to work was based on economic necessity. She has been unable to perform many of her essential job duties, and those she does perform cause her substantial pain. Ms. Da Roza’s own perception that she is unable to perform her job properly because of her injuries is confirmed by plaintiff’s supervisor, Laura Hyatt, dean for the division of science and mathematics at West Valley College (who will testify at trial). Dean Hyatt testified in deposition that plaintiff's injury-related physical limitations are affecting her work performance; that she needs assistance in completing some of her tasks, and that students are leaving their own assigned tasks to assist Ms. Da Roza. Plaintiff's expert, Dr. Diana Bubanja, performed a functional capacity evaluation, which included simulating tasks Ms. Da Roza must do at work. Dr. Bubanja determined that Ms. Da Roza is working beyond her functional capacity - she should not be in this physically demanding job. Defense vocational rehabilitation expert Andrew O’Brien has opined-without any on MIL NO. 5TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 21 9 23 24 25 26 7 28 evidence-that Ms. Da Roza must ask her employer for reasonable accommodations, that if asked the employer will provide accommodations that will allow her to continue in her job, and that therefore plaintiff has suffered no loss of income or earning capacity. Defendant is, in effect, arguing that the onus is on plaintiff’s employer to provide accommodations to cure the limitations defendant caused and, therefore, that plaintiff should be precluded from claiming future wage loss or impaired earning capacity. IL ARGUMENT. Defendant seeks to inject a novel argument into this case. Plaintiff has not been able to find a single case where, in a personal injury action, Defendant was allowed to argue that Plaintiff’s employer should accommodate, and in essence pay for, the injury caused by the Defendant. i. There Is No Evidence That With “Reasonable Accommodation” Plaintiff Can Continue Her Current Employment, Without Pain. Defendant recently deposed Laura Hyatt, dean for the division of science and mathematics at West Valley College, and West Valley College HR specialist Le Quyen Lenshoek. Laura Hyatt testified that plaintiff has demonstrated that she has difficulty lifting her arm above shoulder level, she is aware plaintiff has shoulder pain, that plaintiff needs assistance from students completing her job functions: Q: Is her job performance good at this time? A. If she was more physically capable, it would be better. Q: Okay. What are her...physical limitations that are affecting her work performance? A. She needs assistance in completing some of her tasks, which involve some student work that could otherwise be - be just making the lab operate in a more efficient way. That students are leaving whatever tasks they have at the time to assist her without any sort of formal agreement about the assistance that she might need.” Hyatt Dep., 20:23-21:12, Ex. A to Shapairshteyn Decl. Ms. Hyatt testified she has not talked to plaintiff about accommodation and has not 3- MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 involved human resources to try to make any accommodations to Ms. Da Roza’s physical limitations; that Ms. Hyatt has asked plaintiff's immediate supervisor to have a conversation with plaintiff about accommodations, but no evaluation for accommodation has been done. Hyatt Dep., 22:22-24:6, Ex. A to Shapirshteyn Decl. West Valley College HR Specialist Ms. Lenshoek testified that when plaintiff returned to work to her former position without accommodations. Lenshoek Depo, 10:17-11:1, Ex. B to Alexander Decl. Ms. Lenshoek was only generally aware of what plaintiff’s job duties: Q.: Are you aware of what Mrs. Da Roza’s job duties are? Somewhat. Okay. What? Um, she is a lab technician, I believe. In that department. In what department? The biology o x o » o P And do you know what-what her job duties as a lab technician are? A. Other than the job description that’s posted, no. I believe she sets up the lab equipment for students in... Lenshoek Dep., 8:23-9:10, Ex. B to Shapirshteyn Decl. Since plaintiff’s return to work, Ms. Lenshoek has not become aware of any physical difficulties plaintiff has had performing her job duties. Lenshoek Dep, 11:12-15, Ex. B to Shapirshteyn Decl. Asked, hypothetically, if Ms. Da Roza reported she was having difficulty doing her job, “what would the college do to accommodate her or would they do anything?” Ms. Lenshoek responded, “we would go through the interactive process...and ask for supporting documentation to examine the essential job functions and explore reasonable accommodations.” Lenshoek Dep, 11:25-12:13, Ex. B to Shapirshteyn Decl. Asked if West Valley College has always been able to make some type of accommodations, Ms. Lenshoek responded, “So far.” Lenshoek Dep, 13:1-9, Ex. B to Shapirshteyn Decl. 4- MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There is no evidence in the record as to what reasonable accommodation West Valley College could make that would allow plaintiff to continue her job with pain and undue fatigue. There is no evidence that West Valley would be willing to make such accommodation, or that West Valley College is required to under California law. ii. To Allow Any Testimony or Argument That A Request For A Reasonable Accommodation Would Be Granted And Would Allow Plaintiff To Work Without Pain Invades The Exclusive Province Of The Court, Is Prejudicial, Will Mislead The Jury, And Has No Probative Value. “Reasonable accommodation” is a term of art, specifically defined and mandated by California’s Fair Employment and Housing Act (Govt. Code § 12900 et seq), and the specific requirements of Government