2016-00200316-CU-OE

Ahmad Ghowshe vs. MV Transportation, Inc.

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

Filed By: Wenter, Billie D.

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific issue(s) on which argument is sought. **

Defendant MV Transportation, Inc.’s (MV) motion for summary judgment is DENIED.

MV’s alternative motion for summary adjudication of issues is GRANTED in part and DENIED in part.

Ghowshe’s objection to MV’s Reply Separate Statement is sustained, and the

document is STRICKEN. Ghowshe’s further objection to evidence submitted with the reply is overruled.

Factual/Procedural Background

This case presents an employment dispute. Ghowshe is the plaintiff and MV’s former employee. Ghowshe served MV as a bus and paratransit driver for approximately 14 years. (Undisputed Material Fact (UMF) 1; Robertson Decl., ¶ 4.) Driving commercial buses was one of Ghowshe’s essential job duties. (UMF 5.)

Like MV’s other drivers, Ghowshe was required to comply with regulations issued by the Federal Motor Carrier Safety Administration (FMCSA), which is within the U.S. Department of Transportation (DOT). (See UMF 2.) FMCSA regulations govern the operation of commercial motor vehicles, among other things. (See 49 CFR 1.86.) The regulations require commercial bus drivers to be “medically certified as physically qualified to do so[.]” (49 CFR 391.41(a)(1)(i).) Drivers generally must be certified every two years, but there is a separate certification requirement for a driver “whose ability to perform his/her normal duties has been impaired by a physical or mental injury or disease.” (Id. § 391.45(b)(1), (c).) A person who has not been medically certified may not operate a commercial vehicle. (Id. § 391.41(a)(1)(i).)

With exceptions not applicable to this case, only medical professionals listed on the National Registry of Certified Medical Examiners may certify drivers. (Id. § 391.43(a).) The FMCSA provides a Medical Examiner Handbook (Handbook) to guide examiners assessing drivers’ physical fitness. The Handbook cites applicable regulations with which the examiner must comply. It also provides “advisory criteria / guidelines” that do not have the force of law. Among the advisory criteria / guidelines are waiting periods before drivers who suffered enumerated medical conditions should be certified.

In October 2015, Ghowshe suffered a minor strike and took leave from MV under the Family and Medical Leave Act (FMLA). (UMF 7.) In January 2016, when Ghowshe exhausted his FMLA leave, MV granted him additional, personal leave through July 12, 2016. (UMF 8.)

On 6/23/16, Ghowshe’s personal doctor provided MV with a memo indicating that

Ghowshe was able to return to work without restrictions. (Roberson Decl., Exh. 6.)
Ghowshe returned to work on 7/12/16. (Roberson Decl., ¶ 8.)

On July 18, 2016-still less than a year after his stroke-Ghowshe sought formal certification under the FMSCA in order to resume duties as an MV driver. (UMF 9.) Page 163 of the Handbook provides, in relevant part:

Transient Ischemic Attack

Intracerebral hemorrhage results from bleeding into the substance of the brain and subarachnoid hemorrhage reflects bleeding primarily into the spaces around the brain. […]

Subarachnoid and intracerebral hemorrhages can cause serious residual neurological deficits in:

• Cognitive abilities.

• Judgment.

• Attention.

• Physical skills.

The risk for seizures following intracerebral and subarachnoid hemorrhages is associated with the location of the hemorrhage:

[¶¶]

The recommendations for intracranial and subarachnoid hemorrhages parallel recommendations for strokes.

Waiting Period

Minimum – 1 year if not at risk for seizures (cerebellum or brainstem vascular lesions)

Minimum – 5 years if at risk for seizures (cortical or subcortical deficits)

[¶]

Decision

Maximum certification – 1 year

Recommend to certify if:

The driver with a history of intracranial or subarachnoid hemorrhage has:

• Completed the appropriate waiting period.

• Normal physical examination, neurological examination including neuro-ophthalmoilogical evaluation, and neuropsychological testing.

• No neurological residuals or, if present, residuals of a severity that do not interfere with the ability to operate a commercial motor vehicle.

• Clearance from a neurologist who understands the functions and demands of commercial driving.

Recommend not to certify if:

The driver:

• Has not completed the appropriate waiting period

• Uses oral anticoagulant therapy because of the risks associated with excessive bleeding.

• Uses any other drug or drug combination with a potentially high rate of complications (e.g., depressing effects on the nervous system).

