Plaintiff Deborah Moore appeals from a judgment entered in favor of defendant The Regents of the University of California (Defendant). Moore
The trial court granted summary judgment in favor of Defendant. Our review of the record demonstrates that summary judgment was improperly granted with respect to Moore's first, second, third, fifth and sixth causes of action. Summary adjudication in favor of Defendant was appropriate, however, with respect to Moore's fourth cause of action.
We reverse the judgment and remand the matter for further proceedings in the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Moore began working in University of California San Diego's marketing and communications department (the Department) in 2008. In February 2010, Moore became the director of marketing. Around that same time, the executive director of the department resigned unexpectedly.
In June 2010, Kimberly Kennedy was hired as the new executive director of the department. According to a declaration submitted in support of Defendant's motion for summary judgment, after she was hired, Kennedy sought to restructure the department.
In early September 2010, Moore was diagnosed with idiopathic cardiomyopathy. On or around September 10, 2010, Moore was prescribed and began wearing a heart monitor called a "LifeVest." The "LifeVest" is a monitor and external defibrillator. The "LifeVest" is worn outside of a person's clothing, like a vest, and the monitor, which is approximately six or eight inches by four to five inches in size, is attached to the vest by wires. Moore had to wear the "LifeVest" for two to three weeks.
On the first day that Moore wore the vest to work, she met with Kennedy. Moore "told [Kennedy] what [her] condition was," "told her what the heart monitor was for," and informed Kennedy "that there was nothing to worry about, that it would take care of itself." Moore also told Kennedy that she "would be able to do [her] job, no problem, just continue," that she did not
After speaking with Moore, Kennedy spoke with someone in the human resources department and asked, "`[I]f I have an employee who has a medical event, do I call the hospital or do I call — like, who do I call.'" Kennedy also requested from human resources information on what to do about an employee "with adverse health issues." (Italics added.)
When Moore was told that she no longer needed to wear the "LifeVest," and that it had been "overprescribed" to her, she informed Kennedy about the change. Kennedy told Moore that she had "been in touch with HR" to ask "how to handle [Moore] as a liability to the department." (Italics added.)
Moore testified that her relationship with Kennedy changed after Kennedy became aware of Moore's heart condition. Based on this perceived change, Moore believed that Kennedy did not like the fact that Moore had a heart condition. Moore related a few instances in which she believed that Kennedy had unfairly criticized her work product, including Kennedy yelling at Moore in January 2011 regarding an advertising project, Kennedy seeking to change "the branding process to `be her own,'" and Kennedy being "hostile and snippy" when informing Moore and advertising agency representatives that she did not want to use the music that Moore and some coworkers had chosen for a commercial. Moore also testified that during three different meetings, Kennedy had "humiliated" Moore in disagreeing with the Department's "previous branding look," which Moore had had a role in creating.
According to Moore, after Kennedy became aware of Moore's heart condition, she began eliminating Moore's "main responsibilities," including her work on an "open enrollment program and advertising." Moore did not know why Kennedy reassigned the open enrollment program to someone else. In addition, Kennedy began overseeing the advertising herself rather than allowing Moore to continue doing so. Kennedy had started "sending work to freelancers," including work that had previously been done internally. While Kennedy initially had Moore "oversee" the work of the freelancers, Kennedy later "took [Moore] off of overseeing the freelancers."
In addition, as of November 2010, Kennedy began to meet with two of Moore's "reports" on issues that Moore believed she should have been
Moore testified that Kennedy assigned Moore to work on "`less important'" projects, such as "secondary things to do that [Kennedy] didn't consider important to the department but had to be done." According to Moore, Kennedy was "taking away [Moore's] job responsibilities," and Moore came to believe that Kennedy "was positioning to get rid of [Moore]."
In approximately mid-November 2010, Kennedy demoted Moore, through a Department restructuring, to a new classification. Moore's new title became "Director of Marketing and Brand Management." Moore's salary did not change, but certain other benefits were reduced. Also in November 2010, Kennedy implemented reclassifications of Department positions and laid off two full-time employees.
