2015-00188447-CU-OE

Bernard Ellis vs. Raley’s

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Schrick, Shaye

The motion of Defendant RALEY’S (“Raley’s”) for an order granting summary judgment or, in the alternative, summary adjudication of issues in its favor and against Plaintiff Bernard Ellis (“Plaintiff”), is granted in part and denied in part as set forth below.

Raley”s moves for summary judgment, and in the alternative summary adjudication, as to all of Plaintiff’s eight causes of action stemming from their former employment

relationship, and separately as to his claim for punitive damages.

Raley’s objections to evidence are ruled upon as follows: De Lima Decl. overruled 1, 2, 5, 6, 7, 8, sustained 3, 4; Ellis Dec. overruled 10, sustained 9; Sustained Exh. K; Telfer Dec. sustained 12, 13.

Plaintiff’s objections to evidence are ruled upon as follows: Beaver Dec. overruled ¶¶ 6, 17, 21, 23, 24, 25, 26, 28, 29, 31; Brown Dec. overruled ¶¶ 12, 16; Madison Dec. overruled ¶¶ 2, 4, 6, 7, 8, 9, and 11.

Raley’s contends that there are no triable issues of material of fact as to Plaintiff’s: (1) first cause of action for failure to engage in the interactive process under FEHA because Raley’s engaged in a timely, good faith interactive process; (2) the second cause of action for failure to reasonably accommodate in violation of the FEHA because Raley’s provided reasonable accommodations and only terminated Plaintiff’s employment after he had been on leave for more than 12 months and communicated to Raley’s that his permanent restrictions prevented him from working; (3) the third cause of action for medical condition discrimination in violation of FEHA because Plaintiff did not suffer from a medical condition, Raley’s did not take an adverse employment action against Plaintiff because he had a medical condition, and Plaintiff cannot overcome Raley’s legitimate, nondiscriminatory reasons for its actions; (4) the fourth cause of action because Plaintiff cannot establish a prima facie case for retaliation for taking medical leave in violation of the California Family Rights Act (the “CFRA”), and Plaintiff cannot overcome Raley’s legitimate, nonretaliatory reasons for its relevant actions; (5) the fifth cause of action for retaliation because Plaintiff cannot establish a prima facie case for retaliation in violation of the FEHA, and Plaintiff cannot overcome Raley’s legitimate, nonretaliatory reasons for its actions; (6) the sixth cause of action because Plaintiff cannot establish a prima facie case for race discrimination in violation of the FEHA, and Plaintiff cannot overcome Raley’s legitimate, nondiscriminatory reasons for its actions; (7) the seventh cause of action because Plaintiff cannot establish a prima facie case for age discrimination in violation of the FEHA, and Plaintiff cannot overcome Raley’s legitimate, nondiscriminatory reasons for its actions; (8) the eighth cause of action for failure to correct unlawful discriminatory or retaliatory conduct in violation of the FEHA because Plaintiff cannot establish that Raley’s engaged in discriminatory or retaliatory conduct; and (9) separately as to Plaintiff’s claim for punitive damages on the grounds that Plaintiff’s underlying FEHA and CFRA causes of action fail for the foregoing reasons and, alternatively, because Plaintiff cannot establish Raley’s liability by clear and convincing evidence.

Raley’s opening brief summarizes the action and the facts from its perspective essentially as follows. Plaintiff claims Raley’s terminated his employment in December 2014 because he had a medical condition (or physical disability), he is African American, he is over the age of 40, he took family and medical leave, he requested reasonable accommodation, and he complained about race. To the contrary, Raley’s contends that the undisputed material facts demonstrate it terminated Plaintiff’s employment consistent with Raley’s policies after engaging in the interactive process

and providing multiple accommodations, and Plaintiff admitted his permanent restrictions prevented him from working at Raley’s after being provided with more than 12 months’ leave. Thus, Raley’s contends that its decision to terminate Plaintiff was reasonable and lawful because of Plaintiff’s “indefinite inability to work.” Raley’s notes as significant to the discrimination and retaliation allegations the fact that the person who made the decision to terminate Plaintiff had no knowledge of Plaintiff’s race, age, or his complaints about FEHA issues when the decision was made. Raley’s also notes in relation to the race and age discrimination claims that it replaced Plaintiff with an African American employee who was in his 40s and continued to employ Plaintiff’s two other Working Foremen colleagues, both of whom were older than Plaintiff. Raley’s asserts that Plaintiff admits Raley’s gave him the schedule and hours he requested, treated him equally in terms of title and pay, and never wrote him up or imposed any other form of discipline. Raley’s states that the only time Plaintiff was denied a promotion was sometime before 2010 when Raley’s selected a different African American employee for the promotion.

