memorandum of points and authorities in support of motion for summary

Cal. Super. - 1st Dist.October 21, 2021

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 0 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 Andrew J. Sommer, State Bar No. 192844 Megan S. Shaked, State Bar No. 274174 CONN MACIEL CAREY LLP 870 Market Street, Suite 1151 San Francisco, California 94102 Telephone: (415) 268-8894 Facsimile: (415) 268-8889 asommer@connmaciel.com mshaked@connmaciel.com Attorneys for Defendant, SUREFOX NORTH AMERICA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO MICHAEL WARE, an individual, Plaintiff, v. SUREFOX NORTH AMERICA, a California corporation; and DOES 1 to 50 inclusive, Defendants. CASE NO. CGC-20-588048 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUREFOX NORTH AMERICA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION [Filed concurrently with Separate Statement of Undisputed Material Facts; Declarations of Audrey Peterson, Sean Lafrance and Andrew J. Sommer; Exhibits; [Proposed] Order; and Proof of Service] Date: January 6, 2022 Time: 9:30 AM Department: 302 By Videoconference using Zoom Complaint Filed: November 30, 2020 Trial Date: February 7, 2022 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 10/21/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................................. 1 II. STATEMENT OF FACTS ................................................................................................. 1 III. PROCEDURAL HISTORY ................................................................................................ 5 IV. LEGAL DISCUSSION ....................................................................................................... 5 A. Summary Judgment Standard ................................................................................. 5 B. Summary Adjudication of Plaintiff’s Second Cause of Action for Failure to Accommodate Is Warranted Because Plaintiff Was Accommodated ..................... 5 1. Plaintiff Is Not a Qualified Individual Because He Could Not Perform The Incident Commander Position ............................................... 6 2. Ware Could Not Perform the Incident Commander Position Without Endangering the Health or Safety of Others or Himself ............... 8 3. Plaintiff Was Offered Alternative Position as Reasonable Accommodation .......................................................................................... 9 4. Plaintiff Was Placed on Unpaid Leave When No Open Position Was Available ............................................................................................. 9 C. Summary Adjudication of Plaintiff’s Third Cause of Action for Failure to Engage in Interactive Process Is Warranted Because Plaintiff Was Accommodated and Did Not Seek Further Accommodation ............................... 10 D. Summary Adjudication of Plaintiff’s First Cause of Action for Disability Discrimination Claim Is Warranted Because Plaintiff Was Terminated For a Legitimate Non-Discriminatory Reason and Plaintiff Cannot Establish Pretext ................................................................................................................... 12 1. Plaintiff Cannot Make Out a Prima Facie Case of Discrimination .......... 12 2. Plaintiff Was Terminated Because There Was No Vacant Position for Which He was Qualified ..................................................................... 13 3. Plaintiff Cannot Establish Pretext ............................................................. 13 E. Summary Adjudication of Plaintiff’s Fourth Cause of Action for Disability Retaliation Claim Is Warranted Because Plaintiff Was Terminated For a Legitimate Non-Discriminatory Reason and Plaintiff Cannot Establish Pretext ................................................................................................................... 14 F. Summary Adjudication of Plaintiff’s Fifth Cause of Action for Failure to Prevent Discrimination or Retaliation Is Warranted Because There is No Viable Claim for Discrimination or Retaliation .................................................... 16 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 G. Summary Adjudication of Plaintiff’s Sixth Cause of Action for Retaliation in Violation of Labor Code Sections 98.6 and 1102.5 Is Warranted Because Plaintiff Cannot Establish Discrimination or Retaliation ..................................... 16 H. Summarily Adjudication of Plaintiff’s Seventh Cause of Action for Wrongful Termination in Violation of Public Policy Is Warranted Because Plaintiff Cannot Establish the Claims Under FEHA or Labor Code on Which This Claim is Based ................................................................................... 17 I. Summary Adjudication is Warranted on Plaintiff’s Prayer for Punitive Damages ................................................................................................................ 18 V. CONCLUSION ................................................................................................................. 19 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 TABLE OF AUTHORITIES Cases Page(s) Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ................................................................................................................ 5 Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327 .................................................................................................... 12 Avila v. Cont’l Airlines, Inc. (2008) 165 Cal.App.4th 1237 .................................................................................................. 12 Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112 .................................................................................................... 19 CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255 .................................................................................................... 19 DFEH v. Lucent Techs., Inc. (9th Cir. 2011) 642 F.3d 728 ............................................................................................... 6, 13 Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805 .................................................................................................... 13 Gould v. Maryland Sound Indus., Inc. (1995) 31 Cal.App.4th 1137 .................................................................................................... 18 Green v. State of California (2007) 42 Cal.4th 254 .......................................................................................... 6 Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317 ........................................................................................................ 12, 14 Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215 ............................................................................................ 9, 10, 13 Hersant v. Dept. of Soc. Servs. (1997) 57 Cal. App. 4th 997 .................................................................................................... 14 Kees v. Wallenstein (9th Cir. 1998) 161 F.3d 1196 ............................................................................................... 7, 8 Light v. Dep’t. of Parks and Recreation (2017) 14 Cal.App.5th 75 ........................................................................................................ 15 Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962 ...................................................................................................... 7 McDonnell Douglas Corp v. Green (1973) 411 U.S. 792 ................................................................................................................. 