Code § 12940 (m)(1), No expert on ADA or FEHA has been disclosed by either party. Defendant’s vocational rehabilitation expert, Andrew O’Brien has admitted he is not qualified to testify as to ADA requirements for “reasonable accommodation” in the workplace: 0. Do you intend to testify about what the ADA requires at trial? A. [ am not an ADA expert. | wasn’t hired to be an ADA expert. I was retained to determine whether or not in my opinion Miss Da Roza could continue to work with assistance, and, if not what would be the alternative opportunities. Q.: [ just want to clarify exactly the extent of your testimony. So you do not then intend to testify whether the ADA requires Ms. Da Roza’s employer to provide reasonable accommodations, correct? A... Tam not an ADA expert. So I won’t be testifying in that area. I wasn’t asked to consider that.” Dep. O’Brien, 43:22-44:20, Ex. C to Shapirshteyn Decl. He demonstrates only the most minimal understanding of the process of requesting accommodation yet proceeds to express his “general opinion” that somehow, somewhere, plaintiff can be accommodated. (See, Section iii, infra.) Since by his own admission he is not an expert in this area, any opinions he expresses are of necessity lay opinions and are therefore the -5- MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 21 5 23 24 25 26 27 28 exclusive province of the Court and jury. Where the trial is by jury all questions of fact are to be decided by the jury. (Evid. Code, § 312, subd. (a).) “All questions of law (including but not limited to questions concerning the construction of statutes and other writings, the admissibility of evidence, and other rules of evidence) are to be decided by the court. Determination of issues of fact preliminary to the admission of evidence are to be decided by the court...” Evid. Code, § 310, subd. (a). It is the court’s duty to instruct the jury on the law that applies to the case. CACI 5000. The law related to employer’s duty to provide reasonable accommodations is complex, leading to most attorneys practicing it to specialize in employment law. As a general proposition, to ask the jury to determine whether an employer is obligated to provide the accommodations there must be evidence. In this case specifically, defendant seeks to ask the jury to do so without any evidence of what accommodations are needed, what limitations need to be accommodated, how such limitations could be accommodated, and whether such accommodations would in fact allow Ms. Da Roza to work without pain. iii. There Is No Evidence West Valley College Would Accommodate Plaintiffs Limitations. The FEHA imposes on an employer an affirmative duty to reasonably accommodate an employee with a physical disability unless the accommodation would impose an undue hardship. Scotch v. Art Institute of California, 173 Cal. App.4th 986, 1003 (2009); 2 Cal.Code Regs. § 11068(a). Government Code § 12940(m) provides that it is an unlawful employment practice for an employer to “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiff’s disability. Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 250, 256.) A reasonable accommodation includes, without limitation, the following: “(1) Making existing facilities used by employees readily accessible to, and usable by, Ge MIL NO. 5TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 individuals with disabilities. (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App.4th 986, 1010. The FEHA defines an “[u]|ndue hardship” as “an action requiring significant difficulty or expense,” when considered in light of several factors. Government Code § 12926(u). Essentially, whether an accommodation is reasonable in a particular case includes an analysis of the specific circumstances, including the cost of the accommodation and the employer’s ability to pay for it. Here, defendant has no evidence of what accommodations are necessary or what would constitute an “undue hardship” for West Valley College. Mr. O’Brien has admitted that he has no evidence that West Valley College would-or could-accommodate plaintiff’s limitations: 0 Do you have any evidence that the accommodations West Valley College has to provide are in fact available? Bs Again I don't know what her situation is. I don't know what she needs because I haven't had the opportunity to one, interact with her, and get the other information. So no, I can't answer those questions. Q.: Do you have any evidence that providing accommodation for Ms. Da Roza is not going to be an undue burden for West Valley College? A.: Based upon my knowledge of what the Plaintiff is capable of doing I think it could be managed by utilizing student assistance and perhaps doing some modification of job duties. 0. So my understanding of what you are saying is that whatever assistance Miss Da Roza has in order to perform her job she can get through student assistance and what was the other part? A MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 A. Modifications to the work. Ou So let's go through that. What student assistance? A. I am sorry. How can I if I don't have any information to make any judgments except generally which is what I just did? Q.: That may be the case, but, Mr. O'Brien, I also have to ask you what your opinions are based on. So whether -- if you tell me you can't tell me that is fine. I just, you know, I have to ask. So -- A. Okay, but I already said I am not going to testify about ADA. I am simply going to indicate there needs to be a work place evaluation. And based upon that a decision can be made on whether or not she can be accommodated. I don't know what the results of that will be. Q. You don't know whether she can, in fact, be accommodated? A. I believe she can. I won’t know until