• Has residual Intellectual or physical impairments that interfere with commercial driving.

• Does not have clearance from a neurologist who understands the functions and demands of commercial driving.

Monitoring/Testing

You may on a case-by-case basis obtain additional tests and/or consultation to adequately assess driver medical fitness for duty.

(Otten Decl., Exh. 10.)

The examination took place at Summit Clinic. (Ghowshe Decl., ¶ 8.) Ghowshe indicated on paperwork submitted to the examiner that he had suffered a stroke. (Otten Decl., Exh. 3.) The examiner signed the same paperwork and indicated that Ghowshe “[m]eets standards but periodic monitoring required [because] Age 67.” (Id.) The examiner qualified Ghowshe to return to work.

The examination materials were forwarded to eScreen, Inc. (eScreen), a third-party administrator that MV uses to review its drivers’ medical examinations. (UMF 11.) eScreen’s review is based on the requirements in 49 CFR 391.41 and the Handbook. (Otten Decl., ¶ 5.) On 8/02/16, eScreen sent MV an email referencing Ghowshe, and which reads, “[w]e still need additional information from the driver below. Would you please have them [sic] contact us at the number below?” (Id., Exh. 4.) The same day, a specialist in MV’s Qualifications Department emailed Ghowshe’s supervisors that “Ghowshe needs to contact nurses at 888-735-5315 in regards to their [sic] physical.” (Id., Exh. 4.)

On Friday, 8/12/16, eScreen sent MV another email, which reads: “AHMAD GHOWSE [sic] MV 04 DOT physical and medical records were reviewed by our medical provider today, and he recommends a disqualification.” (Otten Decl., Exh. 6.) The same email indicates that eScreen had “notified the DOT clinic and [was] awaiting the updated physical.” A specialist in MV’s Qualifications Department forwarded the email to Ghowshe’s supervisors the following Monday morning. (Id.) The specialist and Ghowshe’s supervisors exchanged additional emails that afternoon. In one email, a supervisor inquired, “Are we waiting for the clinic to reverse their approval on [Ghowshe’s] DOT Medical? What are the time lines before we have to take him off driving?” (Id.) In another email, the specialist stated, “I reviewed this with my supervisor and she advised me to tell you that you should pull him now and have him contact escreen…with any questions and to see what the next steps are to getting a physical passed.” (Id.)

At deposition, Ghowshe testified that 8/15/16–the day he was pulled from work–was his last day of employment. (Wenter Decl., Exh. A [Ghowshe Depo. at 36:16-17.)

Similarly, he alleges in the complaint that he was terminated “effective August 15, 2015.” (The court construes the reference to 2015, as opposed to 2016, as a typographical error.) He testified that he received unemployment benefits between 8/15/16 and 2/15/17. (Ghowshe Depo. at 18:14-16.)

Ghowshe also testified that he did forward his medical records to eScreen. (Id. at 60:13-23). He telephoned eScreen several times between 8/19/16 and 8/22/16. (Ghowshe Decl., ¶ 8; Otten Decl., Exh. 11.) Ghowshe asserts that an eScreen employee advised him by telephone on 8/22/16 that he had “done all [he needed to do,” that eScreen was waiting to hear from the clinic, and the he should wait until eScreen “heard back from someone.” (Id., ¶ 9.) An email between eScreen and MV supports Ghowshe’s assertion. (Otten Decl., Exh. 11.) On 8/23/16, eScreen was waiting to hear back from the examiner who certified Ghowshe on 7/18/16. (Id., Exh. 11.)

Ghowshe asserts that, because he never “heard again from anyone at [MV] or eScreen and was not allowed to return to [his] job, [he] concluded he had been terminated and contacted [his] current attorneys.” (Compl., ¶ 10.) MV never told him he was terminated. (Ghowshe Depo. at 61:24-25, 68:3-6, 79:16-19.)

On 9/01/16, MV generated an internal email indicating that “[Ghowshe]’s physical has been policy violated per our MRO. He hasn’t provided the required documentation and/or information the MRO has requested to clear his physical.” (Otten Decl., Exh. 12.) The same email provides, “He must be removed from a safety sensitive position immediately and contact [eScreen].” Ghowshe filed this lawsuit on 9/13/16. He nonetheless requested vacation from MV between 9/12/16 and 9/15/17. (Roberson Decl., Exh. 7.) He requested sick leave for 9/16/16. (Id.)

