defendant dolby laboratories inc s memorandum of points authorities

Cal. Super. - 1st Dist.July 9, 2021

CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION KATHERINE HUIBONHOA, State Bar No. 207648 ALLISON B. MOSER, State Bar No. 223065 CURLEY, HURTGEN & JOHNSRUD LLP 4400 Bohannon Drive, Suite 230 Menlo Park, CA 94025 Telephone: 650.600.5300 Facsimile: 650.323.1002 Attorneys for Defendant DOLBY LABORATORIES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO DAVID ANDRADE, Plaintiff, v. DOLBY LABORATORIES, INC., and DOES 1 through 50, Defendants. Case No. CGC-20-584905 DEFENDANT DOLBY LABORATORIES, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION DATE: May 5, 2021 TIME: 9:30 a.m. DEPT: 302 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 03/04/2021 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF CONTENTS Page No. I. INTRODUCTION ............................................................................................................... 1 II. SUMMARY OF UNCONTROVERTED FACTS .............................................................. 2 A. Dolby Has Robust Disability-Accommodation Procedures And Maintains Clear Policies Against Discrimination And Retaliation........................................... 2 B. October 2012 - July 2018: Plaintiff Joins Dolby’s Information Technology Department As A Business Systems Administrator, And Dolby Grants His Numerous Requests For Medical Leaves Of Absence And Personal Time Off ...... 2 C. July 2018 - June 2019: Plaintiff Transfers To A Data Manager Role In Dolby’s Legal Department, And Dolby Continues To Accommodate His Requests For Time Off ................................................................................................................... 3 D. July - September 2019: Plaintiff Makes Errors At Work And His Manager Provides Feedback ................................................................................................... 4 E. October 2019: After Plaintiff’s Manager Reinforces Performance Expectations, Plaintiff Tells Dolby He Plans To Relocate To Santa Cruz And Asks To Telecommute; Dolby Evaluates This Request And Offers Alternatives, But Plaintiff Rejects Them.............................................................................................. 5 F. November 2019: While Dolby Considers Plaintiff’s Request To Work Remotely, Plaintiff Unilaterally Finalizes His Move To Santa Cruz And Refuses To Continue In His Current Role; Dolby Nevertheless Continues To Grant Plaintiff’s Requests For Time Off ............................................................................ 6 G. December 2, 2019 - January 2, 2020: Plaintiff Forced Dolby To Terminate His Employment ...................................................................................................... 7 III. DOLBY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON EACH OF PLAINTIFF’S CAUSES OF ACTION ................................................................................ 7 A. There Is No Triable Issue Of Disability Discrimination Under FEHA ................... 7 Plaintiff Cannot Establish A Prima Facie Case Of Discrimination ............ 8 a. Plaintiff did not suffer any legally cognizable adverse employment action; he abandoned his job and thereby forced his own termination .......................................................................... 8 b. Plaintiff’s termination did not occur under circumstances giving rise to any inference of discrimination.................................. 9 Plaintiff’s Refusal To Perform His Job Was A Legitimate, Non- Discriminatory Reason For His Termination ............................................... 9 There Is No Triable Question Of Pretext ..................................................... 9 B. There Is No Triable Issue Of Retaliatory Termination .......................................... 10 CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF CONTENTS (cont'd) Page No. Plaintiff Did Not Engage In Legally Cognizable Protected Activity ......... 11 There Was No Legally Cognizable Adverse Action .................................. 11 There Is No Triable Issue Of Retaliatory Causation .................................. 12 C. There Is No Triable Issue Of Failure To Provide Reasonable Accommodation ... 12 Plaintiff Was Able To Perform The Essential Functions Of His Current Role Without Accommodation ...................................................... 12 Dolby Was Not Required To “Accommodate” Plaintiff’s Lifestyle Or Commute Preferences ................................................................................ 15 Dolby Satisfied Its Accommodation Obligation As A Matter Of Law ...... 15 D. There Is No Triable Issue Of Failure To Engage In The Interactive Process Under FEHA ..................................................................................................................... 17 IV. ALTERNATIVELY, DOLBY IS ENTITLED TO SUMMARY ADJUDICATION ON PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES ..................................................... 19 A. There Was No “Oppression, Fraud, Or Malice” .................................................... 19 B. There Was No Conduct By A “Managing Agent” ................................................. 20 V. CONCLUSION .................................................................................................................. 20 CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF AUTHORITIES Page No(s). Cases Alsup v. U.S. Bancorp 2015 WL 224748 (E.D. Cal. Jan. 15, 2015)............................................................................... 13 Allen v. Pac. Bell 348 F.3d 1113 (9th Cir. 2003).................................................................................................... 19 Black v. Wayne Ctr. 2000 WL 1033026 (6th Cir. 2000)............................................................................................. 14 Brumfield v. City of Chicago 735 F.3d 619 (7th Cir. 2013)...................................................................................................... 13 Cruz v. HomeBase 83 Cal.App.4th 160 (2000) ........................................................................................................ 20 Doe v. Dep’t of Corrections and Rehab. 43 Cal. App. 5th 721 (2019) ...................................................................................................... 11 Frazier v. United Postal Serv., Inc. 2005 WL 1335245 (E.D. Cal. 2005) ............................................................................................ 9 Green v. State 42 Cal. 4th 254 (2007) ................................................................................................................. 8 Guz v. Bechtel National Inc. 24 Cal. 4th 317 (2000) ................................................................................................................. 8 Hanson v. Lucky Stores, Inc. 74 Cal. App. 4th 215 (1999) ...................................................................................................... 10 Iwekaogwu v. City of Los Angeles 75 Cal. App. 4th 803 (1999) ...................................................................................................... 10 Jensen v. Wells Fargo Bank 85 Cal. App. 4th 245 (2000) ...................................................................................................... 18 King v. United Parcel Serv., Inc. 152 Cal. App. 4th 426 (2007) ................................................................................................ 9, 18 Light v. Calif. Dep’t of Parks & Recreation 14 Cal. App. 5th 75 (2017) ........................................................................................................ 12 Loggins v. Kaiser Permanente Int’l 151 Cal. App. 4th 1102 (2007) .................................................................................................. 