Rebecca Quinones vs. Arrowhead Products Corporation

Reply Other

Cal. Super. - 4th Dist.August 14, 2017

JAMES J. MCDONALD, JR., SBN 150605 BRET MARTIN, SBN 304658 FISHER & PHILLIPS LLP 2050 Main Street, Suite 1000 Irvine, California 92614 Telephone: (949) 851-2424 Facsimile: (949) 851-0152 Attorneys for Defendants ELECTRONICALLY FILED Superior Court of California, County of Orange 08/07/2018 at 05:32:00 FM Clerk of the Superior Court By Monique Ramirez, Deputy Clerk ARROWHEAD PRODUCTS CORPORATION; ARROWHEAD PRODUCTS CORPORATION, WHICH WILL BE DOING BUSINESS IN CALIFORNIA AS DELAWARE ARROWHEAD CORPORATION; and INDUSTRIAL MANUFACTURING COMPANY LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER REBECCA QUINONES, an individual, Plaintiff, Vv. ARROWHEAD PRODUCTS CORPORATION, doing business as Arrowhead Products, a Delaware corporation; ARROWHEAD PRODUCTS CORPORATION, WHICH WILL BE DOING BUSINESS IN CALIFORNIA AS DELAWARE ARROWHEAD CORPORATION, doing business as Arrowhead Products Corporation, a Delaware corporation, INDUSTRIAL MANUFACTURING COMPANY LLC, a Delaware limited liability company, and DOES 1-50 inclusive, Defendant. 11 I" CASE NO.: 30-2017-00937585-CU-WT-CIC [Unlimited Jurisdiction] Assigned for all purposes to the Honorable Nathan Scott, Dept. C12 DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES (Filed concurrently with Reply Separate Statement; Supplemental Declaration of James J. McDonald; ~~ Evidentiary ~~ Objections to Declaration of Rebecca Quinones, and Evidentiary Objections to Declaration of Michael C. Robinson) DATE: August 13,2018 TIME: 2:00 p.m. DEPT: C12 Reservation No.: 72811887 Complaint Filed: August 14, 2017 Trial Date: January 28, 2019 DEFENDANTS’ MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 TABLE OF CONTENTS Page E INTRODUCTION ,vvrnrnsnsvsarsnssenseressorsaresassnenrovesonsonnsansnssenssnenes ss 26a ssa ssa5 458355 SHoessaes 1 II. PLAINTIFF'S FMLA/CFRA CAUSES OF ACTION FAIL BECAUSE PLAINTIFF WAS NOT ENTITLED TO FMLA/CFRA LEAVE......ccccovviivininininnens 1 A. Plaintiffs “Good Faith Belief” That She Was Married When She Commenced Her Leave Is Not the Same as Actually Being Married .................. 2 B. Defendants Had No Obligation to Investigate Whether Plaintiff Was Really Married After She Lied and Said She Was ........ccoccivrviniieninisennncnnnnncs 3 Cs Plaintiff Was Never Informed That Her Request for FMLA/CFRA Leave WEE ADPTOVEL vsumussnsnrnsomss ss ss om sos ene iss ms ys cs spay resssses sosmympposmgnavorsmse 3 D. Plaintiff's Getting Married After Being Told She Did Not Qualify for OO Lo Na 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FMLA/CFRA Leave Did Not Retroactively Qualify Her Prior Absences AS PrOtECTEA .ovvvvveretireseeresseeerereeeeerseseesrensessnsssssiesessesssessasressrsrssssrsesersnee E. Defendants Had No Obligation to Retroactively Designate Plaintiff’s Unauthorized Absences as Personal Leave.....ccvvvviveereeeieieerennnneeeneeens E. Defendants Had No Obligation to Allow Plaintiff to Retroactively Designate Plaintiff's Unauthorized Absences as Vacation.................. G. Defendants Did Not Fail to Apply Their Attendance Policy Properly H. Plaintiff Cannot Rely on Equitable Estoppel As She Applied for Leave UNAET FalSE PIELEINSES vuvvvvrevrrereerereeeerssersarsesrssserssresrsresteessessssosssrssssesess II. IV. PLAINTIFF'S DISABILITY DISCRIMINATION CLAIMS FAIL BECAUSE PLAINTIFF CANNOT SHOW THAT SHE WAS TERMINATED BECAUSE OF HER ASSOCIATION WITH MR. QUINONES, AND THE LAW DOES NOT REQUIRE ACCOMMODATION OF THE DISABILITIES OF AN EMPLOYEE’S “ASSOCIATES .icicniisciucsesssisnssncssasrassnssassasssrsssssivonsessossistsssassessesssroses A. Plaintiff Has Shown No Motive on the Part of Defendants to Discriminate Against Plaintiff On Account of Her Association with Mr. Quinones................. B. Plaintiff Only Argues That Defendants Failed to Accommodate Her Need for Leave to Care For Her Fiance, Yet There Was No Legal Duty to Do S000 um SO SS AR AE es sn RAR STA I SAE SEATS NSE C. Even If There Was a Duty to Accommodate, Plaintiff Did Not Request an CE OTIITIO EON 0. mi isisiss35655450550 58 RRS 5 HH HS HS HAAR SR