2012-00117772-CU-WT

Daniel Deluca vs. CVS Pharmacy

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

Filed By: Sween, Lisa Barnett

Defendants CVS Pharmacy, Inc. and Longs Drug Stores California LLC’s (“CVS”)
Motion for Summary Judgment, or alternatively Summary Adjudication is ruled on as
follows.

Plaintiff’s Request for Judicial Notice is granted as to the existence of the Worker’s
Compensation case, however the court is not taking judicial notice of the truth of the
facts stated in the documents therein other than in the court orders.

Defendant’s Request for Judicial Notice (Plaintiff’s Complaint) is granted.

Plaintiff’s Evidentiary Objection to the Declaration of Crist, filed and served “by
messenger service” on August 19, 2013 is sustained. The declaration was filed and
served 74 days before the hearing. CCP 437c requires service of all moving papers
at least 75 days before the hearing. The Court rejects defendant’s reliance on the
case of Weiss v Chevron USA Inc. (1988) 204 Cal.App.3d 1094 which held that a
Reply declaration could be considered. That case does not address the requirement
that all moving papers must be filed and served at least 75 days before the hearing.
The notice time cannot be shortened. McMahon v Superior Court (2003) 106
Cal.App.4th 112, 118. However, the court notes that even if the declaration was
considered, the court’s ruling on each cause of action and on the claim for punitive
damages would be the same.

Defendant’s Evidentiary Objections are ruled on as follows:
Sustained: No. 47, No. 49 (except for court orders in workers compensation case).
The remainder of defendant’s evidentiary objections are overruled.

Plaintiff brings this action for violation of the FEHA. Plaintiff worked for CVS Pharmacy
in Lincoln, Ca. as a night crew shift manager from early 2007 to February 2010.
Plaintiff unloaded pallets from big rig deliveries and stocked the product. Plaintiff
reported to Store Manager Dean Crist (Complaint ¶ 13) In early 2007 plaintiff injured
his back and neck while unloading pallets. Plaintiff informed Crist that he had injured
his back stocking pallets and Chris allegedly responded “You’re lying,” “You’re faking
it,” “We don’t believe you,” and “Just work through it.” Plaintiff alleges he continued to
work with the pain for three years but then the pain got worse in February of 2010
when he complained of the pain and sought medical attention from CVS “company
doctor.” The doctor diagnosed a sprain in the thoracic region and ordered no lifting
over 20 pounds and provided plaintiff a return to work note medical note with the
restrictions.

Plaintiff continued to provide the doctor’s modified work notes in March, April,
September, October, and November of 2010. When he presented the restriction to
Crist, Crist allegedly told plaintiff that he would have to continue working on the night
crew with stocking but could also do the janitorial duties. (Complaint ¶ 17) Plaintiff
contends he could not perform the night crew job without the lifting restrictions.
Plaintiff alleges he requested reassignment to a cashier position but Crist refused.
Plaintiff asked to take his accrued vacation due to the back pain and took two weeks
off in mid-February. He contends that he was not allowed to return to work even on the
night-crew. Plaintiff alleges that the Regional District Manager Mr. Hofer, told Crist that the company does did not provide modified work to its employees.

CVS terminated plaintiff’s employment without notice. Plaintiff discovered he had been
terminated when he took his child to the doctor and was told that he had no work
health benefits because they had been cancelled. (Complaint, ¶ 19) Plaintiff was later
told he was terminated for “job abandonment.”

Defendant CVS has a policy which provides that workers who are designated “active”
who do not work any hours in a 45 day period are automatically terminated. Plaintiff
contends that the policy of terminating employees automatically after this period was
applied in a discriminatory manner to disabled employees.

Plaintiff alleges causes of action for Disability Discrimination (1st cause of action),
Retaliation (2nd cause of action), Harassment (3rd cause of action), Failure to Prevent
Discrimination (4th cause of action), Wrongful Termination (5th cause of action),
Failure to Engage in the Interactive Process (6th cause of action, and Failure to
Provide a Reasonable Accommodation (7th cause of action). The first six causes of
action seek punitive damages, as does the Prayer.

In support of the motion, CVS contends that when plaintiff returned to work with work
restrictions, CVS complied with the work restrictions in that Dede Johnson, the
assistant store manager, stocked shelves, and plaintiff mopped the floors and stocked
shelves with dog food, all within the restrictions. Plaintiff moved pallets but he could
have used other employees to move the pallets. (Plaintiff’s deposition testimony cited
in UMF 3 13) Plaintiff left early on February 8 before the end of his shift because he
believed the job duties were interfering with his restrictions (UMF 14) and he later told
the shift supervisor that he could not do his job duties because of the pain. (UMF 15.)