Moore told Kennedy in December 2010 that she would likely have to have a pacemaker surgically implanted in early 2011 and would need "only" a "few days off work." In January 2011, Moore informed Kennedy that she had postponed her surgery and "would need `like two or three' days off in April 2011." Kennedy did not say anything in response to Moore's statements regarding the need for time off for surgery. Kennedy has no recollection of discussing Moore's need for surgery or her statements about having to take time off for such surgery.
On February 2, 2011, Kennedy sent an e-mail to Courtney Morris, a director of compensation and benefits in the human resources department, indicating that she wanted to eliminate Moore's position, effectively terminating Moore's employment, as of February 15, 2011. According to Kennedy, the job functions that Moore was performing had decreased to such a point that Kennedy could assume them, and therefore, Kennedy decided to eliminate Moore's position.
In response to Kennedy's e-mail regarding the elimination of Moore's position, Morris asked Kennedy to "please explain why Karen [Shea] should be retained out of seniority (see policy clause below). I want to make sure that this is reflected in the file." The policy to which Morris was referring stated: "Indefinite layoff and indefinite reduction in time are effected by unit, by classification, and by salary grade (in the event of a classification assigned to different salary grades) in inverse order of seniority, except that an
At the time Kennedy requested to eliminate Moore's position and terminate her employment, Moore and Shea "f[e]ll in the same payroll, title, and the same classification."
Kennedy's response to Morris's request for an explanation as to why Kennedy was not adhering to the policy with respect to Moore and Shea was as follows: "Elimination of the position [of marketing director] is due to the focus of the marketing department moving to the service lines and away from a central marketing professional servicing a [sic] all service lines and department.... There is no need for two director level positions in the marketing area. [Deb Moore and Karen Shea.] [¶] In addition, I have taken over management of all brand issues and am the main point of contact with our advertising agency and advertising buyer. I also make all decisions regarding brand and identity as well as appoint all vendors. There is duplication in elements of my role with that of the Marketing Manager and again indicates that we do not need this resource."
Thus, in responding to the request from human resources for an explanation as to why the policy was not being followed, Kennedy explained the reasons for the elimination of Moore's position, but did not provide information regarding her assessment as to any "special skills, knowledge, or abilities" that Shea possessed and Moore did not. Kennedy conceded during her deposition that Moore "[p]robably" had the "skills to fill" the role that Shea fulfilled. Kennedy also acknowledged that Shea had "only held that role for a few months" at the time Moore was terminated.
Defendant also has a policy regarding a reduction in force that requires Defendant to "`[g]ive regular status employees preferential opportunities for reassignment or transfer prior to indefinite layoff.'" As interpreted by Andrea Balestrieri, Defendant's identified person most knowledgeable about reduction in force policies in effect at the time of Moore's termination, the "idea [behind the policy] is to minimize impact to employees and to minimize the need to lay someone off." Balestrieri also testified regarding another policy referred to as a "right to recall." Pursuant to this policy, "if a position is opened after an individual is laid off and the position is in the same classification, the same salary grade, they would have the right to recall" — i.e., be rehired into that position.
Shea testified that after Moore was terminated, Kennedy and Shea discussed "[Shea] taking over duties that Deb Moore used to have," and that some of Moore's "direct reports reported in to [Shea] for a short period of time," after which they reported to "Beth Reagan, who reported directly to Kim Kennedy." Moore understood that her "position and [her] tasks were given to somebody else on staff there who just had a slightly different title."
A year and a half after terminating Moore, Kennedy "made some additional restructuring redundancies."
Evidence presented on summary judgment demonstrated that at the time Kennedy was hired, the Department consisted of 15 full-time employees and approximately five temporary employees. However, between November 2010 and May 2011, the Department increased its head count by eight employees. The most significant increases in staff were in the Internet marketing and design and production areas. Kennedy was aware that Moore had a design and production background, and, in fact, that Moore's career had been devoted to being a graphic designer, production manager, and art director. Kennedy acknowledged that Moore had an "extensive background in design and production."
