Zamora v. Sec. Indus. Specialists, Inc.

• Decision Date: 30 September 2021
• Docket Number: H044008
• Parties: David ZAMORA, Plaintiff and Appellant, v. SECURITY INDUSTRY SPECIALISTS, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

71 Cal.App.5th 1

285 Cal.Rptr.3d 809

David ZAMORA, Plaintiff and Appellant,

v.SECURITY INDUSTRY SPECIALISTS, INC., Defendant and Respondent.

H044008

Court of Appeal, Sixth District, California.

Filed September 30, 2021

Daniel Louis Feder, The Law Office of Daniel Feder, 235 Montgomery Street, Suite 1019, San Francisco, CA 94104, for Plaintiff and Appellant.

Todd Kenneth Boyer, Baker & McKenzie, LLP, 660 Hansen Way, Palo Alto, CA 94304, John Neil Gieleghem, Gieleghem Law Office, 1875 Century Park E, Ste. 700, Los Angeles, CA 90067, Billie Desiree Wenter, Baker & McKenzie LLP, 2 Embarcadero Ctr., Ste. 1100, San Francisco, CA 94111-3802, for Defendant and Respondent.

Greenwood, P. J. David Zamora sued his former employer, Security Industry Specialists, Inc. (SIS), under the California Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. )¹ for employment discrimination based on physical disability, failure to make a reasonable accommodation, failure to engage in the interactive process, retaliation, wrongful termination, and other claims after SIS laid him off while he was recovering from an industrial injury. The trial court granted summary adjudication of all but two causes of action. The parties later stipulated to dismiss the remaining claims, and the court entered judgment for SIS.

In this appeal, Zamora challenges the trial court's summary adjudication of his disability discrimination, retaliation, wrongful termination in violation of FEHA, and wrongful termination in violation of public policy claims. Our de novo review of the record demonstrates that summary adjudication was improperly granted with respect to Zamora's disability discrimination and wrongful termination claims, but that summary adjudication in favor of SIS was appropriate with respect to Zamora's retaliation claim. We will therefore reverse the judgment and remand the matter for further proceedings in the trial court.

I. FACTS

At all relevant times, SIS provided security staffing services to major corporations, including Apple Computer, Inc. (Apple) and other technology companies. SIS hired Zamora as a "standard deployment field supervisor" assigned to Apple's main campus in Cupertino, California. He started on May 26, 2010. His duties included supervising mobile officers and security specialists on his shift, responding to security calls and client requests, conducting shift briefing meetings, evaluating and administering discipline to subordinates, driving, and providing "security for top-level employees." Zamora testified that the physical requirements of the job included walking four to six hours per day, standing seven hours a day, climbing (including onto the roof), stooping, bending, kneeling, and lifting up to 50 pounds.

SIS employed 19 supervisors at Zamora's worksite. The supervisors reported to watch commanders, and according to Zamora, there were three watch commanders, one for each shift. The watch commanders in turn reported to the site manager, Marty Vaughn.

On June 2, 2010—eight days after he was hired—while running to answer a medical call with four coworkers, Zamora tripped over a curb, twisted his left knee, heard a loud popping noise, and "immediately experienced severe pain in his left knee." Zamora claims his supervisor, Watch Commander Jim Mazon, witnessed the incident. Zamora told Mazon he was having pain in his left knee, and Mazon suggested he ice the knee and elevate it when he got home. Mazon did not report the injury to SIS as required by company policy or instruct Zamora to report the injury.

Zamora iced and elevated his left knee as Mazon suggested and used a knee brace. Despite having "very intense knee pain," Zamora continued to work every day from June 2, 2010, until November 17, 2010. Zamora testified that during this time, he mentioned his knee pain numerous times to both his coworkers and his superiors.

After Zamora completed a probationary period, he became eligible for health insurance benefits from SIS. Zamora waited until he had health insurance to seek medical treatment for his knee injury

. On October 14, 2010, he saw Dr. Douglas Blatz, an orthopedic surgeon. He told Dr. Blatz the injury was work-related and, according to Zamora, that started the workers' compensation claim process. Dr. Blatz diagnosed a torn meniscus and medial shelf plica and told Zamora he needed arthroscopic surgery on his left knee.

After seeing Dr. Blatz, Zamora formally reported the injury to SIS. On October 15, 2010, he gave site manager Vaughn a written report from Dr. Blatz. Vaughn instructed Zamora to fill out an SIS incident report and a Workers' Compensation Claim Form (Dept. of Industrial Relations form DWC-1) and asked watch commander Robert Freeman to help Zamora with the forms. SIS terminated Mazon a few days later for multiple reasons, including his failure to report Zamora's injury.