12 Moore v. Regents of Univ. of California 248 Cal. App. 4th 216 (2016) .................................................................................................... 11 CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF AUTHORITIES (cont'd) Page No(s). Munoz-Munoz v. Locke 2012 WL 12925022 (W.D. Wash. Oct. 24, 2012) ..................................................................... 15 Nadaf-Rahrov v. Neiman Marcus Grp., Inc. 166 Cal. App. 4th 952 (2008) .............................................................................................. 13, 17 Nealy v. City of Santa Monica 234 Cal. App. 4th 359 (2015) .............................................................................................. 13, 16 Pinto v. New York City Admin. for Children’s Servs. 2018 WL 4333990 (S.D.N.Y. Sept. 11, 2018) ........................................................................... 15 Prilliman v. United Air Lines, Inc. 53 Cal. App. 4th 935 (1997) ...................................................................................................... 13 Rauen v. U.S. Tobacco Mfg. Ltd. P’ship 319 F.3d 891 (7th Cir. 2003)...................................................................................................... 13 Reeves v. Sanderson Plumbing Prods. 530 U.S. 133 (2000) ..................................................................................................................... 8 Robinson v. Bodman 333 Fed. Appx. 205 (9th Cir. 2009) ........................................................................................... 15 Roby v. McKesson Corp. 47 Cal.4th 686 (2009) ................................................................................................................ 20 Scotch v. Art Institute of California - Orange County, Inc. 173 Cal. App. 4th 986 (2009) ........................................................................................ 12, 14, 18 Scott v. Phoenix Schools, Inc. 175 Cal. App. 4th 702 (2009) .................................................................................................... 20 Shade Foods v. Innovative Prods. Sales Mktg., Inc. 78 Cal.App.4th 847 (2000) ........................................................................................................ 19 Soldinger v. Northwest Airlines, Inc. 51 Cal. App. 4th 345 (1996) ...................................................................................................... 16 Texas Dep’t of Community Affairs v. Burdine 450 U.S. 248 (1981) ..................................................................................................................... 8 Turner v. Anheuser-Busch, Inc. 7 Cal.4th 1238 (1994) .................................................................................................................. 8 Weeks v. Baker & McKenzie 63 Cal. App. 4th 1128 (1998) .................................................................................................... 19 White v. Ultramar, Inc. 21 Cal.4th 563 (1999) ................................................................................................................ 20 CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF AUTHORITIES (cont'd) Page No(s). Statutes Cal. Civ. Code § 3294(a)................................................................................................................ 19 Cal. Civ. Code § 3294(b) ............................................................................................................... 19 Cal. Civ. Code, § 3294(c)............................................................................................................... 19 Gov’t Code § 12940(n) .................................................................................................................. 17 Other Authorities EEOC Enforcement Guidance: Reasonable Accommodation And Undue Hardship Under The Americans With Disabilities Act, 2002 WL 31994335 (Oct. 17, 2002) .......................................................................................... 13 EEOC What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO laws ......................................................................................................................... 17 EEOC Work at Home/Telework as a Reasonable Accommodation .............................................. 16 Regulations 2 Cal. Code Reg. § 11069(a) .......................................................................................................... 17 2 Cal. Code Reg. § 11069(d) .......................................................................................................... 17 29 C.F.R. § Pt. 1630 ....................................................................................................................... 15 Cal. Code Regs. tit. 2, § 11065 ...................................................................................................... 13 CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION I. INTRODUCTION Defendant Dolby Laboratories, Inc. has well-established policies prohibiting discrimination and retaliation, and provides reasonable accommodations to qualified employees in compliance with all applicable laws. Consistent with those policies and practices, Dolby granted every single one of the dozens of medical requests that Plaintiff David Andrade made during his seven-year tenure. By late 2019, according to Plaintiff, he had decided to leave a “stressful” living situation in San Francisco and relocate to his hometown of Santa Cruz to be near family. As a result of this decision, he determined that his job with Dolby in San Francisco would no longer work for him because he did not want to commute. To facilitate this lifestyle preference, Plaintiff requested to work remotely and/or in a reduced role. Despite Plaintiff’s familiarity with the process for requesting accommodations, he failed to sufficiently link his requests to any alleged disability or work-related limitations. It is undisputed that no medical provider ever indicated that a relocation was necessary to address any medical condition, nor did Plaintiff provide any medical support for his request. Indeed, Plaintiff readily admits he was able to perform all of his job duties in San Francisco. He simply preferred to relocate and perform his job remotely from Santa Cruz, and wanted Dolby to “accommodate” that. It is also undisputed that despite performance issues in various roles, Plaintiff’s job was always available to him in San Francisco and that Dolby even offered him the option of working in its Sunnyvale office, closer to Santa Cruz. Plaintiff refused those options and indicated he would relocate regardless of Dolby’s decision, thereby effectively resigning. As Plaintiff would neither perform his job nor voluntarily resign (in part, he admits, to collect unemployment benefits), Plaintiff left Dolby no choice but to terminate his employment. Plaintiff now claims that Dolby discriminated against him because of his disability (mental illness), retaliated against him for requesting accommodation, failed to provide reasonable accommodation, and failed to engage in the interactive process. None of these allegations has legal merit or raises a triable issue. First, Plaintiff himself admits there is no evidence of discrimination and Dolby’s record of accommodating him belies any discriminatory animus. Second, Plaintiff ignores that employers are not legally required to accommodate an CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION employee’s desire to relocate and avoid a lengthy commute, particularly where Plaintiff was able to perform his job duties in his current role. Third, Plaintiff turned the accommodation and interactive process on its head by not providing specific information, but simply demanding his preferred accommodation. Fourth, there is no