This case was last updated from Los Angeles County Superior Courts on 03/01/2020 at 10:13:08 (UTC).

DALIA MORENO VS RUFFIN HOTELS LP

Case Summary

On 02/16/2018 DALIA MORENO filed a Labor - Wrongful Termination lawsuit against RUFFIN HOTELS LP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MALCOLM MACKEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4452

  • Filing Date:

    02/16/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MALCOLM MACKEY

 

Party Details

Petitioner and Plaintiff

MORENO DALIA

Defendants and Respondents

RUFFIN HOTELS LP

LONG BEACH MARRIOTT

DOES 1 TO 20

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

ELIHU KAVEH S. ESQ.

ELIHU KAVEH SAM ESQ.

Defendant and Respondent Attorneys

ASIFUDDIN & ASSOCIATES

ASIFUDDIN ROOHA

BARBER JOHN L

JENKINS HALEH R

RUPE ALAN L.

 

Court Documents

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/13/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice - NOTICE OF CASE REASSIGNMENT

1/21/2020: Notice - NOTICE OF CASE REASSIGNMENT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...) OF 08/30/2019

8/30/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...) OF 08/30/2019

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...)

8/30/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...)

Stipulation and Order - STIPULATION AND ORDER TO BIFURCATE AND TO EXCLUDE ANY AND ALL EVIDENCE

8/20/2019: Stipulation and Order - STIPULATION AND ORDER TO BIFURCATE AND TO EXCLUDE ANY AND ALL EVIDENCE

Declaration in Support of Ex Parte Application

7/23/2019: Declaration in Support of Ex Parte Application

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR CONTINUANCE OF TRIAL DATE...)

7/25/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR CONTINUANCE OF TRIAL DATE...)

Ex Parte Application - EX PARTE APPLICATION NOTICE OF EX-PARTE APPLICATION AND EX-PARTE APPLICATION FOR CONTINUANCE OF TRIAL DATE; MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION OF ROOHA ASIFUDDIN

7/25/2019: Ex Parte Application - EX PARTE APPLICATION NOTICE OF EX-PARTE APPLICATION AND EX-PARTE APPLICATION FOR CONTINUANCE OF TRIAL DATE; MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION OF ROOHA ASIFUDDIN

Association of Attorney

7/31/2019: Association of Attorney

Opposition - OPPOSITION OPPO TO DEF. EX PARTE

8/6/2019: Opposition - OPPOSITION OPPO TO DEF. EX PARTE

Order - FOR ORDER ADMITTING ALAN L. RUPE TO APPEAR AS COUNSEL PRO HAC VICE

8/6/2019: Order - FOR ORDER ADMITTING ALAN L. RUPE TO APPEAR AS COUNSEL PRO HAC VICE

Ex Parte Application - EX PARTE APPLICATION FOR LEAVE TO AMEND ANSWER

8/6/2019: Ex Parte Application - EX PARTE APPLICATION FOR LEAVE TO AMEND ANSWER

Ex Parte Application - EX PARTE APPLICATION FOR ALAN RUPE TO APPEAR PRO HAC VICE

8/6/2019: Ex Parte Application - EX PARTE APPLICATION FOR ALAN RUPE TO APPEAR PRO HAC VICE

Notice of Ruling

8/7/2019: Notice of Ruling

Answer - ANSWER DEFENDANT RUFFIN HOTELS, L.P. DBA LONG BEACH MARRIOTT'S AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

8/7/2019: Answer - ANSWER DEFENDANT RUFFIN HOTELS, L.P. DBA LONG BEACH MARRIOTT'S AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ALAN RUPE TO APPEAR PRO H...)

8/7/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ALAN RUPE TO APPEAR PRO H...)

Stipulation and Order - STIPULATION AND ORDER STIPULATION TO CONTINUE TRIAL DATE AND PROPOSED ORDER

4/26/2019: Stipulation and Order - STIPULATION AND ORDER STIPULATION TO CONTINUE TRIAL DATE AND PROPOSED ORDER

SUMMONS -

2/16/2018: SUMMONS -

24 More Documents Available

 

Docket Entries

  • 08/03/2020
  • Hearing08/03/2020 at 09:00 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

    Read MoreRead Less
  • 07/24/2020
  • Hearing07/24/2020 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

    Read MoreRead Less
  • 01/21/2020
  • DocketNotice ( of Case Reassignment); Filed by Dalia Moreno (Plaintiff)

    Read MoreRead Less
  • 01/13/2020
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

    Read MoreRead Less
  • 10/15/2019
  • Docketat 09:00 AM in Department 55, Malcolm Mackey, Presiding; Jury Trial - Held - Continued

    Read MoreRead Less
  • 10/04/2019
  • Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Final Status Conference - Held - Continued

    Read MoreRead Less
  • 09/25/2019
  • Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Bifurcate

    Read MoreRead Less
  • 09/12/2019
  • Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion for Leave to Amend (Answer)

    Read MoreRead Less
  • 09/04/2019
  • Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to be Admitted Pro Hac Vice

    Read MoreRead Less
  • 08/30/2019
  • Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Ex Parte Application (TO CONTINUE TRIAL AND RELATED DATES;) - Held - Motion Granted

    Read MoreRead Less
42 More Docket Entries
  • 05/29/2018
  • DocketCase Management Statement; Filed by Dalia Moreno (Plaintiff)

    Read MoreRead Less
  • 05/08/2018
  • DocketFirst Amended Complaint; Filed by Dalia Moreno (Plaintiff)

    Read MoreRead Less
  • 05/08/2018
  • DocketFIRST AMENDED COMPLAINT; ETC.

    Read MoreRead Less
  • 03/08/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 03/08/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 02/26/2018
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 02/26/2018
  • DocketProof-Service/Summons; Filed by Dalia Moreno (Plaintiff)

    Read MoreRead Less
  • 02/16/2018
  • DocketCOMPLAINT FOR DAMAGES

    Read MoreRead Less
  • 02/16/2018
  • DocketComplaint; Filed by Dalia Moreno (Plaintiff)

    Read MoreRead Less
  • 02/16/2018
  • DocketSUMMONS

    Read MoreRead Less

Tentative Rulings

Case Number: BC694452    Hearing Date: August 18, 2020    Dept: 76

Plaintiff alleges that she suffered severe and debilitating disabilities to her right hip with intense pain. Plaintiff took a week-long medical leave, but upon returning, her disabilities were not accommodated and were exacerbated. Defendant’s manager allegedly set Plaintiff up to fail by assigning Plaintiff to clean numerous extremely messy rooms in an impossible amount of time. Plaintiff was terminated because she did not finish the assignment, which was due to the pain caused by her disabilities. Plaintiff’s co-worker, who also was unable to complete her job duties, was not terminated. Plaintiff also alleges that she was not provided with uninterrupted 10-munite rest periods, and was not paid all outstanding wages owed to her.

Defendant Ruffin Hotels, LP moves for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING

Defendant Ruffin Hotels, LP’s motion for summary judgment is GRANTED.

ANALYSIS

Defendant’s Evidentiary Objections

Deposition Testimony of Danielle Engh

No. 1: OVERRULED. Defendant objects to the entire deposition testimony of Danielle Engh. However, there is no basis to object to the entire deposition transcript; objections to specific portions of the deposition transcript cited in support of Plaintiff’s arguments/facts is required. (Cal. Rules of Court, Rule 3.1354(b).) Moreover, the lack of foundation may be remedied before trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

Motion For Summary Judgment

For the reasons discussed below, Defendant has demonstrated that it is entitled to judgment as to all causes of action. Accordingly, the motion for summary judgment is GRANTED.

Motion For Summary Adjudication

FIRST CAUSE OF ACTION –DISCRIMINATION IN VIOLATION OF FEHA

1. Issue No. 1: “There Is No Merit To Plaintiff’s First Cause of Action For FEHA Disability Discrimination.

Plaintiff alleges that in mid-March 2016, Plaintiff sustained severe and debilitating disabilities to her right hip and suffered intense pain as a result. (Complaint, ¶ 19.) The next day, Plaintiff informed her supervisors of the incident. (Id.) Plaintiff then visited her medical provider and was placed on medical leave for approximately a week. (Id. at ¶ 20.) Plaintiff returned from medical leave in late March 2016, but Defendant failed to offer Plaintiff any accommodations and required her to perform her full job duties without any pro rata adjustment. (Id. at ¶ 21.) As a result, Plaintiff’s disabilities became exacerbated. (Id.)

Plaintiff alleges that on April 4, 2016, a manager set Plaintiff up to fail by assigning Plaintiff to clean numerous extremely messy rooms in an impossible amount of time. (Complaint, ¶ 22.) Plaintiff could not complete the task and tried to explain to her supervisor she could not work as fast as usual because of the sharp pain she was experiencing due to her disabilities. (Id.) Plaintiff’s manager demanded the Plaintiff speak to her in English, not Spanish. (Id.) Later that same day, Plaintiff explained to her manager through an interpreter that she could not work as quickly due to her disabilities. (Id.) The manager told Plaintiff she did not want to “hear excuses” and explain that she was still going to give her a warning, which Plaintiff refused to sign. (Id.)

Plaintiff alleges that on April 5, 2016, Defendant’s HR representatives discussed Plaintiff’s disabilities with Plaintiff, and then she was terminated because she did not finish her assignment the day before, which was due to pain caused by her disabilities. (Complaint, ¶ 23.) Plaintiff responded that a co-worker was not able to complete her job duties recently, but that co-worker was not terminated. (Id.)

“A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires plaintiff to show: (1) [s]he suffers from a disability; (2) [s]he is otherwise qualified to do [her] job; and, (3) [s]he was  [*345]  subjected to adverse employment action because of [her] disability.’” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886 [58 Cal. Rptr. 3d 729].)

(Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344-45.)

