Case Name: Cynthia Sewak v. Edward Stahl, et al..
Case No.: 17CV306703

I. Background

Plaintiff Cynthia Sewak (“Sewak”) commenced this action against her employer, defendant Pharmaca Integrative Pharmacy, Inc. (“Pharmaca”), and its landlord, defendant Edward Stahl (“Stahl”), to recover damages for workplace injuries and related unlawful conduct by her employer. In brief, Sewak alleges she became ill when Pharmaca and Stahl failed to remediate mold and other hazards from a leaking roof at the compounding pharmacy where she worked and that Pharmaca then terminated her shortly before her medical leave expired in retaliation and without engaging in an interactive process. Sewak asserts causes of action against Pharmaca and Stahl for: (1) negligence (against Stahl); (2) disability-based discrimination (against Pharmaca); (3) failure to provide reasonable accommodation (against Pharmaca); (4) failure to engage in interactive process (against Pharmaca); (5) wrongful termination under Tameny (against Pharmaca); and (6) retaliation (against Pharmaca).
Currently before the Court is a motion for summary judgment, or alternatively, summary adjudication of the second, third, fourth, fifth, and sixth causes of action by defendant Pharmaca. Sewak opposes the motion and filed objections to portions of Pharmaca’s evidence.

II. Legal Standard

A defendant may move for summary judgment on the ground an action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) The moving party bears the initial burden of proving “a cause of action has no merit [by] show[ing] that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the moving party must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).) “Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The plaintiff [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Ultimately, “[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment….” (Code Civ. Proc., § 437c, subd. (f)(2).) A motion for summary adjudication is distinct in that it may be directed to an individual cause of action. (Code Civ. Proc., § 437c, subd. (f)(1).) While the motion must dispose of the entire cause of action that is the subject of the motion (Code Civ. Proc., § 437c, (f)(1)), the motion need not dispose of each and every cause of action pleaded as is required for summary judgment (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1396). The motion “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

III. Summary of Evidence

It is undisputed that Sewak began working for Pharmaca as a relief pharmacist at its Pacific Palisades location in 2008. (Sewak Decl., ¶ 2 & Ex. A.) In 2010, Pharmaca promoted Sewak, and she began working as the Pharmacy Manager at its Los Gatos location. (Sewak Decl., ¶¶ 3–4 & Exs. B–C.) As Pharmacy Manager, Sewak had responsibility for all pharmacy operations from timekeeping and employee management to budgeting and marketing. (Sewak Decl., ¶ 4 & Ex. C.) Under Sewak’s management, the Los Gatos location performed well in terms of sales; she and her team earned bonuses in February 2016. (Sewak Decl., ¶ 5 & Ex. D.) In 2016, Pharmaca also designated Sewak as the Pharmacist In Charge for the pharmacy, which is a role required by the California State Board of Pharmacy. (Weintraub Decl., Ex. A, Sewak Dep. at pp. 502, 505–506.)

On Monday, March 14, 2016, Sewak received an email from an employee stating the employee and a coworker came into the pharmacy to find water-logged ceiling tiles in the compounding area of the pharmacy. (Sewak Decl., ¶ 6 & Ex. E.) According to the employee, the coworker heard water dripping the Friday before, but an inspection by Stahl revealed “nothing.” (Ibid.) The employee also stated the tiles did not fall on anyone and everything was “O.K.” but that some of the damaged tiles still hung down into the pharmacy despite her efforts to clean up. (Ibid.) The employee asked for additional guidance on how to proceed. (Ibid.)

The next day, Sewak emailed her supervisor, Regional Pharmacy Manager Greg LeGore, and others at Pharmaca stating she and her staff did not compound any medicine due to the condition of the pharmacy and describing the circumstances she encountered there. (Sewak Decl., ¶ 9 & Ex. H.) Sewak observed white particles and dust, water intrusions, an inoperable electrical outlet, water damage and discoloration visible through the roof of the ceiling, as well as what she perceived as black mold. (Ibid.; Panday Decl., Ex. A, Sewak Dep. at p. 402.) Sewak also recounted that she and her employees had been experiencing chronic respiratory symptoms, and so she asked Stahl to conduct mold testing. (Sewak Decl., Ex. H; Panday Decl., Ex. A, Sewak Dep. at pp. 393–94.) Stahl agreed to pay for mold testing and recounted that the roof had been leaking for 40 years. (Sewak Decl., Ex. H.) Finally, Sewak indicated an employee was cleaning and sanitizing the pharmacy area and hood with a germicidal solution but asked whether topical medications could be compounded in the interim even if oral medications could not be compounded. (Sewak Decl., Ex. H.)

