Case Name:   Nancy Crawford v. Miasole, Inc., et al.

Case No.:       1-13-CV-253701

Motion by Defendant Miasole (sued as Miasole, Inc.) for Summary Judgment or [sic], in the Alternative, Summary Adjudication on the Complaint of Plaintiff Nancy Crawford

Plaintiff’s evidentiary objections 1 and 5 do not comply with Rule of Court 3.1354(b)(3) and accordingly the court declines to rule.  The other objections are sustained.  Defendant’s evidentiary objections to Plaintiff’s declaration, objection nos. 8 – 9 are OVERRULED. All other objections are preserved for purposes of appeal, if any. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531 – 532.)

Although “performing competently” is an element of a prima facie claim for discrimination generally (see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355), where disability or medical condition discrimination alleged, the elements are different.  “To establish a prima facie case under the FEHA on grounds of physical disability, [plaintiff] had to present evidence showing he suffered a physical disability within the meaning of the FEHA, he was otherwise qualified for his job, and he suffered an adverse employment action because of the physical disability.”  (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1006.) The reason for this difference is explained by the California Supreme Court in Green v. State of California (2007) 42 Cal.4th 254, 262 – 263.  The same reasoning applies to a claim for medical condition discrimination.  Where the employee obtained a leave of absence as an accommodation for her disability and was terminated while on leave, the question whether she was qualified to perform the essential job functions of the job should have been evaluated at the time she sought to resume her job, not when the earlier personnel decision was made.  (See Chin, Wiseman, Callahan & Exelrod, CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2013) ¶9:591, p. 9-59 citing Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000) 212 F.3d 638, 646.)  Defendant offers no evidence to show that Plaintiff was not otherwise qualified for her job upon her scheduled return.

Defendant’s evidence does not negate the element of a discriminatory nexus.  Defendant’s evidence does not support its contention that John Carrington was not aware of Plaintiff’s leukemia diagnosis in November 2012.  Even if Plaintiff took a two-week vacation in August 2012 and a three-day vacation in November 2012, Defendant provides no evidence that John Carrington’s statement that Plaintiff was “out too much” is attributed solely to those vacation days and not attributed to Plaintiff being out of the office once a week regarding her medical condition.  Defendant asserts that Plaintiff was not actually out of the office for treatment of her medical condition.  While this may cast doubt on Plaintiff’s ultimate credibility, it does not change the fact that, at the time Plaintiff received her retention bonus at the end of 2012, Defendant understood and believed that Plaintiff was out of the office once a week for treatment of her leukemia.

A triable issue of material fact exists with regard to whether Defendant’s stated reasons for the adverse action (reduction in retention bonus) were untrue or pretextual, such that a reasonable trier of fact could conclude that defendant engaged in discrimination. (See, e.g., Plaintiff’s Statement of Additional Material Facts in Opposition to Defendant’s Motion for Summary Judgment/ Adjudication, Fact No. 9.)  Defendant’s motion for summary judgment is DENIED.

Defendant’s motion in the alternative requests rulings on nine “issues”, apparently pursuant to Code of Civil Procedure 437c(s).  However, the court has not been able to locate a stipulation or an order allowing such a motion.  Therefore, the court will treat the motion in the alternative as one made pursuant to Code of Civil Procedure section 437c(f)(1) with respect to the first, second and/or third causes of action.

Concerning the first cause of action for disability/medical condition discrimination which encompasses not only Plaintiff’s termination but also the reduction in her retention bonus, Defendant has not met its initial burden of showing that one or more elements of the first cause of action for disability/ medical condition discrimination cannot be established, or that there is a complete defense to that cause of action. For this reason and those stated above, Defendant’s alternative motion for summary adjudication of Plaintiff’s first cause of action for disability/ medical condition discrimination is DENIED.

For the same reasons set forth above, Defendant’s alternative motion for summary adjudication of the second cause of action for wrongful termination in violation of public policy is DENIED.

Defendant has not met its initial burden of showing that one or more elements of the third cause of action for retaliation cannot be established, or that there is a complete defense to that cause of action.  The argument that taking medical leave is not a protected activity under FEHA misses the point.  Plaintiff’s cause of action for retaliation is not limited to FEHA, but alleges retaliation under both FEHA and CFRA.  (Complaint, ¶36.)  “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; emphasis added.)  For this reason and those stated above, Defendant’s alternative motion for summary adjudication of Plaintiff’s third cause of action for retaliation is DENIED.