# Cotterman v. Jan X-Ray Services, Inc.

> District Court, E.D. California · March 17, 2022

URL: https://www.frixlaw.com/law-library/cases/10043306

## Case

- **Court:** District Court, E.D. California
- **Decided:** March 17, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 ERNEST COTTERMAN, an individual, No. 2:19-cv-01235-MCE-CKD
12 Plaintiff,
13 v. MEMORANDUM AND ORDER
14 JAN X-RAY SERVICES, INC., a
Michigan corporation,
15
Defendant.
16

17
18 On May 17, 2019, Plaintiff Ernest Cotterman (“Plaintiff”) initiated this lawsuit in the
19 Superior Court of California, County of Sacramento, against his former employer Jan
20 X-Ray Services, Inc. (“Defendant”) for alleged discrimination, retaliation, failure to
21 prevent discrimination and retaliation, failure to provide reasonable accommodations,
22 failure to engage in a good faith interactive process, declaratory judgment, denial of and
23 discrimination based upon the use of sick leave, and wrongful termination. Ex. A, Not.
24 Removal, ECF No. 1-2 (“Compl.”). Defendant subsequently removed the case to this
25 Court on diversity grounds pursuant to 28 U.S.C. § 1332. Not. Removal, ECF No. 1.
26 Presently before the Court is Defendant’s Motion for Summary Judgment or, in the
27 alternative, Partial Summary Judgment. ECF No. 17 (“Def.’s Mot.”). This matter has
28 ///
1 been fully briefed. ECF Nos. 19 (“Pl.’s Opp’n”), 21 (“Def.’s Reply”). For the reasons set
2 forth below, Defendant’s motion is GRANTED in part and DENIED in part.1
3
4 BACKGROUND2
5
6 A. Plaintiff’s Employment and Job Position with Defendant
7 Plaintiff is a former union employee of Defendant, who is a leading provider of
8 non-destructive testing solutions in the United States and specializes in pipeline and
9 facility new construction inspections. Pl.’s Response Def.’s Statement of Undisputed
10 Facts, ECF No. 19-4 ¶¶ 1, 3. Defendant utilizes a variable union workforce, meaning
11 that union employees are not engaged full-time, but rather are assigned project-by-
12 project, and when not actively working for Defendant, may be working for other
13 companies. Id. ¶ 2. Plaintiff belonged to the International Union of Operating Engineers,
14 Local 112, and consistent with Defendant’s use of its variable union workforce, had
15 multiple short-term stints performing assignments for Defendant. Id. ¶ 3.
16 Plaintiff worked as a Level I Technician. Id. ¶ 4. According to his job description:
17 The main function of the Level I Technician is to provide field
support for the Level II Technician and perform basic NDT
18 [nondestructive testing] services under direct guidance of the
Level II Technician. This will include using, supplying, and/or
19 holding materials or tools; transporting equipment and
cleaning work area and equipment; learning different NDT
20 methods and techniques; following established methods of
NDT inspection and procedures to determine compliance
21 under direct supervision; and learning field operational
practices to compliment Level I certification. The Level I
22 Technician position is typically the mid-level position for
[Defendant’s] employees and is a union position.
23
24 Ex. D, ECF No. 17-6, at 47 (Level I Technician job description). Level I Technicians
25 work in tandem with Level II Technicians and are often referred to as “helpers,” meaning

26
1 Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs. E.D. Local Rule 230(g).
27

2 Unless otherwise stated, the facts are assembled from Plaintiff’s Response to Defendant’s
28 Statement of Undisputed Facts in Support of Motion for Summary Judgment (ECF No. 19-4).
1 that their job is to help the Level II Technicians who are responsible for taking and
2 reading x-rays of welds in steel pipes to make sure there are no flaws in the weld. Pl.’s
3 Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶¶ 6–7.
4 A function of the Level I Technician is to carry, set up, and move the 55-pound
5 camera used by the Level II Technician to take x-rays.3 Ex. D, ECF No. 17-6, at 49
6 (Level I Technician job description). After the x-rays are taken, the Level II Technician
7 develops the x-rays and then analyzes them to evaluate the structural integrity of the
8 welds. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 41. While
9 the Level II Technician develops and analyzes the x-rays and completes the necessary
10 certification paperwork, the Level I Technician will move the camera and set it up for the
11 next x-ray. Id. ¶ 42. Additionally, a Level I Technician must be able to climb, crawl,
12 crouch, lift, pull, push, reach, and make repetitive motions. Ex. D, ECF No. 17-6, at 49–
13 50 (Level I Technician job description).
14 B. Defendant’s Policies
15 Defendant maintains an Accident Response & Reporting Policy (the “Reporting
16 Policy”), which provides the following:
17 2.0 SCOPE AND RESPONSIBILITIES:
18 1. Employees: All employees shall report all safety
incidents to their immediate supervisor for investigation. This
19 reporting is to be IMMEDIATELY (at least within 1 hour)
AFTER THE INCIDENT/INJURY. Employees will be expected
20 to participate in the incident investigations as required. Site
Supervisors are responsible for reporting incidents on larger
21 work sites.
