Soria v. Univision Radio L. A., Inc.

• Citation: 210 Cal.Rptr.3d 59,33 A.D. Cases 155,5 Cal.App.5th 570
• Decision Date: 15 November 2016
• Docket Number: B263224
• Court: California Court of Appeals
• Parties: Sofia SORIA, Plaintiff and Appellant, v. UNIVISION RADIO LOS ANGELES, INC., et al., Defendants and Respondents.

5 Cal.App.5th 570

210 Cal.Rptr.3d 59

33 A.D. Cases 155

Sofia SORIA, Plaintiff and Appellant,

v.UNIVISION RADIO LOS ANGELES, INC., et al., Defendants and Respondents.

B263224

Court of Appeal, Second District, Division 7, California.

Filed November 15, 2016

The deRubertis Law Firm, David M. deRubertis, Studio City, and Kelly A. Knight, Lavi & Ebrahimian, N. Nick Ebrahimian, Beverly Hills, for Plaintiff and Appellant.

Venable, Daniel P. Hoffer and Robert H. Pepple, Los Angeles, for Defendants and Respondents.

PERLUSS, P.J.

Sofia Soria, a former on-air radio personality for Univision Radio Los Angeles, Inc. and Univision Communications, Inc. (collectively Univision), appeals from the judgment entered after the trial court granted summary judgment in favor of Univision in Soria's action for disability discrimination, wrongful termination and related employment claims. Because material issues of fact exist regarding each of Soria's claims, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. Soria's Employment at Univision

Soria worked for Univision as an on-air radio personality from 1997 until her termination in November 2011. Soria had three direct supervisors during the relevant time period: Fernando Perez prior to April 2011, Haz Montana from April to August 2011 and Maria Nava from August to November 2011. In addition, Montana was Soria's second-level supervisor throughout 2011.

For nine years preceding her termination, Soria hosted the mid-day radio show on a Univision radio station in Los Angeles. Soria was scheduled to be in the radio booth from 10 a.m. to 3:00 p.m. during which time she spoke on the air between songs and commercials, took calls from listeners and announced promotions and giveaway winners. Soria was expected to arrive at the station approximately 30 minutes in advance of going on the air in order to review the "audio log," which indicated how many times per hour she would speak that day and for how long each time. Soria was also expected to use this pre-air time to research relevant topics and prepare what she would discuss on the air.

2. Soria's Tumor Diagnosis

In 2007 Soria was diagnosed with a small tumor at the junction of her esophagus and stomach. Testing showed the tumor to be benign, and Soria was told that no treatment was necessary at that time. In August 2010 Soria experienced nausea and vomiting and returned to the doctor for further examination. Soria testified the doctors again told her the tumor was benign, but that she should either have it removed or return every three to six months for monitoring. Soria opted to return for monitoring rather than undergo surgery.

In October 2011 medical tests revealed Soria's tumor had grown, and her doctors stated malignancy could not be definitively ruled out. As such, on October 14, 2011 Dr. Harmik Soukiasian recommended she have the tumor removed "in the next few weeks" and stated removal "should not be put off any longer." On that same day Soria was evaluated by Dr. Miguel Burch, who concurred with Dr. Soukiasian and stated he was "fairly emphatic about the fact that the mass must be removed."

Still unsure about whether to have the surgery, Soria sought a third opinion on November 2, 2011 from Dr. Marvin Derezin. Dr. Derezin stated in his contemporaneous medical report that he believed the tumor was "most likely" benign. However, Dr. Derezin wrote he believed the tumor should be removed so that Soria would no longer be concerned about it. In December 2011 Soria saw yet another doctor, Dr. Formosa Chen, who also believed the tumor was benign. While Dr. Chen presented Soria with the option of continuing to monitor the tumor, Dr. Chen ultimately recommended removal of the mass in order to "definitively diagnose this lesion, as well as to give the patient peace of mind." Dr. Chen stated in her report that Soria had not yet decided whether to have the surgery but would continue to think about it. Soria ultimately had the tumor removed in April 2012, after the termination of her employment, at which time tests showed that the tumor was not cancerous.

It is undisputed Soria had no physical symptoms as a result of her tumor that interfered with her ability to perform her job duties. Soria experienced some pain on the right side of her torso, but did not know whether it related to her tumor. There was no evidence the pain or any other symptom inhibited her ability to work. In addition, Dr. Derezin and Dr. Chen both noted in their examination reports that the tumor was asymptomatic.

