Filed 4/24/20 Saucedo v. Victoria’s Secret Stores CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

LETICIA SAUCEDO,

Plaintiff and Appellant,

v.

VICTORIA’S SECRET STORES, LLC, et al.,

Defendants and Respondents.

H045736

(Santa Clara County

Super. Ct. No. 2013-1-CV-248689)

I. INTRODUCTION
II.
Plaintiff Leticia Saucedo was a store manager for defendant Victoria’s Secret Stores, LLC and defendant Retail Store Operations, Inc. (collectively, VSS, or the corporate defendants) when her employment was terminated for purportedly editing her own time records in violation of company policy. Plaintiff subsequently filed a civil action alleging three disability-related causes of action against VSS under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and two tort causes of action against VSS and two individual defendants Shawn Thompson and Amy Germain. All the defendants moved for summary judgment or, in the alternative, summary adjudication. The trial court granted the motion for summary judgment.

On appeal, plaintiff contends that there are triable issues of material fact regarding the three disability-related causes of action because there is evidence that VSS knew she was disabled and needed an accommodation. She does not raise any issue concerning the tort causes of action.

For the reasons stated below, we conclude that the FEHA causes of action against VSS for (1) disability discrimination (first cause of action), (2) failure to accommodate (second cause of action), and (3) failure to engage in the interactive process (third cause of action) should not have been summarily adjudicated in the corporate defendants’ favor. We will direct the trial court to enter a new order denying summary adjudication as to those causes of action only.

III. FACTUAL BACKGROUND
IV.
Our factual summary is drawn from the parties’ separate statements of fact and the evidence they submitted in connection with the motion for summary judgment and opposition.

A. VSS Policies
B.
Plaintiff was hired by VSS as a part-time sales associate in 2003, and by 2009 she was the manager for the store at the Stanford Shopping Center. Over the course of plaintiff’s employment, she received training on VSS policies and received multiple copies of the employee handbook that enumerated those polices. She knew that her employment could be terminated for violating the policies. Further, as a store manager, plaintiff was responsible for training and enforcing VSS policies with respect to subordinates and for “ ‘lead[ing] by example.’ ”

The VSS employee handbook prohibited disability discrimination and reflected a commitment to accommodating employees with disabilities. The handbook also set forth the available procedures to report employment concerns, including contacting a supervisor, human resources, or the company’s 24-hour ethics hotline. Regarding a leave of absence or other employment benefits, employees could contact human resources with any questions or concerns. As a store manager, plaintiff was responsible for ensuring that other employees understood how to report any concerns.

The VSS employee handbook prohibited employees from self-editing time records. Employees were instructed to “not falsify, manipulate, misrepresent or omit facts on documents, records or reports including . . . time sheets.” The handbook specifically stated, “ If you should forget to record your time or record the wrong time, do not edit your own time; notify your manager immediately. Only members of store management may edit associate hours. Failure to accurately record your work time is a violation of law. Any self-editing, manipulation, falsification or misrepresentation of your hours or someone else’s hours, or condoning such activities, may result in disciplinary action up to and including termination.”

The policy prohibiting self-editing was also contained in VSS’ operating procedures manual, which plaintiff knew she was required to follow. The operating procedures manual stated, “SLT [(sales leadership team)] members may not edit their own time.” A sales leadership team at a VSS store included the store manager and one or more assistant managers or category/functional managers.

Plaintiff knew that VSS prohibited self-editing of time records. She understood that if a sales leadership team member needed to edit his or her time, another member of the sales leadership team had to process the edit.

C. Events Leading Up to Plaintiff’s Termination
D.
VSS stores are organized into districts, with the store manager reporting to a district manager, and the district manager reporting to a regional manager. In March 2012, the district manager for plaintiff’s area went on maternity leave, and Thompson acted as district manager for the remainder of plaintiff’s employment.

1. Mid-April 2012 Discussions Regarding Plaintiff Taking Stress Leave
2.
On or around April 13, 2012, plaintiff and Thompson discussed by phone the need to fill an open position at plaintiff’s store. During the conversation, plaintiff told Thompson, “I’m thinking about taking a stress leave” because “all of this is getting to be too much.” Thompson said, “Ok. I’ll check in with you next week and see how you’re feeling.”

Plaintiff did not contact human resources regarding taking a stress leave. She decided to continue working until she had completed her ongoing effort to fill several vacant positions. When Thompson followed up with her a week later, plaintiff indicated that she wanted to fill the positions before taking a stress leave. Through the date of her termination in early May 2012, plaintiff never expressly requested a stress leave or leave of absence.