OY ERS GFA Tr D. Forgiveness of Prior Misconduct Is Not A Reasonable Accommodation In ATTY EVEL sssmisnsmmmmsonnsonmssemmssvsatr as saenpssss sans oy suvgmevss eensiss rab 6b 50s 0603 BARS E. It Was Not “Pretext” for Defendants to Disregard the Collective Bargaining Agreement and Retroactively “Re-Designate” Plaintiff's 23 Unauthorized Absences as Personal Leave or Vacation......ccccovevvrvveeeesrencveneneens CON CLUSION oot vevsreseeseaesessesessseesssersnsssssssssasessesraaetesrareraaeetserareneesesesessseseres i DEFENDANTS’ MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 0 NN NN n n A Oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Kralik v. Durbin (3d Cir. 1997) 130 FA TE uss csssnsssssssssnessuonsossmsrsesnpsnvasnasnsrnsssussasaysssnssnasanpanomyesapsseovnosnnansansdsinis 350455 £1550 75555 11 Larimer v. International Business Machines Corp. (7th Cir. 2004) FTO FB 1698. cuvvenrinsssmronsomnmsnsronsonsosnsenmsmne ned iis i556 abies 80am os ai NA SASS AREER COTTA GETIVELSRY 7,8 Loomis v. Honda of America Mfg. Inc. (S.D. Ohio 2003) 2003 WL 133254 ooo eeree creer este eres sree sarees esate sss esbae ahs e sate sare n seer as ebs sbeebs shea be sabe e ree rnen 3 Reed v. Lear Corp. (E.D. Mo. 2003) 2003 WI 312907 .csrvssmsosnernrorsanmpanmssmrsnearesassuasessns antes sssessd 558555 S43 RATE H FINA AUSHETIT SORES 6 Sanders v. City of Newport (9th Cir. 2011) DST EB TT, TT meses oni sisson RB A SE A Er poss 1 California Cases Brundage v. Hahn (1997) 57 CalLAPP.Ath 228........ccnmveiesismsninisiessseimisissnsnsessstsssassesensssntstossssssasasssssesasssasassssasssassnsasson 10 Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal. App.5th 1028, 1059 (Justice Grimes diSSENting) ......c.coeeuevevevrnnniiinniiennn, 7,8,9 Estate of Edgett (1980) 111 Cal. Ap. 3d 230....ccnne cererreviiissssrummsmmsmenisesssessammmeesemsmepssnsss sass seas vies sxssocypusspoppomensuvoress 2,3 Elden v. Sheldon (1988) A6 CAl.3A 267 ...ceorsiireisssisrasssnsaossussussrarsssensassarssssssssanessessssssesssanessssionssbissssassnssnsasss ests suas os sassnss 2 Moore v. Regents of Univ. of Calif. (2016) VAR Cal APD AN 216... er ereomrs sven onaonsssinens soni imensssasssms £14463 583 1484S HATA SHNS UH 402 RFR TE RIA BEIT Smee 1 Rogers v. County of Los Angeles (2011) 198 Cal ADP. AI FB. ssc cssusvussimsmmsnsusmmssmmsassnsnyssnsnssns ess ges srgsavgssesawonanensansis bss in asa dasa isms ds 2 Scotch v. Art Inst. of California-Orange County, Inc. (2009) 173 CalLAPD.AH 986......cveerrerrrerserssnisesisiisinissssosesnssorsssssassrsstssasssasnsssstsssuesssastsssasnsnssssssisnisses 10 Wills v. Superior Court (2011) 195 Cal App.Ath 143 .... cnc ssssummmissssommmmsmsesnmstsesmssssomis sms pgopeeresessams asiss sess sods 10 Federal Statutes 29 TL BCE 26] HT sm sommmssmsemsmumessasusnssmmese sermon assrytapsmmsssmsss csmmsii 5548550. BETES 3 ii DEFENDANTS’ MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 OO 0 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 State Statutes Gov. Code § 12945.2(C)(3)(B) -evervrrereesusossesseressssissssmssmssessosssssesserssmssssssessosnasssasassnssssssssstsstsesssssnesesssaesns Gov. Code 8 T2000) 0nvvrs cvvviermswraserasmsensemnsmenssmessd 65575 545 ESTES AEA SFT SH ATLAS TAREE AEB PTY BOOTS Other Authorities 20 CFR. § B25. 1 10(8)........ i550 csus0s sussmus ss samssssme ness sn 155s sms s samy sommes umyss es ses seas ps gusgmemaamsams ns vans 29 CFR § 825. 112(A)(3) ceververerrensereniirietisiiisiesieiseteiseest sts ssass e as estes sb ebs est s sass assess beans 2G CFR 8 825.122(K) ..csmmsusmusssissmsnissssasspssssrmmsmmonsssesarnuompnsensasasyvesseossmss sn ronsnes ms 40 61053 iii DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 343514871 IL INTRODUCTION Plaintiff admittedly lied when she applied for and took FMLA/CFRA leave by misrepresenting that she needed leave to care for her “husband” when she was not married. After it was discovered that her “husband” was actually only her fiancé, her request for leave was denied, leaving her with 23 unexcused absences. Her employment was terminated for those unexcused absences. Plaintiff throws up numerous arguments as