causal link between Plaintiff’s requests and termination as his job was available at all times-he was simply no longer willing to perform it. Dolby thus respectfully requests the Court grant its motion in its entirety. II. SUMMARY OF UNCONTROVERTED FACTS A. Dolby Has Robust Disability-Accommodation Procedures And Maintains Clear Policies Against Discrimination And Retaliation. Throughout Plaintiff’s employment, Dolby maintained policies prohibiting discrimination on the basis of various protected categories, including physical or mental disability. (UMF 26.)1 In addition, “Dolby prohibits retaliation against any person for using the Company’s complaint procedure, reporting proscribed discrimination or harassment or filing, testifying, assisting or participating in any manner in any investigation, proceeding or hearing . . . .” (DA Tr., Ex. 3.) Dolby also maintained disability-accommodation procedures, which provide: “The Company recognizes and supports its obligation to provide reasonable accommodations to qualified employees . . . with known disabilities . . . . Dolby will provide a reasonable accommodation provided it does not impose an undue hardship to the Company . . . .” (Id.) Plaintiff was aware of Dolby’s policies regarding discrimination, including those based on physical or mental disabilities. (UMF 26.) He also understood that Dolby prohibits retaliation against any person who used its internal complaint procedure. (UMF 46.) B. October 2012 - July 2018: Plaintiff Joins Dolby’s Information Technology Department As A Business Systems Administrator, And Dolby Grants His Numerous Requests For Medical Leaves Of Absence And Personal Time Off. On October 22, 2012, Plaintiff joined Dolby as a BPC, System Administrator. (DA Tr. 19:11-14; 21:14-15.) Plaintiff was an at-will employee throughout his employment. (UMF 1.) 1 References to the Separate Statement of Undisputed Material Facts are denoted as “UMF” and references to the transcripts and corresponding exhibits of Plaintiff David Andrade’s deposition are denoted as “DA Tr.,” and are attached to the concurrently-filed Declaration of Allison B. Moser as Exhibits A and B. References to the Declarations of Aaron Beachnau and Greg Miyagishima in support of Defendant’s Motion for Summary Judgment or Summary Adjudication, filed herewith, are denoted “AB Dec.” and “GM Dec.” CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION In early 2016, Plaintiff became a Senior Business Systems Administrator and reported to Dave McDonough, Sr. Dir. of Enterprise Analytics. (DA Tr. 20:9-13; 22:10-18.) During this time, Plaintiff requested and received dozens of medical accommodations and personal time off, including for illness, physical therapy, a chorus festival, real estate matters, an AIDS/LifeCycle event, an accident in Colorado, and working remotely. (UMF 27.) Plaintiff was well aware of Dolby’s process to request accommodations. Almost all of Plaintiff’s requests for medical leave were made in writing via email. (Id.; DA Tr., Exs. 13, 14) For example, in January 2017, Plaintiff requested and received five weeks off for a voluntary organ donation, for which he submitted a note to the “HR help mailbox” and documentation from a health care provider. (DA Tr. 58:13-59:6; 60:12-20.) Dolby thereafter granted Plaintiff’s additional requests for time off for events throughout 2017-2018, such as an Ironman race, chorus travel, travel to Tanzania, hip surgery, medical appointments, and physical therapy. (Id. 62:16-24; 64:2-65:23.) McDonough granted every one of Plaintiff’s requests for medical accommodation or time off. (UMF 28.) Indeed, the only time McDonough denied any request for personal time off was for an AIDS cycle ride because Plaintiff had failed to meet certain deliverable timelines. (DA Tr. 66:6-67:10.)2 Plaintiff admits he was aware of the process for requesting time off for medical accommodations and felt comfortable asking McDonough for accommodations. (UMF 29.) C. July 2018 - June 2019: Plaintiff Transfers To A Data Manager Role In Dolby’s Legal Department, And Dolby Continues To Accommodate His Requests For Time Off. On July 22, 2018, Plaintiff transferred to the legal department as an Intellectual Property Protection (“IPP”) Data Manager. (UMF 2.) His new role was a full-time role at a P4 level (on a scale of Professionals from 1 to 7), that required him to work out of the San Francisco office. (UMF 3.) His key job duty in the IPP role was to gather, analyze, and process implementation reporting data from licensing partners. (DA Tr. 297:23-298:10; 300:15-25.) While in that role, he reported to Aaron Beachnau, Sr. Manager of IPP Data Strategy. (UMF 4.) Beachnau and Plaintiff’s immediate team members all worked out of the San Francisco office, and no one 2 Plaintiff acknowledged: “I would like to be present during the process to help avoid errors and/or mitigate them . . . and I won’t be able to effectively do this remotely if I’m out on the ride….” (DA Tr. 69:25-70:8; Ex. 19.) CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION regularly worked remotely. (UMF 37.) Similar to McDonough, Beachnau granted Plaintiff many accommodations during 2018- 2019 for: a bike accident, surgeries, illnesses, vacations, issues with his roommate, chorus trips, medical appointments, a bike ride, and trips to the gym throughout the work day. (DA Tr. 32:25- 38:21; 41:3-46:22; AB Dec. ¶ 3.) Beachnau never denied any medical requests for accommodation or time off. (UMF 31.) Plaintiff felt comfortable asking Beachnau for accommodations and time off, and was well aware of the process for requesting time off for medical accommodations, PTO, and appointments. (UMF 32.) On November 30, 2018, Plaintiff told Beachnau he wanted to discuss his current living situation (dealing with his roommate’s mental health issues) as it related to his “work/commute situation,” but admits he never asked for an accommodation for that situation. (DA Tr. 38:5-23; 40:3-8; 42:4-12; Ex. 7.) On February 28, 2019, Plaintiff claims he told Beachnau about a panic attack he had experienced the prior day. (Id. 132:3-133:3.) Plaintiff did not ask Beachnau or anyone at Dolby for any accommodation or time off as a result of that incident. (Id. 133:14-18; 140:12-19.) His requests for time off for doctors’ appointments thereafter were granted. (Id. 139:24-140:5.) During this time, he was still able to perform his key job duties. (Id. 140:23-25.) Plaintiff was formally diagnosed with depression on March 29, 2019, but did not tell anyone at Dolby at the time about the diagnosis. (UMF 5.) Plaintiff claims that following this diagnosis, he verbally told Beachnau about his doctor’s recommendation to engage in cardiovascular exercise. (Id. 143:10-144:1.) When Plaintiff asked for time off to go to the gym, Beachnau granted his requests. (Id. 144:5-13.) D. July - September 2019: Plaintiff Makes Errors At Work And His Manager Provides Feedback. During 2019, Beachnau expressed concerns about Plaintiff’s performance, including the database being left in unfinished states at times and data mapping that should have been done. (DA Tr. 171:8-21.) For example, Plaintiff made mapping errors in July 2019. (Id. 173:15-174:6.) In September 2019, Beachnau relayed concerns about Plaintiff leaving data unrefreshed. (Id. 175:16-176:10.) That same month, Beachnau reached out with concerns and shortcomings CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION regarding data Plaintiff was working on and Beachnau’s expectations. (Id. 176:20-177:6.) He also had concerns with Plaintiff’s commitment when he was in the office, as he was frequently away from his desk and did not put in a full day of work. (Id. 51:5-21; AB Dec. ¶ 5.) E. October 2019: After Plaintiff’s Manager Reinforces Performance Expectations, Plaintiff Tells Dolby He Plans To Relocate To Santa Cruz And Asks