22 2. Supervisors: All supervisors are to immediately make
an initial report to the Company Safety Officer. Also, [a]ll
23 supervisors shall promptly (WITHIN 24 HOURS) investigate all
safety incidents and submit appropriate reports to the
24

25

3 The parties dispute the significance of this responsibility. Defendant states that this is the
26
primary and essential function of the Level I Technician position. Pl.’s Response Def.’s Statement of
Undisputed Facts, ECF No. 19-4 ¶ 8 (citing Ex. I, Hammond Dep., ECF No. 17-6, at 134–36). On the
27
other hand, Plaintiff agrees that carrying the camera was one of his job responsibilities but disputes that
this was his primary responsibility. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4
28 ¶ 8 (citing Cotterman Decl., ECF No. 19-1 ¶¶ 5–6).
1 JANX/Applus RTD4 Company Safety Officer for review. They
shall determine causes and take immediate action to correct
2 any unsafe acts or conditions within their control.
3 3. Management: Initially the [Environmental,] Health &
Safety [(“EHS”)]5 Director will advise and assist the employee’s
4 immediate supervisor on actions to be taken. The Local
JANX/Applus RTD Company Safety Officer (Local EHS
5 Manager) shall promptly review all safety incident reports and
develop the corrective action to prevent similar incidents. The
6 Corporate EHS Manager – USA will assist JANX/Applus
RTD – USA in maintaining the required OSHA Logs and
7 communication with the insurance companies. All results shall
be communicated to workers, by crew briefings or posting.
8 Incident records will be retained by JANX/Applus RTD for at
least five years three years [sic], beyond the current year of
9 the incident date.
10 . . .
11 5.0 LATE AND/OR FALSE REPORTING
12 Any employee, who delays or falsifies reporting, will be subject
to discipline, up to the possibility of termination.
13
14 Ex. G, ECF No. 17-6, at 120–22; Ex. 4, ECF No. 19-6, at 86–88 (same). According to
15 Defendant, the Reporting Policy requires employees to report all safety incidents to their
16 immediate supervisor within one hour of the occurrence and then submit an Incident-
17 Accident-Injury Report form to the EHS Manager within 24 hours. Def.’s Mot. at 7.
18 Plaintiff interpreted the Reporting Policy to mean that he was permitted to report his
19 injury to his immediate supervisor, which he believed to be his Level II Technician, and
20 that it was the supervisor’s responsibility to submit an incident report to the EHS
21 Manager. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶¶ 12–
22 14.
23 Defendant also has a policy regarding reasonable accommodations (the “RA
24 Policy”):
25 ///

26
4 Applus RTD USA, Inc. is the parent company of Defendant. See Gross Decl., ECF No. 17-3 ¶ 1.

27 5 The parties’ briefs and supporting documentation interchangeably refer to EHS Manager or
Supervisor as the “Health, Safety, & Environmental” (“HSE”) Manager or Supervisor. The Court assumes
28 that both EHS and HSE designations refer to the same position.
1 [Defendant] is committed to principles of equal opportunity for
all job applicants and employees. In keeping with this policy,
2 [Defendant] does not engage in impermissible discrimination
based on any protected characteristic, including but not limited
3 to an individual’s disability or religion. [Defendant] will also
make reasonable accommodations that are necessary to
4 comply with the state and federal disability and religious
discrimination laws. This means that [Defendant] will make
5 reasonable accommodations for the known physical or mental
disability, known medical condition, or religious practice or
6 dress of an applicant or employee, consistent with its legal
obligation to do so.
7
As part of its commitment to make reasonable
8 accommodations, [Defendant] also wishes to participate in a
timely, good faith, interactive process with the applicant or
9 employee to determine effective reasonable accommodations,
if any, that can be made in response to a request for
10 accommodations. Applicants and employees are invited to
identify reasonable accommodations that can be made to
11 assist them to perform the essential functions of the position
they seek or occupy. They should contact Management or
12 Human Resources as soon as possible to request the
opportunity to participate in a timely interactive process. By
13 working together in good faith, [Defendant] hopes to implement
any reasonable accommodations that are appropriate and
14 consistent with its legal obligations.
15 Ex. F, ECF No. 17-6, at 61–62 (union employees handbook).
16 C. Plaintiff’s Injury and Medical Treatment
17 Plaintiff’s most recent assignment with Defendant took place between May 8 and
18 June 3, 2017, in Sacramento, California. Pl.’s Response Def.’s Statement of Undisputed
19 Facts, ECF No. 19-4 ¶¶ 5, 10. On May 18, 2017, Plaintiff suffered an injury to his right
20 shoulder while lifting the 55-pound camera. Id. ¶ 11; Cotterman Decl., ECF No. 19-1
21 ¶ 10. After sustaining the injury, Plaintiff informed his Level II Technician Dustin Jones
22 (“Jones”), who Plaintiff considered to be his immediate supervisor. Id. ¶ 11. However,
23 Plaintiff did not report his injury to his manager, Wes Summers (“Summers”), or
24 complete an Incident-Accident-Injury report within the required time frames. Def.’s Mot.