12 Miller v. Dept. of Corr. (2005) 36 Cal.4th 446 .............................................................................................................. 15 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 Moore v. Regents of the Univ. of Cal. (2016) 248 Cal.App.4th 216 .............................................................................................. 12, 14 Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952 ................................................................................................ 6, 10 Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935 ........................................................................................................ 6 Raine v. City of Burbank (2006) 135 Cal.App.4th 1215 .................................................................................................... 9 Reader's Digest Ass'n v. Superior Court (1984) 37 Cal.3d 244 ............................................................................................................... 19 Scotch v. Art Inst. (2009) 173 Cal.App.4th 986 ............................................................................................ 6, 9, 10 Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830 .............................................................................................. 14, 16 Spitzer v. The Good Guys, Inc . (2000) 80 Cal.App.4th 1376 .................................................................................................... 6 Swanson v. Morongo Unified Sch. Dist. (2014) 232 Cal.App.4th 954 .................................................................................................... 11 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 ......................................................................................................... 17, 18 Trujillo v. North Co. Transit Dist. (1998) 63 Cal.App.4th 280 ...................................................................................................... 16 Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 .............................................................................................................. 18 Turner v. City & County of San Diego (N.D. Cal. 2012) 892 F. Supp. 2d 1188 ................................................................................... 17 Watkins v. Ameripride Servs. (9th Cir. 2004) 375 F.3d 821 ..................................................................................................... 9 White v. Ultramar (1999) 21 Cal.4th 563 ........................................................................................................ 18, 19 Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 ............................................................................................................ 15 Statutes Cal. Civ. Code, § 3294(a) ............................................................................................................. 18 Cal. Civ. Code, § 3294 (b) ...................................................................................................... 18, 19 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 Cal. Civ. Code, § 3294 (c)(1) ........................................................................................................ 18 Cal. Code Civ. Proc. § 437c (c) .............................................................................................. 5, 8, 9 Cal. Code Civ. Proc. § 437c (f) ....................................................................................................... 5 Cal. Gov’t Code §§ 12900, et seq. .................................................................................................. 5 Cal. Gov’t Code § 12940(a) .......................................................................................................... 12 Cal. Gov’t Code § 12940(h) .......................................................................................................... 15 Cal. Gov’t Code § 12940(m) ....................................................................................................... 5, 6 Cal. Gov’t Code § 12940(h) .......................................................................................................... 15 Cal. Gov’t Code § 12940(l)(4) ...................................................................................................... 15 Cal. Gov’t Code § 12940(k) .......................................................................................................... 16 Cal. Gov’t Code § 12940(n) .......................................................................................................... 10 Cal. Gov’t Code § 12940(f)(2) ...................................................................................................... 17 Cal. Gov’t Code § 12940(a)(1) ....................................................................................................... 8 Cal. Gov’t Code § 12940(f)(2) ...................................................................................................... 15 Cal. Lab. Code § 98.6 ......................................................................................................... 5, 16, 17 Cal. Lab. Code § 98.6(a) ............................................................................................................... 17 Cal. Lab. Code § 1102.5 ............................................................................................... 5, 16, 17, 18 Regulations 2 C.C.R. § 11017(a) ................................................................................................................ 15, 17 2 C.C.R. § 11017(e) ...................................................................................................................... 15 2 C.C.R. § 11023(a)(2) .................................................................................................................. 16 2 C.C.R. § 11065(e) ........................................................................................................................ 6 2 C.C.R. § 11065(e)(1) .................................................................................................................... 6 2 C.C.R. § 11065(e)(2) .................................................................................................................... 7 2 C.C.R. § 11065(p) ........................................................................................................................ 9 2 C.C.R. § 11067(b) ........................................................................................................................ 8 2 C.C.R. § 11067(c) ........................................................................................................................ 8 2 C.C.R. § 11068(c) .................................................................................................................. 9, 10 2 C.C.R. § 11068(c) ........................................................................................................................ 9 2 C.C.R. § 11068(d)(4) ................................................................................................................... 9 2 C.C.R. § 11068(e) ........................................................................................................................ 9 2 C.C.R. § 11069(d)(4) ............................................................................................................. 9, 10 29 C.F.R. § 1630.2 .......................................................................................................................... 