To Telecommute; Dolby Evaluates This Request And Offers Alternatives, But Plaintiff Rejects Them. In October 2019, Beachnau presented Plaintiff with 2020 goals and expectations for his role, which they subsequently discussed. (DA Tr. 78:21-79:3.) Plaintiff was able to perform all of his tasks and goals at that point. (UMF 7.) There were no goals that Plaintiff believed he would be unable to meet if he remained in San Francisco. (DA Tr. 83:18-21.) Even though there were no specific goals or job requirements that Plaintiff could not meet, and even though Plaintiff had not even tried performing any of the new tasks for 2020, he relayed that the job requirements would not currently work for him. (Id. 94:25-95:8; 310:2-18.) During that meeting, Plaintiff told Beachnau that he wanted to move to Santa Cruz, and work remotely. (UMF 8) Plaintiff explained that he believed a move would alleviate his mental health and depression symptoms, and felt that he could not live up to the expectations of the role while being in San Francisco because of the urban environment, issues with his roommate, and the distance from his support network in Santa Cruz. (DA Tr. 84:1-4; 86:22-87:11; 318:10-21.) Plaintiff admits that he could perform his job in San Francisco and that no doctor ever told him he needed to work remotely for medical reasons. (UMF 17, 42; AB Dec. ¶ 6.) In the October 14 meeting, Plaintiff also asked Beachnau about reducing the scope of his duties or down-leveling his role as an alternative to working remotely, or some combination thereof. (UMF 9.) Plaintiff admitted that a lower-level remote job was different than his current job. (DA Tr. 96:5-9.) Beachnau relayed that a reduced work level would not meet the team’s business needs (UMF 11), because Plaintiff was the only one performing his role and a reduced role would lower production for the entire team and increase Beachnau’s workload. (AB Dec. ¶ 6.) Beachnau also told Plaintiff that he could not regularly work remotely as their group did not have a telework practice, but affirmed that his job in San Francisco was available. (UMF 12.) CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Plaintiff subsequently spoke to Greg Miyagishima in Human Resources, who confirmed that his current role required him to work in the San Francisco office. (GM Dec. ¶ 3.) Plaintiff referenced the stress of living in San Francisco as a reason for wanting to leave the city. (Id.) At no point did Plaintiff provide Miyagishima, or anyone at Dolby, with documentation from a medical provider regarding the need to move from San Francisco or work remotely. (UMF 16- 17.) Plaintiff understood throughout this time that his P4 role was still available in San Francisco, but preferred not to commute from Santa Cruz. (UMF 14, 15.) On October 21, 2019, Plaintiff again requested to work remotely and mentioned, for the first time in writing, his “worsening mental health” and the stress of living in San Francisco, but again did not provide written medical documentation or any support for his request. (UMF 40.) Despite the fact that Plaintiff had made many requests for time off and accommodations, and was well aware of how to do so, he never gave anyone at Dolby documentation reflecting that his mental health required a move from San Francisco (let alone to Santa Cruz), or relayed that a doctor recommended that he work remotely for his mental health. (UMF 15-17.) None existed. Dolby continued to provide Plaintiff the option of working in his P4 role in San Francisco, and subsequently provided him the option of working out of Dolby’s Sunnyvale office to address his desire to leave San Francisco. (UMF 21; AB Dec. ¶ 6.) Plaintiff responded that that option still involved a commute, which he believed would contribute negatively to his mental health, even though no medical provider had stated that. (UMF 15.) F. November 2019: While Dolby Considers Plaintiff’s Request To Work Remotely, Plaintiff Unilaterally Finalizes His Move To Santa Cruz And Refuses To Continue In His Current Role; Dolby Nevertheless Continues To Grant Plaintiff’s Requests For Time Off. Throughout November 2019, Plaintiff made several written requests via email for time off due to illness, cortisone shots and recovery time, and adjusting to a change in medications. (DA Tr. 43:24-46:12; Ex. 9-11.) All of those requests were granted. (Id.) By this time-even though he had not yet heard back from Human Resources-Plaintiff planned to move to Santa Cruz regardless of whether Dolby let him work remotely or in a different role. (UMF 20; DA Tr. 180:21-181:1.) In fact, in April 2019, Plaintiff bought a mobile CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION home in Santa Cruz with the thought of living there at some point. (Id. 16:2-17; 107:9-16.) In November 2019, Plaintiff told his parents he was leaving San Francisco and moving to Santa Cruz. (Id. 109:4-12.) On November 17, 2019, Plaintiff made a Facebook post announcing his move back to Santa Cruz and admitted he was planning to move to Santa Cruz regardless of whether Dolby accommodated his working remotely or job down-leveling requests. (UMF 20.) G. December 2, 2019 - January 2, 2020: Plaintiff Forced Dolby To Terminate His Employment. On December 2, 2019, Miyagishima informed Plaintiff that he could not be a full-time remote employee and that Dolby could not agree to allow him to reduce the scope of his role or work semi-remotely. (UMF 22.) Dolby continued to reiterate that Plaintiff’s current, full-time role was available in San Francisco and never stated otherwise. (UMF 13, 22.) Miyagishima advised Plaintiff that if he was not willing to continue working in his current role or voluntarily resign, his employment would be terminated. (UMF 22, 23.) On December 6, 2019, for the first time, Plaintiff decided to obtain documentation from his doctor regarding his disability. (UMF 43.) On December 20, 2019, he received a note from his doctor but never gave it to anyone at Dolby and is unsure of why he did not do so. (UMF 44.) Plaintiff admits the note did not recommend moving to Santa Cruz or working remotely. (UMF 45.) Instead, the treatment recommendations included “aerobic exercise, a Mediterranean diet, mindfulness (e.g., yoga or meditation), socialization and antidepressant medication.” (UMF 45.) Plaintiff’s employment was terminated effective January 3, 2020. (UMF 24.) Plaintiff understood he was terminated because he was unwilling to continue in his current role or resign. (UMF 25.) He admitted that he potentially wanted to classify the termination as involuntary to collect unemployment benefits. (DA Tr. 196:9-21; 197:6-12.) He has no evidence that anyone based his termination on his mental health. (UMF 36; see also UMF 35.) III. DOLBY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON EACH OF PLAINTIFF’S CAUSES OF ACTION A. There Is No Triable Issue Of Disability Discrimination Under FEHA. A FEHA claim of discrimination is subject to a three-part burden-shifting test in which: (1) the plaintiff must establish a prima facie case of discrimination; (2) the employer must offer a CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION legitimate non-discriminatory reason for its actions; and (3) the plaintiff must prove that this reason was a pretext to mask an illegal motive. Guz v. Bechtel National Inc., 24 Cal. 4th 317, 354-356 (2000). “Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Plaintiff Cannot Establish A Prima Facie Case Of Discrimination. To state a prima facie case of discrimination under FEHA, a plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was performing competently in his position, (3) he suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. Guz, 24 Cal. 4th at 355. In the context of disability discrimination, the first element requires a plaintiff to show he was a qualified