to why Plaintiff's termination violated the FMLA/CFRA, and amounted to disability discrimination under the Fair Employment and Housing Act (FEHA). None of Plaintiff’s arguments has merit, however. The issues presented in Defendants’ motion are legal issues which the Court must decide, not fact issues for a jury. The Court should decide these issues and grant Defendants’ motion for summary judgment in its entirety. IL PLAINTIFF'S FMLA/CFRA CAUSES OF ACTION FAIL BECAUSE PLAINTIFF WAS NOT ENTITLED TO FMLA/CFRA LEAVE As Defendants illustrated in their opening brief at pages 5-7, the prima facie case for each of Plaintiff's FMLA/CFRA causes of action requires a showing that Plaintiff was entitled to take leave for a qualifying purpose. Plaintiff's Opposition seeks to conflate “eligibility” for FMLA/CFRA leave with “entitlement” to such leave, but the two concepts are separate. See, e.g., Sanders v. City of Newport (9th Cir. 2011) 657 F.3d 772,778 (eligibility for leave, and entitlement to leave, are separate elements of a cause of action for FMLA interference); Moore v. Regents of Univ. of Calif. (2016) 248 Cal.App.4th 216, 248 (same under CFRA). An eligible employee is one who (1) has been employed by an employer for at least 12 months, (2) has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave, and (3) is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite. 29 CFR § 825.110(a). There is no dispute that Plaintiff was “eligible” for FMLA/CFRA leave as she met these three tests. But that’s only half of the analysis. 1 1 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 343514871 co 3 OO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In order to be entitled to take FMLA/CFRA leave, an eligible employee must take the leave for a qualifying purpose. One such qualifying purpose is “[t]o care for the employee’s spouse, son, daughter or parent with a serious health condition.” 29 CFR § 825.112(a)(3). Although eligible for leave, Plaintiff was not entitled to take FMLA/CFRA leave because she was not caring for a spouse, son, daughter or parent. Therefore, her 23 days of absence from work were unprotected and unexcused. Plaintiff’s attempts in her Opposition to avoid this simple point are unavailing.’ A. Plaintiff’s “Good Faith Belief” That She Was Married When She Commenced Her Leave Is Not the Same as Actually Being Married Plaintiff argues that she did not lie about her marital status when she requested medical leave to care for her “husband” because she had a “good faith belief” that she was married when in fact she was not. (Opposition at 15-16.) This is not a triable issue of fact, as Plaintiff asserts. Rather, it reflects a fundamental misunderstanding of the law. Plaintiff argues that she essentially had a common law marriage with her then-fiance when she requested FMLA/CFRA leave. Common law marriage was abolished in California in 1895, however. Elden v. Sheldon (1988) 46 Cal.3d 267, 275. As the court in Estate of Edgett (1980) 111 Cal.App.3d 230, noted, California courts “have consistently refused to equate the non-marital relationship to a lawful marriage.” Id. at 232. Both the FMLA and the CFRA are unambiguous. Time off may be taken to care for a “spouse.” 29 U.S.C. §2612(1); Gov. Code § 12945.2(c)(3)(B). Nowhere in either statute is there a provision for leave to care for a fiancé, or for someone “believed” to be a spouse who is not. See Loomis v. Honda of America Mfg. Inc. (S.D. Ohio 2003) 2003 WL 133254 at *6 (rejecting I “Violations of the CFRA generally fall into two types of claims: (1) ‘interference’ claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical and (2) ‘retaliation’ claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.” Rogers v. County of Los Angeles (2011) 198 Cal. App.4th 480, 487. Plaintiff pleads three causes of action for violation of FMLA/CFRA. The first generally alleges a violation of FMLA/CFRA. The second alleges retaliation and the third alleges interference. The first cause of action appears essentially to allege interference and is duplicative of the third. In any event, all of Plaintiff's FMLA/CFRA causes of action fail because Plaintiff was not entitled to leave under those statutes. 