Elisa Amar v. Remitco Llc

NOTICE OF MOTION AND MOTION for Summary Judgment

C.D. Cal.September 9, 2016

CASE NO.: 15-cv-05796-DMG(AFMx) PROPOSED ORDER 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 Thomas G. Mackey, Esq. SBN 174572 mackeyt@jacksonlewis.com Kenneth M. Wentz III, SBN 223121 wentzk@jacksonlewis.com JACKSON LEWIS PC 725 South Figueroa Street, Suite 2500 Los Angeles, California, 90017 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 Attorneys for Defendant REMITCO, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ELISA AMAR, an individual, Plaintiff, v. REMITCO, LLC, a Delaware limited liability company; and DOES 1 through 20, inclusive Defendants. CASE NO.:15-cv-05796-DMG(AFMx) Assigned to Honorable Dolly M. Gee DEFENDANT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT HEARING Date: October 14, 2016 Time: 2:00 p.m. Ctrm: 7, 2nd Floor Complaint Filed: June 25, 2015 TO PLAINTIFF ELISA AMAR AND HER ATTORNEY OF RECORD: PLEASE TAKE NOTICE THAT ON October 14, 2016 at 2:00 p.m., or as soon thereafter as counsel may be heard in Courtroom 7, 2nd Floor of the above-entitled Court located at 312 N. Spring St., Los Angeles, California, 90012, the Honorable Dolly M. Gee presiding, Defendant REMITCO, LLC will and hereby does move this Court pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56 for summary judgment, or in the alternative, partial summary judgment, on the ground that there is no genuine issue of Case 2:15-cv-05796-DMG-AFM Document 20 Filed 09/09/16 Page 1 of 5 Page ID #:162 CASE NO.: 15-cv-05796-DMG(AFMx) 2 [PROPOSED] ORDER 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 material fact as to Plaintiff’s alleged claims against Defendant. Accordingly, Defendant is entitled to judgment as a matter of law for the reasons set forth below. Defendant moves for an order adjudicating the following claims and/or issues: I. FIRST CAUSE OF ACTION FOR DISABILITY DISCRIMINATION ISSUE NO. 1: Plaintiff’s claim for disability discrimination fails because she cannot establish a prima facie case, as she was not a qualified individual with a disability. ISSUE NO. 2: Plaintiff’s claim for disability discrimination fails because, even assuming arguendo, that Plaintiff can establish a prima facie case, REMITCO had legitimate, non-discriminatory business reasons for terminating Plaintiff’s employment and Plaintiff cannot prove that REMITCO’s proffered reasons for terminating her employment are pretext for discrimination. II. SECOND CAUSE OF ACTION FOR RETALIATION ISSUE NO. 3: Plaintiff’s retaliation claim fails because she cannot establish a prima facie case, as she cannot prove a causal connection between her protected activity and her discharge. ISSUE NO. 4: Plaintiff’s claim for retaliation fails because, even assuming arguendo, that Plaintiff can establish a prima facie case, REMITCO had legitimate, non- discriminatory business reasons for terminating Plaintiff’s employment and Plaintiff Case 2:15-cv-05796-DMG-AFM Document 20 Filed 09/09/16 Page 2 of 5 Page ID #:163 CASE NO.: 15-cv-05796-DMG(AFMx) 3 [PROPOSED] ORDER 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 cannot prove that REMITCO’s proffered reasons for terminating her employment are pretext for retaliation. III. THIRD CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION AND RETALIATION ISSUE NO. 5: Plaintiff’s failure to prevent discrimination and retaliation claim fails as she cannot establish an underlying claim for discrimination or retaliation. IV. FOURTH CAUSE OF ACTION FOR FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS ISSUE NO. 6: Plaintiff’s failure to provide reasonable accommodations claim fails, because she cannot establish a prima facie case, as she was not a qualified individual with a disability. ISSUE NO. 7: Plaintiff’s failure to provide reasonable accommodations claim fails, because REMITCO offered reasonable accommodation and Plaintiff declined. ISSUE NO. 8: Plaintiff’s failure to provide reasonable accommodations claim fails, because there was no available position with REMITCO for which Plaintiff was qualified and which she could perform with or without accommodation. ISSUE NO. 9: Plaintiff’s failure to provide reasonable accommodations claim fails, because REMITCO she caused the breakdown in the interactive process. Case 2:15-cv-05796-DMG-AFM Document 20 Filed 09/09/16 Page 3 of 5 Page ID #:164 CASE NO.: 15-cv-05796-DMG(AFMx) 4 [PROPOSED] ORDER 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. FIFTH CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS ISSUE NO. 10: Plaintiff’s failure to engage in the interactive process claim fails, because she cannot establish a prima facie case, as she was not a qualified individual with a disability. ISSUE NO. 11: Plaintiff’s failure to engage in the interactive process claim fails, because she cannot identify a reasonable accommodation that would have enabled her to perform her essential job functions. VI. SIXTH CAUSE OF ACTION FOR DECLARATORY JUDGMENT ISSUE NO. 12: Plaintiff’s claim for declaratory relief fails because it is derivative of her claims for disability discrimination, retaliation, failure to accommodate, failure to engage in the interactive process, and/or wrongful termination claims, which also fail. VII. SEVENTH CAUSE OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY ISSUE NO. 13: Plaintiff’s claim for wrongful termination in violation of public policy fails because it is derivative of her claims for disability discrimination, retaliation, failure to accommodate, failure to engage in the interactive process, and/or wrongful termination claims, which also fail. This Motion is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities filed concurrently herewith, the Statement of Unconverted Facts Case 2:15-cv-05796-DMG-AFM Document 20 Filed 09/09/16 Page 4 of 5 Page ID #:165 CASE NO.: 15-cv-05796-DMG(AFMx) 5 [PROPOSED] ORDER 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 and Conclusions of Law filed concurrently herewith, the Declarations of Kenneth M. Wentz III and Deborah Figueroa, and all the Exhibits attached thereto, in support of this Motion, all pleadings, records, and papers on file in this action, and upon such other further evidence and argument as may be presented at or before the time of hearing. Dated: September 9, 2016 JACKSON LEWIS P.C. By: /s/ Kenneth M. Wentz III Thomas G. Mackey Kenneth M. Wentz III Attorneys for Defendant REMITCO, LLC Case 2:15-cv-05796-DMG-AFM Document 20 Filed 09/09/16 Page 5 of 5 Page ID #:166 CASE NO.: 15-cv-05796- DMG(AFMx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Thomas G. Mackey, Esq. SBN 174572 mackeyt@jacksonlewis.com Kenneth M. Wentz III, SBN 223121 wentzk@jacksonlewis.com JACKSON LEWIS PC 725 South Figueroa Street, Suite 2500 Los Angeles, California, 90017 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 Attorneys for Defendant REMITCO, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ELISA AMAR, an individual, Plaintiff, v. REMITCO, LLC, a Delaware limited liability company; and DOES 1 through 20, inclusive Defendants. CASE NO.:15-cv-05796-DMG(AFMx) Assigned to Honorable Dolly M. Gee DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT HEARING Date: October 14, 2016 Time: 2:00 p.m. Ctrm: 7, 2nd Floor Complaint Filed: June 25, 2015 Trial Date: TBD Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 1 of 25 Page ID #:167 CASE NO.: 15-cv-05796- DMG(AFMx) i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................... iii I. INTRODUCTION .................................................................................................. 1 II. STATEMENT OF FACT ....................................................................................... 2 A. REMITCO ACCOMMODATES PLAINTIFF’S RESTRICTIONS FOR NEARLY TWO YEARS ............................................................................. 