Later that day, Sewak circulated another email reflecting the hood’s airflow met Cal/OSHA standards but that results for air testing were not yet complete. (Sewak Decl., Ex. H.) The technician informed Sewak while he was collecting samples that he perceived an odor and saw black and brown spots that suggested the test results would “not be good….” (Sewak Decl., Ex. H.) In Sewak’s email, she also stated she was attempting to comply with pharmacy and workplace safety regulations and sought guidance on these topics as well as on company policy. (Sewak Decl., Ex. H.)
On March 16, Sewak emailed her supervisor, LeGore, to continue to express her concerns, seek guidance, and express disappointment in Pharmaca’s response to the situation. (Sewak Decl., Ex. H.) She also referenced text messages he sent her seemingly to defend herself from what she perceived as accusations that she had been misfocused on remediating the condition of the pharmacy when she should have been spending time filling prescriptions. (Sewak Decl., Ex. H.)

The next week, the mold inspector emailed Sewak and her supervisor stating there was a “mold/yeast” issue reflected by high levels of mold and yeast in and above the ceiling tiles as well as in the hood; he stated he would send an official report later that day. (Sewak Decl., Ex. J; Panday Decl., Ex. G [report].) He recommended a treatment of chlorine dioxide and offered to provide it free of charge. (Ibid.)

Around this same time, Sewak stayed home sick due to the symptoms she was experiencing, but she continued to correspond with her coworkers on her sick days. (Sewak Decl., Exs. H [email of 03/24/16], N [email of 03/31/16].) According to Pharmaca’s Director of Human Resources, Laura Price, Sewak started a leave of absence under the federal Family and Medical Leave Act on Saturday, March 26, 2016. (Price Decl., ¶ 6.) This is where the parties’ narratives diverge. While Sewak does not dispute the date her leave commenced, she disputes Pharmaca’s assertion that her leave endured for 12 weeks, until June 17, 2016. (Price Decl., ¶ 6.) Sewak asserts she had four months of leave. Ultimately, there is no contemporaneous document establishing the duration and expiration date of the leave. For example, there is nothing in the record before the Court establishing that Pharmaca told Sewak in March or April 2016 that her leave expired in June.

Instead, the evidence shows that Sewak’s physician, Dr. Raj Patel, wrote on her FMLA certification form that the probable duration of her medical condition or need for treatment was four months. (Price Decl., Ex. A.) Ms. Price testified at her deposition that neither she nor others at Pharmaca independently determined the appropriate duration of leave and instead had “to go by what the doctor provides….” (Panday Decl., Ex. B, Price Dep. at p. 183.) In an email thread from May 2016, Ms. Price, Mr. LeGore, and Stuart Gratz all appeared to believe that Sewak would be out for four months (counting from “late March”) and that this was not a problem because an interim pharmacist in charge, Sonali, could cover for Sewak until August. (Panday Decl., Ex. M.) Pharmaca could then pay $100 and designate a new permanent pharmacist in charge in the event Sewak had not yet returned by then. (Panday Decl., Ex. M.) Another email reflects both Ms. Price and Mr. LeGore also understood they would not receive an update on her ability to return to work until the “middle of July,” shortly before her anticipated return. (Panday Decl., Ex. M.)

On Wednesday, June 15, 2016, Mr. LeGore (Sewak’s supervisor) wrote to Ms. Price and Stuart Gratz to inform them of the conversation he had with Sewak earlier that day. (Panday Decl., Ex. N.) Mr. LeGore recounted that he informed Sewak that the pharmacist-in-charge responsibilities were being covered until August and that they could discuss her return to work around July 25, after her scheduled physician’s appointment. (Ibid.) He indicated that Sewak believed she might be out until October. (Ibid.)