2 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 co NN A N Un BA \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff's argument that she need only show a subjective good faith belief that she was entitled to FMLA coverage, not that she was actually entitled to coverage). Plaintiff concedes that Mr. Quinones was not legally her husband when she applied for FMLA/CFRA leave to care for her “husband.” (Plaintiff’s Depo. at 36:21-25, 37:1; Exh. 2 to Defendants” Compendium of Exhibits.) This issue is settled. B. Defendants Had No Obligation to Investigate Whether Plaintiff Was Really Married After She Lied and Said She Was Plaintiff erroneously asserts that Defendants had a “legal duty” to request that Plaintiff provide certification of her marital status before she took her leave. (Opposition at 1, 9-10.) Plaintiff reported to BASIC, Defendants’ third party leave administrator, that she needed leave to care for her husband. Neither BASIC nor Defendants had any legal obligation at that point to require Plaintiff to prove that she was married. FMLA regulations give the employer the right to ask the employee to provide documentation of a family relationship, but the regulations do not require the employer to do so. See 29 CFR § 825.122(k). C. Plaintiff Was Never Informed That Her Request for FMLA/CFRA Leave Was Approved On page 9 of her Opposition, Plaintiff inaccurately describes the document that was sent to her when she applied for leave as indicating that her leave was “FMLA/CFRA qualifying.” (See Exh. 8 to Plaintiff’s Depo.; Exh. 2 to Defendants’ Compendium of Evidence.) The document, entitled “Notice of Eligibility and Rights and Responsibilities,” was sent to Plaintiff by BASIC based on the information she provided when applied for leave to care for her “husband.” (Plaintiff’s Depo. at 35:20-25, 36:1-18; Exh. 2 to Defendants’ Compendium of Evidence.) It simply informed Plaintiff that she was “eligible” for FMLA leave. It did not say that her leave was “FMLA/CFRA qualifying.” To the contrary, it stated: [In order for us to determine whether your absence qualifies as FMLA leave, you must return the following information to us by April 13,2016. . . . Sufficient certification to support your request for FMLA leave” (emphasis added). This document made no finding that Plaintiff was entitled to 3 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 ww N N Wn Re W N \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FMLA/CFRA leave or would be taking leave for a qualifying reason under the FMLA/CFRA. Nonetheless, Plaintiff proceeded to miss 23 days of work in reliance upon this document. D. Plaintiff’s Getting Married After Being Told She Did Not Qualify for FMLA/CFRA Leave Did Not Qualify Her Prior Absences As Protected Plaintiff argues that because she got married to Mr. Quinones on June 9, 2016, her FMLA/CFRA rights were violated because her leave was not formally denied by BASIC until June 14, 2016 when she was married, and she was not terminated by Defendants until June 22, 2016. Plaintiff claims that her causes of action for violation of FMLA/CFRA did not “accrue” until June 14, 2016. That may be true but it is irrelevant. Plaintiff still had missed 18 days of work before she got married, and those unauthorized absences did not suddenly become authorized absences as a result of Plaintiff's getting married. Plaintiff cites no authority for such a notion because there is none. E. Defendants Had No Obligation to Retroactively Designate Plaintiff's Unauthorized Absences as Personal Leave Plaintiff argues that since employees could take up to 90 days of personal leave under the collective bargaining agreement, Defendants should have retroactively designated Plaintiff’s unauthorized absences as personal leave. (Opposition at 11-12.) Plaintiff offers no authority in support of this proposition. Moreover, the section on Leaves of Absence in the collective bargaining agreement that provides for personal leaves states, at section 8:2.9: “All requests for a leave of absence shall be in writing and the President [of the Union] shall