individual with a disability. Green v. State, 42 Cal. 4th 254, 267 (2007). Even assuming Plaintiff had a qualifying disability and was performing competently in his role,3 he cannot establish that he suffered any legally cognizable adverse employment action or identify any facts giving rise to an inference of discrimination. a. Plaintiff did not suffer any legally cognizable adverse employment action; he abandoned his job and thereby forced his own termination. Plaintiff did not suffer any adverse action, as his job was always available to him. (UMF 12, 13, 21.) He refused to perform that job-even though he admittedly was able to do so (UMF 7, 19)-and instead wanted a “lifestyle” modification so that he could move to Santa Cruz and work remotely and/or perform a reduced level job. Moreover, his proposed “option” of working in a lower-level remote job was a different role than the job he currently occupied. (DA Tr. 96:5- 9.) Plaintiff acknowledged that he was terminated because he was unwilling to continue in his current role in San Francisco as a P4 manager and unwilling to resign. (UMF 23, 25.)4 3 As noted in Section II.D, supra, Plaintiff’s performance was spotty. 4 Nor can Plaintiff establish a constructive termination. To do so, he must show a triable issue of fact “‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’ [Citations.]” Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1248 (1994). To CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION b. Plaintiff’s termination did not occur under circumstances giving rise to any inference of discrimination. Plaintiff’s termination was based solely on the fact that he no longer wanted to perform his P4 role in San Francisco. Plaintiff was well aware that the position was always available to him, and he admits he was able to perform the job. (UMF 7, 12, 13.) There is no evidence that his termination was based on his alleged disability. (UMF 36.) Plaintiff does not recall anyone at Dolby making discriminatory comments about his disability or treating him differently as a result. (UMF 33.) Nor does Plaintiff adduce any comparative evidence. He has not identified any similarly-situated employees without mental health issues who received more favorable treatment. His manager and immediate team members regularly worked in the San Francisco office. (UMF 37.) None of this raises any inference of disability-based animus. Plaintiff’s Refusal To Perform His Job Was A Legitimate, Non- Discriminatory Reason For His Termination. Even if Plaintiff could establish a prima facie case, his refusal to perform his job was a legitimate, non-discriminatory reason for his termination. See, e.g., Frazier v. United Postal Serv., Inc., No. 1:02CV6509OWWDLB, 2005 WL 1335245, at * 16 (E.D. Cal. 2005) (job abandonment and insubordination were legitimate, non-discriminatory reasons for termination). It is undisputed that Plaintiff’s P4 role in San Francisco was always available to him. (UMF 12, 13, 21, 22.) Instead, he chose to move to Santa Cruz and effectively abandon his job, but refused to resign, which gave Dolby no choice but to terminate him. (UMF 25.) Plaintiff admittedly was able to perform his P4 job, and could have done so living in Santa Cruz and commuting to San Francisco or Sunnyvale, or continuing to live in San Francisco (or a closer suburb). (UMF 7, 19.) His refusal to do so was a legitimate non-discriminatory reason for his termination. There Is No Triable Question Of Pretext. Plaintiff “must present specific and substantial responsive evidence” that Dolby’s reason was a pretext for disability discrimination, which he cannot do. King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426, 437 (2007). To meet this burden, he cannot “simply show the employer’s establish a constructive discharge, “adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” Id. at p. 1247 (fn. omitted). Here, Plaintiff was not coerced to abandon his job; resignation was simply one option since he had decided to move. (DA Tr. 199:5-13.) CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION decision was wrong, mistaken, or unwise. Rather, [he] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence ... and hence infer that the employer did not act for the ... non-discriminatory reasons.” Id. (internal quotations omitted). Such “evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination.” Id. at 433-434. Here, there is no evidence of pretext whatsoever. Plaintiff admits there is no evidence that anyone at Dolby terminated him based on his purported mental issues. (UMF 36.) To the contrary, the fact that Dolby continued to offer Plaintiff his P4 job and had discussions with him about classifying his termination as voluntary versus involuntary shows that it was not trying to treat him differently or terminate him because of his purported disability. (UMF 23, 34.) Indeed, the overall record belies any disability-based animus. Plaintiff presented with various medical conditions throughout his employment, and Dolby accommodated every single one. (UMF 27, 30.) Plaintiff bears the burden of proof, but is himself unsure if his employment was terminated in whole or in part because of his depression. (UMF 35.) B. There Is No Triable Issue Of Retaliatory Termination. Plaintiff’s complaint alleges a claim for retaliation and wrongful termination in violation of public policy that appears to be predicated on a FEHA retaliation violation.5 To prevail on such a claim, he must establish: (1) he engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. Iwekaogwu v. City of Los Angeles, 75 Cal. App. 4th 803, 814-815 (1999). His claim fails as a matter of law because there is no triable issue as to any legally cognizable protected activity or adverse action, and/or as to a causal link between any protected activity and his termination. 5 To the extent Plaintiff’s public policy claim is based on any of the other alleged FEHA violations, this claim duplicates and falls with them. See Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 229 (1999) (causes of action under FEHA and violation of public policy were duplicative and subject to summary judgment for the same reasons). CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Plaintiff Did Not Engage In Legally Cognizable Protected Activity. At the outset, Plaintiff’s retaliation claim fails because he did not engage in protected activity. His claim cannot be based on his allegedly notifying management of his mental health issues and then seeking unrelated modifications to his job. Merely notifying an employer of one’s medical status, even if it constitutes a “disability” under FEHA, does not constitute engaging in opposition to any practices forbidden under FEHA or participating in practices protected under FEHA. See Moore v. Regents of Univ. of California, 248 Cal. App. 4th 216, 247 (2016) (plaintiff merely “notifying [employer] of her heart condition” was not protected activity). Here, Plaintiff cannot establish that he provided Dolby with sufficient notice of both his purported disability and resulting need for accommodation. See Doe v. Dep’t of Corrections and Rehab., 43 Cal. App. 5th 721, 738-739 (2019) (“An employee cannot demand clairvoyance of his employer. Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the employee bears the burden to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.”) (Internal marks and citations omitted). While Plaintiff claims he told Dolby about his mental health issues and desire to work remotely and/or in a reduced role, unlike all of his prior accommodations for medical reasons, he never provided anyone with information regarding any specific work restrictions or accommodations that a medical provider believed he needed. (UMF 15-17, 42, 44.) This is because none existed. Nor did Plaintiff provide Dolby documentation from a health care provider recommending that he move to Santa Cruz, work remotely, or reduce the scope of his work. (UMF 10, 16, 18; DA Tr. 321:22-25.) Again, none existed. Under these circumstances-especially with an alleged mental disability that is not open or obvious- Plaintiff cannot carry his burden of showing that he engaged in legally cognizable protected activity. There Was No Legally Cognizable Adverse Action. As set forth in Section III.A.1.a supra, Plaintiff did not suffer any legally cognizable adverse action. His job in San Francisco remained open to him at all times (UMF 12, 13, 21), and Dolby also offered him the potential to work out of Sunnyvale (UMF 21), but he refused to either CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION perform his job or resign. Although the standard for an adverse action is broader for retaliation than for discrimination, the circumstances of his separation do not amount to an adverse action. See Light v. Calif. Dep’t of Parks & Recreation, 14 Cal. App. 5th 75, 91-92 (2017). There Is No Triable Issue Of Retaliatory Causation. Even assuming Plaintiff engaged in protected activity and suffered an adverse action, he cannot establish any link between his “accommodation” requests and his termination. Plaintiff has no evidence that his employment was terminated in whole or in part because of his depression (UMF 35), that anyone at Dolby relied on his mental health issues as a reason for his termination (UMF 36), or that he was fired because of his request to work remotely (UMF 47). At bottom, Plaintiff is relying solely on the timing and sequence of events, which is insufficient as a matter of law. See Loggins v. Kaiser Permanente Int’l, 151 Cal. App. 4th 1102, 1112 (2007) (affirming summary judgment in favor of employer; timing alone does not raise a triable issue of pretext). If anything, Dolby’s long record of accommodating Plaintiff belies any claim that he was terminated because he requested an accommodation. C. There Is No Triable Issue Of Failure To Provide Reasonable Accommodation. To establish a failure to provide reasonable accommodation, Plaintiff must establish that: (1) he has a disability covered by FEHA; (2) he can perform the essential functions of the job; and (3) Dolby failed to reasonably accommodate his disability. Scotch v. Art Institute of California - Orange County, Inc., 173 Cal. App. 4th 986, 1009-1010 (2009). Even if Plaintiff gave Dolby sufficient notice of his need for accommodation (which he did not, see Section III.B.1 supra), Dolby fully discharged its legal obligation to provide reasonable accommodation. Plaintiff Was Able To Perform The Essential Functions Of His Current Role Without Accommodation. The touchstone for a reasonable accommodation is its effectiveness in enabling a disabled employee to perform the essential functions of the job. Here, Plaintiff admits he was able to perform his job without any accommodation. As such, his requests for accommodation were not reasonable as a matter of law. Under FEHA, “reasonable accommodation” is defined as a modification that is “effective CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION in enabling” an employee “to perform the essential functions of the job the employee holds or desires.” Cal. Code Regs. tit. 2, § 11065 (emphasis added); see also Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 974 (2008) (reasonable accommodation is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.”) (emphasis added). Accordingly, an employer cannot, as a matter of law, be liable for failure to accommodate unless “the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.” Id. at 975 (emphasis added).6 The same is true under the federal Americans with Disabilities Act. See EEOC’s Enforcement Guidance: Reasonable Accommodation And Undue Hardship Under The Americans With Disabilities Act, 2002 WL 31994335, at *3 (Oct. 17, 2002) (to be “reasonable,” an accommodation “must be effective in meeting the needs of the individual. In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position.”) (emphasis added).7 Courts thus have held that where an employee can perform his job, no question of reasonable accommodation is presented. See, e.g., Brumfield v. City of Chicago, 735 F.3d 619, 632 (7th Cir. 2013) (“an employer’s accommodation duty is triggered only in situations where an individual who is qualified on paper requires an accommodation in order to be able to perform the essential functions of the job . . . . an employer need not accommodate a disability that is irrelevant to an employee’s ability to perform the essential functions of her job . . .”). Similarly, in Rauen v. U.S. Tobacco Mfg. Ltd. P’ship, 319 F.3d 891 (7th Cir. 2003), the plaintiff requested a home office as an accommodation for her cancer-related disability. The district court granted summary judgment on her accommodation claim, relying heavily on an unpublished opinion from the Sixth Circuit, which held that a 6 Accord Alsup v. U.S. Bancorp, No. 2:14-CV-01515-KJM, 2015 WL 224748, at *8 (E.D. Cal. Jan. 15, 2015) (to state a claim under FEHA for failure to accommodate, plaintiff must allege her “workplace could have been modified or adjusted such that she could perform the essential functions of her job”; holding that plaintiff failed to state a claim where plaintiff alleged the only possible accommodation was transferring to a different supervisor to reduce stress). 7 California courts look to authority interpreting the ADA for guidance on reasonable accommodation under FEHA. See Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 948 (1997). Federal authorities are of particular relevance to FEHA accommodation claims because the provisions of the acts are similarly worded. Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 381 n.1 (2015). CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION plaintiff who, though disabled, could perform all essential functions of the job without accommodation, did not prove the reasonableness of the requested accommodation. Black v. Wayne Ctr., No. 99-1225, 2000 WL 1033026, at *3 (6th Cir. 2000). Scotch, 173 Cal. App. 4th 986, is instructive. The plaintiff, an instructor, alleged that due to his disability, he needed to avoid stress and was unable to pursue a master’s degree while teaching full time and fulfilling professional development requirements. His employer offered him additional time to complete his program and modified his requirements. Id. at 1010. The plaintiff claimed the employer should have provided him priority in the assignment of courses. Id. at 1010-11. The Court of Appeal affirmed summary judgment for the employer because the plaintiff’s proposed accommodation was not a “modification or adjustment to the workplace necessary to enable him to perform the essential functions of his position.” Id. at 1012 (internal quotation marks omitted). The court concluded that plaintiff was not “requesting assignment from a position he could not manage to one he could” and that his requested accommodation was not reasonable because it “does not accommodate [plaintiff’s disability- related] limitations and was unnecessary to enable him to perform the essential functions of his position.” Id. The court further reasoned that the requested accommodation addressed a problem that “did not stem from [plaintiff’s] disability, or failure to accommodate that disability, but rather from his not having a master’s degree.” Id. Similarly here, Plaintiff admits he could perform the essential duties of his P4 role in San Francisco (UMF 6, 7, 19), but he unilaterally decided that it “wouldn’t work” and that leaving San Francisco and moving to Santa Cruz would alleviate his mental health challenges, and demanded that Dolby “accommodate” those personal preferences. Plaintiff admits he did not necessarily have to work in Santa Cruz to perform