Motion for Summary Judgment or Summary Adjudication
13. Bush v. California Cemetery and Funeral Services, LLC 24-1438792
Before the Court is a motion for summary judgment or in the alternative, summary adjudication filed by defendant California Cemetery and Funeral Services, LLC (Defendant) on the Complaint of plaintiff Kesaia Bush (Plaintiff). For the reasons set forth below the motion for summary judgment is GRANTED.
The new evidence submitted with the reply is untimely and not considered. (Code of Civ. Proc. § 437c, subd. (b)(4).)
Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d).)
Plaintiff’s evidentiary objections are OVERRULED.
Defendant’s evidentiary objections to the declaration of Sandy T. Luu and Kesaia Bush are SUSTAINED as to nos. 1, 2, 38-43 based on relevance and OVERRULED as to nos. 3-42. The Court declines to rule on Defendant’s other “evidentiary” objections, which are procedurally improper. Written objections must go to specific evidence, not facts stated in the separate statement or response to separate statement. (Cal. Rules of Court, rule 3.1354(b).)
1st and 2nd causes of action (discrimination and retaliation):
For summary judgment purposes, “[i]n an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003; Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.)
“If the employer meets its initial burden in this manner, the plaintiff then has the burden to produce ‘substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’” (
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Here, Defendant produced evidence that Plaintiff’s employment was terminated because Plaintiff was on an extended absence without approved leave, i.e., Plaintiff failed to submit medical documentation to support her request for pregnancy disability leave as required under Defendant’s policies. (Defendant’s Separate Statement of Undisputed Material Facts (“DSS”) 4-19, 26.) Defendant met its burden showing a legitimate, nondiscriminatory reason for Plaintiff’s termination.
The burden shifted to Plaintiff, but Plaintiff failed to produce sufficient evidence that Defendant’s stated reason for termination was pretextual or Defendant otherwise acted with discriminatory animus.
Plaintiff’s argues pretext is shown by Defendant’s violation of 12 of its own policies. It is true “an employer’s failure to follow its own policies and procedures” supports an inference of pretext. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 239.) Here, however, the evidence produced by Plaintiff fails to show Defendant violated its policies. Rather, the undisputed evidence and a review of the policies cited by Plaintiff show there was no obligation imposed on Defendant, or the obligation was not triggered and/or excused by Plaintiff’s own noncompliance. (Plaintiff’s Additional Material Facts (“AMF”) 67-78; see also DSS and Response to DSS 7-11, 22, 26; Declaration of Jeffrey J. Gordon (“Gordon Decl.”), Ex. 3 at p. 391.)
Plaintiff next argues that Defendant’s paperwork contains inconsistencies regarding Plaintiff’s employment status during her leave of absence. A triable issue as to the employers’ credibility may arise where the employer has given “fundamentally different justifications” for its action. (Reeves v. MV Transp., Inc. (2010) 186 Cal.App.4th 666, 677.) The evidence produced by Plaintiff fails to show the inconsistencies constitute “fundamentally different justifications” for the termination. Rather, they only reflect minor miscommunication between Defendant and third-party administrator and/or immaterial differences in wording. (Plaintiff’s AMF 54-55, 81-82.)
Plaintiff argues a male employee was treated differently and more favorably because he was offered reinstatement. Pretext may be proven through “comparative evidence,” i.e., evidence that the employer treated similarly situated person in similar circumstances more favorably than it treated plaintiff. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 804.) The undisputed evidence shows, however, that Plaintiff was provided the same offer as the male colleague – reinstatement with the requested documentation. (Gordon Decl., Ex. 2 at pp. 181-182; see also Bush Decl., ¶ 36.) Plaintiff failed to produce any evidence she ever provided medical document to support her leave, either before or after termination, or that she ever sought reinstatement. (DSS 10-23; Response to DSS 10; see also Gordon Decl., Ex. 2 at pp. 181-182, 200.) Plaintiff failed to show she was treated differently.
In sum, Plaintiff failed to meet her burden to provide “specific, substantial evidence of pretext” from which a reasonable trier of fact could conclude that the explanation offered by Defendant for Plaintiff’s termination was not credible. (Deschene v. Pinole Point Steel Co., supra, 76 Cal.App.4th at 44.) The motion is therefore GRANTED as these causes of action.
4th and 5th causes of action (reasonable accommodation and interactive process):
The FEHA imposes on the employer the obligation “to make reasonable accommodation for the known physical or mental disability” of an employee to enable him or her to perform a position’s essential functions, unless doing so would produce undue hardship to the employer’s operations. (Gov. Code § 12940, subd. (m); Cal. Code Regs., tit. 2, § 11068(a); Fisher v. Sup. Ct. (Alpha Therapeutic Corp.)(1986) 177 Cal.App.3d 779, 783.) In addition, FEHA requires the employer to engage in a “timely, good faith interactive process with the employee . . to determine effective reasonable accommodations, if any, in response to response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability of known medical condition.” (Gov. C. § 12940, subd. (n).)