25 at 7–8 (citing Ex. G, ECF No. 17-6); see Ex. A, Cotterman Dep., ECF No. 17-6, at 12.
26 Initially, Plaintiff did not think his injury was severe enough to seek immediate medical
27 care and thus it did not merit a report higher than Jones. Pl.’s Response Def.’s
28 Statement of Undisputed Facts, ECF No. 19-4 ¶ 14. However, over the next ten days,
1 Plaintiff told Jones several times that he was in pain, but Jones minimized the issue and
2 told Plaintiff to walk it off. Cotterman Decl., ECF No. 19-1 ¶¶ 12–13. Jones also told
3 Plaintiff that he should wait several days before seeking treatment so Jones could
4 accompany him to the doctor. Id. ¶ 14.
5 On May 28, 2017, Plaintiff went to the hospital for treatment and the physician’s
6 assistant who examined Plaintiff prepared a Doctor’s First Report of Occupational Injury
7 or Illness (“Doctor’s First Report”), in which Plaintiff stated he “pulled a muscle in [his]
8 right shoulder while doing [his] normal task at work,” specifically lifting the camera and
9 cranking the motion. Ex. 6, ECF No. 19-6, at 154. Plaintiff was diagnosed with right
10 shoulder pain and prescribed pain medication, but the physician’s assistant wrote that
11 Plaintiff is able to perform usual work as long as he could tolerate the pain and that
12 Plaintiff needs to follow-up with his primary care provider. Id. After his hospital visit,
13 Plaintiff returned to work, told Jones about his treatment at the hospital, and gave Jones
14 the Doctor’s First Report to fax it to the upper management. Pl.’s Opp’n at 7; see Ex. A,
15 Cotterman Dep., ECF No. 17-6, at 12 (stating that Plaintiff did not inform Summers that
16 he was seeking medical treatment). According to Plaintiff, Jones was very upset that
17 Plaintiff sought medical care without permission and told Plaintiff that he would be
18 “blackballed” by Defendant, meaning Plaintiff would be prevented from working in the
19 field for Defendant. Cotterman Decl., ECF No. 19-1 ¶ 18.
20 The following day, Plaintiff told a fellow employee that he injured himself using the
21 camera crank, and that employee relayed this conversation to Summers. Ex. J, ECF
22 No. 17-6, at 144 (Summers’s investigative notes). On May 30, 2017, Summers spoke to
23 Defendant’s EHS Manager Steve Hammond (“Hammond”) about Plaintiff’s injury. Pl.’s
24 Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 18. Later that same
25 day, Summers called Plaintiff, who then informed Summers of his injury and subsequent
26 medical treatment. Id. ¶ 19. When Summers asked why Plaintiff did not report his injury
27 to him, Plaintiff responded that he told Jones. Ex. J, ECF No. 17-6, at 144 (Summers’s
28 investigative notes). Summers reminded Plaintiff that the Reporting Policy requires
1 employees to report any incidents within 24 hours to Summers or to the EHS
2 department. Id. Plaintiff acknowledged the reporting requirement but asserts that he did
3 not violate the Reporting Policy because his understanding was that he was permitted to
4 report his injury to Jones, his immediate supervisor, and that it was Jones’s responsibility
5 to submit an incident report to the EHS Manager. Pl.’s Response Def.’s Statement of
6 Undisputed Facts, ECF No. 19-4 ¶¶ 12–14.
7 D. Meeting Between Plaintiff, Summers, and Hammond on June 2, 2017
8 On June 2, 2017, Summers and Hammond met with Plaintiff to discuss Plaintiff’s
9 violation of Defendant’s policies and employee handbook for failing to report his injury in
10 a timely manner and for seeking medical treatment without notifying management
11 (“June 2 Meeting”). Def.’s Mot. at 8; Ex. A, Cotterman Dep., ECF No. 17-6, at 15–16.
12 Plaintiff was provided a written warning in an Employee Corrective Action form for not
13 abiding with Defendant’s accident reporting policies, which stated that “[a]dditional
14 deviations from policy or procedure may result in termination.” Ex. E, ECF No. 17-6, at
15 53–54. Although he was given an opportunity to contest the written warning, Plaintiff
16 signed the form. Id. (“It has been reported by your own statement, that you had
17 knowledge of the reporting procedures but opted not to follow them.”); Pl.’s Response
18 Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 24. Regardless, Plaintiff
19 continues to assert that he abided the Reporting Policy by notifying Jones. Id. The
20 parties dispute as to what next transpired at the meeting.