3 B. REMITCO CANNOT WORK WITHIN PLAINTIFF’S NEW RESTRICTION AND ATTEMPTS TO REASSIGN HER ........................ 4 C. PLAINTIFF’S WORKERS’ COMPENSATION CLAIM AND INABILITY TO WORK .............................................................................. 6 III. LEGAL ARGUMENT............................................................................................ 7 A. STANDARD OF REVIEW ......................................................................... 7 B. PLAINTIFF’S DISABILITY DISCRIMINATION CLAIMS FAIL BECAUSE SHE IS NOT A QUALIFIED INDIVIDUAL .......................... 8 1. PLAINTIFF COULD NOT PERFORM HER ESSENTIAL JOB FUNCTIONS WITH OR WITHOUT ACCOMMODATION ............ 8 a. PLAINTIFF’S TOTAL INABAILITY TO WORK AT THE TIME OF HER TERMINATION PRECLUDES HER FROM ESTABLISHING SHE IS A QUALIFIED INDIVIDUAL ............ 9 b. PLAINTIFF IS ESTOPPED FROM CLAIMING SHE IS A QUALIFIED INDIVIDUAL ......................................................... 11 c. PROVIDING PLAINTIFF WITH ADDITIONAL LEAVE WAS NOT REASONABLE UNDER THE CIRCUMSTANCES ......... 13 2. PLAINTIFF’S FAILURE TO ACCOMMODATE CLAIM FAILS BECAUSE SHE WS NOT A QUALIFIED INDIVIDUAL AND REMITCO OFFERED REASONABLE ACCOMMODATIONS .... 14 3. PLAINTIFF’S FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS CLAIM FAILS BECAUSE NO ACCOMMODATION WAS AVAILABLE ........................................................................... 16 C. PLAINTIFF HAS NOT PRESENTED ANY EVIDENCE TO SUPPORT HER RETALIATION CLAIM .................................................................. 17 Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 2 of 25 Page ID #:168 CASE NO.: 15-cv-05796-DMG(AFMx) ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 D. PLAINTIFF’S INABILITY TOESTABLISH DISCRIMINATION OR RETALIATION DEFEAT HER FAILURE TO PREVENT DISCRIMINATION AND RETALIATION CLAIM ............................... 18 IV. CONCLUSION ..................................................................................................... 19 Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 3 of 25 Page ID #:169 CASE NO.: 15-cv-05796-DMG(AFMx) iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 TABLE OF AUTHORITIES Statutory Cal. Code Regs. Title 2 § 11068(c)............................................................................... 13 Cal. Gov’t Code § 12940(a) ............................................................................................ 8 Cal. Gov’t Code § 12940(a)(1)-(2) ................................................................................. 9 Cal. Gov’t Code § 12940(h) .......................................................................................... 17 Cases Adetuyi v. City & County of San Francisco 63 F.Supp.3d 1093 (N.D. Cal. 2014) .......................................................................... 18 Avila v. Continental Airlines, Inc. 165 Cal. App. 4th 1237 (Cal.Ct. App. 2008) ................................................................ 9 Canupp v. Children’s Receiving Home No. 2:14-1185 WBS EFB, 2016 U.S. Dist. LEXIS 53041 (E.D. Cal. April 20, 2016) ............................................................................................................................... 9 Cuiellette v. City of Los Angeles 194 Cal. App. 4th 757 (Cal. Ct. App. 2011) ................................................................ 14 Dep’t of Fair Empl. & Hous. v. Lucent Techs, Inc. 642 F.3d 728 (9th Cir. 2011) ........................................................................................ 9 Finegan v. County of LA 91 Cal. App. 4th 1 (Cal. Ct. App. 2001) ...................................................................... 11 Flait v. North American Watch Corp. 3 Cal. App. 4th 467 (Cal. Ct. App. 1992) .................................................................... 17 Hanson v. Lucky Stores, Inc. 74 Cal. App 4th 215 (Cal. Ct. App. 1999) .................................................................. 18 Herrera v. W.C.A.B. 71 Cal. 2d 254 (Cal. 1969) .......................................................................................... 12 Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 4 of 25 Page ID #:170 CASE NO.: 15-cv-05796-DMG(AFMx) iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Hurd v. American Income Life Ins. 2:13-cv-5205-RSWL-MRW, 2014 U.S. Dist. LEXIS 163742 (C.D. Cal. Nov. 20, 2014) ......................................................................................................................... 9, 18 Jackson v. Simon Prop. Group, Inc. 795 F.Supp.2d 949 (N.D. Cal. 2011) ...................................................................... 9, 10 Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000) ................................................................................... 13, 15 Kennedy v. Applause, Inc. 90 F.3d 1477 (9th Cir. 1996) ............................................................................ 10, 11, 14 King v. United Parcel Service, Inc. 152 Cal. App. 4th 426 (Cal. Ct. App. 2007) ............................................................... 15 Lawler v. Montblanc N. Am., LLC 704 F.3d 1235, 1243 (9th Cir. 2013) ....................................................................... 9, 17 Lui v. City and County of San Francisco 211 Cal. App. 4th 962 (Cal. Ct. App. 2012) .................................................................. 9 Markowitz v. UPS SACV 15-1367 AG (DFMx), 2016 U.S. Dist. LEXIS 86245 (C.D. Cal. July 1, 2016) ............................................................................................................................. 8, 12, 14 Myers v. Hose 50 F.3d 278 (4th Cir. 1995) .......................................................................................... 13 Nadaf-Rahrov v. Neiman Marcus Grp., Inc. 166 Cal. App. 4th 922 (Cal. Ct. App. 2008) ............................................................ 9, 16 Nealy v. City of Santa Monica 234 Cal. App. 4th 359 (Cal. Ct. App. 2015) ....................................................... 7, 8, 16 Rissetto v. Plumbers & Steamfitters Local 343 253 F.3d 1072 (9th Cir. 2001)................................................................................ 11, 12 Scotch v. Art Institute of California 173 Cal. App. 4th 986 (Cal. Ct. App. 2009) ................................................................ 17 Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 5 of 25 Page ID #:171 CASE NO.: 15-cv-05796-DMG(AFMx) v MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Wynes v. Kaiser Permanente Hosps. 936 F.Supp.2d 1171 (E.D. Cal. 2013) ........................................................................ 13 Wysinger v. Automobile Club of Southern California 157 Cal. App. 4th 413 (Cal. Ct. App. 2007) ................................................................ 16 Yanowitz v. L’Oreal USA, Inc. 36 Cal. 4th 1028 (Cal. 2005) ....................................................................................... 