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This case was last updated from Los Angeles County Superior Courts on 07/05/2019 at 08:58:47 (UTC).

JASIMINE ESTES VS CVS PHARMACY INC ET AL

Case Summary

On 10/23/2015 JASIMINE ESTES filed a Labor - Wrongful Termination lawsuit against CVS PHARMACY INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ROBERT L. HESS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8644

  • Filing Date:

    10/23/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ROBERT L. HESS

 

Party Details

Plaintiff

ESTES JASIMINE

Defendants

ASHKAR GHADA

CVS PHARMACY INC.

DOES 1 THROUGH 50

STERN BRANDI

TRAN LIZA

TRAN ELIZABETH

CVS RX SERVICES INC.

Attorney/Law Firm Details

Plaintiff Attorneys

BOHM LAW GROUP

BOHM LAWRANCE ALEXANDER

Defendant Attorneys

LITTLER MENDELSON PC

BROWN JEFFREY K

PATTON AMY R ESQ.

 

Court Documents

SUBSTITUTION OF ATTORNEY

1/9/2018: SUBSTITUTION OF ATTORNEY

SUBSTITUTION OF ATTORNEY

1/11/2018: SUBSTITUTION OF ATTORNEY

JOINT STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE ORDER

2/9/2018: JOINT STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE ORDER

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

6/21/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

CASE MANAGEMENT STATEMENT

8/6/2018: CASE MANAGEMENT STATEMENT

Stipulation - No Order

10/23/2018: Stipulation - No Order

Motion to Continue Trial Date

1/3/2019: Motion to Continue Trial Date

PROOF OF SERVICE SUMMONS

1/22/2016: PROOF OF SERVICE SUMMONS

VERIFICATION OF ELIZABETH TRAN RE: DEFENDANTS' ANSWER TO PLAINTIFF'S VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES.

2/19/2016: VERIFICATION OF ELIZABETH TRAN RE: DEFENDANTS' ANSWER TO PLAINTIFF'S VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES.

PROOF OF SERVICE

2/19/2016: PROOF OF SERVICE

VERIFICATION OF BRANDI STERN RE: DEFENDANTS? ANSWER TO PLAINTIFF?S VERIFIED FIRST AIMENDED COMPLAINT FOR DAMAGES

2/19/2016: VERIFICATION OF BRANDI STERN RE: DEFENDANTS? ANSWER TO PLAINTIFF?S VERIFIED FIRST AIMENDED COMPLAINT FOR DAMAGES

VERIFICATION OF CVS PHARMACY, INC. RE: DEFENDANTS? ANSWER TO PLAINTIFF?S VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES

2/19/2016: VERIFICATION OF CVS PHARMACY, INC. RE: DEFENDANTS? ANSWER TO PLAINTIFF?S VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES

Minute Order

2/29/2016: Minute Order

DEFENDANT CVS RX SERVICES, INC.'S ANSWER TO PLAINTIFF'S VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES

12/15/2016: DEFENDANT CVS RX SERVICES, INC.'S ANSWER TO PLAINTIFF'S VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES

Minute Order

1/4/2017: Minute Order

CASE MANAGEMENT STATEMENT

4/18/2017: CASE MANAGEMENT STATEMENT

CASE MANAGEMENT STATEMENT

9/1/2017: CASE MANAGEMENT STATEMENT

CASE MANAGEMENT STATEMENT

9/8/2017: CASE MANAGEMENT STATEMENT

45 More Documents Available

 

Docket Entries

  • 06/18/2019
  • at 08:30 AM in Department 24; Jury Trial - Held - Continued

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  • 06/06/2019
  • at 09:30 AM in Department 24; Final Status Conference - Held - Continued

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  • 05/17/2019
  • at 08:30 AM in Department 24; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 04/30/2019
  • Notice of Intent to Appear by Telephone; Filed by Ghada Ashkar (Defendant); Liza Tran (Defendant); Brandi Stern (Defendant) et al.

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  • 04/30/2019
  • Notice of Intent to Appear by Telephone; Filed by Ghada Ashkar (Defendant); Liza Tran (Defendant); Brandi Stern (Defendant) et al.

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  • 03/20/2019
  • at 08:30 AM in Department 24; Status Conference - Held - Continued

    Read MoreRead Less
  • 03/06/2019
  • at 08:33 AM in Department 24; Non-Appearance Case Review (Plaintiff's Report re Settlement) - Held - Continued

    Read MoreRead Less
  • 01/28/2019
  • at 08:30 AM in Department 24; Hearing on Motion to Continue Trial - Held - Motion Granted

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  • 01/28/2019
  • Notice of Ruling; Filed by CVS Pharmacy, Inc. (Defendant); Ghada Ashkar (Defendant); Liza Tran (Defendant) et al.

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  • 01/28/2019
  • Minute Order ( (Hearing on Motion to Continue Trial)); Filed by Clerk

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93 More Docket Entries
  • 02/16/2016
  • Receipt-Depository; Filed by Plaintiff/Petitioner

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  • 01/22/2016
  • PROOF OF SERVICE SUMMONS

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  • 01/22/2016
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 12/22/2015
  • SUMMONS

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  • 12/22/2015
  • PLAINTIFF'S VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES: 1) DISCRIMINATION, ETC

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  • 12/15/2015
  • First Amended Complaint; Filed by Plaintiff/Petitioner

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  • 10/27/2015
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 10/27/2015
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/23/2015
  • Complaint; Filed by Jasimine Estes (Plaintiff)

    Read MoreRead Less
  • 10/23/2015
  • PLAINTIFF S VERIFIED COMPLAINT FOR DAMAGES: 1) DISCRIMINATION; ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC598644    Hearing Date: February 22, 2021    Dept: 24

Defendants CVS Rx Services Inc.’s motion for summary judgment is DENIED. Defendant’s alternative motion for summary adjudication is GRANTED as to issues no. 23 and DENIED as to the remainder.

On October 23, 2015, Plaintiff Jasimine Ghada Ashkar, Elizabeth Tran, and Brandi Stern. Her operative First Amended Complaint (“FAC”) states eleven causes of action for: 1) discrimination; 2) harassment; 3) retaliation; 4) failure to prevent discrimination, harassment, retaliation; 5) retaliation in violation of California Family Rights Act; 6) refusal to conduct good faith interactive process; 7) failure to provide reasonable accommodation; 8) violations of Lab. Code §§ 1102.5 and 98.6; 9) violations of Lab. Code § 6310; 10) violation of Bus. & Prof. Code § 17200; and 11) adverse action in violation of public policy. 

