Case Name: George Hafely v. Granite Rock Company, et al.

Case No.: 17CV316847

Defendant’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Factual and Procedural Background

In or around 2001, plaintiff George Hafely (“Hafely”) began his employment with defendant Granite Rock Company (“Granite Rock”) as a Mixer Driver. (First Amended Complaint (“FAC”), ¶6.) In or around 2011, plaintiff Hafely was promoted to Plant Operator for one of defendant Granite Rock’s cement plants located in San Jose. (FAC, ¶7.)

On or about June 3, 2014, plaintiff Hafely loaded concrete mixture into a concrete truck, but the mixture was too dry and plugged up the hopper of the truck. (FAC, ¶8.) To clear the blockage, plaintiff Hafely climbed on top of the truck and used a specially designed tool to loosen the mixture. (Id.) When plaintiff Hafely attempted to retract the tool, the tool became lodged in the hopper. (Id.) In attempting to retract the tool and remove it from the hopper, plaintiff Hafely injured his back. (Id.) Plaintiff Hafely immediately informed his supervisor, John Seith (“Seith”), of the injury and need to see a doctor. (Id.) Seith asked if plaintiff Hafely actually hurt his back at home and waited until he was at work to declare an injury. (Id.) Seith reluctantly allowed plaintiff Hafely to leave work to see a workers’ compensation doctor. (Id.)

The workers’ compensation doctor gave plaintiff Hafely an anti-inflammatory shot and imposed work restrictions included limited lifting, pulling, and pushing only up to ten (10) pounds, and no stooping and bending. (FAC, ¶9.) Additionally, the workers’ compensation doctor noted plaintiff Hafely should be allowed to sit, stand, and walk as needed for comfort. (Id.) After leaving the doctor’s office, plaintiff Hafely called Seith to request two days off to rest his back, but Seith denied plaintiff Hafely’s request without explanation. (FAC, ¶10.)

On or about June 4, 2014, plaintiff Hafely returned to work and verbally informed Seith about the work restrictions which Seith initially acknowledged. (FAC, ¶11.) Plaintiff Hafely was allowed to direct subordinates to assist him with plant maintenance and loading cement trucks. (Id.) However, when the concrete plant was busy, plaintiff Hafely was unable to get any assistance and Seith did not make any accommodations for plaintiff Hafely. (Id.) Seith continued to instruct plaintiff Hafely to lift forty-five (45) pound bags and did not allow plaintiff Hafely to take any breaks to rest his back as required by the work restrictions. (Id.)

From June 2014 to June 2015, Seith continued to ignore plaintiff Hafely’s work restrictions and continued to instruct plaintiff Hafely to carry forty-five (45) pound bags. (FAC, ¶12.) When plaintiff Hafely reminded Seith of the work restrictions, Seith disregarded Hafely’s concerns and said there was “no time to wait.” (Id.)

On or about June 22, 2015, plaintiff Hafely filed a workers’ compensation claim for the back injury he suffered while working at defendant Granite Rock. (FAC, ¶13.) From June 22, 2015 until plaintiff Hafely’s termination, Seith and Division Manager, Mike McGarath (“McGarath”), increased their visits to the San Jose concrete plant that plaintiff Hafely operated to criticize plaintiff Hafely’s work, eager to find any mistakes to blame on plaintiff Hafely. (FAC, ¶14.)

In or around July 2015, plaintiff Hafely asked Seith if he could be transferred to another position where his work restrictions would be implemented, but Seith snickered and left without responding. (FAC, ¶15.) In or around July 2015, McGarath told plaintiff Hafely, “Just get off worker’s compensation and get back to work.” (FAC, ¶16.) Plaintiff Hafely was confused because he was still working his regular hours. (Id.)

In or around July 2015, defendant Granite Rock upgraded to a new type of indicator that showed how much material was in each storage bin. (FAC, ¶17.) Hafely noticed the indicators were not working properly and contacted the indicator’s manufacturer who explained the indicators were not effective with the particular material being stored. (Id.) Seith and McGarath issued a write-up to Hafely for not resolving the issue with the ineffective indicators. (Id.)