Plaintiff opposes each ground of Raley’s motion. Plaintiff argues that Raley’s did not engage in a timely or good faith interactive process because Raley’s only provided a
15 minute unscheduled telephone call to Plaintiff while he was shopping, and Raley’s representative had the wrong job description and made no effort to locate a reasonable accommodation for him. Plaintiff counters Raley’s assertion that it could not accommodate his permanent restrictions, contending that he could have performed the Lead Ripener position soon to be vacant or the second chair Foreman position with assistive equipment and restructuring of his marginal duties. Plaintiff objects to Raley’s characterization of his disability discrimination claim as a medical condition claim, and asserts that it is undisputed he had a disability, he was qualified to perform his job with or without accommodation, and he was terminated because of his disability since he was replaced with a “non-disabled” employee, and he could have returned to work with reasonable accommodation but he was terminated prematurely before his eighteen months of leave expired. Plaintiff’s opposition to the CFRA retaliation claim is unclear, but appears to be based upon a temporal nexus theory that he had a history of protected leave during 2013-2014, but “under the leadership of Bresnahan starting in 2010 the retaliation and discrimination took place.” (Opp., p. 11:16-20.) With respect to his FEHA retaliation claim, Plaintiff argues the claim is shown by Raley’s failure to follow its own leave policy and reasonable accommodation policy. (UF 80-81; 82-85) And, Mr. Hilliker, who was given Mr. Merkel’s lead position over Plaintiff had never made an internal complaint of discrimination. (UF 118)

The following facts are essentially undisputed on the motion, except as specifically noted.

Plaintiff was born in 1961 and began working for Raley’s in 1990. (Defendant Raley’s Separate Statement of Undisputed Material Facts (“UMF”) 1.) At all relevant times. Plaintiff was employed at Raley’s Distribution Center (“DC”) in Sacramento, where Raley’s maintained policies and provided training regarding discrimination and retaliation. (UMF 1, 62) Around 2001, Plaintiff became a Working Foreman in the fruit

ripening area of the DCs Produce Department (also referenced to as the “Ripening Department”). (UMF 2) As a Working Foreman, Plaintiff was responsible for receiving fruit into the Ripening Department, which occurred daily. (UMF 8) As product came in Plaintiff transported it into gassing rooms, set the temperature, graded and loaded the product. (UMF 8) He then transported the product out of the gassing rooms and staged it for the next nightly selection that goes to the stores. (UMF 8)

Plaintiff disputes UMF 8 to the extent that during the period January to December 2012, Plaintiff was performing the Lead Foreman duties. Plaintiff states that he was the second chair after December 2012, and was the first chair 2009 to 2012 until Manager Collins removed him upon returning from leave under the California Family Rights Act (“CFRA”).

Plaintiff considered the Working Foremen in the Ripening Department to be “part management, part warehouseman.” (UMF 3) Plaintiff felt that the work he performed in the DC was demanding and that it required a lot of physical labor consisting of stairs, operating heavy-duty equipment, repetitive lifting, bending, and being on his feet for long periods of time. (UMF 9) Plaintiff objects to this characterization to the extent it was not his opinion that the Foreman position and especially the Lead Ripening Position were physically demanding and would have reasonably accommodated his restrictions, with accommodation of a directional forklift or even restructuring of the marginal duties for the working foreman second chair position.

Throughout Plaintiff’s time in the Ripening Department, each of the Working Foremen were equal in terms of title and pay, even though other Working Foremen had more experience than Plaintiff had in the department and/or had worked for the Company longer than Plaintiff had. (UMF 49) Plaintiff does not dispute this fact, and states that the positions were comparable in pay. However, Plaintiff notes that the duties were much different. The Lead Foreman would direct the second and third chair to receive the product and stage the physical aspect of the job.

Between 2004 and November 2013, except when out on a leave of absence, Plaintiff retained a regular schedule with which he was satisfied, and he worked the hours he requested. (UMF 10)

Prior to his termination, Plaintiff was never written up or received any other form of discipline while employed by Raley’s. (UMF 51) After becoming a Working Foreman, Plaintiff only ever applied for one position, when he was encouraged to do so by management sometime before 2010. (UMF 52) Plaintiff argues this fact is irrelevant since he does not allege that his harm includes a denial of promotion. Ultimately, Raley’s selected another individual, who was also African American. (UMF 52) Plaintiffs last day of work in the DC was in November 2013. (UMF 53)

Between 2005 and 2012, Plaintiff took more than half a dozen leaves of absence for medical reasons. (UMF 4) Plaintiff does not dispute this fact but notes that these leaves were of short duration, including time off to heal from a heart attack as well as on and off the job injuries, and he always returned to work and performed his duties

even if he had to self-modify.

On multiple occasions when Plaintiff returned to work after being on leave, he had medical restrictions. (UMF 5) Raley’s asserts that it reasonably accommodated each of the restrictions Plaintiff had from 2005 through 2012. (UMF 6) Plaintiff disputes this fact contending that he worked beyond his restrictions, and Raley’s did not take action to make sure any accommodations were provided.