On September 25, 2019, CVS moved for summary judgment/adjudication. CVS presents 24 issues related to each cause of action. On October 23, 2020, Plaintiff filed an opposition. On December 11, 2020, CVS submitted a reply.

Summary Judgment Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP §437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP §437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP §437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)

In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)

Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)

Evidentiary Rulings

CVS’s objections nos. 2, 3, 4, 6, 7, and 11 [as to “CVS Thousand Oaks had three overlapping pharmacists on two days as well” only] are SUSTAINED as to lack of foundation/personal knowledge. The remainder are overruled.

Issue No. 1: Disability Discrimination and Adverse Employment Action

CVS attacks the first cause of action on the grounds that Plaintiff was not subjected to an adverse employment action.

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that “(1) he [or she] was a member of a protected class; (2) that he [or she] was qualified for the position he [or she] sought or was performing competently in the position he or she held; (3) that he [or she] suffered an adverse Guz

To be actionable the employment action must have had “a substantial and material adverse adverse employment acts’ encompasses not only ‘ “ultimate” employment actions, such as hiring, firing, demotion or failure to promote,’¿but also ‘the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for career advancement.’ [Citation.]” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 879.) An adverse employment action itself may consist of a series of subtle, yet damaging injuries, rather than one swift blow. (Horsford v. Board of Trustees of Calif. State Univ., (2005) 132 Cal.App.4th 359, 373.) “[T]he phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection” provided by the law.” (Yanowitz L’Oreal (2005) 36 Cal.4th 1028, 1051.) On the other hand, “[m]inor adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable...”  (Id., at 1054.)

CVS contends that Plaintiff was not subjected to an adverse employment action. CVS submits that Plaintiff was not terminated, demoted, disciplined, docked pay, stripped of title or responsibility, or otherwise subjected to a material change in employment. CVS submits evidence that in May 2008, Plaintiff began her employment relationship with CVS and was eventually given a job title of Staff Pharmacist. (UMF 1-2.) On January 26, 2014, Plaintiff completed her shift, clocked out, and did not work again until October 2014 due to disability leave. (UMF 3.) In January 26, 2014, Plaintiff was a staff pharmacist with an hourly rate of $64.30. (UMF 4.) Plaintiff performed some work in October 2014. (UMF 5-7.) From October 2014 through July 2016, Plaintiff’s job title was Staff Pharmacist; her hourly rate was $65.75. (UMF 8.) On June 30, 2015, CVS Human Resources Business Partner Lee Stanley attempted to schedule an in-person interactive process meeting. (UMF 9.) Plaintiff sent an email to Stanley which requested him to discontinue direct communication with her, and instead forward further correspondence directly to her attorneys. (Id.) CVS tried to clarify that she was not fired and remained employed on their system. (UMF 10-16.) CVS thus argues that the terms and conditions of Plaintiff’s employment remained the same throughout the Relevant Period. (Seymour Decl., Ex. A [Employment Summary for Estes].) Plaintiff was terminated in 2016 when she failed to return from leave, which CVS contends is outside of the scope of this suit. (See UMF 13-16.)

This certainly contradicts the pled facts regarding her suspension and termination. (See FAC ¶¶ 54, 136-145.) However, the FAC alleges various adverse employment actions beyond those identified by CVS. For instance, the FAC alleges that Plaintiff was assigned to a new “challenged” store that was underperforming (FAC ¶ 108), her schedule was reduced (¶¶ 103-104), and her manager changed her assignment than what had been agreed to in the interactive process discussions (¶ 110). Thus, the Court would not find that CVS meets their burden to address all the material allegations of this issue. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 173 [failure of defendant to address material allegation in complaint was a “fatal flaw”]; see also United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [“the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.”].)

Even if CVS met their burden, the Court would find a dispute of material fact as to whether CVS subjected Plaintiff to an adverse employment action. Plaintiff asserts that CVS undertook a variety of adverse employment actions. Specifically: 1) retroactively changing Estes’ Performance Rating to “Needs Improvement”; 2) purposefully delaying Estes’s headset; 3) making false statements about Plaintiff’s performance; 4) placing Estes on suspension; 5) providing Estes with a stool instead of an ergonomic chair; 6) providing Estes a chair with a urine like stain; 7) failing to provide Estes with a Reasonable Accommodation Questionnaire in connection with her needed accommodation in December 2013 and January 2014; 8) attempting to require Estes to perform janitorial duties outside the scope of her job description; 9) refusing to allow Estes to return to her staff pharmacist position with accommodations based on the false premise that she could only work overlapping pharmacist shifts; 10) repeated offering Estes an embarrassing cashier position which would violate her work restrictions; 11) forcing plaintiff on unwanted leaves of absence; 12) scheduling Estes four days per month instead of four days per week; 13) compelling Estes to work at a pharmacy without proper accommodations; and 14) bullying including screaming, undesirable assignments, ostracization from work meetings and email communication. (See UMF 3, 6; AMF 12, 16, 27, 28, 40, 49, 52, 60, 62, 67, 102, 118, and 122.) She also claims that she was terminated in June 2015. (AMF 139, 143.)

As to termination, Plaintiff directs the Court to a letter sent by CVS dated May 6, 2015. The letter stated that Plaintiff’s approved leave of absence expired on March 27, 2015, that Plaintiff needed to contact the Employee Relations Department to discuss Plaintiff’s employment status/leave, and that “if [Plaintiff is] unable to return to work, with or without reasonable accommodation, and additional leave is not approved, [her] employment will be terminated effective June 1, 2015.” (Estes Decl., ¶162 Ex. 94; AMF 139.) Plaintiff contacted CVS and discussed her leave issues. (Estes Decl., Exs. 96-99.) On June 1, 2015, Marquis told Plaintiff that she could no longer extend Plaintiff’s leave of absence as CVS placed Plaintiff on leave for over a year. (Id., Ex. 99.) It is undisputed that Plaintiff was unable to return to work or that she was approved for additional leave by June 1, 2015. Plaintiff contends that she was therefore terminated when she did not receive an extension from her leave of absence by June 1, 2015 and could not return to work. This evidence is sufficient to support Plaintiff’s assertion that she was terminated on June 1, 2015, per CVS’s May 6, 2015. While CVS points to the weight of the evidence suggests she was terminated a year later in July 2016, this highlights the conflict in the evidence. Thus, a dispute of material fact exists as to the existence of an adverse employment action.