the whole process is completed. No one will know. Dep. O’Brien, 51:8-52:20, Ex. C to Shapirshteyn Decl. (emphasis added). iv. Plaintiff Has No Duty to Mitigate by Demanding A Process That Could Lead to Her Termination. Defendant is, in essence, arguing that plaintiff cannot claim a future wage loss because she has failed to mitigate damages by formally demanding “reasonable accommodation” for her injury. But, by initiating the formal “interactive process” for reasonable accommodation, plaintiff is at risk of losing her job if she is still unable to perform her essential job functions. Once a disabled person asks for reasonable accommodation, and the employer provides whatever accommodation the employee determines is reasonable, the employee must be able to perform their essential job functions with the accommodation. Government Code, §12940(a)(1) ([the law] “does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability... where the employee, because of her or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations.”) An employer is permitted to discriminate or fire an employee with a disability if, after being given a reasonable accommodation, they still are unable to perform the B- MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 job’s essential functions. California law of mitigation does not require plaintiff to expose herself to unreasonable risk of harm. “The duty to minimize damages does not require an injured person to do what is unreasonable or impracticable, and, consequently, when expenditures are necessary for minimization of damages, the duty does not run to a person who is financially unable to make such expenditures.” Valencia v. Shell Oil Co. (1944) 23 Cal.2d 840, 846. * ‘The rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice and surrender important and valuable rights.” ” Valle de Oro Bank v. Gamboa (1994) 26 Cal. App.4th 1686, 1691. The burden of proving a plaintiff failed to mitigate damages is on the defendant. Lu v. Grewal (2005) 130 Cal. App.4™ 841, 849-850; Millikan v. American Spectrum Real Estate Services California, Inc. (2004) 117 Cal.App.4th 1094, 1105; Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 97. CACI 3930 Mitigation of Damages, provides that Defendant must prove plaintiff could have avoided the harm with reasonable efforts or expenditures. Plaintiff could not find any cases where this defense was used to require plaintiff’s employer to help in mitigating damages by accommodating Plaintiff’s disability. Generally, the defense is used in cases where Plaintiff fails to mitigate lost earnings by failing to resume employment when capable of doing so, such as when Plaintiff simply chooses not to work without any physical need/medical reason to do so. Here, Defendant has no evidence of what limitations can be accommodated: neither Defense expert, nor Plaintiff's employer testified to that. As defense expert O’Brien admitted, whether Plaintiff can be accommodated is speculation and should be excluded. v. Introduction of Testimony or Argument At Trial That Plaintiff's Non-Existent Request For Unknown Reasonable Accommodations For Unspecified Limitations Would Be Granted And Would Be Sufficient To Allow Her To Work Without Pain Will Cause Substantial Prejudice And Confuse The Issues. To inject the issue of employer’s duty to provide reasonable accommodations into this personal injury case would require an entire employment law/discrimination trial within a trial. No party is equipped to do this as no one designated an expert on FEHA/ADA. 9. MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The evidence is properly excluded under Evidence Code section 352. Any witness's opinion about whether plaintiff's request would be granted is at best marginally probative, and the fact that it is meant to influence the conclusions to be drawn from the fact-finder would cause substantial prejudice that outweighs any probative value the testimony might have. Moreover, such testimony will confuse the issues to be tried by suggesting to the jury that the witness's incompetent and irrelevant opinion is sufficient to meet defendant’s burden of proof when, in fact, solely the Court determines questions of law. III. CONCLUSION. Based upon the foregoing, it is respectfully submitted that the court should exercise its sound discretion pursuant to Evidence Code §352 and preclude defendant vocational rehabilitation expert Andrew O’Brien or others from referring to a request for reasonable accommodations. The contention is inconsistent with controlling case law, has no probative value, and there is a high probability that allowing the reference to occur will create substantial danger of undue prejudice to plaintiff, of confusing the issues, and of misleading the jury as to this Court's role as the sole and exclusive decision maker as to matters of law. DATED: August 5, 2019 ALEXANDER LAW GROUP, LLP ow ign - N "(i SHAPIRSHTEYN Attornéys for Plaintiff -10- MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF NINA SHAPIRSHTEYN I, NINA SHAPIRSHTEYN, declare the following: I. I am an attorney duly licensed to practice law before all courts of the State of California. My law firm, Alexander Law Group, LLP, is counsel for plaintiffs in this action. The following facts are within my personal knowledge and, if called as a witness herein, I can and will competently testify thereto. 2 Attached hereto as Exhibit A is a true and correct copy of the relevant excerpts of the deposition of Laura Hyatt, Ph.D. taken on July 9, 2019. 3. Attached hereto as Exhibit B is a true and correct copy of the relevant excerpts of the deposition of Le Quyen Lenshoek. taken on July 9, 2019. 