FEHA regulations provide that the employer has the obligation to initiate the interactive process 1) if an employee with a known disability or medical condition requests reasonable accommodation or 2) the employer otherwise becomes aware of the need for an accommodation through a third party or by observation. (Cal. Code Regs., tit. 2, § 11069, subd. (b).) A request for finite leave is a request for accommodation. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 377-378; Cal. Code Regs., tit. 2, § 11068, subd. (c).)
The employee has the obligation to “cooperate in good faith with the employer . . . including providing reasonable medical documentation where the disability or the need for accommodation is not obvious and is requested by the employer.” (Cal. Code Regs., tit. 2, § 11069, subd. (d)(5).) “Reasonable medical documentation confirms the existence of the disability and the need for reasonable accommodation.” (Cal. Code Regs., tit. 2, § 11069, subd. (d)(1).) If the medical documentation is insufficient, no reasonable accommodation is required. (Cal. Code Regs., tit. 2, § 11069, subd. (d)(6).)
Defendant produced evidence Plaintiff requested accommodation for an alleged pregnancy disability by requesting a leave of absence, Defendant requested medical certification to support the leave request, but Plaintiff failed to provide any medical documentation despite repeated requests. (DSS 10-21.) Based on Plaintiff’s failure to cooperate, Defendant met its burden that it had no further obligation to engage in the interactive process or provide reasonable accommodation.
The burden shifts to Plaintiff to produce evidence showing a triable issue of fact. Plaintiff argues she was physically unable to engage in the interactive process, which cannot be held against her pursuant to Cal. Code Regs., tit. 2, § 11069, subd. (d)(3). (AMF 49.) The evidence does not show, however, that Plaintiff lacked the mental or physical ability to obtain the doctor’s note. Indeed, Plaintiff claims she was
unable to obtain the medical certification because her doctor refused to provide it despite Plaintiff’s repeated requests at her OB appointments. (Response to DSS 10, 12; Plaintiff’s AMF 44; see also Bush Decl. ¶ 21.) Thus, Plaintiff’s inability to obtain the doctor’s note was not caused by Plaintiff being physically unable to do so – it was because her doctor did not find her morning sickness to be severe enough to warrant accommodation.
Plaintiff next argues that Defendant had “at least five concrete mechanisms to resolve the certification obstacle” based on its own policies and Defendant “used none.” (Opposition, p. 14.) These arguments fail for the same reasons set forth above: Plaintiff failed to show Defendant violated any of its policies.
To the extent Plaintiff argues her physical disability was so “obvious” that no documentation was necessary, Plaintiff failed to submit sufficient evidence of an obvious physical disability or the need to take an extended leave of absence. Plaintiff produced evidence her coworkers and supervisor may have observed Plaintiff suffer from morning sickness, but only a healthcare provider can determine whether she suffered from “severe morning sickness” requiring two months’ leave. (AMF 24-27; see also Plaintiff’s Compendium of Evidence, Ex. 2.)
Notably, her own doctor did not believe her morning sickness was severe enough to warrant medical certification. (Response to DSS 10, 12; Plaintiff’s AMF 44; see also Bush Decl. ¶ 21.) If her own doctor did not find her condition to be “obvious” enough for an extended leave of absence, it would be unreasonable to expect her medically untrained coworkers and supervisors to find her condition “obvious” so as to excuse Plaintiff from a providing a doctor’s note.
Plaintiff failed to meet her burden showing a triable issue of fact as to Defendant’s obligation to provide reasonable accommodation and/or further engage in the interactive process. The motion is therefore GRANTED as these causes of action.
3rd and 6th causes of action (failure to prevent and wrongful termination):
These claims are derivative of Plaintiff’s other disability discrimination claims and fail for the same reasons. (Trujillo v North County Transit (1998) 63 Cal.App.4th 286-88 [in general, there can be no failure to prevent discrimination if there are no successful discrimination claims; City of Moorpark v. Sup. Ct. (Dillon) (1998) 18 Cal.4th 1143, 1161[FEHA disability discrimination may form the basis of a common law claim for wrongful termination against public policy].) The motion is therefore GRANTED as these causes of action.
Punitive damages: Based on the Court’s ruling on the motion as to all of Plaintiff’s claims, Defendant’s argument as to punitive damages is moot.
Counsel for Defendant shall give notice of this ruling.
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