And yet, that same day, two days before Sewak’s leave purportedly expired, Eileen O’Donoghue of Pharmaca emailed Sewak “to check on [her] status for returning to work.” (Sewak Decl., Ex. M.) Ms. O’Donoghue stated Sewak needed to provide a release from her doctor and return to work the following week. (Ibid.) That same day, at 7:25 p.m., Sewak wrote to Ms. O’Donoghue stating she called her doctor to obtain the requested documentation, but had not received a call back. (Sewak Decl., Ex. M.) Sewak informed Ms. O’Donoghue that her doctor’s office was closed the following day, but that she would try them again on Friday. (Ibid.) She expressed that she did not believe she was well enough to return to work the following week, but informed Ms. O’Donoghue of Sonali’s ability to cover for her. (Ibid.) She asked “what is our next step” and whether she needed to contact “LTD.” (Ibid.) She also stated she just got approved for “SSDI.” (Ibid.) She concluded by again requesting what she should do next and stating she would let them know what her doctor said as soon as possible. (Ibid.)

In response, Ms. O’Donoghue fired Sewak. (Sewak Decl., Ex. M.) On Thursday, June 16, 2016, Ms. O’Donoghue informed Sewak that her employment was terminated and suggested this was based on Sewak’s representations, as compared to her physician’s, about her ability to return to work as well as unspecified “business needs.” (Ibid.) She informed Sewak she could look for open positions, in other words reapply to work at Pharmaca, upon being released for work by her physician. (Ibid.)

Notwithstanding the explicit language of Ms. O’Donoghue’s email, Pharmaca disputes the date of termination stating it was “effective” Monday, June 20, 2016, after the expiration of her leave. Although perhaps some legal argument could be made on this point, the evidence it cites does not clearly support its contention.

In any event, upon receiving the termination email, Sewak wrote to her supervisor expressing her surprise and confusion particularly in light of the discussion among Sewak, Mr. LeGore, and Ms. Price about adequate coverage of the pharmacist-in-charge responsibilities through August. (Sewak Decl., Ex. M.) The next morning, Friday June 17, 2016, Mr. LeGore suggested that Sewak should ask Ms. Price for clarification. (Ibid.) Sewak heeded this advice and sent an email to Ms. Price, Ms. O’Donoghue, and Mr. LeGore later that day. (Sewak Decl., Ex. Q.) In the email, Sewak expressed confusion over the duration of her leave and termination at the 90-day mark when she “received several emails from human resources that employees are allowed 120 days per 12 month period of FMLA per CA labor laws.” (Sewak Decl., Ex. Q.)

On Sunday, June 19, Ms. Price responded and informed Sewak that the FMLA allowed for 12 weeks, not 120 days. (Ibid.) Ms. Price tried to walk back the termination and set up a conference call with Sewak, stating Pharmaca had “not yet taken any action with respect to terminating [her] employment.” (Ibid.) Sewak responded that Ms. Price’s statement conflicted with Ms. O’Donoghue’s email as well as information she received from Sun Life Insurance that her records could not be located “and were terminated.” (Ibid.) She asked whether her health insurance remained active. (Ibid.)
On Monday June 20, Sewak and Ms. Price corresponded via email throughout the day. (Sewak Decl., Ex. R.) Sewak appeared to believe Ms. Price told her she would be fired if she did not come to work that day, stated she would come in, and pleaded for her job. (Sewak Decl., Ex. R.) At 2:43 p.m., Ms. Price stated Sewak could not come back without a release from her doctor. (Ibid.) Sewak stated she was “contacting him now.” (Ibid.) That same day, Pharmaca decided Sewak would not be able to obtain a release, and so it refused to allow her to return to work. (Price Decl., ¶ 13.)
To summarize, on the very same day, Sewak was told both that she had until the middle of July to discuss a return-to-work date and that she had 48 hours to make a doctor’s appointment and obtain a release to come back to work. Before the 48 hours had even elapsed, she was terminated. While she was given one last chance to obtain a release between Sunday, June 19, and Monday, June 20, she could not do so and was not allowed to return to work.