4. On July 29, 2019, I took the deposition of defense expert Andrew O’Brien. The excerpts of the deposition of Andrew O’Brien attached hereto as Exhibit C accurately reflect his deposition testimony. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. DATED: August 5, 2019 ALEXANDER LAW GROUP, LLP fash < -11- MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION Exhibit A Laura A. Hyatt, Ph.D. July 09, 2019 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CINTHIA DA ROZA, Plaintiff, vs. Case No. DENNY'S, INC., et al., Defendants. 18CV321343 DEPOSITION OF LAURA A. HYATT, Ph.D. July 9, 2019 10:27 a.m. 140000 Fruitvale Avenue Saratoga, California REPORTED BY: Terry deDiego CSR No. 8978 U.S. LEGAL SUPPORT | www.uslegalsupport.com Laura A. Hyatt, Ph.D. July 09, 2019 Page 18 Page 20 1 only one person who was doing the job of actually three 1 A. They were, um -- 2 people. 2 MS. KRESSE: I just want to make an objection 3 Q. Okay. 3 that to the extent these are not related to the injury, 4 A. And so that one person covered as much as 4 T believe they are confidential. 5 humanly possible as regards to staffing, as it regards 5 MR. ALEXANDER: Objection on the grounds of 6 ordering, as it regards setting up, um, standard 6 privacy. 7 operating procedures, as regards arranging and planning 7 MS. HOBSON: Let's go off the record for a 8 orders and lab setup and things like that. 8 second. I don't like it when I find myself arguing on 9 That situation was caused by Cinthia being 9 the record. 10 unable to work. And so when she came back, some things [10 (Discussion off the record) 11 had changed because there was one person trying to 11 BY MS. HOBSON: 12 manage a whole lot. Um, and there was probably what 12 Q. Without delving into any privacy grounds, the 13 felt to Cinthia like a slightly newer equilibrium in the | 13 other issues that were not related to the injury that 14 workplace. 14 made it that Cinthia did not get this 1l-month full-time 15 Q. Okay. All right. 15 position, were any of those grounds that she would have 16 But it -- if I understand you correctly, 16 been terminated for? 17 correctly, Cinthia didn't lose out on a job promotion, 17 I mean, let me ask it this way. She is still 18 per se, the job just kind of equaled out so that people |18 working there; right? 19 shared the responsibilities more? 19 A. She is. 20 A. No. 20 Q. Okay. And to your knowledge, was her job 21 Q. Okay. 21 position -- was her job performance in her position -- 22 A. Um, there was -- there was a temporary 22 let me ask you currently. 23 full-time position who had been hired when Cinthia's 23 Is her job performance good at this time? 24 former co- -- so Cinthia used to work with Becky. Becky | 24 A. If she was more physically capable, it would be 25 went out on maternity leave, and then Cinthia went out 25 better. Page 19 Page 21 1 on disability leave. And someone was hired -- someone 1 Q. Okay. What are her -- that you have your own 2 was hired on a temporary basis to fill one of those 2 personal knowledge of -- 3 roles. 3 A. Uh-huh. 4 Q. Okay. 4 Q. -- what are her physical limitations that are 5 A. Okay. Once Cinthia came back, that temporary 5 affecting her work performance? 6 position was advertised for a full-time hire. That 6 A. She needs assistance in completing some of her 7 position is an 1l-month position. Cinthia's position is | 7 tasks, which involve some student work that could 8 a ten-month position. She applied for lateral transfer, | 8 otherwise be -- be just making the lab operate in a more 9 and for a variety of reasons we decided to interview 9 efficient way. That students are leaving whatever tasks 10 other people for that position. 10 they have at the time to assist her without any sort of 11 Q. Okay. Now -- 11 formal agreement about the assistance that she might 12 A. Is that clear? 12 need. 13 Q. It actually is, but I have to ask you the 13 Q. And I think you testified that -- oh, let me 14 follow-up question, which is you said for other -- 14 just ask you what specifically do you have knowledge 15 kor = 15 that the students are doing for her? 16 A. Uh-huh. 16 A. Bs I said earlier, students are helping her 17 Q. -- a variety of reasons, I can't remember 17 lift things, push carts, um, move things around, plug 18 exactly what you said, you decided to interview other 18 things in, um, and general lifting tasks. 19 people. 19 Q. All right. 20 Were any of the reasons vhy -- well, let me ask | 20 What type of things does Cinthia have to lift 21 you directly, why did Cinthia not get that job? 21 in her job? 22 A. There were other workplace issues, um, that 22 A. Large trays of sterilized media for growing 23 were unrelated to the incident, that made me reluctant 23 bacteria. Boxes of supplies and materials. Um, there 24 to add to Cinthia's responsibility in that position. 24 are, uh, stored disposable supplies that she has to sort 25 Q. Okay. What were the other workplace issues? 25 and move around and put in various locations. U.S. LEGAL SUPPORT | www.uslegalsupport.com 18 to 21 Laura A. Hyatt, Ph.D. July 09, 2019 Page 22 Page 24 1 Q. Okay. And if my understanding is correct, the 1 Q. When did you ask Leticia to do this? 2 most any of these things weigh is 20 pounds? 2 A. Uh, probably within a month or two of Cinthia 3 A. It could weigh more, um. I don't go down -- I 3 returning from her job. 4 don't have enough personal experience to tell you 4 Q. To your knowledge, that still hasn't been done, 5 exactly how much they weigh. 5 though, in the last year? 6 Q. And do you have an understanding as to why 6 A. Cinthia has not made that request. 7 Cinthia has had difficulty plugging things in? 7 Q. Okay. 8 A. The angle is difficult for her with her arm, as | 8 A. That's my knowledge. 