Filed 4/15/20 Arthur v. Disneyland Resort CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

FRANCINE M. ARTHUR,

Plaintiff and Appellant,

v.

DISNEYLAND RESORT et al.,

Defendants and Respondents.

G057233

(Super. Ct. No. 30-2016-00884013)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Melissa R. McCormick, Judge. Affirmed.

Francine M. Arthur, in pro. per., for Plaintiff and Appellant.

Sidley Austin and David R. Carpenter for Defendants and Respondents.

Francine M. Arthur filed an action for wrongful termination, intentional infliction of emotional distress, and retaliation. She named Walt Disney Parks and Resorts U.S., Inc. (WDPR), Disneyland Resort, The Walt Disney Company, and her former manager, Eric Quezada, as defendants. The trial court granted summary judgment in favor of all defendants. Arthur asserts the court misapplied the proper framework for a wrongful termination claim and the evidence raised a triable issue as to discrimination. None of her arguments have merit, and we affirm the judgment.

FACTS

In March 2012, WDPR hired 44-year-old Arthur as a hostess at the Napa Rose Restaurant in Disney’s Grand Californian Hotel at the Disneyland Resort. At all times her employer was WDPR.

The essential job functions of the hostess position at Napa Rose include, “greeting guests, taking and confirming reservations, planning table assignments, and seating guests.” “Seating guests includes carrying menus and escorting guests to the assigned tables, resetting the tables as necessary, removing a dining chair for a child’s high chair if necessary, pulling out a 22-pound wooden dining chair for each guest before he or she is seated, placing a napkin across each guest’s lap, and assisting the guest in scooting in his or her chair.”

In August and October 2012, Arthur sustained two work-related injuries. After Arthur’s second injury, and based on temporary restrictions, she was placed in WDPR’s light transitional duty program. In the program, she was assigned light duty positions elsewhere in the park on a temporary basis.

Arthur returned to the hostess position at Napa Rose in January 2013; , she had no physical restrictions on file. In February 2014, Arthur aggravated her injury and began a 13-month medical leave during which she was completely removed from all work duties. In March 2015, Arthur’s doctor released her back to work with the following nine permanent physical restrictions: “(1) use of a walker or cane; (2) no carrying, lifting, pushing or pulling more than five pounds; (3) no walking on uneven surfaces; (4) no standing or walking for more than 30 minutes per hour; (5) no sitting for more than 30 minutes per hour; (6) no bending for more than 15 minutes per hour; (7) no kneeling or squatting; (8) no overhead work; and (9) no climbing.”

At the end of March 2015, Arthur attended an in-person meeting with Napa Rose general manager Phillippe Tosques and a third-party consultant engaged by WDPR. During the meeting, the parties discussed the essential job functions of the hostess position, Arthur’s physical restrictions, and what reasonable accommodations, if any, could be provided to enable her to perform the essential functions of her position. According to the evaluation report of that meeting, Arthur requested her duties be limited to “[a]ssigning [t]ables.” Tosques stated, “[S]eating [g]uests is also an essential function,” and it was not possible to limit Arthur’s duties to “[a]ssigning [t]ables” “because it’s not possible to predict when and how many guests will arrive,” and the nature of the business required that all hosts on duty be available to assist one another in their roles and duties. Arthur had no suggestion on how to accommodate her in performing the “[s]eating [g]uests” essential function.

Ultimately, Tosques determined he was unable to accommodate Arthur, and WDPR began a “recasting” process, whereby it sought to transfer Arthur to a vacant position for which she was qualified for, with or without reasonable accommodations. As part of the process, Arthur spoke by telephone with a recasting representative, Veronica Kuri. Kuri never met Arthur in person and was not aware of her race, age, or any internal complaints. WDPR attempted, but was unable, to find a vacant position for which Arthur was qualified, with or without reasonable accommodation.

WDPR then engaged an internal review committee, called the “Threshold Committee, to consider whether any other reasonable accommodation options were possible.” The Threshold Committee is an interdisciplinary committee comprised of representatives with experience in leaves of absence, reasonable accommodations, employee relations, casting, and workers’ compensation. The Threshold Committee determined no suitable alternative position was available. At the time the Threshold Committee conducted its review, Arthur had been on a leave of absence beyond 12 months and her restrictions were permanent. The Threshold Committee decided to terminate Arthur’s employment in May 2015. Members of the Threshold Committee were not aware of, and did not consider, Arthur’s race, age, or any internal complaint when deciding to terminate her employment.