The complaint contains causes of action for disability discrimination [FEHA]; disability discrimination under the Unruh Act, CC § 51.5(a); failure to accommodate [FEHA]; retaliation [FEHA]; failure to engage in the interactive process [FEHA]; and wrongful termination in violation of public policy. There is also a claim for punitive damages. MV moves for summary adjudication of each cause of action and claim and, therefore, for summary judgment.

Discussion

As an initial matter, the court notes that the FEHA does not prohibit all employment discrimination based on disability. Rather, it carves out an exception for employment practices “based on a bona fide occupational qualification, or …applicable security regulations established by the United States of the State of California [.]” (Gov’t Code

§ 12940(a).) Notwithstanding its reliance on FMCSA regulations and the Handbook, MV does not argue that Ghowshe’s FEHA causes of action are within this carve-out. As a result, the court has no occasion to pass on the carve-out’s application to this case.

The court also notes allegations under the first cause of action for disability discrimination that duplicate the third and fifth causes of action for discrimination based on failure to accommodate and failure to engage in the interactive process. Given the third and fifth causes of action, the court disregards duplicative claims in the first cause of action. The court treats the first cause of action solely as one for disparate treatment or disparate impact.

The First Cause of Action for Disability Discrimination under the FEHA

Summary adjudication is DENIED.

Applying the McDonnell Douglas burden-shifting framework, MV argues is it entitled to summary adjudication for several reasons. First, MV argues Ghowshe cannot establish a prima facie case of disability discrimination.

The plaintiff can meet his or her burden of establishing a prima facie case of discrimination by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability, (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.] To establish a prima facie case, a plaintiff must show “‘“‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were “based on a [prohibited] discriminatory criterion … .”’”’” [Citation.] The prima facie burden is light; the evidence necessary to sustain the burden is minimal. [Citation.] Generally, an employee need offer only sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.

(Moore v. Regents of Univ. of California (2016) 248 Cal.App.4th 216, 235.) MV argues summary adjudication should be granted because it is undisputed Ghowshe was not disabled when he was pulled from work in August 2016. At deposition, Ghowshe admitted that he was not disabled at that time. In opposition, however, Ghowshe argues the first cause of action survives because MV regarded him to be disabled. MV acknowledges that an employer’s perception of disability can support a prima facie case of disability discrimination under the FEHA even if the employee is not actually disabled. (See CCP § 12926(m)(3) [defining physical disability to include a “record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment”]; id. § 12926(m)(4)-(m)(5) [further defining physical disability to include being “regarded or treated by the employer or other entity…as having, or having had, any physical condition that makes achievement of a major life activity difficult [or b]eing regarded or treated by the employer…as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2)”].) MV argues that the evidence is nonetheless insufficient to support an inference it regarded Ghowshe as disabled.

MV does not deny that Ghowshe was disabled after he suffered his stroke, or that it was unaware he had suffered a stroke. Nor does MV deny that the Handbook’s recommendations about when to re-qualify a driver who has suffered a stroke are based on indicia of the driver’s physical fitness. Nonetheless, MV argues that pulling Ghowshe from work based on the Handbook’s indicia cannot raise an inference it regarded Ghowshe as disabled. MV cites federal cases to support its argument.

Walton v. United State Marshall Service (9th Cir. 2007) 492 F.3d 998 involved a court security officer who was terminated after failing to meet certain internal audiological standards. A doctor determined that the officer’s inability to localize sound posed a

“significant risk to the health and safety of yourself and/or others in the performance of several essential job functions.” (Walton, p. 1004.) The district court granted a defense motion for summary judgment on the officer’s Rehabilitation Act claim, and the Ninth Circuit affirmed. The Ninth Circuit held that there was no triable issue with respect to the officer’s claim she was regarded as disabled. (Id., pp. 1005-1006.) Citing Sutton v. United Air Lines, Inc. (1999) 527 U.S. 471, the Walton court wrote that a “regarded as” claim requires evidence of the employer’s subjective belief the employee was substantially impaired. (Walton, p. 1006.) The court further wrote:

Walton’s argument that her disqualification under the USMS’s hearing standards is itself sufficient evidence that the USMS regarded her as disabled in a major life activity fails. In EEOC, we held that an allegation that an employer which requires its employees to meet certain vision standards does not establish a claim that the employer regards one who fails to meet the vision requirement as being substantially limited in the major life activities of working or seeing. 306 F. 3d at 804 (citing Sutton, 527 U.S. at 490.) Standing alone, Walton’s failure to meet the USMS hearing standards does not raise a genuine issue of material fact that the USMS regarded her as disabled.