9 well as we have some outlets that just require a lot of 9 Q. Have you -- since you have been at the college, 10 wrestling to get plugged in. It takes arm power. 10 have you ever supervised an employee who was terminated 11 Q. All right. 11 due to the fact that they physically -- that they had 12 Is it your understanding, do you have an 12 physical limitations? 13 understanding one way or the other of whether the 13 A. No. 14 college has any present intention of terminating 14 Q. Are you aware of whether Ms. Da Roza has missed 15 Ms. Da Roza's employment? 15 any work due to her injuries from the accident in 16 A. Not to my knowledge. 16 November of 2017 since her return in February of -- on 17 Q. Are you the person that would make that 17 February 12th of 2018? 18 decision or would it be Leticia or would it be both of 18 A. Yes. 19 you? 19 Q. Okay. What? 20 A. It would be both of us in -- with an advisement | 20 How much work has she missed, to your 21 with human resources. 21 knowledge? 22 Q. And have you involved human resources in any 22 A. I do not know how much work. She has missed 23 way at this point to try to make any accommodations to 23 work for doctors appointments and physical therapy. 24 physical limitations that Ms. Da Roza has? 24 Q. Okay. Since my records from you guys are a 25 A. No. 25 little bit older, I did not have the letter in there Page 23 Page 25 1 Q. And why not? 1 that is sent out every year saying that your job is 2 A. She has not made any such request to me. 2 going to be open when the school year starts again, that 3 Q. Is there a process for that? 3 she got it. 4 A. Yes. 4 Every year she gets a letter saying that once 5 0. And what is that process? 5 the summer is over, you can come back? 6 A. It -- I have another instructional lab 6 A. Yes, because she is a ten-month employee. 7 technician who went through this process, so Quyen 7 Q. Right. 8 Lenshoek who works here in the district is the person 8 A. She gets a letter that says, welcome -- welcome 9 who evaluates the employee's work space and area. And 9 back, here is your start dates, end dates. 10 works with the employee to find accommodations that will | 10 Q. To your knowledge, is she coming back after 11 help the employee complete the tasks in their job, um, 11 this summer? 12 given assistance, assistive technology of various kinds. | 12 A. To my knowledge, ves. 13 Q. Have you talked to Cinthia at all about that 13 Q. Okay. 14 process and about whether or not she wants to make a 14 MS. HOBSON: That's all I have. 15 report to HR and to get accommodations? 15 THE WITNESS: Okay. 16 A. I have not. 16 MR. ALEXANDER: No questions. Thank you, Dean. 17 Q. Okay. And is there any reason why? 17 MS. HOBSON: Thank you very much. 18 A. I have recommended that Leticia have that 18 THE COURT REPORTER: Counsel, do you want a 19 conversation with her as she is more of her supervisor 19 copy? 20 on time and task. And I believe Leticia may have had 20 MR. ALEXANDER: Yes. 21 that conversation with her. 21 (Deposition concluded at 10:57 a.m.) 22 Q. And why do you believe that? 22 23 A. Because I asked Leticia to. 23 24 Q. Okay. 24 25 A. And she -- 25 U.s. LEGAL SUPPORT | www.uslegalsupport.com 22 to 25 Exhibit B Le Quyen Lenshoek July 09, 2019 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CINTHIA DA ROZA, Plaintiff, vs. Case No. 18CV321343 DENNY'S, INC., et al., Defendants. DEPOSITION OF LE QUYEN LENSHOEK July 9, 2019 9:58 a.m. 140000 Fruitvale Avenue Saratoga, California REPORTED BY: Terry deDiego CSR No. 8978 U.S. LEGAL SUPPORT | www.uslegalsupport.com Le Quyen Lenshoek July 09, 2019 Page 6 Page 8 1 call admonitions. They are basically ground rules so I 1 A. They have changed. Currently I am the leaves 2 get your best testimony today. 2 accommodation and injury person responsible for the 3 First is that you just took an cath. That oath | 3 entire district. 4 has the same force and effect as if you were testifying 4 Q. And how long have you been -- has that been 5 in a court of law and carries with it the same penalties | 5 your role? 6 of perjury. 6 A. About six years, five to six years. 7 Do you understand that? 7 Q. So you were in that position in November of 8 A. Yes. 8 2017; correct? 9 Q. Second, the lady to your right, to my left, is 9 A. Correct. 10 called the court reporter, and she takes down everything | 10 Q. Okay. All right. 11 that any of us say in the room. You can say can we go 11 Have you ever met Cinthia Da Roza? 12 off the record for any reason at all, whether it is to 12 A. I believe once. 13 talk to your attormey or whether it is just to go to the |13 Q. Do you remember when that was? 14 ladies' room or walk around. But you need to say let's | 14 A. After her medical leave or when she dropped off 15 go off the record, otherwise everything is taken down. 15 some paperwork. 16 The court reporter can only take down our 16 Q. Okay. And are you speaking to the medical 17 verbal responses. She can't take down nods of the head. | 17 leave that she took after her accident in November of 18 "Uh-huhs" and "uh-uhs" come out a little bit weird 18 2017 -- 19 sometimes. 19 Correct. 20 If you point with your fingers, which I don't 20 Q. Okay. You've got to let me finish. 21 think is going to happen today, she can't take that 21 A. Oh. 22 down. So I just need verbal responses. 22 Q. That's okay. Okay. 23 Also, sometimes my questions get long, just 23 Are you aware of what Mrs. Da Roza's job duties 24 like my admonitions. You need to try to wait until I 24 are? 25 finish the question because she can't take down both the | 25 A. Somewhat. Page 7 Page 9 1 question and the answer at the same time. Okay? Okay? 1 Q. Ckay. What? 2 A, Yes. 2 A. Um, she is a lab technician, I believe. In 3 Q. Okay. If you don't understand one of my 3 that department. 