be given a copy by the Company.” (See Exhibit 11 of Plaintiff's Compendium of Evidence.) Plaintiff did not request such a personal leave, in writing or otherwise. (Plaintiff's Depo. at 72:22-25; Exh. 2 to Defendants’ Compendium of Exhibits.) In addition, Defendants’ Human Resources Manager Kathy Guttormson testified that Defendants and the Union “have a long-standing practice of over 25 years plus where an employee is required to submit a request for personal leave of absence in advance of going on the leave.” (Depo. of Kathy Guttormson at 106:22-25, 107:1-5; Exh. 2 to Plaintiffs Compendium of Evidence.) It was therefore not possible under the collective 4 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 bargaining agreement for Defendants unilaterally to retroactively designate Plaintiff's unauthorized absences as personal leave. F. Defendants Had No Obligation to Allow Plaintiff to Retroactively Designate Plaintiff’s Unauthorized Absences as Vacation Plaintiff argues that Defendants “failed to allow” her to use vacation days retroactively to cover her unauthorized absences from May 13-June 8, 2016. (Opposition at 12.) Missing from Plaintiff’s declaration and deposition testimony is an assertion that Plaintiff requested to use vacation. As Ms. Guttormson explained in her deposition testimony, Article 7 of the collective bargaining agreement requires that employees request vacation days in advance. (Guttormson Depo. at 138:16-25, 139:1-9.) Plaintiff failed to do so. As with respect to personal leave, the collective bargaining agreement governs when and how bargaining unit employees such as Plaintiff may request and take vacation. Defendants may not simply disregard it. G. Defendants Did Not Fail to Apply Their Attendance Policy Properly Plaintiff argues that according to Defendants’ employee handbook she should have been given a warning or probation for her unexcused absences instead of termination. (Opposition at 12.) This argument is based on a misreading of the employee handbook. The handbook does set forth a series of disciplinary steps that may be followed for “chronic offenders” who are frequently absent or tardy but it is neither mandatory nor exclusive. The handbook states: “The above policy does not limit the Company to discipline outside of this procedure if the nature of the gravity of the situation requires special action.” Plaintiff’s amassing 23 unexcused absences as the result of having applied for FMLA/CFRA leave under false pretenses is one such situation. In any event, even if Defendants had failed to follow their own internal policy, such would not amount to a violation of FMLA/CFRA. Reed v. Lear Corp. (E.D. Mo. 2003) 2003 WL 312907 at *7-8 (employer’s violation of internal policies does not amount to a violation of FMLA). 5 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 343514871 Oo RX 9 DD 10 11 12 13 14 15 16 17 18 ¥9 20 21 22 23 24 25 26 27 28 H. Plaintiff Cannot Rely on Equitable Estoppel As She Applied for Leave Under False Pretenses Plaintiff attempts to rely on equitable estoppel to argue that she justifiably relied on Defendant’s designation of her leave as potentially covered by FMLA/CFRA. (Opposition at 12- 13.) Initially, as explained above, Defendants never informed Plaintiff that her application for FMLA/CFRA leave was approved or that she was entitled to such leave. Plaintiff was only notified that she was eligible for such leave. Moreover, Defendants’ representation about Plaintiff’s leave was based on Plaintiff's providing false information to BASIC when she applied for leave. As demonstrated in Defendants’ opening brief at page 9, Plaintiff cannot rely on estoppel because she cannot show that she was ignorant of the true facts. This is not a situation where Defendants made a mistake upon which Plaintiff innocently relied. Rather, Plaintiff induced Defendants to consider her eligible for and potentially entitled to FMLA/CFRA leave by representing that she needed to care for her “husband” when she was not married. Not only is estoppel unavailable to Plaintiff for this reason, it is unavailable to her for the additional reason that she has