his key job duties. (UMF 39.) He believed that moving to Santa Cruz would be better for his mental health, yet has no explanation as to how this would enable him to perform duties he was unable to perform in San Francisco-and, in fact, admits there were none. (UMF 19, 42.) He also admits that he had not actually tried performing his job duties in Santa Cruz, but that it was simply his belief that the move would help him be more effective. (UMF 39.) Further, no doctor provided any documentation supporting Plaintiff’s CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION theories, and the only doctor’s note he did obtain (which he did not provide to Dolby), did not suggest his mental health issues required working remotely, a reduced role, or living in Santa Cruz. (UMF 17, 45.) See Munoz-Munoz v. Locke, No. C10-1475-JCC, 2012 WL 12925022, at *11 (W.D. Wash. Oct. 24, 2012) (granting summary judgment in favor of employer on plaintiff’s accommodation claim; notwithstanding plaintiff’s claim that her employer’s denial of her request to telecommute was “contrary to her doctor’s instruction,” those “instructions made no mention whatsoever about her inability to make her daily commute”). Dolby Was Not Required To “Accommodate” Plaintiff’s Lifestyle Or Commute Preferences. As a matter of law, Dolby was not required to accommodate what amounted to a lifestyle preference-Plaintiff’s desire to leave the “stress” of living in San Francisco and move to Santa Cruz. “The obligation to make reasonable accommodation . . . does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the individual with a disability . . . if an adjustment or modification assists the individual throughout his or her daily activities, on and off the job, it will be considered a personal item that the employer is not required to provide.” 29 C.F.R. § Pt. 1630, App. Various courts have held that employers are not required to give an employee with a disability his job of choice or accommodate a self-imposed lengthy commute. See, e.g., Robinson v. Bodman, 333 Fed. Appx. 205, 207-208 (9th Cir. 2009) (denying plaintiff’s work-from-home request; “[a]lthough an employee is required to make reasonable accommodations to eliminate barriers for a disabled employee in the workplace, the employer is not required to eliminate barriers outside the workplace that make it more difficult for the employee to get to and from work . . . .”).8 Plaintiff’s preference to leave the stressors of San Francisco did not give rise to any legal obligation to provide reasonable accommodation. Dolby Satisfied Its Accommodation Obligation As A Matter Of Law. In any event, Dolby satisfied any legal obligations with respect to Plaintiff’s request. 8 Accord Pinto v. New York City Admin. for Children’s Servs., No. 18-CV-1852 (KBF), 2018 WL 4333990, at *10 (S.D.N.Y. Sept. 11, 2018) (granting summary judgment on failure to accommodate claim where plaintiff rejected accommodations for personal reasons “including her distaste for a specific supervisor and her desire to work at a specific office” and “consistently complained about the cost and time associated with commuting to the proposed sites, but has failed to cite any case suggesting that an employer must accommodate an employee’s commuting preferences-likely because the case law cuts the other way”). CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Plaintiff proposed working remotely from Santa Cruz and/or a reduced scope of job duties. (UMF 8, 9.) Dolby reviewed these options and determined that: • No health care provider linked Plaintiff’s requests for accommodations to his mental health. (UMF 10, 17, 18, 42.) • Plaintiff’s immediate legal team worked out of the San Francisco office, and did not have a telecommuting practice. (UMF 37; AB Dec. ¶ 4.) • Part-time or reduced work was not an option or reasonable accommodation because it would have forced Beachnau and the other members of the IPP team to do additional work to complete their objectives and goals. (AB Dec. ¶ 6.) • Instead, Dolby offered Plaintiff the options of (1) continuing in his P4 manager role in San Francisco or (2) working out of Dolby’s Sunnyvale office in order to “accommodate” Plaintiff’s preference to be away from the stress of living in San Francisco. (UMF 12, 13, 21.) Dolby was not obligated to provide Plaintiff’s preferred accommodations or the ones he sought, especially where they were unreasonable. See Soldinger v. Northwest Airlines, Inc. 51 Cal. App. 4th 345, 370 (1996) (the employer “has the ultimate discretion to choose between effective accommodations”). Here, Plaintiff’s request for part-time or reduced work was not reasonable. As he admits, a lower-level part-time version of his job was essentially a different job. (DA Tr. 96:5-9.) Creating a new job or shifting essential job duties are not reasonable accommodations. See Nealy, 234 Cal. App. 4th at 375 (eliminating, excusing, or reallocating essential job functions are not reasonable accommodations). Nor was Dolby obligated to grant Plaintiff’s request to telecommute from Santa Cruz where he had no work-related limitations at all, let alone any that necessitated working from home (and let alone in Santa Cruz). See Sections III.C.1 and III.C.2 supra; see also, U.S. EEOC, Work at Home/Telework as a Reasonable Accommodation, https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation (last visited Feb. 4, 2021) (Item 3 states that telework should be “made through a flexible ‘interactive process’ between the employer and the individual. The process begins with a request. An individual must first inform the employer that s/he has a medical condition that requires some change in the way a job is performed. The individual does not need to use special words, such as ‘ADA’ or ‘reasonable accommodation’ to make this request, but must let the employer know that CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION a medical condition interferes with his/her ability to do the job;” and Item 5 states, “An employee may work at home only to the extent that his/her disability necessitates it.”) (emphases added); see also, U.S. EEOC, What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO laws, https://www.eeoc.gov/wysk/what-you-should-know- about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (last updated Dec. 16, 2020), Item D15 (“Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation”). Finally, as Plaintiff preferred to no longer live in San Francisco, Dolby (although not required to do so under the law) offered him the option of working out of the Sunnyvale office (UMF 21), which would have eliminated his “stressor” of living in San Francisco. In sum, Dolby was permitted to reject unreasonable accommodations and propose reasonable accommodations (the P4 job in San Francisco or in Sunnyvale), even if they were not Plaintiff’s preferred accommodations. There is no triable issue of failure to accommodate. D. There Is No Triable Issue Of Failure To Engage In The Interactive Process Under FEHA. An employer must engage in a “timely, good faith interactive process…in response to a request for reasonable accommodation by an employee…with a known physical or mental disability or known medical condition.” Gov’t Code § 12940(n) (emphasis added); 2 Cal. Code Reg. § 11069(a). The employee has the responsibility to initiate the process by requesting reasonable accommodation, and must “cooperate in good faith with the employer” by providing “reasonable medical documentation” when the disability or need for accommodation is not obvious. 