4 questions, just tell me "I don't understand" and I will 4 Q. In what department? 5 ask you a new question. Okay? 5 A. The biology. 6 A. Okay. 6 Q. 2nd do you know what -- what her job duties as 7 Q. I am entitled to your best estimate if you have | 7 a lab technician are? 8 one. But I don't want you to guess. 8 A. Other than the job description that's posted, 9 Do you understand the difference between an 9 no. I believe she sets up the lab equipment for 10 estimate and a guess? 10 students in -- 11 A. Yes. 11 0. All right. 12 Q. Okay. All right. 12 Are you aware of how long Ms. Da Roza was out 13 Is there any reason why, healthwise or anything | 13 on medical leave after the November 2017 accident? 14 like that, that you can't give your best testimony 14 A. Yes, based on her leave request. 15 today? 15 Q. Okay. And how long was she out? 16 A. No. 16 A. The original request was from November 27, '17 17 Q. Okay. I noticed a -- what is called a person 17 through February 25th, '18. 18 most qualified or most knowledgeable deposition today, 18 Q. And was -- were there additional requests after 19 and you are being produced on behalf of West Valley 19 that original one? 20 College. 20 A. No. 21 What is your position at the college? 21 Q. Okay. So the entire time that she was off on 22 A. I am an HR specialist. 22 medical leave was 11/27/17 to 2/25/18; is that correct? 23 Q. And how long have you been in that role? 23 A. No, she returned early. 24 A. About 13 years. 24 Q. Okay. When did she return? 25 Q. And what are your job duties generally? 25 A. February 12th, '18. U.S. LEGAL SUPPORT | www.uslegalsupport.com 6 to 9 Le Quyen Lenshoek July 09, 2019 T Page 10 | Page 12 1 Q. All right. | 1 longer lift one of her arms over her head and she was 2 Do you have any information as to any of the | 2 having some difficulty putting test tubes up high on the 3 specifics of the accident that she was involved in? | 3 shelf, something like that, what would the college do to 4 A. Very little. | 4 accommodate her or would they do anything? 5 Q. Okay. What is your understanding of what 5 MS. KRESSE: I don't know if Quyen has specific 6 happened? | 6 knowledge about that since she doesn't work in the lab. 7 A. She broke I believe it was humerus by falling | 7 THE WITNESS: But we would go through the 8 in the parking lot and had to have surgery. | 8 interactive process -- 9 Q. When Ms. Da Roza returned to work on 2/12/18, | 9 BY MS. HOBSON: 10 were you involved in any way with her return? | 10 Q. Okay. 11 A. Yes. [11 A. -- and ask for supporting documentation to 12 Q. How? | 12 examine the essential job functions and explore 13 A. We request that a doctor's medical note [13 reasonable accommodations. 14 releasing her to return to work be provided normally ten | 14 Q. And are you the one that does that process when 15 days prior, so that I could work with the department in |15 somebody does have difficulty doing their job? 16 transitioning her back to work. | 16 A. Yes, I am, 17 0. And do you recall whether there were any | 17 Q. Okay. 18 accommodations that had to be made for Ms. Da Roza on | 18 A. I am the first point of contact. 19 her return to work on February 12th, 2018? 19 Q. And have you had that with other employees 20 A. No. 20 where they came back to work after a medical leave? 21 Q. No, you don't recall or no, there were no 21 I am not going to ask specific questions about 22 accommodations? Bad question. | 22 anybody's -- I don't want to invade anybody's privacy. 23 A. No, there were no accommodations. 23 But have you had occasions where you had to 24 Q. Okay. Did Ms. Da Roza return to the same job 24 make accommodations for physical limitations? 25 position that she had prior to her medical leave? 25 A. Yes. Page 11 | Page 13 1 A. Yes, that I am aware of. (1 Q. Okay. Have there been situations in the past, 2 Q. Do you know how many lab technicians there are | 2 since you have been in this position at the college, 3 in the department that she was working? 3 where you had to terminate an employee because their 4 A. Not for sure, but I believe perhaps two to | 4 physical disabilities made it impossible to continue 5 three, 5 their job? 6 Q. And are you aware whether -- are you aware | 6 A. No, not that I am aware of. 7 whether there is any type of hierarchy, like there's a | 7 Q. So you have always been able to make some type 8 senior position and lower positions as to the lab tech? | 8 of accommodations? 9 A. No. 140 A. So far. 10 Q. No, you are not aware or there is not? | 10 Q. Okay. Are you aware of any intention on the 1! A. No, I am not aware. 11 part of the college at the present time to terminate 12 Q. Okay. Have you become aware at any time since | 12 Ms. Da Roza? 13 Ms. Da Roza returned to work on 2/12/18 of any physical 13 A. No. 14 difficulties she has had performing her job duties? | 14 Q. Have you heard any -- from any source that she 15 A. No. | 15 is not doing a good job -- 16 Q. Has she asked for any additional medical leave | 16 A. No. 17 since February of 2018 when she returned? | 17 Q. -- at her job? 18 A. No. {18 A. No. 19 Q. What is the college's position regarding making | 19 Q. Have you heard from anyone that she physically 20 reasonable accommodations for employees that have | 20 has been unable to do her job? 21 disabilities? 21 A. No. 22 I know that's a very broad question. So maybe | 22 MS. HOBSON: That's all I have. 23 let me -- before I get the objection, let me reask a 23 MR. ALEXANDER: No questions. 24 better more specific question. 