Defendant argues that Plaintiff was not disabled or perceived as disabled within the meaning of Gov. Code § 12940 when her employment was terminated on April 5, 2016.

On March 21, 2016, Plaintiff used her strength to stop the fall of a housekeeping cart which tipped sideways and straightened it back up. (UF No. 31; Pltf’s Depo. at 56:8-57:10-14.) Plaintiff then continued to work, but did not report the incident to anyone that day. (UF Nos. 32, 33; Pltf’s Depo. at 58:6-24.)

On March 22, 2016, Plaintiff came to work for a morning shift and notified Defendant that she had hip pain because she had hurt herself pushing a cart. (UF No. 34; Pltf’s Depo. at 59:10-25.) Plaintiff was sent to Human Resources, who arranged for Plaintiff to see a doctor. (UF Nos. 35, 36; Pltf’s Depo. at 62:21-63:11.) The doctor diagnosed Plaintiff with lumbar strain and returned Plaintiff to work on modified duty for six days. (UF Nos. 37 – 39; Pltf’s Depo. at 62:21-64:9; Exh. F [Initial Patient Status Report dated March 22, 2016]; Depo. of Dr. Alexander Francini, at 20:6-9.)

On modified duty, Plaintiff was not to engage in repetitive bending, stooping, squatting, kneeling, crawling, or lifting, pushing or pulling anything more than 15 pounds. (UF Nos. 40, 41; Pltf’s Depo. at 64:3-12; Exh. F [Initial Patient Status Report dated March 22, 2016].) Plaintiff provided a medical note describing her restrictions to Defendant. (UF No. 43; Pltf’s Depo. at 65:23-24.)

The essential functions of Plaintiff’s job required that she be able to lift, push and pull greater than 15 pounds and that she be able to bend, stoop and squat. (UF Nos. 44, 45; Decl. of Jennifer Raleigh, ¶ 3.) Defendant claims that during the time that Plaintiff was subject to these work restrictions, Defendant did not have any work available which Plaintiff could perform consistent with these restrictions. (UF No. 46; Raleigh Decl., ¶ 4.) Thus, Defendant did not let Plaintiff finish her shift and sent her home. (UF No. 47; Pltf’s Depo. at 65:25-66:2; Raleigh Decl., ¶ 4.)

On March 28, 2016, Plaintiff returned to the doctor, who examined Plaintiff and released her back to regular duty with no restrictions. (UF No. 48, 49; Pltf’s Depo. at 66:8-11; Francini Depo. at 22:8-24:19; Exh. G [March 28, 2016 Patient Status Report].)

Raleigh learned Plaintiff was cleared for regular duty from Human Resources and scheduled Plaintiff for the first available shift. (UF No. 50; Depo. of Jennifer Raleigh, at 91:6-92:15.) Plaintiff returned to work on April 1, 2016 for a morning shift, but she did not tell anyone that she was still experiencing pain. (UF Nos. 51, 52; Pltf’s Depo. at 70:24-71:22.) Plaintiff worked morning shifts on April 2 and 3, but did not notify anyone that she was hurting on those days. (UF Nos. 53 – 56; Pltf’s Depo. at 71:25 – 73:9-16.)

Plaintiff worked a morning shift on April 4, 2016, but did not notify anyone she was hurting. (UF Nos. 57, 58; Pltf’s Depo. at 73:17-74:2.) Plaintiff did not complete her assigned rooms on April 4, 2016 and left six of her assigned rooms dirty. (UF Nos. 59, 60; Pltf’s Depo. at 74:5-8, 76:8-11; Exh. H [April 4, 2016 Associate Discipline Notice].) At the end of her shift, Plaintiff was summoned through her supervisor Amelia Torres to report to Jennifer Raleigh to discuss Plaintiff’s failure to complete her work. (UF No. 61; Pltf’s Depo. at 76:8-19, 77:4-12.) Torres went with Plaintiff to meet Raleigh, who showed Plaintiff the dirty rooms and asked why they had not been cleaned, noting it was not the first time Plaintiff had failed to complete her rooms. (UF No. 63; Pltf’s Depo. at 77:20-22.) Plaintiff claims she tried to explain that she was working slowly because she was hurt, but was not able to do so because Raleigh was “very angry.” (UF No. 64; Pltf’s Depo. at 77:13-78:3; Exh. Q, p. 6, No. 203.1 [Pltf’s Responses To Form Rogs, Set 1.]) Plaintiff was also unable to “explain to [Raleigh] that I was afraid of [reinjuring myself] and that’s why I was working slowly.” (UF No. 65; Pltf’s Depo. at 78:2-3.)

Raleigh issued an Associate Discipline Notice, indicating that Plaintiff failed to complete her assigned work on March 19, 2016 and on April 4, 2016. (UF No. 66; Pltf’s Depo. at 74:9-75:9; Exh. H [April 4, 2016 Associate Discipline Notice].) Plaintiff refused to sign the Associate Discipline Notice. (UF No. 67; Pltf’s Depo. at 74:9-19; Exh. H [April 4, 2016 Associate Discipline Notice].) After the meeting, Plaintiff went home. (UF No. 68; Pltf’s Depo. at 85:9-11.)

The next day, on April 5, 2016, Plaintiff returned to work for a morning shift, but did not tell anyone that she was still experiencing pain. (UF No. 69; Pltf’s Depo. at 85:12-25.) Before lunchtime, Plaintiff was summoned to Human Resources. (UF No. 71, 72; Pltf’s Depo. at 86:6-14.) When asked how she was feeling by the Human Resources employee(s), Plaintiff reported that she was “feeling better,” that there “was a little pain,” that Plaintiff was taking medication, and that “pain was less.” (UF No. 73; Pltf’s Depo. at 86:14-17.) Plaintiff was then advised that she was being terminated. (UF No. 74; Pltf’s Depo. at 86:20-23.) During this meeting, Plaintiff did not indicate that she had been unable to complete her work because her back was supposedly hurting. (UF No. 75; Pltf’s Depo. at 88:6-13.)

Defendant’s evidence shows that Plaintiff was cleared by her physician to return to work with no restrictions. (Def’s Exh. G [March 28, 2016 Patient Status Report].) Indeed, that Patient Status Report indicates: “WORK STATUS: FULL DUTY WITH NO RESTRICTIONS AS OF TODAY,” and ‘DISPOSITION: DISCHARGED FROM CARE WITH NO PERMANENT LIMITATION OR IMPAIRMENT. NO FUTURE MEDICAL.” (Id.)

Although she testified that she attempted to tell Jennifer Raleigh why she was unable to complete all her rooms, but that Raleigh did not want to hear it, Plaintiff testified that she was “afraid,” and that is why she was working slowly. (See Plaintiff’s Depo. at Page 78:2-3.) Plaintiff did not testify that she was actually experiencing pain, which caused her to work slowly—only that she was working slowly as a precaution. Plaintiff did not testify that she aggravated her lumbar strain while working. In this regard, working slowly to avoid experiencing pain would not qualify as a “disability.” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 348-49.)

Although she generally alleges that she suffers pain as a result of the condition, pain alone without some corresponding limitation on activity is insufficient to establish a disabling impairment. (Citations omitted.)

We recognize that, while the FEHA states that the employee's disease, disorder, or condition need only “limit” a major life activity (see § 12926, subd. (k)(1)(B), (k)(1)(B)(ii)), the ADA requires that the limitation be substantial (see 42 U.S.C. § 12102(2)(A); Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022–1031 [130 Cal. Rptr. 2d 662, 63 P.3d 220]). That difference aside, the point in Gearhart is applicable here: Pain alone does not always constitute or establish a disability. (Citations omitted.) An assessment must be made to determine how, if at all, the pain affects the specific employee. In this case, the pain and numbness did not make work difficult for Arteaga.

Similarly, as the United States Supreme Court has explained: “It is insufficient for individuals attempting to prove disability status under [the ADA] to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those ‘claiming the Act's protection … to prove a disability by offering evidence [concerning] the extent of the limitation [caused by their impairment] in terms of their own experience … .’ … That the Act defines ‘disability’ ‘with respect to an individual,’ 42 U.S.C. § 12102(2), makes clear that Congress intended the existence of a disability to be determined in such a case-by-case manner. … ‘The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.’ … 

(Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 348 [bold emphasis added].)

Accordingly, Defendant has met the initial burden of demonstrating that Plaintiff was not “disabled” at the time of her termination. The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists.

Plaintiff argues that Plaintiff had a record or history of a disability, and had a condition that may become disabling in the future, even if the condition has no present disabling effect. (Gov. Code §§ 12926(m)(3) – (5).) However, as discussed above, Plaintiff had been cleared to return to work with no restrictions. (Def’s Exh. G [March 28, 2016 Patient Status Report].)

Thus, as far as Defendant knew, Plaintiff’s lumbar strain no longer limited her ability to work, so it was only a temporary disability: “Given the temporary nature of Winarto's injuries and work restrictions, the fact that Toshiba had been given two notes from doctors was not enough to prove that Toshiba perceived Winarto to be disabled. Thus, the district court did not err in reversing the jury's verdict for disability discrimination under the FEHA. We affirm.” (Winarto v. Toshiba Am. Elecs. Components, Inc. (9th Cir. Cal. 2001) 274 F.3d 1276, 1291.) Plaintiff does not cite any evidence that she notified Defendant that she had re-aggravated her lumbar strain.

Indeed, Plaintiff’s Additional Fact (“AF”) No. 39 is that after returning to work on April 1, 2016, she continued working “but was afraid of the pain from her injury coming on stronger.” (Pltf’s Depo., at 71:13-24.) Indeed, Plaintiff testified that on April 1, 2016, she didn’t “recall having told a supervisor, but I was working very, like, scared of the pain coming back stronger.” As discussed above, Plaintiff working slowly as a precaution to avoid experiencing pain would not qualify as a “disability.”

