Ybay v. Rsui Grp. Inc.
| Decision Date | 02 August 2017 |
| Docket Number | B265265 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THANE YBAY, Plaintiff and Appellant, v. RSUI GROUP INC., et al., Defendants and Respondents. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
Los Angeles County Super. Ct. No. BC486287
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael B. Harwin, Judge. Affirmed.
Law Offices of Jonathan J. Delshad and Jonathan J. Delshad for Plaintiff and Appellant.
Gordon & Rees, Stephanie P. Alexander and Matthew G. Kleiner for Defendants and Respondents.
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Plaintiff Thane Ybay (plaintiff) appeals from the judgment entered in favor of his former employer, RSUI Group, Inc. and RSUI Indemnity Company (collectively, RSUI). After RSUI terminated plaintiff's employment, he sued RSUI under the Fair Employment and Housing Act (Gov. Code, § 12960 et seq.) (FEHA) alleging disability discrimination, failure to provide a reasonable accommodation, and failure to engage in an interactive process.
Plaintiff appealed from the judgment, the denial of his motion for judgment notwithstanding the verdict, and a post-judgment order regarding his motion to tax costs. We subsequently consolidated the appeals for all purposes. We lack jurisdiction to consider plaintiff's appeal from the judgment because plaintiff's notice of appeal was untimely. We also lack jurisdiction to consider plaintiff's appeal from the challenged post-judgment order because it is not an appealable order within the meaning of Code of Civil Procedure section 904.1.1 With respect to plaintiff's timely appeal from the denial of his motion for JNOV, we conclude substantial evidence supports the jury's verdict. Accordingly, we affirm the judgment.
In 1992, plaintiff started working at RSUI in the excess casualty underwriting department. Initially, plaintiff worked asa technical assistant to underwriter Sheril Tyre. Plaintiff received positive performance reviews and was promoted to the position of underwriting assistant and then to associate underwriter. At some point during 2003 or 2004, plaintiff began taking a prescription drug, Xanax, on an "as needed" basis. Tyre was aware plaintiff had a bottle of the medication but did not know why or how often he took it.
In late 2006 and early 2007, Tyre began to notice plaintiff was having work performance problems. She noticed during this time that plaintiff was spending a great deal of time socializing at work, which contributed to his inability to complete his work. Tyre repeatedly told plaintiff to sit at his desk and do his work. She also noticed that plaintiff had difficulty focusing on his work and often made little progress. Although Tyre asked plaintiff whether he was having any problems, he assured her he was fine.
Plaintiff's poor performance came to a head in April 2007. After Tyre returned to the office following a vacation, she discovered a major loss in her policy renewals due to plaintiff's failure to do his job while she was out of the office. The excess casualty department head, Mary Cronin, later told plaintiff he was socializing too much at work and, as a result, was not getting his work done in a timely manner.
Ultimately, Tyre became so frustrated with plaintiff that she asked Cronin to remove plaintiff from her team. In 2008, plaintiff was reassigned to work with underwriters Tom Lee and Marty Newlin. Newlin and Lee repeatedly complained to Cronin that plaintiff was not getting his work done in a timely fashion. Like Tyre, Newlin observed plaintiff was often absent from his desk. Cronin met with plaintiff regularly and advised him thatNewlin and Lee were not happy with his work. In early 2009, Newlin recommended that Cronin fire plaintiff due to his poor job performance. Instead, however, Cronin opted to demote plaintiff from associate underwriter to underwriting assistant.
Plaintiff was unhappy about the demotion and met with Cronin and Dwayne Augustus, the human resources manager in the office. Augustus later offered plaintiff the opportunity to transfer to a different department where he might be more successful, but plaintiff declined.
In December 2009, due mainly to the fact that Newlin and Lee were still dissatisfied with plaintiff's work, Cronin reassigned plaintiff to work with underwriter Michelle Downie. Cronin told plaintiff that this new assignment was his last chance to improve his performance. Downie was also unhappy with plaintiff's work, and she complained to Cronin about his performance more than 20 times over the next year and a half.