In or around July 2015, Seith noticed 300 tons of cement powder were unaccounted for in the inventory reports. (FAC, ¶18.) Seith accused Hafely of stealing the material and selling it to a competitor. (Id.) Seith wrote-up Hafely for the missing cement powder. (Id.) Hafely conducted his own investigation and discovered the numerical discrepancy was due to a clerical error. (Id.)

On or about July 21, 2015, Seith implemented a new policy which required Hafely to complete spreadsheets twice a day to keep track of the amount of materials in the plant. (FAC, ¶19.) No other plant operator was required to fill out these spreadsheets. (Id.) On or about July 24, 2015, Hafely forgot to input inventory data into the spreadsheet. (FAC, ¶20.) On or around July 25, 2015, Hafely realized he forgot to input the inventory data into the spreadsheet and apologized to Seith who told Hafely it was okay, not to worry, and reminded Hafely to continue filling out the spreadsheet in the future. (Id.) An hour later, Seith returned and gave Hafely a write-up for failing to input the inventory data. (Id.)

In or around late July 2015, Hafely and union representatives met with Seith, McGarath, and Human Resources Director, Shirley Ow (erroneously alleged as “Au;” hereafter, “Ow”) where Hafely provided paperwork indicating the missing cement powder was merely a clerical error. (FAC, ¶22.) McGarath refused to take the paperwork and stated, “I couldn’t care less. I don’t care.” (Id.)

On or about August 14, 2015, plaintiff Hafely called in sick to work. (FAC, ¶23.) Plaintiff Hafely suffered from insomnia due to work-related stress. (Id.) Plaintiff Hafely went to see his primary care physician who referred plaintiff Hafely to a psychiatrist, Dr. Belinda Sangrate (“Dr. Sangrate”). (Id.) On or about August 21, 2015, Dr. Sangrate diagnosed plaintiff Hafely with severe clinical depression and anxiety. (FAC, ¶24.) Dr. Sangrate put plaintiff Hafely on disability leave from August 21, 2015 to September 1, 2015. (Id.) Plaintiff Hafely informed defendant Granite Rock’s dispatch office that he would be on medical leave and faxed his Work Status Report to Seith. (Id.) On or about September 1, 2015, Dr. Sangrate extended plaintiff Hafely’s leave to September 17, 2015. (FAC, ¶25.) Plaintiff Hafely called defendant Granite Rock’s dispatch office to inform them about his medical leave extension and again faxed his Work Status Report. (Id.)

On or about September 4, 2015, Ow sent a letter to plaintiff Hafely stating defendant Granite Rock’s understanding that plaintiff Hafely was on leave for a non-work related injury. (FAC, ¶26.) Ow enclosed a Request for Leave of Absence and Certification of Health Care Provider and instructed plaintiff Hafely to complete the forms by October 4, 2015. (Id.)

On or about September 11, 2015, plaintiff Hafely filed a new workers’ compensation claim for stress. (FAC, ¶27.)

On or about September 17, 2015, Dr. Sangrate extended plaintiff Hafely’s medical leave to October 19, 2015. (FAC, ¶28.) Again, plaintiff Hafely called defendant Granite Rock’s dispatch office to inform the dispatcher that his medical leave was extended and faxed over the corresponding Work Status Report. (Id.)

On or about September 24, 2015, Ow sent another letter to plaintiff Hafely indicating defendant Granite Rock considered plaintiff Hafely’s medical leave denied. (FAC, ¶29.)

On or about September 30, 2015, plaintiff Hafely sent an e-mail to Ow stating that he was advised by his attorneys not to fill out the Request for Leave of Absence form. (FAC, ¶30.)

On or about October 8, 2015, Ow sent a final letter to plaintiff Hafely terminating his employment, claiming plaintiff Hafely’s failure to complete the requested form resulted in an unexcused absence. (FAC, ¶31.) The termination caused plaintiff Hafely to have suicidal ideations. (Id.)

Throughout his employment as a Plant Operator for defendant Granite Rock, plaintiff Hafely worked twelve (12) to fifteen (15) hours per day. (FAC, ¶32.) Plaintiff Hafely was regularly denied his meal and rest breaks approximately twice per week. (Id.)