In 2016, Arthur filed a complaint for wrongful termination in violation of public policy under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900, et seq.), intentional infliction of emotional distress, and for violation of Labor Code section 1102.5 (all further statutory references are to the Labor Code, unless otherwise indicated). Arthur named WDPR, Disneyland Resort, and The Walt Disney Company (collectively the Disney defendants) as defendants to all causes of action. She also named one of her former managers, Eric Quezada, as a defendant on the emotional distress claim.

The Disney defendants and Quezada filed motions for summary judgment on all claims against them. The trial court granted summary judgment in favor of all defendants on all claims. The court reasoned summary judgment was proper as to Disneyland Resort and The Walt Disney Company because WDPR undisputedly employed Arthur.

As for the claims against WDPR, the trial court first applied the McDonnell Douglas burden-shifting framework, as modified for use at summary judgment. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804, (McDonnell Douglas).) The court determined: “Here, WDPR set forth competent, admissible evidence of its reasons, unrelated to discrimination, for terminating Arthur. WDPR presented evidence demonstrating that it was not possible for WDPR to reasonably accommodate several of Arthur’s permanent work restrictions and that there were no suitable alternative positions available.” The court further explained, “[i]n light of WDPR’s evidence, Arthur had the burden of . . . pointing to evidence that raises a rational inference that discrimination occurred.”

The trial court then considered Arthur’s arguments that WDPR could have accommodated her disability by “allowing her to work as an ‘assigner’ hostess,” and Quezada had been hostile to Arthur based on her disability. The court concluded Arthur failed to raise any triable issue of material fact because, among other things, her nine permanent physical restrictions precluded her from performing the essential functions of her job, with or without accommodation, and the Threshold Committee and those involved in the termination decision undisputedly were not aware of her race, age, disability, or any prior complaints.

Arthur’s second cause of action for intentional infliction of emotional distress against all defendants was based on alleged mistreatment by certain co-workers and Quezada from 2012 to 2013. The trial court determined Arthur’s claim, filed in October 2016, was barred by the applicable two-year statute of limitations. Because Arthur failed to allege any interaction with Quezada within the limitations period, any claim based on his conduct was time-barred. Furthermore, the court found no evidence of extreme or outrageous conduct by WDPR in connection with the March 2015 termination.

Arthur’s third cause of action alleged WDPR violated section 1102.5 by retaliating against her for internal complaints she made in 2012 and 2013. The trial court noted the version of section 1102.5 in effect during the relevant time period only applied to information disclosed to a government or law enforcement agency. Because Arthur did not allege any protected activity covered by the applicable statute, the third cause of action also failed, and summary judgment was entered in favor of WDPR.

DISCUSSION

Arthur claims the trial court misapplied the McDonnell Douglas framework and erroneously concluded she did not meet her burden to present evidence of a genuine issue of material fact on her claims. None of her arguments have merit, and we affirm the judgment.

Our standard of review on a summary judgment order is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) Summary judgment is appropriate “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 defendant moving for summary judgment bears the initial burden of presenting evidence to negate an essential element of the claim or to establish an affirmative defense. (Aguilar, supra, 25 Cal.4th at p. 850.) Once a defendant meets its initial burden, the burden then shifts to plaintiff to present admissible, competent evidence sufficient to show a triable issue of material fact. (Ibid.) “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.” (Ibid., [fn. omitted.]) “[A]n issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture. [Citation.]” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)

I. Wrongful Termination

A. The Trial Court Properly Applied the McDonnell Douglas Framework

A prima facie case for disability discrimination under the FEHA requires a plaintiff to show the following: (1) she suffers from a disability; (2) she is otherwise qualified to do her job; and (3) she was subjected to adverse employment action because of her disability. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344-345 (Arteaga).) If a plaintiff establishes her prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. (Id. at p. 352.)

California courts generally apply the McDonnell Douglas framework for trying discrimination claims—a three-step burden-shifting framework developed by the United States Supreme Court. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) First, the employee bears the initial burden of establishing a prima facie case of discrimination. (Ibid.) Second, if a prima facie case is made, the burden then shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for the termination. (Id. at pp. 355-356.) Third, if the employer meets its burden, the employee then has the opportunity to attack the explanation as mere pretext, or show additional evidence of discrimination. (Id. at p. 356.)