24 MS. HOBSON: Okay. Thank you. 25 If Ms. Da Roza reported that she could no | 25 THE COURT REPORTER: Counsel, do you want a | U.s. LEGAL SUPPORT | www.uslegalsupport.com 10 to 13 Exhibit C IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA CINTHIA DA ROZA, Plaintiff, Vs. CASE NO. 18CVv321343 DENNY'S, INC., et al., Defendants. f r ~ ~ e r n r rt n r N r e r DEPOSITION OF ANDREW O'BRIEN, MS, CRC DATE: July 29, 2019 TIME: 1:13 p.m. LOCATION: Alexander Law Group 99 Almaden Blvd. Suite 575 San Jose, CA 95113 REPORTED BY: BETTY A. SALOIS, RPR, Certified Shorthand Reporter License Number 4768 SALOIS & ASSOCIATES Certified Shorthand Reporters 111 N. Market St., Suite 300 San Jose, CA 95113-1112 (408) 279-DEPO Basalois@salois--associates.com Salois & Associates - (408) 279-3376 1 accommodations, correct? 1 process, find out what the needs are, and depending upon 2 A. Idon't think that is the case. 2 what they are probably get Dr. Hyatt involved and then a 3 Q. So you are saying that in a situation where an 3 necessary specialist and physicians to determine if the 4 employee -- where an employer provides reasonable 4 request is appropriate. 5 accommodations but that employee is still unable to 5 Q. How long does this process take? 6 perform her essential duties the employer has to keep 6 A. Takes what it takes. I am not sure there is 7 heron? 7 any particular time frame. 8 A. That is a whole different question. The way 8 Q. In your experience do you know? 9 you asked the question was if provided reasonable 9 A. About how long does it take? 10 accommodation can they fire her. The answer is no. 10 Q. Yes. 11 With reasonable accommodation she still can't perform 1 A. It actually takes -- it varies depending upon 12 the task, then yeah, they can let her go. 12 the disabling condition. 13 Q. The employer is allowed to let the employee go 13 Q. Could it take a year or two? 14 when even with reasonable accommodations the employee is | 14 A. Ican'timagine it taking that long. Itis 15 unable to perform her essential duties without 15 possible. 16 endangering her health or safety, correct? 16 Q. You mentioned that Ms. Da Roza should ask for 17 A. Yes. That is true. 17 reasonable accommodations, but employers who are aware 18 Q. What are -- how are essential functions 18 of an employee's disability have an affirmative duty to 19 defined? 19 make reasonable accommodations for such disabilities, 20 A. Oh, boy. Generally speaking an essential 20 true? 21 function is something that is integral and necessary to 21 A. Once the request is made, yes. 22 do the work. 22 Q. Without the request employers who are already 23 Q. For Ms. Da Roza's position as a lab technician 23 aware whether from a third party or otherwise of an 24 what are the essential job functions? 24 employee's disability have an affirmative duty to make 25 A. Tam not sure. I would have to look at the job 25 reasonable accommodations for such disability, true? 41 43 Salois & Associates - (408) 279-3376 Salois & Associates - (408) 279-3376 1 description. It should be delineated there. 1 A. 1think that the, as I understand it, the 2 Q. So anything that is in the job description? 2 employee has to initiate the process. 3 A. No, normally the job description will identify 3 Q. Where does your understanding come from? 4 the essential tasks. 4 A. Experience. 5 Q. Do you -- as you sit here today are you able to 5 Q. Have you read the ADA? 6 point to any essential job functions in Ms. Da Roza's 6 A. I have, but not recently. 7 job? 7 Q. Do you intend to testify about what the ADA 8 A. No, not without looking at the job description 8 requires at trial? 9 and thinking about it. 9 A. Iam not an ADA expert. I wasn't hired to be 10 Q. Let's do that. Is it part of your file? 10 an ADA expert. I was retained to determine whether or 11 A. Job description? 11 not in my opinion Miss Da Roza could continue to work 12 Q. Yes. Have you reviewed it? 12 with assistance, and, if not, what would be the 13 A. Idon't recall that I have actually reviewed 13 alternative opportunities. 14 the job description from human resources. 14 Q. I just want to clarify exactly the extent of 15 Q. Isn't it something that would be important for 15 your testimony. So you do not then intend to testify 16 you to do to understand essential job functions? 16 whether the ADA requires Ms. Da Roza's employer to 17 A. Yes, ma'am, if I had had time to get through 17 provide reasonable accommodations, correct? 18 it, yes. 18 A. Iam not an ADA expert. So I won't be 19 Q. You mentioned that Ms. Da Roza should ask for 19 testifying in that area. I wasn't asked to consider 20 reasonable accommodations. If she were to start that 20 that. 21 process which individuals at West Valley College would 21 Q. Will you be testifying that any law whether it 22 be addressing whether she can receive reasonable 22 is ADA or any other law requires Ms. Da Roza's employer 23 accommodations? 23 to provide any sort of accommodation? 24 A. I think she would start with the human 24 A. Idon't think so. 25 resources person who would then start an interactive 25 Q. Do you have any criticism of Ms. Da Roza's 42 Salois & Associates - (408) 279-3376 44 Salois & Associates - (408) 279-3376 11 of 24 sheets Page 41 to 44 of 70 07/29/2019 09:15:59 PM 1 Q. Right. So as you sit here today you do not 1 Q. Who is the person that makes the decision? 2 know whether once Miss Da Roza asks for accommodations, | 2 A. I assume it is going to be, ultimately it is 3 you do not know whether they will be provided, correct? 3 going to be Dr. Hyatt. 4 A. Not for certain, but reading Dr. Hyatt and the 4 Q. Now, can you tell me for every limitation that 5 human resources my feeling is that they probably would 5 Ms. Da Roza has what accommodation her employer can 6 do what they can to keep her. She has been there 6 make? 7 18 years. 