Plaintiff also claims at AF No. 41 that as of April 4, 206, she was still in pain. She cites her deposition testimony at Page 80:18-24 and 82:6-9, but Plaintiff actually testified that she was working slowly because she “was afraid of reinjuring it or something.” (Page 80:18-24.) Although Plaintiff testified that she was hurting when she had the meeting with Raleigh (Page 82:6-9), Plaintiff did not testify that she attempted to tell Raleigh that she had hurt herself and that is why she could not finish cleaning all of her assigned rooms. Rather, as noted above, Plaintiff testified that she was working slowly out of fear of re-aggravating her injury, i.e., as a precaution to avoid pain. As noted, pain itself which does not limit a major life activity does not constitute a disability. (Arteaga, supra, 163 Cal.App.4th at 348.) Thus, working slowly to avoid pain, would not constitute a disability.

Moreover, Defendant was informed that Plaintiff was cleared to work without restrictions, and Defendant was not required to read Plaintiff’s mind as to her inability to work, despite the lack of restrictions. (Arteaga, supra, 163 Cal.App.4th at 349.)

Last, Arteaga complains that Brink's discriminated against him by not transferring him to another position. But “[a]n employee cannot demand clairvoyance of his employer.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443 [60 Cal. Rptr. 3d 359].) First, the employee has a duty to inform the employer that he has a disability. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 [37 Cal. Rptr. 3d 899].) “ ‘ “[A]n employer [is not] ordinarily liable for failing to accommodate a disability of which it had no knowledge.” ’ ” (King, at p. 443.) Brink's had no knowledge of a disability because, as we have explained, Arteaga did not have one. The company eventually learned that Arteaga had pain and numbness, but those symptoms did not interfere with the performance of his job. Nor did Arteaga have an alleged disability that was obvious or visible, such as blindness or paralysis. (See Williamson v. International Paper Co. (S.D.Ala. 1999) 85 F. Supp. 2d 1184, 1195; Rogers v. CH2M Hill, Inc. (M.D.Ala. 1998) 18 F. Supp. 2d 1328, 1334.) Second, “ ‘ “[t]he employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. …” ’ … ‘It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.’ ” (King, at p. 443, italics added, citation omitted.) Arteaga waited at least a year, possibly two, to notify Brink's of his alleged disability, and his request for a job transfer—a demotion to a guard position—was based on his desire to avoid responsibility for shortages, not on his physical condition. 

(Arteaga, supra, 163 Cal.App.4th at 349.)

Plaintiff’s AF No. 37 is that she testified at her deposition that she had no recollection of a doctor clearing her of restrictions as of March 28, 2016. (Pltf’s Depo., at 96:18-20.) However, the fact that Plaintiff did not recall this does not negate the documentary evidence reflecting such clearance. (Def’s Exh. G [March 28, 2016 Patient Status Report].)

Plaintiff has failed to meet her burden of demonstrating that a triable issue of fact exists.

The motion for summary adjudication is properly granted on this ground.

Moreover, even if Plaintiff qualified as “disabled” for purposes of the FEHA, Defendant presents evidence that there was a legitimate, non-discriminatory reason for Plaintiff’s termination—her performance deficiencies which existed before her alleged injury, and which continued regardless of her injury.

The McDonnell Douglas framework is modified in the summary judgment context. In a summary judgment motion in “an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 [73 Cal. Rptr. 3d 240], citing Guz, supra, 24 Cal.4th at p. 357.) Defendants here presented evidence that Serri was terminated for legitimate reasons that were “unrelated to unlawful discrimination.” (Hicks, at p. 1003.)

[I]f nondiscriminatory, [the employer's] true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer's proffered reasons supports their credibility … , the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Guz, supra, 24 Cal.4th at p. 358, original italics.) Examples of legitimate reasons are a failure to meet performance standards (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1149 [29 Cal. Rptr. 3d 144]) or a loss of confidence in an employee (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 352 [77 Cal. Rptr. 3d 654]).

If the employer meets its initial burden, the burden shifts to the employee to “demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [128 Cal. Rptr. 2d 660] (Cucuzza).)

In Guz, the Supreme Court emphasized that “the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at [*862]  p. 361, fn. omitted.) It is not sufficient for an employee to make a bare prima facie showing or to simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004 [67 Cal. Rptr. 2d 483] (Hersant); Wallis v. J.R. Simplot Co. (1994) 26 F.3d 885, 890; Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595–596 [15 Cal. Rptr. 2d 660].) Rather it is incumbent upon the employee to produce “substantial responsive evidence” demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer. (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039 [272 Cal. Rptr. 264]; Martin, 29 Cal.App.4th at p. 1735.)

(Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861-62 [bold emphasis added].)

Defendant’s evidence is that Plaintiff had a history of being unable to complete her assigned work, which began shortly after her employment and was unrelated to any medical condition, disability, or injury. (UF Nos. 11, 12; Pltf’s Depo. at 31:1-9, 33:15-34:2, 108:6-109:5; Depo. of Amelia Torres at 64:23-65:20, 78:17-21.) When Plaintiff’s supervisor noticed that Plaintiff was behind schedule, Plaintiff’s supervisor would verbally counsel Plaintiff and provide training on how Plaintiff may be able to do her work faster and better. (UF No. 14; Pltf’s Depo. at 34:6-17.) Plaintiff was repeatedly re-trained on how to clean and complete her room assignments. (UF No. 15; Torres Depo. at 80:16; Pltf’s Depo. at 54:14-55:10.)

Plaintiff’s difficulties with completing her room-cleaning assignments include the following:

(1) On October 14, 2015, Plaintiff failed to clean a room to standard, leaving a condom in a drawer to be discovered by the next guest. (UF No. 16; Pltf’s Depo. at 112:13-18.) On October 21, 2015, Plaintiff received an “Associate Discipline Notice” for failing to properly clean a hotel room on October 14, 2015. (UF No. 17; Pltf’s Depo. at 40:11-41:14; Exh. C [October 15, 2015 Associate Discipline Notice]. Plaintiff met with her second level supervisor Jennifer Raleigh to discuss this October 21, 2015 Notice. (UF No. 18; Pltf’s Depo. at 40:11-23.)

(2) On December 30, 2015, Plaintiff failed to clean three rooms she was assigned and on January 5, 2016, she received an Associate Discipline Notice dated December 31, 2015. (UF Nos. 19, 20; Pltf’s Depo. at 45:9-47:1, 50:10-17, 53:20-22; Exh. E [December 31, 2015, Associate Discipline Notice].) This January 5, 2016 Notice noted that Plaintiff failed to clean three of her assigned rooms on December 30, 2015. (UF No. 21; Pltf’s Depo. at 46:5-23; Exh. E [December 31, 2015, Associate Discipline Notice].) On January 5, 2016, Plaintiff received an Associate Performance Review dated November 14, 2015. (UF No. 22; Pltf’s Depo., 42:21-43:13; Exh. D [November 14, 2015 Associate Performance Review].) On 4 of the 8 different categories, Plaintiff’s performance was “Marginal/Unsatisfactory,” including for “QUALITY/QUANTITY OF WORK.” (UF No. 25; Exh. D [November 14, 2015 Associate Performance Review].) Plaintiff’s performance was “Competent/Meets Requirements” in the other four categories. (UF No. 26; Exh. D [November 14, 2015 Associate Performance Review].) The Performance Review indicated that Plaintiff “needs to improve in cleaning our rooms more efficiently. She has not shown to be consistent in cleaning her assignments.” (UF No. 27; Pltf’s Depo. at 43:22-44:4; Exh. D [November 14, 2015 Associate Performance Review].)

Plaintiff met with Raleigh to discuss the January 5, 2015 Associate Performance Review. (UF No. 28; Pltf’s Depo. at 42:21-43:13.) They discussed Plaintiff’s failure to finish her assignments within the allotted time. (UF No. 29; Pltf’s Depo. at 44:19-22.)

The foregoing performance deficiencies were cited by Defendant before Plaintiff was injured on the job.

On March 19, 2016 (before Plaintiff’s injury), Plaintiff did not clean two of her assigned rooms. However, this failure was not addressed in writing until the April 4, 2016 Associate Discipline Notice.(UF No. 30; Pltf’s Depo. at 81:13-15; Exh. H [April 4, 2016 Associate Discipline Notice].)

As recounted above regarding the discussion as to whether Plaintiff was “disabled” for purposes of the FEHA, Plaintiff was injured on March 21, 2016, continued to work and did not report the incident on that day. On March 22, 2016, Plaintiff was placed on modified duty for six days, but was placed on leave, and on March 28, 2016, Plaintiff was cleared to return to regular duty without restrictions. Although Plaintiff returned to work on April 1, 2 and 3, 2016, she did not tell anyone she was hurting on those days.

On April 4, 2016, Plaintiff did not complete here assigned rooms and left six of her assigned rooms dirty. At the end of her shift, she was summoned to report to Raleigh to discuss Plaintiff’s failure to complete her work. Although Plaintiff could not finish her explanation to Raleigh, who was very angry, as discussed above, Plaintiff testified that she was working slowly because she was afraid of re-injuring herself. Raleigh issued an Associate Discipline Notice indicating that Plaintiff failed to complete her assigned work on March 19, 2016 and on April 4, 2016. Plaintiff refused to sign the Associate Discipline Notice. After the meeting, Plaintiff went home.

