Spitzer v. The Good Guys, Inc.

• Citation: 80 Cal.App.4th 1376,96 Cal.Rptr.2d 236
• Decision Date: 01 May 2000
• Docket Number: No. A086999.,A086999.
• Court: California Court of Appeals
• Parties: Susan SPITZER, Plaintiff and Appellant, v. THE GOOD GUYS, INC. et al., Defendant and Respondent.

96 Cal.Rptr.2d 236

80 Cal.App.4th 1376

Susan SPITZER, Plaintiff and Appellant, v. THE GOOD GUYS, INC. et al., Defendant and Respondent.

No. A086999.

Court of Appeal, First District, Division 2.

May 1, 2000.

Certified for Partial Publication.^*

Rehearing Denied May 25, 2000.

Law Offices of Charles J. Wisch and Charles J. Wisch, San Francisco, for Appellant.

Kristin L. Cihak, Gary R. Basham, Jackson, Lewis, Schnitzler & Krupman, Sacramento, for Defendant and Respondent.

KLINE, P.J.

Susan Spitzer appeals from the grant of summary judgment for respondent The Good Guys, Inc., her employer, in her suit alleging disability discrimination and retaliation under the Fair Employment and Housing Act (FEHA). (Gov.Code, § 12940 et seq.) The trial court entered judgment for respondent on the basis of findings that it "reasonably accommodated" appellant's disability and that no triable issue of material fact existed with respect to that issue or the elements of malice, oppression or fraud, which were essential to appellant's claim for punitive damages. Additionally, with respect to appellant's claim of retaliation, the court determined that appellant failed to exhaust administrative remedies and that this claim was therefore time-barred.

We find conflicts in the evidence as to whether respondent provided a reasonable accommodation and shall therefore reverse the judgment insofar as it relates to the cause of action alleging discrimination on that basis. However, we agree with the trial court that appellant's claim of retaliation is time-barred and that, because there is no evidence respondent acted with malice, oppression or fraud, appellant's claim for punitive damages must be disallowed.

FACTUAL AND PROCEDURAL BACKGROUND ¹

Appellant began working for respondent in January 1991. Starting as a sales manager in training, she was rapidly promoted to more responsible positions. In October 1993, appellant was made store manager for respondent's store in Sunnyvale. A year later, she became store manager at its outlet at the Stonestown mall in San Francisco, one of the company's largest stores.

In 1992 appellant was diagnosed with discogenic spondylosis, a degenerative disc disease. Degeneration of the disc between her second and third lumbar vertebrae caused appellant to suffer serious chronic back pain. For several years Daniel E. Roth, M.D., the physician who treated appellant for this affliction, prescribed physical therapy and medications to alleviate her pain.

Respondent's "Floor Management Guidelines," which describe the responsibilities of store managers, require such employees, among other things, to "Be a traffic cop, make sure the right sales counselor is with the right customer," "Keep moving, create urgency, and set the pace! ... Greet customers, welcome to the good guys! and begin rapport process ... Manage sales process for the entire store[,] know what's going on throughout the whole store, especially outside of your department .... Don't leave the floor! Ever! ... [and] Don't become stationary in your own department." Consistent with these directives, appellant's direct supervisor, Steve Quanstrom, testified that "the job of being a store manager is physically demanding" and requires such employees "to be on your feet a lot of the day." A "manager time study" conducted by respondent in April 1996 showed that the manager of a large store such as the one appellant managed would be required to work an average of 10.1 hours daily.

Appellant stated that, commencing in 1995, she repeatedly told management personnel she "needed accommodation due to my back disability." She had three formal discussions with Gera Vaz, respondent's vice president of human relations, regarding her interest in reassignment. At the first meeting, on June 30, 1995, appellant told Vaz she needed a job "at corporate" because, among other things, "my back was deteriorating, and it would continue to get worse" if she remained a store manager. During one of her conversations with Vaz appellant told her "that I would wind up having to have back surgery if I didn't get off my feet on a more permanent basis." Vaz responded that appellant "should just hang in there and keep trying and that something might come up." In March 1996 appellant met again with Ms. Vaz and reiterated her interest in reassignment to a sedentary position due to her continuing back pain. Several months later appellant had a phone conversation with Vaz and once more expressed her interest in reassignment. Subsequently, appellant met with or discussed her desire for reassignment with her regional manager, Bill Graham, and numerous others in the company. For example, she told Lynn Hogarth, associate relations manager for the Stonestown store, that she was in constant and worsening pain due to the need to stand for extended periods and that it was impractical to take the periodic breaks she needed. She also told Hogarth she "needed to get a position in corporate where I could be off my feet." Appellant also communicated her constant pain and need for accommodation to Pat Zabell, "head of employee relations for the Human Resources Department."