3. Plaintiff’s April 2012 Time Records
4.
Also around mid-April 2012, a member of plaintiff’s sales leadership team called Thompson and complained that plaintiff had not been working her scheduled shifts. Thompson contacted Germain, a more experienced district manager from a nearby district, and Kathleen Fogarty, a human resource manager for VSS, for their guidance.

Thompson reviewed plaintiff’s time and attendance reports from April 2012. A weekly time and attendance report shows (1) by date, (2) the hours an employee has worked, (3) with a brief description of the type of work the employee was engaged in, such as “regular selling” or “customer sales lead.” (Capitalization omitted.) If an employee has engaged in different types of work on a single work day, the report contains separate entries reflecting the time that the employee performed each type of work. Plaintiff’s time and attendance reports appeared to indicate that plaintiff had made self-edits on multiple occasions.

Specifically, for the week ending April 21, 2012, there were nine modifications on plaintiff’s time and attendance report, four of which were identified in the report as being made by plaintiff. Of those four modifications, two occurred on April 17, 2012, and two occurred on April 21, 2012.

For the week ending April 28, 2012, there were 11 modifications on plaintiff’s time and attendance report, two of which were identified in the report as being made by plaintiff. Those two modifications both occurred on April 26, 2012.

In sum, plaintiff’s April 2012 time and attendance reports indicated that she made a total of six modifications, with two occurring on each of three dates—April 17, 21, and 26, 2012. At some point, Thompson sent plaintiff’s April 2012 time records to Fogarty, the human resource manager.

5. May 1, 2012 Meeting with Plaintiff
6.
Thompson, the acting district manager for plaintiff’s area, and Germain, the district manager from a nearby district, met with plaintiff at her store on May 1, 2012. The meeting addressed plaintiff’s (1) irregular job attendance and (2) whether plaintiff had been self-editing her time and attendance records.

Regarding irregular job attendance, plaintiff indicated that she was seeing a doctor for anxiety. She offered to provide a doctor’s note showing that her irregular attendance was due to the side-effects of anti-anxiety medication. Neither Thompson nor German expressed any interest in receiving such a doctor’s note. Plaintiff indicated that her anxiety was the reason that she had previously raised the issue of taking a “stress leave” with Thompson. Plaintiff did not expressly request a stress leave during the May 1 meeting. Germain appeared shocked by plaintiff’s medical problem and suggested other options to plaintiff, such as stepping down to a lesser managerial role or going back to school.

The issue of self-edits was then discussed at the meeting. Plaintiff indicated her awareness of the company policy against self-editing time records. However, she believed the policy’s emphasis was on keeping accurate records and forbidding the falsification of time.

Plaintiff was asked about her time records for the past two weeks. She admitted to self-editing on April 21, 2012 only. Plaintiff explained that on that date, she had asked a subordinate manager to make the edit, but the subordinate manager failed to do so. Because (a) plaintiff was the closing manager, (b) it was Saturday, and (c) she believed the reports had to be finalized that day with respect to the description of the time a manager worked, plaintiff went ahead and changed the description of the time that she had worked. Plaintiff made the edit so that the records would properly reflect that she had only been involved in “regular selling” during a period, rather than as a “customer sales lead.”

As to the remaining edits on the other dates, plaintiff stated that other sales leadership team members had edited her time under her employee identification number. She explained that she had been logged into the store computer under her own employee identification number and then failed to sign off. When she asked another subordinate manager to edit her time, that person also failed to sign plaintiff out of the computer system and sign in under the person’s own employee identification number before editing plaintiff’s time. As an example, plaintiff referred to one of the corrected entries on April 26, 2012, and indicated that she had a document signed by the subordinate manager reflecting that the subordinate manager had mistakenly made the edit to plaintiff’s time under plaintiff’s account number rather than under the subordinate manager’s account number.

Plaintiff was aware that inaccurate time records were being generated regarding self-editing. She at times reminded sales leadership team members to log out of her account and enter their own account before doing the requested edit, but she otherwise did not coach or counsel them on the issue. Plaintiff did not correct these errors in payroll records because “Associate Edited Timesheet Reports” were automatically generated and then filled out and signed by the actual person making the correction.