17 Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 6 of 25 Page ID #:172 CASE NO.: 15-cv-05796- DMG(AFMx) 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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. INTRODUCTION Plaintiff Elisa Amar (“Amar” or “Plaintiff”) worked for Defendant REMITCO, LLC (“REMITCO”) until alleged injuries to her wrist and shoulder rendered her unable to perform the majority of her job duties. Amar presented a doctor’s note in January 2014, indicating the restrictions would be in place for at least one year, at which time Amar’s doctor would reevaluate her. REMITCO placed Amar on unpaid leave with the hope that she could be reassigned to a different position that would fit within her restrictions. Unbeknownst to REMITCO, Amar’s condition allegedly worsened during the search for another position. She applied for disability benefits the day after REMITCO placed her on leave. Approximately 60 days into her leave, Amar’s doctor determined she was temporarily totally disabled and restricted her from all use of her right arm. Amar received disability benefits between January 2014 and July 2014. In May 2014, after more than three months of searching, neither Amar nor REMITCO were able to identify any position for which Amar was qualified and that was within her restrictions. Consequently, REMITCO discharged Amar. Subsequent to her discharge, REMITCO learned that Amar was unable to use her right arm for at least six months following her discharge. In October 2014, Amar’s doctors determined she had reached maximum medical improvement. The agreed-upon medical examiner, however, could not identify any physical impairment to explain Amar’s alleged pain. Amar settled her workers’ compensation claim against REMITCO in January 2015 for $25,000.00 and received total temporary disabilities benefits pursuant to the agreement. In May 2015, Amar filed a disability discrimination claim against REMITCO. Shortly thereafter, she accepted a position with a different employer performing data processing duties. In June 2015, Amar filed the instant lawsuit against REMITCO, alleging seven causes of action: disability discrimination, retaliation, failure to prevent retaliation and discrimination, failure to accommodate, failure to engage in the interactive process, Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 7 of 25 Page ID #:173 CASE NO.: 15-cv-05796-DMG(AFMx) 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 wrongful termination in violation of public policy and declaratory judgment. Amar was not a “qualified individual” under FEHA, and her decision to withhold information regarding her medical condition resulted in the breakdown of the interactive process. Accordingly, summary judgment in favor of REMITCO is appropriate on all claims. II. STATEMENT OF FACT In 2006, Plaintiff was a temporary full-time employee with Citigroup Lockbox (“Citigroup”) through a staffing agency. [See Deposition of Elisa Amar (“Amar Dep.”) at 20:12-21:11, attached as Ex. 1 to the Declaration of Kenneth M. Wentz III (“Wentz Decl.”) attached to the Index of Evidence as Ex. A.] Plaintiff worked a variety of jobs, including data entry, scanning, and operating various mail-processing machines. [Amar Dep. 21:12-19.] Citigroup hired Plaintiff as a full-time employee in Summer 2007. [Amar Dep. 22:1-6.] Plaintiff’s job duties remained the same. [Amar Dep. 22:7-10.] In 2009, REMITCO acquired Citigroup, and, again, her job duties remained unchanged. [Amar Dep. 26:13-15, 28:19-22.] Although Plaintiff was trained in multiple functions, her duties always included a type of data entry. [See Workers’ Compensation Deposition of Elisa Amar (“Amar WC Dep.”) 27:13-16, attached to Wentz Decl. as Ex. 2.] Plaintiff’s other functions involved utilizing various mail-processing machines, including ITran/CPTS, MP 40 and Opex. [Amar Dep. 35:23-36:2.] For example, Plaintiff fed envelopes into the MP 40 and batched the processed envelopes into various trays [Amar Dep. 36:5-21]. Plaintiff loaded stacks of checks into the ITran machine for processing, and used an Opex machine to open envelopes for check processing. [Amar Dep. 36:22-25; 50:9-17.] After an initial imaging pass, the checks were designated for data entry. [Amar Dep. 37:20-23.] The check image appeared on a computer screen, and Plaintiff manually entered the account number, check amount, and routing number. [Amar Dep. 37:4-10, 38:12-15.] Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 8 of 25 Page ID #:174 CASE NO.: 15-cv-05796-DMG(AFMx) 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 When REMITCO acquired Citigroup in 2009, Plaintiff initially reported to DeRick Graham. [Amar Dep. 43:2-8.] Deborah Figueroa became Plaintiff’s supervisor in 2013. [Amar Dep. 44:25-45:3.] A. REMITCO ACCOMMODATES PLAINTIFF’S RESTRICTIONS FOR NEARLY TWO YEARS DATE EVENT CITATION Feb. 29, 2012 Plaintiff provides a doctor’s note that stated: “Has repetitive overuse syndrome R with her current activity. Need to restrict activity to two hours a day for 6 months.” Amar Dep. 75:3-76:9; Ex. B to the Index of Evidence Feb. 29, 2012 - May 7, 2013 REMITCO accommodates Plaintiff’s restrictions by moving her around to different positions and limiting her data entry time. Plaintiff would rotate among several functions in the UPS client area, including opening, look-ups, batching, scanning (ITran), and data entry, so as not to violate her restrictions. Amar Dep. 77:3-17, Amar Dep. 47:8-12 May 7, 2013 Plaintiff provides doctor note stating, “Elisa Amar was seen February 29, 2012…Her repetitive overuse syndrome of right wrist with her current activity needs to restrict activity to two hours a day for one year.” Amar Dep. 77:25- 78:14, Ex. C to the Index of Evidence May 7, 2013 - Jan. 6, 2014 REMITCO accommodates Plaintiff’s restriction by limiting her data entry to two hours per day. Amar Dep. 80:6-8 October 2013 UPS began to reduce the volume of functions provided by REMITCO, and the UPS/NXG area was gradually decommissioned. Employees who worked in the UPS/NXG area, including Plaintiff, were relocated to other areas as a result. Declaration of Deborah Figueroa (“Figueroa Decl.”) attached to the Index of Evidence as Ex. D, at ¶ 6 Oct. 24/Dec. 9, 2013 REMITCO awards Plaintiff with Bravo points. Bravo points could be exchanged for money or a gift. Amar Dep. 57:19-58:3; 71:3-11; Ex. E to the Index of Evidence Late 2013 REMITCO’s UPS volume decreases. Plaintiff spent more time doing data entry and Opex work, and Plaintiff started having pain. Figueroa requested a new doctor’s Amar Dep. 59:10-13; Amar Dep. 61:2-9 Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 9 of 25 Page ID #:175 CASE NO.: 15-cv-05796-DMG(AFMx) 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 note from Plaintiff. Jan. 6, 2014 (approx.) Plaintiff provides a doctor’s note that stated, in part, “Because of the nature of the activity at work, she needs to restrict that activity to max two hours per 24 hour. This restriction should be renewed yearly.” However, they had difficulty reading the Jan. 6, 2014 doctor’s note and asked for clarification. Amar Dep. 80:14- 81:13, Ex. F to the Index of Evidence; Amar Dep. 85:1-22 Jan. 6, 2014 - Jan. 17, 2014 REMITCO continues to accommodate Plaintiff by limiting her to two hours per job function. Amar Dep. 84:13-22 Jan. 17, 2014 REMITCO receives a doctor’s note that stated, in part, “Because of the nature of activity at work she needs to restrict that activity to one hour rest and work for two hours.” Figueroa informed Plaintiff that she was unsure if REMITCO could accommodate the new restriction. Amar Dep. 84:23-85:6; Ex. G to the Index of Evidence; Amar Dep. 90:11-22 B. REMITCO CANNOT WORK WITHIN PLAINTIFF’S NEW RESTRICTION AND ATTEMPTS TO REASSIGN HER When REMITCO received Plaintiff’s January 17, 2014 restriction (“January Restriction”), Figueroa notified Employee Relations Manager Nadine Marrow about the restriction and the business unit’s concern about its ability to accommodate Plaintiff. [Figueroa Decl., Ex. C., at Ex. 1.] Marrow and Plaintiff’s business unit discussed Plaintiff’s January 2014 restrictions, reviewed all of Plaintiff’s functions, and determined they could not work within her new restriction. [Deposition of Nadine Marrow (“Marrow Dep.”) 32:19-33:4, attached to Wentz Decl. as Ex. 3.] REMITCO then considered reassignment. If an employee is unable to perform his or her job duties, REMITCO generally works with the employee to locate a new position. [Marrow Dep. 39:9-17.] If a position is identified, REMITCO will place the employee in an open position, provided the employee meets the minimum qualifications. [Marrow Dep. 62:16-19.] Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 10 of 25 Page ID #:176 CASE NO.: 15-cv-05796-DMG(AFMx) 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 On January 23, 2014, several members of REMITCO management met with Plaintiff to discuss her restrictions and informed her they could not accommodate the January Restriction. [Amar Dep. 91:4-92:3.] They asked Plaintiff if she was willing to move to another site or relocate, and Plaintiff declined. [Marrow Dep. 61:9-12.] Accordingly, REMITCO informed Plaintiff they would work with her to review First Data’s job posting site, First Web, to locate positions she was qualified for and which fit within her restrictions.1 [Marrow Dep. 61:12-15.] Also on January 23, 2014, Plaintiff received a 1.75% merit increase and a stock award. [Amar Dep. 69:1-15, Ex. H to the Index of Evidence] Shortly after the January 23 meeting, Plaintiff called Figueroa and stated she checked First Web and there were no open positions for which she was qualified and which fit within her restrictions. [Figueroa Decl., Ex. D, at ¶ 8, Ex. 2] Plaintiff asked to be discharged. Id. Figueroa encouraged Plaintiff to wait, as additional openings could arise. Id. The next day, January 24, 2014, Plaintiff applied for Social Security Disability Insurance (SSDI) benefits. [Amar Dep. 101:24-102:2, Ex. I to the Index of Evidence.] REMITCO continued to attempt to find Plaintiff a new position. Human Resources called Plaintiff to discuss at least one specific opening. [Amar Dep. 96:5-17.] Plaintiff also testified that she checked First Web for new postings every day. [Amar Dep. 96:5-17.] However, Plaintiff refused to consider any openings, including the one REMITCO brought to her attention, because she self-imposed location restrictions. Plaintiff was unwilling to consider positions outside a 25-30 minute drive from her house. [Amar Dep. 96:21-25.] Plaintiff also suggested that REMITCO move her to the ITran area. [Marrow Dep. 79:21-80:3.] Although there was not a posting for a position in the ITran area at the Monterey Park facility, Marrow inquired and learned the ITran department was downsizing. [Marrow Dep. 80:23-81:3.] 1 REMITCO was purchased by First Data in or about 2000. [Marrow Dep. 21:22-22:2.] Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 11 of 25 Page ID #:177 CASE NO.: 15-cv-05796-DMG(AFMx) 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 After more than three months of being unable to place Plaintiff into a position, on May 5, 2014, Marrow called Plaintiff and indicated her employment was being terminated. [Amar Dep. 106:10-17.] C. PLAINTIFF’S WORKERS’ COMPENSATION CLAIM AND INABILITY TO WORK Prior to Plaintiff’s discharge, she received updated work restrictions. [Amar Dep. 108:13-21.] Specifically, on March 25, 2014, Plaintiff was put on TTD for 45 days. [Amar Dep. 108:15-21, 109:7-9; Ex. J to the Index of Evidence] On March 31, 2014, Plaintiff was evaluated by another doctor and was restricted from using her right arm. [Wentz Decl, Ex A, at ¶ 6, Ex. 4.] It is undisputed that the physical requirements of Plaintiff’s job duties included “prolonged grasping and gripping using both hands.” [Amar Dep. 132:16-133:6.] Plaintiff never informed REMITCO about any updated restrictions after the January 23, 2014 meeting: Q: But you never presented [the March 25, 2014 doctor’s note] or told your contact at employee relations about it; correct? A: No. *** Q: You never talked to Nadine and informed her that you restrictions were changing in February, March or April? A: No. [Amar Dep. 111:1-3, 112:4-6.] Also prior to her discharge, Plaintiff filed a workers’ compensation claim against REMITCO. [Amar Dep. 149:1-5.] On May 5, 2014, the same day Marrow called Plaintiff to terminate her employment, Plaintiff had a doctor’s appointment. [Amar Dep. 112:7-20; Ex. K to the Index of Evidence] Plaintiff’s doctor maintained her restriction from using her right arm. [Amar Dep. 115:1-22; Ex. K] Plaintiff testified that the lawyer she had at that time, “told [her] not to talk to anyone,” and she did not provide any information to REMITCO. [Amar Dep. 112:21-113:1.] Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 12 of 25 Page ID #:178 CASE NO.: 15-cv-05796-DMG(AFMx) 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Plaintiff was reevaluated in July, August, and September, 2014. [Amar Dep. 116:9-117:11; Ex. K] Plaintiff’s restriction was renewed at each visit. Id. On November 3, 2014, the restriction was changed to “No repetitive use of right arm/hand.” [Amar Dep. 117:12-16; Ex. K] Between May and November 2014, Plaintiff did not look for any work. [Amar Dep. 122:5-7.] Amar testified the reason was because she was unable to work: Q: So you didn’t think you could work during that six-month time frame? A: I believe so. I mean, I -- at that -- at that period I was still in pain. So, I didn’t think it was - to look for a job I would have hurt myself more. [Amar Dep. 122:13-18.] Dr. Lawrence Feiwell was the agreed upon medical examiner in Plaintiff’s workers’ compensation case. Dr. Feiwell examined Plaintiff in August and October 2014. [Amar Dep. 135:19-136:4, Ex. L to the Index of Evidence.] At the August evaluation, Dr. Feiwell maintained Plaintiff’s TTD status pending the results of further testing. On October 13, Plaintiff stated her symptoms had worsened. However, the doctor was “unable to explain Ms. Amar’s ongoing complaints of pain…” [Id.] Dr. Feiwell indicated all of Plaintiff’s studies were normal and determined she had reached maximum medical improvement. On January 21, 2015, Plaintiff settled her workers’ compensation claim against REMITCO. [Amar Dep. 148:3-149:7, Ex. M to the Index of Evidence.] Plaintiff received a payment of $25,000, which included TTD benefits. [Id.] On June 25, 2015, Plaintiff filed the instant action. III. LEGAL ARGUMENT A. STANDARD OF REVIEW Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Nealy v. City of Santa Monica, 234 Cal. App. 4th 359 (Cal. Ct. App. 2015). Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 13 of 25 Page ID #:179 CASE NO.: 15-cv-05796-DMG(AFMx) 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 As the party moving for summary judgment, the employer in a FEHA action has the burden of establishing either (1) one or more elements of the employee’s cause of action cannot be established, or (2) a complete affirmative defense to the cause of action exists. To demonstrate the elements of a cause of action cannot be established, the employer may show the employee does not possess evidence needed to support a prima facie case and also cannot reasonably obtain the needed evidence. The employer may also, but need not, present evidence conclusively negating an element of the cause of action. Id. at 370. (internal citations omitted). The employee must produce evidence “showing a triable issue of material fact.” Id. B. PLAINTIFF’S DISABILITY DISCRIMINATION CLAIMS FAIL BECAUSE SHE WAS NOT A QUALIFIED INDIVIDUAL An employee must show she is a “qualified individual” to prevail on a disability discrimination, failure to accommodation, or failure to engage in the interactive process claim. See Markowitz v. UPS, SACV 15-1367 AG (DFMx), 2016 U.S. Dist. LEXIS 86245 at *12, 17 (C.D. Cal. July 1, 2016). This is lacking in Plaintiff’s disability-related claims, because she was totally disabled at the time of her discharge. In addition, Plaintiff’s lucrative workers’ compensation settlement was partially based on her alleged inability to work. She is estopped from taking an opposite position in this action. 1. PLAINTIFF COULD NOT PERFORM HER ESSENTIAL JOB FUNCTIONS WITH OR WITHOUT ACCOMMODATION Pursuant to FEHA, it is an unlawful employment practice to discharge an individual based on his or her physical or mental disability. Cal Gov’t Code § 12940(a). However: FEHA ‘does not prohibit an employer from refusing to hire or discharging an employee’ with a physical disability or a medical condition where the employee, because of her physical disability or medical condition, ‘is unable to perform his or her essential duties even with reasonable accommodations.’ Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 14 of 25 Page ID #:180 CASE NO.: 15-cv-05796-DMG(AFMx) 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Hurd v. American Income Life Ins., 2:13-cv-5205-RSWL-MRW, 2014 U.S. Dist. LEXIS 163742 (C.D. Cal. Nov. 20, 2014) (quoting Cal Gov’t Code § 12940(a)(1)-(2)). Simply put, FEHA’s protection for disabled employees has limits. If an employee is unable to perform her job duties, even with reasonable accommodation, an employer has the right to terminate the employment relationship. To establish a prima facie case of disability discrimination, an employee must prove: “(1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without accommodation.” Lui v. City and County of San Francisco, 211 Cal. App. 4th 962, 970-71 (Cal. Ct. App. 2012) (quoting Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 16 Cal. App. 4th at 922 (Cal. Ct. App. 2008)). REMITCO is entitled to summary judgment if it establishes that: “(1) the plaintiff could not establish on of the elements of [the] FEHA claim or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment.” Dep’t of Fair Empl. & Hous. v. Lucent Techs, Inc., 642 F.3d 728 (9th Cir. 2011) (quoting Avila v. Cont’l Airlines, Inc., 165 Cal. App. 4th 1237 (Cal. Ct. App. 2008)). a) PLAINTIFF’S TOTAL INABILITY TO WORK AT THE TIME OF HER TERMINATION PRECLUDES HER FROM ESTABLISHING SHE WAS A QUALIFIED INDIVIDUAL “[A]n employee who is ‘totally disabled’ cannot work at all and thus cannot present a genuine issue of material fact that the employee could have performed the essential duties with a reasonable accommodation.” Canupp v. Children’s Receiving Home, No. 2:14-1185 WBS EFB, 2016 U.S. Dist. LEXIS 53041 *14 (E.D. Cal. April 20, 2016) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1243 (9th Cir. 2013)). Indeed, “an employee who is totally disabled cannot perform “any of his job functions, let alone [the] ‘essential’ ones.” Jackson v. Simon Prop. Group, Inc., 795 Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 15 of 25 Page ID #:181 CASE NO.: 15-cv-05796-DMG(AFMx) 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 F.Supp.2d 949, 960-61 (N.D. Cal. 2011); Kennedy v. Applause, Inc., 90 F.3d 1477, 1482 (9th Cir. 1996) (finding no material issue of fact as to the plaintiff’s “total disability and resulting inability to perform her job…with or without reasonable accommodation”). The undisputed evidence shows that Plaintiff could not perform her job, or any job, between March 25, 2014 (a month and a half prior to her discharge), until at least November 2014 (six months after her discharge). Plaintiff was considered totally temporarily disabled (TTD) as of March 25, 2014. [Ex. J.] On March 31, 2014, Plaintiff was restricted from using her right arm. [Wentz Decl., at Ex. 4.] This restriction continued through November 3, 2014, when Plaintiff was restricted from repetitive use of her right arm for 30 days. [Ex. K.] Plaintiff admits she was wholly unable to work during this seven-month period: Q: If you found a [job] on First-Web after March 25, 2014, you wouldn’t have been able to work in that position because of this doctor’s opinion that you were unable to work for 45 days after March 25th? A: Because I was recuperating by myself - I was recuperating from my pain. Q: Yes - so that’s correct? A: Yes. *** Q: So you don’t think you could work during that six month time frame [from May to November 2014]? A: I believe so. I mean I - at that - at that period I was still in pain. I was still going to therapy so I didn’t think it was to look for a job I would have hurt myself more. [Amar Dep. 122:13-18.] Q: So you just - you couldn’t have worked because you were in pain from May 5th, 2014 through November 2014? A: Correct. [Amar Dep. 109:24-110:6; 122:13-132:9.] Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 16 of 25 Page ID #:182 CASE NO.: 15-cv-05796-DMG(AFMx) 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Although Plaintiff failed to keep REMITO apprised of her medical condition during her 90-day leave, her admitted complete inability to work still precludes her from establishing her prima facie case: [A]n employer who unlawfully discriminates against an employee may not necessarily rely on after-acquired evidence of previously unknown wrongdoing by the employee to justify its unlawful action. However, where later-acquired medical evidence is offered in support of the originally proffered reason and show the plaintiff was not qualified for the job, the evidence is admissible. Finegan v. County of LA, 91 Cal. App. 4th 1, 12 (Cal. Ct. App. 2001) (emphasis added). In other words, evidence regarding a plaintiff’s medical condition after termination is admissible to show Plaintiff was not a qualified individual, which is the case here. The undisputed evidence establishes Plaintiff was totally disabled from working between March 2014 and November 2014; thus, Plaintiff is not a qualified individual and her claims fail as a matter of law. b) PLAINTIFF IS ESTOPPED FROM CLAIMING SHE IS A QUALIFIED INDIVIDUAL In Plaintiff’s workers’ compensation claim, she represented that she could not perform her job duties. She received a sizeable settlement based on these representations. Thus, Plaintiff is judicially estopped from claiming she could perform her job duties during that same time period. In Rissetto v. Plumbers & Steamfitters Local 343, 253 F.3d 1072 (9th Cir. 2001) the Ninth Circuit Court of Appeals reasoned the terms of the plaintiff’s workers’ compensation settlement were necessarily inconsistent with her age discrimination claim: ‘A ‘disability’ under the Workmen’s Compensation Law connotes an inability to work…[An employee] is considered temporarily totally disabled if he is unable to earn any income during the period in which he is recovering from the effects of the injury’…Because all of plaintiff’s claims are premised on her ability to work, we affirm the district court’s grant of summary judgment to defendant’s on all of plaintiff’s causes of action. Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 17 of 25 Page ID #:183 CASE NO.: 15-cv-05796-DMG(AFMx) 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Id. at 605-6. (quoting Herrera v. W.C.A.B., 71 Cal. 2d 254 (Cal. 1969)). This rationale is especially applicable in a disability discrimination case, as the Plaintiff’s ability to work is crucial to the analysis. In Markowitz, 2016 U.S. Dist. LEXIS 86245, the plaintiff pursued FEHA claims and a workers’ compensation claim against her employer simultaneously. The plaintiff settled her workers’ compensation claim, and then claimed she could have returned to work approximately one month after her termination for purposes of her FEHA case. Id. The court refused to allow the plaintiff to take this position. “Testimony or argument that ‘flatly contradicts both her prior sworn statements and the medical evidence’ can’t create ‘a genuine dispute of material fact.’” Markowitz, 2016 U.S. Dist. LEXIS 86245 at *15 (quoting Kennedy, 90 F.3d at 1481). The plaintiff “sought and obtained recovery based on total inability to perform her job.” Id. Thus, the plaintiff’s representation in her FEHA case that she could have worked was irreconcilable with her prior representations. Id. The court underscored “the inequity of profiting from one position and then switching to another when that new position becomes potentially profitable.” Id. Here, Plaintiff was deposed in June 2014 as part of her workers’ compensation case. Plaintiff had been off work for approximately six months at that time. She testified that her shoulder and wrist were worse than when she was working. [Amar WC Dep. 47:12:14] Plaintiff described her wrist pain, at worst, as an 8 out of 10, and