The McDonnell Douglas framework was originally developed for use at trial, and its application is slightly modified where a defendant employer is moving for summary judgment. (Arteaga, supra, 163 Cal.App.4th at pp. 343-344.) This variation is needed because the employer bears the initial burden on its motion, and it may meet that burden by presenting evidence of nondiscriminatory reasons for the termination. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1005 (Scotch).) “To defeat the motion [for summary judgment], the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.]” (Ibid.) Once an employer presents evidence of a legitimate, non-discriminatory reason, “an employee seeking to avoid summary judgment cannot simply rest on the prima facie showing, but must adduce substantial additional evidence from which a trier of fact could infer the articulated reasons for the adverse employment action were untrue or pretextual. [Citations.]” (Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102, 1113.)

In Guz, the employer “proceeded directly to the second step of the McDonnell Douglas formula” by “set[ting] forth competent, admissible evidence” of a legitimate, nondiscriminatory reason for the employee’s termination. (Guz, supra,

24 Cal.4th at p. 357.) That initial showing shifted the burden to the employee to present rebuttal evidence that “raise[d] a rational inference” of discrimination. (Ibid.)

Like the Guz court, the trial court here proceeded directly to the second step of the McDonnell Douglas framework, finding “WDPR set forth competent, admissible evidence of its reasons, unrelated to discrimination, for terminating Arthur.” WDPR set forth evidence Arthur was unable to perform essential functions of her position, namely seating guests, with or without reasonable accommodations. WDPR’s showing then shifted to Arthur “the burden of rebutting WDPR’s evidence by pointing to evidence that raises a rational inference that discrimination occurred.” The court properly decided the motion at the third step of the McDonnell Douglas framework. It did not apply “an inappropriate formulation” of the standards for a “prima facie case” as Arthur claims. As set forth below, the court also properly determined Arthur failed to present evidence sufficient to raise a triable issue of discrimination under any theory.

B. The Trial Court Properly Rejected Arthur’s Disability Discrimination Claim

“The FEHA ‘does not prohibit an employer from . . . discharging an employee with a physical or mental disability, . . . where the employee . . . is unable to

perform his or her essential duties even with reasonable accommodations. . . .’ ([Gov. Code,] § 12940, subd. (a)(1).)” (Scotch, supra, 173 Cal.App.4th at pp. 1005-1006.) The law does not require an employer to eliminate essential functions of the position or to create what amounts to a new position. (Id. at p. 1011.) Thus, Arthur’s disability discrimination claim required a showing she “was otherwise qualified” for the job. (Id.

at p. 1006.)

Simply put, Arthur could not perform the essential tasks required of her position. Arthur conceded the essential functions of the hostess position included, among other things, seating guests. Arthur did not dispute her physical restrictions impacted her ability to seat guests. She presented no evidence of any accommodation that would allow her to perform that function. Instead, Arthur sought an accommodation that WDPR limit the essential functions of the hostess position to only assigning tables. This, however, is not what the law requires.

In Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1224-1227 (Raine), the appellate court affirmed the trial court’s grant of summary judgment in favor of employer on a FEHA action for disability discrimination, explaining “an employer is not required to create light-duty positions for purposes of accommodating a disabled employee unable to perform the essential functions of the position for which he or she was hired.” Similarly in Scotch, the Court of Appeal affirmed the grant of summary judgment in favor of employer because the “proposed accommodation was akin to creation of a new employment position.” (Scotch, supra, 173 Cal.App.4th at p. 1012.) Like in Raine and Scotch, the undisputed facts demonstrated Arthur could not perform the essential functions of her position, with or without accommodation. There is simply no obligation for an employer to eliminate an essential job function or to create a new position.

Arthur suggests WDPR’s stated reasons for not being able to accommodate her disability are not to be believed, but instead were pretextual and discriminatory. As evidence of pretext, Arthur stated she was able to perform the hostess job with an accommodation in the past. At the end of 2012, Arthur had only a single, temporary restriction limiting the amount of weight she could lift. The restriction was removed by January 2013. By contrast in 2015, Arthur had nine permanent restrictions that prevented her from performing the essential functions of her job with or without accommodation. Simply because WDPR accommodated Arthur for a previous, temporary restriction with certain lighter duties, it had no obligation to create a permanent, full-time table assigner position for her.