A decision had been made by VSS prior to the May 1 meeting that plaintiff would be suspended pending termination if she admitted to self-editing. Based on plaintiff’s admission that she had edited her own time, Thompson and Germain suspended her with pay for 72 hours so they could consult with Fogarty.

After the meeting on May 1, 2012, plaintiff went to her doctor’s office and obtained a doctor’s note. The note stated that plaintiff suffered from insomnia and “stress/anxiety,” that her symptoms began in November, and that she was under the doctor’s care. The note further indicated that plaintiff continued to take medication and that she had experienced adverse reactions “such as grogginess.” The doctor requested that plaintiff’s past tardiness be excused and that she be allowed to retain her position with the company. Plaintiff attempted to fax the doctor’s note to human resources at VSS that same day. Plaintiff used the wrong fax number, and VSS never received the note.

7. Decision Regarding Termination
8.
Thompson, Germain, and Fogarty subsequently discussed plaintiff’s violation of company policies that prohibited self-editing. Although the April 2012 time reports on their face indicated that plaintiff made a total of six edits on three separate dates, it does not appear that Thompson or Germain informed Fogarty that (a) plaintiff admitted to self-editing on only one of those dates (April 21) and that (b) plaintiff offered an explanation or excuse for the edit. It also does not appear that Thompson or Germain informed Fogarty that plaintiff had claimed that on the other two dates, other employees edited her timesheets while logged into her account. Consequently, it was Fogarty’s belief that plaintiff had confirmed making all the edits at issue. On May 2, 2012, Fogarty made the decision to terminate plaintiff’s employment given the seriousness of her policy violations in making six self-edits. Plaintiff’s irregular attendance was not a factor in Fogarty’s termination decision.

Fogarty later testified that if even plaintiff self-edited in order to correctly reflect that another employee had performed sales rather than plaintiff, the proper action would be to have someone else make the edit, even if it meant the edit would not occur until the next day. Fogarty also testified that VSS policy prohibited employees from sharing their employee identification and password, especially the store manager who has the highest level of clearance and access to payroll, and that employees are prohibited from using another person’s account or password.

At the time Fogarty made the decision to terminate plaintiff, Fogarty was unaware that plaintiff had raised with Thompson and Germain the issue of stress leave and being on anti-anxiety medication. If Fogarty had known that an employee had a medical issue affecting the employee’s ability to his or her job, Fogarty would have directed the supervisor to put the employee in touch with human resources for appropriate accommodation.

9. May 4, 2012 Termination Notice
10.
On May 4, 2012, plaintiff was informed that she was being terminated for editing her own time. The written termination notice indicated that plaintiff was being terminated for violating company policy “regarding recording hours.”

After plaintiff was notified of her termination, Thompson and Germain documented their earlier May 1 meeting with plaintiff. Thompson and Germain each wrote that plaintiff admitted to editing her time sheet for that day (May 1) and editing it on another occasion.

After plaintiff was terminated, VSS reviewed all of plaintiff’s time and attendance records from January 1, through April 14, 2012. Those records indicated additional self-edits by plaintiff. Plaintiff subsequently testified and stated in a declaration that she did not personally make those earlier edits.

V. PROCEDURAL BACKGROUND
VI.
A. The Complaint
B.
In June 2013, plaintiff filed a complaint alleging: (1) disability discrimination under FEHA against VSS; (2) failure to accommodate under FEHA against VSS; (3) failure to engage in an interactive process under FEHA against VSS; (4) intentional infliction of emotional distress against VSS and the district managers Thompson and Germain; (5) negligent infliction of emotional distress against VSS and the district managers Thompson and Germain; and (6) violation of the federal Family and Medical Leave Act of 1993 (FMLA) against VSS.

Defendants removed the action to federal court. After plaintiff’s federal FMLA claim was dismissed with prejudice by the federal court, the case was remanded back to state court.

C. The Motion for Summary Judgment
D.
In May 2017, all the defendants filed a motion for summary judgment or, in the alternative, summary adjudication on the remaining five claims: (a) three FEHA claims for disability discrimination, failure to accommodate, and failure to engage in an interactive process, and (b) two tort claims for infliction of emotional distress. Regarding the three FEHA claims, VSS contended that it had a legitimate nondiscriminatory reason for terminating plaintiff’s employment, that plaintiff never requested any accommodation, and that it did not fail to reasonably accommodate any known disability. Regarding the tort claims for intentional and negligent infliction of emotional distress, defendants contended that plaintiff could not establish either claim.

