Case Number: BC625867 Hearing Date: March 19, 2018 Dept: 53

cynthia meter vs. farmers final solutions, llc , et al., BC625867, MARCH 19, 2018

[Tentative] Order RE: DEFENDANTS FARMERS FINANCIAL SOLUTIONS, LLC and FFS HOLDING, LLC’S MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

Defendants FARMERS FINANCIAL SOLUTIONS, LLC and FFS HOLDING, LLC’s Motion for Summary Judgment/Summary Adjudication is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

Plaintiff Cynthia Meyer (“Plaintiff”) filed this employment action on July 5, 2016. Plaintiff filed the operative First Amended Complaint (“FAC”) on September 9, 2016. The FAC is brought against Defendants Farmers Final Solutions, LLC and FFS Holding, LLC (jointly “Defendants”).

Meyer’s FAC asserts the following causes of action: age discrimination, retaliation (age discrimination), disability discrimination, retaliation (disability discrimination), failure to provide reasonable accommodation; CFRA discrimination; retaliation (CFRA); whistleblower claim under Labor Code section 1102.5; PAGA whistleblower claim; claims for breach of an express and implied contract not to terminate without good cause; common law wrongful termination claim; and a statutory claim for failure to prevent discrimination and retaliation.

Defendants move for summary judgment or summary adjudication. Meyer opposes.

EVIDENCE

The Court overrules Meyer’s evidentiary objections Nos. 1-15.

The Court rules on Defendants’ evidentiary objections as follows: Nos. 1-2, 7, 9, 15, 17-23, 26-27, 29-30, 32-35, 37, 39, 41, 43, 45-50, and 52-55 are overruled; Nos. 3-6, 10-11, 13-14, 16, 28, 31, 38, 40, and 56 are sustained;

No. 12 is sustained as to “unethically” and “fatally”;

No. 24 is sustained as to “which were not compliant” and “illegal activity” and “retaliated against”;

No. 25 is sustained as to “Roberts told me, ‘I think that is the right decision . . . medical leave’”;

No. 32 is sustained as to “ I personally observed her to be unprofessional and not qualified for her position”;

No. 36 is sustained as to “forced”;

No. 42 is sustained as to “diagnosis” and “even though other employees were allowed to leave a couple hours early at times without using their PTO hours . . . upon Goicoechea’s discretion”;

No. 44 is sustained as to “Saye also specifically told Dorothy Cooperson . . . operations of FFS”; and

No. 51 is sustained as to “and Eveljm Nelson”.

DISCUSSION

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c (c).) A defendant moving for summary judgment must show either: “that one or more elements of the cause of action … cannot be established”; or “that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c(p)(2).) To prevail, the defendant need not “conclusively negate” a required element of the plaintiff’s claim; “all that is required is a showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Wall St. Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176 (internal quotations omitted).)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Id.)

A. Reasonable Accommodation

Government Code section 12940(m) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940(m)(1).) The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee’s disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) An employee must request an accommodation, and the parties must engage in an interactive process regarding the requested accommodation. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252 [internal citations omitted].) “Although no particular form of request is required, ‘[t]he 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.”’” (Ibid. [internal citations omitted].)

Meyer submits that she was prevented and denied the accommodation of being able to go to her weekly chiropractic appointments because of her workload. [Meyer’s Separate Statement of Undisputed Material Facts (“PSF”) 8, 11.] Defendants contend that Meyer testified that Defendants did not deny her any accommodation for her disability; that she was never prohibited from seeing her doctor or required to cancel a doctor’s appointment; and that there was no ergonomic accommodation that Defendants could have provided that would have made the slightest difference. [Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) 12, 16, 17, 18, 23.]

The evidence shows that Meyer complained to Saye about her workload and specifically told Saye that because of the workload, Meyer was unable to attend her weekly chiropractic treatments. [Meyer’s Response to UMF 12.] However, Saye never specifically told Meyer that she could not leave work to attend her chiropractic appointments. [UMF 12.] There is a dispute as to whether Meyer actually requested an accommodation as opposed to informing Saye of her medical condition. [UMF 18; Meyer’s Response to UMF 18.] There is also a dispute as to whether Defendants were therefore sufficiently on notice of Meyer’s need for a reasonable accommodation. Accordingly, the Court finds that there is a triable issue of fact as to whether Defendants failed to reasonably accommodate Meyer’s disability, and summary adjudication as to the sixth cause of action is denied.