(Id., p. 1007.) Congress abrogated Sutton, however, when it enacted the ADA Amendments Act (ADAAA) in 2008. (See VanHorn v. Hana Grp., Inc. (D. Haw. 2013) 979 F. Supp. 2d 1083, 1092.) Hence, the court in Walker v. Venetian Casino Resort, LLC (D. Nev., Oct. 9, 2012) 2012 U.S. Dist. LEXIS 145096, *43-44 reasoned that the ADAAA trumped an employer’s regarded-as-disabled argument based on Walton and Sutton. Given the developments since Walton was decided, the case has little if any persuasive value.

MV also cites Cole v. Roadway Express, Inc. (W.D.N.Y. 2002) 218 F. Supp. 2d 350. In that case, a commercial driver who failed his physical examination sued after the employer refused to hire him. The district court concluded no there was no triable issue as to disability discrimination because regulations required the employer not to hire such an applicant. (Cole, pp. 355-356.) Unlike the examiner in Cole, however, the medical examiner in the case at bench certified Ghowshe to drive. Cole says nothing about the effect of a subsequent review questioning the certification.

Finally, MV cites Harrington v. Rice Lake Weighing Systems, Inc. (7th Cir. 1997) 122 F.3d 456. Harrington involved an employee who returned from work after neck surgery but was subsequently terminated for missing work without “properly signing out.” (Harrington, p. 458.) The employee sued under the ADA, and the Seventh Circuit decided he had failed to demonstrate discrimination on a regarded-as-disabled theory. Unlike Walton and Cole, Harrington did not involve a medical determination the employee was physically unfit for the job. Instead, MV cites the decision for the following statement: “The notion that [the employer] must have fired [the employee] because it regarded him as disabled and that it plainly regarded him as disabled because it fired him is attractive but circular-it lacks a causal antecedent.” (See Moving Memo. at 10:20-24.) Yet, MV has failed to produce evidence demonstrating that the only evidence of disability discrimination against Ghowshe is the fact he was pulled from duty. MV’s evidence demonstrates Ghowshe was pulled him duty because, even though a registered medical examiner qualified him to drive, eScreen determined Ghowshe should not have been qualified. This evidence does not establish the tautology described in Harrington.

In sum, MV’s cases do not compel the conclusion that, by pulling Ghowshe from work on grounds the registered examiner failed to follow the Handbook, MV could not have regarded Ghowshe as disabled.

Next, MC argues Ghowshe cannot establish a prima facie case of discrimination because he was not a “qualified individual” under the FEHA, i.e., he was able to perform the essential job duties with or without accommodation. (See Green v. State of California (2007) 42 Cal.4th 254, 267 [that the plaintiff is qualified under the FEHA is an element of a prima facie case of discrimination].) MV argues Ghowshe cannot establish this element because the Handbook “precluded certification until Plaintiff competed ‘the appropriate [one year] waiting period.’” (Moving Memo. at 10:25-27.) It argues the Handbook also barred his certification because Ghowshe had not been cleared for work by a neurologist. (Id. at 11:9-11.) The court rejects these arguments for two reasons.

One: MV has not produced a declaration from the eScreen medical professional(s) who assertedly determined Ghowshe should not have been certified to resume driving. There is an email from someone else at eScreen indicating that Ghowshe should not have been qualified under the guidelines, but there is no evidence of the particular guideline(s) at issue. There is no evidence eScreen recommended pulling Ghowshe due to the recommended one-year waiting period, to obtain clearance by a neurologist or other criterion in the Handbook. Consequently, to the extent MV argues it is undisputed Ghowshe was pulled from work because he failed to meet a particular Handbook standard, MV has failed to produce evidence demonstrating the nonexistence of any triable issue.

Two: MV has not cited any legal authority holding that the guidelines in the Handbook have the force of law. As far as the court can tell, a registered examiner is authorized to qualify a driver even if the driver does not meet one or more guidelines in the Handbook. What appears to be required is the certification, which Ghowshe obtained.

The court acknowledges evidence MV treated the guidelines as best practices. In and of itself, the practice of double-checking examiners’ certifications to ensure drivers’ fitness does not appear to violate the FEHA. (But see Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 49, fn. 11 [“A policy of requiring an employee to be ‘100 percent healed’ before returning to work is a per se violation of [both the ADA and the FEHA] because it permits an employer to avoid the required individualized assessment of the employee’s ability to perform the essential functions of the job with or without accommodation”].) But the guidelines do not appear to have the force of law, and thus Ghowshe was not legally barred from driving after the registered examiner certified him. MV’s contrary argument fails.