7 A. No. Ican't. 8 Q. What is your feeling based upon? 8 Q. Do you have any evidence that the 9 A. Their testimony and just the fact that they 9 accommodations West Valley College has to provide are in 10 indicated they worked with somebody before who needed 10 fact available? 11 assistance because of a disability. I would think it is 1 A. Again I don't know what her situation is. I 12 in the college's best interest to take care of their 12 don't know what she needs because I haven't had the 13 employees. 13 opportunity to one, interact with her, and get the other 14 Q. Anything else? 14 information. So no, I can't answer those questions. 15 A. No. 15 Q. Do you have any evidence that providing 16 Q. What is it, what is the situation you are 16 accommodation for Ms, Da Roza is not going to be an un 17 talking about before where the college provided 17 due burden for West Valley College? 18 accommodations to the employee? 18 A. Based upon my knowledge of what the Plaintiff 19 A. It was referenced, I believe, in Dr. Hyatt's 19 is capable of doing I think it could be managed by 20 deposition. She did not provide any name or specific 20 utilizing student assistance and perhaps doing some 21 information. 21 modification of job duties. 22 Q. That time that the college provided 22 Q. So my understanding of what you are saying is 23 accommodation you don't know what type of disability the |23 that whatever assistance Miss Da Roza has in order to 24 employee had, correct? 24 perform her job she can get through student assistance 25 A. Yes. Ithink Dr. Hyatt was very careful to 25 and what was the other part? 49 51 Salois & Associates - (408) 279-3376 Salois & Associates - (408) 279-3376 1 maintain privacy. 1 A. Modifications to the work. 2 Q. My question is you do not know what type of 2 Q. So let's go through that. What student 3 disability it was, correct? 3 assistance? 4 A. No. Idon't. 4 A. Tam sorry. How can Iif I don't have any 5 Q. You do not know the extent of accommodations 5 information to make any judgments except generally which 6 that was required, correct? 6 is what I just did? 7 A. Correct. 7 Q. That may be the case, but, Mr. O'Brien, I also 8 Q. You do not know how much they cost in that 8 have to ask you what your opinions are based on. So 9 case, correct? 9 whether -- if you tell me you can't tell me that is 10 A. Ido not. 10 fine. I just, you know, I have to ask. So -- 1" Q. You do not know how the accommodations in this 1 A. Okay, but I already said I am not going to 12 case will need to be different from that other case that 12 testify about ADA. I am simply going to indicate there 13 we don't know anything about, correct? 13 needs to be a work place evaluation. And based upon 14 A. I assume they would be different. Every case 14 that a decision can be made on whether or not she can be 15 is different. 15 accommodated. I don't know what the results of that 16 Q. Doctor Laura Hyatt did not actually state in 16 will be. 17 her deposition that accommodations will, in fact, be 17 Q. You don't know whether she can, in fact, be 18 provided to Miss Da Roza, correct? 18 accommodated? 19 A. Yes, but again Plaintiff hasn't made a request 19 A. I believe she can. I won't know until the 20 or gone through an evaluation so that Dr. Hyatt would 20 whole process is completed. No one will know. 21 know whether she could or couldn't agree to it. 21 Q. So until she goes through the interactive 22 Q. Le Quyen Lenshoek did not state that 22 process with the college you are not able to tell 23 accommodations would, in fact, be provided, correct? 23 whether the college can accommodate her, correct? 24 A. That is true. But I don't know if she is the 24 A. Based on what I know now that is correct. 25 person that makes the decision. 25 Q. Do you have an opinion today regarding what 50 Salois & Associates - (408) 279-3376 52 Salois & Associates - (408) 279-3376 13 of 24 sheets Page 49 to 52 of 70 07/29/2019 09:15:59 PM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Santa Clara, State of California; my business address is 99 Almaden Blvd, Suite 575, San Jose, California 95113. I am a citizen of the United States of America, over the age of 18 and not a party to the within action. On this date, I served the foregoing on the following parties in the manner shown. X Susan Hobson Hollingshead & Associates 3880 Atherton Road Rocklin, CA 95765 Attorneys for Defendant Sagar Family Corporation (BY FAX) I am readily familiar with the firm’s practice of facsimile transmission; on this date the above-referenced documents were transmitted, the transmission was reported as complete and without error and the report was properly issued. (BY MAIL) I am readily familiar with the firm’s practice for the processing of mail; on this date, the above-referenced documents were placed for collection and delivery by the U.S. Postal Service following ordinary business practices. (BY OVERNIGHT DELIVERY) I am readily familiar with the firm’s practice for the processing of documents for delivery services; on this date, the above-referenced documents were placed for collection and delivery following ordinary business practices. (BY ELECTRONIC FILING) On this date I provided the documents(s) listed above electronically through the Court’s electronic filing service provider pursuant to the instructions on that website. (BY E-MAIL) On this date, the above-referenced documents were converted to electronic files and e-mailed to the addresses shown. (BY MESSENGER SERVICE) I caused the above documents to be delivered by a professional messenger service. Federal: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. State: I declare the truth of the foregoing under penalty of perjury pursuant to the laws of the State of California. Dated: August 5, 2019 $b re (/ Ji - Pamela Stevens -12- MIL NO. 5 TO PRECLUDE REFERENCE TO ADA REASONABLE ACCOMODATION