The next day, on April 5, 2016, Plaintiff returned to work for a morning shift, but did not tell anyone that she was still experiencing pain. (UF No. 69; Pltf’s Depo. at 85:12-25.) Before lunchtime, Plaintiff was summoned to Human Resources. (UF No. 71, 72; Pltf’s Depo. at 86:6-14.) When asked how she was feeling by the Human Resources employee(s), Plaintiff reported that she was “feeling better,” that there “was a little pain,” that Plaintiff was taking medication, and that “pain was less.” (UF No. 73; Pltf’s Depo. at 86:14-17.) Plaintiff was then advised that she was being terminated. (UF No. 74; Pltf’s Depo. at 86:20-23.) During this meeting, Plaintiff did not indicate that she had been unable to complete her work because her back was supposedly hurting. (UF No. 75; Pltf’s Depo. at 88:6-13.)

Defendant’s Discipline Policy

At all relevant times, Defendant’s policy regarding employees exhibiting poor performance was to provide one to three written warnings before a final warning is recommended. (UF No. 76; Raleigh Depo. at 41:6-11.) The General Manager, Imran Ahmed, had to approve all terminations, and his practice was to terminate employees after two written warnings. (UF Nos. 77, 78; Depo. of Imran Ahmed, at 35:25-36:8, 37:13-15, 38:6-7.) A final warning is issued once it is evident an employee may not continue working for defendant. (UF No. 79; Raleigh Depo., at 41:12-24.) Once a final warning has issued there is no opportunity for the employee to improve his or her performance where there is a pattern of the employee continuously performing unsatisfactory work or failing to complete assignments in a timely manner. (UF No. 80; Raleigh Depo., at 41:25-42:11.) Pursuant to Defendant’s practices at all relevant times, unrelated performance infractions could relate to the same chain of progressive discipline. (UF No. 81; Raleigh Depo., at 134:23-135:10.) At all relevant times, pursuant to Defendant’s policies and practices, an employee would be terminated upon recommendation from the department head and Human Resources, and approval by the General Manager. (UF No. 82; Ahmed Depo., at 18:5-191:1.)

The individuals involved in the decision to separate Plaintiff were Jennifer Raleigh (Plaintiff’s department head), Danielle Engh (the Human Resources Manager), and Imran Ahmed (the General Manager). (UF No. 83; Raleigh Depo., at 111:7-113:1; Ahmed Depo., at 18:5-19:1, 46:24-47:9; Depo. of Danielle Engh, at 29:1-4.) After meeting with Plaintiff on April 4, 2016 to discuss her failure to complete her assigned tasks, Raleigh took the related Associate Discipline Notice to Engh in Human Resources, pursuant to Defendant’s standard practices. (UF No. 84; Raleigh Depo., at 110:11-111:10.) When meeting with Engh, Raleigh believed that Plaintiff should be terminated because Raleigh believed there would be “more of the same” performance problems if Plaintiff continued working for Defendant. (UF No. 85; Raleigh Depo. at 112:1-113:1.) Raleigh did not consider Plaintiff’s performance issues to be attributable to any injury or medical condition because Plaintiff had been medically cleared to perform fully duty assignments back on March 28, 2016, and because Plaintiff had consistent performance issues before her injury. (UF No. 86; Raleigh Depo., at 113:8-23.) The only information Raleigh relied upon in making her recommendation that Plaintiff be terminated was the information contained in the April 4, 2016 write-up, which indicated that Plaintiff had multiple previous warnings and had been previously re-trained. (UF No. 87; Raleigh Depo., at 116:12-25.)

Defendant’s reason for terminating Plaintiff was her inability to complete her work assignments during her shift. (UF No. 88; Raleigh Depo., at 112:23-113:1, 147:9-18.) Defendant maintains that Plaintiff was not terminated because of her injury, because she reported an injury, or because she used medical leave. (UF No. 89; Raleigh Depo., at 147:9-18; Engh Depo., at 62:4-7.)

The foregoing evidence is sufficient to establish that Plaintiff had work performance deficiencies prior to her injury, and her post-injury performance deficiency was part of her performance history which provided a legitimate, non-discriminatory reason for her termination. Accordingly, Defendant has met its initial burden, and the burden shifts to Plaintiff to demonstrate that a triable issue of material fact exits as to pretext.

To overcome summary judgment/summary adjudication once an employer demonstrates a legitimate, nondiscriminatory reason for the termination, the employee must offer substantial evidence to raise a triable issue as to whether the proffered reason was untrue or pretextual and that discrimination was the real reason for the termination.

(Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834-35; Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.)

When the defendant moving for summary judgment produces substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action, the burden shifts to the plaintiff to prove intentional discrimination. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 [105 Cal. Rptr. 2d 652] (Morgan).) The plaintiff must “ ‘ “offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” ’ [Citation.] An employee in this situation can not ‘simply show the employer's decision was wrong, mistaken, or unwise. Rather, the employee “‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [asserted] non-discriminatory reasons.” [Citations.]’ [Citations.]” [Citation.]’ ” (Id. at p. 75.)

“ ‘[T]he plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” ’ [Citation.] Circumstantial evidence of ‘ “pretense” must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate’ on an improper basis. [Citations.] With direct evidence of pretext, ‘ “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” [Citation.] The plaintiff is required to produce “very little” direct evidence of the employer's discriminatory intent to move past summary judgment.’ [Citation.]” (Morgan, supra, 88 Cal.App.4th at pp. 68–69, fn. omitted.) “ Direct evidence is that which, “if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption.” [Citations.]’ ” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1147 [29 Cal. Rptr. 3d 144].) Direct evidence may take the  [*835]  form of admissions by a decision maker that the adverse employment action was taken because of the employee's membership in the protected class. (Ibid.)

(Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834-35 [bold emphasis and underlining added].)

The plaintiff must do more than raise the inference that the employer's asserted reason is false. “[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” (St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 515 [125 L. Ed. 2d 407, 113 S. Ct. 2742].) If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer's true reason was discriminatory, the employer is entitled to summary judgment. (Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203.)

(Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 [italics in original, bold emphasis added].)

Merely demonstrating that a decision to terminate was wrong, mistaken or unwise is insufficient to demonstrate pretext. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.)

‘The [employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] …’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005.) 

(Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.)

Notably, temporal proximity between an employee’s disclosure of disability and the subsequent termination, by itself, is insufficient to raise a triable issue of material fact once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination, especially where the employee’s performance was criticized prior to the disability. (Arteaga, supra, 163 Cal.App.4th at 353-55.)

First, Arteaga contends he was terminated so soon after disclosing his “physical disability”—less than a week—that the timing, by itself, raises a dispute as to the company's true motivation. Not so. Because the employee's burden of establishing a prima facie case under McDonnell Douglas is fairly minimal, the temporal proximity between an employee's disclosure of his symptoms and a subsequent termination may satisfy the causation requirement at the first step of the burden-shifting process. (Citation omitted.) But temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination. (Citations omitted.) This is especially so where the employer raised questions about the employee's performance before he disclosed his symptoms, and the subsequent termination was based on those performance issues. (Citations omitted.) It follows that temporal proximity, by itself, does not support a finding of pretext here. “Standing alone against Defendant's strongly supported legitimate reason for terminating [plaintiff], temporal proximity does not amount to more than a scintilla of evidence of [discrimination].” (Padron v. BellSouth Telecommunications, Inc. (S.D.Fla. 2002) 196 F. Supp. 2d 1250, 1257, affd. mem. (11th Cir. 2003) 62 Fed.Appx. 317.) This is not to say that temporal proximity is never relevant in the final step of the McDonnell Douglas test. In the classic situation where temporal proximity is a factor, an employee has worked for the same employer for several years, has a good or excellent performance record, and then, after engaging in some type of protected activity—disclosing a disability—is suddenly accused of serious performance problems, subjected to derogatory  [*354]  comments about the protected activity, and terminated. In those circumstances, temporal proximity, together with the other evidence, may be sufficient to establish pretext. (See, e.g., Shirley v. Chrysler First, Inc. (5th Cir. 1992) 970 F.2d 39, 42–44; Moss v. Bluecross, Blue Shield of Kansas, Inc. (D.Kan. 2008) 534 F. Supp. 2d 1190, 1202–1204.) But that is not this case. Before Arteaga disclosed his symptoms, his performance had long been the subject of criticism, he had been suspended on one occasion, and he knew Brink's was already investigating a shortage on one of his runs. After the disclosure, no one made any negative remarks about his condition.

(Arteaga, supra, 163 Cal.App.4th at 353-55 [bold emphasis added].)

Plaintiff argues that Defendant did not follow its progressive discipline policy for performance-based issues not involving gross misconduct, and that she was rarely counseled on her performance when she did not complete here assigned rooms and received written warnings, nor does she recall receiving retraining as it states in the final warning. (Opp. Fact No. 11; Raleigh Depo., at 77:21-78:22 and Exh. 4 thereto [January 5, 2016 Associate Discipline Notice]; Torres Depo., at 33:14-15; Pltf’s Depo., at 84:7-17, 95:10-13 and Exh 8 thereto [April 4, 2016 Associate Discipline Notice].) Raleigh testified that she would have documented if Plaintiff had not finished cleaning assigned rooms on any shifts other than March 19, 2016 and April 4, 2016 in the final warning. (Opp. Fact No. 11; Raleigh Depo., at 101:20-103:6 and Exh. 7 thereto [April 4, 2016 Associate Discipline Notice].) Raleigh had no explanation for why she did not prepare a written warning to give to Plaintiff on March 19, 2016 for not completing her rooms, and she admitted that issuing a write up two or three weeks after the alleged conduct rather than the same day may be a deviation from company policy. (Additional Fact (“AF”) No. 49; Raleigh Depo., at 44:19-45:19, 109:20-110:5.)