In December 2012, Plaintiff was released to work without restrictions. (UMF 7) Thereafter, Plaintiff continued to work as a Working Foreman in the Ripening Department. (UMF 8) In November 2013, Plaintiff submitted a request for medical leave to begin November 24, 2013. (UMF 11) Raley’s granted Plaintiff’s request, and Plaintiff began leave in November 2013. (UMF 12, 53)

In the letter approving Plaintiffs leave request, Raley’s confirmed that, “per company policy the maximum time allotted” for Plaintiff’s medical leave was “twelve (12) months or when released by [his] doctor, whichever occur[ed] first.” (UMF 12) Plaintiff admits that he was granted the referenced leave, but disputes that there was any established 12 month time limit to the leave, and instead contends that the limit period was 18 months under the CBA.

Over the next several months, Plaintiff obtained medical treatment and received doctor’s notes identifying restrictions for two different medical conditions: one related to his knee and one related to his arm. (UMF 13) Plaintiff’s primary physician for his knee was David F. Bovill, M.D. (“Dr. Bovill”); his primary physician for his left arm was Mark Thomas Dillon, M.D. (“Dr. Dillon”). (UMF 13)

With regard to his left arm injury due to a motor vehicle accident, Plaintiff’s rnedical providers concluded he could not lift anything heavier than a coffee cup. (UMF 16) Plaintiff was also having “major issues” with his knee. (UMF 17) He was in so much pain that he could not get up some days and had difficulty getting in and out of bed, bending his leg to put on socks and shoes, and engaging in other basic activities.

(UMF 17) Plaintiff notes that he could perform the lead duties which involved working in the office for approximately six hours, particularly if he was provided a directional forklift.

Based on the information provided by Plaintiff’s physicians, and the information communicated by Plaintiff, Raley’s extended Plaintiff’s leave beyond statutory requirements set forth under the CFRA as a reasonable accommodation. (UMF 14) Plaintiff disputes this contention to the extent Raley’s never mentioned that this leave period was considered a reasonable accommodation. Plaintiff also contends that he wanted to return to work, but Raley’s refused to allow him to return unless he was released to full duty with no restrictions.

In addition to providing leave extensions, at Plaintiff’s request, Raley’s also provided and advanced vacation payments to Plaintiff so that he would continue to be eligible to receive health benefits after his CFRA leave ended while he continued his leave as a

reasonable accommodation pursuant to Raley’s policies. (UMF 15)

Effective August 2, 2014, Plaintiff no longer had any written medical restrictions related to his arm, but he did have permanent restrictions relating to his knee that would continue indefinitely. (UMF 19) Plaintiff disputes this fact to the extent his restriction was not “indefinite.” He contends he could have performed available positions, and notes that he became a warehouse worker subsequent to his termination.

On August 13, 2014, Human Resources Business Partner Darlene Duff (“Duff’) spoke with Plaintiff by telephone to engage in the interactive process regarding his permanent restrictions. (UMF 20) Plaintiff disputes this fact on the stated ground that the process was not timely, or in good faith. He asserts that this was an unscheduled short telephone call where he was in a supermarket checkout line. Defendant did not describe Raley’s reasonable accommodation policy to him or the options available. Plaintiff was not provided any paperwork to review so his would be prepared to discuss options. Plaintiff contends that Duff was wrong in thinking Plaintiff was a warehouseman and reviewing the warehouse position and not the job that Plaintiff was actually performing as a Foreman. Further, Plaintiff contends that neither Duff nor anyone in HR had any working knowledge of the job Plaintiff was performing, so they could determine how to attempt to reasonably accommodate him.

At that time, Duff was the Human Resources Business Partner responsible for human resources matters in the Distribution Center. She held this position until approximately September 2014. (UMF 21)

Raley’s contends that during the call, Plaintiff and Duff discussed his permanent restrictions and agreed they were not consistent with the essential functions of his job as Working Foreman. (UMF 22) Plaintiff disputes this fact contending that Duff cannot recall the substance of the phone call, only her stated regular procedures. There was no consideration of the job duties of the Foreman position in the Ripening Department only the Warehouse position that Plaintiff did not perform. And, that Duff did not know anything about the job Plaintiff performed.

Plaintiff told Duff he was only able to perform manual labor, and agreed he could not do that with his medical restrictions. (UMF 23, 24) Raley’s asserts that during the call, Plaintiff and Duff also agreed there was no alternative or modified work available that was consistent with Plaintiffs restrictions, and Plaintiff never suggested any jobs he could have performed with his restrictions. (UMF 25, 26) Plaintiff disputes this assertion, contending that Duff did not provide any information about the policy options or other positions to Plaintiff, and Plaintiff did not know what vacancies existed. Plaintiff states that Duff had never met him, did not have an understanding of the job he actually performed and in fact had the incorrect understanding he was a Warehouse Worker and not a Foreman in the Ripening Department. Plaintiff also states that Duff did not ask or give him the opportunity to analyze and look at job descriptions or a vacancy list, or if Plaintiff thought there was a job he could perform.