21 1. Defendant’s Version of Events
22 Aside from discussing Plaintiff’s failure to report his injury, Defendant states that
23 the other main purpose of the June 2 Meeting was for Defendant to engage with Plaintiff
24 in a timely, good faith interactive process as required by Defendant’s RA Policy. Def.’s
25 Mot. at 9. Plaintiff provided the Doctor’s First Report, which stated that Plaintiff required
26 further treatment, namely, to follow up with his primary care provider. Ex. B, ECF
27 No. 17-6, at 43. Based on that report, Plaintiff’s current physical complaints, and his
28 stated need for additional medical treatment, Defendant claims it provided Plaintiff with a
1 reasonable accommodation by granting him time off work and paying for Plaintiff’s flight
2 home to Pennsylvania so he could obtain treatment with his primary care provider there.
3 Def.’s Mot. at 9 (citing Ex. I, Hammond Dep., ECF No. 17-6, at 138). Defendant denies
4 informing Plaintiff that he was terminated during the course of this meeting. See Ex. E,
5 ECF No. 17-6, at 53–54 (Employee Corrective Action form) (showing that none of the
6 termination boxes were marked and stating that Defendant was “removing [Plaintiff] from
7 duty until [he] ha[s] been evaluated by [his] personal care provider as directed by the
8 treating physician/PA.”); Ex. I, Hammond Dep., ECF No. 17-6, at 139–40 (stating that he
9 never told Plaintiff he was terminated or laid off during the June 2 Meeting).
10 2. Plaintiff’s Version of Events
11 In addition to the written warning, Plaintiff alleges that Defendant informed him
12 that it was denying Plaintiff’s worker’s compensation claim and sending Plaintiff home to
13 Pennsylvania. Cotterman Decl., ECF No. 19-1 ¶¶ 22–23. Ultimately, Plaintiff says that
14 the main purpose of the meeting was to terminate his employment. Pl.’s Response
15 Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 24. Plaintiff does not dispute that
16 Summers and Hammond did not verbally or explicitly state that he was terminated, or
17 that they did not provide him with a formal termination notice, but nonetheless Plaintiff
18 contends that termination is the only reasonable interpretation of Summers and
19 Hammond’s words and conduct. See Ex. A, Cotterman Dep., ECF No. 17-6, at 23
20 (stating that Plaintiff did not think he would be allowed to return to work, but no one said
21 anything verbally); Ex. A, Cotterman Dep., ECF No. 19-6, at 36–38; Pl.’s Response
22 Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 34. In the past, Defendant hired
23 Plaintiff on a job-by-job basis and Plaintiff was laid off after a job was completed; when
24 Defendant needed Plaintiff for a new assignment, it would rehire him. Cotterman Decl.,
25 ECF No. 19-1 ¶ 8; Ex. A, Cotterman Dep., ECF No. 19-6, at 5–8. Thus, removing
26 Plaintiff from the job in question and flying him back home to Pennsylvania was in effect
27 a termination and would have been understood as such by Summers and Hammond.
28 Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 29.
1 Plaintiff asked not to be sent home, showed Summers and Hammond the
2 Doctor’s First Report which did not impose any work restrictions aside from pain
3 tolerance, and told them that he could continue to work so long as he was taking pain
4 medication and Jones helped him temporarily with more strenuous tasks such as lifting
5 the camera. Cotterman Decl., ECF No. 19-1 ¶¶ 24, 29. Summers and Hammond
6 allegedly ignored Plaintiff’s requests, did not inquire as to whether Plaintiff could do his
7 job, and did not offer or discuss any other reasonable accommodation. See Ex. A,
8 Cotterman Dep., ECF No. 19-6, at 24–26. Instead of sending Plaintiff to see his primary
9 care provider in Pennsylvania, Summers and Hammond gave Plaintiff the business card
10 of a physician’s assistant in Pennsylvania who worked with Defendant and its workers’
11 compensation carrier, WorkPlace Health. Cotterman Decl., ECF No. 19-1 ¶ 26; Ex. A,
12 Cotterman Dep., ECF No. 19-6, at 25. Hammond told Plaintiff to “go home, get better
13 and then call them back and maybe they’ll bring [Plaintiff] back.” Ex. A, Cotterman Dep.,