Engh, the HR Manager (UF No. 7), testified that she would have expected Raleigh to document that Plaintiff was having consistent problems finishing her assigned rooms on her written warning and assign a supervisor to help Plaintiff clean rooms in conformance with common practice if in fact Plaintiff had a consistent problem finishing all of her assigned rooms, but Engh did not know if Raleigh took any of the steps. (Opp. Fact No. 11; AF No.50; Engh Depo., at 38:8-23 and Exh. 4 thereto [January 5, 2016.] Engh testified that the progressive discipline process would start with a coaching or counseling and then the company would go through three steps, and potentially even more, to get the employee to correct the behavior depending on the timeframe within which the behavior was occurring. (AF No. 18; Engh Depo., at 34:6-18.) Engh testified that it would not make sense to terminate an employee after she received a final warning without giving the employee an opportunity to improve the performance unless the situation involved gross misconduct. (UF No. 19; AF No. 61; Engh Depo., at 34:24-36:14, 48:2-49:17, 56:13-16.) Engh testified that the only reason a final warning would be given without a period for improvement would be because the final warning is a suspension, which would be indicated on the document of the final warning. (UF No. 20; Raleigh Depo., at 42:1-43:8.)

Engh’s testimony that Plaintiff’s termination did not make sense to her goes to whether the termination decision was wrong or mistaken in Engh’s judgment. Again,

demonstrating that a decision to terminate was wrong, mistaken or unwise is insufficient to demonstrate pretext. (Wills, supra, 195 Cal.App.4th at 160.)

Moreover, the failure to follow company policies does not rise to the level of substantial evidence of pretext sufficient to avoid summary judgment if the inference of discrimination or retaliation would be speculative. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 77.) Here, Plaintiff’s evidence that the progressive discipline policy was not followed in leading to Plaintiff’s termination does not give rise to more than a speculative inference of discrimination or retaliation. This is so especially because, as discussed above, Plaintiff had been cited for performance deficiencies prior to her injury.

Lam In these cases, the logical nexus between the employer's violation of its policies and the inference of discrimination is clear. In the present case, appellant is not alleging a violation of any antidiscrimination policy but of the preferential rehire policy. Assuming the policy required that all former employees with preferential rehire rights be interviewed for any position for which they applied, regardless of the applicant's resume, violation of such a policy does not so readily support an inference of discrimination or retaliation. Here, the uncontradicted evidence was that appellant's resume demonstrated an absence of the experience deemed necessary by the department to which he was applying. In this context, any inference of discrimination or retaliation from the failure to interview would be speculative and certainly does not rise to the level of the substantial evidence of pretext required to avoid summary judgment. (Horn, supra, 72 Cal. App. 4th at p. 807; Godwin v. Hunt & Wesson, Inc., supra, 150 F.3d at p. 1222.)

(Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 77.)

Even though the April 4, 2016 final warning only referenced the March 19, 2016 and April 4, 2016 failures to finish cleaning assigned rooms, as discussed above, Defendant also submitted evidence that Plaintiff received Associate Discipline Notice on October 21, 2015 for leaving a condom in a drawer to be discovered by a guest, and another Associate Discipline Notice on January 5, 2016 for failing to clean three of her assigned rooms. Also, Defendant’s evidence was that the November 14, 2015 Associate Performance Review noted that Plaintiff “needs to improve in cleaning our rooms more efficiently. She has not shown to be consistent in cleaning her assignments.”

Plaintiff argues that she was terminated the day after she received the final warning, which was in violation of Defendant’s progressive discipline policy for performance-based issues not involving gross misconduct. Raleigh testified that after giving the final warning to HR, she recommended that Plaintiff be suspended because it did not seem like Plaintiff was going to try to improve her work performance based on her April 4, 2016 conversation with Plaintiff. (AF No. 53; Raleigh Depo., at 123:15-124:22.) Notably, Raleigh testified that she recommended suspension, not termination. Also, the April 4, 2016 Associate Discipline Notice (final warning) issued by Raleigh noted that “Dalia must show that she wants to do the work.” As Plaintiff points out, the final warning did not indicate she was being suspended (AF No. 47; Raleigh Depo., at 96:8-10 and Exh. 7 thereto [April 4, 2016 Associate Discipline Notice].) Thus, the

evidence shows that Raleigh was not intent on terminating Plaintiff’s employment. Plaintiff must submit evidence that the decision makers who actually decided to terminate Plaintiff’s employment acted with intent to discriminate on the basis of Plaintiff’s disability.

Plaintiff’s AF No. 55 is that, [d]uring the conversation when Raleigh recommended Moreno be suspended, Engh brought up Moreno’s injury and medical leave. (Raleigh Depo., at 123:15-124:22.) However, Raleigh testified that Engh brought up that Plaintiff had recently come back from medical leave to full work duty with no restrictions, so Raleigh did not think that there was a reason why she could not perform her job. (Id.)

Engh testified that the decision to terminate Plaintiff was a collective decision between GM Ahmed, CFO Raza, and the woman at corporate, who is located in another state. (UF No. 58; Engh. Depo., at 28:21-29:14; Depo. of Susanna Gutierrez Depo., at 32:5-15.) Plaintiff’s AF No. 59 is that “Engh testified that [Plaintiff’s] medical leave was ‘definitely spoken about’ during the conversation with Ahmed and Raza regarding [Plaintiff’s] termination and that it was something that was considered in the termination decision.” (Engh Depo., 61:16-62:3.) What Engh actually said at her deposition was that she communicated to Ahmed and Raza that Plaintiff had recently returned from a medical leave at the time she was terminated, but she did not recall if they said anything, only that Plaintiff’s medical leave for an injury was definitely spoken about during the conversation. (Id.) Then Engh testified that Plaintiff was not terminated because she had just returned from medical leave after reporting an injury. (Engh Depo. at 62:4-7.)

Plaintiff’s AF No. 60 is that Ahmed admitted that Engh may have informed him that Plaintiff had suffered a workplace injury and gone on medical leave, and that he was aware Plaintiff had been on medical leave at the time he signed the manual check request for her final check and the final check itself. (AF No. 60; Ahmed Depo., at 45:3-5, 49:14-18, 50:2-5, 50:17-21, 67:25-68:3.) However, Ahmed actually testified that he was not told that Plaintiff had recently gotten off of medical leave when he discussed the termination with Raleigh and Engh after the executive committee meeting. (Ahmed Depo. at 49:14-18.) Ahmed does not remember if the fact that Plaintiff had a workplace injury at any time he was talking with Engh about the decision to terminate Plaintiff. (Ahmed Decl., Page 50:2-5.)

Plaintiff has not presented substantial evidence, other than such evidence which would give rise to speculation as to the decision makers intent, that the decision makers harbored discriminatory intent against Plaintiff on the basis of a disability, especially given her record of performance issues, that she had been cleared to work with no restrictions, and Plaintiff did not clearly indicate to Defendant that she was experiencing pain which made working difficult. The fact that the decisionmakers were aware that Plaintiff had returned from medical leave does not give rise to a reasonable inference, other than speculation (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App. 5th 1150, 1159; Advent, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459), that they were substantially motivated by Plaintiff’s disability in deciding to terminate her, especially if she had been cleared to return to work without restrictions, as discussed above.

The plaintiff's evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal. Rptr. 3d 392, 294 P.3d 49]; Guz, at pp. 353, 357.) The stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory motive. (Guz, at p. 362 & fn. 25.)

Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it “remains subject to careful scrutiny.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [60 Cal. Rptr. 3d 359].) The employee's “subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (Ibid.) The employee's evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, “an actual causal link between prohibited motivation and termination.” (Id. at pp. 433–434.)

(Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App. 5th 1150, 1159 [bold emphasis and underlining added].)

“‘Speculation … is not evidence’ that can be utilized in opposing a motion for summary judgment.” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 99 [20 Cal. Rptr. 3d 1].) Speculation also differs from a reasonable inference. “When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.” (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161 [1 Cal. Rptr. 2d 636].)

(Advent, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459.)

Plaintiff argues that whether there was a pattern of performance deficiencies is a subjective determination by management. (UF No. 21; Raleigh Depo., a 56:6-10, 58:14-22, 59:9-17.) However, the fact that a subjective evaluation was required in making the decision does not undermine a legitimate, nondiscriminatory reason for the decision. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 76, 78.)

"The decisionmaker's motive and state of mind will almost always be in dispute in such cases," but "the plaintiff ' "must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." ' [Citations.]" (Horn, supra, 72 Cal. App. 4th at p. 817.)

(Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 75-76.)

As previously discussed, the fact that appellant's experience and qualifications for the positions were evaluated subjectively does prevent the determination that he was not qualified from being a legitimate, nondiscriminatory reason for his not being hired. (Horn, supra, 72 Cal. App. 4th at p. 817; Addy v. Bliss & Glennon, supra, 44 Cal. App. 4th at p. 218; University of Southern California v. Superior Court, supra, 222 Cal. App. 3d at pp. 1032-1022, 1036-1039.)

(Id. at 78.)

Plaintiff argues that within days of her April 1, 2016 return from medical leave, she was given a final warning on April 4, 2016 because she could not clean as quickly. However, as noted above, temporal proximity, by itself, is insufficient to demonstrate pretext, especially where—as here—there were performance issues noted before the disability was disclosed. (Arteaga, supra, 163 Cal.App.4th at 353-55.)

Plaintiff argues that her final check and the request for the same are dated March 31, 2016, which was before Plaintiff returned from medical leave and before the alleged performance deficiency used as pretext for her termination. (AF Nos. 38, 60; Ahmed Depo., at 59:23-60:3, 67:25-68 and Exhs. 5 and 6 thereto; Raza Depo., at 40:5-19, 46:16-47:3, Exhs. 2 and 5.) However, in the Reply, Defendant explains that the computer generated this March 31, 2016 date, but the request was not made until April 5, 2016—after Plaintiff’s return from leave. Raza explained at his deposition at 41:2-42:3, that the invoice number 040516 reflects the date on which the check was requested, the date 3/31/16 is the date the computer assigns, and Raza signed the check on 4/5/16. Plaintiff does not submit the complete excerpt of the deposition transcript where Raza explains why he matched the signature date with the March 31, 2016 date. (Raza Depo. at 47:22-25.)

