Withem v. Ron Rogers & Associates, B204034 (Cal. App. 12/18/2008)
| Decision Date | 18 December 2008 |
| Docket Number | B204034. |
| Court | California Court of Appeals Court of Appeals |
| Parties | KAREN WITHEM, Plaintiff and Appellant, v. RON ROGERS & ASSOCIATES, Defendant and Respondent. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC322619, Richard L. Fruin, Judge. Affirmed in part, Reversed in part and Remanded.
Law Office of Jerry L. Webb and Jerry L. Webb for Plaintiff and Appellant.
Walsh & Associates, Adam N. Bouayad and Dennis J. Walsh for Defendant and Respondent.
In June 2000, defendant Ron Rogers & Associates, a public relations firm, hired plaintiff Karen Withem as an account supervisor. In July 2001, plaintiff began to experience a series of health problems — mononucleosis, followed by fibromyalgia and chronic fatigue/immune deficiency syndrome. The parties dispute the extent to which plaintiff sought accommodation for her disability and whether any accommodation was available. Ultimately, in June 2002, plaintiff took a 12-week medical leave under the California Family Rights Act ("CFRA," Gov. Code, § 12945.2).1 When her leave expired, defendant laid her off — according to defendant, as part of a workforce reduction related to a downturn in business, according to plaintiff, as part of a pattern of disability discrimination.
Plaintiff sued defendant, alleging three violations of the California Fair Employment and Housing Act ("FEHA," § 12940, et seq.): disability discrimination, failure to reasonably accommodate her disability, and failure to engage in an interactive process to seek a reasonable accommodation (§ 12940, subds. (a), (m), and (n) respectively). She also alleged claims for violation of the CFRA, and for intentional and negligent infliction of emotional distress. The trial court granted defendant's motion for summary judgment, and now plaintiff appeals.
We affirm the trial court's ruling as to plaintiff's CFRA claim in its entirety. As to her remaining claims, we affirm to the extent they depend on a violation of defendant's duties under section 12940, subdivisions (a), (m), and (n) after plaintiff began her medical leave in June 2002. We reverse to the extent those claims depend on a violation of those duties before plaintiff began her June 2002 medical leave.
In her complaint, plaintiff alleged that she was hired by defendant in June 2000 as an account supervisor, and that in July 2001, she began to experience fatigue. Diagnosed with mononucleosis, she requested to work at home one day a week, but defendant refused.
Plaintiff's health deteriorated because of the failure to accommodate. In February 2002, she met with defendant's president to discuss a reasonable accommodation for her continued fatigue. Plaintiff suggested that she could become an independent contractor with set hours, or that she be assigned to a position with less pressure. Defendant denied these requests without discussion.
Plaintiff's health continued to deteriorate because of defendant's failure to accommodate her disability. In May 2002, plaintiff was diagnosed with fibromyalgia and chronic fatigue/immune deficiency syndrome, and later with lupus. Her physician prescribed a period off work and complete rest. Defendant granted plaintiff's request for medical leave in June 2002. Defendant's president, however, stated that defendant would do only what the law required and would not hold plaintiff's job open. Before taking medical leave, plaintiff's supervisor had told her that her performance was above average and that the supervisor recommended a pay raise. Subsequently, defendant denied the pay raise.
In July and August 2002, plaintiff's supervisor, citing an abundance of work, called plaintiff several times at plaintiff's home asking to know when plaintiff could return to work. Plaintiff agreed to come back part-time or working from home one day a week. On August 28, 2002, defendant terminated plaintiff. The stated reason was insufficient work.
On March 5, 2003, plaintiff filed a complaint with the California Department of Fair Employment and Housing ("DFEH") based on disability discrimination and violation of the CFRA. On March 5, 2004, DFEH issued a right to sue letter.
Plaintiff alleged six causes of action: (1) disability discrimination (§ 12940, subd. (a)), (2) failure to make a reasonable accommodation (§ 12940, subd. (m)), (3) failure to engage in an interactive process to find a reasonable accommodation (§ 12940, subd. (n)), (4) violation of the CFRA (§ 12945.2, subd. (a)), (5) intentional infliction of emotional distress, and (6) negligent infliction of emotional distress.