14 ECF No. 19-6, at 24.
15 E. Subsequent Events
16 Plaintiff returned to Pennsylvania and Defendant claims it continued the ongoing
17 interactive process through its medical management provider AllOne Health (“AllOne”) to
18 determine if Defendant could accommodate Plaintiff’s restrictions. Gross Decl., ECF
19 No. 17-3 ¶ 10. On June 15, 2017, Plaintiff visited the physician’s assistant referred by
20 Summers and Hammond. See Ex. C, ECF No. 17-6, at 45 (email from worker’s
21 compensation claim representative); Ex. 7, ECF No. 19-6, at 156–58 (report completed
22 by physician’s assistant). That same day, the nurse case manager from AllOne emailed,
23 among others, Hammond and the worker’s compensation claim representative, stating
24 that Plaintiff attended his medical appointment and that the medical provider ordered
25 magnetic resonance imaging (“MRI”) of Plaintiff’s right shoulder to rule out rotator cuff
26 tear and changed Plaintiff’s pain medication. Ex. C, ECF No. 17-6, at 45 (email from
27 worker’s compensation claim representative). Shortly thereafter, the worker’s
28 compensation claim representative responded to AllOne’s nurse case manager and
1 stated that Plaintiff’s duties would be modified to “no lifting pushing or pulling over
2 10lbs,” “no overhead work,” and “no repetitive reaching.” Id. Plaintiff returned for a
3 follow-up visit on June 23, 2017, to review the results of the MRI, and the report
4 completed by the physician’s assistant also provided that Plaintiff’s current restrictions
5 were modified to no lifting, pushing, or pulling over ten pounds; no overhead work; and
6 no repetitive reaching. Ex. 7, ECF No. 19-6, at 158 (report completed by physician’s
7 assistant); Ex. 8, ECF No. 19-6, at 161–62 (emails from AllOne’s nurse case manager).
8 Plaintiff agrees that these work restrictions were imposed but alleges the
9 physician’s assistant imposed them on Plaintiff prior to seeing the results of his MRI and
10 in direct contradiction of the Doctor’s First Report. Ex. A, Cotterman Dep., ECF No. 19-
11 6, at 29–31. Furthermore, both the physician’s assistant and nurse case manager noted
12 in their reports and correspondence that Plaintiff said “he was let go” by Defendant, but
13 Plaintiff states that Defendant never made any attempt to correct him. Ex. 7, ECF
14 No. 19-6, at 156 (report completed by physician’s assistant); Ex. 8, ECF No. 19-6, at 163
15 (email from AllOne’s nurse case manager); but see Hammond Dep., ECF No. 17-6, at
16 140 (stating that it was not true that Plaintiff had been let go by Defendant despite
17 Plaintiff’s statements and thus “nothing was followed up on.”).
18 Defendant, reiterating that it did not terminate Plaintiff’s employment, claims that
19 after receiving and considering Plaintiff’s recently imposed work restrictions, Defendant
20 determined that it could not accommodate those restrictions in his current position as a
21 Level I Technician:
22 Accordingly, Plaintiff being able to carry, set up, and
manipulate the x-ray camera, which weighed approximately 55
23 pounds, was an essential job function of his Level I Technician
position, and could not be eliminated and/or simply handled by
24 the Level II Technician because the Level II Technician has
other job duties. To require the Level II Technician to move
25 and set up the x-ray camera would turn a two man job into a
one man job. Thus, this was not a reasonable accommodation
26 that Defendant could provide.
27 Defendant also determined that it had no alternative work
available for Plaintiff. Defendant could not reassign Plaintiff to
28 perform administrative work because Defendant does not
1 have any administrative offices in California or Pennsylvania
(where Plaintiff resides). Additionally, there were no available
2 light duty positions, as all of Defendant’s California and
Pennsylvania employees are considered field workers, either
3 Level I or Level II Technicians. Additionally, based on his
qualifications, certifications, and experience, Plaintiff was not
4 qualified to be a Level II Technician.
5 The reasonable accommodation that Defendant did provide
Plaintiff was time off work, beginning on June 2, 2017 when it
6 agreed to fly him home so he could receive follow up medical
treatment with his primary care physician, as well as additional
7 time off while he recovered from his injury and subsequent
treatment.
8
9 Gross Decl., ECF No. 17-3 ¶¶ 12–14; see also Ex. D, ECF No. 17-6, at 49 (Level I
10 Technician job description).
11 Plaintiff’s injury ultimately proved to be more serious and on November 20, 2017,
12 Plaintiff had shoulder surgery. Pl.’s Response Def.’s Statement of Undisputed Facts,
13 ECF No. 19-4 ¶ 51; see Ex. H, ECF No. 17-6, at 126 (medical report). As a result,
14 Plaintiff was unable to work for one year, or until November 2018, while recovering from
15 the surgery. Pl.’s Response Def.’s Statement of Undisputed Facts, ECF No. 19-4 ¶ 52
16 (citing Ex. A, Cotterman Dep., ECF No. 17-6, at 33). Although Plaintiff says he would
17 have been able to work as a Level I Technician without any accommodations between
18 November 2018 and November 2019, Plaintiff did not reach out to Defendant or his
19 union about continuing his employment, believing that his employment had already been
20 terminated by Defendant. Id. ¶¶ 53–54.