Appellant thereafter attempted to obtain several specific positions that would have allowed her to get off her feet. In February 1996 she sought a position as corporate employment specialist, but was subsequently told the job had been "put on hold." Later that year she applied for an "MIS Systems Analyst" job and a "Store Operations/Special Projects" job, but was rejected for both positions. As directed by Gera Vaz, appellant then spoke with each of the managers of departments to which she was interested in transferring to advise them of her continuing interest. All these efforts were unavailing. According to appellant, "[f]rom May 1996 until November 1998 [shortly after this litigation commenced], I was not informed of a single such position that actually existed and was open," although she said she subsequently learned that such positions, for which she was qualified, did in fact exist. Appellant stated that at the end of 1998, "I stopped checking the company telephone job listings because virtually all of the jobs listed were either clerical or low level administrative jobs which were not appropriate for my level of experience as a management employee. Further, as the various department managers had assured me that they would inform me of any appropriate jobs, I believed that it was not necessary to keep checking the telephone job listings."

During the last years of her employment with respondent, appellant was required to briefly leave work on two occasions due to severe back pain. In April 1996, Dr. Roth directed appellant to stop working for a while as he believed the exacerbated pain she was then experiencing was caused by the prolonged standing, walking and bending required by her job. He permitted her to return to work the following June, as she desired, but directed her to avoid standing or walking for more than two hours at a time and instructed her to take a 15- to 20-minute break before resuming work.

On April 26, 1996, appellant sent a memorandum to Gera Vaz requesting a medical leave of absence, attaching a note from Dr. Roth explaining the medical need for the leave, and stating her belief that "with accommodations, I believe that I will be able to perform my job upon my return from medical leave." The memorandum explained that appellant had a problem with mobility and that she understood that her mobility problem "may cause some concerns" with her performance as a store manager. For this reason she expressed interest in "the possibility of a transfer to a position in the corporate offices in Brisbane," mentioning specific positions in the areas of "training, recruiting and operations" she had earlier discussed with Ms. Vaz and others in the company. When appellant returned to work and her condition worsened, she increased her efforts to obtain sedentary work from respondent, as Dr. Roth advised.

When appellant returned to work she was told by Steve Quanstrom, her immediate supervisor, to do what was necessary to comply with her physician's directive to vary her activities. Quanstrom authorized her to sit in a chair on the floor of the store, but appellant concluded this was incompatible with her job responsibilities, which required "moving around and getting involved in what was going on."

Several months later, Quanstrom reduced appellant's job performance classification from "highly effective" to "effective," and reduced her "customer service" evaluation two levels, from "highly effective" to "needs improvement." On the evaluation form, Quanstrom commented that appellant "had personal issues that affected her performance at work that ultimately led to her taking six weeks off." He also questioned "whether or not this is the right job for [appellant], given her personal situation, and if this is a facility she can handle." Quanstrom's lower evaluations resulted in the reduction of salary increases appellant would otherwise have received.

In May 1997 Dr. Roth, who was then consulting an orthopedist about appellant's increasing pain, recommended she take another medical leave, which he expected would be for a month. Shortly after this leave began, appellant discussed with John Duken the possibility of temporarily working with him at the "Hayward Call Center" he ran for respondent. Duken promised to let her know if such a position ever became available, but she never heard from him. In any case, Dr. Roth later discouraged appellant from seeking a job in Hayward, as he believed the long commute would adversely affect her back problem.

In August 1997 appellant's attorney wrote respondent, described her unsuccessful efforts to obtain an alternative position, and requested a financial settlement. Three months later respondent contacted appellant about the possibility of a corporate position as a store manager...