2012-00132493-CU-WT

Jose Gomez vs. JCM Partners LLC

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

Filed By: Kennaday, Kelli M.

Defendant JCM Partners, LLC’s Motion for Summary Judgment, or in the Alternative
for Summary Adjudication of Issues is GRANTED.

Defendant’s Request for Judicial Notice is GRANTED.

Plaintiff’s evidentiary objections are not ruled upon by the Court as plaintiff has
objected to the defendant’s material facts, not the evidence cited in support. Plaintiff
has failed to comply with the requirements of C.R.C., Rule 3.1354 (as amended 2007).

Plaintiff Jose Gomez’s First Amended Complaint sets forth six causes of action: the 1st
for disability discrimination, the 2nd for age discrimination, the 3rd for family medical

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leave discrimination, and the 4 for wrongful termination in violation of public policy.
Defendant moves for summary adjudication of each cause of action.

The undisputed facts are that plaintiff, an employee of JCM, went on medical leave for
10 days from March 6, 2011 to March 17, 2011. JCM was contacted by plaintiff’s wife,
Debbie Streich, to advise that during a medical procedure, plaintiff suffered
complications, and could not return to work as scheduled. Despite JCM’s request for
plaintiff’s current phone number and doctor’s note regarding his medical condition,
JCM did not receive that information. JCM followed up again on March 24 and April
12, 2011 but did not receive the requested information. On April 14, 2011, JCM spoke
to plaintiff, explained the need for documentation of his condition and requested an
expected return date. Neither was provided to JCM by plaintiff. On April 22, 2011,
JCM sent plaintiff a letter, to which no response was received.

On May 20, 2011 termination was recommended and approved after one further
attempt was made by JCM to contact plaintiff. Phone calls were placed to plaintiff and
his wife on May 24, 2011, but neither answered their phones. A letter was mailed to
plaintiff on May 24, 2011 advising him of his termination by JCM. No response was
received.

On May 18, 2011, the Veteran’s Administration issued an enrollment letter to plaintiff reflecting that he was determined to be “catastrophically disabled.” Plaintiff’s treating
VA physician declared he would never work again. Plaintiff admitted in response to
interrogatories in his medical malpractice case that he would never work again.
Plaintiff received State Disability benefits from March 10, 2011 to March 12, 2012
based upon his representation that he was permanently and totally disabled.

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Summary adjudication of the 1 cause of action for disability discrimination is
GRANTED. Plaintiff’s discrimination cause of action also includes claims for failure to
accommodate and failure to engage in the interactive process, which are separately
adjudicated below.

In discrimination claims, California has adopted the three stage burden shifting test
known as the McDonnell Douglas test. First, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. The employer then must offer a
legitimate nondiscriminatory reason for the adverse employment decision. Finally, the
plaintiff bears the burden of proving the employer’s proffered reason was pretextual.
Slatkin v. Univ. of Redlands (2001) 88 Cal. App. 4th 1147, 1156.

“A defendant employer’s motion for summary judgment slightly modifies the order of
these showings. If…the motion for summary judgment relies in whole or in part on a
showing of nondiscriminatory reasons for the discharge, the employer satisfies its
burden as a moving party if it presents evidence of such nondiscriminatory reasons
that would permit a trier of fact to find, more likely than not, that they were the basis for
the termination.[citations] To defeat the motion, the employee must then 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.” (Kelly v. Stamps.com Inc.
(2005) 135 Cal.App.4th 1088, 1097-1098.)

In order to establish a prima facie case of discrimination, Plaintiff must establish that
(1) he was a qualified individual with a disability; (2) he was performing competently in
the position held; (3) he suffered an adverse employment action (e.g., termination);
and (4) the employer had a discriminatory motive for the adverse employment action. (
Avila v. Continental Airlines, Inc. (2008) 165 Cal. App. 4th 1237, 1246; Guz v. Bechtel
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National, Inc. (2000) 24 Cal.4 317, 354, 355; Jensen v. Wells Fargo Bank (2000) 85
Cal. App. 4th 245,254-55.)

To show that he is a “qualified individual with a disability”, Plaintiff must show that he
could accomplish the essential functions of the job, with or without accommodation.
(Gov. Code, sec. 12940(a)(l),(2); Green v. State of California (2007) 42 Cal.4th 254;
Brundage v. Hahn (1997) 57 Cal. App. 4th 228, 237).