Ahmed also explained at his deposition that a manual check issued between the 1st and 9th of any given month will be backdated to the previous month, and that he got the final check on the same day the executive committee recommended termination on April 5. (See Ahmed Depo. at 63:6-64:24, 76:8-77:4.)

Defendant has offered an explanation of why the final check was signed dated March 31, 2016, but that the final check was actually issued on April 5, 2016. Plaintiff does not cite any other evidence to show that the termination decision was actually made on March 31, 2016. This evidence as to the final check is insufficient to raise a triable issue as to pretext.

Plaintiff argues that room attendants did not complete all of their assigned rooms, but nobody other than Plaintiff was terminated for it. Plaintiff cites her own deposition testimony that Clementina Haro told her not to feel bad the day she ended up getting a final warning, because a co-worker had left the same amount of rooms unfinished at the end of her shift the day before. (AF No. 63; Pltf’s Depo., at 98:23-99:21.) However, Plaintiff could not identify this person, and did not testify that this person was not terminated. (Id.)

Plaintiff’s AF No. 64 is that, according to Haro, there were many room attendants who had issues of not finishing all of their assigned rooms during their shift and it was a common problem among the employees she supervised. (Haro Depo., at 17:16-18:6, 19:10-20:4.) Haro never recommended the termination of any employee who did not finish their assigned rooms, because she was a housekeeper before and understood that some rooms are more difficult to clean and take more time than others. (UF No. 64; Haro Depo., at 20:5-18.) Haro estimated that Plaintiff was the same as other employees when it came to finishing her rom assignments. (AF No. 66; Haro Depo., at 22:12-23:11.) Haro did not identify any of these employees. (Haro Depo., at 18:16 – 21.)

Raleigh admitted that there have been about five employees in the last five years who were not terminated even though they had issues completing their room assignments. (AF No. 68; Raleigh Depo., 132:5-133:5, 140:15-18.) Raleigh did not identify all five of these employees. (Id. at 133:3-11.)

Ahmed, Engh and Gutierrez were unable to identify any other housekeepers being terminated because they did not complete assigned rooms. (AF No. 69; Ahmed Depo., 72:11-14; Engh Depo., 52:8-10; Gutierrez Depo., 40:25-41:3.)

Plaintiff fails to cite evidence that the other housekeepers who were not terminated even though they had problems completing room assignments is not substantial evidence that there were similarly situated housekeepers in terms of misconduct who were not disabled but were treated more fairly. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1535-36.)

Duchon v. Cajon Co.

To establish discrimination based on disparate discipline, it must appear “that the misconduct for which the employer discharged the plaintiff was the same or similar to what a similarly situated employee engaged in, but that the employer did not discipline the other employee similarly.” (Lathem v. Department of Children and Youth Services (11th Cir. 1999) 172 F.3d 786, 792.) What appears here is that Employee was a manager while Thomas and Oliver were his subordinates. Further, Mistry concluded that they engaged in  [*1536]  some different conduct. While Oliver and Employee both told inappropriate jokes, Mistry recommended only that Oliver be given a written warning for making intentional misrepresentations in the investigation. “Different types and degrees of misconduct may warrant different types and degrees of discipline … .” (Burke-Fowler v. Orange County, Fla. (11th Cir. 2006) 447 F.3d 1319, 1325; cf. Conward v. Cambridge School Committee (1st Cir. 1999) 171 F.3d 12, 21.) No inference of discrimination reasonably arises when an employer has treated differently different kinds of misconduct by employees holding different positions.

(McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1535-36.)

For the foregoing reasons, Plaintiff has failed to demonstrate that a triable issue of material fact exists as to pretext.

This provides another basis for summary adjudication as to the first cause of action.

For the foregoing reasons, the motion for summary adjudication as to Issue No. 1 re: the first cause of action is GRANTED.

SECOND CAUSE OF ACTION – RETALIATION IN VIOLATION OF FEHA

2. Issue No. 2: “Plaintiff Cannot Prevail On Her Second Cause of Action For Retaliation As A Matter Of Law.”

Plaintiff alleges that she engaged in the protected activities of requesting accommodations and complaining about and protesting Defendant’s discriminatory conduct towards Plaintiff based upon her disability and engagement in a protected activity. (Complaint, ¶ 44.) Defendant allegedly retaliated against Plaintiff and terminated her employment for attempting to exercise her protected rights. (Id. at ¶ 47.)

The FEHA prohibits retaliation for requesting accommodation whether or not the request was granted. (Gov. Code, § 12940(m)(2).)

[T]he McDonnell Douglas test applies in evaluating the propriety of summary judgment on [a] retaliation claim. (See Flait v. North American Watch Corp. (1992) 3 Cal. App. 4th 467 [4 Cal. Rptr. 2d 522]; Addy v. Bliss & Glennon, supra, 44 Cal. App. 4th at pp. 215-217.) In a retaliation case, the McDonnell Douglas test "require[s] that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant articulate a legitimate nonretaliatory explanation for its acts, and (3) the plaintiff show that the defendant's proffered explanation is merely a pretext for the illegal termination. . . . [P] To establish a prima facie case,  [*156]  the plaintiff must show that he engaged in a protected activity, [the] employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action. . . . [P] . . . [P] Pretext may . . . be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination." ( Flait v. North American Watch Corp., supra, 3 Cal. App. 4th at pp. 476-479, citations omitted.) n17

(Sada v. Robert F. Kennedy Med. Ct. (1997) 56 Cal.App.4th 138, 155-56.)

As discussed above re: Issue No. 1, Defendant has demonstrated that a legitimate, non-retaliatory reason for Plaintiff’s termination exists. The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists as to whether this is a pretext for retaliation for requesting accommodations by submitting work restrictions or, as Plaintiff argues in the Opposition, her refusal to sign her final warning.

Plaintiff argues in her Opposition that her termination came about two weeks after her request for reasonable accommodations and the day after she refused to sign her final warning. First, Plaintiff cites no case law that refusing to sign a final warning is a protected activity, nor any fact to show that she expressed to Defendant that she was opposing discrimination when she refused to sign the final warning. Second, the two-week temporal proximity is insufficient to demonstrate pretext, in light of the legitimate, non-retaliatory reason proffered by Defendant. As noted above, temporal proximity between an employee’s disclosure of disability and the subsequent termination, by itself, is insufficient to raise a triable issue of material fact once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination, especially where the employee’s performance was criticized prior to the disability. (Arteaga, supra, 163 Cal.App.4th at 353-55.)

Plaintiff also argues in her Opposition that Engh, Raleigh, Ahmed and Raza were all aware that Plaintiff requested accommodations and was put on medical leave, and Plaintiff’s medical leave was discussed and considered in the termination decision, and the date on Plaintiff’s final check and request for the same demonstrates that Defendant decided to terminate Plaintiff while she was still on medical leave. However, for the reasons discussed above re: Issue No. 1, the evidence Plaintiff presents in support of these arguments is insufficient to raise a triable issue of material fact as to pretext.

Accordingly, the motion for summary adjudication as to Issue No. 2 re: the second cause of action is GRANTED.

THIRD OF ACTION – FAILURE TO PREVENT DISCRIMINATION AND RETALIATION IN VIOLATION OF FEHA

3. Issue No. 3: “Plaintiff Cannot Prevail on the Third Cause of Action For Failure to Prevent Discrimination Because There Was No Discrimination or Retaliation and Because Defendant Took Reasonable Steps To Prevent Discrimination and Retaliation.”

Because Plaintiff’s first cause of action for disability discrimination and second cause of action for retaliation fail, Plaintiff’s third cause of action for failure to prevent discrimination and retaliation in violation of FEHA also fail. (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166.)

Where, as here, a plaintiff cannot establish a claim for discrimination, the employer as a matter of law cannot be held responsible for failing to prevent same: “‘[T]here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen … .’” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288–289 [73 Cal. Rptr. 2d 596].)

On appeal, Featherstone does not dispute that her failure to prevent claim is entirely derivative of her disability discrimination claim. Because Featherstone cannot establish her underlying cause of action for disability discrimination, she cannot maintain a derivative claim for violation of section 12940, subdivision (k). Accordingly, the trial court properly granted judgment as a matter of law on Featherstone's failure to prevent discrimination claim.

(Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166.)

Accordingly, the motion for summary adjudication as to Issue No. 3 re: the third cause of action is GRANTED.

FOURTH CAUSE OF ACTION – FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS IN VIOLATION OF FEHA

AND

FIFTH CAUSE OF ACTION – FAILURE TO ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF FEHA

4. Issue No. 4: “Plaintiff Cannot Prevail on the Fourth or Fifth Causes of Action Regarding Accommodations and the Interactive Process Because Plaintiff Was Not Disabled and Was Granted All Requested Accommodations.”

“[T]he FEHA imposes an affirmative duty upon an employer to offer reasonable accommodations to an employee the employer knows to have a covered disability. (Citation omitted.) (Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, 1386 [bold emphasis added].) However, an employer has no affirmative duty to investigate whether an employee has a disability; the employee must tell the employer about her condition, unless the employer’s inferred knowledge of the disability is the only reasonable interpretation of the known facts. (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166-68

Under section 12940, subdivision (m), an employer must provide a “reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Italics added.) An employer's duty to reasonably accommodate an employee's disability is not triggered until the employer [*1167]  knows of the disability. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252–1253 [82 Cal. Rptr. 3d 440] (Avila).)