21 As a union employee with a variable, project-based work schedule, Plaintiff was
22 responsible for notifying his union when he was ready or able to work. Id. ¶ 55. At the
23 time, Defendant had a policy that union employees who had not been assigned to a job
24 for 180 days were considered inactive but were eligible to perform assignments without
25 having to go through the new hire process again for up to one year. Id. ¶¶ 56–57.
26 According to Defendant, it placed Plaintiff on layoff status after 180 days of inactivity but
27 did not terminate his employment. Id. ¶ 56. After a year of inactivity and Plaintiff’s
28 failure to follow-up with Defendant regarding his status, Defendant claims that, this time,
1 Plaintiff’s employment was terminated in June 2018. Id. ¶ 58. While Plaintiff does not
2 dispute these facts, he continues to assert that he was already terminated by then so
3 such facts are irrelevant. See Pl.’s Response Def.’s Statement of Undisputed Facts,
4 ECF No. 19-4 ¶¶ 52–59.
5
6 STANDARD
7
8 The Federal Rules of Civil Procedure provide for summary judgment when “the
9 movant shows that there is no genuine dispute as to any material fact and the movant is
10 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
11 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to
12 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325.
13 Rule 56 also allows a court to grant summary judgment on part of a claim or
14 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may
15 move for summary judgment, identifying each claim or defense—or the part of each
16 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v.
17 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a
18 motion for partial summary judgment is the same as that which applies to a motion for
19 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic
20 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary
21 judgment standard to motion for summary adjudication).
22 In a summary judgment motion, the moving party always bears the initial
23 responsibility of informing the court of the basis for the motion and identifying the
24 portions in the record “which it believes demonstrate the absence of a genuine issue of
25 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial
26 responsibility, the burden then shifts to the opposing party to establish that a genuine
27 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v.
28 ///
1 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co.,
2 391 U.S. 253, 288–89 (1968).
3 In attempting to establish the existence or non-existence of a genuine factual
4 dispute, the party must support its assertion by “citing to particular parts of materials in
5 the record, including depositions, documents, electronically stored information,
6 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do
7 not establish the absence or presence of a genuine dispute, or that an adverse party
8 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The
9 opposing party must demonstrate that the fact in contention is material, i.e., a fact that
10 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby,
11 Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and
12 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing party must also
13 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is
14 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson,
15 477 U.S. at 248. In other words, the judge needs to answer the preliminary question
16 before the evidence is left to the jury of “not whether there is literally no evidence, but
17 whether there is any upon which a jury could properly proceed to find a verdict for the
18 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251
19 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original).
20 As the Supreme Court explained, “[w]hen the moving party has carried its burden under
21 Rule [56(a)], its opponent must do more than simply show that there is some
22 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore,
23 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the
24 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587.
25 In resolving a summary judgment motion, the evidence of the opposing party is to
26 be believed, and all reasonable inferences that may be drawn from the facts placed
27 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S.
28 at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing
1 party’s obligation to produce a factual predicate from which the inference may be drawn.
2 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d,
3 810 F.2d 898 (9th Cir. 1987).
4
5 ANALYSIS6
6
7 Defendant moves for summary judgment on all of Plaintiff’s causes of action in
8 the following order: (1) failure to provide reasonable accommodations; (2) failure to
9 engage in a good faith interactive process; (3) disability discrimination in violation of
10 California’s Fair Employment and Housing Act (“FEHA”); (4) retaliation in violation of
11 FEHA; (5) failure to prevent discrimination and retaliation; (6) declaratory judgment; (7)
12 denial of and discrimination based upon the use of sick leave; and (8) wrongful
13 termination. The Court will address each cause of action in that order as well.
14 A. Fourth Cause of Action: Failure to Provide Reasonable
Accommodations in Violation of FEHA
15
16 A failure to reasonably accommodate an employee who has a known physical or
17 mental disability is an unlawful employment practice violative of FEHA. Cal. Gov’t Code
18 § 12940(m); A.M. v. Albertsons, LLC, 178 Cal. App. 4th 455, 463–64 (2009). “A
19 reasonable accommodation is ‘a modification or adjustment to the workplace that
20 enables the employee to perform the essential functions of the job held or desired.’”
21 Lui v. City and Cnty. of S.F., 211 Cal. App. 4th 962, 971 (2012) (quoting Nadaf-Rahrov v.
22 Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 974 (2008)); see also Cal. Gov’t Code
23 § 12926(p) (listing examples of reasonable accommodations to include “[j]ob

24
6 Plaintiff’s opposition was due on April 29, 2021, but the opposition was not filed until April 30 at
25 8:39 a.m. The Court recognizes Defendant’s request that Plaintiff’s opposition be stricken because it was
filed late. Def.’s Reply at 4–5. Because Plaintiff’s opposition was filed together with two declarations from
counsel and a paralegal explaining that the opposition, while timely prepared, was filed late due to
26
technical issues, the Court believes that good cause has been shown under Federal Rule of Civil
Procedure 6(b) to permit the late filing. See ECF No. 20. While Defendant also claims that Plaintiff did not
27
serve Defendant with his opposing papers until April 30 at 12:48 a.m., counsel for Defendant does not
allege that it was precluded from filing an adequate reply. Defendant’s request to strike Plaintiff’s
28 opposition is therefore DENIED.