E. Opposition to Motion for Summary Judgment
F.
Plaintiff contended that there were triable issues of fact regarding her three causes of action against VSS for disability discrimination, failure to accommodate, and failure to engage in an interactive process, and regarding her cause of action against VSS for intentional infliction of emotional distress. Plaintiff “withdr[e]w” all the remaining causes of action against VSS, Thompson, and Germain.

G. The Trial Court’s Order
H.
By written order filed July 27, 2017, the trial court granted the motion for summary judgment. Regarding the first cause of action for disability discrimination, the court determined plaintiff’s employment was terminated for a legitimate nondiscriminatory reason, that is, she edited her own time and attendance records in violation of company policy and procedure. The court found that plaintiff failed to demonstrate that the reason for termination was a pretext for discrimination.

Regarding the second cause of action for failure to accommodate, the trial court determined that plaintiff never requested an accommodation, such as a leave of absence, and there was no evidence that VSS was aware of plaintiff having a disability such that it had a duty to make a reasonable accommodation.

Regarding the third cause of action for failure to engage in the interactive process, the trial court similarly found that plaintiff failed to request a reasonable accommodation for her disability.

Regarding the cause of action for intentional infliction of emotional distress, the trial court found that plaintiff had not set forth conduct by defendants that qualified as extreme and outrageous. The court also found no triable issue regarding plaintiff’s cause of action for negligent infliction of emotional distress although plaintiff had “withdraw[n]” that cause of action in her opposition brief.

A judgment was entered in favor of all defendants.

VII. DISCUSSION
VIII.
Plaintiff contends that there are triable issues of material fact regarding her causes of action against VSS for disability discrimination (first cause of action), failure to accommodate (second cause of action), and failure to engage in an interactive process (third cause of action). She does not raise an issue concerning any other cause of action, or regarding the individual defendants.

In analyzing whether the trial court properly granted summary judgment, we first set forth the standard of review. We then consider plaintiff’s contentions regarding each of the three disability-related causes of action against VSS.

A. The Standard of Review
B.
A party may move for summary judgment or, in the alternative, summary adjudication. (Code Civ. Proc. § 437c, subd. (f)(2).) Both motions are “subject to the same rules and procedures.” (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819; accord DiCarlo v. County of Monterey (2017) 12 Cal.App.5th 468, 488.)

The moving defendant has the initial burden of showing that a cause of action lacks merit because an element of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (o) & (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) If the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at pp. 849, 850.)

In determining whether the parties have met their respective burdens, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.)

“In reviewing a trial court’s grant of summary judgment [or summary adjudication], . . . ‘ “[w]e take the facts from the record that was before the trial court when it ruled on that motion” ’ and ‘ “ ‘ “review the trial court’s decision de novo . . . .” ’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)

C. The First Cause of Action for Disability Discrimination
D.
1. The Legal Framework for a Disability Discrimination Claim
2.
FEHA prohibits an employer from discharging an employee “because of” the person’s physical or mental disability. (§ 12940, subd. (a).) “The phrase ‘because of’ means there must be a causal link between the employer’s consideration of a protected characteristic and the action taken by the employer.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 215 (Harris).) Under this standard, the employee is not required to show that discrimination was the “ ‘but for’ cause of the employment decision.” (Id. at p. 230.) However, the employee must at least show that discrimination was a “substantial motivating factor, rather than simply a motivating factor.” (Id. at p. 232; accord, Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 478-479.)

California has adopted the three-stage, burden-shifting test known as the McDonnell Douglas test (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792) for determining the merits of a discrimination claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2 (Reid).) Under the McDonnell Douglas test, the plaintiff has the initial burden to establish a prima facie case of discrimination. (Guz, supra, 24 Cal.4th at p. 354.) If the plaintiff makes the required prima facie showing, the burden shifts to the employer to produce admissible evidence sufficient to show a legitimate, nondiscriminatory reason for the adverse employment action. (Id. at pp. 355-356.) “If the employer meets this burden, the employee then must show that the employer’s reasons are pretexts for discrimination, or produce other evidence of intentional discrimination. [Citation.]” (Reid, supra, at p. 520, fn. 2.)