6 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 I. INTRODUCTION This case arises from Plaintiff Michael Ware’s (“Plaintiff” or “Ware”) employment as an Incident Commander with Defendant Surefox North America (“Surefox”), which provides onsite security services to businesses. Ware’s employment was terminated because he could not perform the essential job functions of the modified Incident Commander position, requiring that he be able to respond to and assume command during emergencies, and, after a temporary placement, there was ultimately no other available position for which he was qualified. Ware contends that he was denied a reasonable accommodation and terminated due to his alleged disability, among other disability-related claims. However, the undisputed evidence shows that Ware was reasonably accommodated with an alternate position as long as that position remained available. When that position was eliminated due to changing needs of Surefox’s client, for which Ware worked, and there were no open positions Ware could perform within Surefox, he was placed on an unpaid leave of absence. As Ware confirmed his restrictions were permanent and there was no indication that he could perform the essential functions of the Incident Commander position in the foreseeable future, Ware’s employment was ultimately terminated. Plaintiff’s claims are based on nothing more than his own conjecture and speculation about what duties should be expected of an Incident Commander, and thus he cannot prevail on his claims. Given the uncontroverted testimony by Surefox management about the physical demands of the Incident Commander position based on client requirements for this high-level security role, and that Ware could not perform those physical requirements or any other open alternative position as of the date of his termination, summary judgment of these claims in Surefox’s favor is warranted. II. STATEMENT OF FACTS A. Background on Plaintiff’s Position Surefox is a veteran-owned security consulting firm providing customized security and risk management to meet its clients’ needs. Declaration of Sean Lafrance (“Lafrance Decl.”), ¶ 2; Statement of Undisputed Fact (“SUF”) No. 1. Surefox has provided security services to a 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 company at its various campuses in the San Francisco Bay Area (hereinafter referred to as “the Client”). Lafrance Decl., ¶¶ 2-3; Declaration of Audrey Peterson (“Peterson Decl.”) ¶ 2; SUF No. 1. In approximately early 2019, the needs of Surefox’s Client changed and the Client required a smaller footprint of Surefox guards in a higher-level security role who were able to respond to and assume command during emergencies. Lafrance Decl., ¶ 3; SUF No. 3. As a high-profile company, the Client required security guards who could declare themselves the incident commander for any given incident, take charge, and coordinate with third parties as necessary. Id. at ¶ 4. The Client thus reduced the total number of Surefox guards it staffed. Id. at ¶ 3. In response to the changing needs of the Client, Surefox distinguished between a non- incident commander guard who could provide general security services and the Incident Commander who could also provide incident command and emergency response. Id. at ¶ 4. The Incident Commander position was modified to require, among other things, the ability to take command during emergencies and pass the Surefox Physical Agility Test (“SPAT”). Lafrance Decl., ¶ 5, Ex. A; SUF No. 3-4. The SPAT was designed to test a participant’s ability to perform the physical requirements of the job, including, dragging 180 pounds for 30 yards. Lafrance Decl., ¶ 6; SUF No. 5. At the time of this transition in the Incident Commander role, Ware, who was hired in October of 2018 in the position of Incident Commander, was providing security services to the Client at its Mountain View location. Peterson Decl. ¶ 2; SUF No. 2. As such, Surefox notified Ware of the changing needs of the Incident Commander position. Lafrance Decl., ¶¶ 10-12, Ex. B. Surefox also informed Ware of the requirements of the SPAT and that passing the SPAT was required for continued employment as an Incident Commander. Id. Plaintiff understood that the SPAT was a new requirement as of July 2019 based on contractual requirements with the Client that required changes to the Incident Commander position. Deposition of Plaintiff (“Plaintiff Depo.”), 99:21-100:091. The non-incident commander position was phased out and ultimately eliminated in approximately September 1, 2019 due to Surefox’s Client no longer 1 The deposition excerpts referenced herein are attachments to the Declaration of Andrew J. Sommer. 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 requiring from Surefox non-incident commander positions. Lafrance Decl., ¶ 14; SUF No. 10. B. Surefox’s Accommodation of Plaintiff’s Restrictions On or about July 12, 2019, Ware requested that he be excused from the SPAT requirement that he drag a 180-pound dummy for 30 yards. SUF No. 6. This request was based on a doctor’s note indicating that Ware had a “history of back pain.” Ibid. The ability to drag a person of 180 pounds for 30 yards is critical to the Incident Commander position because Incident Commanders need to be able to respond to events ranging from medical incidents, to natural disasters and active shooter events, including taking charge during such an incident and, if need be, getting people to safety or an accessible location for emergency services. Lafrance Decl., ¶ 7. Because such incidents are unexpected, Surefox Incident Commanders have to be prepared to respond without advanced notice. Ibid. For example, Surefox Incident Commanders have in the past responded to building evacuations due to earthquakes, fires and power outages that might require carrying an individual to safety. Ibid. The Incident Commanders also have responded to medical emergencies including interfacing with a suicidal individual threatening to jump from a building, responding to someone with a seizure disorder, and responding to a serious vehicle accident. Ibid. Immediately following Ware’s request for accommodation, then Human Resources Manager, Audrey Peterson (“Peterson”)2, reached out to Ware to discuss his request. Peterson Decl., ¶¶ 4-5, Ex. B-C; Plaintiff Depo., 74:18-75:13, 76:07-79:12, 80:20-24, 87:02-88:23, Depo. Ex. 8- 10. Peterson explained that given the restrictions set forth in Ware’s doctor’s note and reasonable accommodation paperwork, Surefox could accommodate the request by offering him either an unpaid leave through August 9, 2019 or a part-time assignment to non-incident commander shifts. Peterson Decl., ¶ 5, Ex. C. Peterson also explained to Ware that dragging 180 pounds for 30 yards was an essential job function of the Incident Commander position and that he could not be staffed in an Incident Commander position until he passed the SPAT. Ibid. Peterson also explained to Ware that the non-incident commander shifts would be phased out and that Surefox could not guarantee a minimum number of hours for the non-incident commander 2 Peterson is currently Employee Relations Program Manager. 