B. FEHA Claims

California applies the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, under which a plaintiff must first establish a prima facie case of discrimination by showing that: (1) she was a member of a protected class (age or disability), (2) she was qualified for the position sought or was performing competently in the position held (3) she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) Similarly, “in order to establish a prima facie case of retaliation under the FEHA, a 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 existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate nondiscriminatory reason for the adverse employment action. (Ibid.) If the employer meets this burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence that the employer’s reasons for the adverse employment action were a mere pretext for discrimination. (Ibid.)

Similarly, “in order to establish a prima facie case of retaliation under the FEHA, a 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 existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

Defendants contend that Meyer suffered no adverse employment action, and therefore, her FEHA claims must fail. In opposition, Meyer asserts that she was subjected to an adverse employment action: her constructive termination.

An adverse employment action is generally an action that materially affects the terms, conditions, or privileges of employment. (See Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161.) “The protections against discrimination in the workplace . . . are ‘not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee.’” (Id. at p. 1162, quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) “FEHA ‘protects an employee against unlawful discrimination with respect . . . to . . . the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.’” (Ibid., quoting Yanowitz, supra, at pp. 1053-1054.) “[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at p. 1052.) “Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244.) However, the “conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” (Id. at p. 1246.)

Meyer submits that the intolerable conditions she was subjected to comprise the following: 1) pressuring Meyer to commit FINRA violations and to take other actions that created potential FINRA violations, 2) failing to take action despite Meyer’s complaints against FFS’s policies, 3) insulting Meyer and issuing a negative performance review in August 2014, 4) tripling her work load and responsibilities, 5) denying her a reasonable accommodation for her disability, 6) hassling and demeaning Meyer about her jury duty. (Opp’n, p. 11:19 – 12:7.) Notably, Meyer does not include a “failure to promote” theory as part of her constructive termination charge. In any event, the Court finds that any FEHA claim based on a “failure to promote” theory would be time-barred as noted by Defendants.

As discussed above, the Court finds that there is a triable issue of fact as to whether Meyer was denied a reasonable accommodation for her disability. However, as to the other charges, the Court is not convinced that Meyer has shown “intolerable conditions.” First, there is no evidence that Meyer was pressured to commit actual FINRA violations. [UMF 32, 33.] At best, the evidence shows that Meyer had concerns about potential FINRA violations as a result of Defendants’ failure to follow their own internal policies and procedures. [Meyer’s Response to UMF 32, 33.] It is undisputed that Meyer never reported to FINRA that she believed FFS was operating in violation of any securities laws or FINRA Rules. [UMF 37.] As noted in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, the nature of purportedly illegal conduct witnessed by an employee must be “so obnoxious or aggravated as to cause a reasonable employee to feel compelled to resign.” (Id. at p. 1255.) Here, the Court does not find that the nature of the purported potential FINRA violations was so obnoxious as to render Meyer’s employment conditions intolerable to a reasonable employee. Similarly, even if the Court accepts Meyer’s characterization of her negative performance review as “insulting,” such conduct is not a basis for a claim of constructive discharge. (See ibid. [“a single negative performance rating does not amount to a constructive discharge”].) Finally, even taking Meyer’s charges of intolerable conditions together, the Court is not convinced that a “continuous pattern of harassment or aggravating conditions emerges.” (Ibid.) The remaining conduct can be characterized as a “normal part of the employment relationship” because “every employer must on occasion review, criticize, demote, transfer and discipline employees.” (Gibson v. Aro Corp. (1995) 32 Cal.App.4th 1628, 1637.)

Even if the Court accepts that the above complained of conduct amounts to an adverse employment action, there is no evidence of a causal nexus between the adverse employment action and discriminatory intent. In other words, there is no evidence that Meyer was pressured to take actions that created potential FINRA violations because of her age or her disability. There is no evidence that Defendants failed to take action to Meyer’s complaints about potential FINRA violations because of her age or her disability. There is no evidence that Meyer was issued a negative performance review in August 2014 because of her age or her disability. There is no evidence that Meyer’s work load was tripled because of her age or her disability. There is no evidence that Meyer was denied a reasonable accommodation because of her age or her disability. And finally, there is no evidence that Meyer was hassled about jury duty because of her age or her disability. Therefore, summary adjudication as to the discrimination causes of action (the first cause of action, and the third cause of action) is granted.