1 restructuring, part-time or modified work schedules, reassignment to a vacant position,
2 acquisition or modification of equipment or devices, adjustment or modifications of
3 examinations, training materials or policies, the provision of qualified readers or
4 interpreters, and other similar accommodations for individuals with disabilities.”). “An
5 employer, however, is not required to provide ‘an accommodation that is demonstrated
6 by the employer . . . to produce undue hardship to its operation.’” Dep’t of Fair Emp. and
7 Hous. v. Lucent Tech., Inc., 642 F.3d 728, 743 (9th Cir. 2011) (quoting Cal. Gov’t Code
8 § 12940(m)).
9 The essential elements of a failure to accommodate claim are:
(1) the plaintiff has a disability covered by the FEHA; (2) the
10 plaintiff is a qualified individual (i.e., he or she can perform the
essential functions of the position); and (3) the employer failed
11 to reasonably accommodate the plaintiff’s disability.
12 Cuiellette v. City of L.A., 194 Cal. App. 4th 757, 766 (2011); Taylor v. Trees, Inc.,
13 58 F. Supp. 3d 1092, 1111 (E.D. Cal. 2014). Here, Defendant claims that Plaintiff
14 cannot establish the second or third prongs.7
15 Defendant first claims that Plaintiff could not have performed the essential
16 functions of the Level I Technician position, specifically carrying and lifting the 55-pound
17 camera. Def.’s Mot. at 13. In support, Defendant relies on the medical restrictions
18 imposed after Plaintiff’s visit with the physician’s assistant in Pennsylvania on June 15,
19 2017, arguing “that following the incident and up until his surgery in November 2017,
20 Plaintiff[] had medical restrictions of no lifting or pulling over 10 pounds, no overhead
21 work, and no repetitive reaching.” Id.; see Ex. C, ECF No. 17-6, at 45. However, those
22 medical restrictions were not imposed until after the June 2 Meeting when Defendant
23 already decided to put Plaintiff on leave to return to Pennsylvania for a follow-up visit
24 with his primary care provider. See Ex. C, ECF No. 17-6, at 45 (email from worker’s
25 compensation claim representative); Ex. 7, ECF No. 19-6, at 156–58 (report completed
26
7 Defendant argues for the first time in its Reply brief that it was not on notice of a qualifying
27
disability under FEHA on June 2, 2017. See Def.’s Reply at 5–7. “The district court need not consider
arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
28 Therefore, the Court will not grant summary judgment for Defendant on that basis.
1 by physician’s assistant). The fact that such restrictions were imposed at a later date is
2 irrelevant as to what Defendant knew at the time it made the decision to first put Plaintiff
3 on leave on June 2, 2017.
4 Plaintiff does not dispute that carrying and lifting the camera is an essential
5 function, but instead claims that he could have performed the other functions and only
6 needed Jones’ assistance in lifting the camera. Pl.’s Opp’n at 12. Citing to the Doctor’s
7 First Report, Plaintiff states that no work restrictions were in place at the June 2 Meeting.
8 Id. at 13; see Ex. 6, ECF No. 19-6, at 153–54. In fact, the Doctor’s First Report provides
9 that Plaintiff hurt his shoulder while lifting and cranking the camera, presumably the
10 same function Defendant claims Plaintiff cannot perform, and yet, the physician’s
11 assistant still wrote that Plaintiff could perform his usual work as long as he tolerates the
12 pain. Id. at 154. Therefore, a genuine factual dispute arises as to whether Plaintiff could
13 have performed the essential functions of his job with or without accommodation when
14 Defendant decided to put Plaintiff on leave on June 2, 2017.
15 The parties also dispute whether Defendant failed to reasonably accommodate
16 Plaintiff’s disability. According to Defendant, “[t]he reasonable accommodation that
17 Defendant did provide Plaintiff was time off work, beginning on June 2, 2017[,] when it
18 agreed to fly him home so he could receive follow up medical treatment with his primary
19 care physician, as well as additional time off while he recovered from his injury and
20 subsequent treatment.” Pl.’s Response Def.’s Statement of Undisputed Facts, ECF
21 No. 19-4 ¶ 50 (emphasis added); see also Def.’s Mot. at 9, 11. “[A] finite leave [of
22 absence] can be a reasonable accommodation under FEHA, provided it is likely that at
23 the end of the leave, the employee would be able to perform his or her duties.” Hanson
24 v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226 (1999); see Cal. Code Regs. tit. 2,
25 § 11068(c). However, “[w]hen an employee can work with a reasonable accommodation
26 other than a leave of absence, an employer may not require that the employee take a
27 leave of absence.” Cal. Code Regs. tit. 2, § 11068(c); see also Wallace v. Cnty. of