Kennedy did not ask Moore if she would accept a pay reduction, nor did Kennedy consider Moore for a freelance position. There is no evidence that Kennedy offered Moore any of the positions that were filled around the time of, or after, her termination.
B. Procedural background
Moore filed her complaint on January 28, 2013, alleging causes of action under FEHA for disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation, as well as causes of action for interference with CFRA and retaliation in violation of CFRA.
Defendant moved for summary judgment a little over a year after the case was filed. The trial court ruled in favor of Defendant on the motion, concluding that Moore had not demonstrated that there remained triable issues of material fact with respect to any of her causes of action.
The trial court subsequently entered judgment in favor of Defendant. Moore filed a timely notice of appeal from the judgment.
A. Applicable legal standards
1. Summary judgment standards
"Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. [Citation.] On appeal, the reviewing court makes `"an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law."'" (Hesperia Citizens for Responsible Development v. City of Hesperia (2007) 151 Cal.App.4th 653, 658 [60 Cal.Rptr.3d 124].)
In independently examining the record on appeal "to determine whether triable issues of material fact exist," we "`consider all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.'" (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530 [53 Cal.Rptr.3d 700] (Ambriz).) Further, "`we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [the plaintiff's] evidentiary submission while strictly scrutinizing the defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.'" (Ibid.)
"`In the summary judgment context, ... the evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment.'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877 [58 Cal.Rptr.3d 729] (Faust).) "`Thus even though it may appear that a trial court took a "reasonable" view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.'" (Ibid., italics added.)
2. Overview of FEHA and CFRA
a. Overview of FEHA as relevant to Moore's case
FEHA also imposes on the employer the obligation to make reasonable accommodation: "It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] ... [¶] (m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." (§ 12940, subd. (m).) An employer is not required to make an accommodation "that is demonstrated by the employer or other covered entity to produce undue hardship ... to its operation." (Ibid.)
Corresponding with the obligation to make reasonable accommodation for a known physical or mental disability, 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, 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." (§ 12940, subd. (n).) Section 12940, subdivision (n) imposes separate, independent duties on an employer to engage in the "`interactive process'" and to make "`reasonable accommodations.'" (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193 [87 Cal.Rptr.3d 439].)
FEHA also makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (§ 12940, subd. (h).)
b. Overview of CFRA as relevant to Moore's case
B. Moore's first cause of action for disability discrimination under FEHA
1. Standards applicable to discrimination claims
Because a plaintiff does not often possess or obtain direct evidence that an illegitimate criterion was a substantial factor in a particular employment decision, California has adopted the three-stage burden shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817]. (Guz, supra, 24 Cal.4th at pp. 354-356.)
"If the employer sustains this burden [to demonstrate a genuine issue of fact that the action was for a legitimate, nondiscriminatory reason], the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias." (Guz, supra, 24 Cal.4th at p. 356.)
2. Summary judgment in the context of a discrimination claim
"`Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....'" (Guz, supra, 24 Cal.4th at p. 362.) However, "many employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [100 Cal.Rptr.3d 296] (Nazir), italics added.)
The trial court determined that Moore satisfactorily demonstrated a prima facie case of discrimination under FEHA. Although the court concluded that the undisputed evidence established that Moore was not, in fact, physically
The court then considered the evidence presented by Defendant with respect to offering a legitimate, nondiscriminatory basis for Moore's termination. The court concluded that Defendant's evidence was sufficient to meet this standard.
However, with respect to the third stage of the McDonnell Douglas burden shifting test — i.e., Moore's proffer regarding pretext and/or discriminatory motive to overcome Defendant's offer of a nondiscriminatory reason for her termination — the trial court concluded that, "[b]ased on all the evidence presented, plaintiff has not raised a triable issue of fact with respect to her claim of disability discrimination."