With regard to the retaliation causes of action, Defendants identify two flaws: the first being that because there is no dispute that Meyer did not complaint of age or disability discrimination, the retaliation causes of action must fail, and the second being that there is no causal link between Meyer’s complaints and any adverse employment action. The Court notes that the second cause of action, retaliation for complaining of age discrimination, fails for lack of evidence. The undisputed evidence shows that Meyer did not complain to management that she had been the victim of age discrimination. [UMF 41.] As to the fifth cause of action, the Court notes that it is based on Meyer’s complaints of disability discrimination and/or harassment. (FAC, ¶ 52.) Meyer contends that she was retaliated against for seeking a reasonable accommodation for her disability. [Meyer’s Response to UMF 42.] “[T]he causal link [between protected activity and adverse employment action] may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) Meyer contends that she was subjected to a negative performance review, being excluded from decisions and meetings, and rushed to complete projects. [Meyer’s Response to UMF 42.] The Court has already discussed whether this conduct can support a finding of constructive discharge, and the Court reiterates that it does not. Furthermore, even considered separately from a constructive discharge theory, the Court finds that there is insufficient evidence that the purported retaliatory acts constitute an adverse employment action. “An unfavorable employee evaluation may be actionable where the employee proves the employer subsequently sues the evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s employment.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457.) No such evidence has been proffered here. Accordingly, summary adjudication as to the retaliation causes of action (second and fifth causes of action) are granted.

C. CFRA Claims

Defendants contend that the seventh and ninth causes of action must fail because Meyer has no evidence of any adverse employment action that post-dates her CFRA leave. The Court agrees. The undisputed evidence shows that Meyer took her CFRA leave starting November 7, 2014. [UMF 22.] The undisputed evidence also shows that Meyer returned to work on December 15, 2014 long enough to tender her resignation. [UMF 24.] Therefore, there is no triable issue of fact that Defendants could not have discriminated against Meyer or retaliated against Meyer for taking CFRA leave, as there is no evidence of any discriminatory or retaliatory acts taking place while she was out on leave. For this reason, summary adjudication as to the seventh and ninth causes of action is granted.

D. Whistleblower Claims

Labor Code section 1102.5, subdivision (b) provides that an “employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (Labor Code, § 1102.5(b).) To establish a prima facie case of retaliation, “a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)

Defendants contend that Meyer’s complaints of potential FINRA violations are insufficient to constitute protected activity. On the other hand, Meyer cites to Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832 in support of the proposition that her complaints of her reasonable belief of violations of FINRA constitutes protected activity. However, as noted by Defendants, the evidence submitted by Meyer only demonstrates that she complained about potential violations of FINRA rules. [UMF 40; Meyer’s Response to UMF 40.] Additionally, for reasons similar to those discussed above, the Court finds that Meyer has not shown that she was subjected to an adverse employment action. For this reason, summary adjudication is granted as to the whistleblower causes of action (tenth and eleventh causes of action).

E. Contract Claims

Meyer contends that an implied agreement existed (to wit, that she would not be retaliated against for raising concerns of FINRA violations) to overcome the presumption of at-will employment. [Meyer’s Response to UMF 3.] The existence of an implied agreement depends on the “totality of the circumstances” in view of the parties’ “actual understanding” on the basis of the following factors: (1) oral assurances of continued employment on the basis of job performance, (2) the length of the employee’s tenure, (3) the employer’s practice of terminating employment only for cause, and (4) the industry practice of terminating employment only for cause. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680-682.) The Court finds that there is no triable issue of fact as to the existence of an implied agreement. There is evidence of an at-will employment. [UMF 2-3.] There is no evidence of any oral assurances of continued employment on the basis of job performance. There is no evidence of Defendants’ practice of terminating employment only for cause. And there is no evidence of industry practice of terminating employment only for cause. Without such evidence, there can be no finding of an implied agreement to overcome the presumption of at-will employment. Therefore, summary adjudication is granted as to the contract causes of action (the twelfth and thirteenth causes of action).

F. Common Law Wrongful Termination and Failure to Prevent Discrimination and Retaliation

Meyer’s fourteenth cause of action for wrongful termination in violation of public policy is predicated on alleged violations of Labor Code § 1102.5, FEHA, and Government Code § 12900. Because the Court has already disposed of Meyer’s discrimination, retaliation, and whistleblower claims, the common law wrongful termination cause of action fails as well. Similarly, because the Court has held that Meyer has failed to make a prima facie showing of discrimination and retaliation, there can be no cause of action for failure to prevent discrimination and retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.) Accordingly, summary adjudication as to the fourteenth and fifteenth causes of action are granted.

CONCLUSION

Based on the foregoing, Defendants’ motion for summary judgment/adjudication is GRANTED IN PART AND DENIED IN PART.

Defendants are ordered to give notice of this ruling.

DATED: March 19, 2018

_____________________________

Hon. Howard L. Halm

Judge of the Superior Court