In Guz, the California Supreme Court explained that a plaintiff’s “discrimination claim under the FEHA cannot survive [an employer’s] motion for summary judgment unless the evidence in the summary judgment record places [the employer’s] creditable and sufficient showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in fact, [the employer] acted for discriminatory purposes. [Citation.]” (Guz, supra, 24 Cal.4th at p. 362.) “[I]n an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions. [Citations.]” (Id. at p. 363.) “[A] plaintiff’s showing of pretext, combined with sufficient prima facie evidence of an act motivated by discrimination, may permit a finding of discriminatory intent, and may thus preclude judgment as a matter of law for the employer. [Citation.]” (Id. at p. 361, italics omitted.)

3. Analysis
4.
Plaintiff concedes that VSS presented a legitimate, nondiscriminatory reason for her termination, that is, self-editing her time record in violation of company policy. Plaintiff also concedes that the human resource manager Fogarty, in making the termination decision, did not know that plaintiff suffered from anxiety, experienced side effects from taking medication for the condition, or expressed interest in taking a stress leave.

Plaintiff contends, however, that Fogarty acted as the “ ‘cat’s paw’ ” of district manager Thompson, who had a discriminatory animus against plaintiff. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 100, 113-116 (Reeves).) In this regard, plaintiff argues that Thompson “orchestrated [her] termination by providing [Fogarty] a falsely overblown report of what [plaintiff] had stated at the May 1 meeting.” Plaintiff further argues that Thompson was not consistent when recounting the number of times she purportedly self-edited the time records. She also contends that Thompson’s response, or lack thereof, when she raised the issue of stress leave is evidence of his discriminatory animus. Lastly, in view of the timing between her disclosure of anxiety on May 1, and her discharge on May 4, and Thompson’s inaccurate portrayal of her self-editing to Fogarty, plaintiff contends that a reasonable inference can be drawn that the stated reason for her discharge was a pretext for disability discrimination.

We determine that a triable issue of material fact exists regarding whether plaintiff was terminated because of a disability.

Under the “cat’s paw” doctrine, an employer may be liable for discrimination if a “supervisor makes another [corporate actor] his tool for carrying out a discriminatory action.” (Reeves, supra, 121 Cal.App.4th at p. 114, italics and capitalization omitted.) In such a situation, “the original [supervisor’s] purpose will be imputed to the tool, or through the tool to their common employer.” (Ibid.; see Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1008 (Scotch) [if “an employment decision is influenced by several people, ‘a decision maker’s ignorance does not “categorically shield the employer from liability if other substantial contributors to the decision bore the requisite animus” ’ ”].)

In this case, plaintiff contends that “Thompson acted out of discriminatory animus to influence Fogarty into making the termination decision.” Plaintiff argues that Thompson portrayed her to Fogarty as having admitted to making self-edits on three dates without excuse, but she admitted to self-editing on only one of those dates and under “extenuating circumstances.”

Thompson’s incomplete or misleading summary of his investigation to Fogarty, along with other evidence, could give rise to an inference of discriminatory intent on the part of Thompson. VSS does not offer any explanation (or evidence) as to why Thompson failed to inform Fogarty that (a) plaintiff admitted to self-editing on only one of the three April dates at issue (April 21), and that (b) plaintiff made the edit because she believed there was a Saturday deadline to make the edit and there was no else who could perform the edit that day. Further, although Fogarty testified, in response to a hypothetical, that plaintiff should have waited until the next day to have someone else edit her time, the hypothetical did not address the issue of whether plaintiff’s belief about a Saturday deadline was a valid concern. Even assuming it was still a violation of company policy to self-edit on that Saturday, the record does not reflect whether Fogarty would have made the same decision to terminate had she known the circumstances of the self-edit and that this was the only instance of self-editing admitted by plaintiff. Likewise, although VSS provides evidence that the circumstances of plaintiff allowing others to edit her time while logged in under her identification number violated another company policy, there is no evidence that this violation would have resulted in plaintiff’s termination.

On this record, a reasonable inference could arise that Thompson, who (1) was aware from prior conversations in April that plaintiff wanted to take a stress leave and (2) learned at the May 1 meeting that plaintiff suffered from anxiety, acted with discriminatory animus in providing incomplete information to Fogarty. Due to Thompson’s failure to fully disclose what he had learned from plaintiff, Fogarty believed that plaintiff had admitted all instances of self-editing on the three dates in April, and that all of the edits were without explanation or justification by plaintiff. Not only had plaintiff—a long-term employee who had risen through the ranks—verbally denied making the self-edits on all the dates except one (April 21), but she had also indicated that she had written evidence in the form of a document signed by a subordinate manager reflecting that the subordinate manager had in fact mistakenly made an edit under plaintiff’s account number. Thompson’s failure to fully disclose to Fogarty the circumstances and limited nature of plaintiff’s admission to self-editing, including documentation offered by plaintiff, could give rise to a reasonable inference that he was motivated by discrimination, in view of plaintiff’s recent disclosure of her anxiety condition. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 354 [temporal proximity between disclosure of disability and termination, along with other evidence, may be sufficient to establish pretext].)