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 shifts. Ibid. Although Surefox had already offered to accommodate Ware and did not expect him to attend the SPAT scheduled for July 13, 2019, Ware attended the SPAT but chose not to participate. Id. at ¶¶ 5-6. Beginning July 16, 2019, Surefox staffed Ware in non-incident commander shifts. Id. at ¶ 7; Plaintiff Depo., 100:24-101:17; SUF No. 8. Not knowing whether Ware’s restrictions had changed, Surefox continued to communicate with Ware about subsequently scheduled SPAT dates, reiterated the same accommodations offered, and kept Ware informed of when the non-incident commander position would be eliminated. Peterson Decl., ¶ 8-9, Ex. D-E; Plaintiff Depo., 96:03-99:20, 100:24- 101:15-104:4, Depo. Ex. 13. On August 8, 2019, in response to multiple requests from Surefox, Ware confirmed that his back condition was permanent. SUF No. 9. On August 12 and 16, 2019, Peterson confirmed with Ware that without passing the SPAT he would remain in a non-incident commander position until such position was eliminated but that he could not be staffed in an Incident Commander position. Peterson Decl. ¶¶ 11-12, Ex. G-H. Peterson also informed Ware that Surefox was actively reviewing open positions, but that it could not guarantee alternatives for the non-incident commander guard role would be available. Peterson Decl. ¶ 12, Ex. H; Plaintiff Depo., 106:13-107:12, Depo. Ex. 16. Ware understood that the non-incident commander position would be eliminated September 1, 2019. Plaintiff Depo., 111:01-11. Ware never requested a different accommodation. Peterson Decl. ¶ 4; Sommer Decl., Ex. D, 75:02-77:07, 79:13-80:19, 167:13-169:02, Depo Ex. 9. Surefox continued to staff Ware in non-incident commander shifts through August 30, 2019, when the non-incident commander position was eliminated. SUF No. 8. On September 1, 2019, Ware was placed on an unpaid leave of absence based on the absence of any open positions he could perform. SUF No. 11. From September 1, 2019 through January 8, 2020, there were no open positions available within Surefox in California for which Ware was qualified. SUF No. 12. Ware was ultimately terminated effective January 8, 2020 after Ware confirmed that his restrictions were permanent and there was no indication that he could return to an Incident Commander position at any time in the foreseeable future. Peterson Decl., ¶ 15; Lafrance Decl., ¶ 18, Plaintiff Depo., 115:19-116:07; SUF NO. 12. 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 III. PROCEDURAL HISTORY Ware filed a Complaint against Surefox alleging causes of action for (1) disability discrimination in violation of California’s Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code §§ 12900, et seq.; (2) failure to accommodate in violation of the FEHA; (3) failure to engage in the interactive process in violation of the FEHA; (4) retaliation in violation of the FEHA; (5) failure to prevent discrimination and retaliation in violation of the FEHA; (6) retaliation in violation of Labor Code sections 98.6 and 1102.5; and (7) wrongful termination in violation of public policy. The parties have engaged in extensive written discovery and depositions of key witnesses. Declaration of Andrew J. Sommer (“Sommer Decl.”) ¶¶ 2-3. IV. LEGAL DISCUSSION A. Summary Judgment Standard A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Cal. Code Civ. Proc. § 437c, subd. (c). A motion for summary adjudication may be brought as to one or more causes of action or claims for damages. Cal. Code Civ. Proc. § 437c, subd. (f). The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if the moving party carries its burden of production, this causes a shift, and the opposing party is then subjected to a burden of production to make a prima facie showing of the existence of a triable issue of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851. As discussed below, Ware does not possess, and cannot reasonably obtain, the evidence to support his Complaint and thus Surefox is entitled to judgment as a matter of law. In the alternative, Surefox is entitled to summary adjudication as to each of Ware’s causes of actions. B. Summary Adjudication of Plaintiff’s Second Cause of Action for Failure to Accommodate Is Warranted Because Plaintiff Was Accommodated Ware’s second cause of action for failure to accommodate fails as a matter of law because Ware was reasonably accommodated. Under the FEHA, an employer is required to reasonably accommodate an employee for any known physical disability. Cal. Gov’t Code § 12940(m). To establish a prima facie case for a failure to accommodate claim, Ware must show that: 1) he 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 suffers from a disability covered by the FEHA; 2) he was a qualified individual (i.e., he can perform the essential functions of the position); and 3) Surefox failed to reasonably accommodate his disability. Scotch v. Art Inst. (2009) 173 Cal.App.4th 986, 1009-1010; Green v. State of California (2007) 42 Cal.4th 254, 257-258, 257-259. 1. Plaintiff Is Not a Qualified Individual Because He Could Not Perform The Incident Commander Position As a threshold matter, a plaintiff seeking relief for a failure to accommodate must be able to perform the essential functions of the position at issue with or without reasonable accommodation. Green, supra, 42 Cal.4th at 257-258, 260 (a plaintiff’s inability to show that he or she was a “qualified individual” is fatal to any claim under FEHA’s disability provisions); Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977-978 (applying Green analysis to a failure to accommodate claim under section 12940(m) and confirming that “the burden of proving ability to perform the essential functions of a job with accommodation should be placed on the plaintiff”). The FEHA regulations define “essential job functions” as the job duties fundamental to the position the employee holds, as opposed to marginal functions. 2 Cal. Code of Reg. § 11065, subd. (e).3 The FEHA does not impose on an employer the obligation to reassign essential job functions as a form of accommodation. See, e.g., DFEH v. Lucent Techs., Inc. (9th Cir. 2011) 642 F.3d 728, 744; Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 (employer not required to create a new job to accommodate an employee). A job function may be considered essential because the reason the position exists is to perform that function, because there is a limited number of employees available among whom the performance of that job function can be distributed, or because the function is highly specialized. 2 Cal. Code of Reg. § 11065, subd. (e)(1). Evidence of whether a particular function is essential can include the employer’s judgment as to which functions are essential, written job descriptions, the legitimate business consequences of not requiring the incumbent to perform the function, and 3 These regulations adopted by the Fair Employment and Housing Commission are patterned after regulations implementing the Americans with Disabilities Act (“ADA”). See 29 C.F.R. § 1630.2, subd. (n) on “essential job functions.” Accordingly, the decisions interpreting the ADA and its regulations are relevant in deciding this disability claim brought under FEHA. Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 948. 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 the work experience of incumbents in similar jobs. 2 Cal. Code of Reg. § 11065, subd. (e)(2). Duties that are not required regularly may still constitute essential job functions. For example, the court in Lui v. City and County of San Francisco upheld the trial court finding that even though police officers in administrative positions were not frequently required to engage in physically strenuous duties, such as making forcible arrests, chasing fleeing suspects and responding in emergency situations, such strenuous activities were essential functions of the administrative position because the department had a legitimate need to be able to deploy officers in those administrative positions in the event of emergencies or other mass mobilizations. Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 965-966 (rejecting plaintiff’s discrimination, failure to accommodate, and failure to engage in the interactive process claims under the FEHA). The court in Lui relied, in part on, Kees v. Wallenstein (9th Cir. 1998) 161 F.3d 1196, 1199, which held that plaintiff corrections officers were not qualified individuals under the Americans with Disabilities Act (“ADA”) because their disabilities prevented them from having direct inmate contact, and such contact was an essential function of the corrections officer position. The court in Kees reasoned that even though the corrections officers assigned to the control room were not expected to have inmate contact on a regular basis, the employer and written job description identified inmate contact as a fundamental duty. Id. Further, the officers’ ability to restrain inmates during an emergency was critical to jail security and an inability to respond to emergencies would jeopardize jail safety. Id. Here, Ware cannot prove the second prong of his prima facie case, namely that he was a qualified individual who could perform the essential functions of the Incident Commander position, with or without accommodation. The Incident Commander position, as modified in or about May 2019, required the ability to drag a 180-pound dummy for 30 yards, and Ware could not perform that physical requirement given his restrictions. SUF No. 3-7, 9. This dragging rescue function is critical to the Incident Commander position, as modified pursuant to Client needs in or about May 2019. Lafrance Decl., ¶¶ 3-10, Ex. A-B. The ability to perform this rescue function is essential to the modified Incident Commander position because Incident Commanders need to be able to respond to emergency events such as medical incidents, 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 natural disasters, active shooter events, including, if need be, getting an injured, unconscious or otherwise impaired person to safety or an accessible location for emergency services. Ibid. The modified Incident Commander role thus existed, to respond to emergencies, including demonstrating the ability to perform the rescue function. As discussed further in Section B.2. below, there was a serious risk of injury to employees and others should an Incident Commander not be able to perform the rescue function of the position. After engaging in the interactive process, described further in Section C below, there was simply no reasonable accommodation that would have allowed Ware to perform the essential functions of the Incident Commander position. Because Plaintiff cannot prove he was a qualified individual able to perform the Incident Commander position, summary adjudication of this claim in Surefox’s favor is appropriate. 2. Ware Could Not Perform the Incident Commander Position Without Endangering the Health or Safety of Others or Himself In addition, the FEHA does not require an employer to accommodate a disabled employee where there is no reasonable accommodation that would allow the employee to perform the essential functions of the position in a manner that would not endanger the health or safety of the employee or others because the job imposes an imminent and substantial degree of risk to the employee or others. 2 Cal. Code of Reg. § 11067, subd. (b) and (c); Cal. Gov’t Code § 12940, subd. (a)(1). Factors to consider include: the duration of the risk; the nature and severity of the potential harm; the likelihood that potential harm will occur; the imminence of the potential harm; and consideration of relevant information about the employee’s past work history. 2 Cal. Code of Reg. § 11067, subd. (e). Allowing Ware to remain in the Incident Commander position when he could not perform the rescue function would pose a serious risk to both Ware and others. Lafrance Decl., ¶ 8. If Ware responded to an emergency and attempted a rescue he could not physically perform, he would risk injury to himself. Ibid. Likewise if Ware was unable to perform a necessary rescue involving an injured person, there could be serious consequences for the injured person. Ibid. 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 Considering Surefox’s history of responding to the types of incidents on behalf of the Client that require a rescue function, the risk to Ware and others was substantial. Lafrance Decl., ¶¶ 7-9. 3. Plaintiff Was Offered Alternative Position as Reasonable Accommodation Plaintiff’s claim is also fatally deficient because Ware cannot meet his burden of proving that Surefox failed to reasonably accommodate him. Scotch, supra, 173 Cal.App.4th 986, 1009- 1010. A reasonable accommodation may include reassignment to a vacant position….” 2 Cal. Code of Reg. §§ 11065, subd. (p), 11068, subd. (c), (d). Reassignment to a vacant position may be a required form of accommodation but only if a vacant position exists for which the employee is qualified. See, e.g., Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223; Watkins v. Ameripride Servs. (9th Cir. 2004) 375 F.3d 821 (applying California law). An employer is not required to create a new position to accommodate an employee with a disability to a greater extent than an employer would offer a new position to any employee, regardless of disability. 2 Cal. Code of Reg. § 11068, subd. (d)(4). An employer is required to consider any and all reasonable accommodations of which it is aware or that are brought to its attention by the employee, except ones that create an undue hardship. 2 Cal. Code of Reg. § 11068, subd. (e). While the employer may consider the preference of the employee to be accommodated, the employer has the right to select and implement an accommodation that is effective for both the employee and the employer. Ibid. An employer is not required to implement the best accommodation or a specific accommodation that a disabled employee seeks. Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228. Here, Surefox accommodated Ware by placing him in a non-incident commander position that accommodated his work restrictions. SUF, No. 8. Surefox continued to staff Ware in this non-incident commander position until the non-incident commander position was eliminated on approximately September 1, 2019 due to the changing needs of Surefox’s Client. SUF No. 8, 10. 4. Plaintiff Was Placed on Unpaid Leave When No Open Position Was Available While a finite unpaid leave of absence for a disabled employee may be a reasonable accommodation under the FEHA if it appears likely that the employee will be able to return to work at some definite time in the foreseeable future, an employer is not required to provide an 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 indefinite leave of absence as a reasonable accommodation. Hanson, supra, 74 Cal.App.4th at 226-227; 2 Cal. Code of Reg. § 11068, subd. (c). When the non-incident commander position was eliminated, Ware was initially placed on unpaid leave. SUF No. 10-11. However, once it became apparent Ware’s restrictions preventing him from performing the essential job function of the Incident Commander position were “permanent” - according to Ware - and thus there was no leave of absence that would enable him to return to his former position (and no other position for which he was qualified was available), his employment was terminated. Peterson Decl., ¶¶ 6, 9, 11-12. Under these circumstances, an indefinite leave of absence would not have been appropriate. As Ware cannot prevail on his cause of action for failure to accommodate, this claim should be summarily adjudicated in Surefox’s favor. C. Summary Adjudication of Plaintiff’s Third Cause of Action for Failure to Engage in Interactive Process Is Warranted Because Plaintiff Was Accommodated and Did Not Seek Further Accommodation Ware’s third cause of action for failure to engage in the interactive process fails as a matter of law because Ware was accommodated and took no steps to discuss any alternative accommodations at any time. Under the FEHA, an employer is required to “engage in a timely, good faith, interactive process with the employee…to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee…with a known physical or mental disability.” Cal. Gov’t Code § 12940, subd. (n). To prevail on a failure to engage claim under section 12940 subdivision (n), the employee must identify a specific, available accommodation the interactive process would have produced. Nadaf-Rahrov, supra, 166 Cal.App.4th at 984; Scotch, supra, 173 Cal.App.4th at 1018. The interactive process requires “communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of identify[ing] an accommodation that allows the employee to perform the job effectively.” Nadaf-Rahrov, supra, 166 Cal.App.4th at 984. The employee is required to cooperate in good faith with the employer and engage in direct communication with the employer. 