On October 5, 2017, plaintiff Hafely commenced this action by filing a complaint. On November 29, 2017, plaintiff Hafely filed the operative FAC against defendant Granite Rock which asserts causes of action for:

(1) Disability Discrimination
(2) Failure to Engage in the Interactive Process
(3) Failure to Accommodate
(4) Retaliation
(5) Failure to Prevent Discrimination and Retaliation
(6) California Family Rights Act Interference
(7) California Family Rights Act Retaliation
(8) Adverse Employment Action in Violation of Public Policy

On January 2, 2018, defendant Granite Rock filed an answer to plaintiff Hafely’s FAC.

On November 21, 2018, defendant Granite Rock filed the instant motion for summary judgment/ adjudication.

I. Procedural violation.

As a preliminary matter, the court notes that defendant Granite Rock’s memorandum of points and authorities exceeds the page limitations. California Rules of Court, rule 3.1113, subdivision (d) states, in relevant part, “In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.” Defendant Granite Rock’s memorandum of points and authorities is 25 pages. Defendant Granite Rock did not seek leave in advance from this court for a page extension as permitted by California Rules of Court, rule 3.1113, subdivision (e).

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1113, subd. (g).) A court may, in its discretion, refuse to consider a late-filed paper but must indicate so in the minutes or in the order. (Cal. Rules of Court, rule 3.1300, subd. (d).) Defendant Granite Rock is hereby admonished for this procedural violation. Any future failure by defendant Granite Rock to comply with the California Rules of Court or rules of Civil Procedure may result in the court’s refusal to consider defectively filed papers.

Plaintiff Hafely asks this court to disregard anything beyond page 20 of defendant Granite Rock’s memorandum of points and authorities. Should the court consider the entirety of defendant Granite Rock’s memorandum of points and authorities, plaintiff Hafely requests an opportunity to submit additional briefing to address any argument contained therein. The court will note that plaintiff Hafely’s memorandum of points and authorities in opposition consists of 15 pages (pages 8 – 22). The court notes further that plaintiff Hafely’s opposition brief responds to all the points raised in defendant Granite Rock’s opening brief, including points raised in pages 21 through 25. While it was a procedural violation for defendant Granite Rock to submit an opening brief in excess of the page limitations, the court finds plaintiff Hafely has not suffered any prejudice. Plaintiff Hafely had five additional pages within which to respond, but elected not to do so. Plaintiff Hafely’s request to submit additional briefing is DENIED.

II. Adequate notice of motion.

In opposition to defendant Granite Rock’s motion, plaintiff Hafely argues initially that he did not receive adequate notice of this motion because the motion was served on his counsel by overnight delivery which requires an additional two court days of notice. However, the proof of service attached to the motion indicates not only overnight delivery, but also personal service of the motion papers. Based on a valid proof of personal service, defendant Granite Rock’s motion is timely and afforded plaintiff with adequate notice.

III. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s first cause of action [disability discrimination] and fourth cause of action [retaliation] is DENIED.

“The specific elements of a prima facie case [for discrimination] may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).) To establish a prima facie case of disability discrimination, a plaintiff must prove that: “(1) plaintiff suffers from a disability; (2) plaintiff is a qualified individual; and (3) plaintiff was subjected to an adverse employment action because of the disability.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228 236 [internal citations, quotations marks and footnotes omitted].)

“The FEHA makes it unlawful for an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” ([Gov. Code,] § 12940, subd. (h).)” (Scotch, supra, 173 Cal.App.4th at p. 1003.) “To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)

“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 (Scotch).) Under the McDonnell Douglas test, “the plaintiff [first] has the burden of establishing a prima facie case of discrimination. Second, if the plaintiff meets this burden, the employer must offer a legitimate nondiscriminatory reason for the adverse employment decision. Third, and finally, the plaintiff bears the burden of proving the employer’s proffered reason pretextual.” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)

“ ‘A defendant employer’s motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings.’ ” (Scotch, supra, 173 Cal.App.4th at p. 1005.) To prevail on summary judgment, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment.” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.)