As to the scheduling, Plaintiff submits evidence that on October 9, 2014, Estes sent Ashkar and Stern updated medical restrictions, which allowed her to work four days per week with the same physical restrictions as Plaintiff’s previous doctor’s notes. (AMF 112.) Ashkar sent an email to Estes that same day indicating schedules are only made a few weeks in advance. (Id. at 125, 203.) On October 14, 2014, Estes received her upcoming schedule and was only scheduled one day per week, far less than the four days per week permitted by her medical restrictions. (Id., at 127.) She contends that this reduced scheduling was a penalty for her disability. (Id., at 128.) CVS contends that it was not required to schedule Plaintiff at all, because she could not perform her essential job functions. However, whether Plaintiff was qualified to perform her essential job duties does not have any bearing on the issue at hand. Reducing an employee’s hours could be considered an adverse employment action, since such an act materially affects the terms and conditions of employment. The Court finds thus finds a dispute of material fact exists here as to the existence of an adverse employment action here.

As to the additional duties, Plaintiff contends that she was assigned to clean the staff pharmacy bathroom. She claims that such janitorial duties were outside of her job description. However, it is undisputed that as a part of her duties, she was required to maintain the Pharmacy Department, which included janitorial duties such as: “vacuum, dust/face, wipe counter tops, clean sink and settee area; clean baker units; empty trash.” (Haeffele Decl., Ex. K.) Thus, requiring her to perform such duties would not materially affect the terms and conditions of her employment. Tran would also require Plaintiff to pick up trash in the parking lot, which she opposed. (Estes Decl., ¶ 36.) Picking up trash goes beyond the cited duties stated in her agreement. Plaintiff thus demonstrates dispute of fact as to this adverse employment action. Accordingly, CVS’s motion is DENIED as to this issue.

Issue No. 2 – Discrimination and Causation

CVS moves against the first cause of action on the grounds that there is no evidence of a causal link between Plaintiff’s age and the separation of her employment in July 2016. This issue is not briefed in the memorandum. Notably, the discrimination claim is based on several non-termination adverse employment actions, as discussed above. CVS does not meet its burden of production or persuasion to demonstrate that there is no causal link between Plaintiff’s disability and the non-termination related adverse employment actions, since they do not address those actions. (UMF 17-32; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [“the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law”].)

Therefore, CVS’s motion is DENIED as to this issue.

Issue No. 3 – Legitimate, Non-Discriminatory Reason for Termination

CVS moves against the first cause of action on the grounds that CVS has a legitimate, non-discriminatory reasons for separating Plaintiff’s employment, for which Plaintiff cannot establish pretext. The issue is unbriefed in the memo. Similarly, the separate statement does not address the non-discriminatory reasons for termination. In fact, the separate statement does not recognize that Plaintiff was even terminated. Presumably, CVS references its decision to terminate her in July 2016 based on Plaintiff’s failure to communicate with CVS and arrange for her to return from leave. (See UMF 45-48 [the parties’ correspondence following June 1, 2015].) However, CVS fails to address the non-discriminatory reasons for the other adverse employment actions. Thus, CVS fails to meet its burden.

Accordingly, CVS’s motion for summary adjudication is DENIED as to this issue. As a cause of action survives, CVS’s motion for summary judgment is DENIED.

Issues nos. 4-5 – Harassment

These issues are moot since Plaintiff dismissed the second cause of action for harassment.

Issue No. 6 – Retaliation and Adverse Employment Actions

CVS moves against the third cause of action for retaliation on the same grounds as the first issue, that Plaintiff was not subjected to an adverse employment action.

In order to state a claim for retaliation, Plaintiff must show that: (1) she engaged in protected activity; (2) defendants subjected her to an adverse employment action; and (3) a causal link exists between the protected activity and defendants’ actions. (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal. App. 4th 377.)

CVS relies on the same set of facts and arguments as the first issue. (UMF 61-76; Mot. at 14-17.) Thus, the Court finds that the same reasoning applies, and a dispute of fact exists as to whether Plaintiff was subjected to an adverse employment action.

Accordingly, CVS’s motion is DENIED as to this issue.

Issue No. 7 - Retaliation and Causation

CVS moves against the retaliation cause on the same grounds as the second issue, that there no evidence of a causal link between any alleged protected activity and the separation of Plaintiff’s employment in July 2016. This issue fails for the same reasons as the second issue. CVS does not provide any evidence defeating causation between an alleged protected activity, and the discussed adverse employment actions beyond termination.

Accordingly, CVS’s motion is DENIED as to this issue.

Issue No. 8 – Legitimate, Non-Retaliatory Reason for Termination

CVS moves against the retaliation cause of action on the same grounds as the third issue: that CVS has a legitimate, non-discriminatory reasons for separating Plaintiff’s employment, for which Plaintiff cannot establish pretext. Again, CVS fails to address the other adverse employment actions beyond termination, such as the scheduling and assigning her parking lot clean-up duties. Thus, CVS fails to meet its initial burden on this point.

Accordingly, CVS’s motion is DENIED as to this issue.

Issue No. 9 - Failure to Prevent Discrimination, Harassment, and Retaliation

CVS asserts that this is a derivative claim of the discrimination and harassment claims and fails for the same reasons. As CVS did not prevail on the discrimination and harassment claims, CVS’s motion is DENIED as to this issue.

Issue No. 10 – CFRA Retaliation Eligibility

CVS moves against the fifth cause of action for CFRA retaliation fails as a matter of law because in June 2015, Plaintiff was not eligible for CFRA leave. This issue is unbriefed. CVS only argues that Plaintiff failed to exhaust her administrative remedies, and that she did not suffer an adverse employment action. (See Mot. at 20-21.) Despite the inadequate briefing on the actual issues, CVS’s separate statement does provide some of the relevant law for this issue. Thus, the Court will consider whether CVS has met their initial burden on this point.

A cause of action for retaliation in violation of the CFRA requires the following elements: “(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.” (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.)