2 Cal. Code Reg. § 11069(d). Plaintiff cannot meet his burden. At the outset, Dolby cannot be liable for failure to engage in the interactive process where no reasonable accommodation was possible. See Nadaf-Rahrov, 166 Cal. App. 4th at 981-982 (the availability of a reasonable accommodation is necessary to an interactive process claim). Plaintiff bears the burden of proving that a reasonable accommodation was possible, and cannot CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION present any evidence raising a triable issue on this point. Id. at 985; Scotch, 173 Cal. App. 4th at 1018-1019 (employee must be able to identify a reasonable accommodation that was available at the time of the interactive process). Typically, the employee must provide a list of restrictions that must be met to accommodate the employee. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 266 (2000); see also King, 152 Cal. App. 4th at 444 (affirming summary judgment in favor of employer on interactive process and accommodation claims where employee did not make “the kind of specific request for a modified work schedule required to trigger an employer’s duty to provide accommodation. . . . [I]t was incumbent upon him to produce clear and unambiguous doctor’s orders restricting the hours he could work.”). Here, Plaintiff failed to provide a list of clear restrictions to Dolby (because there were none), and failed to identify any reasonable accommodation that was available at the time. Although Plaintiff understood from prior medical leaves that part of the process was to present specific accommodations and/or documentation, he failed to do so and instead repeatedly asked to work remotely or in a reduced role without providing any documentation or medically linking the requested preferences to his mental health. (UMF 10, 16.) Further, when referencing his “worsening mental health” to Beachnau, he explained that his “inability to live up to the requirements/expectations of [his] role is largely due to the stressors associated with [his] current San Francisco living situation.” (UMF 40.) Plaintiff admitted the stressors related to San Francisco were living in a crowded city and stressors with his roommate. (UMF 41.) Plaintiff also failed to link his mental health to any restrictions that supported his request to work remotely or in a reduced role. He only mentioned he had depression and he wanted to work remotely to be near his support network in Santa Cruz, but did not provide any reasons or support for why this accommodation was needed for his depression. (UMF 42.) Plaintiff also admitted he could perform his key job duties at the time he sought the accommodations (UMF 6, 7, 19), thereby undermining any argument that there was a link between his accommodations and mental health. The one doctor’s note Plaintiff obtained-but did not provide to Dolby-did not reference remote work, a reduced role, or living in Santa Cruz. (UMF 45.) CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Despite Plaintiff’s lack of written notice or specific accommodations sought, Dolby engaged with Plaintiff about why working remotely would not work, gave him the option of working from the Sunnyvale office, and reiterated that his San Francisco role remained open. (UMF 12, 13, 21.) If anything, Plaintiff obstructed and hindered the process by failing to provide any information from a medical provider. See, e.g., Allen v. Pac. Bell, 348 F.3d 1113, 1115 (9th Cir. 2003) (an employer “do[es] not have a duty under the ADA ... to engage in further interactive processes ... in the absence of” medical evidence.) Indeed, the record demonstrates that Plaintiff did not engage in the process in good faith-he unilaterally decided to move to Santa Cruz before even hearing back from Human Resources on the requested accommodation. (UMF 20; DA Tr. 180:21-181:1.)9 There is no triable issue as to interactive process. IV. ALTERNATIVELY, DOLBY IS ENTITLED TO SUMMARY ADJUDICATION ON PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES Plaintiff’s claim for punitive damages fails as they may be awarded only “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). A corporation’s liability for punitive damages is limited to acts ratified, authorized, or committed by a corporate officer, director, or managing agent. Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1151 (1998); Cal. Civ. Code § 3294(b). A. There Was No “Oppression, Fraud, Or Malice.” “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civ. Code, § 3294, subd. (c). “Malice” is conduct intended “to cause injury” or the defendant’s “despicable conduct” “with a willful and conscious disregard of the rights . . . of others.” Id. “Fraud” is “an intentional misrepresentation, deceit, or concealment . . . with the intention . . . of thereby depriving a person of property or legal rights” or causing injury.” Id. Plaintiff must adduce evidence that is “so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.” Shade Foods v. Innovative Prods. Sales Mktg., Inc., 78 Cal. App. 4th 847, 891 (2000). Here, there is no evidence that Dolby’s conduct constitutes oppression, fraud or malice. 9 Tellingly, since moving to Santa Cruz, Plaintiff has failed to apply for a single corporate job and is working in the grocery delivery business (DA Tr. 222:21-224:25), all of which further reflect his desire for a lifestyle change. CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Even Plaintiff admits he cannot tell if anyone at Dolby acted with fraud or malice. (UMF 48.) To the contrary, Dolby repeatedly offered Plaintiff his job, but he refused to perform it or resign, leaving Dolby no choice but to terminate his employment. (UMF 23, 25.) This decision does not reflect a “conscious disregard” of Plaintiff’s rights. Similarly, Dolby’s extensive history of accommodations (UMF 27, 30), does not reflect oppression, fraud or malice. Further, liability is limited as Dolby has clear policies prohibiting discrimination and retaliation. (UMF 26, 46). See White v. Ultramar, Inc., 21 Cal. 4th 563, 568 n.2 (1999) (“[I]f a company has a written policy that specifically forbids [the unlawful conduct at issue], it may operate to limit corporate liability for punitive damages, as long as the employer implements the written policy in good faith.”). Moreover, even if Plaintiff could raise a triable issue of discrimination or retaliation (he cannot), that alone would not support a claim for punitive damages. See Scott v. Phoenix Schools, Inc., 175 Cal. App. 4th 702, 716-17 (2009) (reversing award of punitive damages; “termination for an improper reason” alone is “insufficient to support a finding of despicable conduct, because such action is not vile, base or contemptible”). B. There Was No Conduct By A “Managing Agent.” Nor can Plaintiff adduce evidence that any officer, director, or managing agent was involved in the alleged conduct. Under California law, a managing agent is one who “exercised substantial discretionary authority over significant aspects of [Dolby’s] business.” White, 21 Cal. 4th at 577; see also Roby v. McKesson Corp., 47 Cal. 4th 686, 714-715 (2009) (to be a managing agent, employee must exercise discretion over “formal policies that affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership.”). The first-level managers or Human Resources partners involved in Plaintiff’s accommodation requests and alleged termination do not qualify. See Cruz v. HomeBase, 83 Cal. App. 4th 160, 168 (2000) (first-level supervisor who has the right to hire and fire employees is not a “managing agent”). At a minimum, summary adjudication thus is proper on Plaintiff’s punitive damages claim. V. CONCLUSION For the foregoing reasons, this Court should grant Dolby’s motion for summary judgment, or in the alternative, summary adjudication. CURLEY, HURTGEN & JOHNSRUD LLP COU N SE LO RS AT LA W MEN LO PA R K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CASE NO. CGC-20-584905 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Dated: March 4, 2021 CURLEY, HURTGEN & JOHNSRUD LLP By /s/ Katherine Huibonhoa KATHERINE HUIBONHOA Attorneys for Defendant DOLBY LABORATORIES, INC.