Finally, MV argues Ghowshe cannot establish a prima facie case of discrimination because he cannot establish causation, i.e., that he suffered an adverse employment action due to disability. MV argues it only pulled him from work on 8/15/16 because the regulations and guidelines required as much. For reasons stated above, the court rejects this legal argument.

MV further argues that it only processed Ghowshe’s termination papers in September 2016 because he failed to cooperate with eScreen and dispel concerns he remained unqualified to drive. MV has produced some evidence to support this argument. At

deposition, Ghowshe described the day he was pulled from work in August as his last day on the job. He also testified that he saw no point in undergoing a physical examination after the examiner certified him. On the other hand, MV’s evidence demonstrates that eScreen essentially told him on 8/23/16 to sit tight until he heard back from them. Yet MV’s evidence also shows that, for reasons that are unclear, it determined a week later that Ghowshe had failed to cooperate with eScreen. Because this contradictory evidence does not demonstrate the nonexistence of any triable issue as to why MV processed Ghowshe’s termination, the court rejects MV’s no-causation argument.

MV argues next that, even if the evidence does not preclude a prima facie case of disability discrimination, summary adjudication should be granted because there was a legitimate, non-discriminatory reason for any adverse employment action. (See Moore

, supra, p. 235 [discussing the burden-shifting framework under McDonnell Douglas].) Again, MV predicates this argument on Ghowshe’s failure to “resolve his disqualification” with eScreen. (See Moving Memo. at 13:3-4.) As noted above, MV’s evidence does not bar an inference that MV processed Ghowshe’s termination at a time when he had done all that was expected of him to resolve the discrepancy. As a result, the court rejects MV’s position.

The court also rejects the specific argument that it is undisputed MV pulled Ghowshe from work in August 2016 because he had not competed the one-year waiting period. Had that been the sole reason, eScreen or MV presumably would have told Ghowshe that he needed to wait until a year had passed. MV’s evidence indicates eScreen and MV conditioned Ghowshe’s return to work upon his further physical examination, not the mere passage of time.

The Second Cause of Action for Violation of the Unruh Act

Summary adjudication is GRANTED.

In his opposition, Ghowshe concedes that the second cause of action is not viable, and he indicates it “may be dismissed.” (Opp. at 7:10-11.) Given Ghowshe’s concession, summary adjudication is granted.

The Third Cause of Action for Disability Discrimination-Failure to Accommodate under the FEHA

Summary adjudication is DENIED.

MV argues first that summary adjudication should be granted because Ghowshe cannot establish it failed to accommodate him. MV cites evidence that it granted Ghowshe extended leaves of absence before the examiner qualified him to drive. This evidence does not bar an inference MV failed to accommodate Ghowshe after he returned to work in July 2016. As MV notes, granting leave from employment can serve as a reasonable accommodation. Once MV pulled Ghowshe from work, it might have granted him some form of leave while he addressed eScreen’s concerns about his fitness for duty. But in September 2016, MV terminated Ghowshe when only a week earlier it learned eScreen had told him to wait because he had done all he was expected to do. This evidence does not bar an inference MV could have done more reasonably to accommodate Ghowshe. The court rejects MV’s first argument.

Next, MV argues Ghowshe cannot establish that he requested any accommodation after he returned to work. The court rejects this argument because failure to accommodate causes of action under Government Code § 12940, subd. (m) do not require the employee’s request. That subdivision obligates employers to make reasonable accommodations for employees with known disabilities. (Gelfo, supra, p. 54; see also 2 CCR 11068(a) [“An employer…has an affirmative duty to make reasonable accommodation(s) for the disability of any individual applicant or employee if the employer…knows of the disability”].) The same applies where the employer merely regards the employee as disabled. (Id., p. 60.) Because there is evidence MV regarded Ghowshe as disabled under the FEHA, and because it is the one that pulled him from work as a result, whether MV was required to afford Ghowshe additional leave even without his request presents a triable issue.

The Fourth Cause of Action for Retaliation under the FEHA

Summary adjudication is DENIED.