The Complaint alleges that Plaintiff was a full-time employee with CVS for over one year and over 1,250 hours in the 12-month period preceding her CFRA leave. (Compl., ¶ 174.) Plaintiff took leave to attend to her serious health condition. (Id., ¶ 175.) Upon Plaintiff’s return, CVS did not give her the same or equivalent position and suspended/terminated her because she took leave. (Id., ¶ 175-176.)

CVS submits the following two facts regarding Plaintiff’s CFRA eligibility. First, to be eligible under the CFRA, the employee must have at least 1,250 hours of service with the employer during the previous 12-month period from when the leave request is made. (UMF 125, citing Gov. Code § 12945.2.) Between June 1, 2014 and June 1, 2015, Plaintiff worked less than 1,250 hours. (UMF 126.)

This does not meet CVS’s burden to show that Plaintiff was ineligible to take CFRA leave. CVS inexplicably uses the June 1, 2015 date as the date that Plaintiff requested the leave. CVS does not cite to a material fact showing that Plaintiff requested leave on June 1, 2015, or any other information indicating that this should be the operative date. Thus, CVS has not established that Plaintiff had less than 1,250 hours in the 12-month period preceding her CFRA leave.

Accordingly, CVS’s motion is DENIED as to this issue.

Issue No. 11 – CFRA Retaliation Causation

CVS moves against the CFRA retaliation on the grounds that there is no evidence of a causal link between Plaintiff’s alleged exercise of her CFRA rights and the separation of her employment in July 2016. The FAC alleges that she was retaliated against for taking CFRA leave when CVS did not give her the same or equivalent position upon her return, when CVS suspended her, and when CVS terminated her. (FAC ¶¶ 175-176.)

CVS fails to meet its burden here. First, this issue is unbriefed. CVS only argues in the papers that Plaintiff failed to exhaust her administrative remedies, and that she did not suffer an adverse employment action. (See Mot. at 20-21.) Further, CVS does not defeat the alleged cause of action for similar reasons discussed in issues nos. 2 and 7. Notably, CVS uses the same material facts as those issues. (UMF 127-142, cf. 61-76.) The issue and material facts only address termination (which is also in dispute). However, the FAC alleges retaliation regarding her protected leave through CVS’s failure to return her to the same or equivalent position upon her return. (FAC ¶¶ 103-110; 175-176.)

Accordingly, CVS’s motion is DENIED as to this issue.

Issue no. 12 – CFRA Retaliation and Legitimate, Non-Retaliatory Reasons

CVS fails to meet its burden here. First, this issue is unbriefed. CVS only argues in the papers that Plaintiff failed to exhaust her administrative remedies, and that she did not suffer an adverse employment action. (See Mot. at 20-21.) Further, CVS does not defeat the alleged cause of action for similar reasons discussed in issues nos. 3 and 8. Notably, CVS uses the same material facts as those issues. (UMF 143.) CVS fails to address their reasoning behind the other adverse employment actions beyond termination. Thus, CVS fails to meet its initial burden on this point.

Accordingly, CVS’s motion is DENIED as to this issue.

Additional CFRA Discussion

As discussed, CVS only argues that Plaintiff failed to exhaust her administrative remedies, and that she did not suffer an adverse employment action. (See Mot. at 20-21.) Both of those purported issues are unnoticed. In any event, the Court does not find either position persuasive.

Pursuant to Gov. Code section 12960, before pursuing a court action for violations of the FEHA, a plaintiff must file a timely administrative complaint with the DFEH. (Gov. Code § 12960(d).)  “To exhaust her administrative remedies as to a particular act made unlawful by the FEHA, an employee must specify that act in her DFEH complaint, even if the complaint specifies other wrongful acts.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724.) “In the context of the FEHA, the failure to exhaust is a jurisdictional defect; [and] grounds for summary judgment.” (Id.) The DFEH complaint “must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.)

CVS argues that Plaintiff did not notice this issue in the DFEH letter, specifically, that she did not “check the box” on the “medical leave” section of the DFEH letter. These facts are not present in the separate statement. Further, CVS cites only to un-published, district court decisions for the proposition that a failure to check the box would be grounds for summary judgment. (Mot. at 20-21.) Estes listed retaliation as a claim, and disability/medical condition as reasons for retaliation. (See Haeffele Decl., Ex. A [not cited in the separate statement].) A reasonable investigation based on those claims could uncover the alleged CFRA retaliation. In light of the liberal construction rules, the Court would not be inclined to adjudicate this cause of action for a failure to exhaust administrative remedies.

s to adverse employment actions in relation to her fifth cause of action, the same analysis applies as to the other adverse employment action issues.

 

Issue nos. 13-14 – Accommodations and Failure to Engage in the Interactive Process

CVS moves against the sixth cause of action for failure to engage in the interactive process fails as a matter of law because Plaintiff cannot show that CVS failed or refused to participate in a timely good-faith interactive process to determine if Plaintiff could be accommodated. CVS moves against the seventh cause of action for failure to accommodate on the grounds that Plaintiff cannot show that CVS failed to accommodate her disability. Given the interrelated nature of the issues, the Court will address them together.

“The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.)” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) A reasonable accommodation as “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974.) The reasonableness of an accommodation is an issue for the jury. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)

It is unlawful for an employer to “fail to engage in a timely, good faith interactive process” with a disabled employee to determine effective reasonable accommodations. (Gov. Code, § 12940(n).) The interactive process is “a mechanism to allow for early intervention by the employer outside of the legal forum, for exploring reasonable accommodations for employees who are perceived to be disabled.” (Jacques v. Dimarzio (2002) 200 F.Supp.2d 151,170.) The interactive process is triggered by a request for accommodation by a disabled employee. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.) This includes when an employee with a known physical or mental disability or medical condition requests a reasonable accommodation, or the employer becomes aware of the need for accommodation through a third party or observation. (2 CCR § 11069(b); see Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950.) “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Gelfo

“[T]he employer cannot prevail on summary judgment . . . unless it establishes . . . 1) reasonable accommodation was offered and refused; 2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which disabled employee was capable of performing with or without accommodation; or 3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442.)