At the time of Sewak’s termination, there had yet to be complete repair and remediation of the pharmacy. In April 2016, Sewak submitted a complaint to the California Board of Pharmacy, which was assigned to inspector Catherine Hodnett shortly thereafter. (Sewak Decl., Exs. K–L.) On June 8, Ms. Hodnett inspected the pharmacy and completed a report; she requested the inspection reports and other documents from Pharmaca. (Panday Decl., Ex. I.) As early as June 15, 2016, Pharmaca still had not received a list of repairs from the landlord. (Panday Decl., Ex. N.) Pharmaca was subsequently asked to provide documentation of building repairs, but these repairs were not commenced until August 2016. (Panday Decl., Exs. F, N.)

In March 2017, roughly a year after Sewak first stopped working, she applied for Social Security benefits. (Weintraub Decl., Ex. H.) In her application she stated she did not have any plans to return to work. (Ibid.) Dr. Roger Light conducted a neuropsychological evaluation of Sewak in December 2017 and opined that it would be impossible for her to return to her usual and customary occupation as a pharmacist. (Weintraub Decl., Ex. G at pp. 1333.) He also opined that her employment in that capacity would pose a safety risk to the public. (Ibid.)

IV. Merits of Motions

Sewak’s claims against Pharmaca essentially fall into two categories, those focused on the handling of her disability and request for accommodations while she was employed and those focused on her termination. In support of Pharmaca’s motion for summary judgment or summary adjudication, it advances two central arguments, one for each category of claims. First, Pharmaca argues Sewak’s claims of disability-based discrimination, failure to engage in an interactive process, and failure to accommodate lack merit because Sewak is permanently disabled and cannot perform essential job functions with or without reasonable accommodation. Second, Pharmaca argues Sewak’s Tameny and retaliation claims lack merit because she cannot establish a causal link between her protected conduct and her termination. The Court addresses each in turn.

A. Second, Third, and Fourth Causes of Action

Sewak’s second, third, and fourth causes of action are based on California’s Fair Employment and Housing Act (the “FEHA”). (Gov. Code, § 12940 et seq.) The FEHA makes it unlawful for an employer to discriminate on the basis of a physical disability or medical condition. (Gov. Code, § 12940, subd. (a).) “In addition to making it illegal to discriminate on the basis of disability, the FEHA makes it unlawful ‘to fail to make reasonable accommodation for the known physical…disability of an…employee.’” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926, quoting Gov. Code, § 12940, subd. (m)(1).) And when an employee seeks a reasonable accommodation, the FEHA makes it unlawful “[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations….” (Gov. Code, § 12940, subd. (n).)

“California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment,” known as the McDonnell Douglas test. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) “Under that framework, a plaintiff must first establish a prima facie case of discrimination by showing that ‘“he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations[;] and (3) was subjected to an adverse employment action because of the disability or perceived disability.”’ [Citations.]” (Cornell, supra,18 Cal.App.5th at p. 926.) A prima facie case of discrimination gives rise to a rebuttable presumption of discrimination that the employer must dispel at the second stage “by producing admissible evidence sufficient to raise a genuine issue of material fact the employer took its actions for a legitimate, nondiscriminatory reason.” (Scotch, supra, 173 Cal.App.4th at p. 1004.) “If the employer meets that burden, the presumption of discrimination disappears, and the plaintiff must challenge the employer’s proffered reasons as pretexts for discrimination or offer other evidence of a discriminatory motive” at the third stage of the analysis. (Ibid.)

“The McDonnell Douglas burden-shifting framework was designed to apply to liability determinations at trial, not at the summary adjudication stage.” (Cornell, supra, 18 Cal.App.5th at p. 926.) “Thus, the framework does not affect the procedural rule…that imposes on a defendant the initial burden when that party seeks summary adjudication.” (Ibid.) “To satisfy this initial burden in an employment discrimination case, a defendant employer must either undermine an element of the plaintiff’s prima facie case—by affirmatively negating it or showing the plaintiff cannot prove it—or provide a legitimate nondiscriminatory reason for the adverse employment action.” (Ibid.)