Raley’s contends that at the end of the call, Plaintiff and Duff agreed to continue

Plaintiffs leave of absence as a reasonable accommodation pursuant to Company policy. (UMF 27) Plaintiff disputes this characterization, to the extent Duff did not inform him of the options under Raley’s reasonable accommodation policy and failed to go over the function of the Foreman position in the Ripening Department to possibly restructuring the duties so he could enter that position. Moreover, Plaintiff contends that Duff was not aware of the options under Raley’s accommodation policy.

Raley’s asserts that Duff encouraged Plaintiff to let her know if his situation changed so they could discuss further [accommodation]. (UMF 28) Duff sent Plaintiff a letter summarizing their call, which he received via certified mail and email and which his wife read to him. (UMF 29) Duff asked Plaintiff to contact her by August 20, 2014, to let her know if the letter did not accurately reflect the conversation. Plaintiff did not do so. (UMF 30) Plaintiff notes that neither he nor Duff recalled such encouragement during their call, and that Duff left her position in September 2014, so his further contacts were with other individuals since Duff replacement did not reach out to him.

In August 2014, Plaintiff contacted Raley’s Benefits Department, asked questions about early disability retirement, and received a packet of information in response to his request. (UMF 21, 31)

In October 2014, Raley’s contacted Plaintiff and requested an update regarding the status of his leave. (UMF 32) Raley’s asserts that on November 5, 2014, Plaintiff faxed over the June 30, 2014 doctor’s note that was used to engage in the interactive process in August 2014. (UMF 32) Plaintiff disputes that this was the first time he had provided Raley’s with the June doctor’s note. Plaintiff contends that he continued to contact DC asking to come back to work, and the contacts were initiated by him not Raley’s.

Raley’s contends that in early November 2014, Plaintiff spoke with a representative from Raley’s corporate office who processes leaves of absence. (UMF 33) During those discussions, the representative reconfirmed what had been stated in the initial letter granting Plaintiffs leave request several months prior that the maximum time permitted for Plaintiff’s medical leave pursuant to Company policy was 12 months. (UMF 11, 33) Plaintiff disputes this contention, to the extent the Raley’s representative, Ferreira, told Plaintiff that he could be off for 18 months, but someone else called two hours later to tell him that Ferreira’s boss, Jerry, said Plaintiff could only have 12 months of leave.

In November 2014, Plaintiff began seeing a new physician, Erin Stephany Sanchez, M.D., who agreed he was unable to work in the capacity he had worked previously. (UMF 34) Plaintiff told Dr. Sanchez he previously worked in a warehouse which required a lot of lifting, and that he was not able to do that work due to chronic pain/orthopedic injuries. (UMF 34)

On November 17, 2014, at Plaintiff’s request, Dr. Sanchez prepared a document confirming Plaintiff suffered from “severe and debilitating knee pain which compromise [d] his ability to perform any meaningful work.” (UMF 35) On December 11, 2014,

Plaintiff provided more information to the government, confirming manual labor was all he knew and “now [he] can’t do that,” and he could not function like he used to do. (UMF 36) Plaintiff was limited when it came to bending and walking, he could not climb steps, he could not hold any weight away from his body, and he could only lift light weight close to his body for a very short period of time. (UMF 37) Even putting milk in the refrigerator was difficult for him to do. (UMF 37) Activities that required body movement caused pain, and the 15 pills he took each day were not helping. (UMF 37)

In Reply, Raley’s emphasizes that Plaintiff understood his job duties and confirmed that his permanent restrictions prevented him from working. Raley’s points out that Plaintiff, not Raley’s, said he “did not possess the skills to do any other job other than ‘manual labor'” and “could not do manual labor with his medical restrictions.” (UDF 23-24, 29-30) And, that Plaintiff, not Raley’s, informed government agencies that “manual labor was all [he] knew” and “now [he] can’t do that.” (UDF 36-37) And, that Plaintiff, not Raley’s, told his physician he “worked in a warehouse which required a lot of lifting” and he “was not able to do that work due to chronic pain/orthopaedic injuries.” (UDF

34) And, finally, it was Plaintiff’s physician, not Raley’s, who concluded in November 2014 – just before Plaintiff’s termination – that Plaintiff’s permanent restrictions prevented him from performing “any meaningful work.” (UDF 35) Raley’s asserts that it encouraged further communication, not Plaintiff. (UDF 29-30, 43) Thus, Raley’s argues that “any breakdown in the process was the result of Plaintiff’s failure to provide information contrary to that which he communicated to Raley’s and government agencies.” (Reply, p. 3:2-5.)