The McDonnell Douglas burden-shifting framework applies to Ghowshe’s retaliation cause of action. Addressing the prima facie elements, MV argues Ghowshe cannot establish that he engaged in any protected activity. Citing evidence that Ghowshe never complained that he was subjected to discrimination, (UMF 17), MV has demonstrated the nonexistence of any triable issue, and the burden shifted to Ghowshe to demonstrate the existence of a triable issue.

Ghowshe asserts he told MV’s Safety and Training Manager that he felt MV’s refusal to allow him to return to work even after the examiner certified him was “like some form of discrimination.” (Ghowshe Decl., ¶ 6.) Although MV objects that this assertion impermissibly contradicts Ghowshe’s prior deposition testimony, the court disagrees. Consequently, whether Ghowshe made a complaint constituting protected activity under the FEHA presents a triable issue. (See Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1093 [“‘”The relevant question … is not whether a formal accusation of discrimination is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.”’”])

Next, MV argues Ghowshe cannot establish causation, i.e., that it took an adverse employment action because he complained about discrimination. To support this argument, MV suggests there is no evidence it knew he complained about discrimination. Given Ghowshe’s testimony that he told an MV manager he felt discrimination could be at work, the court rejects the suggestion.

MV further argues causation does not present a triable issue because Ghowshe effectively resigned after refusing to cooperate with eScreen. As discussed above, whether Ghowshe failed to cooperate presents a triable issue. As a result, the court rejects this causation argument as well.

Proceeding to the issue of a legitimate, non-retaliatory justification for any adverse employment action, MV argues the same facts and law it did under the first cause of action. Because the court rejected MV’s position there, it does here as well.

The Fifth Cause of Action for Disability Discrimination-Failure to Engage in the Interactive Process under the FEHA

Summary adjudication is DENIED.

Ghowshe alleges MV failed to engage in the interactive process in good faith. Under Government Code § 12940(n), the employer must interact with the employee to “determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee…with a known physical or mental disability or known medical condition.” MV argues it is undisputed Ghowshe requested and received leaves of absence after his stroke but before he was pulled from work in July 2016. This evidence does not demonstrate the nonexistence of any triable issue because MV could have been required to accommodate Ghowshe after it pulled him from driving.

Next, MV argues Ghowshe failed to request accommodation or “respond to MV regarding the status of his disqualification and interest in returning to work.” (Moving Memo. at 17:4-6.) Again, MV’s evidence does not bar inferences favorable to Ghowshe. MV’s own evidence supports an inference that Ghowshe was seeking temporary leave from work in mid-September 2016, shortly before MV processed his termination. Furthermore, MV’s evidence supports an inference Ghowshe was cooperating with eScreen in late August 2016 and was told to wait. Therefore, the court rejects MV’s position.

The Sixth Cause of Action for Wrongful Termination in Violation of Public Policy

Summary adjudication is DENIED.

MV acknowledges that summary adjudication of the sixth cause of action is only available if none of Ghowshe’s FEHA causes of action survive summary adjudication. Because some of those causes of action survive, summary adjudication of the sixth cause of action must be denied.

The Claim for Punitive Damages

Summary adjudication is DENIED.

With respect to claims for punitive damages against corporate employers such as MV, CC § 3294(b) provides:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, 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. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Emphasis added.)

The phrase “managing agent of the corporation” denotes “someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy.” (White v. Ultramar (1999) 21 Cal.4th 563, 573.) MV argues Ghowshe’s

punitive damages claim should be adjudicated because “neither Plaintiff’s supervisors nor [Safety and Training Manager] Chase exercised substantial independent authority and judgment in corporate decision-making so that their decisions ultimately determined corporate policy[.]” (See Moving Memo. at 19:11-14; UMF 19.) MV’s evidence does not demonstrate the nonexistence of any triable issue. To do that, MV was required to establish that no one with input into the decision to terminate Ghowshe either had such authority or was an officer or director. MV had not produced evidence barring an inference someone with such authority had input, and therefore MV did not meet its initial burden of production.

It appears one of the reasons MV had not produced evidence of those with input into the decision to process Ghowshe’s termination is MV’s position that Ghowshe effectively resigned by failing to cooperate with eScreen. For reasons discussed above, Ghowshe’s cooperation presents a triable issue.

Objections to Evidence

MV’s Objections Nos. 2 and 4 through 8 are overruled. The court need not rule and does not rule on MV’s other objections. (See CCP § 437c(q).)

Disposition

The motion is granted in part and denied in part on the terms above. Pursuant to CRC 3.1312, MV shall lodge a formal order for the court’s signature.