Zamora claims that on more than one occasion between mid-October and mid-November 2010, he asked Mazon or Vaughn for work that involved less standing and physical activity, consistent with his work restrictions. Zamora was having severe left knee pain and thought that performing such work would decrease his pain and allow him to continue working. He alleges that both Mazon and Vaughn told him there was no other work for him to do and that SIS's failure to provide modified work in 2010 aggravated his knee injury

.

On October 29, 2010, Zamora was seen by Dr. Mojan Manzar-Nejad at Alliance Occupational Medicine (Alliance). The record suggests he was referred there by SIS. Zamora gave a history of the knee injury

in June 2010. He told Dr. Manzar-Nejad that although he was able to perform his regular job, he could no longer control his pain with ibuprofen and asked for Vicodin. He also told the doctor that he injured the same knee in 2007, with injuries to his meniscus and anterior cruciate ligament resulting in arthroscopic surgery, and that he had been "fine" ever since. Dr. Manzar-Nejad noted positive findings in the left knee on examination and that Dr. Blatz had obtained an MRI that was positive for "full-thickness cartilage defect" and revealed the prior injury and surgery. Dr. Manzar-Nejad diagnosed internal derangement of the left knee with abnormal findings on the MRI. He opined that an orthopedic consultation was necessary to determine whether Zamora's complaints were due to a new injury or his old injury and whether they were industrial. Dr. Manzar-Nejad prescribed a soft knee splint, cold packs, and pain medication; released Zamora to return to full duty; referred him to clinic orthopedist Dr. Samir Sharma; and told Zamora to return in three weeks or sooner if his condition worsened.

On November 17, 2010, Zamora stopped working because he could not tolerate the pain any longer. That day, he saw Dr. Anthony Dubose at Alliance, complained of pain, and reported that overall, his condition was worse. Dr. Dubose took him off work; arranged for him to be seen by Dr. Sharma the following day; and reported that Zamora could return to work the following day on modified duties: "Mostly Seated Work," "Elevate Affected Extremity," "Sit/Stand As Needed," and no lifting, pulling, or pushing over five pounds. Dr. Dubose estimated that Zamora would need modified work for two months.

The record does not contain a medical report of Zamora's consultation with Dr. Sharma on November 18, 2010. Thus, we do not know whether the orthopedist agreed with or changed Dr. Dubose's work restrictions. According to Zamora, Dr. Sharma gave him a cortisone injection and recommended six weeks of physical therapy. Zamora thought his condition was more serious, requested a second opinion, and was referred to an orthopedic surgeon, Dr. Ashay Kale.

Zamora saw Dr. Kale on December 2, 2010. Dr. Kale noted that Zamora had significant pain and swelling in the knee and confirmed that he needed surgery. Zamora told Dr. Kale he could not perform his regular work duties, so the doctor recommended that he get authorization for surgery—presumably from the workers' compensation insurer—and that he remain off work until the surgery was done.

Given the delay in formally reporting the claim, and the report of a prior injury to the same knee, SIS's workers' compensation carrier, California Insurance Company—through its claims administrator Applied Underwriters (hereafter jointly Insurer)—questioned whether the injury occurred at work and initiated an investigation. As part of its investigation, Insurer arranged for Zamora to be seen by a "qualified medical evaluator,"² Dr. Edwin Kingsley, who presumably opined on the question of industrial causation. (Dr. Kingsley's report is not in the record.)

Insurer withheld payment of temporary disability benefits while it investigated the claim. From mid-November 2010 until mid-March 2011—while Insurer investigated the claim—SIS continued to pay Zamora his full salary. According to SIS, this was not its customary practice, but it made an exception in Zamora's case. Insurer accepted the claim in February or March 2011. On March 17, 2011, Insurer issued its first temporary disability payment to Zamora covering the period March 1 through March 17, 2011.

After that, Insurer made biweekly temporary disability payments to Zamora through November 8, 2012.

On March 25, 2011, SIS sent Zamora a check for $2,166.67 covering his salary for the period March 1 through March 15, 2011, the same period for which Insurer had already paid temporary disability. SIS initially asserted that the duplicate payment (hereafter overpayment) was due to a misrepresentation by Zamora to Insurer regarding the last day he was paid by SIS. But after investigating the matter, SIS determined that Zamora did not misrepresent the date he was last paid by SIS and that the overpayment was due to an error by SIS's human resources manager, Michelle Ortiz, who failed to notify payroll to stop the salary continuance payments.

Thomas Seltz was SIS's co-president, chief financial...