We agree with the trial court's analysis with respect to the first two prongs of the McDonnell Douglas test — i.e., that Moore sufficiently demonstrated a prima facie case of discrimination, and that Defendant offered evidence of a legitimate, nondiscriminatory basis for Moore's termination.
Moore offered evidence that Defendant's proffered reasons for terminating her employment may have been untrue, as well as evidence that suggested that Kennedy may not have believed that Moore was healthy enough to continue in her position with the typical stressors of her job — evidence from which a fact finder could infer that Defendant's proffered reason was a pretext for disability discrimination.
Defendant maintains that Moore was laid off due to a restructuring or reorganization of the Department. According to Kennedy, the duties that Moore had in her position were duplicative of duties that Kennedy either was handling or planned to handle herself. However, the timing of events leading up to Moore's termination could suggest that something other than simple restructuring was at play.
Moore was originally hired into the Department as a temporary worker in October 2008, and within a year she was promoted to the position of creative director, a permanent position. By February 2010, just over a year after she had been hired as a temporary worker, Moore was promoted to the position of director of marketing, a position in which she oversaw half of the Department. After the executive director resigned unexpectedly around that same time, Moore and another director shared interim executive director duties. Despite Moore's otherwise rapid ascension in the Department, later
Then, approximately a year after Moore had been promoted to a director position, but only two months after Moore informed Kennedy that she would need some time off for a surgery related to her heart condition, Kennedy decided to eliminate Moore's position. Rather than move Moore to a different director position or even demote her but keep her employed in the Department, Kennedy terminated Moore's employment altogether. "Pretext may ... be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination." (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479 [4 Cal.Rptr.2d 522].)
A defendant's failure to follow its own policies or procedures may also provide evidence of pretext. (See Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 267 [50 L.Ed.2d 450, 97 S.Ct. 555] [a departure from normal procedures "might afford evidence that improper purposes [played] a role" in an employee's termination].) The record discloses evidence from which a reasonable fact finder could conclude that Kennedy failed to follow Defendant's stated procedures with respect to layoffs occurring during a restructuring when she not only eliminated Moore's position, but terminated Moore's employment.
Specifically, Defendant had a policy to retain employees in the same unit, classification and salary grade based on seniority, unless a particular employee who was less senior possessed "special skills, knowledge, or abilities" that a more senior employee did not. At the time Kennedy decided to terminate Moore, Moore was senior to Shea, and they both "f[e]ll in the same payroll, title, and the same classification." When asked by a representative of the human resources department why Kennedy was not adhering to the stated seniority policy with respect to Moore, Kennedy explained the reasons for the elimination of Moore's position, but provided no information regarding her assessment with respect to any "special skills, knowledge, or abilities" that Shea possessed and Moore did not. In other words, Kennedy did not provide any reason why Shea, in particular, was being retained over Moore, who had
Further, in her declaration submitted in support of Defendant's motion for summary judgment, Kennedy's explanation for the decision to retain Shea rather than Moore was that "the two directors oversaw different functions and the roles were not interchangeable." Kennedy still provides no explanation, however, as to whether Shea possessed "special skills, knowledge, or abilities" that Moore did not, that would merit Shea's retention in lieu of Moore's, which is what Defendant's stated policy requires. Indeed, Kennedy acknowledged during her deposition that Moore "[p]robably" had the ability to fill the role that Shea had been in for only a few months when Moore was terminated.
Further, there is evidence demonstrating that Kennedy also did not adhere to Defendant's policy to "`[g]ive regular status employees preferential opportunities for reassignment or transfer prior to indefinite layoff,'" or Defendant's policy regarding the "right to recall." Kennedy admitted that she did not ask Moore if she would accept a pay reduction, did not offer Moore any of the positions that were filled around or after her termination, and did not consider Moore for a freelance position. This was in spite of the fact that between November 2010 and May 2011, the Department increased its head count by eight employees, that the most significant increases in staff were in the Internet marketing and design and production areas, and that Kennedy was aware that Moore had a background in design and production.
Thus, there remain significant questions as to whether Defendant followed its own stated policies with respect to Moore's termination.