Plaintiff's disability discrimination claim, and her claims for failure to accommodate and failure to engage in an interactive process, relied on defendant's alleged conduct during two separable periods of time. The first related to defendant's alleged failure to grant her requests for accommodation in July 2001 and February 2002, leading to her having to take medical leave under the CFRA in June 2002 for fibromyalgia and chronic fatigue/immune deficiency syndrome. The second related to defendant's alleged denial of her requests for accommodation in July and August 2002 while she was on medical leave, and defendant's terminating her. Plaintiff's CFRA claim related to defendant's terminating her following her medical leave rather than allowing her to return to work. The emotional distress claims depended on defendant's alleged violations of the FEHA and CFRA.
Defendant moved for summary judgment, or in the alternative summary adjudication.3 As to plaintiff's disability discrimination claim, defendant contended that plaintiff had failed to exhaust her administrative remedy under the FEHA, that plaintiff was not a qualified individual when she was discharged, and that defendant had a legitimate, nondiscriminatory reason for her termination. To defeat plaintiff's claims for failure to accommodate and failure to engage in an interactive process, defendant repeated its arguments that plaintiff failed to exhaust her administrative remedy and was not a qualified individual when she was terminated. Defendant also argued that plaintiff's requested accommodation of working from home would cause an undue hardship.
Regarding plaintiff's CFRA claim, defendant contended that plaintiff received the medical leave to which she was entitled, that she was not a qualified individual when she was terminated, and that defendant had a legitimate, nondiscriminatory reason for terminating her. Finally, defendant contended that because plaintiff's FEHA and CFRA claims failed, her emotional distress claims could not stand.
Defendant's evidence in support of these arguments, and plaintiff's evidence in opposition, will be discussed in our resolution of the issues on appeal, below.
The trial court granted the motion for summary judgment. On the first cause of action for disability discrimination, the court concluded: (1) plaintiff was not a qualified individual because she was medically unable to return to work following her CFRA medical leave; (2) defendant had a legitimate, non-discriminatory reason for terminating plaintiff — a work force reduction, and (3) plaintiff had failed to include a claim for denial of reasonable accommodation or failure to engage in an interactive process in her DFEH complaint, and that the claims (alleged to have arisen in July 2001 and February 2002) were barred by the statute of limitations. Similarly, on plaintiff's accommodation claims, the court found a failure to exhaust administrative remedies. On plaintiff's CFRA claim, the court determined that plaintiff had not been cleared to return to work and that defendant had a legitimate nondiscriminatory reason for terminating her. Finally, the court summarily adjudicated the emotional distress claims because they could not stand in the absence of the employment claims.
We review the grant of summary judgment under settled principles. A defendant moving for summary judgment bears an initial burden of production to make a prima facie showing that one or more elements of the cause of action cannot be established, or that there is a complete defense. The defendant may sustain this burden by showing that the plaintiff does not have, and cannot reasonably obtain, evidence to prove one or more elements of the cause of action by a preponderance of the evidence. If defendant succeeds, the burden of production shifts to the plaintiff to make a prima facie showing that a triable issue of material fact exists as to the cause of action. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) In determining whether a triable issue of material fact exists, we strictly construe the moving party's papers. However, the opposing party's evidence must be liberally construed to determine the existence of a triable issue of fact. "All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment." (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see Aguilar, supra, 25 Cal.4th at p. 843.)
We begin by analyzing the trial court's ruling as to plaintiff's claims for failure to reasonably accommodate and failure to engage in an interactive process.
Plaintiff's second cause of action alleged a failure to reasonably accommodate her disability (§ 12940, subd. (m)); her third cause of action alleged a failure to engage in an interactive process to find a reasonable accommodation. For ease of reference, we refer to these claims collectively as plaintiff's accommodation claims.
The accommodation claims rely on statutory bases of liability distinct from plaintiff's disability discrimination claim under section 12940, subdivision (a), which we discuss, infr...
To continue reading
Request your trial