CVS presents the following facts in support. On September 6, 2013, Plaintiff underwent knee surgery and was placed off work by her treating physician (Daniel Silver) through December 4, 2013. (UMF 144.). From January 30, 2014 through October 15, 2014, Plaintiff was off work, on an approved medical leave of absence. (UMF 145.) On June 12, 2014, Dr. Silver evaluated Plaintiff and prescribed the following restrictions: 1) No repetitive bending or stooping; 2) Must sit at least 50% of each shift; 3) No squatting or kneeling; 4) No lifting more than 10 pounds; and 5) Limited to semi-sedentary work. (UMF 146.) Upon receipt, CVS scheduled an interactive process meeting for June 19, 2014, to include Ashkar, Tran, and Stern. During the meeting, the group reviewed the essential functions of the Staff Pharmacist position and determined that four of the five essential functions would force Plaintiff to violate her restrictions. (UMF 148.) Plaintiff was asked to seek clarification from her treating physician. (UMF 149.) On July 10, 2014, Plaintiff, Stern, and District Manager Justin Little met for a second IP Meeting. (UMF 151.) Plaintiff remained on leave until her next appointment.

On July 24, 2014, Dr. Silver evaluated Plaintiff and prescribed similar restrictions: No prolonged standing or walking; No bending or stooping; No squatting or kneeling; No stair or ladder climbing; No overhead work; No heavy lifting; No lifting over 10 pounds; Must sit at least 60% of each shift; and Not to work more than 3 days per week. (UMF 154.) On August 12, 2014, Plaintiff, Stern, Little, Ashkar, and Union representative Claudia Myles met for a third IP Meeting, where they discussed the purchase of an ergonomic chair and assigning Plaintiff to a new store 9613. (UMF 155-156.) On August 15, 2014, Plaintiff requested to remain on leave until her next doctor’s appointment (September 4, 2014). (UMF 157.)

In September 2014, Dr. Silver evaluated Plaintiff and prescribed the following restrictions: No prolonged standing or walking; No bending or stooping; No squatting or kneeling; No stair or ladder climbing; No overhead work; No heavy lifting; No lifting over 10 pounds; Must sit at least 60% of each shift; and Not to work more than 3 days per week. (UMF 158.) He also opined that plaintiff was unable to perform essential functions nos. 1, 2, 4 & 5, and that Plaintiff would need to use an ergonomic chair and an assistant to work alongside her. (UMF 159.)

On September 24, 2014, Plaintiff, Stern, Ashkar, and Myles met for a fourth IP Meeting, where the group again discussed and thereafter assigned Plaintiff to store 9613. (UMF 160-161.) On October 23, 2014, Plaintiff clocked in, but could not complete her full shift due to her disability. (UMF 162-163.) From October 24, 2014 through June 2015, Plaintiff was off work on an approved medical leave of absence. (UMF 164, 167, 170.) During this period, Plaintiff was evaluated by her treating physician in November 2014, January 2015, February 2015, April 2015, and May 2015.

On November 24, 2014, Plaintiff, Stern, and Ashkar met for a fifth IP Meeting, where the supervisors sought clarification regarding Plaintiff’s 50% sitting requirement, given her inability to complete a full shift on October 23, 2014, and the pain she experienced. (UMF 166.) They agreed that a continuous leave of absence would be offered as a reasonable accommodation through her next doctor’s appointment in January 2015, since they determined that she could not perform the essential functions of a pharmacist. Her condition did not improve during the January 2015 doctor’s visit. (UMF 169.) The leave of absence was extended to March 27, 2015. (UMF 170.) In April 2015, her restrictions remained unchanged. (UMF 171.) A sixth IP meeting was scheduled on April 22, 2015 but was apparently not held. (UMF 172.) In May 2015, Plaintiff’s restrictions remained similar. (UMF 173.)

On May 27, 2015, Human Resources Business Partner Lee Stanley emailed Plaintiff to schedule a seventh IP Meeting: “I recently received an updated [doctor’s] note dated 5/12/15. I am writing to see whether we can now re-schedule our prior meeting from 4/22/15 which you left before we could begin - so we can continue to discuss bringing you back to work as we had planned.” (UMF 174.) Plaintiff responded on May 29, 2015: “Right now I am much more concerned about my immediate health issues and want to wait to see what the testing reveals. I would like to meet you ASAP after my next Doctor Evaluation, which is June 16th. So, provided all goes well, I accept your offer to meet on June 16.” (UMF 175.) Stanley responded to Plaintiff’s May 29th email on June 11, 2015: “As you mentioned in your email, your preference is to meet after your next doctor’s appointment. That would be fine. However, if your appointment is on June 16, perhaps we should schedule our meeting for a later date so that you have time to discuss returning to work with your doctor?” (UMF 176.) On June 30, 2015, Plaintiff responded for the final time: [I]t’s simply too late as the damage has been done: I was already discharged … [p]lease forward any and all further correspondence directly to my attorneys…” (UMF 177.) CVS sent three more correspondences to engage Plaintiff in the interactive process. (UMF 178-179, 181.)

CVS asserts that Plaintiff cannot establish her interactive process claim because “[l]iability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971-72.) The above facts outline a 22-month interactive dialogue comprised of emails and telephone calls, seven in-person IP Meetings, and several offers to reassign Plaintiff to a store with overlapping pharmacist coverage. The above evidence demonstrates that Plaintiff failed to engage in the informal interactive process, as opposed to CVS. Further, CVS offered certain reasonable accommodations which were refused. Thus, CVS meets its burden as to these issues.

Plaintiff argues that CVS should have allowed her to work at her prior store (Store 9633), since it had overlapping coverage that would have enabled plaintiff to perform the essential functions of her job, but CVS refused in bad faith. Plaintiff submits evidence that store 9633 did have overlapping pharmacist coverage. (Ashkar Depo at 95:5-12; Tran Depo at 40:10-22; Le Depo at 93:7-9.) CVS refused to assign Plaintiff to Plaintiff’s original store with reasonable accommodations explaining it was a “business decision,” despite the fact that CVS Woodland Hills store did not actually have overlapping pharmacists as represented and CVS Thousand Oaks (Store 9633) did have overlapping pharmacists. CVS asserts that this would be unreasonable because there was only complete overlapping coverage for Mondays and Tuesdays at store 9633 (Le Depo. at 13:9-14:11, 25:25-26:11; Tran Depo. at 10:21-13:1), that Plaintiff wanted to work four days a week, and that she had physical therapy on Mondays (Estes Depo., Ex. 20). CVS’s response only serves to highlight a conflict in the evidence here. Plaintiff presents evidence that Store 9633 had overlapping coverage. CVS presents evidence that coverage was limited in some respects, but there were some days with overlapping coverage even if they did not fit with Plaintiff’s preferences. CVS recognizes that such coverage may have enabled Plaintiff to perform her essential duties, because they sent Plaintiff to CVS Woodland Hills as an accommodation since that store had overlapping coverage. Further, unpaid leave is not reasonable if other reasonable accommodations were available that would keep the employee working. (2 CCR § 11068(c).) Therefore, a dispute of fact exists as to whether CVS could have reasonably accommodated Plaintiff or engaged in the interactive process in good faith.