Moving party asserts that plaintiff was not a qualified individual with a disability as he
cannot prove he could have performed the essential functions of his job, either with or
without accommodation, at the time of his termination. Plaintiff admitted in his
deposition that he was disabled from performing any work from March 9, 2011 to at
least March 2012, more than 10 months after his termination. (MF 10.)

Plaintiff was terminated by JCM for job abandonment after JCM tried unsuccessfully,
over a two month period, to obtain information from him about his medical condition
and his ability to return to work. (MF 11.) Moving party relies upon Brundage v. Hahn
(1997) 57 Cal. App. 4th 228, which, upon similar facts, held that job abandonment was
a legitimate, non-discriminatory reason for termination.
If JCM can show a legitimate, nondiscriminatory reason for the adverse employment
action, plaintiff then has the burden of providing that JCM’s stated reasons are
pretextual to avoid summary adjudication. Under Guz, on summary judgment, a
defendant employer may meet its initial burden to show it is entitled to a matter of law
by demonstrating that the plaintiff cannot demonstrate a prima facie case, and may
proceed to present evidence of a nondiscriminatory basis for its employment action.
Id. at p. 357

The employee cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus motivated
the employer, not whether the employer is wise, shrewd, prudent, or competent.
Rather, the employee must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence, and hence infer that the employer did not act for the asserted non-
discriminatory reasons. Hersant v. Department of Social Services (1997) 57 Cal. App.
4th 997, 1005.

Plaintiff’s “pretext” assertion is based upon JCM’s mailing of the termination letter to
plaintiff’s home address, when plaintiff contends JCM should have known that he was
hospitalized at the VA hospital in Palo Alto. As the plaintiff’s home address was the
only address in JCM’s possession, despite a request for contact information, this is
insufficient to establish pretext for discrimination.

Similarly, JCM’s “failure to warn” the plaintiff that his failure to communicate or provide
a doctor’s note would lead to termination for job abandonment, is insufficient to show a
discriminatory pretext.

Neither of these bases establishes that a discriminatory animus motivated the
employer to terminate plaintiff.

Summary adjudication of plaintiff’s failure to accommodate claim is GRANTED.

The Fair Employment and Housing Act (FEHA) requires employers to provide
reasonable accommodations to disabled employees. (Govt. Code §12940(m) “The
elements of a failure to accommodate claim are (1) the plaintiff has a disability under
the FEHA, (2) the plaintiff is reasonably qualified to perform the essential functions of
the position, and (3) the employer failed to reasonably accommodate the plaintiff’s
disability.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-
1010.) FEHA also requires employers to engage in an “interactive process”, “an
informal process with the employee or the employee’s representative, to attempt to
identify a reasonable accommodation that will enable to the employee to perform the
job effectively.” ( Id. at 1013; Govt. Code § 12940(n).)

The duty of an employer reasonably to accommodate an employee’s handicap does
not arise until the employer is aware of respondent’s disability and physical limitations.
The employee can’t expect the employer to read his mind and know he secretly
wanted a particular accommodation and sue the employer for not providing it. Avila v.
Continental Airlines, Inc. (2008) 165 Cal. App. 4th 1237, 1252-1253.

Here, the only information JCM received was that plaintiff was “partially paralyzed” without any indication of whether he could return to work, when he could return to work
or what accommodations might be needed to permit him to perform the essential
functions of his job.

Plaintiff now asserts that he was able to return to work in Sept. 2011 with a reasonable
accommodation – an additional leave of absence and assistive devices. However, he
never provided JCM with any information about an anticipated return to work date,
prior to his termination.

California court have held that reasonable accommodation does not require the
employer to wait indefinitely for an employee’s medical condition to be corrected.
Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App. 4th 215, 226-227. While “a finite
leave of absence can be a reasonable accommodation under FEHA, provided it is
likely that at the end of the leave, the employee would be able to perform his or her
duties”, “’[r]easonable accommodation does not require the employer to wait
indefinitely for an employee’s medical condition to be corrected.’” (Id., quoting Gantt v.
Wilson Sporting Goods Co., (6th Cir. 1998) 143 F.3d 1042, 1047.) Nor does the law
require the employer to guess what the medical condition is, or its expected duration
and effect on the ability to return to work.