In contrast, “[f]ailure to accommodate claims are not subject to the McDonnell Douglas burden-shifting framework.” (Cornell, supra, 18 Cal.App.5th at p. 926.) That said, “‘[t]he elements of a failure to accommodate claim are similar to the elements of a…section 12940, subdivision (a) discrimination claim….’” (Ibid., quoting Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.) “Although the first two elements are the same—that the plaintiff has a disability and can perform the essential duties of the job—the third element of a failure to accommodate claim is that ‘the employer failed to reasonably accommodate the plaintiff’s disability.’ [Citation.]” (Cornell, supra, 18 Cal.App.5th at p. 926.) And so, as with a discrimination claim, an employer seeking summary adjudication of a claim of failure to accommodate may challenge whether the plaintiff could perform essential job duties with or without accommodation. But ordinarily, “the employer cannot prevail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 245, 263.)

Finally, when asserting a claim for “failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch, supra, 173 Cal.App.4th at p. 1018.) In other words, such a claim “‘is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.’” (Id. at pp. 1018–19, quoting Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984.) Thus, an employer seeking summary adjudication may carry its initial burden by showing the plaintiff cannot identify any reasonable accommodation that would have been available at the time. (Ibid.)

With respect to the first and second causes of action, Pharmaca primarily tries to show Sewak admitted she could not perform the essential functions of her job with or without reasonable accommodation. But Pharmaca’s argument is problematic because it does not focus on the relevant timeframe. Pharmaca relies on evidence showing that in September 2016 as well as in March and December 2017 Sewak stated she was not able to work at all due to her illnesses. For example, Pharmaca relies on an application for Social Security benefits submitted by Sewak in March 2017. But an application for Social Security benefits is not incompatible per se with status as a qualified individual under the FEHA, particularly when the application post-dates the relevant employment decision. (See generally Cleveland v. Policy Management Systems Corp. (1999) 526 U.S. 795, 805.) Despite how Pharmaca proceeds, the sequence of events and the improvement or deterioration of Sewak’s condition over time are critical given the facts of this case. Pharmaca does not present any evidence showing Sewak admitted she was permanently disabled and unable to perform her essential job functions even with reasonable accommodations at the relevant time. Furthermore, Pharmaca does not otherwise discuss Sewak’s job duties and present direct evidence showing, at the time, she could not perform those duties even with accommodations. And so, Pharmaca does not carry its initial burden in this regard. Even if it did, Sewak presents evidence that she was performing some work-related tasks while she was on medical leave. Thus, there is a triable issue of material fact regarding whether Sewak was permanently disabled or able to perform the essential duties of her job with or without accommodation during the relevant timeframe.

With respect to the second and third causes of action, Pharmaca essentially argues that there was no reasonable accommodation that could have been provided such that it did not fail to engage in the interactive process to identify an accommodation or fail to ultimately provide such an accommodation. Its argument is not persuasive. First, Pharmaca provides no analysis of what constitutes a reasonable accommodation under the FEHA. In other words, Pharmaca makes no effort to show, based on applicable law, that no reasonable accommodation existed in light of Sewak’s particular duties and limitations. This is insufficient. (See, e.g., Spitzer v. the Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1387–89.) Instead, Pharmaca asserts in a conclusory manner that an indefinite leave of absence is not a reasonable accommodation and suggests it was, thus, excused from even engaging with Sewak on the subject of a reasonable accommodation. This is unreasonable. Pharmaca does not present evidence showing Sewak requested an indefinite leave of absence at the time or that indefinite leave was the only possible way to accommodate her. Unlike in Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, Pharmaca did not extend Sewak’s leave and then attempt to restructure her position or reassign her. Rather, it terminated her before her initial leave even expired and before she could even advance her doctor’s appointment to provide Pharmaca with his assessment. The evidence and analysis is insufficient to support Pharmaca’s argument.