2 Cal. Code Reg. § 11069, subd. (d)(4). Both the employer and employee have the obligation to keep communication open and neither 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 has a right to obstruct the process. Swanson v. Morongo Unified Sch. Dist. (2014) 232 Cal.App.4th 954, 971-972. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Ibid. “Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” Ibid. Ware cannot meet his burden to identify a specific, available accommodation the interactive process would have produced. Although Ware contends that Defendant failed to engage in a timely, good faith, interactive process (Complaint, ¶ 34), the undisputed evidence shows that Surefox engaged in a timely, good faith interactive process and provided Ware with an alternative non-incident commander position that accommodated his work restrictions for as long as that position was available. SUF, Nos. 6, 8-10. Once the non-incident commander position was phased out, Surefox offered Ware an unpaid leave of absence. Peterson Decl., ¶¶ 3-5, Ex. A-C. Ware did not request that Surefox provide him any alternative accommodation or place him in any different position. Plaintiff Depo., 75:02-77:07, 79:13-80:19, 167:13-169:02, Depo. Ex. 9. After Surefox provided Ware with an alternate position, and not knowing whether Ware’s restrictions would change, Surefox continued to inform Ware of subsequent SPAT dates. Peterson Decl., ¶ 8, Ex. D. Ware never attempted to take the SPAT and on August 8, 2019, he confirmed that his back condition was permanent. SUF No. 9; Peterson Decl., ¶¶ 6, 10, Ex. F. Surefox considered whether there were available positions for which Ware was qualified, but since there were no such positions or any indication that a further leave would enable Ware to return to the Incident Commander position Ware was ultimately terminated. SUF No. 11-12; Peterson Decl., ¶¶ 13-14; Lafrance Decl., ¶¶ 18-19, Ex. E. Ware was accommodated and took no steps to discuss any alternative accommodations at any time. Accordingly, Ware cannot prevail on his cause of action for failure to engage in an interactive process and thus this claim should be summarily adjudicated in Surefox’s favor. /// /// 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 D. Summary Adjudication of Plaintiff’s First Cause of Action for Disability Discrimination Claim Is Warranted Because Plaintiff Was Terminated For a Legitimate Non-Discriminatory Reason and Plaintiff Cannot Establish Pretext Ware’s first cause of action for disability discrimination fails as a matter of law because Ware was terminated for a legitimate, non-discriminatory reason and Ware cannot establish that this decision was pretext for disability discrimination. Ware contends that he was discriminated against and then terminated because of his disabilities and/or medical conditions. Complaint, ¶¶ 16-24. For claims of discrimination under the FEHA, courts apply the McDonnell Douglas three-part burden-shifting framework. Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-356; McDonnell Douglas Corp v. Green (1973) 411 U.S. 792. Under this framework, (1) the plaintiff must first establish a prima facie case of discrimination; (2) then the employer must offer a legitimate, non-discriminatory reason for its actions; (3) then the plaintiff must prove that the employer’s asserted reason was pretext for discrimination. Moore v. Regents of the Univ. of Cal. (2016) 248 Cal.App.4th 216, 234-236. To prevail on summary judgment, the employer must show either that plaintiff could not establish one of the elements of the FEHA claim, or there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment. Avila v. Cont’l Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247. 1. Plaintiff Cannot Make Out a Prima Facie Case of Discrimination To state a prima facie case of disability discrimination under the FEHA, Ware must prove that: (1) he suffers from a covered disability; (2) he is otherwise “qualified” to do the job at issue; and (3) he was subjected to some sort of adverse employment action because of his disability. See, e.g, Cal. Gov’t Code § 12940(a); Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344- 345. As to the second prong, a plaintiff must establish that he is qualified to perform the essential functions of the job, with or without accommodation. As discussed in Section B above, Ware could not perform the essential functions of the job. SUF. No. 7. Ware could not perform the dragging rescue function of the position and there was no reasonable accommodation that would allow Ware to perform the essential rescue functions of the position without endangering his health or safety or the health or safety of others. 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 Here, as discussed above, Ware could not perform the essential functions of the Incident Commander position or any other open position for which he was qualified. As such, Plaintiff is not a qualified individual and cannot establish a claim for discrimination. 2. Plaintiff Was Terminated Because There Was No Vacant Position for Which He was Qualified To demonstrate a legitimate, nondiscriminatory reason for its decision to terminate Ware, Defendant may show that “the procedure by which [he] was terminated was validly and fairly devised and administered to serve a legitimate business purpose.” Hanson, supra, 74 Cal.App.4th at 224; Lucent, supra, 642 F.3d at 744, 746 (same evidence establishing the inability to perform the essential functions of the position and employer’s inability to reasonable accommodate employee establishes a legitimate, nondiscriminatory reason for termination). As discussed above, Ware was unable to perform the essential functions of the Incident Commander position. SUF No. 7. Moreover, after the non-incident commander position was eliminated, there were no vacant position Ware was qualified to perform or showing that a further leave of absence would have enabled Ware to return to the Incident Commander role since his restrictions were permanent. SUF No. 9-12. As such, Ware was terminated for a legitimate, nondiscriminatory reason. 