We are not persuaded, however, by plaintiff’s contention that “the pretextual nature of Thompson’s report” is demonstrated by his “inconsistencies” in recounting whether she made two, three, or six edits. Shortly after plaintiff was terminated, Thompson documented in writing that plaintiff admitted to self-editing on two occasions: May 1 and another date. At his subsequent deposition, Thompson testified that it was his “belief” that plaintiff “had actually done” all the self-edits reflected in the April 2012 time reports. Those records reflect six edits by plaintiff on three dates. Thus, contrary to plaintiff’s contention that “Thompson’s report” was “inconsisten[t] over time,” the varying number of self-edits depends on whether reference is being made to the number that plaintiff admitted to Thompson, Thompson’s own belief based on the written time reports, or whether the number is based on the date, or the number of entries on a single date.

We are likewise not persuaded by plaintiff’s contention that Thompson’s response, or lack thereof, to her discussion of stress leave in April shows that he had discriminatory animus. Plaintiff indicated in April that she was not ready to take a stress leave at that time.

Nonetheless, as we have explained, a triable issue of material fact exists as to whether plaintiff’s termination was “because of” her disability (§ 12940, subd. (a)), in view of her recent disclosure of an anxiety condition to Thompson, Thompson’s role in the investigation leading to her termination, Thompson’s failure to inform Fogarty about plaintiff’s anxiety and desire to take stress leave, and the incomplete information Thompson presented to Fogarty as to the nature of plaintiff’s admission to self-editing time records.

E. The Second and Third Causes of Action for Failure to Accommodate and Failure to Engage in the Interactive Process
F.
1. The Legal Framework for a Failure to Accommodate Claim
2.
and a Claim for Failure to Engage in the Interactive Process

Under FEHA, an employer is required “to make reasonable accommodation for the known physical or mental disability of an . . . employee.” (§ 12940, subd. (m)(1).) “[T]o determine effective reasonable accommodations,” FEHA requires an employer to “engage in a timely, good faith, interactive process with the employee . . . in response to a request for reasonable accommodation by an employee . . . with a known . . . disability.” (Id., subd. (n).) Although these two obligations—to engage in the interactive process and to provide a reasonable accommodation—are independent causes of action, “each necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

“Typically, the employee must initiate the process ‘unless the disability and resulting limitations are obvious.’ [Citation.]” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 600 (Soria).) In other words, the employer must engage in the “interactive process when: [¶] (1) an . . . employee with a known physical or mental disability . . . requests reasonable accommodations, or [¶] (2) the employer . . . otherwise becomes aware of the need for an accommodation through a third party or by observation.” (Cal. Code Regs., tit. 2, § 11069, subd. (b).)

“ ‘ “The ‘interactive process’ required by the FEHA is an informal process with the employee . . . to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.” ’ [Citation.] Both the employer and the employee are responsible for participating in the interactive process.” (Soria, supra, 5 Cal.App.5th at p. 600.)

“ ‘When a claim is brought for failure to reasonably accommodate the claimant’s disability, the trial court’s ultimate obligation is to “ ‘isolate the cause of the breakdown . . . and then assign responsibility’ so that ‘[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.’ ” ’ [Citation.] Thus, ‘the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that . . . 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.’ [Citation.]” (Soria, supra, 5 Cal.App.5th at p. 598.)

3. Analysis
4.
In this case, plaintiff discussed stress leave with Thompson twice in April 2012. Plaintiff concedes that these April discussions were insufficient to put VSS on notice of her disability.

However, triable issues of material fact exist regarding whether VSS knew plaintiff had a disability and needed an accommodation based on the information plaintiff provided to Thompson and Germain during the May 1, 2012 meeting when they discussed plaintiff’s irregular job attendance. During that meeting, plaintiff indicated that she was seeing a doctor for anxiety. She offered to provide a doctor’s note showing that her recent irregular attendance was due to the side-effects of anti-anxiety medication. Plaintiff also indicated that her anxiety was the reason that she had previously raised the issue of taking a “stress leave” with Thompson.