at best, as a 5 out of 10. [Amar WC Dep. 54:2-7.] Plaintiff also testified she experienced shoulder pain on a daily basis. [Amar WC Dep 55:22-25.] She described her shoulder pain at its worst as a 9 out of 10, and at its best at a 7 out of 10. [Amar WC Dep. 56:1-5.] Approximately five months later, Dr. Feiwell examined Plaintiff. [Ex. L] Dr. Feiwell’s records indicate Plaintiff stated her symptoms had worsened since her evaluation six weeks earlier. [Id.] On January 21, 2015, Plaintiff settled her workers’ Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 18 of 25 Page ID #:184 CASE NO.: 15-cv-05796-DMG(AFMx) 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 compensation claims against REMITCO for $25,000, almost of half of which was designated as TTD benefits.2 [Ex. M] Plaintiff cannot now maintain that she could have performed her job duties with an accommodation. c) PROVIDING PLAINTIFF WITH ADDITIONAL LEAVE WAS NOT REASONABLE UNDER THE CIRCUMSTANCES Plaintiff may argue that REMITCO should have granted her additional leave as an accommodation. However, providing leave in this situation would not have been a reasonable accommodation. Medical leave can be a reasonable accommodation “where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.” Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 249, 102 Cal.Rptr.2d 55, 58 (2000). [R]easonable accommodation is by its terms most logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question…[R]easonable accommodation does not require [an employer] to wait indefinitely [for the employee’s] medical conditions to be corrected. Wynes v. Kaiser Permanente Hosps., 936 F.Supp.2d 1171, 1184 (E.D. Cal. 2013) (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)); 2 CCR § 11068(c) (“An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.”). Here, Plaintiff admits leave would not have enabled her to return to work in any foreseeable future: Q: When would you have been able to go back to your job? A: Whenever time I was healing myself. I can’t say one month because, you never know what happens. But the time that I needed to recuperate myself. 2 Plaintiff’s workers’ compensation settlement agreement provided approximately 27 weeks of TTD. Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 19 of 25 Page ID #:185 CASE NO.: 15-cv-05796-DMG(AFMx) 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Q: And what time would that be? A: Not sure. *** Q: So it could have been one month, six months, one year or more? A: It was - it depends on how - how I was doing. Q: And it is possible it could have been one month, six months, 12 months or more? A: Correct. [Amar Dep. 143:18-144:8] By Plaintiff’s own admission, there was no indication that a leave of absence would have enabled her to return work in the “foreseeable future.” 2. PLAINTIFF’S FAILURE TO ACCOMMODATE CLAIM FAILS BECAUSE SHE WAS NOT A QUALIFIED INDIVIDUAL AND REMITCO OFFERED REASONABLE ACCOMMODATIONS The elements of a failure to accommodate case are: “(1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential job functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” Markowitz, *17 (quoting Cuiellette v. City of Los Angeles, 194 Cal. App. 4th 757, 766 (Cal. Ct. App. 2011). Plaintiff’s inability to establish she is a qualified individual precludes her from establishing a failure to accommodate claim. “[W]hen an employee is ‘totally disabled, [courts] need not consider [the employee’s] contention that [the employer] could have accommodated her disability.” Markowitz, 2016 U.S. Dist. LEXIS 86245, *17-18 (quoting Kennedy, 90 F.3d 1477, 1482 (9th Cir. 1996)). Further, an employer is entitled to summary judgment on a failure to accommodate claim if it establishes: (1) reasonable accommodation was offered and refused; (2) there was simply no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 20 of 25 Page ID #:186 CASE NO.: 15-cv-05796-DMG(AFMx) 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 informal interactive process broke down because the employee failed to engage in discussions in good faith. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 263 (Cal. Ct. App. 2000). As explained above, there was no accommodation that would enable Plaintiff to perform her job other than reassignment. REMITCO worked with Plaintiff for over three months leave to find a new position within the First Data family of companies after her January 2014 restrictions could not be accommodated. The day REMITCO met with Plaintiff and discussed the potential to move Plaintiff to another open position, Plaintiff asked to be terminated. [Figueroa Decl., Ex. D, at Ex. 2] Figueroa encouraged Plaintiff to wait and see if anything became available. [Id.] It is also undisputed that Marrow tried to help Plaintiff find a job: Q: So, your recollection is that HR contacted you and you guys had conversations about other potential positions, but none of them were in the location radius that you were willing to go and so you weren’t able to pick those positions? A: Correct. [Amar Dep. 98:20-25.] Finally, Plaintiff caused the breakdown in the interactive process when she chose not to share her updated medical restrictions with REMITCO: [T]he interactive process of fashioning an appropriate accommodation lies primarily with the employee. An employee cannot demand clairvoyance of his employer. The employee can’t expect his employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it…It is an employee’s responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate a the employee. King v. United Parcel Service, Inc., 152 Cal. App. 4th 426 (Cal. Ct. App. 2007) (internal quotations and citations omitted). Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 21 of 25 Page ID #:187 CASE NO.: 15-cv-05796-DMG(AFMx) 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 Plaintiff received updated medical restrictions on March 25, March 31, and May 5, 2014. Plaintiff did not mention any of these updates or appointments to REMITCO. Plaintiff offered no possible suggestions as to an accommodation other than allowing her to work in different departments, which REMITCO reviewed as a possibility, and was ultimately unable to accommodate. [Amar Dep. 101:5-8, 19-23; Marrow Dep. 80:19- 81:7.] Plaintiff is responsible for the breakdown in the interactive process. She failed to keep REMITCO apprised of her restrictions, and cannot now claim that REMITCO should have provided her with accommodation possibilities she did not raise based on medical evidence she did not provide. 3. PLAINTIFF’S FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS CLAIM FAILS BECAUSE NO ACCOMMODATION WAS AVAILABLE FEHA requires an employer to engage in a “good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability.” Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 379 (Cal. Ct. App. 2015) (quoting Wysinger v. Automobile Club of Southern California, 157 Cal. App. 4th 413 (Cal. Ct. App. 2007)). However, “[t]o prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred.” Id. at 379 (emphasis added); see also Nadaf- Rahrov, 166 Cal. App. 4th at 983 (“the availability of a reasonable accommodation…is necessary to a [failure to engage in the interactive process] claim”). As discussed above, Plaintiff and REMITCO discussed various options regarding potential accommodations and positions, including those proposed by Plaintiff. However, as REMITCO and Plaintiff discussed during those dialogues, none of the positions fit within Plaintiff’s “30 mile radius” preference, and none of the accommodations were workable. Similarly, Plaintiff did not provide updated medical information or restrictions to REMITCO, preventing a productive dialogue. Accordingly, summary judgment on Plaintiff’s failure to engage in the interactive process claim is appropriate. Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 22 of 25 Page ID #:188 CASE NO.: 15-cv-05796-DMG(AFMx) 17 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 C. PLAINTIFF HAS NOT PRESENTED ANY EVIDENCE TO SUPPORT HER RETALIATION CLAIM FEHA includes an anti-retaliation provision. Cal. Gov’t Code § 12940(h). The McDonnell Douglas framework applies to Plaintiff’s retaliation claim. See Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013). Thus, Plaintiff must first establish a prima facie case of retaliation: “(1) [she] engaged in a ‘protected activity,’ (2) [REMITCO] subjected [her] to an adverse employment action, and (3) a causal link existed between the protected activity and [REMITCO’s] action.” Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1020 (Cal. Ct. App. 2009) (quoting Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (Cal. 2005)). The burden then shifts to REMITCO to articulate a legitimate, non-retaliatory reason for its actions. Id. If REMITCO does so, Plaintiff must prove REMITCO’s explanation is pretext for retaliation. Id. at 1021. Plaintiff claims she engaged in protected activity by requesting accommodations and complaining about and protesting REMITCO’s “discriminatory conduct towards Plaintiff based upon her disabilities.” [Compl. ¶ 43.] REMITCO does not dispute Plaintiff requested accommodations.3 Plaintiff alleges she suffered a number of adverse actions. Id. at ¶ 39. All of these alleged adverse actions except Plaintiff’s discharge are addressed in other sections of this brief. This claim fails because Plaintiff cannot establish a link between her protected activities and discharge. Courts often look to the timing between the protected activity and the adverse action for purposes of evaluating the causal link element. Scotch, 173 Cal. App. 4th at 1021. When a plaintiff relies on timing alone, the timing must be close. See e.g. Flait v. North American Watch Corp., 3 Cal. App. 4th 467, 477-8 (Cal. Ct. App. 1992) (finding proximity of “a few months” sufficient to establish causation). Here, Plaintiff requested accommodations for two years. Her most recent request was in January 2014. However, the underlying circumstances do not support Plaintiff’s 3 Plaintiff has not offered any evidence regarding how she “protested” any alleged discrimination. Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 23 of 25 Page ID #:189 CASE NO.: 15-cv-05796-DMG(AFMx) 18 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 claim. There is no evidence of retaliatory animus. REMITCO accommodated Plaintiff for nearly two years. REMITCO provided Plaintiff with Bravo points during her restriction period. [Ex. E.] REMITCO also gave Plaintiff a merit increase and a stock award after she provided the January 2014 Restrictions. [Ex. H.] Finally REMITCO urged Plaintiff to wait and see what position became available when she asked to be terminated on January 23, 2014. REMITCO’s inability to accommodate Plaintiff was largely based on the change in the business needs (i.e., the decommissioning of the UPS area). Even if Plaintiff could establish a prima facie case, REMITCO had a legitimate, non-retaliatory reason for discharging her employment. Plaintiff could not perform her essential job functions and REMITCO could not accommodate Plaintiff’s restrictions, even after a three month job search. Plaintiff’s retaliation claim lacks evidentiary support and her claim should be dismissed. D. PLAINTIFF’S INABILITY TO ESTABLISH DISCRIMINATION OR RETALIATION DEFEAT HER FAILURE TO PREVENT DISCRIMINATION AND RETALIATION CLAIM To establish a claim for failure to prevent discrimination or retaliation, Plaintiff must establish that discrimination or retaliation actually occurred. Adetuyi v. City & County of San Francisco, 63 F.Supp.3d at 1093. Similarly, Plaintiff’s wrongful termination and declaratory judgment claims are based on the public policies underlying FEHA. [Compl. at ¶¶ 78, 85-86.] However, “[if] the statutory or constitutional claims underlying a plaintiff’s public policy claim fail, the plaintiff’s public policy [claim] also fails.” Hurd, 2014 U.S. Dist. LEXIS 163742 *22- 23; See also Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215 (Cal. Ct. App. 1999) (“because [plaintiff’s] FEHA claim fails, his claim for wrongful termination in violation of public policy fails”). These claims fail, as Plaintiff cannot establish discrimination, retaliation, or her other FEHA claims. Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 24 of 25 Page ID #:190 CASE NO.: 15-cv-05796-DMG(AFMx) 19 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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. CONCLUSION For the reasons set forth herein, Defendant REMITCO, LLC respectfully requests that the instant Motion be granted and that this action be dismissed in its entirety with prejudice. Dated: September 9, 2016 JACKSON LEWIS P.C. By: /s/ Kenneth M. Wentz III________ Thomas G. Mackey Kenneth M. Wentz III Attorneys for Defendant REMITCO, LLC 4839-6106-3735, v. 6 Case 2:15-cv-05796-DMG-AFM Document 20-1 Filed 09/09/16 Page 25 of 25 Page ID #:191 CASE NO.: 15-cv-05796-DMG(AFMx) PROPOSED ORDER 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 Thomas G. Mackey, Esq. SBN 174572 Kenneth M. Wentz III, SBN 223121 JACKSON LEWIS PC 725 Figueroa Street, Suite 2500 Los Angeles, California, 90017 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 mackeyt@jacksonlewis.com wentzk@jacksonlewis.com Attorneys for Defendant REMITCO, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ELISA AMAR, an individual, Plaintiff, v. REMITCO, LLC, a Delaware limited liability company; and DOES 1 through 20, inclusive Defendants. CASE NO.:15-cv-05796-DMG(AFMx) Assigned to Honorable Dolly M. Gee [PROPOSED] JUDGMENT GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT HEARING Date: October 14, 2016 Time: 2:00 p.m. Ctrm: 7, 2nd Floor Complaint Filed: June 25, 2015 Defendant REMITCO, LLC’s (“Defendant”) Motion for Summary Judgment, or in the alternative, Partial Summary Judgment, came on regularly for hearing before this Court on the Honorable Dolly M. Gee presiding. The evidence presented having been fully considered, the issues having been duly heard, the Court rules as follows: Under Federal Rule of Civil Procedure 56, a party may move for summary judgment on any claim or defense, or part thereof. Summary judgment is appropriate if Case 2:15-cv-05796-DMG-AFM Document 20-2 Filed 09/09/16 Page 1 of 4 Page ID #:192 CASE NO.: 15-cv-05796-DMG(AFMx) 2 [PROPOSED] ORDER 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 the evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Nealy v. City of Santa Monica, 234 Cal. App. 4th 359 (Cal. Ct. App. 2015). As set forth below, Plaintiff’s claims fail as a matter of law: I. FIRST CAUSE OF ACTION FOR DISABILITY DISCRIMINATION Plaintiff’s claim for disability discrimination fails because she cannot establish a prima facie case, as she was not a qualified individual with a disability. Plaintiff’s claim for disability discrimination fails because, even assuming arguendo, that Plaintiff can establish a prima facie case, REMITCO had legitimate, non- discriminatory business reasons for terminating Plaintiff’s employment and Plaintiff cannot prove that REMITCO’s proffered reasons for terminating her employment are pretext for discrimination. II. SECOND CAUSE OF ACTION FOR RETALIATION Plaintiff’s retaliation claim fails because she cannot establish a prima facie case, as she cannot prove a causal connection between her protected activity and her discharge. Plaintiff’s claim for retaliation fails because, even assuming arguendo, that Plaintiff can establish a prima facie case, REMITCO had legitimate, non-discriminatory business reasons for terminating Plaintiff’s employment and Plaintiff cannot prove that REMITCO’s proffered reasons for terminating her employment are pretext for retaliation. Case 2:15-cv-05796-DMG-AFM Document 20-2 Filed 09/09/16 