In addition to the evidence that raises questions about Defendant's proffered reasons for terminating Moore's employment, Moore provided evidence of other statements made by Kennedy from which a fact finder could infer that Kennedy was concerned that Moore's health was going to be a problem at work and that she may have had discriminatory reason for terminating Moore's employment. After observing Moore wearing the "LifeVest" and learning from Moore about Moore's heart condition, Kennedy contacted the human resources department and inquired as to what she should do about employees "with adverse health issues" (italics added), in the context of inquiring with respect to Moore's "adverse health condition" (italics added). Even more troubling is evidence that when Moore informed Kennedy that she no longer needed to wear the "LifeVest," Kennedy's response was that she
C. Moore's second and third causes of action for failure to accommodate and failure to engage in the interactive process in violation of FEHA
Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 [62 Cal.Rptr.2d 142].) Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. (See Jensen, supra, 85 Cal.App.4th at p. 266.) While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [43 Cal.Rptr.3d 874] (Gelfo).)
In discussing its conclusion that an employer may be held liable for failing to accommodate an individual whom the employer perceives as disabled, even if he or she is not actually disabled under FEHA, the Gelfo court adopted similar reasoning employed by a federal court in considering this issue with respect to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.; ADA): "`The ADA is concerned with safeguarding the employee's livelihood from adverse actions taken on the basis of "stereotypic assumptions not truly indicative of individual ability" of the employee.... [T]he real danger is not that the employee will fail to educate an employer concerning her abilities, but that "[t]he employee whose limitations are perceived accurately gets to work, while [the employee perceived as disabled] is sent home unpaid."' [Citation.] Stated differently, the ADA's educational function is actually advanced by providing accommodations to `regarded as' disabled employees because `an employer who is unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employee's abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions. In this sense, the
Consequently, the trial court erroneously relied on its conclusion that Moore did not have a disability in granting summary adjudication of Moore's claims for failure to accommodate and failure to engage in the interactive process, since a plaintiff need not have an actual disability, but need only be regarded by the employer as having one, to be able to make out claims under section 12940, subdivisions (m) and (n).
A reasonable fact finder could conclude, based on the evidence presented on summary judgment, (1) that Defendant regarded Moore as disabled, (2) that Moore requested an accommodation of leave to have surgery related to her perceived disability, (3) that Defendant terminated Moore before either providing her with the requested accommodation or engaging with her further to determine whether such accommodation would sufficiently address her perceived disability or whether other or different accommodations might reasonably be provided, and (4) that the termination was pretextual. The granting of summary adjudication of Moore's second and third causes of action in favor of Defendant was therefore erroneous.
D. Moore's fourth cause of action for retaliation in violation of FEHA
In the operative complaint, Moore alleges that Defendant unlawfully retaliated against her as a result of her "notifying" Defendant "of her disability(ies) and need for accommodations, including, but not limited to, a finite leave of absence." In other words, Moore contends that the "protected activity" in which she engaged was notifying Defendant of her heart condition and requesting a leave of absence for her surgery.
The trial court concluded that Defendant was entitled to summary adjudication of Moore's cause of action for retaliation under subdivision (h) of
On appeal, however, Moore contends that Defendant does not "raise any arguments against the first two elements [of her prima facie case of retaliation], nor does [Defendant] discuss the fact that the Legislature amended FEHA to supersede Rope[, supra,] 220 Cal.App.4th  and make clear that a request for an accommodation constitutes protected activity."
In 2015, the Legislature amended section 12940 by adding two provisions; Assembly Bill 987 "enact[s] paragraph (2) of subdivision (m) and paragraph (4) of subdivision (1) of Section 12940, to provide protection against retaliation when an individual makes a request for reasonable accommodation under these sections, regardless of whether the request was granted." (Assem. Bill 987, § 1, subd. (d).) Relevant to Moore's claims for disability discrimination is the amendment to subdivision (m) of section 12940.