Based on plaintiff’s disclosures that she was seeing a doctor for anxiety, that her condition and medication were affecting her attendance, and that her earlier expressed desire to take stress leave was related to her anxiety, triable issues of material fact exist regarding whether VSS had adequate notice of a disability and the need for an accommodation, such as a flexible work schedule or a leave of absence. A trier of fact could reasonably conclude that plaintiff was seeking an accommodation for a disability, notwithstanding her failure to make an express request for an accommodation at the May 1 meeting, given that she informed VSS that she had a mental health condition that was affecting her work. Indeed, there is evidence that VSS understood plaintiff’s statements as indicating she needed an accommodation because Germain during the meeting suggested various options to plaintiff, such as stepping down to a lesser managerial role. Likewise, Fogarty, the human resources manager, testified that if she knew an employee had a medical issue affecting the employee’s ability to do his or her job, Fogarty would have directed the supervisor to put the employee in touch with human resources for appropriate accommodation.

Based on this record, triable issues of material fact exist as to whether VSS was required to engage in the interactive process and provide a reasonable accommodation for plaintiff. (See § 12940, subds. (m)(1) & (n); Cal. Code Regs., tit. 2, § 11069, subd. (b)(1), (2).) Because VSS did not provide argument or evidence that it engaged in the interactive process to determine an effective reasonable accommodation or that it provided such an accommodation, these causes of action should not have been summarily adjudicated in VSS’s favor.

We are not persuaded by VSS’s contentions that it had no obligations to engage in the interactive process or to accommodate plaintiff.

VSS contends that plaintiff told Thompson during an April 2012 discussion that “she was no longer thinking about taking a stress leave” or that “she was not interested in taking a leave of absence.” The portion of the record cited by VSS does not support this contention. To the contrary, the record reflects that plaintiff still wanted to take a stress leave, but that she wanted to take it after she filled the management positions at her store. Plaintiff testified: “I told him that I wanted to get my management positions filled because . . . I cared a lot about my store. I didn’t want to leave them . . . in that situation without a store manager for who knows how long; so I said I would feel more comfortable if I got these positions filled, and then I, you know, went on a stress leave because I don’t want to do that to the rest of my team because they were counting on me.”

We also find distinguishable the cases relied on by VSS to support its contention that plaintiff’s failure to request an accommodation precludes her claims for failure to engage in the interactive process and failure to accommodate.

For example, in one unpublished federal district court case cited by VSS, Klein v. Raytheon Co. (C.D.Cal., Nov. 2, 2009, No. CV 08-6461CAS (CWx)) 2009 U.S.Dist. LEXIS 106666, the “[p]laintiff never requested an accommodation from [his employer] for his mental health disability, his doctors never suggested or prescribed any work restrictions, and plaintiff never engaged in a discussion with any of his supervisors . . . regarding potential accommodations for his mental health disability.” (Id. at p. *30.) In contrast, in this case, plaintiff told her supervisor Thompson that she had anxiety, that her doctor could provide a note linking her condition and medication to her irregular attendance, and that her prior discussions with Thompson regarding stress leave were related to her anxiety. A trier of fact could reasonably find that VSS had notice of plaintiff’s claimed disability, the effect of the disability on her job with respect to her irregular attendance, at least one accommodation that plaintiff had expressed interest in with respect to a leave of absence, and the possible need for a different work schedule as an accommodation if plaintiff was not offered a leave of absence.

In Hajianpour v. Synova, Inc. (C.D.Cal., Nov. 5, 2012, No. CV 12-1765-CAS (RZx)) 2012 U.S.Dist. LEXIS 161272, another unpublished federal district court case cited by VSS, the plaintiff sought assistance from a person who worked at another company, not from the defendant employer. The federal district court thus determined that the plaintiff could not state a claim for failure to engage in the interactive process or failure to accommodate. (Id. at pp. *23-*24, fn. 7.) Here, in contrast, there is no dispute that plaintiff’s discussions regarding her anxiety, the effect of that condition and medication on her attendance, and the desire to take stress leave in relation to her condition were all made to her supervisor, who was employed by the defendant employer VSS.