As one court explained, “[a]n employer may claim there was no available reasonable accommodation. But if it did not engage in a good faith interactive process, ‘it cannot be known whether an alternative job would have been found.’” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424–425, Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 245.) “The interactive process determines which accommodation is required.” (Wysinger, supra, 157 Cal.App.4th at p. 425.) The record before the Court does not support the conclusion as matter of undisputed fact and law that engaging with Sewak and trying to accommodate her was futile because she simply could not be reasonably accommodated.

Pharmaca’s argument is also problematic because it does not account for the impact of the workplace conditions and air quality on the reasonable accommodation analysis. (See, e.g., County of Fresno v. Fair Employment & Housing Com. (1991) 226 Cal.App.3d 1541, 1555.) Pharmaca terminated Sewak months before Stahl even started roof repairs and remediation that may have impacted her ability to return to work. Sewak presents evidence showing she was eager to return to a clean workplace, worked while on leave, and initially believed she would be able to return to work in July if remediation occurred. Thus, for this additional reason, the evidence does not show, as a matter of law, that no accommodation could be made.

For these reasons, Pharmaca does not establish Sewak’s discrimination, failure to engage, and failure to accommodate claims lack merit. The evidence and analysis Pharmaca presents is insufficient to show Sewak was permanently disabled and unable to perform her essential duties with or without accommodation during the relevant timeframe, and Sewak presents evidence sufficient to raise a triable issue of fact in this regard. Pharmaca is not entitled to summary adjudication of the second, third, and fourth causes of action.

B. Fifth and Sixth Causes of Action

In the fifth and sixth causes of action, Sewak alleges Pharmaca unlawfully terminated her in violation of public policy and in violation of the FEHA.

“The retaliation provision of FEHA forbids an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under’ FEHA.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046, quoting Gov. Code, § 12940, subd. (h).) “Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action.”

Although not specifically referenced in the complaint, the parties also address a separate but similar statute, namely “Labor Code section 1102.5, subdivision (b), ‘California’s general whistleblower statute’ [citation], which provides: An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.) “To establish a prima facie case of retaliation, the plaintiff ‘must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.’ [Citation.]” (Ibid.)

Pharmaca challenges whether Sewak can establish the element of causation. First, Pharmaca argues Sewak cannot establish retaliation because temporal proximity is insufficient to show a causal link between protected activity and an adverse employment action. This is not the law. “Proximity in time between the employee’s protected activity and the adverse employment action satisfies the employee’s prima facie burden.” (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1048–49.) Evidence of proximity is sufficient to “permit a trier of fact to infer a causal link” between the protected activity and the adverse employment action. (Id. at p. 1048.) Second, Pharmaca argues it terminated Sewak for a legitimate, nonretaliatory reason. It asserts it terminated her because of the indefinite date of her return to work and inability to find another pharmacist-in-charge. There is substantial evidence that calls into question these stated reasons. For example, Pharmaca gave Sewak conflicting information about the expiration of her leave and then terminated her before she could advance her doctor’s appointment to provide them with that information. And, it did so long before any of the evidence of permanent disability it relies upon was even created. As another example, Ms. O’Donoghue stated the termination was due to unspecified “business needs,” while the evidence otherwise reflected Pharmaca’s need to designate a pharmacist-in-charge was taken care of in the interim. Additional facts that call into question these stated reasons are the attempt to walk back the termination and the inconsistencies in information provided by human resources. In sum, Sewak easily raises a number of triable issues as to the veracity and legitimacy of Pharmaca’s stated reasons.

As for the fifth cause of action—the Tameny claim—Pharmaca argues the cause of action lacks merit because it is derivative of the retaliation claim. But Pharmaca is not entitled to summary adjudication of the sixth cause of action. And so, this argument is unavailing.

Pharmaca is not entitled to summary adjudication of the fifth and sixth causes of action.

C. Conclusion

The Court cannot conclude the facts are undisputed and show Pharmaca is entitled to judgment as a matter of law on any one of Sewak’s claims. Consequently, Pharmaca’s motion for summary judgment or, in the alternative, summary adjudication is DENIED.

The Court will prepare the order.