On December 15, 2014, Raley’s contends that Human Resources Business Partner Debbie Brown (“Brown”) made the decision to terminate Plaintiffs employment. (UMF

38) Brown handled human resources matters in another part of the Company and was temporarily responsible for human resources matters at the Distribution Center until Raley’s located a replacement for Duff, who had transferred to another position. (UMF
39) Plaintiff disputes this contention on the ground that Brown was not the only decision maker, because Collins told Plaintiff that it was Landers who refused the 18 month accommodation that resulted in his termination. Plaintiff also asserts that Brown misrepresented to her manager that she would contact Plaintiff to check his status and to see if there was any change in his restrictions, but Brown did not know what job Plaintiff performed, never reviewed his personnel file, and did not call Plaintiff.

Raley’s contends that no one told Brown to make the decision to terminate Plaintiff. (UMF 55) Plaintiff disputes this contention asking the court to disregard Brown’s testimony on this point pursuant to Code of Civil Procedure section 437c(e) upon the ground that she is the sole witness of her state of mind on making the decision. The court rejects this request since the fact averred by Brown is not subject only to her testimony. If any other Raley’s personnel directed Brown to make the decision, that evidence would contradict the fact. Brown’s denial of any external direction is not testimony of her state of mind, but of the absence of any external influence upon her state of mind.

After obtaining information from Duff about the interactive process that took place in August 2014, Brown made the decision to terminate Plaintiff’s employment based on the following: (1) Plaintiff had permanent restrictions; (2) Brown had no reason to think those permanent restrictions would change; (3) Plaintiff and Duff had recently engaged in the interactive process and agreed there were no jobs he could perform within the Company consistent with his permanent restrictions; (4) Duff’s August 13, 2014 letter summarizing her interactive process discussion with Plaintiff established that both she and Plaintiff agreed he was unable to return to work in any capacity consistent with his permanent restrictions; (5) Plaintiff never responded to or objected to Duff’s letter summarizing their interactive process discussion or indicated his situation had changed; and (6) Plaintiff’s 12 months of leave provided pursuant to Raley’s policy for DC employees expired in November 2014. (UMF 40) Plaintiff’s effort to “dispute” this omnibus UMF 40 does not directly join issue with the facts as stated.

In the nearly 15 years that Brown has worked for Raley’s, she is not aware of any situation in which a person’s permanent restrictions changed. (UMF 41) While Raley’s will sometimes extend the time for DC employees to be on leave beyond 12 months where the employee has temporary restrictions and it appears the employee will be able to return to work in some capacity, that is not something Raley’s does where there are permanent restrictions that prevent the employee from working. (UMF 42) Plaintiff disputes these facts, taking issue with Mr. Beaver’s supporting testimony, and asserting that if Raley’s had engaged in a good faith interactive process it would have learned that Plaintiff was able to perform the lead position that became vacant in February 2015. Plaintiff complains that for a valid interactive process, there should be more than one meeting, it should be in person, his actual job duties should be known to Raley’s representative in the meeting, and there should be a consideration as to whether his essential job duties could be performed with accommodation.

At the time she made the decision to terminate his employment, Brown had no knowledge of Plaintiff’s race, age, or tenure with the Company. (UMF 54) Plaintiff disputes this assertion on the sole ground that Brown had access to the Peoplesoft system implying that would have provided this demographic information.

The person Raley’s selected to permanently replace Plaintiff as Working Foreman, and who continues to hold that position, is African American and was in his 40s when he took over the position. (UMF 56) Following Plaintiff’s termination Plaintiff’s former colleagues, Jim Merkel (“Merkel”) and Douglas Hilliker (“Hilliker”), continued to be employed as Working Foremen in the Ripening Department. (UMF 61) They were both born in 1958- two years before Plaintiff was born – and both began working for Raley’s before Plaintiff. (UMF 1, 61) Merkel voluntarily retired in February 2015; his replacement was 47 when he took over the position. (UMF 61) Hilliker continues to work for Raley’s as a Working Foreman. (UMF 61) Plaintiff disputes UMF 56 stating “Hilliker and later Caucasian Seymoure replaced” Plaintiff. Plaintiff contends that Michael Weir is not African American, but is instead Hispanic. Raley’s notes in Reply (p. 8, fn. 2) that while Plaintiff highlights that Mr. Weir identifies as Hispanic, he omits the fact that Mr. Weir identifies as both Hispanic and African American. Plaintiff

asserted that Seymoure is 6 ½ years younger; Weir is 9 ½ years younger.

Raley’s contends that while approximately 10.9% of Sacramento County residents are African American, at the time of Plaintiff’s termination, 13.5% of DC employees were African American. (UMF 57) And, that percentage increased after Plaintiff’s termination. (UMF 57) Plaintiff objects to this evidence upon the ground that Mr. Beaver’s testimony lacks foundation on this point which the court has overruled.