Page 2 of 4 Page ID #:193 CASE NO.: 15-cv-05796-DMG(AFMx) 3 [PROPOSED] ORDER 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. THIRD CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION AND RETALIATION Plaintiff’s failure to prevent discrimination and retaliation claim fails as she cannot establish an underlying claim for discrimination or retaliation. IV. FOURTH CAUSE OF ACTION FOR FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS Plaintiff’s failure to provide reasonable accommodations claim fails, because she cannot establish a prima facie case, as she was not a qualified individual with a disability. Plaintiff’s failure to provide reasonable accommodations claim fails, because REMITCO offered reasonable accommodation and Plaintiff declined. Plaintiff’s failure to provide reasonable accommodations claim fails, because there was no available position with REMITCO for which Plaintiff was qualified and which she could perform with or without accommodation. Plaintiff’s failure to provide reasonable accommodations claim fails, because REMITCO she caused the breakdown in the interactive process. IV. FIFTH CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS Plaintiff’s failure to engage in the interactive process claim fails, because she cannot establish a prima facie case, as she was not a qualified individual with a disability. Plaintiff’s failure to engage in the interactive process claim fails, because she cannot identify a reasonable accommodation that would have enabled her to perform her essential job functions. Case 2:15-cv-05796-DMG-AFM Document 20-2 Filed 09/09/16 Page 3 of 4 Page ID #:194 CASE NO.: 15-cv-05796-DMG(AFMx) 4 [PROPOSED] ORDER 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 VI. SIXTH CAUSE OF ACTION FOR DECLARATORY JUDGMENT Plaintiff’s claim for declaratory relief fails because it is derivative of her claims for disability discrimination, retaliation, failure to accommodate, failure to engage in the interactive process, and/or wrongful termination claims, which also fail. VII. SEVENTH CAUSE OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY Plaintiff’s claim for wrongful termination in violation of public policy fails because it is derivative of her claims for disability discrimination, retaliation, failure to accommodate, failure to engage in the interactive process, and/or wrongful termination claims, which also fail. Dated: HON. DOLLY M. GEE UNITED STATES DISTRICT COURT 4820-4117-3816, v. 1 Case 2:15-cv-05796-DMG-AFM Document 20-2 Filed 09/09/16 Page 4 of 4 Page ID #:195 CASE NO.: 15-cv-05796-DMG(AFMx) DEFENDANT’S INDEX OF EVIDENCE IN SUPPORT OF SUMMARY JUDGMENT 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 Thomas G. Mackey, Esq. SBN 174572 Kenneth M. Wentz III, SBN 223121 JACKSON LEWIS PC 725 Figueroa Street, Suite 2500 Los Angeles, California, 90017 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 mackeyt@jacksonlewis.com wentzk@jacksonlewis.com Attorneys for Defendant REMITCO, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ELISA AMAR, an individual, Plaintiff, v. REMITCO, LLC, a Delaware limited liability company; and DOES 1 through 20, inclusive Defendants. CASE NO.:15-cv-05796-DMG(AFMx) Assigned to Honorable Dolly M. Gee DEFENDANT’S INDEX OF EVIDENCE IN SUPPORT OF SUMMARY JUDGMENT HEARING Date: October 14, 2016 Time: 2:00 p.m. Ctrm: 7, 2nd Floor Complaint Filed: June 25, 2015 INDEX OF EVIDENCE Exhibit No. Page Nos. Description A 1-85 Declaration of Kenneth M. Wentz B 86-87 February 29, 2012 Doctor’s Note Marked as Ex. 6 to Deposition of Elisa Amar (“Amar Dep.”) C 88-89 May 7, 2013 Doctor’s Note Marked as Ex. 7 to Amar Dep. D 90-94 Declaration of Deborah Figueroa Case 2:15-cv-05796-DMG-AFM Document 20-3 Filed 09/09/16 Page 1 of 2 Page ID #:196 CASE NO.: 15-cv-05796-DMG(AFMx) 2 DEFENDANT’S INDEX OF EVIDENCE IN SUPPORT OF SUMMARY JUDGMENT 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 E 95-99 October and December 2013 Bravo Awards Marked as Ex. 3 to Amar Dep. F 100-101 January 6, 2014 Doctor’s Note Marked as Ex. 8 to Amar Dep. G 102-103 Second January 6, 2014 Doctor’s Note Marked as Ex. 9 to Amar Dep. H 104-105 January 2014 Compensation Summary Marked as Ex. 2 to Amar Dep. I 106-113 January 24, 2014 SSDI Application Marked as Ex. 17 to Amar Dep. J 114-115 March 25, 2014 Doctor’s Note Marked as Ex. 10 to Amar Dep. K 116-125 Health Quest Records Marked as Ex. 11 to Amar Dep. L 126-133 October 13, 2014 Report of Dr. Feiwell Marked as Ex. 13 to Amar Dep. M 134-145 January 21, 2015 Workers’ Compensation Settlement Agreement Dated: September 9, 2015 Respectfully submitted, JACKSON LEWIS PC By: /s/ Kenneth M. Wentz III Thomas G. Mackey Kenneth M. Wentz III Attorneys for Defendant REMITCO, LLC 4824-9802-3736, v. 1 Case 2:15-cv-05796-DMG-AFM Document 20-3 Filed 09/09/16 Page 2 of 2 Page ID #:197 Exhibit A MSJ PAGE 1 3 Case 2:15-cv-05796-DMG-AFM Document 20-4 Filed 09/09/16 Page 1 of 3 Page ID #:198 MSJ PAGE 2 4 Case 2:15-cv-05796-DMG-AFM Document 20-4 Filed 09/09/16 Page 2 of 3 Page ID #:199 MSJ PAGE 3 5 Case 2:15-cv-05796-DMG-AFM Document 20-4 Filed 09/09/16 Page 3 of 3 Page ID #:200 Exhibit A Exhibit 1 MSJ PAGE 4 6 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 1 of 30 Page ID #:201 MSJ PAGE 5 7 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 2 of 30 Page ID #:202 MSJ PAGE 6 8 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 3 of 30 Page ID #:203 MSJ PAGE 7 9 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 4 of 30 Page ID #:204 MSJ PAGE 8 10 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 5 of 30 Page ID #:205 MSJ PAGE 9 11 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 6 of 30 Page ID #:206 MSJ PAGE 10 12 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 7 of 30 Page ID #:207 MSJ PAGE 11 13 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 8 of 30 Page ID #:208 MSJ PAGE 12 14 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 9 of 30 Page ID #:209 MSJ PAGE 13 15 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 10 of 30 Page ID #:210 MSJ PAGE 14 16 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 11 of 30 Page ID #:211 MSJ PAGE 15 17 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 12 of 30 Page ID #:212 MSJ PAGE 16 18 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 13 of 30 Page ID #:213 MSJ PAGE 17 19 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 14 of 30 Page ID #:214 MSJ PAGE 18 20 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 15 of 30 Page ID #:215 MSJ PAGE 19 21 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 16 of 30 Page ID #:216 MSJ PAGE 20 22 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 17 of 30 Page ID #:217 MSJ PAGE 21 23 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 18 of 30 Page ID #:218 MSJ PAGE 22 24 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 19 of 30 Page ID #:219 MSJ PAGE 23 25 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 20 of 30 Page ID #:220 MSJ PAGE 24 26 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 21 of 30 Page ID #:221 MSJ PAGE 25 27 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 22 of 30 Page ID #:222 MSJ PAGE 26 28 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 23 of 30 Page ID #:223 MSJ PAGE 27 29 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 24 of 30 Page ID #:224 MSJ PAGE 28 30 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 25 of 30 Page ID #:225 MSJ PAGE 29 31 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 26 of 30 Page ID #:226 MSJ PAGE 30 32 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 27 of 30 Page ID #:227 MSJ PAGE 31 33 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 28 of 30 Page ID #:228 MSJ PAGE 32 34 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 29 of 30 Page ID #:229 MSJ PAGE 33 35 Case 2:15-cv-05796-DMG-AFM Document 20-5 Filed 09/09/16 Page 30 of 30 Page ID #:230