“Generally, ‘“[t]he employee bears the burden of giving the employer notice of the disability.”’” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 [37 Cal. Rptr. 3d 899].) An employer, in other words, has no affirmative duty to investigate whether an employee's illness might qualify as a disability. “‘“[T]he employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.”’” (Avila, supra, 165 Cal.App.4th at pp. 1252–1253; see Hedberg v. Indiana Bell Telephone Co. (7th Cir. 1995) 47 F.3d 928, 934 [“ADA does not require clairvoyance”].)

[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.’” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887 [58 Cal. Rptr. 3d 729].) For example, in Faust, the Court of Appeal held that the employer was on notice of the plaintiff's disability when a chiropractor wrote to the employer and stated that the plaintiff was “‘unable to perform regular job duties’” and recommended that the plaintiff remain off work. (Ibid.)

While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. ‘Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].’” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237 [66 Cal. Rptr. 2d 830], italics added.) Moreover, “[e]vidence that a decision maker learned of a plaintiff's disability after deciding to take adverse employment action is not probative of whether the decision maker was aware of the plaintiff's disability when he or she made the decision.” (Avila, supra, 165 Cal.App.4th at p. 1251.) In addition, “‘[n]ot every illness qualifies as [a] disability.’” (Id. at p. 1249.) Indeed, federal courts have repeatedly rejected the contention that under the ADA “any condition requiring temporary hospitalization is disabling.” (Burch v. Coca-Cola Co. (5th Cir. 1997) 119 F.3d 305, 317 [citing cases].)

Put simply, unless there is some evidence an employer knows an employee is suffering from a disability, it is impossible for an employee to claim he or she was discharged because of it or that an employer refused to accommodate the disability.” (Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 722 [70 Cal. Rptr. 2d 531], disapproved on other grounds in [*1168]  Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6 [130 Cal. Rptr. 2d 662, 63 P.3d 220].)

. . .

In short, the conclusion that SCPMG was on notice of Featherstone's temporary disability at the time of the resignation is not the only reasonable interpretation of the known and undisputed facts. Because there is more than one reasonable interpretation and because SCPMG first learned that Featherstone suffered from the alleged temporary disability only after she had tendered her resignation and that resignation had been accepted by SCPMG—that is, after Featherstone ceased being a SCPMG employee—the trial court properly granted judgment as a matter of law on Featherstone's accommodation claim.

(Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166-68 [bold emphasis added].)

Likewise, as to a failure to engage in interactive process claim, the employer must know of the disability and the employee must request an accommodation.

Gov. Code § 12940(n) provides that it is a violation of FEHA:

.

(Bold emphasis and underlining added.)

Here, Plaintiff reaggravating her lumbar strain or requiring additional accommodation—despite having been cleared to return to work with no restrictions—is not the only reasonable interpretation of the known and undisputed facts, discussed above at Issue No. 1. Another reasonable interpretation is that Plaintiff was falling into her pre-injury work deficiencies of failing to clean all of her assigned rooms. Thus, knowledge of Plaintiff’s claimed disability is not imputed to Defendant.

Based on the evidence discussed above at Issue No. 1, Plaintiff did not notify Defendant that, despite being cleared to work without restrictions, she was experiencing pain which caused her to work slowly, nor did she request that she be assigned less rooms to permit her to work more slowly.

Plaintiff cites Engh’s deposition testimony that it was a deviation from company policy for Raleigh not to inquire with Plaintiff whether her injury requiring recent medical leave had an effect on her ability to finish her assigned rooms. (AF Nos. 51, 52, 62; Engh Depo., 59:23 – 60:2, 64:11-21, 65:18.) However, Engh testified that “she would assume” that such conversation between Raleigh and Plaintiff regarding the effect of her injury on her ability to finish her rooms should happen. Engh admitted, she was only assuming that Raleigh deviated from company policy, but she did not run housekeeping so she could not be certain what they do. (Engh Depo. at 64:22-1.) Engh did not cite any written company policy to this effect. To the extent the policy conflicts with case law that does not impose upon the employer an affirmative duty to investigate whether an employee has a disability (Featherstone, supra, 10 Cal.App.5th at 1166-68), Engh’s assumption that Raleigh should have discussed whether Plaintiff’s injury was affecting her ability to finish rooms does not create a triable issue of material fact.

Plaintiff argues that Engh testified that the close temporal proximity between Plaintiff being placed on work restrictions and medical leave and her inability to complete her assigned rooms was sufficient by itself to put Defendant on notice that Plaintiff may have had difficulty performing her duties due to her injury. However, as discussed above at Issue No. 1, Plaintiff was cleared to work without restrictions. There is no evidence that Plaintiff was visibly in pain or hobbled, such that the only reasonable inference was that Defendant knew she was disabled.

n22 Typically, an applicant or employee triggers the employer's obligation to participate in the interactive process by requesting an accommodation. (§ 12940, subd. (n).) Although it is the employee's burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation[2]. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability 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. (See Jensen, supra, 85 Cal.App.4th at p. 266; see also Allen v. Pacific Bell (9th Cir. 2003) 348 F.3d 1113, 1115 [ADA].)

(Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54-62 n.22 [bold emphasis and underlining added].)

To the extent that Plaintiff claims in her Opposition that her disability was not reasonably accommodated because she was forced out on medical leave when she could have been performed light duty in the laundry room, she does not plead this in the Complaint. Rather, Plaintiff alleges that she “visited her medical provider and was placed on medical leave for approximately a week” and “[l]ater that same day, Plaintiff informed her supervisor of her medical leave and submitted document evidencing the aforementioned.” (Complaint, ¶ 20.) Thus, Plaintiff alleges that her medical provider placed her on medical leave, not Defendant. Nor does Plaintiff allege that Defendant forced her on medical leave instead of permitting her to perform light duty in the laundry room. Plaintiff cannot create a triable issue by submitting evidence directed to a factual assertion or legal theory not pled in the operative complaint. (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-65.)

To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. (Zavala v. Arce, supra, 58 Cal. App. 4th at p. 926.) If the opposing party's  [*1265]  evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.

(Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-65 [bold emphasis added].)

As such, no triable issue of material fact exists as to whether Plaintiff’s fourth and fifth causes of action have merit.

The motion for summary adjudication as to Issue No. 4 re: the fourth and fifth causes of action is GRANTED.

SIXTH CAUSE OF ACTION – DECLARATORY JUDGMENT

AND

SEVENTH CAUSE OF ACTION – WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

5. Issue No. 5: “Plaintiff Cannot Prevail On Her Sixth Cause of Action For Declaratory Judgment or Seventh Cause of Action For Wrongful Termination, Because They Are Dependent On Plaintiff’s First Two Cause of Action For Discrimination and Retaliation.”

The sixth cause of action seeks a declaration that Defendant discriminated against Plaintiff on the basis of her disability and engagement in protected activity. (Complaint, ¶¶ 80, 81.) Based upon the rulings on the first through fifth cause of action above, Plaintiff is not entitled to such declaratory relief.

The seventh cause of action is based upon the public policy set forth in the FEHA. (Complaint, ¶ 86.) A common law wrongful termination in violation of public policy claim fails if it is based on the public policy set forth in a failed FEHA claim. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1420.) Based upon the rulings above, Plaintiff’s claim for wrongful termination in violation of public policy also fails.

Accordingly, the motion for summary adjudication as to Issue No. 5 re: the sixth and seventh causes of action is GRANTED.

NINTH CAUSE OF ACTION – FAILURE TO PROVIDE REST BREAKS (LABOR CODE § 226.7)

6. Issue No. 6: “There Is No Merit To Plaintiff’s Ninth Cause of Action For Failure To Provide Rest Breaks.”

Plaintiff alleges that Defendant failed and refused to provide Plaintiff with rest periods during her work shifts, and failed to compensate Plaintiff for missed meal periods, as required by Labor Code § 226.7 and the applicable sections of 8 CCR § 11050 and Industrial Welfare Commission Order No. 5-2001. (Complaint, ¶¶ 98 – 100.) Plaintiff alleges that from August 20, 2015 to April 4, 2016, Plaintiff worked approximately 160 separate days without being permitted to take any 10-minute rest breaks. (Id. at ¶ 102.) Plaintiff alleges that Defendant owes Plaintiff $13.80 for each of the 160 days on which rest periods were missed, totaling $2,208.00 plus interest thereon. (Id.)

A rest period mandated by state law, which includes Industrial Welfare Commission wage orders, “shall be counted as hours worked, for which there shall be no deduction from wages.” (§ 226.7, subd. (d).) In general, California employers are required to provide rest periods of a specified minimum duration—e.g., 10 minutes of paid rest for every four hours worked; and for shifts of less than four hours, a 10-minute rest period after three and a half hours. (Tit. 8, §§ 11010–11150, subd. 12(A), 11160, subd. 11(A).) An employer is precluded from requiring an employee to work during a rest period, and an employer that fails to provide such a required rest period “shall pay” each affected employee one hour's pay for each workday the employee was not provided the appropriate rest period. (§ 226.7, subds. (b), (c); see tit. 8, §§ 11010–11150, subd. 12(B), 11160, subd. 11(D).) In the present action, Donohue alleges that, by failing to have a compliant rest period policy, AMN violated section 226.7, subdivision (b), and title 8, section 11040, subdivision 12, which entitled Plaintiffs to recover damages.

(Donohue v. AMN Services, LLC (2018) 29 Cal.App.5th 1068, 1097.)

In Brinker, the California Supreme Court clarified that an employer is required to make uninterrupted meal periods and rest breaks available, but is not obligated to ensure that they are taken. (Brinker, supra, 53 Cal.4th at pp. 1034, 1040–1041.) Additionally, an employer may be liable even when it makes rest and meal breaks available to nonexempt employees, if it also requires them to be available for work during those periods. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1104 [56 Cal. Rptr. 3d 880, 155 P.3d 284] [requirement to provide rest/meal periods implies that employee will “be free of the employer's control during the meal period”]; see also Sotelo, supra, 207 Cal.App.4th at p. 654 [a class may establish  [*1001]  liability “by proving a uniform policy or practice by the employer that has the effect on the group of making it likely that group members will … miss rest/meal breaks”].)

(Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 1000-01 [bold emphasis added].)

An employer may not undermine a formal policy of providing breaks by pressuring employees to perform their duties in ways that omit breaks. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040 (“Brinker”).) On the other hand, “employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.” (Id. at 1040.) If an employer demonstrates that it has a general compliant rest break policy, an employee cannot defeat summary judgment by citing evidence that taking breaks was frowned upon. (Donohue v. AMN Services, LLC (2018) 29 Cal.App.5th 1068, 1097-1099.) Moreover, where an employer has a procedure for employees to report potential rest period violations, and the employee failed to inform the employer of any such violation, the employee cannot create a triable issue as to the employer’s compliant rest break policy. (David v. Queen of Valley Medical Center (2020) 51 Cal.App.5th 653, 662-63.)

Defendant’s UF No. 96 is that at all times relevant, Defendant had a policy that stated, in pertinent part: “California Law requires that employees take a 10-minute uninterrupted rest period every four (4) hours or major portion of four hours. Employees should take their rest periods as close as possible to the middle of each 4 hours work period. No one, including any supervisor, may prevent an employee from taking the uninterrupted 10-minute rest period. In addition, break times may never be added to meal periods to extend the time, nor used to make up for tardiness or leaving work early. [...] Any violation of these rules is a violation of California Law and the policies of Long Beach Marriott. Violation of these rules may result in disciplinary action and up to possible termination. [¶] Please contact HR if you have any questions regarding this regulation.” (Pltf’s Depo., at 35:13-19; Def’s Ex. B [Interoffice Memo dated March 10, 2015 re: Meal and Rest Period Regulations]; Ahmed Decl., ¶ 4.) Plaintiff signed the Meal and Rest Period Regulations Interoffice Memo on August 14, 2015. (UF No. 97; Pltf’s Depo., at 37:15-38:6; Def’s Ex. B [Interoffice Memo dated March 10, 2015 re: Meal and Rest Period Regulations].)

Additionally, where Plaintiff signed, there was an “Employee Acknowledgement of Meal and Rest Period Regulations” which provided: “I certify that I understand these rules concerning rest and meal periods, and that I will fully comply with these rules. I further certify that if for any reason I do not take a rest or meal period that I am entitled to, I will notify my immediate supervisor within 24 hours so that my failure to take rest and/or meal period(s) can be investigated and appropriate corrective action taken. [¶] I certify that I have read and understand this Acknowledgment, that I will comply with these rules, and that I am signing this Acknowledgment freely and voluntarily.” (UF No. 98; Pltf’s Depo., at 35:13- 19; Def’s Ex. B [Interoffice Memo dated March 10, 2015 re: Meal and Rest Period Regulations][underlining in original].)

Plaintiff did not take her rest breaks when she worked morning shifts, and missed rest breaks during her day shift because she “wanted to finish [her] job.” (UF Nos. 102, 13; Pltf’s Depo., at 37:2-12; 38:25-39:5-6, 93:19-21.) Plaintiff never told any of her supervisors that she was not taking her rest breaks. (UF No. 104; Pltf’s Depo., at 36:1-37:1, 38:25-39:3, 93:22-25.) Plaintiff did not report missing her rest breaks “because [she] didn’t feel it was necessary or relevant. [She] wanted to finish [her] job.” (UF No. 105; Pltf’s Depo., at 38:4-39:6.) No one ever prevented Plaintiff or tried to prevent her from taking a rest break. (UF No. 106; Pltf’s Depo., at 94:1-5.)

The foregoing evidence is sufficient to demonstrate that Defendant complied with California law, as it required employees to take the rest break required by law, required employees to notify their supervisor if they failed to take a rest break, and no one tried to prevent Plaintiff from taking her rest breaks. The burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists.

Plaintiff argues that it was impossible to take 10-minute breaks during her morning shifts because of the heavy workload. Room attendants were expected to clean 16 to 17 rooms during an eight-hour morning shift with a 30-minute lunch breach, and it took about 30 minutes to clean each room. Plaintiff argues that room attendants would have to spend approximately 8 to 8.5 hours cleaning rooms during an 8-hour shift, such that the morning schedule failed to build in time for 10-minute breaks. (AF Nos. 70, 71; Raleigh Depo., at 50:16-51:14; Pltf’s Depo., at 35:20-25, 37:8-12, 39:12-14, 93:19-21.) Plaintiff only cites district court cases that this would constitute a violation of the rest break requirement.

However, as noted above, if an employer demonstrates that it has a general compliant rest break policy, an employee cannot defeat summary judgment by citing evidence that taking breaks was frowned upon. (Donohue, supra, 29 Cal.App.5th at 1097-99.) Here, Plaintiff does not even cite evidence that taking breaks was frowned upon or discouraged. Moreover, where an employer has a procedure for employees to report potential rest period violations, and the employee failed to inform the employer of any such violation, the employee cannot create a triable issue as to the employer’s compliant rest break policy. (David , supra, 51 Cal.App.5th at 662-63.)

Because Defendant’s evidence demonstrated that Plaintiff chose not to report when she failed to take a rest break, as she was required to do pursuant to Defendant’s Meal and Rest Period Regulations, she cannot create a triable issue of material fact as to whether Defendant’s Meal and Rest Period Regulations failed to comply with Defendant’s rest period obligations. Plaintiff has failed to meet her burden of demonstrating that a triable issue of material fact exists.

The motion for summary adjudication as to Issue No. 6 re: the ninth cause of action is GRANTED.

EIGHTH CAUSE OF ACTION – FAILURE TO PAY WAGES (LABOR CODE §§ 201, 1182.12, 1194, 1194.2)

7. Issue No. 7: “There Is No Merit To Plaintiff’s Eighth Cause of Action For Failure To Pay Wages Which Must Fail As A Matter of Law.”

Plaintiff’s failure to pay wages due claim is based upon her claim that she was due an additional hour compensation at her regular hourly rate for each day on which she was not provided a statutory rest period. (Complaint, ¶ 94.)

For the reasons discussed above at Issue No. 6, Plaintiff’s claim for compensation for missed rest breaks fails. Additionally, as to regular wages, Plaintiff agreed that the amount set forth in her final check was correct. (UF No. 95; Def’s Exh. N.) Plaintiff does not dispute that this claim is only for compensation for missed rest periods. (Opp. Fact No. 95.)

Accordingly, no triable issue of material fact exists as the eighth cause of action.

The motion for summary adjudication as to Issue No. 7 re: the eighth cause of action is GRANTED.

TENTH CAUSE OF ACTION – WAITING TIME PENALTIES (LABOR CODE §§ 201-203)

8. Issue No. 8: “There Is No Merit To Plaintiff’s Tenth Cause of Action For Waiting Time Penalties As A Matter of Law.”

The tenth cause of action is based upon Plaintiff’s claim that Defendant failed to pay rest period compensation immediately due upon termination, and Plaintiff is entitled to $3,312.00 in wait time penalties. (Complaint, ¶¶ 105, 107.)

As discussed above re: Issues Nos. 6 and 7, Plaintiff’s claim for compensation for missed break period fails.

Accordingly, no triable issue of material fact exists as the tenths cause of action.

The motion for summary adjudication as to Issue No. 8 re: the tenth cause of action is GRANTED.

21st AFFIRMATIVE DEFENSE – AFTER ACQUIRED EVIDENCE

9. Issue No. 9: “Defendant Is Entitled To Judgment In Its Favor On Defendant’s 21st Affirmative Defense Re After Acquired Evidence.”

The after-acquired evidence defense is not a complete defense; it only cuts off damages from the date on which the evidence was discovered. (Salas v. Sierra Chemical Co. Tilkey v. Allstate Ins. Co. (2020) 47 Cal.App.5th 1072, 1104.)

An employer may exercise an after-acquired evidence defense in response to a wrongful termination cause of action. (McKennon v. Nashville Banner Publishing Co. Ibid.) This cuts off damages from the date on which the evidence was discovered. (Salas v. Sierra Chemical Co. .)

(Tilkey v. Allstate Ins. Co. (2020) 47 Cal.App.5th 1072, 1104.)

Accordingly, even if the after-acquired evidence defense applies, the amount of damages to which Plaintiff would be a triable issue of material fact. Defendant is not entitled to summary adjudication as to this affirmative defense.

The motion for summary adjudication as to Issue No. 9 re: the twenty-first affirmative defense is DENIED.

5th AFFIRMATIVE DEFENSE – UNCLEAN HANDS

10. Issue No. 10: “Defendant Is Entitled To Judgment In Its Favor On Defendant’s 5th Affirmative Defense Re Unclean Hands.”

Defendant argues that Plaintiff’s misconduct in failing to take and report rest breaks bars her recovery as to the eighth, ninth and tenth causes of action due to the unclean hands defense.

However, “[p]rinciples of equity cannot be used to avoid a statutory mandate.” (Ghory v. Al-Lahham (1989) 209 Cal.App.3d 1487, 1492.) “The Court agrees that unclean hands Labor Code  (E.D.Cal. 2016) 188 F. Supp. 3d 986, 1000.)

Defendant is not entitled to summary adjudication as to this affirmative defense.

The motion for summary adjudication as to Issue No. 10 re: the fifth affirmative defense is DENIED.


[1]

Gov. Code § 12926.

[2] Given the language of Gov. Code § 12940(n), this “awareness” of a need to consider an accommodation would necessarily hinge upon the employer knowing that the employee suffered from a “known” disability coupled with some type of request for an accommodation from the employee.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where Ruffin Hotel Corporation, Ltd. is a litigant

Latest cases represented by Lawyer ELIHU KAVEH SAM