By defendant Granite Rock’s own recognition, plaintiff Hafely “asserts a variety of claims … arising out of the termination of his employment, his June 12 and July 21, 2015 write-ups, and the alleged denial of his request for leave to rest his back on June 3, 2014.” In the first cause of action for disability discrimination and fourth cause of action for retaliation, plaintiff Hafely alleges he was subjected to a number of “adverse employment actions including, but not limited to, failing to reasonably accommodate his disability, issuing baseless disciplinary write-ups, failing to adhere to his work restrictions, terminating his employment, and creating the overall hostile terms and conditions of employment.” (FAC, ¶43; see also ¶91.)

Thus, for defendant Granite Rock to obtain summary adjudication of the first and fourth causes of action, defendant Granite Rock must identify each adverse employment decision and then offer a legitimate nondiscriminatory reason for each of the adverse employment decisions. Defendant Granite Rock begins with plaintiff Hafely’s termination. Defendant Granite Rock explains plaintiff Hafely went to see his doctor on or about August 20, 2015 and on August 21, 2015, plaintiff Hafely’s psychiatrist took plaintiff Hafely off work for stress from August 21, 2015 through September 1, 2015. On or about September 1, 2015, plaintiff Hafely’s psychiatrist extended Hafely’s time off work through September 17, 2015.

On September 4, 2015, Ann Giusiana (“Giusiana”), defendant Granite Rock’s Human Resources representative, requested plaintiff Hafely complete and return “Request for Leave of Absence” form and “Certification of Health Care Provider,” by September 19, 2015. Hafely called and left a message with dispatch after hours on September 17, 2015, stating that his leave had been extended to October 19, 2015. Giusiana called Hafely on September 18 and 22, 2015 and requested additional information regarding his leave extension and that the medical certification and leave of absence request forms be returned. Giusiana sent Hafely a letter on September 24, 2015 advising Hafely his time off was unapproved, requesting additional information regarding his leave extension, that the medical certification and leave of absence request forms be returned, and that failure to return the forms could result in the termination of his employment.

On September 30, 2015, Hafely notified Granite Rock that he would not return the “Request for Leave of Absence” form and “Certification of Health Care Provider” form. Hafely never submitted a “Request for Leave of Absence” form or “Certification of Health Care Provider” form to Granite Rock, and did not attempt to return the forms. Hafely understood that if he did not return the “Request for Leave of Absence” form or “Certification of Health Care Provider” form, his employment could be terminated. On October 8, 2015, Granite Rock terminated Hafely’s employment for unexcused absence because he refused to return the medical certification and leave of absence forms related to his absence.

Based on the evidence above, defendant Granite Rock has met its initial burden by proffering a legitimate nondiscriminatory reason for its decision to terminate plaintiff Hafely’s employment. “If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” (DeJung v. Super. Ct. (2008) 169 Cal.App.4th 533, 553, citing Cucuzza v. City of Santa Clara (2002) 104 Cal. App. 4th 1031, 1038 (Cucuzza) and Guz, supra, 24 Cal.4th at p. 357.)

In opposition, plaintiff Hafely raises a triable issue of material fact by producing evidence that the failure to complete a leave of absence form is not the true reason for his termination because other Granite Rock employees who suffered injury were not required to complete the form. Giusiana testified that Granite Rock’s policy requires that whenever an employee needs to take medical leave the employee must submit a completed Leave of Absence Request (“LOAR”) form and a medical certification form completed by their doctor. This interpretation of Granite Rock’s medical leave policies was corroborated by Ow, Granite Rock’s Vice President of Human Resources, who asserted that Granite Rock requires employees to submit a medical certification completed by their doctor for “any type of medical leave….” Ow further testified that Granite Rock policy requires that whenever an employee needs leave for a non-work related serious health condition, the employee must submit a completed LOAR form and a medical certification form completed by their doctor. According to Ow, Granite Rock has never made any exception to this policy when the period of medical leave needed by the employee exceeds two weeks.

Tim Sanchez (“Sanchez”) worked with plaintiff Hafely at Granite Rock’s San Jose concrete plant. Sanchez had to take approximately three consecutive months off from work to recover from a non-work-related back injury. In contrast to plaintiff, Granite Rock never required Sanchez to return completed LOAR or medical certification forms to authorize his medical leave.