VSS also cites Scotch, supra, 173 Cal.App.4th 986, for the proposition that an “employer may only be liable for failing to engage in the interactive process in response to a request for a reasonable accommodation.” (Italics added.) To the contrary, however, Scotch states that “[t]he employee must initiate the process unless the disability and resulting limitations are obvious.” (Id. at p. 1013, italics added.) Here, triable issues of material fact exist regarding whether VSS had sufficient knowledge of plaintiff’s claimed disability and need for accommodation, based on plaintiff’s statements in April and May concerning her anxiety, its effect on her attendance, and her desire to take stress leave.

VSS also contends that any request by plaintiff for a leave of absence or other accommodation for her anxiety would have been unreasonable as a matter of law. VSS argues that by the time of the May 1 meeting, a decision had already been made to suspend plaintiff if she admitted to self-editing, and the final termination decision was made the next day. VSS contends that it is not required to engage in the interactive process or to accommodate an employee after it “has already decided to take adverse action for a non-discriminatory reason.” (Italics added.)

As we have explained, a triable issue exists as to whether VSS terminated plaintiff for a legitimate, nondiscriminatory reason. At the May 1 meeting, Thompson learned that plaintiff suffered from anxiety, that her attendance was being affected, and that her anxiety condition was the reason for her earlier discussions about stress leave. Thompson failed to disclose this information to the human resources manager Fogarty, who testified generally that she would have directed a supervisor to put such an employee in touch with human resources for appropriate accommodation. Thompson also failed to disclose all the information he had learned from plaintiff regarding the purported self-edits, and he instead led Fogarty to believe that plaintiff admitted all instances of self-editing on three dates in April, and that all of those self-edits were without explanation or justification.

Where “there is sufficient evidence of pretext in [the plaintiff’s] termination to make summary adjudication of [the plaintiff’s] discrimination claim inappropriate,” “the termination cannot support the conclusion that [the employer] did not have to address [the plaintiff’s] request for an accommodation or engage in an interactive process with [the plaintiff].” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243.) In other words, “a pretextual termination of a [disabled] employee’s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Id. at p. 244.) Consequently, in this case, because there is a triable issue of material fact regarding whether disability discrimination was a substantial motivating factor in plaintiff’s termination, VSS cannot establish as a matter of law that it “did not have to address” plaintiff’s need for an accommodation or engage in an interactive process with plaintiff (id. at p. 243), or that its termination of plaintiff otherwise provides “a reprieve from claims for failure to accommodate and failure to engage in the interactive process” (id. at p. 244). In sum, triable issues of material fact exist as to whether VSS was required to engage in the interactive process and to accommodate plaintiff.

The cases cited by VSS for the proposition that accommodation was not required here are distinguishable. For example, in the cases cited by VSS, the request for an accommodation came after the defendant’s decision to dismiss, or the employer had a legitimate nondiscriminatory reason for termination. (Zukle v. Regents of University of California (9th Cir. 1999) 166 F.3d 1041, 1051, fn. 16) [unreasonable for student to request disability accommodation after school had already decided to dismiss her]; Wong v. Pape Mach., Inc. (9th Cir. 2010) 370 Fed. Appx. 871, 873 [employee failed to engage in interactive process prior to termination, and employer not required to accommodate employee after it makes a nondiscriminatory decision to terminate employee]; Charles v. Nike, Inc. (9th Cir. 2007) 255 Fed. Appx. 127, 129 [request for accommodation not reasonable where employer had already made decision to termination employee for legitimate nondiscriminatory reason].) Here, triable issues exist as to whether VSS was sufficiently informed about plaintiff’s disability and need for accommodation before it decided to terminate her and whether its subsequent decision to terminate her was for a legitimate, nondiscriminatory reason.

In sum, we conclude that VSS was not entitled to summary adjudication of the causes of action for disability discrimination, failure to accommodate, and failure to engage in the interactive process.

IX. DISPOSITION
X.
The judgment is reversed, and the matter is remanded with directions to vacate the order granting summary judgment. The trial court is directed to enter a new order:

(1) denying summary adjudication as to the first cause of action for disability discrimination, the second cause of action for failure to accommodate, and the third cause of action for failure to engage in the interactive process against defendant Victoria’s Secret Stores, LLC and defendant Retail Store Operations, Inc., and

(2) granting summary adjudication as to the causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress against all defendants.

Costs on appeal are awarded to plaintiff Leticia Saucedo.

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BAMATTRE-MANOUKIAN, J.

WE CONCUR:

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ELIA, ACTING P.J.

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MIHARA, J.

Saucedo v. Victoria’s Secret Stores, LLC, et al.

H045736