unclean hands, as explained at pages 9-10 of Defendants’ opening brief. Plaintiff fails to address her unclean hands at all in her Opposition. III. PLAINTIFF’S DISABILITY DISCRIMINATION CLAIMS FAIL BECAUSE PLAINTIFF CANNOT SHOW THAT SHE WAS TERMINATED BECAUSE OF HER ASSOCIATION WITH MR. QUINONES, AND THE LAW DOES NOT REQUIRE ACCOMMODATION OF THE DISABILITIES OF AN EMPLOYEE’S “ASSOCIATES” A. Plaintiff Has Shown No Motive on the Part of Defendants to Discriminate Against Plaintiff On Account of Her Association with Mr. Quinones Plaintiff argues that the three scenarios identified in Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698, 700, potentially demonstrating a motive for 2 Plaintiffs assertion at page 14 of her Opposition that Defendants “reclassified” her “previously approved FMLA/CFRA leave as non-qualifying leave after she began using the leave” is wrong. As explained earlier, Defendants never approved Plaintiff’s request for leave. 6 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 [\ ] © o e N N A N n n A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disability discrimination by association, i.e., (1) where the associate’s disability will be costly for the employer, (2) where the employer fears that the employee will become infected by the associate’s contagious disease or will be genetically predisposed to come down with an ailment suffered by a close relative; or (3) where the employer is concerned that the employee will be distracted from work by the associate’s condition, are only illustrative and not exhaustive. (Opposition at 19.) Yet, “[t]he critical element of any circumstance that might trigger a claim of associational disability discrimination is that it suggests the employer ‘has a motive to discriminate against a nondisabled employee who is merely associated with a disabled person.’ That is the point of the Larimer categories.” Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1059 (Grimes, J. dissenting) quoting Larimer, supra, at p. 702 (original emphasis). Plaintiff concedes that she cannot meet the Larimer tests,? but she proffers no evidence of any other motive on the part of Defendants to terminate her merely because of her relationship with Mr. Quinones. She proffers no negative remarks by management about her relationship with him, and no evidence that management treated her more harshly between the time she informed them of his condition and need for surgery on March 24, 2016 and her starting her leave on May 13,2016. She proffers no evidence of any disparate treatment; i.e., she points to no other employee without a disabled fiancé who was not terminated for accruing multiple continuous unexcused absences. She presents no evidence whatsoever that Defendants were biased against her on account of her relationship with her fiance. 3 As demonstrated in Defendants’ opening brief, Plaintiff admits that Defendants never expressed concerns regarding the cost of Mr. Quinones’ surgery or medical treatment [UF 229], his condition was not contagious [UF 230], and Defendants never expressed any concern that she might be distracted from her work because of Mr. Quinones’ foot condition [UF 231]. 4 In Castro-Ramirez, by contrast, considerable evidence of such animus was present. The plaintiff's former supervisor arranged his schedules so he could get home in time to assist his son with dialysis. The plaintiffs new supervisor, “Junior,” refused to do so even though a customer had requested that the plaintiff serve an early morning route. Junior lied to the plaintiff, telling him that the customer did not want him on the route. When the plaintiff complained to Junior about being assigned a late shift and reminded him that his former supervisor assigned him to earlier shifts, Junior laughed and said that the former supervisor “doesn’t work here anymore. Now it’s me.” 207 Cal.App.Sth at 1034. 