Over the years, Raley’s has employed several African American employees in management positions at the DC. (UMF 58)

On December 28, 2015, Plaintiff filed the instant lawsuit, alleging causes of action for failure to engage in the interactive process in violation of the Fair Employment and Housing Act (the “FEHA”), failure to reasonably accommodate in violation of the FEHA, medical condition discrimination in violation of the FEHA, retaliation in violation of the California Family Rights Act (the “CFRA”), retaliation in violation of the FEHA, racial discrimination in violation of the FEHA, age discrimination in violation of the FEHA, and failure to correct discrimination in violation of the FEHA.

First Cause of Action – Interactive Process

Raley’s maintains that the evidence is undisputed that it engaged in a timely, good-faith and complete interactive process anchored to the Duff phone call, and the references that Plaintiff’s condition included permanent restrictions that prevented him from performing any meaningful work. Raley’s contends that it encouraged Plaintiff to communicate with it regarding his condition and requirements, and that Plaintiff failed to such that “[a]ny breakdown in the process was the result of Plaintiff’s failure to provide information contrary to that which he communicated to Raley’s and government agencies.” (Reply, p. 3:1-5.)

Plaintiff contends that the Duff call, and the other communications between the parties, could not satisfy the requirements of a good-faith and complete interactive process. Plaintiff criticizes (supported by the De Lima expert opinion) Raley’s failure to follow its own interactive process procedures and guidance. Plaintiff criticizes the fact that Duff called him unannounced, and failed to provide him with the information necessary to participate in the interactive process or the effort to determine whether he could return to Raley’s with accommodation. In this respect, Plaintiff asserts that Duff never offered to meet with him and have an interactive discussion to brainstorm how he could be brought back to work. (UF 93) There was no official written job description for Ripening Foreman for Duff to work from, but Duff could have called Plaintiff’s supervisor to understand his job and she chose not to. (UF 94) Duff did not prepare a list of potential accommodations for the Foreman posting nor did she print a current job posting list. (UF 95) Duff did not ask Plaintiff if he had other skills that may qualify him for another position. Plaintiff contends that he previously worked as a Janitor and could have performed the battery changer position. (UF 96) Plaintiff argues that Duff was supposed to review Plaintiff’s reasonable accommodation issues with the DC Director Mitchell, Manager Collins and HR Director Landers as part of the interactive process,

but there is no evidence she did. (UF 97) Plaintiff alleges that prior to his termination, neither Duff nor Brown engaged in any follow-up communication with him to determine his status or any possible new accommodations.

The court finds that there are triable issues of material fact as to whether Raley’s engaged in a timely and good faith interactive process, and/or whether that process failed as a result of Raley’s conduct.

FEHA requires employers to engage in a timely and good faith interactive process to determine effective reasonable accommodations, if any exist. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261; Gov. Code, §12940(n).) It is an unlawful employment practice for an employer to fail to engage in a timely, good-faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or medical condition. (Gov. Code § 12940(n); see Gov. Code § 12926.1(e) (legislative statement affirming importance of interactive process between applicant or employee and employer in determining reasonable accommodation.) The employer’s duty under FEHA to accommodate and to engage in a good-faith interactive process to determine reasonable accommodations applies whether the applicant or employee is actually disabled or is “regarded as” disabled. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App. 4th 34, 54-62.)

To prevail on a claim that the employer failed to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. (Scotch v. Art Inst. of Cal.-Orange County (2009) 173 Cal. App. 4th 986, 1018-1019 (unless, after litigation with full discovery, employee identifies reasonable accommodation that was objectively available when interactive process should have occurred, he or she has suffered no remediable injury from any violation of employer’s duty to engage in interactive process); Nadaf-Rahrov v. Neiman-Marcus Group, Inc. (2008) 166 Cal. App. 4th 952, 982 (employer is not liable under Gov. Code § 12940(n) for failing to engage in interactive process if no reasonable accommodation was possible).)

“Employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. Putting the entire burden on the employee to identify a reasonable accommodation risks shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.” (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at 265 citing Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000).)

Once a disabled employee has requested or identified a need for a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of identifying an accommodation that allows the employee to

perform the job effectively. For the process to work both sides must communicate directly, exchange essential information and neither side can delay or obstruct the process. (Gov. Code §12926.1(e); Prilliman v. United Airlines, Inc. (1997) 53 Cal.App.4th 935, 949-950.)

Here, there are material disputes as to whether there was any coherent or reasonable effort to determine whether Plaintiff could return to work with an appropriate accommodation. The deficiencies in Duff’s participation in the process as noted in the De Lima declaration support the Plaintiff’s opposition. And, Plaintiff has identified various positions or accommodations that may have been successful if the process had been more thorough. This dispute in evidence is sufficient to defeat the motion for summary adjudication on the First Cause of Action which is denied, and by extension the motion for summary judgment is denied.

Second Cause of Action – Reasonable Accommodation

“[T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th at p. 263; Claudio v. Regents of the University of California

(2005) 134 Cal.App.4th 224, 243.)

