Case Name: Law v. City of Cupertino
Case No.: 16CV301060

Defendant City of Cupertino (the “City” or “Defendant”) moves for summary judgment in its favor and against plaintiff Cheuk Law (“Plaintiff”).

After full review of the evidence, separate statement and authorities submitted by the parties, the Court makes the following rulings:

The City’s motion for summary judgment is GRANTED.

First, the City meets its initial burden on Plaintiff’s claim for disability discrimination by submitting evidence which establishes that Plaintiff was unable to perform the essential functions of his job as a Senior Account, with or without a reasonable accommodation, and that it had legitimate, non-discriminatory reasons for terminating his employment- specifically, his excessive absenteeism, which was an issue before any issues regarding his mental health arose in connection with his attendance and before he ever disclosed that he would need two weeks off for intensive outpatient therapy, and his unsatisfactory work performance. (The City’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”) Nos. 6-21, 35, 39.) The burden therefore shifts to Plaintiff to “demonstrate a triable issue by producing substantial evidence that [the City’s] stated reasons [for his termination] were untrue or pretextual, or that [the City] acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or otherwise unlawful action.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 553 [internal citations omitted].)

Generally, a plaintiff can prove pretext either (1) indirectly, by showing that the employer’s proffered explanation is unworthy of credence (e.g. because it is internally inconsistent or otherwise unbelievable); or (2) directly, by showing that unlawful discrimination more likely motivated the employer. (Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1194.) An inference of intentional discrimination cannot be drawn, however, solely from proof that the employer’s stated reasons are unworthy of belief: “The pertinent statutes do not prohibit lying, they prohibit discrimination.” (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 361.)

In his effort to demonstrate a triable issue, Plaintiff first takes issue with the City’s assertion that he was incapable of performing the essential functions of his job, arguing that the City has misinterpreted what this means in conflating his physical ability to do the job with his general work performance. The former is the appropriate definition of this element, he argues, while the latter is not. However, Plaintiff cites no authority for this proposition, and given the fact that a prima facie case of disability discrimination requires that a plaintiff demonstrate that he could perform the essential functions of his job with or without reasonable accommodation (see Green v. State of Calif. (2007) 42 Cal.4th 254, 262), it seems clear that whether that plaintiff has the qualifications to perform the non-physical functions of the job, as demonstrated through his actual work performance, is part of the equation. Plaintiff continues that even if this is the case, his performance review was mixed, containing both positive and negative notes, and nowhere in the review was his termination recommended. Instead, he explains, Taitano’s recommendation was to demote him to Account I/II and have him serve a full year probation at that level. (Taitano Decl., Exhibit 16.)

While Plaintiff is correct that the job performance evaluation sent by Taitano to the personnel department on August 26, 2016 did not recommend his firing but instead merely his demotion, it is not accurate to state that the evaluation was mixed. While Taitano did offer some positive critiques of Plaintiff’s job performance, the review was overwhelmingly negative, with Plaintiff scoring in the low to mid-range of most categories and rating him overall as “Improvement Needed.” Further, the mere fact that there is no explanation for why Taitano went from initially recommending in the evaluation that Plaintiff be demoted to deciding to terminate him does not, by itself, evidence pretext. To suggest that the change is tied to his request for leave is purely speculative. Plaintiff certainly offers nothing to suggest that the City’s stated reason for his termination is unworthy of credence, especially given Taitano’s communication to Plaintiff over a month before the termination on July 25, 2016 that his job performance was unsatisfactory, and her statement in her declaration that she advised Plaintiff at that time that she fully supported his decision to look elsewhere for a position that better suited his abilities. (Taitano Decl., ¶ 6.) In other words, during Plaintiff’s probationary employment, the City never departed at any time from its observation that Plaintiff’s job performance was unsatisfactory. The decision to terminate is consistent with this observation.

Plaintiff also maintains that the timing of his termination, just a week after he started his medical leave, is also strong evidence of pretext on the part of the City. This contention, however, is unavailing because, while “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 [McDonell Douglas] burden shifting process,” by itself it 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.” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353 [emphasis in original].) This is especially where, as in this case, the employer “raised questions about the employee’s performance before he disclosed his symptoms, and the subsequent termination was based on those performance issues.” (Id. [emphasis in original].) Plaintiff notes that the City has also cited his alleged “excessive absenteeism” as a basis for his termination and insists that there is a triable issue of material fact as to whether the City considered his most recent leave in August 2016 as part of that calculation. But he offers no evidence to suggest that the City did in fact do so.

Finally, Plaintiff insists that the City’s motion must be denied because at least one of its material facts is disputed- specifically UMF No. 17, which states that Plaintiff missed work on May 24, 2016 to have a procedure. Plaintiff insists that he did in fact work that day. Even if whether Plaintiff worked on May 24th is unclear, this fact has nothing to do with his job performance, which was cited as one of the reasons that he was terminated. Plaintiff has not disputed that his work performance was unsatisfactory. In short, though Plaintiff submits evidence which suggests this particular fact is triable, he does not establish that it is ultimately material to establishing pretext on the part of the City.

Based on the foregoing, the Court finds that Plaintiff has failed to demonstrate a triable issue in connection with his claim for disability discrimination because he has not produced substantial evidence which establishes that the City’s stated reasons for his termination were untrue or pretextual, or that it acted with a discriminatory animus towards him.
Turning to Plaintiff’s remaining causes of action for failure to engage in the interactive process and failure to provide a reasonable accommodation, the Court finds that the City has met its initial burden with respect to these claims. While the Court does not agree with the City’s assertion that Plaintiff did not request a reasonable accommodation because there is no dispute that he requested a leave of absence to attend outpatient therapy (see Law Decl., ¶ 6 and Taitano Decl., ¶ 7) and “[a] term of leave from work can be a reasonable accommodation under FEHA, and, therefore, a request for leave can be considered a request for accommodation under FEHA” (Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 243 [emphasis added]), Plaintiff cannot prevail on these claims given the purpose of the FEHA’s reasonable accommodations requirements, the nature of the accommodation Plaintiff requested and his termination.
An employer is obligated to provide a reasonable accommodation which makes it possible for the employee to perform the essential functions of his or her job unless the accommodation would cause an undue hardship. (Giv. Code, § 12940, subd. (m)(1); Cal. Code Regs., tit. 2, § 11068, subd. (a); see Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.) Although it is true that a finite leave can be a reasonable accommodation under FEHA, it is only so where it is likely that at the end of that leave the employee will be able to perform his or her duties. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) Here, the City’s evidence establishes that it had already determined that Plaintiff could not perform his job duties before he ever requested a reasonable accommodation in the form of a finite leave of absence. Further, because Plaintiff has not established a triable issue with regards to whether his employment was terminated on account of his disability, it is clear that the goal of providing a reasonable accommodation- to enable the individual to perform the essential duties of his or her job- would not be met where the accommodation included a leave of absence and the employer elected to terminate the employee for legitimate, non-discriminatory reasons, as the City did here. Thus, the City was not obligated to engage in the interactive process to provide Plaintiff with a reasonable accommodation given its decision to terminate his employment.