Lawler v. Montblanc N. Am., LLC

• Decision Date: 11 January 2013
• Docket Number: No. 11–16206.,11–16206.
• Citation: 704 F.3d 1235
• Parties: Cynthia LAWLER, Plaintiff–Appellant, v. MONTBLANC NORTH AMERICA, LLC, and Jan–Patrick Schmitz, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

704 F.3d 1235

Cynthia LAWLER, Plaintiff–Appellant,

v.MONTBLANC NORTH AMERICA, LLC, and Jan–Patrick Schmitz, Defendants–Appellees.

No. 11–16206.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 2012.

Filed Jan. 11, 2013.

Michael J. Korda, Kraw and Kraw, Mountain View, CA, for Plaintiff–Appellant.

George H. Parsells, III, and Vimal K. Shah, McElroy, Deutsch, Mulvaney & Carpenter, LLC, Morristown, NJ, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of California, Lucy H. Koh, District Judge, Presiding. D.C. No. 10–cv–01131–LKH.

Before: RONALD M. GOULD and MILAN D. SMITH, JR., Circuit Judges, and KEVIN THOMAS DUFFY, District Judge.^*

OPINION

DUFFY, District Judge:

In this diversity action, Plaintiff–Appellant Cynthia Lawler (“Lawler”) appeals the district court's grant of summary judgment in favor of Defendants–Appellees Montblanc North America, LLC (“Montblanc”) and its President and Chief Executive Officer Jan–Patrick Schmitz (“Schmitz”) (collectively, “Defendants”), on each of her four claims: (1) disability discrimination raised against Montblanc under the California Fair Employment and Housing Act (“FEHA”); (2) retaliation raised against Montblanc under FEHA; (3) harassment raised against Defendants under FEHA; and (4) intentional infliction of emotional distress raised against Defendants under California state tort law.

Because Lawler fails to present a genuine issue of material fact as to each of her four claims, we affirm.

I. BACKGROUND¹

Montblanc makes fine writing instruments, jewelry, timepieces, and other luxury products that it sells wholesale and in boutique retail stores. From September 2001 through October 2009, Montblanc employed Lawler as a manager at its Valley Fair Shopping Center boutique retail store in Santa Clara, California (“Store”). At the time of Lawler's termination, the Store employed four full-time employees, including Lawler, and two part-time employees.

Lawler's duties as a manager included, among other things, hiring, training, and supervising sales staff; overseeing and developing customer relations; administrating stocking and inventory; cleaning; creating store displays; and preparing sales reports. Lawler could only perform her job duties in the store.

Lawler testified that each year, from the Friday after Thanksgiving until January 2 (the “Holiday Season”), she worked increasinghours beginning with sixty hours per week and ending with seventy hours per week. The Store makes one-third of its annual sales during the Holiday Season, and Montblanc maintains a policy prohibiting employee vacations during that period.

On June 30, 2009, Lawler's rheumatologist, Dr. Neelakshi Patel (“Dr. Patel”), diagnosed her with a chronic condition known as psoriatic arthritis and recommended that Lawler work a reduced workweek of twenty hours “due to medical reasons.” On July 23, Lawler e-mailed Teresa Eyre (“Eyre”), Montblanc's Regional Manager in Las Vegas, Nevada, concerning her need for reduced working hours. The next day, Lawler telephoned Mary Gorman (“Gorman”), Montblanc's Director of Human Resources to request a reduced work week of twenty-five hours. Gorman stated that she would send a letter to Dr. Patel requesting information that would allow Montblanc to assess whether it could accommodate Lawler's request. On July 29, Gorman sent an e-mail and letter to Lawler stating in relevant part:

As you know, the nature of your position as Boutique Manager makes it essential that you personally be present at the store.... Thus, Boutique Managers typically are present in the store at least 40 hours per week.

... Kindly have your treating doctor provide us, in writing, details of the following: (i) the nature, severity and duration of your impairment; (ii) the activities the impairment limits; (iii) the extent to which the impairment limits your ability to perform those activities; and (iv) what, if any, accommodation can be provided that would enable you to perform the essential functions of your position.

On August 4, Lawler fractured the third and fourth toes on one of her feet during a fall in her bedroom. The fall was an “indirect consequence” of her condition, and occurred when Lawler “turned to grab [her] purse to go to work and [her] hip gave out from the arthritis.” On August 5, a podiatrist set her foot and placed it in an orthopedic shoe. The podiatrist certified that Lawler could return to work on September 2, 2009. After her examination, Lawler telephoned Gorman to inform her of the accident and of Lawler's need for temporary disability leave. Gorman asked Lawler to fax her documentation regarding the injury for the purpose of notifying Montblanc's disability carrier. Not having a fax machine, Lawler drove by herself from the podiatrist's office to the Store and used the office fax machine.