FEHA defines reasonable accommodation as either of the following: (1) making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities; or (2) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. (Gov. Code § 12926(p).) If more than one effective accommodation is possible, the employer is not obligated to choose the best one or the one requested by the employee; rather, the employer has discretion to choose the least expensive or most convenient effective accommodation. (Hanson v. Lucky Stores (1999) 74 Cal. App. 4th 215, 228.)

Although reasonable accommodation for an employee with a permanent disability would include job reassignment if a vacant position exists, the employer is not required to create a new position to accommodate that employee. (Raine v. City of Burbank (2006) 135 Cal. App. 4th 1215, 1227.) When reassignment to a different position is necessary to accommodate an employee, it is not sufficient for the employer simply to advise the employee to check a job listing. Rather, the employer has a duty to take some kind of affirmative action, and the employer is relieved of such a duty only if reassignment would impose an undue hardship on the employer or if there is no

vacant position for which the employee is qualified. (Spitzer v. Good Guys (2000) 80 Cal. App. 4th 1376, 1388-1390.)

Raley’s maintains that the undisputed evidence establishes Plaintiff admitted that his disability rendered him unable to perform any meaningful work on a permanent basis. Raley’s also contends that Plaintiff has presented no evidence that there was a vacant position for which he was qualified and able to perform. And, to the extent Plaintiff argues that he was entitled to 6 additional months of leave as an accommodation, that position would be a “red herring” since Plaintiff’s disability was permanent and would not change with the passage of time.

Plaintiff counters, arguing that the Lead Ripening Position was not physically demanding and would have reasonably accommodated his restrictions enabling him to return to work. (UF 105) By August 2014 Lead Foreman Merkel announced he would be retiring in February 2015, and Plaintiff was the next most senior in the Department who could replace Merkel as the lead with the Monday through Friday schedule if Raley’s allowed Plaintiff to return without a full release. Further, Plaintiff contends he could have performed the first lead position with his “permanent restrictions”. (UF 106,
110) If returned to be the second position prior to terminating Plaintiff, he contends the directional forklift and possible job restructuring of marginal duties would have enabled him to do his job, and that Raley’s had a directional panel forklift at the DC that would accommodate his knee restrictions. (UF 107) He argues that Raley’s never looked to see if there were any assistive devices that would allow him to do his job. (UF 108) And, he contends Raley’s never contacted anyone in the Stores Department or any other Department to see if they had positions that Plaintiff could perform with his restrictions. (UF 109)

The court finds material issues of disputed fact as to whether there simply was no vacant position within Raley’s for which Plaintiff was qualified and which he was capable of performing with or without accommodation, the Raley’s did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because Plaintiff failed to engage in discussions in good faith. The motion for summary adjudication as to the Second Cause of Action is denied.

Third Cause of Action – Medical Condition Discrimination

Plaintiff minimally opposes Raley’s motion as to this cause of action contending that there is ample evidence of pretext as to Raley’s reasons for the termination because:

(1) Plaintiff was replaced with a non-disabled employee; (2) Plaintiff could have returned to work with accommodations, but Raley’s filled his position before his rightful leave period expired; and (3) he was only provided 12 months of leave as opposed to 18 months which is provided to other Raley’s employees.

The court does not find that there are triable issues of material fact as to whether Plaintiff had a health impairment related or associated with cancer or genetic characteristics, or to the extent he claims disability discrimination, that Raley’s termination decision was because of Plaintiff’s disability as opposed to its

understanding that Plaintiff could not return to work after his maximum leave.

The motion for summary adjudication is granted as to the Third Cause of Action.

Fourth Cause of Action – CFRA Retaliation

Plaintiff’s entire argument on this cause of action is as follows: “Raley’s concedes Plaintiff took a CFRA leave between November 2013 and February 2014, and was terminated December 2014. There is substantial evidence of pretext that decision to deny reasonable accommodation and terminate Ellis was because Ellis exercised his right to take such leave. (UF 80-81, 101-110; 119.) Although Ellis had a history of prior protected leave, it was under the leadership of Bresnahan starting in 2010 the retaliation and discrimination took place. (UF 111-135)” (Opp., p. 11:15-20.)

In Reply, Raley’s points out that many of Plaintiff’s leaves and subsequent returns to work happened during Bresnahan’s leadership, and that Plaintiff makes no claim of retaliation regarding those several prior CFRA leaves. And, as to the Plaintiff final leave, it ended in February 2014 by statute, but instead of terminating him at that time, Raley’s allowed him to extend the leave multiple times over the succeeding 10 months.

Raley’s also argues Plaintiff has presented no evidence of pretext. Raley’s notes that it acted in accordance with its letter granting leave.

The court finds no triable issue of material fact as to whether Plaintiff was terminated, or otherwise subject to viable retaliation, as a result of his use of CFRA leave on many occasions, including his leave preceding his termination. Raley’s motion for summary adjudication as to Fourth Cause of Action is granted.