A question arises as a result of the Legislature's act in amending section 12940: Does the recent amendment have an effect on Moore's claim for retaliation under FEHA, in which she alleges a violation of law that occurred in early 2011?
Because the recent amendment is prospective in application, in 2011, at the time Moore alleges Defendant engaged in the asserted retaliation, the law was consistent with the holding of Rope, supra, 220 Cal.App.4th 635. In other words, at the time of the relevant events, a request for an accommodation, without more, was insufficient to constitute "protected activity" under section 12940, subdivision (h), and such activity thus could not support a claim for retaliation under subdivision (h). (Rope, supra, at p. 652.) As a result, Moore cannot base her claim for retaliation under FEHA on her alleged request for an accommodation — i.e., her request for time off for surgery.
We therefore conclude that no issues of material fact remain in dispute with respect to Moore's FEHA retaliation claim, and that summary adjudication of this claim in favor of Defendant was appropriate.
E. Moore's sixth cause of action for retaliation in violation of CFRA
Defendant asserts that the trial court correctly concluded that it was entitled to judgment on Moore's CFRA retaliation cause of action because "[Moore] did not exercise her right to take CFRA leave and she cannot establish a causal connection [between the exercise of such right and an adverse employment action]."
Defendant is incorrect with respect to the state of the evidence regarding the element that plaintiff "`exercised her right to take [leave] for a qualifying CFRA purpose.'" (Faust, supra, 150 Cal.App.4th at p. 885.) Defendant asserts that Moore "testified she never used, or intended to use, a protected leave during her employment." This, however, is insufficient to demonstrate that Moore did not "exercise her right to take leave for a qualifying CFRA purpose." (Ibid.) The relevant question with respect to this element is not whether a plaintiff expressly requested CFRA leave, but, rather, whether a
Section 12945.2, subdivision (a), provides that the Fair Employment and Housing Council "shall adopt a regulation specifying the elements of a reasonable request" for leave under the CFRA. California Code of Regulations, title 2, section 11088, subdivision (b)(2) provides: "A request to take a CFRA leave is reasonable if it complies with any applicable notice requirements, as specified in section 11091...."
In turn, California Code of Regulations, title 2, section 11091, subdivision (a)(1) describes the notice requirements of a reasonable request for CFRA leave in relevant part as follows: "[A]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The mere mention of `vacation,' other paid time off, or resignation does not render the notice insufficient, provided the underlying reason for the request is CFRA-qualifying, and the employee communicates that reason to the employer. The employer should inquire further of the employee if necessary to determine whether the employee is requesting CFRA leave and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information)." (Italics added.) Thus, an employer bears a burden, under CFRA, to inquire further if an employee presents the employer with a CFRA-qualifying reason for requesting leave.
There is evidence that Moore informed Kennedy that she would have to take leave for surgery for implantation of a device for her heart condition.
Defendant also contends that because it offered a legitimate, nonretaliatory reason for Moore's layoff, Moore cannot demonstrate pretext, as a matter of law. As we have explained in part III.B., ante, however, we disagree that the question of pretext with respect to Moore's termination is appropriate for determination as a matter of law on this record. We refer to our discussion of the evidence in part III.B., ante, with respect to the question of pretext.
Given that there remain material issues of fact in dispute regarding whether Defendant's proffered reason for Moore's termination was pretextual, Defendant has not sufficiently demonstrated that it is entitled to summary adjudication of Moore's claim for unlawful retaliation under CFRA.