While Lawler was in the Store, Schmitz and Mike Giannattasio (“Giannattasio”), Montblanc's Vice President of Retail, entered on a routine inspection visit. Upon finding Lawler in the back office, Schmitz asked Lawler in an “abrupt, brisk” manner why she was not dressed in work attire, to which Lawler replied that she “was off work on disability.” Schmitz then informed Lawler that he and Giannattasio were going to walk around the mall to survey the “competition.” When Lawler informed Schmitz that she would not be in the office when they returned, Schmitz said to her in an “intimidating,” “abrupt,” and “gruff” tone, “We will talk when I get back.”

After thirty or forty minutes, Schmitz and Giannattasio returned to the Store and approached Lawler in her office. Schmitz said that they “needed to take a look around,” and he “stood by the door and stared at [Lawler] until [she] got up to go out and look around.” During their walk around the Store, Schmitz “herded the group of [employees] around the boutique” and “started to get very, very angry” when he noticed that the newest eyewear products were not on display. Lawler explained that the display cases were inadequately sized to properly display the merchandise, which she demonstrated to Schmitz by physically measuring a display case. Schmitz “just got mad that [Lawler] was confronting him.”

Schmitz then “herded” the group toward another display, during which time an associate stepped on Lawler's broken foot. Giannattasio and another employee offered Lawler a seat while Schmitz finished examining the Store. Schmitz then asked Lawler to provide him with “specifics on ... the races of [Montblanc's] customers, the racial background of the geographic[ ] area of San Jose, [and for a] list of chambers of commerce” by the following Monday. Lawler reminded him that she “was not working, [and] could not do it.” Schmitz said, “[Y]ou will do it or else.” Lawler agreed to e-mail the information from home. Schmitz and Giannattasio then accompanied Lawler to a back room where Schmitz “told [her] that he didn't like the way [the] repair parts were being stored” and “questioned [her] about [the] signature engraving service.” Afterward, Schmitz and Giannattasio left the Store.

Montblanc maintains security cameras at their boutique stores that capture video but not audio. Per Montblanc's regular practice, the security video capturing the events of August 5, 2009, was automatically overwritten approximately thirty days after it was recorded.

Upon returning home, Lawler telephoned Eyre and informed her of Schmitz's visit and of her concern about completing the assignments. Eyre told her not to worry about the paperwork.

On August 11, Lawler sent a letter to Gorman expressing her concerns about Schmitz's visit to the Store. Specifically, Lawler complained that: (1) Schmitz “made it very clear that in spite of [her] disability, he expected [her] to stay and work” while he walked around the mall; (2) she “felt extremely intimidated and felt that [she] had no choice but to stay in spite of the fact that [she] was disabled and in pain”; (3) a coworker stepped on her broken foot while she was walking around the sales floor at Schmitz's direction; and (4) Schmitz “gave [her] several assignments that he told [her] personally to take care of with deadlines that were within a week, again ignoring [her] disability.”

On August 13, Lawler telephoned Gorman to discuss the August 11 letter. During the conversation, Gorman told Lawler that she did not want to show Schmitz the letter and that Lawler should delegate the assigned work to the assistant manager to avoid “more problems.” Lawler insisted that Gorman process the complaint. Gorman did not interview any Store employees regarding Schmitz's visit and never inquired about the August 5 security video.

On September 2, Dr. Patel drafted a letter recommending that Lawler take an extended leave of absence until January 5, 2010, “to avoid further flare-ups” related to her psoriatic arthritis. On September 4, Lawler e-mailed Gorman and attached Dr. Patel's September 2 letter. On September 10, Gorman sent a letter to Dr. Patel listing Lawler's job duties and asking whether Montblanc could provide any reasonable accommodation “that would permit [Lawler] to resume being regularly present at the store and performing the duties of her position.” The letter stated that Lawler's duties “do not involve significant strenuous lifting or other physical activity,” and asked “when [Lawler] would be able to resume her regular duties.” On October 6, Dr. Patel faxed a note to Gorman stating that “[t]he patient's status has not changed, therefore the recommendation that she be off until Jan. 5th 2010 has not changed.”

On October 13, Gorman telephoned Lawler and told her that Montblanc was terminating her employment effective October 31, 2009. On October 14, Gorman sent a letter to Lawler memorializing the October 13 conversation. The letter stated in relevant part:

As we advised you in our email of July 29, 2009, it is essential for a boutique manager to be in...