Fifth Cause of Action – Retaliation

Plaintiff opposes the motion on this cause of action arguing that there is a triable issue of material fact as to whether Raley’s stated bases for terminating his employment was merely a pretext for Raley’s intentional retaliation against Plaintiff for his engaging in protected FEHA conduct. Plaintiff ostensibly bases his opposition on the ground that Raley’s failed to follow its own leave policy and reasonable accommodation policy (UF 80-81; 82-85), and Hilliker, who was given Merkel’s lead position over Plaintiff, had never made an internal complaint of discrimination (UF 118) implying that a non-complainer was rewarded.

With respect to “protected activity”, there appears to only be Plaintiff’s complaint about race to Archie. As Raley’s points out, the alleged complaint occurred more than a year before his termination, and before Raley’s granted his last leave and extensions.
Raley’s also notes that the person who made the decision to terminate Plaintiff’s employment had no knowledge of the alleged complaint.

The court does not find a triable issue of fact on the issues of protected activity or pretext. The motion for summary adjudication as to the Fifth Cause of Action is granted.

Sixth Cause of Action – Race Discrimination

Plaintiff opposes the motion as to his race discrimination claim upon the following argument: “The denial of accommodation, termination, denial of training and the invasion of privacy in going into Plaintiff’s locker rather than having him come in and retrieve his personal items violate Raley’s own written policies, lack business sense and there exists great disparity in treatment. Other African Americans were also [discriminated] against at the D.C. showing a racial animus. (UF 142-140)” (Opp., p. 12:18-22.)

Plaintiff does not challenge Raley’s position that Plaintiff’s claim for race discrimination is limited to those alleged adverse employment actions that occurred within one year before his March 2015 DFEH filing, thus limiting the claim to his termination. Raley’s notes that the individual who made the decision to terminate Plaintiff’s employment had no knowledge of his race, and that Plaintiff’s position was filled with an individual of the same race who continues to hold the position. Raley’s continuing employment of African American employees, including managerial positions, and its statistical representation of diversity in its work force present strong evidence that militates against an implied causal relationship between Plaintiff’s race and his termination. Plaintiff’s limited evidence of other claims of discrimination do not support pretext in the absence of any evidence of causal nexus between his race and his termination, and in light of the substantial evidentiary nexus between the termination decision and his continuing physical restrictions.

Raley’s motion for summary adjudication as to the Sixth Cause of Action is granted.

Seventh Cause of Action – Age Discrimination

Plaintiff argues he was replaced or treated less favorably than a similarly situated substantially younger employee with equal or inferior qualifications (UF 147 “Defendant contends Hispanic Weir replaced Ellis. He is significantly younger than Ellis. Seymoure actually replaced Ellis and is also significantly younger than Ellis.), and has demonstrated with substantial evidence a triable issue of material fact exists as to whether or not the adverse acts taken against him were motivated by age discrimination. (Opp., p. 13:1-5.)

The court finds no triable issue of material fact of causal nexus between Plaintiff’s termination and his age, or that Raley’s bases for the termination were pretext for age discrimination. The person who made the decision to terminate Plaintiff was unaware of his age at the time of that decision, Plaintiff’s older employee peers continued to work in the same department, and a new employee in the department is in his late 40s. Plaintiff also conceded no knowledge of anyone at Raley’s saying anything derogatory regarding age.

Raley’s motion for summary adjudication as to the Seventh Cause of Action is granted.

Eighth Cause of Action – Failure to Correct Discrimination and Retaliation

Plaintiff states, “[e]ach of Ellis’ discrimination and retaliation claims are viable. Raley’s was apprised of the discrimination and retaliation against Ellis and [chose] to allow it to continue culminating in his termination without notice.” (Opp., p.13:11-12.)

The failure of Plaintiff’s discrimination and retaliation claims result in the failure of this claim and the motion for summary adjudication is granted.

Punitive Damages

Plaintiff identifies three matters which he contends establish a triable issue of material fact as to whether relevant individuals at Raley’s engaged in, authorized, or ratified malice, fraud or oppression in relation to any of Plaintiff s causes of action. Raley’s ably enumerated the three matters as: (1) Raley’s cut the lock of Plaintiff’s locker when he did not return to retrieve his items and placed those items in a box in a locked room (ultimately returned to Plaintiff’s counsel); (2) Raley’s listed Plaintiff as not eligible for rehire when he was terminated in December 2014; and (3) no one at Raley’s called Plaintiff to inform him of his termination at the time it mailed the termination letter.

The court does not find that these matters raise a triable issue of material fact relevant to Plaintiff’s surviving causes of action as to whether Raley’s engaged in, authorized, or ratified related acts of malice, fraud or oppression.

Raley’s motion for summary adjudication as to Plaintiff’s surviving punitive damage claims is granted.

Raley’s shall prepare a proposed order for the court’s consideration and execution pursuant to Code of Civil Procedure section 437c(g) and California Rules of Court, rule 3.1312.