Brian Lacerda (“Lacerda”) is another Granite Rock employee who worked with plaintiff at the San Jose plant. Similar to Sanchez, Lacerda took approximately six consecutive months off to recover from a back injury and was not required by Granite Rock to return completed LOAR and medical certification forms. While Lacerda’s back injury was work-related and handled through the worker’s compensation system, according to Stephanie Kniffin, Granite Rock’s policy still requires that he should have submitted a completed LOAR form.

As this evidence presents a triable issue of material fact with regard to whether defendant Granite Rock discriminated against plaintiff Hafely, the court need not decide whether defendant has met its initial burden of proffering a legitimate nondiscriminatory reason for each of the other adverse employment actions alleged by plaintiff Hafely in the first and fourth causes of action. Code of Civil Procedure section 437c, subdivision (f) does not authorize partial summary adjudication. “The purpose of the enactment of Code of Civil Procedure section 437c, subdivision (f) was to stop the practice of piecemeal adjudication of facts that did not completely dispose of a substantive area.” (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)

Accordingly, defendant Granite Rock’s motion for summary judgment is DENIED. Defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s first cause of action for disability discrimination and fourth cause of action for retaliation is DENIED.

IV. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s second cause of action [failure to engage in the interactive process] and third cause of action [failure to accommodate] is DENIED.

“The FEHA makes it unlawful for an employer ‘to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (§ 12940, subd. (n).) Section 12940, subdivision (n) imposes separate duties on the employer to engage in the ‘interactive process’ and to make ‘reasonable accommodations.’ [Citations.]” (Scotch, supra, 173 Cal.App.4th 986, 1003.) An employer’s failure to engage in this process is a separate FEHA violation. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 – 425.) “The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required. [Citation.]” (Wilson v. County of Orange (2009) 169 Cal. App. 4th 1185, 1195.)

The “obligation [to engage in the interactive process] is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for accommodation.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261.) “Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.” (Scotch, supra, 173 Cal.App.4th at p. 1013.)

“The FEHA imposes on the employer the obligation to make reasonable accommodation: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] … [¶] (m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (§ 12940, subd. (m).) An employer is not required to make an accommodation “that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.” (Ibid.)” (Scotch, supra, 173 Cal.App.4th at p. 1003.) “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]” (Id. at pp. 1009 – 1010.)

Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954, [62 Cal.Rptr.2d 142].) Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. (See Jensen, supra, 85 Cal.App.4th at p. 266, 102 Cal.Rptr.2d 55.) While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54, [43 Cal.Rptr.3d 874] (Gelfo).)

(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242.)

“[t]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees” with the goal of “identify[ing] an accommodation that allows the employee to perform the job effectively.” (Ibid.) The court noted that for the process to work “[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.” (Id. at pp. 1114–1115, fn. omitted.) 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.]” (Id. at p. 1115, quoting Beck v. University of Wis. Bd. of Regents (7th Cir.1996) 75 F.3d 1130, 1135–1137.) The court concluded that “an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process.” (Barnett v. U.S. Air, Inc., supra, 228 F.3d at p. 1116, fn. omitted.)

(Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (Jensen).)

Just as with the first cause of action, there are a number of factual instances which give rise to the second and third causes of action. Defendant Granite Rock argues it cannot be liable for either a failure to accommodate or a failure to engage in the interactive process because it either accommodated all of plaintiff’s work restrictions, granted each request for leave supported by a doctor’s note, or was unaware of the need for further accommodation.

“[A]ssuming the employee is disabled, 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.” (Jensen, supra, 85 Cal.App.4th at p. 263.)

In opposition, plaintiff proffers evidence that raises a triable issue with regard to whether Granite Rock did everything in its power to find a reasonable accommodation prior to terminating him. On September 3, 2015, plaintiff put Granite Rock on notice that he had been diagnosed by his psychiatrist as clinically depressed and suffering from anxiety. On September 23, 2015, Kniffin communicated to Ow that plaintiff had filed a worker’s compensation claim for work-related stress. Before terminating plaintiff, Granite Rock knew plaintiff was alleging that he was mentally disabled due to work-related stress. Following its receipt of plaintiff’s Sept. 30, 2015 email in which he communicated his belief that he was mentally disabled due to work-related stress, Granite Rock did not reach out to plaintiff or his worker’s compensation attorney to ascertain what, if any, reasonable accommodation it could provide him that would enable him to continue to perform the essential functions of his job. Granite Rock did not consider offering plaintiff personal leave—as a reasonable accommodation, or any other reason—after he communicated that he was disabled due to stress. Prior to terminating plaintiff’s employment, Granite Rock did not consider or analyze how, if at all, offering plaintiff personal leave may have imposed an undue hardship upon it.

Defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s second cause of action for failure to engage in the interactive process and third cause of action for failure to accommodate is DENIED.

V. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s fifth cause of action [failure to prevent discrimination and retaliation] is DENIED.

A claim for “Failure to Prevent Harassment, Discrimination, and Retaliation” necessarily depends upon establishing that harassment, discrimination, and/retaliation occurred in the first place. Under FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (See Gov. Code §12940, subd. (k).) A prerequisite to a finding of liability for the failure to take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282 – 283; see also Scotch, supra, 173 Cal.App.4th at p. 1021.) Defendant Granite Rock argues that since there is no discrimination or retaliation in the first instance, there can be no claim for the failure to prevent it.

In light of the rulings above, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s fifth cause of action for failure to prevent discrimination and retaliation is DENIED.

VI. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s sixth cause of action [California Family Rights Act interference] is DENIED.

In 1991, the Legislature enacted the CFRA. (§ 12945.2.) The CFRA, which is contained within the FEHA (§ 12900 et seq.), “is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.” (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 606, 88 Cal.Rptr.2d 239.)

Generally, the CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant a request by an employee to take up to 12 workweeks in any 12–month period for family care and medical leave. (§ 12945.2, subds. (a), (c)(2)(A).) By prohibiting “employment discrimination based upon family and medical leave, the CFRA strengthens the FEHA’s general goal of preventing the deleterious effects of employment discrimination, and also furthers the CFRA’s specific goal of promoting stability and economic security in California families.” (Nelson v. United Technologies, supra, 74 Cal.App.4th at p. 610, 88 Cal.Rptr.2d 239.) [Footnote omitted.]

An interference claim under the FMLA (and thus the CFRA) does not involve the burden—shifting analysis articulated by the United State Supreme Court in McDonnell Douglas, supra, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. As stated in Bachelder v. America West Airlines, Inc. (9th Cir.2001) 259 F.3d 1112, 1131 (Bachelder), “there is no room for a McDonnell Douglas type of pretext analysis when evaluating an ‘interference’ claim under this statute.” A violation of the FMLA “simply requires that the employer deny the employee’s entitlement to FMLA leave.” (Xin Liu v. Amway Corp. (9th Cir.2003) 347 F.3d 1125, 1135.)

(Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 878–879 (Faust).)

Plaintiff’s sixth cause of action alleges, in relevant part, “Plaintiff took medical leave to rest his back injury and took medical leave for stress. … Defendant refused to grant Plaintiff’s request for CFRA leave for his back injury, and ultimately terminated Plaintiff after he took medical leave for stress.” (FAC, ¶¶123 and 125.)

In moving for summary adjudication of this cause of action, defendant Granite Rock apparently argues that it did not deny plaintiff’s entitlement to CFRA leave following his request for medical leave for stress because plaintiff Hafely did not respond to defendant Granite Rock’s requests for information to determine that the leave qualifies as CFRA leave.

“An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken.”

(Faust, supra, 150 Cal.App.4th at pp. 879–880.)

If the employer needs further information to determine whether the employee is requesting CFRA leave or the reason for the leave, it must request such information from the employee. (2 CCR §11091(a)(1); see also Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1256.) Here, as outlined above, defendant Granite Rock proffers evidence that it contacted plaintiff Hafely from September 4, 18, 22, and 24, 2015, requesting additional information and completion of the medical certification form, but that plaintiff notified Granite Rock on September 30, 2015 that he would not return the requested forms. Admittedly, plaintiff did not submit the LOAR or requested medical certification form to defendant Granite Rock.

