CIV536798 MONICA ZENO VS. AMGEN INCORPORATED, ET AL.

AMGEN INCORPORATED BRIAN M. RAGEN

MONICA ZENO LAUREL MOUSSEAU

AMGEN, INC. AND ONYX PHARMACEUTICALS, INC.’S MOTION FOR SUMMARY OF JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

TENTATIVE RULING:

The Motion of Defendants Amgen, Inc. and Onyx Pharmaceuticals, Inc. (“Defendants”) for Summary Judgment or, in the alternative, Summary Adjudication, to the First Amended Complaint of Plaintiff Monica Zeno (“Plaintiff”), is ruled on as follows:

(1) For purposes of motions for summary judgment and summary adjudication, a defendant has met its burden of showing that a cause of action has no merit if the party has shown that one or more elements cannot be established, or there is a complete defense to the cause of action. (C.C.P. § 437c(p)(2).) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Id.)

(2) Defendants’ motion to the First Cause of Action for Retaliation (Protected EEO Activity), is GRANTED.

When a plaintiff alleges retaliatory employment termination as a claim under the Fair Employment and Housing Act and the defendant seeks summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108–1109.) In the first stage, the plaintiff must establish that (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 exists between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If the employee establishes these elements, thereby showing a prima facie case exists, the burden then shifts to the employer to provide evidence that there was a legitimate, non-retaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) If the employer produces evidence showing a legitimate reason for the adverse employment action, the burden shifts back to the employee to provide substantial evidence that the employer’s proffered reason was untrue or pretextual. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.)

First, Defendants has met its burden of producing evidence to show that Plaintiff cannot establish a causal link exists between Plaintiff’s complaints about her former supervisor, Gordon Sun, and the decision by her subsequent supervisor, Alan Hopkins (“Hopkins”) to terminate Plaintiff. (See Defendants’ Undisputed Material Facts (“DUMF”) nos. 54-58.) In opposition, Plaintiff does not dispute any of these facts, except that Plaintiff lacks sufficient information as to what motivated Hopkins to terminate Plaintiff’s employment. (See Plaintiff’s Response to DUMF no. 57.) Plaintiff attaches an email exchange between Defendants’ Human Resources employee Regina Moss (“Moss”) and Hopkins discussing whether Defendants are able to accommodate P’s work restrictions (see Mousseau Decl., pp.61-62), but these emails do not support that Hopkins was motivated to terminate because of Plaintiff’s complaints about Sun. (See Plaintiff’s Response to DUMF no. 57.) As such, this evidence is insufficient to raise a triable issue of material fact as to a causal link between Plaintiff’s complaints about Sun and Hopkins’ decision to terminate Plaintiff. Plaintiff also claims that Moss was involved in the decision to terminate Plaintiff, but has produced no evidence to support this contention. The motion on this ground is therefore granted.

Second, even if Plaintiff established a prima facie case as to retaliation, Defendants establish that they had a legitimate, non-retaliatory business reason for terminating Plaintiff. (See e.g., DUMF nos. 37, 39, 41, 42, 63, 64.) In response, Plaintiff fails to provide substantial evidence that this reason was untrue or a pretext for retaliating against Plaintiff. Thus, the motion is also granted on this ground.

(3) Defendants’ motion to the Second Cause of Action for Retaliation (Use of Protected CFRA Leave), is GRANTED. Defendants have met their burden of showing that they had a legitimate, non-retaliatory business reason for terminating Plaintiff’s employment. (See DUMF nos. 67-78.) In response, Plaintiff indicates she will dismiss this claim and therefore does not oppose the motion as to this claim. (See Plaintiff’s Opposition, p.18.) Thus, Plaintiff fails to raise a triable issue of material fact in opposition.

(4) Defendants’ motion to the Third Cause of Action for Race Discrimination/Harassment, is GRANTED.

As to Plaintiff’s race discrimination claim, Defendants establish that they had a legitimate, non-discriminatory business reason for terminating Plaintiff. (See DUMF nos. 37, 39, 41, 42, 82.) In opposition, Plaintiff fails to provide substantial evidence that this reason was untrue or a pretext for discriminating against Plaintiff based on her race. Plaintiff admits that no one at Onyx made any comments to Plaintiff about her race. (See Plaintiff’s Response to DUMF no. 85.) Moreover, even though Plaintiff claims that Defendant’s proffered reason is false, Plaintiff fails to present any evidence in support. Lastly, to the extent that Plaintiff claims her termination was based on racial discrimination by Moss, P has presented no evidence to support that Moss participated in the decision to terminate P. Plaintiff indicates only that she does not have sufficient information to agree or disagree with Defendants’ evidence that Hopkins made the decision to terminate Plaintiff. (See Plaintiff’s Response to DUMF no. 82.) Plaintiff fails to raise a triable issue of material fact as to the race discrimination claim.

Additionally, as to the race harassment claim, Plaintiff concedes that this part of her claim should be dismissed and does not oppose this part of the motion. (See Plaintiff’s Opposition, p.18.)

(5) Defendants’ motion to the Fourth Cause of Action for Disability Discrimination/Harassment is GRANTED.

As to the disability discrimination claim, Defendants have met their burden of presenting evidence to support that Plaintiff could not perform the essential functions of her job, and that Defendants had a legitimate, non-discriminatory reason for terminating Plaintiff. (See DUMF nos. 108-130.) Government Code section 12940(a)(1) provides that an employer is not prohibited from discharging an employee with a physical disability, or subject to any legal liability for discharging an employee with a physical disability, if the employee, because of the physical disability, is unable to perform the employee’s essential duties, even with reasonable accommodations.

Plaintiff argues in opposition that she could have performed her job duties with a reasonable accommodation. Specifically, Plaintiff contends that she could have performed her essential job duties with speech recognition or hands free technology. Plaintiff’s evidence is insufficient to raise a triable issue of material fact though. Plaintiff’s counsel attaches exhibits generally discussing such technology, but this evidence is insufficient to show that Plaintiff could have performed her essential job functions with such technology. (See Plaintiff’s Response to DUMF nos. 107, 109.) Thus, Defendants’ objections to this evidence is well taken. (See court’s ruling on Defendants’ evidentiary objections.) P submits no evidence that during her employment she ever requested such technology. In fact, prior to filing her opposition to the instant motion, P never even mentioned “speech recognition technology” in this litigation, including in her discovery responses, her deposition or anywhere else. Even if “speech recognition technology” would have enabled P to type, raising it for the first time, two years after her termination, does not save her claim. (See e.g. Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 598 [holding employee cannot expect employer to read his mind and secretly know employee wanted a particular accommodation and sue the employer for not providing it].)

Finally, to the extent that Plaintiff argues Defendants failed to engage in a good faith, interactive process to provide her with speech recognition or hands free technology to perform her job duties, this argument fails. Plaintiff has not brought a claim under Government Code section 12940(n).

(6) Based on the above, Defendants’ Motion for Summary Judgment is GRANTED.

(7) Defendants’ evidentiary objections are ruled on as follows:

Objection nos. 1, 2, 10-12, 13-16 (irrelevant), and 17 (lacks foundation/speculation), are SUSTAINED.

Objection no. 5 is SUSTAINED IN PART to “she informed me that she had not worked …for corporate executives before.” The remainder is OVERRULED.

Objection no. 7 is SUSTAINED IN PART only to Foster-Cheek’s purported statements. The remainder is OVERRULED.

Objection nos. 3, 4, 6, 8, and 9 are OVERRULED.