3. Plaintiff Cannot Establish Pretext Once the employer makes a sufficient showing of the legitimate non-discriminatory reason for the termination, the employee seeking to avert summary judgment must demonstrate “either…that the[employer’s] showing was in fact insufficient or…that there was a triable issue of fact material to the [employer’s] showing.” Hanson, supra, 74 Cal.App.4th at 225; Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 822-824 (burden on plaintiff to meet ultimate obligation for proving the reason for the termination was plaintiff’s disability). The employee can satisfy this burden by “produc[ing] substantial responsive evidence that the employer’s showing was untrue or pretextual.” Hanson, supra, 74 Cal.App.4th at 225. In demonstrating that an employer’s proffered nondiscriminatory reason is false or pretextual, an employee “cannot simply show that the employer’s decision was wrong or mistaken… [r]ather the [employee] must 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 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.’” Moore, supra, 248 Cal.App.4th at 235-246, citing Hersant v. Dept. of Soc. Servs. (1997) 57 Cal. App. 4th 997, 1005. An employer is entitled to summary judgment if, “considering the employer’s innocent explanation for its action, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” Guz, supra, 24 Cal.4th at 361. “It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer’s witnesses or to speculate as to discriminatory motive.” Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 862. “Rather, it is incumbent upon the employee to produce ‘substantial responsive evidence’ demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer.” Ibid. Ware’s discrimination claim cannot survive the McDonnell Douglas burden-shifting inquiry. As discussed above, Surefox terminated Ware’s employment because there was ultimately no available position for which he was qualified. SUF No. 7-12. Ware cannot identify any evidence that undermines Surefox’s stated reason for the termination or raises a rational inference that his termination was motivated by any actual or perceived disability. His mere speculation about the requirements of the Incident Commander position or needs of Surefox’s Client is not sufficient to establish pretext. Moreover, Ware has no circumstantial evidence of discrimination as he testified that he never heard anyone in Surefox management or human resources make any negative or derogatory comments about his back condition.. SUF No. 13. Accordingly, Ware cannot prevail on his cause of action for disability discrimination and this claim should be summarily adjudicated in Surefox’s favor. E. Summary Adjudication of Plaintiff’s Fourth Cause of Action for Disability Retaliation Claim Is Warranted Because Plaintiff Was Terminated For a Legitimate Non-Discriminatory Reason and Plaintiff Cannot Establish Pretext Ware’s fourth cause of action for retaliation fails as a matter of law because the alleged 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 retaliatory action - Ware’s termination - was for a legitimate, non-discriminatory reason and Ware cannot establish pretext. Under the FEHA, it is unlawful for an employer to discharge or otherwise discriminate against any person because the person has opposed any practices forbidden under the FEHA, or requested accommodation. Cal. Gov’t Code § 12940, subd. (h) and (l)(4). In order to establish a prima facie case of retaliation under this section, a plaintiff must show (1) he or she is 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. Light v. Dep’t. of Parks and Recreation (2017) 14 Cal.App.5th 75, 91, citing Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. If an employee presents a prima facie case of retaliation, the court employs the three-stage McDonnell Douglas burden shifting analysis to the employee’s claim. Ibid. Protective activity includes filing a charge, testifying, assisting or participating in any manner in proceedings or hearings provided for under the FEHA, or opposing acts made unlawful by those statutes. Cal. Gov’t Code § 12940(h); see Miller v. Dept. of Corr. (2005) 36 Cal.4th 446, 472. In discovery responses providing the facts to support this claim, Ware alleges that “Defendant refused to accommodate Plaintiff, refused to return him to work and/or provide him another position, which did not require Plaintiff to pass the SPAT test.” and that Ware “protested Defendant’s disability discrimination and/or retaliation and/or refused to take the unlawful SPAT test.” Sommer Decl., Ex. B (see, Responses to Special Interrogatories, No. 8). It is undisputed that Ware was accommodated with a non-incident commander position until Surefox could no longer accommodate him. SUF Nos. 8, 10-12. Further, while there is no evidence that Ware “protested” the SPAT or complained that it was unlawful during his employment with Surefox, such a physical fitness test is permissible. Sommer Decl., Ex. B (see, Responses to Special Interrogatories, No. 8). Employers may use physical fitness tests to measure an employee’s performance of physical tasks, such as running or lifting, and such does not run afoul of the FEHA. Cal. Gov’t Code § 12940, subd. (f)(2); 2 Cal. Code of Reg. § 11017, subd.(a), (e). For the same reasons described as to the discrimination claim in Section D above, this cause of action fails. Ware was terminated for legitimate, non-retaliatory reasons. Further, Ware 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 cannot present the required substantial evidence that he was terminated for purportedly “protesting” the SPAT. Serri, supra, 226 Cal.App.4th at 862. Accordingly, Ware cannot prevail on this cause of action, and this claim should be summarily adjudicated in Surefox’s favor. F. Summary Adjudication of Plaintiff’s Fifth Cause of Action for Failure to Prevent Discrimination or Retaliation Is Warranted Because There is No Viable Claim for Discrimination or Retaliation Ware’s fifth cause of action for failure to prevent discrimination or retaliation fails as a matter of law because there is no viable claim for discrimination or retaliation. Under the FEHA, it is unlawful “[f]or an employer to fail to take all reasonable steps to prevent discrimination … from occurring.” Cal. Gov’t Code § 12940, subd. (k). However, this claim is dependent on a plaintiff establishing his or her underlying discrimination or retaliation claim. 2 Cal. Code of Reg. § 11023, subd. (a)(2); Trujillo v. North Co. Transit Dist. (1998) 63 Cal.App.4th 280, 289. Here, Ware cannot prevail on this derivative claim because he cannot raise a triable issue of fact that Defendant discriminated or retaliated against him. As discussed in Section B through E above, Ware was accommodated and was terminated for legitimate, non-discriminatory reasons. Accordingly, because Ware cannot prevail on his cause of action for failure to prevent discrimination or retaliation, this claim should be summarily adjudicated in Surefox’s favor. G. Summary Adjudication of Plaintiff’s Sixth Cause of Action for Retaliation in Violation of Labor Code Sections 98.6 and 1102.5 Is Warranted Because Plaintiff Cannot Establish Discrimination or Retaliation Ware’s sixth cause of action for whistleblower retaliation in violation of Labor Code section 98.6 and 1102.5 fails as a matter of law because Ware cannot establish that Surefox discriminated or retaliated against him because he engaged in activity protected under those sections. In discovery responses providing the facts to support this claim, Ware alleges that he requested an accommodation due to his alleged disability and ultimately “refused to take the unlawful SPAT test.” Sommer Decl., Ex. B (see, Responses to Special Interrogatories, No. 12). But there is no evidence of any protected activity in this regard, as Ware was not required to take the SPAT - which is exceedingly evident from his communications with Peterson over his accommodation request - and Ware never communicated to Surefox a belief that the SPAT itself was unlawful. Peterson Decl. ¶¶ 