7 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 “v t A W L W N OO 0 uN OQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff Only Argues That Defendants Failed to Accommodate Her Need for Leave to Care For Her Fiance, Yet There Was No Legal Duty to Do So Plaintiff’s only argument in support of her disability discrimination claims is that she was denied time off as an accommodation for to care for her fiancé. (Opposition at 18.) No court has held that an employer must accommodate an employee who wishes to care for a disabled “associate,” however. The Castro-Ramirez court did not decide as much. In fact, it was careful to disclaim that “[W]e do not decide whether FEHA establishes a separate duty to reasonably accommodate employees who associate with a disabled person.” 207 Cal.App.5th at 1038. Plaintiff urges this Court to make new law by going where the Castro-Ramirez court did not go. It should not do so. The Castro-Ramirez court’s dicta discussing a potential duty to accommodate the disability of an employee’s associate incorrectly interprets the plain language of FEHA. That court noted that under Government Code section 12926(0), a person with a “physical disability” includes a person “who is associated with a person who has, or is perceived to have” a physical disability. This is not what subsection (0) says, however. Rather subsection (0) provides: “Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics (emphasis added). The italicized words are in quotes in the statute, indicating that they are to be read together and not separately. This is important because this entire collection of protected categories in quotes appears in subdivisions (a), (b), (¢), (d), and (j) of section 12940 (which prohibit discrimination and harassment). But this entire collection does not appear in the statute’s subdivisions (m) and (n), which require reasonable accommodations and an interactive process only with respect to the “known physical or mental disability of an applicant or employee.” For this reason, this Court should not simply assume that the first appellate court to address this question squarely will do so as the Castro-Ramirez court did in its dicta. This Court should read sections 12940(m) 8 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 © 0 3 AN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and (n) to obligate an employer to accommodate and to engage in the interactive process only with respect to the known physical or mental disability of a job applicant or employee, rather than with respect to a virtually limitless array of an applicant’s or employee’s relatives, friends and acquaintances. C. Even If There Was a Duty to Accommodate, Plaintiff Did Not Request an Accommodation Plaintiff concedes that after she was told her request for FMLA/CFRA leave was denied, she did not request another form of leave as an accommodation. (Plaintiff's Depo. at 72:22-25; Exh. 2 to Defendants’ Compendium of Exhibits.) An employer’s obligation to undertake an interactive process toward determining a reasonable accommodation does not arise until the employee requests an accommodation. See Gov't Code s 12940(n)(employer must engage in an interactive process “in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability. . . .”"). No such request was made here. D. Forgiveness of Prior Misconduct Is Not A Reasonable Accommodation In Any Event As demonstrated in Defendants’ opening brief at page 14, Plaintiff must identify a reasonable accommodation that the interactive process should have produced. See Scotch v. Art Inst. of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1018-1019. She has not done so. Presumably she expected Defendants to forgive her 23 unexcused absences as a reasonable accommodation, but there is no legal requirement that Defendants do so. An employer is not required to excuse past misconduct as a reasonable accommodation. Wills v. Superior Court (2011) 195 Cal. App.4th 143, 166 n.4; Brundage v. Hahn (1997) 57 Cal. App.4th 228, 240. E. It Was Not “Pretext” for Defendants to Disregard the Collective Bargaining Agreement and Retroactively “Re-Designate” Plaintiff's 23 Unauthorized Absences as Personal Leave or Vacation Plaintiff finally argues that it was “pretext” for Defendants to have terminated her when it could have “just as easily re-designated” her unauthorized absences as personal leave or 9 