3. Soria's Communications with Supervisors Regarding Medical Appointments and Diagnosis

It is undisputed that between May 2011 and November 2011 Soria missed work or arrived late nine times due to doctor appointments related to her tumor. On each occasion Soria notified her supervisor(s) in advance and requested permission for the time off. Each request was granted. Most of the emails and text messages in which Soria requested time off simply stated she had a doctor's appointment. However, in one email to supervisor Montana on September 23, 2011, Soria wrote she would be absent one day the following week due to a "biopsy."

In addition to emails requesting time off, Soria testified she had three or four conversations with Nava in 2011 regarding her appointments and diagnosis. Specifically, Soria stated in September or October 2011 she told Nava she had a tumor and her doctors recommended the tumor be removed, which would require major surgery, including cutting off part of her stomach and esophagus. Soria testified Nava had cried during this conversation, said her brother had died of cancer

and recommended a specific doctor and hospital to Soria. Soria further testified that Nava sent her a text message on September 30, 2011, the day of her biopsy, in which Nava wrote, "I wish you luck today. May I call you this evening to know how you are doing? Put your faith in God." Soria said Nava did call her that evening to inquire how the biopsy had gone.

Nava, on the other hand, testified she may have known Soria had medical appointments in 2011, but she never had any conversations with Soria regarding the reasons for the appointments and Soria never told her she had a tumor or was having a biopsy. Nava stated she did not recall whether she wrote Soria a text message on September 30, 2011, but, after reviewing the text message, stated that she "could have" sent it.

Similarly, Soria recalls telling Montana in the summer of 2011 that she would be undergoing "several medical exams." However, Montana testified he did not learn that Soria had any medical issue until after Soria had been terminated.

4. Soria's Discussions with Supervisors Regarding Potential Surgery

At her deposition Soria testified that in late October or early November 2011 she informed Nava she wanted to have surgery in December to remove the tumor and requested medical leave. According to Soria, Nava told her she could not take leave in December because another employee would be on leave that month. Nava denied this conversation took place and testified Soria did not request time off for surgery.

5. Univision's Termination of Soria's Employment

Nava testified, after she became Soria's supervisor in August 2011, she repeatedly observed Soria arrive to work only minutes before her on-air time or after her show had already started. Nava also stated that other station personnel had complained about Soria's tardiness. In October 2011 Nava instructed Soria that she must arrive to work 30 minutes to one hour ahead of her show's start time to review the daily music log, research relevant topics and prepare her remarks. Nava also informed the Vice President of Content, Haz Montana, that she had concerns about Soria's tardiness and lack of preparation. According to Nava, in late October or early November she and Montana concluded Soria's tardiness was not improving, and they decided to terminate her employment. Soria was discharged on November 16, 2011.

6. Soria's Complaint

On January 18, 2013 Soria filed a complaint and on January 24, 2013 a first amended complaint alleging six causes of action: (1) disability discrimination in violation of the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. );¹ (2) failure to provide reasonable accommodation in violation of FEHA; (3) failure to engage in the interactive process in violation of FEHA; (4) violation and interference with rights under the California Family Rights Act (CFRA) (§ 12945.1 et seq.); (5) retaliation in violation of CFRA; and (6) wrongful termination in violation of public policy. In her general allegations Soria averred that she had a "serious medical condition" and was terminated due to her "need for leave and disability/perceived disability." The first amended complaint also alleged Univision had improperly failed to engage in the interactive process or to provide reasonable accommodations.

7. Univision's Motion for Summary Judgment/Summary Adjudication

On March 21, 2014 Univision moved for summary judgment or, in the alternative, summary adjudication. Univision argued Soria's FEHA claims failed because she did not have a "disability" as recognized by FEHA since her tumor did not interfere with her ability to perform her job and because Univision did not have knowledge of any "disability." Univision also argued, even if Soria was disabled, Univision had a legitimate, nondiscriminatory reason for terminating her employment and Univision did not fail to accommodate Soria or fail to engage in the interactive process. As to Soria's CFRA claims, Univision argued Soria never requested CFRA leave and such leave was never denied. Finally, Univision argued Soria's common law wrongful termination claim failed because it was premised on the same conduct as the FEHA and CFRA claims.

In support of its argument it had a legitimate, nondiscriminatory reason for terminating Soria's employment, Univision submitted declarations from Soria's coworkers stating she had a habit of arriving...