F. Moore's fifth cause of action for interference with CFRA
Defendant's reliance on Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236, 1244 (Escriba), is misplaced. In fact, Escriba, which involved claims under the FMLA, supports our conclusion that summary adjudication of Moore's CFRA interference claim was not appropriate. The Escriba court held that "an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection." (Escriba, supra, at p. 1244.) In Escriba, which involved an appeal after a jury verdict, not a summary judgment, the court determined
The evidence presented on summary judgment in this case is easily distinguishable from the evidence presented to the jury in Escriba. Unlike in Escriba, there is no evidence that Moore had ever requested FMLA or CFRA leave prior to the time she indicated she would need to take a few days off for her surgery. Further, there is no evidence that Moore was aware of her right to take CFRA leave (as opposed to FMLA leave); if Moore did not even realize that she had a right to such leave, a fact finder could conclude that she did not affirmatively decline to use such leave. Further, when Moore first provided notice to Kennedy of her need for leave, the surgery was many months away; even at the time Moore was terminated, there was approximately a month and a half to go before her planned April 2011 surgery. Thus, it is possible that Moore had not yet made a firm decision as to whether to take vacation leave or legally protected medical leave. Therefore, even if one were to conclude that Moore was actually aware of her right to take CFRA-protected leave, a fact finder could nevertheless also reasonably conclude from the evidence presented on summary judgment that Moore had formed no specific intent with respect to seeking CFRA leave (i.e., she had not formed an intent not to take CFRA leave).
There is nothing in the separate statements of undisputed facts that would indicate that Defendant either posted notice or specifically provided notice to Moore of her leave rights under CFRA, as specifically required by CFRA.
Given the numerous conclusions that a fact finder could draw from the evidence Defendant presented in support of summary adjudication of Moore's CFRA interference claim, some of which do not support judgment in favor of Defendant, as well as the absence of evidence that Defendant met its own obligations under CFRA, we must reverse the trial court's grant of summary adjudication of the fifth cause of action for interference under CFRA.
G. We need not consider Moore's evidentiary arguments on appeal
Moore contends that the trial court's ruling with respect to Defendant's motion for summary judgment was premised on "several evidentiary mistakes." Specifically, Moore takes issue with (1) the trial court's reliance on certain portions of the Balestrieri's deposition regarding the differences between Moore's former position and that of Shea, (2) the trial court's overruling of Moore's objections to portions of Defendant's evidence on the procedural ground that Moore objected to the separate statement of undisputed facts rather than the foundational evidence on which such facts were based, and (3) the trial court's sustaining of objections to Moore's introduction of certain documents.
We need not address these evidentiary concerns because the correctness of these challenged evidentiary rulings is irrelevant to our determination of the substantive issues raised in this appeal. Even assuming that the trial court was correct with respect to the evidence that it considered and excluded, the court nevertheless erred in granting summary adjudication in favor of Defendant on Moore's first, second, third, fifth, and sixth causes of action. Further, nothing about the evidence that Moore contends was either inappropriately excluded or improperly considered could have assisted Moore in establishing that summary adjudication in favor of Defendant was not proper with respect to her fourth cause of action, for retaliation under FEHA.
The court's granting of summary judgment in favor of Defendant is reversed. Defendant is not entitled to summary adjudication in its favor on Moore's first, second, third, fifth, and sixth causes of action. However,
Moore is entitled to her costs on appeal.
McConnell, P. J., and Huffman, J., concurred.
Subdivision (m)(4) and (5) of section 12926 implement the Legislature's intent to protect individuals who are "erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity." (§ 12926.1, subd. (d).) "Both the policy and language of the statute offer protection to a person who is not actually disabled, but is wrongly perceived to be." (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 53 [43 Cal.Rptr.3d 874].)
On appeal, Moore focuses her briefing on her claim for discrimination based on what she alleges was her perceived disability, asserting that this "is a classic perceived disability case." However, Moore also suggests in a footnote that she suffers from an actual disability, as well — i.e., heart disease. Moore makes only a brief assertion in this footnote that she "had an actual disability" because "`physical disabilities'" includes "`heart disease.'" We do not address this contention on appeal because Moore's reference to her having an actual disability in a footnote is insufficient to raise a challenge to the trial court's determination, on summary judgment, that the undisputed facts demonstrate that Moore did not have an actual disability at the relevant time. (See Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [50 Cal.Rptr.3d 398] ["One cannot simply say the court erred, and leave it up to the appellate court to figure out why"]; see also Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873 [105 Cal.Rptr. 395] ["An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument"].)