In reply, CVS asserts that plaintiff cannot establish that she was qualified to perform the essential functions of the position. However, CVS did not notice this issue, or provide briefing in the moving papers. (See Mot. at 23-25.) The Court recognizes that CVS does discuss essential functions in the motion. However, CVS discussed this to justify their refusal to schedule plaintiff work shifts in which she would have been the only pharmacist at the store. Plaintiff did not have an adequate notice or an opportunity to oppose Defendant’s reply argument that she was unqualified.

Accordingly, CVS’s motion is DENIED as to this issue.

Issue no. 15 – Lab. Code § 1102.5 and Protected Activities

CVS moves against the eighth cause of action on the grounds that Plaintiff cannot show that she engaged in a protected activity under Labor Code section 1102.5.

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information… to a person with authority over the employee or another employee who has the authority to investigate… if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” (Lab. Code § 1102.5(b).)

Generally, there are two types of protected activity: 1) disclosing information concerning illegal conduct, or 2) refusing to participate in illegal conduct. (Lab. Code § 1102.5(b), (c).) The employee must have¿reasonable cause¿to believe the information discloses activity that violates the¿law. (See¿Mokler v. County of Orange¿(2007) 157 Cal.App.4th 121, 139-140; see also Miller v. Department of Corrections (2005) 36 Cal.4th 446, 473-474 [employee engaged in protected activity by complaining about sexual harassment of subordinate, even if such harassment was not severe and pervasive enough to be legally actionable]; Yanowitz, supra, 36 Cal.4th 1028, 1042-1043 [employee rejected order reasonably believed to be discriminatory].) To have a reasonably based suspicion, the employee must be able to point to a legal foundation, such as a statute that may have been violated by the conduct disclosed. (Jadwin v. County of Kern (ED CA 2009) 610 F.Supp.2d 1129, 1154.) Employees need not identify a specific law that was violated; they only need to provide the information that they reasonably believe discloses unlawful activity. (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592-593.) Section 1102.5(b) protects reports by an employee that coworkers are violating the law. (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 448.) The reasonableness of an employee’s belief that he was opposing an unlawful act is a question of fact. (Patten v. Grant Joint Union High School Dist.¿(2005) 134 Cal.App.4th 1378, 1385.)

The FAC alleges that Plaintiff reported to CVS violations of the law by her supervisors/co-workers. (FAC ¶196.) CVS argues that Plaintiff’s internal patient safety complaints allegedly made in 2013 did not constitute “protected activity” under Section 1102.5 in 2013. (FAC ¶¶ 48-78.) CVS observes that section 1102.5 only protected “disclosures to a government or law enforcement agency and was not amended to include complaints made to “a person with authority over the employee or who has the authority to investigate, discover, or correct the violation” until 2014. (See Canupp v. Children's Receiving Home of Sacramento (E.D. Cal. 2016) 181 F. Supp. 3d 767, 789–90 [finding that internal complaints made in 2013 were not protected activities, even if termination took place after Section 1102.5 was amended 2014].)

CVS’s arguments only address the sufficiency of the allegations of the FAC. CVS asserts that because Plaintiff has failed to plead sufficient facts (i.e., an internal complaint after the 2014 amendment), the cause fails as a matter of law. (See UMF 220-223.) This ignores the pled allegations, which state that this conduct occurred in 2014. Plaintiff alleges certain issues with her supervisors regarding her restrictions, which included activity she believed to be discriminatory or harassing in 2014. (See FAC ¶¶ 72-77.) On April 9, 2014, Plaintiff filed a formal complaint with CVS management about her workplace issues, including harassment, retaliation, discrimination, and other illegal activities by her supervisors. (FAC ¶ 78.) She repeated this complaint on June 17, 2014. (FAC ¶ 81.) Plaintiff thus alleges internal complaints regarding her supervisors’ violations of the law, including FEHA discrimination. Therefore, Plaintiff pleads a protected activity under section 1102.5.

CVS does not establish that the April 2014 complaint was merely an unprotected “personnel” disclosure. CVS only cites to the allegations, which state that they were for violations of the law, such as discrimination by her supervisors. (See FAC ¶ 78.) CVS does not cite any evidence or UMF to contradict this allegation. CVS also asserts that accommodation requests did not constitute a protected activity until 2016. However, the cited allegations do not provide solely for accommodation requests, but opposition to allegedly illegal practices. CVS therefore fails to meet their initial burden to show that this cause has no merit.

Accordingly, CVS’s motion is DENIED as to this issue.

 

Issue no. 16 – Lab. Code § 1102.5 and Adverse Employment Action

Plaintiff cannot establish a prima facie case of Section 1102.5 retaliation in that Plaintiff was not subjected to an adverse employment action. As discussed, Plaintiff provides a dispute of fact as to whether she was subjected to an adverse employment action.

Therefore, CVS’s motion is DENIED as to this issue.

Issue no. 17 - Lab. Code § 1102.5 and Causation

CVS asserts that Plaintiff cannot establish a causal link between Plaintiff’s alleged protected activity and the separation of her employment in July 2016. This issue suffers from similar defects as issues nos. 2, 7 and 11. The same applies here: 1) CVS failed to brief this issue, and 2) CVS’s UMFs do not show that there is no causal link between the alleged protected activities and the pled adverse employment actions.

CVS’s motion is DENIED as to this issue.

Issue no. 18 - Lab. Code § 1102.5 and Legitimate, Non-Retaliatory Reasons

CVS claims to have articulated legitimate, non-retaliatory reasons for separating Plaintiff’s employment, for which Plaintiff cannot establish pretext. This issue suffers from similar defects as issues nos. 3, 8 and 12. The same logic applies here.

CVS’s motion is DENIED as to this issue.