Throughout this period, Cronin and plaintiff's supervisors told him on more than 50 occasions that he needed to listen to directions and prioritize his workload. Cronin offered plaintiff assistance to learn the company's new software system and sent plaintiff to a seminar to help him understand how to prioritize his work and be more productive. At one point, Cronin even reduced his responsibilities, with the hope that plaintiff could complete his remaining work in a timely fashion.
Plaintiff's problems continued and, in August 2011, Cronin placed plaintiff on a performance improvement plan. Plaintiff understood that if he did not improve his work performance during the course of the plan, his employment could be terminated. As part of the plan, plaintiff met frequently(sometimes daily) with Cronin, Augustus and Downie. In an effort to help plaintiff improve his productivity, Cronin and/or Downie would meet with plaintiff at the beginning of the week and give him a list of tasks he was required to complete during the coming week. At the end of each week, they would meet again to assess plaintiff's work. Halfway through the plan, Cronin met with plaintiff to advise him that he was not meeting his goals.
The day after plaintiff was placed on the performance improvement plan, plaintiff met with Kathy Aberson, the senior vice president of administration for RSUI.2 Plaintiff knew Aberson because she hired him in 1992. Aberson observed that plaintiff was upset, and he told her he did not want to lose his job but was unsure how he could help his situation. Aberson suggested plaintiff speak with Tyre, as the two were close friends and plaintiff had worked for Tyre for many years.
The following day, plaintiff met with Aberson again. He told Aberson that he wondered whether medication he was taking might be impacting his work and had decided to see a physician. Aberson supported the plan and provided him with the phone number for the employee assistance program, which could provide him with counseling.
Aberson documented her conversations with plaintiff in a memo which she sent to Sheree Knowles, RSUI's vice president ofhuman resources, in late September 2011.3 Aberson received no further information and had no additional involvement in plaintiff's situation after sending the memo.
Plaintiff eventually saw a psychiatrist, Dr. Alan Schneider. Dr. Schneider's records did not indicate that he recommended or requested a leave of absence from work for plaintiff, and did not indicate that Dr. Schneider diagnosed him as mentally disabled.
Plaintiff later saw a psychologist, Dr. Hanna Abner-Kohan. She first saw plaintiff in mid-October 2011 and diagnosed him with a moderate degree of major depressive disorder. Dr. Abner-Kohan did not tell plaintiff he was mentally disabled prior to his employment termination, and her records reflect she did not diagnose him as mentally disabled prior to his employment termination.
Plaintiff did not tell anyone at RSUI what either doctor told him and did not provide Augustus, or anyone else at RSUI, with a doctor's note or assessment regarding any disability. Plaintiff never told anyone at RSUI that he had been diagnosed with a mental illness, was mentally disabled, was taking medication that impacted his work performance, or that he needed an accommodation. When plaintiff was at the office, he was always well-dressed, social and appeared to be happy.
RSUI terminated plaintiff's employment on November 18, 2011, because he was unable to complete his work in a timely manner and because he failed to perform his tasks as directed by his supervising underwriters. By the time of his termination, plaintiff had worked for four different underwriters, each of whom said they could not work with plaintiff.
RSUI never offered plaintiff a reasonable accommodation or engaged in an interactive process regarding a disability at any time during his employment.
Plaintiff filed the operative first amended complaint on August 11, 2014. Plaintiff generally asserted that during the course of his employment, he was diagnosed with mental disabilities including anxiety, depression, and somatization, for which he was being medicated and treated by a physician. As pertinent here, plaintiff asserted three causes of action relating to his alleged disability: disparate treatment (Gov. Code, § 12940, subd. (a)), failure to provide reasonable accommodation (Gov. Code, § 12940, subd. (m)), and failure to engage in an interactive process (Gov. Code, § 12940, subd. (o)). The case was tried before a jury in February 2015, and the jury found in favor of RSUI. In its special verdict, the jury found RSUI was plaintiff's employer, and plaintiff had a mental disability that limited him in performing the essential...
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