CVS’ computer mistakenly considered plaintiff to be on “active status” as of March of
2010 even though he had not returned to work. Plaintiff was “automatically
terminated” in April 2010 by the computer because he had not worked any hours for a
45 day period. CVS contends that this “automated payroll” termination by the
computer is necessary to monitor CVS “active and inactive workforce due to high
turnover.” (UMF 23, Depo. Tammy Myers)

In May of 2010 Crist called human resources and requested that plaintiff be reinstated
because he never should have been coded as being on “active status.” CVS later
sent three letters to plaintiff seeking the reinstatement documentation, and a 4th letter
was sent in September. (UMF39, 40, 45) Plaintiff states that he never received any
letters about the leave of absence policy. (Plaintiff’s declaration para. 11) He contends
he did not get the letters, but CVS logs show that he confirmed he received the
paperwork. (UMF 48)

Defendant contends neither Crist nor the District Manager, Hofer, exercised
substantial discretionary authority over decisions that ultimately determine CVS
corporate policy. Hofer was identified as the PMK for deposition on the topics of
requests for accommodation, and all aspects of plaintiff’s employment including but not
limited to the reasons why plaintiff was terminated. (Hofer deposition page 6.)
However, Hofer stated at his deposition that he had no knowledge of CVS’ 45 day
termination policy for “no hours no work.” (Hofer Decl. pages 10-11)

CVS contends that the facts cannot support a punitive damages claim because the
plaintiff was terminated by a “computer” as the result of an “automatic payroll function”
because he had not performed any work within a 45 day period and not because of
any person’s decision to fire him. CVS contends that no punitive damages should be
awarded since CVS attempted to reinstate the plaintiff after he was terminated. CVS
states that the practice of reinstatement requires the employee to submit
documentation to support their need for leave or need for an accommodation but that
the employee did not do so.

The Doctor’s certification stated that plaintiff could have worked the entire time if he
had been given the weight lifting limit restrictions. The certification was therefore
deemed insufficient by CVS because it did not authorize plaintiffs time off after he had
been terminated.

In opposition, plaintiff states that Crist told him in March that he could not return to
work unless he could lift 50 lbs, and that Crist had been told by Hofer that plaintiff
could not return until all restrictions were lifted or until he could lift 50 lbs. (Declaration
of plaintiff, ¶ 7 – 8.) Plaintiff gave CVS another doctor’s note around March 18 listing
the restrictions and asked for accommodation. At the same time as plaintiff was
requesting accommodation and seeking medical treatment, Christ wrote an email
stating “Daniel DeLuca is out indefinitely at this point. He doesn’t even have another
doctors appointment until the 18th. I have an interview with someone tomorrow who
sounds like he would be a great hire, potentially shift material (wants to move up,
etcetera) and has good experience working nights already. ” (Christ depo page 40)
Plaintiff was told that he had been terminated due to “job abandonment” after he had
taken a child to a medical appointment and told that he had no health insurance.
(Plaintiff’s declaration)

Plaintiff submitted deposition testimony of Sandra Reynoso, Area Human Resources
Director for CVS Area 18, in which she states that CVS tries to accommodate all
workers with medical restrictions and that a cashier position would be an available
accommodation for a person who had a 20 pound weight restriction. (Reynoso Decl,
pages 99-100) Myers stated at her deposition that if a cashier position was available
she could not think of a reason why DeLuca would not have been offered it. (Myers
Depo pp 109-110) Plaintiff’s wife, a store employee at the Lincoln location, states that
CVS hire six cashiers after February 2010 at the Lincoln store. (Declaration of
Charlene DeLuca)

Because of the drastic nature of the summary judgment procedure and the importance
of safeguarding the adverse party’s right to a trial the moving party must make a strong
th
showing. Silva v Lucky Stores, Inc. (1998) 65 Cal.App.4 256, 261. The moving
party’s evidence is strictly construed and the opposing party’s evidence is liberally
construed, resolving any doubts as to the propriety of granting the motion in favor of
th
the opposing party. Kulesa v Castleberry (1996) 47 Cal.App.4 103, 112.

1st cause of action Disability Discrimination: Summary Adjudication is denied.

A prima facie case for disability discrimination for physical disability under the FEHA
requires the plaintiff to show: (1) he suffers from a disability; (2) he is otherwise
qualified to do his job; and, (3) he was subjected to adverse employment because of
his disability. Faust v. California Portland Cement Co., (2007) 150 Cal.App.4th 864,
886) A physical disorder limits a major life activity if it makes it difficult the achievement
of a major life activity. Under the FEHA, the term a major life activity is broadly construed, and includes physical and social activities and working. (Gov. Code
§12926;subd. (K)(l(B(ii)) Defendant does not dispute that plaintiff suffered from a
physical disability under FEHA

A trier of fact could infer from the admissible evidence, viewed most favorably to
plaintiff, that plaintiff was terminated and not reinstated due to his back injury, and
because the employer intentionally failed to engage in the interactive process to
accommodate his medical restriction.