Issue no. 19 – Lab. Code § 98.6

CVS asserts that the eighth cause of action fails as a matter of law because it is derivative of Plaintiff’s cause of action under Labor Code section 1102.5 and fails for the same reasons. As the section 1102.5 cause was not adjudicated, CVS’s motion is DENIED as to this issue.

Issue no. 20 - Lab. Code § 6310 and Protected Activity

CVS moves against the Section 6310 retaliation claim on the grounds that Plaintiff cannot show that she engaged in a protected activity.

Labor Code, section 6310 prohibits discrimination or retaliation against an employee who has: 

(1)  Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative. 

(2)  Instituted or caused to be instituted any proceeding under or relating to his or her rights or has testified or is about to testify in the proceeding or because of the exercise by the employee on behalf of himself, herself, or others of any rights afforded him or her. 

(3)  Participated in an occupational health and safety committee established pursuant to Section 6401.7. 

Subdivision (b) provides, in relevant part: 

Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative, of unsafe working conditions, or work practices, in his or her employment or place of employment, or has participated in an employer-employee occupational health and safety committee, shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. 

A plaintiff need not prove the workplace was “actually” unsafe, so long as the safety complaint was made in good faith. (See Cabesuela v. Browning-Ferris Indus. of Calif., Inc. (1998) 68 Cal.App.4th 101, 108-109; see also Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676 [reporting an assault from a coworker concerns the workplace].)

CVS argues that Plaintiff’s allegations do not show any protected activity. (See UMF 288-291.) CVS points to the following allegations as insufficient: 1) she made “patient safety” complaints regarding “short-staffed” shifts that “endangered her patients” health and safety (FAC at 2:14-16; ¶ 47); 2) Ashkar assigned Plaintiff impossible tasks which would have endangered and jeopardized the safety of patients (FAC ¶ 48 [note, the court does not view this as a complaint]); and 3) she informed CVS that assigning her to a much busier store with her current restrictions while untrained in using robots was a recipe for failure (FAC ¶¶ 93, 104.)

However, CVS does not recognize the material allegation that Plaintiff made oral and written complaints to managing agents of CVS referencing employee safety. (FAC ¶ 203.) CVS puts no affirmative evidence that Plaintiff did not make an oral or written complaint regarding employee safety. CVS only argues that cited factual allegations are not protected activities under section 6310. Even if true, the allegations do not necessarily form the basis of this cause of action. At best, CVS grounds their argument on the FAC’s failure to allege sufficient facts in support of the charging allegation since the specific facts of the FAC do not support the allegation.

A defendant's motion for summary judgment or summary adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.) When a motion for summary judgment is used to test whether the complaint states a cause of action, the court must accept the allegations of the complaint as true. It cannot consider facts alleged in opposing declarations. (Id.) If the defect in the pleadings is curable then leave to amend should be granted and the summary judgment should be either stayed pending amendment. (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1384.) If the Court were to agree with CVS that the FAC fails to state a cause of action, the Court would be inclined to grant leave to amend.

Through this argument, the Court would not find CVS met its initial burden.

Plaintiff did properly plead that she made oral and written complaints to managing agents of CVS referencing employee safety. (FAC ¶ 203.) This is a factual allegation and CVS has not shown that it is insufficient as a matter of law.

Accordingly, CVS’s motion is DENIED as to this issue.

Issue no. 21 – Lab. Code § 6310 and Causation

CVS asserts that Plaintiff cannot establish a causal link between Plaintiff’s alleged protected activity and the separation of her employment in July 2016. This issue suffers from similar defects as issues nos. 2, 7, 11 and 16.

CVS’s motion is DENIED as to this issue.

Issue no. 22 - Lab. Code § 6310 and Legitimate, Non-Retaliatory Reasons

CVS has articulated legitimate, non-discriminatory reasons for separating Plaintiff’s employment, for which Plaintiff cannot establish pretext.

CVS claims to have articulated legitimate, non-retaliatory reasons for separating Plaintiff’s employment, for which Plaintiff cannot establish pretext. This issue suffers from similar defects as issues nos. 3, 8, 12 and 17.

CVS’s motion is DENIED as to this issue.

Issue no. 23 – Business and Professions Code section 17200

Plaintiff concedes that the cause should be dismissed. Given this concession, CVS’s motion is GRANTED as to this issue.

Issue no. 24 – Wrongful Termination

CVS moves against this cause because it is derivative of Plaintiff’s first cause of action for discrimination, and third, fifth, eighth, and ninth causes of action for retaliation, which also fail as a matter of law. As those causes of action survive, CVS’s motion is DENIED as to this issue.

Moving party is ordered to give notice.

Case Number: BC598644    Hearing Date: July 30, 2020    Dept: 24

Plaintiff Jasimine Estes’s motion to reopen discovery is GRANTED in part.

On October 23, 2015, Plaintiff Jasimine Estes filed the instant employment action against Defendants CVS Rx Services Inc. (“CVS”), Ghada Ashkar, Elizabeth Tran, and Brandi Stern. Her operative First Amended Complaint (“FAC”) states eleven causes of action for: 1) discrimination; 2) harassment; 3) retaliation; 4) failure to prevent discrimination, harassment, retaliation; 5) retaliation in violation of CFRA; 6) refusal to conduct good faith interactive process; 7) failure to provide reasonable accommodation; 8) violations of Lab. Code §§ 1102.5 and 98.6; 9) violations of Lab. Code § 6310; 10) violation of Bus. & Prof. Code § 17200; and 11) adverse action in violation of public policy.

The individual defendants Ghada Ashkar, Elizabeth Tran, and Brandi Stern were dismissed with prejudice on December 24, 2019. The previous trial date was vacated due to the COVID-19 pandemic. A trial setting conference and MSJ hearing is set for August 11, 2020.

On May 22, 2020, Plaintiff filed the instant motion to reopen discovery. On July 17, 2020, Defendant filed an opposition. On July 22, 2020, Plaintiff filed a reply.

Legal Standard

Pursuant to CCP § 2024.020, “a continuance or postponement of the trial date does not operate to reopen discovery proceedings” unless a motion to reopen discovery is filed and granted pursuant to CCP § 2024.050. (See also Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568.)