The employer’s request for information about the plaintiff’s medical condition from
plaintiff’s physician is reasonable, so that it could have sufficient information to
determine whether a reasonable accommodation was possible. Plaintiff failed to
provide that information.

Here, at the time the plaintiff was terminated, the only information that JCM had was
that plaintiff was unable to return to work, and might never be able to do so. An
indefinite medical leave of absence is not required.

The second accommodation plaintiff suggests he might have used to return to work in
Sept. 2011 was assistive devices. However plaintiff’s discovery admissions in the
malpractice action state that he could never work again and was completely
dependent upon his wife for all activities of daily living.

When a defendant can establish his defense with the plaintiff’s admissions sufficient to
pass the strict construction test imposed on the moving party, the credibility of the
admissions are valued so highly that the plaintiff’s controverting affidavits may be
disregarded as irrelevant, inadmissible or evasive. Leasman v. Beech Aircraft Corp.
(1975) 48 Cal. App. 3d 376, 382.

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 liability for failure to provide reasonable
accommodations ensues only where the employer bears responsibility for the
breakdown. Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 261.

Here, where plaintiff failed to respond to JCM’s requests for information, based on the
totality of the circumstances, the failure to provide reasonable accommodation cannot
be said to lie with the employer.

Summary adjudication of plaintiff’s failure to engage in the interactive process claim is
GRANTED. 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. In pertinent part, Govt. Code, sec. 12940 (n) provides that it is an
unlawful practice: “For 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, 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.” [Emphasis added.]

However, it is an employee’s responsibility to understand his or her own physical or
mental condition well enough to present the employer at the earliest opportunity with a
concise list of restrictions which must be met to accommodate the employee. Jensen
v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 266. An
employer has no liability for failure to provide reasonable accommodation, where a
plaintiff failed to uphold his or her end of the interactive process by clarifying the extent
of her medical restrictions. (Steffes v. Stepan Co. (7th Cir. 1998) 144 F.3d 1070,
1073.)

Here, as above, where plaintiff failed to inform his employer of his needs for
accommodation, but rather failed to respond to the employer’s numerous requests for
information, plaintiff’s failure to provide the requested information is fatal to his claim.

Summary adjudication of the 2nd for age discrimination is GRANTED.

Although plaintiff was over 40 years of age, he cannot establish that he was
performing competently in the position that he held at the time of his termination,
because he was paralyzed as of the time of his termination, and for the reasons set
forth above (see 1st cause of action).

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Summary adjudication of the 3 for family medical leave discrimination is GRANTED.

Plaintiff cannot prevail on this claim where (1) he failed to exhaust his administrative
remedies; (2) he is not an eligible employee under the terms of the statute and (3)
admits that he could not have returned to work after the 12-week leave period.

The purpose of the FEHA complaint is to provide the DFEH the opportunity to resolve
disputes and eliminate unlawful employment practices through conciliation. Plaintiff’s
DFEH complaint alleges only age and disability discrimination. Medical leave
discrimination is not mentioned. Thus he failed to exhaust his administrative remedies,
which are a jurisdictional prerequisite to a FEHA claim.

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Summary adjudication of the 4 for wrongful termination in violation of public policy is
GRANTED.

This Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d 167 claim is based upon the
FEHA violations. As the Court finds that summary adjudication of the FEHA claims is
appropriate, this cause of action also fails.

Although plaintiff attempts to dispute some of the material facts, by asserting positions
contrary to those taken in prior legal proceedings, plaintiff is judicially estopped from
contradicting prior factual admissions in both legal and administrative proceedings. Judicial estoppel is a judge-made doctrine that seeks to prevent a litigant from
asserting a position inconsistent with one that she has previously asserted in the same
or in a previous proceeding. In general, the doctrine is designed to prevent litigants
from playing fast and loose with the courts. The Swahn Group, Inc. v. Segal, 183 Cal.
App. 4th 831, 841 (2010); Jones v. Southcentral Empl. Corp. (M.D. Pa. 2007) 488 F.
Supp. 2d 475, 481.

Judicial estoppel focuses on the relationship between the litigant and the judicial
system, The doctrine should apply when: (1) the same party has taken two positions;
(2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3)
the party was successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent; and (5)
the first position was not taken as a result of ignorance, fraud, or mistake. Jackson v.
County of L.A. (1997) 60 Cal. App. 4th 171, 183.

As summary adjudication of each cause of action is granted, the motion for summary
judgment is also GRANTED.

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