Arthur contends WDPR engaged in spoliation by allegedly hiding an accommodation report. Arthur failed to raise this issue before the trial court, and we deem it waived. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) Similarly, Arthur’s contention on appeal that WDPR failed to make a sufficient effort to find her a substitute position is also waived. Arthur’s separate statement conceded that WDPR attempted, but was unable, to find a vacant position for which she was qualified, with or without reasonable accommodation. WDPR’s refusal to eliminate an essential job function simply did not raise a rational inference of pretext or discriminatory animus.

II. Intentional Infliction of Emotional Distress Claim

Arthur asserts the trial court’s grant of summary judgment in favor of defendants on her emotional distress claim was incorrect as a matter of law. She contends WDPR’s actions caused her “aggravated medical mental depression after termination and enduring the harassment of WDPR employees resulting in emotional distress.” We find no error.

A claim for intentional infliction of emotional distress requires a showing of the following elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. [Citation.]” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous. [Citation.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

On appeal, Arthur asserts Quezada and WDPR caused her depression due to their retaliation based on her disability. As to Quezada, the trial court properly determined Arthur’s claim against him was barred by the applicable two-year statute of limitations. (Code Civ. Proc., § 335.1.) Because Arthur filed her complaint in October 2016, any alleged conduct must have taken place on or after October 2014. However, Arthur failed to submit evidence of any interaction at all with Quezada, much less one that was extreme and outrageous, after February 2014.

WDPR’s actions leading up to Arthur’s termination in 2015 failed to rise to the level of extreme and outrageous conduct required for an emotional distress claim. Conduct that is “‘beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ [Citations.]” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 5.) Termination from a job, without more, is an insufficient basis for an intentional infliction of emotional distress claim. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65, 80.) Furthermore, as discussed above, WDPR engaged in an interactive process to find a position where Arthur could perform the essential functions, with or without reasonable accommodations. WDPR’s conduct was not extreme and outrageous as a matter of law. The trial court properly entered summary judgment in favor of Quezada and WDPR on Arthur’s intentional infliction of emotional distress claim.

III. Section 1102.5 Claim

Arthur asserts the trial court improperly granted summary judgment on her claim for whistle-blower retaliation under former section 1102.5. We disagree.

To establish a prima facie case of retaliation under section 1102.5, a plaintiff must demonstrate she: (1) engaged in a protected activity, (2) the employer subjected her to an adverse employment action, and (3) there is a causal link between the two. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) Prior to its 2013 amendment, section 1102.5, protected against retaliation for an employee’s “disclosing information to a government or law enforcement agency. . . .” (Former § 1102.5, subd. (b), as amended by Stats. 2013, ch. 781, § 4.1 [effective 2004 to 2013].) A subsequent amendment expanding the statute to illegal activity reported to the employer was not retroactive. (Youe-Kong Shue v. Optimer Pharms., Inc. (S.D. Cal. Aug. 1, 2017, No. 16-cv-2566) [2017 WL 3316259, *10].) Arthur concedes former section 1102.5 governs her claims.

Arthur argues under Diego v. Pilgrim United Church of Christ (2014)

231 Cal.App.4th 913, 924 (Diego), she only needed to be perceived as a whistleblower to preserve her retaliation claim. Diego involved a preschool teacher who sued her employer for wrongful termination. (Id. at p. 917.) Teacher alleged she was terminated as a result of the employer’s mistaken belief she had lodged a complaint with the licensing division of the State Department of Social Services, which resulted in an unannounced inspection of the preschool. (Ibid.) The Court of Appeal determined former section 1102.5, subdivision (b), applied to a terminated employee perceived by the employer to be a whistleblower. (Id. at p. 923.) Here, by contrast, Arthur presented no evidence she was perceived as a whistleblower. Instead, WDPR presented a legitimate, nondiscriminatory reason for Arthur’s termination. We find no error.

IV. Arthur’s Motion for Judicial Notice

Arthur moved for judicial notice of several deposition excerpts and documents including e-mails, her resume and work history, and a co-workers LinkedIn Web site. We deny her motion.

As a general rule, appellate courts “‘will consider only matters which were part of the record at the time the judgment was entered.” [Citation.]”’ (In re Marriage of Eustice (2015) 242 Cal. App. 4th 1291, 1300, fn. 3.) Thus “[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court.” (Ibid.) Even assuming the requested documents qualified for judicial notice, Arthur concedes they were not presented to the trial court. As such, we decline to take judicial notice.

DISPOSITION

We affirm the judgment and deny Arthur’s motion for judicial notice. WDPR shall recover its costs on appeal.

O’LEARY, P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.