4-5, Ex. C; Sommer Decl., Ex. D, 75:02-77:07, 79:13-80:19, 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 167:13-169:02, Depo Ex. 9. Ware has not asserted that he engaged in any activity that is protected under Labor Code section 98.6(a) or 1102.5. California Labor Code section 98.6(a) prohibits discrimination, retaliation or adverse action against any employee because the employee filed a bona fide complaint with the California Labor Commissioner or related to the employee’s exercise of “rights afforded to him.” California Labor Code section 1102.5 prohibits retaliation against an employee for disclosing a violation of law or refusing to participate in an activity that would result in a violation of law. Ware has not asserted that he made any complaint concerning alleged unlawful activity - whether related to the SPAT or otherwise - and he never communicated a refusal to take the SPAT based on any belief it was unlawful. As discussed above employers may use physical fitness tests to measure an employee’s performance of physical tasks. Cal. Gov’t Code § 12940(f)(2); 2 Cal. Code of Reg. § 11017(a), (e). Accordingly, Ware did not engage in protected activity under Section 98.6(a) or 1102.5 and, even assuming arguendo he had, he cannot meet his burden of proving a causal connection between any such purported protected activity and any subsequent adverse employment action. See, e.g., Turner v. City & County of San Diego (N.D. Cal. 2012) 892 F. Supp. 2d 1188, 1199 (plaintiff’s prima facie case requires showing of a causal link between protected activity and subsequent adverse employment action). As such, Defendant cannot prevail on his cause of action for a whistleblower retaliation claim under the Labor Code. H. Summarily Adjudication of Plaintiff’s Seventh Cause of Action for Wrongful Termination in Violation of Public Policy Is Warranted Because Plaintiff Cannot Establish the Claims Under FEHA or Labor Code on Which This Claim is Based Ware’s seventh cause of action for wrongful termination fails as a matter of law because Ware cannot establish any claim under the FEHA or Labor Code on which this claim is based. Although the employment relationship is normally “at will,” California courts recognize several narrow exceptions to this rule. In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172, the California Supreme court recognized a tort action for wrongful termination “in violation of public policy,” holding that “while an at-will employee may be terminated for no reason or for an 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or other purpose that contravenes fundamental public policy.” In order to establish a prima facie case for wrongful termination, a plaintiff must prove that his employer wrongfully terminated him in violation of an activity protected by a fundamental public policy. Gould v. Maryland Sound Indus., Inc. (1995) 31 Cal.App.4th 1137, 1147. Specifically, to prevail on this claim, Ware must establish a prima facie case alleging: 1) the existence of a public policy; 2) a nexus between the termination and the employee’s protected activity related to that public policy; and 3) damages resulting from the termination. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258- 1259; Tameny, supra, Cal.3d at 174-176. Ware alleges that his termination was in violation of public policy in that it was contrary to the protections of the FEHA and Labor Code section 1102.5. Complaint, ¶ 70. Ware cannot prevail on this derivative claim because he cannot raise a triable issue of fact that Defendant discriminated or retaliated against Ware under the FEHA or Labor Code section 1102.5. For the same reasons discussed in sections B through G above, Defendant cannot prevail on his cause of action for wrongful termination. I. Summary Adjudication is Warranted on Plaintiff’s Prayer for Punitive Damages Ware seeks an award of punitive damages against Surefox. An award of such damages is not appropriate. In order to recover punitive damages, a plaintiff must prove by “clear and convincing evidence” that the defendant acted with malice, fraud or oppressive conduct. Cal. Civ. Code, § 3294, subd. (a). To be guilty of “malice,” the defendant must have “intended … to cause injury to the plaintiff or [engaged in] despicable conduct which is carried on…with a willful and conscious disregard of the rights or safety of others.” Cal. Civ. Code, § 3294, subd. (c)(1). Malicious conduct must be motivated by “reckless or wickedness which amounts to a criminality.” White v. Ultramar (1999) 21 Cal.4th 563, 565. To avoid summary judgment, a plaintiff must produce evidence that could, if accepted by the trier of fact, constitute clear and convincing evidence that an “officer, director, or managing agent” committed an allegedly wrongful act with “oppression, fraud or malice.” Cal. Civ. Code, 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 DEFENDANT’S MEMORANDUM ISO MSJ, OR MSA: CASE NO. CGC-20-588048 § 3294, subd. (b); Reader's Digest Ass'n v. Superior Court (1984) 37 Cal.3d 244, 252; Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1118-1121. For the purpose of establishing an individual is a managing agent, the test is whether the individual exercised substantial discretionary authority over decisions that determined corporate policy. White, supra, 21 Cal.4th at 575. The key inquiry concerns the employee’s authority to change or establish corporate policy. CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255. The fact that an employee has a supervisory position with the power to terminate employees under his or her control does not, by itself, render the employee a managing agent. Ibid. Nor does the fact that an employee supervises a large number of employees necessarily establish that status. Ibid. There is no evidence that Sean Lafrance, who conveyed the termination decision, was an officer, director or managing agent of Surefox, let alone that Mr. Lafrance or any other Surefox official acted with malice, fraud or oppression toward Plaintiff. SUF No. 14-15. Indeed, Ware was reasonably accommodated and in discovery responses, Ware does not identify any facts in support of his prayer for punitive damages. Sommer Decl., Ex. A, C (see, e.g. Response to Form Interrogatory No. 210.3, 213.1, Supplemental Response to Special Interrogatory No. 18). Accordingly, Plaintiff’s prayer for punitive damages should be summarily adjudicated in Surefox’s favor. V. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court grant summary judgment against Ware and in Surefox’s favor, or in the alternative, grant summary adjudication on the basis that there is no triable issue of material fact on Plaintiff’s causes of action. DATED: October 21, 2021 By: CONN MACIEL CAREY LLP Andrew J. Sommer Megan S. Shaked Attorneys for Defendant SUREFOX NORTH AMERICA 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 PROOF OF SERVICE I declare that at the time of service I was at least 18 years of age and not a party to this legal action. My business address is 870 Market Street, Suite 1151, San Francisco, California 94102. On October 21, 2021, I served MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUREFOX NORTH AMERICA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the following persons at the address listed below by depositing a true copy, via overnight with Federal Express, in Pleasant Hill, California: Timothy J. Gonzales Attorneys for Plaintiff Paul Hirsch Christopher Brandes Brock & Gonzales, LLP 6701 Center Drive West, Suite 610 Los Angeles, CA 90045 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: 10/21/21 __________________________________________ Trevor Thompson, Paralegal