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 C O X 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 24 28 vacation. (Opposition at 20.) As demonstrated earlier, however, the collective bargaining agreement requires that certain procedures be followed by bargaining unit employees seeking to use personal leave or vacation (principally that personal leave or vacation be applied for in advance), and Plaintiff admittedly did not follow those procedures. Defendants are not free under the collective bargaining agreement to ignore its provisions, and their choosing to abide by the agreement hardly constitutes pretext. In Kralik v. Durbin (3d Cir. 1997) 130 F.3d 76, the court observed that although the accommodation the plaintiff sought would impose “virtually no hardship on the employer” it was nonetheless not a reasonable accommodation because it would have caused the employer to violate its collective bargaining agreement. Id. at 83. For Defendants to have allowed Plaintiff to retroactively re-designate her 23 unauthorized absences as personal leave or vacation would have created a precedent that would have to be applied in the future to all bargaining unit employees with unauthorized absences, as well as be inconsistent with the treatment of prior employees terminated for multiple unauthorized absences. For Defendants to have declined to so is not pretext for discrimination. IV. CONCLUSION Plaintiff's FMLA/CFRA claims fail because she was not entitled to leave because she was not married when she applied for leave and took off work. Her disability discrimination claims fail because she has identified no motive for or evidence of associational discrimination. The law did not require Defendants to accommodate her disabled fiancé, and this Court should not make new law to the contrary. Plaintiff did not seek any such accommodation in any event, and Defendants were not required to forgive Plaintiff's misconduct as an accommodation or to retroactively reclassify her unauthorized absences as personal leave or vacation in violation of the collective bargaining agreement. Defendant is entitled to summary judgment. DATE: August 7, 2018 FISHER & PHILLIPS LLP By: JAMES J. MCDONALD, JR. BRET MARTIN Attorneys for Defendants 10 DEFENDANTS’ REPLY BRIEF ISO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES FPDOCS 34351487.1 ce N N a w n BR W N \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 57 28 PROOF OF SERVICE (CCP § 1013(a) and 2015.5) I, the undersigned, am employed in the County of Orange, State of California. Iam over the age of 18 and not a party to the within action; am employed with the law offices of Fisher & Phillips LLP and my business address is 2050 Main Street, Suite 1000, Irvine, California 92614. On the below date, I served the foregoing document entitled DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION OF ISSUES on all the appearing and/or interested parties in this action by placing [_] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Michael C. Robinson, Esq. Attorneys for Plaintiff, Lakesha L. Robinson, Esq. REBECCA QUINONES Robinson Employment Law, PC 4340 Campus Drive, Suite 100 Telephone: (949) 655-7107 Newport Beach, CA 92660 Fax: (949) 271-4700 E-Mail: mcr@robinsonemploymentlaw.com lir@robinsonemploymentlaw.com Gregory K. Sabo, Esq. Attorneys for Cross-Defendant, CHAPMAN GLUCKSMAN DEAN ROEB BENEFIT ADMINISTRATIVE SERVICES & BARGER INTERNATIONAL CORPORATION 11900 West Olympic Blvd., Suite 800 Los Angeles, CA 90064-0704 Tel: (310) 207-7722 Fax: (310) 207-6550 [by FEDERAL EXPRESS] - I am readily familiar with the firm’s practice for collection and processing of correspondence for overnight delivery by Federal Express. Under that practice such correspondence will be deposited at a facility or pick-up box regularly maintained by Federal Express for receipt on the same day in the ordinary course of business with delivery fees paid or provided for in accordance with ordinary business practices. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed August 7, 2018, at Irvine, California. ARACELY ORIZABA By: Print Name / Signature 18004.6204 11 PROOF OF SERVICE FPDOCS 34351487.1