“The purpose of imposing a time limit on discovery is to expedite and facilitate trial preparation and to prevent delay.  Without a cutoff date, the parties could tie up each other and the trial court in discovery and discovery disputes right up to the eve of trial or beyond. Furthermore, . . . to be effective the cutoff date must be firm or some litigants will manipulate the proceedings to avoid the cut-off date.”  (Beverly Hosp. v. Superior Court (1993) 19 Cal.App.4th 1289, 1295.)  The reopening of discovery is a matter that is committed to the trial court’s sound discretion.  (See CCP § 2024.050(a), (b).)  In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including: 

(1) The necessity and the reasons for the discovery. 

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. 

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. 

(Code Civ. Proc § 2024.050(b).) 

Meet and Confer

As an initial matter, the Court notes that the parties did properly meet and confer. A motion to reopen discovery pursuant to Code Civ. Proc. § 2024.050 “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2024.050(a).) Here, Plaintiff’s motion principally concerns various emails correspondences between the parties over various discovery issues, including chains of emails from February to April regarding the discovery deadline.

Discussion

The parties do not dispute that the discovery cut off came and went on April 30, 2020. Plaintiff seeks to reopen discovery to conduct discovery past that deadline. Plaintiff does not clearly delineate which discovery is at issue for this motion. Plaintiff discusses a number of discovery issues in the context of the timeline of the case, with some of that discovery still outstanding. Plaintiff only specifically discusses the following in the context of the above noted factors: 1) to conduct 14 depositions of individuals who worked at both CVS Stores Plaintiff was previously employed (noticed April 30, 2020); and 2) Supplemental Interrogatories, Form Interrogatories, Set 2 Request for Admissions (31-47), Set 2 Special Interrogatories (2-24), and Set 7 Request for Production (287-314). Thus, the Court will address this new discovery as the principal basis for the motion.

As to this discovery, the Court does not find that Plaintiff acted with due diligence in seeking the discovery at issue. Plaintiff does not adequately explain the necessity of each device, beyond stating what they would do in the broadest of strokes. Principally, the Court is concerned that Plaintiff would wait until the day of, and after, a well-known deadline to begin the discovery process as to those issues. Plaintiff does not explain when they discovered the underlying facts that spurred this discovery. This is important because this is the only way to judge how diligent Plaintiff has been in regards to this discovery. Reviewing the requested discovery, Plaintiff presumably knew many, if not all, of these issues would require discovery months or years ago. Plaintiff does little to dispel this notion, beyond providing an play-by-play of their efforts since August 2019 only regarding a few depositions unrelated to the new 14 depositions.

Plaintiff argues that substantive written discovery was necessary because Defendant withheld pertinent documents and information. For example, Defendant’s prior document production failed to produce performance evaluations. The new set of discovery asks for these appraisals, and requests to admit they are lost in order to receive an explanation. However, even if Defendant withheld discovery, why did Plaintiff do nothing until past the discovery deadline? Plaintiff does not explain when they suspected any documents were missing. Plaintiff points out that the last documentary discovery from Defendant was served in 2017. Plaintiff would need to demonstrate that they only recently discovered that certain information or documents were missing from Defendant’s prior discovery responses in order to show diligence. Plaintiff has not done so.

The Court does not want to reward Defendant for any gamesmanship or “strategic use” of the discovery cut off. However, Plaintiff should have reasonably brought these issues months or years ago. The Court therefore is not inclined to find good cause for this discovery.

Defendant offers the following compromise regarding outstanding discovery served prior/noticed prior to the discovery cut off. Specifically, Defendant would allow: (1) any depositions that were properly noticed (and/or subpoenaed) prior to April 30, 2020, including the deposition of former CVS employee Brandi Stern; and 2) Plaintiff may seek court intervention to resolve any written discovery issues for which the limitations period to seek intervention had not run as of April 20, 2020. The Court finds this a reasonable compromise, and will allow discovery accordingly

Accordingly, Plaintiff’s motion is GRANTED in part.

Moving party is ordered to give notice.

Case Number: BC598644    Hearing Date: January 30, 2020    Dept: 24

Defendant CVS Rx Services Inc.’s motion for summary adjudication pursuant to CCP section 437c(t) is DENIED.

On October 23, 2015, Plaintiff Jasimine Estes filed the instant employment action against Defendants CVS Rx Services Inc. (“CVS”), Ghada Ashkar, Elizabeth Tran, and Brandi Stern. Her operative First Amended Complaint (“FAC”) states eleven causes of action for: 1) discrimination; 2) harassment; 3) retaliation; 4) failure to prevent discrimination, harassment, retaliation; 5) retaliation in violation of CFRA; 6) refusal to conduct good faith interactive process; 7) failure to provide reasonable accommodation; 8) violations of Lab. Code §§ 1102.5 and 98.6; 9) violations of Lab. Code § 6310; 10) violation of Bus. & Prof. Code § 17200; and 11) adverse action in violation of public policy.

The individual defendants Ghada Ashkar, Elizabeth Tran, and Brandi Stern were dismissed with prejudice on December 24, 2019. Trial is currently set for August 24, 2020.

On September 6, 2019, CVS moved for summary adjudication pursuant to CCP section 437c(t). The motion was initially set to be heard on November 20, 2019. The hearing on the motion was continued to January 30, 2020. On January 16, 2020, Plaintiff filed an opposition. No reply was submitted. CVS’s summary judgment/adjudication motion is currently set to be heard on February 19, 2020.

Discussion

Here, Defendant moves to adjudicate various issues concerning Plaintiff’s DFEH letters and allegations occurring prior to the statute of limitations. It is undisputed that these issues do not dispose of an entire cause of action, but only assess factual allegations of the FAC. Normally, a motion for summary adjudication requires disposal of an entire cause of action, affirmative defense, claim for damages, or issue of duty. (CCP § 437c(f)(1).) A party may move for adjudication of an issue that does not completely dispose of one of the above under very specific circumstances and requirements. CCP section 437c(t), which governs such a motion, provides in part:

(1) (A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:

(i) A joint stipulation stating the issue or issues to be adjudicated.

(ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.

(Emphasis Added.)

Here, Defendant failed to supply the required joint stipulation and declaration. Plaintiff opposes and clearly will not stipulate. There are further procedural requirements that were also not met. (See CCP § 437c(t)(2)-(4).) Therefore, the motion fails at to outset and no further discussion is required.

Accordingly, Defendant’s motion is DENIED.

Moving party is ordered to give notice.

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