2nd cause of action Retaliation: Summary Adjudication is denied. A trier of fact
could infer from the evidence submitted by plaintiff that he was not offered
accommodation, and was not reinstated after the computer terminated him due to the
fact that he had presented his medical restrictions and asked for accommodation.
Plaintiff’s request for accommodation constitutes protected activity. Wright v
Compusa, Inc. (1st Cir. 2003) 352 F.3d 472.

3rd cause of action Harassment: Summary Adjudication is granted. Plaintiff has
withdrawn this claim. (See opposition page 6)

4th cause of action Failure to Prevent Discrimination : Summary Adjudication is
denied. A trier of fact could infer from the admissible evidence submitted, viewed most
favorably to plaintiff, that plaintiff was terminated and not reinstated because he could
not lift over 20 lbs and because the employer would not accommodate his medical
restriction. Defendant has not negated the District Manager [Hofer’s] statement to
Crist that plaintiff’s work restriction would not be accommodated.

5th cause of action Wrongful Termination in Violation of Public Policy: Summary
Adjudication is denied. A trier of fact could infer from the admissible evidence
submitted, viewed most favorably to plaintiff, that plaintiff was terminated and not
reinstated because he could not lift over 20 lbs and because the employer would not
accommodate his medical restriction.

6th cause of action Failure to Engage in the Interactive Process and 7th cause of
action Failure to Make Reasonable Accommodation: Summary Adjudication is
denied. A trier of fact could infer from the admissible evidence submitted, viewed most
favorably to plaintiff, that CVS made no effort to engage in the interactive process and
accommodate the plaintiff’s lifting restriction even though he was qualified to perform
the cashier position and a cashier position would have been an appropriate
accommodation to his 20 pound lifting restriction.

California Government Code 12940(n) states that an employer is required to engage in
the interactive process with an employee “in response to a request for reasonable
accommodation by an employee or applicant with a known physical….condition.” Cal
Gov Code 12940(n). This affirmative duty “is a mandatory rather than a permissive
obligation on the part of employers” which “is triggered by an employee….giving notice
of the employee’s disability and the desire for accommodation.” Barnett v. U.S Air, Inc
., (9th Cir. 2000) 228 F.3d 1105,1114. When an employee is not able to make such a
request, ” if the company knows of the existence of the employee’s disability, the
employer must assist in initiating the interactive process.” (Id.)

Employers must make reasonable accommodations to the disability of an individual
unless the employer can demonstrate that doing so would impose an “undue hardship.” Prilliman v. United Air Lines, Inc., (1997) 53 Cal.App.4th 935. ‘Undue
hardship’ means an action requiring significant difficulty or expense based on the
consideration of numerous factors including the cost of the accommodation to the
company, the company’s financial and personnel resources, and the manner of the
company’s operations. Id. “Reasonable accommodation’ is a flexible term meant to
include accommodations requiring the company to restructure its way of doing
business that would not create an undue hardship on the company. Id. at 948. It
includes accommodations such as “job restructuring, reassignment to a
vacant position, part-time or modified work schedules, acquisition or modification of
equipment or devices,….and other similar actions.” California Administrative Code Title
2, § 7293.9. CVS presented no evidence that no accommodation was available in
terms of another position that could comply with the lifting restrictions.

Claim for punitive damages:

Summary Adjudication is denied. The Court is ruling on the claim for punitive
damages as a whole and not individually for each separate cause of action. A trier of
fact could infer from the admissible evidence viewed in plaintiff’s favor that plaintiff’s
supervisor and the regional manager determined that plaintiff could not return to work
unless he could lift 50 pounds, and that they would not offer any accommodation for
the weigh restriction. Although Hofer states that he is not a managing agent, his
declaration is the sole witness to that fact and the court exercises its discretion under
CCP 437c(e) to deny the summary adjudication of this claim.

Even if Hofer and Crist were not managing agents, the corporate policy of allowing a
computer to terminate a disabled employee who is requesting accommodation, in
violation of FEHA, could be inferred by a trier of fact to be despicable conduct
warranting an award of punitive damages. Moreover, the reinstatement process,
which puts the burden on the employee to show need for accommodation even though
plaintiff had already provided the information, could also be inferred to be part of the
policy to rid the company of disabled employees.
A trier of fact could infer that the stated reason for not reinstating plaintiff after the
computer terminated him was pretextual. CVS contends that plaintiff was not
reinstated because his doctor certificate did not say he required a leave of absence.
This explanation does not explain why CVS did not comply with the lift restrictions in
the first place.

Plaintiff has presented evidence that the automated termination policy applies to all
200,000 employees, yet the employees are not told of this policy in the extensive
employment manual. The employment manual provides many examples of how an
employee might be terminated, yet there is no mention of the “no work for 45 days”
automatic termination. The person most knowledgeable as to the employee manual
testified that the Employee Manual contains no notice to the employees of the
existence of this policy. (Depo of Katherine Lev, CVS Director of Labor Relations page
102.)

Motion for Summary Judgment is denied.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.