In opposition, plaintiff proffers evidence that he, nevertheless, submitted a “Work Status Report” to defendant Granite Rock on September 17, 2015 which indicated that his medical leave had been further extended. Plaintiff also proffers evidence that he had previously, on September 3, 2015, put Granite Rock on notice that he had been diagnosed by his psychiatrist as clinically depressed and suffering from anxiety. As of September 23, 2015, Granite Rock knew that plaintiff had filed a worker’s compensation claim for work-related stress.

If an employer fires an employee who has given the employer a facially valid certification in support of a request for medical leave and the employee then sues for violation of the CFRA, the employer may not defend the suit by asserting that the employee, when requesting leave, provided insufficient evidence that the employee fell within the provisions of the CFRA.

(Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 211 (Lonicki).)

Plaintiff’s evidence at least presents a triable issue with regard to whether he has provided defendant Granite Rock with facially valid certification of his medical condition and, thus, whether plaintiff was entitled to CFRA leave. The court need not address defendant Granite Rock’s additional argument that plaintiff’s request for CFRA leave to rest his back injury is time barred.

Accordingly, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s sixth cause of action for California Family Right Act interference is DENIED.

VII. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s seventh cause of action [California Family Rights Act retaliation] is DENIED.

A plaintiff can establish a prima facie case of retaliation in violation of the CFRA by showing the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave.

(Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 491; see also Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 260–261.)

“Once an employee ‘establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “ ‘ “drops out of the picture,” ’ ” and the burden shifts back to the employee to prove intentional retaliation. [Citation.]’ [Citation.]” (Faust, supra, 150 Cal.App.4th at p. 885.)

Defendant Granite Rock’s arguments in support of summary adjudication of the seventh cause of action are the same arguments raised above with regard to the fourth and sixth causes of action. For the same reasons discussed above, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s seventh cause of action for California Family Right Act retaliation is DENIED.

VIII. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s eighth cause of action [adverse action in violation of public policy] is DENIED.

Defendant Granite Rock contends plaintiff Hafely’s eighth cause of action for adverse employment action in violation of public policy is duplicative of his other claims and argues that since the other claims fail, so too does this eighth cause of action. However, in light of the rulings above, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s eighth cause of action for adverse employment action in violation of public policy is DENIED.

IX. Defendant Granite Rock’s motion for summary adjudication of plaintiff Hafely’s claim for punitive damages is DENIED.

“A party may move for summary adjudication as to … one or more claims for damages … if that party contends … that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code. A motion for summary adjudication shall be granted only if it completely disposes of … a claim for damages.” (Code Civ. Proc. §437c, subd. (f)(1).) “Summary adjudication may also be granted as to a claim for punitive damages even though it does not dispose of an entire cause of action.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶10:41, p. 10-12 citing Code Civ. Proc., §437c, subd. (f)(1); Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96—“[A] claim for punitive damages is one of the substantive areas which is properly the subject of a motion for summary adjudication.”)

Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” A claim for punitive damages requires “clear and convincing evidence” that defendant has been guilty of “oppression, fraud or malice” in the commission of a tort. [¶] Thus, defendants may seek summary adjudication either that: [1] some element of the tort claim cannot be established; or [2] defendants’ conduct does not constitute “oppression, malice or fraud” (as defined by Civil Code §3294(c)); or [3] plaintiff’s proof is not “clear and convincing” as required by Civil Code §3294(a). (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶10:42, p. 10-12.)

In 1980, the Legislature added subdivision (b) to section 3294, to add a special qualification for employer liability for those damages. Subdivision (b) states, in relevant part, that an employer shall not be liable for punitive damages based on an employee’s acts unless “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” The statute includes an additional qualification for corporate employers, who may not be liable for punitive damages unless “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice [is] on the part of an officer, director, or managing agent of the corporation.”

(White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566, fn. 1.)

Defendant Granite Rock contends it is not liable for punitive damages by arguing that Ow, to the extent she is an officer, director or managing agent of Granite Rock, had a legitimate reason for terminating plaintiff Hafely’s employment, i.e., Hafely refused to return the medical certification and leave of absence forms related to his absence. However, as explained above, a triable issue of material fact exists with regard to whether defendant Granite Rock’s purported reason for terminating plaintiff Hafely’s employment was pretextual.

Accordingly, defendant Granite Rock’s alternative motion for summary adjudication of plaintiff Hafely’s claim for punitive damages is DENIED.