28 Stanislaus, 245 Cal. App. 4th 109, 134 (2016).
1 As discussed above, there is a triable issue of fact as to whether Plaintiff could
2 have performed the essential functions of his job with or without accommodation on
3 June 2, 2017. Defendant contends that it was abiding by the Doctor’s First Report “by
4 flying him home so that he could follow up with his primary care provider.” Def.’s Mot. at
5 14. However, in assessing what accommodations are appropriate, an employer cannot
6 simply point to medical reports that have been generated to escape liability under FEHA;
7 it “cannot slavishly defer to a physician’s opinion without first pausing to assess the
8 objective reasonableness of the physician’s conclusions.” Gelfo v. Lockheed Martin
9 Corp., 140 Cal. App. 4th 34, 50 n.11 (2006). Defendant relied solely on the statement in
10 the Doctor’s First Report that Plaintiff needed to follow-up with his primary care provider
11 and seemingly ignored the other statement that Plaintiff could perform his usual tasks as
12 long as he tolerates pain. Furthermore, even accepting Defendant’s argument that
13 further evaluation was needed and thus it was a reasonable accommodation to grant
14 Plaintiff leave on June 2, 2017, to return to Pennsylvania to see his primary care
15 provider, it is undisputed that Plaintiff was not sent home to see his primary care provider
16 but instead the physician’s assistant referred by Summers and Hammond.8 See Ex. C,
17 ECF No. 17-6, at 45; Ex. 7, ECF No. 19-6, at 156–58.
18 In sum, making all inferences in favor of Plaintiff, the Court finds that there are
19 triable issues of fact as to whether Plaintiff could have performed the essential functions
20 of his position and whether Defendant reasonably accommodated Plaintiff’s disability on
21 June 2, 2017. Accordingly, Defendant’s Motion for Summary Judgment as to this cause
22 of action is DENIED.
23 ///
24 ///

25
8 Defendant further claims that there was no vacant, light duty position for Plaintiff, and that
Plaintiff was not qualified to be promoted to a Level II Technician. See Def.’s Mot. at 14. However, such
26
alternatives were not considered until after June 15, 2017, when the modified restrictions were imposed.
See Gross Decl., ECF No. 17-3 ¶¶ 10–14. As a result, Plaintiff’s ex parte Objection to and Motion to Strike
27
Evidence Introduced on Reply is DENIED as moot. ECF No. 22 (seeking to strike the Supplemental
Declaration of Stacy Gross and its accompanying exhibits submitted in support of Defendant’s argument
28 that Plaintiff was not qualified to be promoted to a Level II Technician).
1 B. Fifth Cause of Action: Failure to Engage in Good Faith Interactive
Process in Violation of FEHA
2
3 Defendant states that “[t]he other main purpose of the June 2, 2017[,] meeting
4 was so that Defendant could engage Plaintiff in a timely, good faith interactive process
5 based on Plaintiff’s reported symptoms.”9 Def.’s Mot. at 9, 16 (stating that Defendant, in
6 part, “engaged in the good faith interactive process by flying Plaintiff home so that he
7 could follow up with his primary care provider, as the [Doctor’s First Report] presented to
8 Defendant recommended.”) (citing Ex. F, ECF No. 17-6, at 61–62 (RA Policy)). Under
9 California law, an employer must engage in a “timely, good faith, interactive process . . .
10 in response to a request for reasonable accommodation by an employee or applicant
11 with a known physical or mental disability or known medical condition.” Cal. Gov’t Code
12 § 12940(n). A failure to so engage constitutes an unlawful employment practice under
13 FEHA, and independent of liability for other FEHA claims. Wysinger v. Automobile Club
14 of So. Cal., 157 Cal. App. 4th 413, 424 (2007). Triggering an employer’s obligation to
15 engage in this regard requires no special request; it simply arises once the employer
16 becomes aware of the need to consider an accommodation. Scotch v. Art Institute of
17 Cal., 173 Cal. App. 4th 986, 1013 (2009); Cal. Code Regs. tit. 2, § 11069(b). The
18 employer must accordingly explore various accommodations even in the absence of a
19 specific request from the employee. See Nadaf-Rahrov, 166 Cal. App. 4th at 984 (“The
20 interactive process requires communication and good-faith exploration of possible
21 accommodations between employers and individual employees with the goal of
22 identifying an accommodation that allows the employee to perform the job effectively.”)
23 (internal quotation marks and alterations omitted). Moreover, “for the process to work
24 ///
25

9 Once again, Defendant argues for the first time in its Reply brief that, because Defendant had
26
insufficient information to put it on notice that Plaintiff had a qualifying disability, the duty to engage in a
timely, good faith interactive process was not triggered at the June 2 Meeting. See Def.’s Reply at 13–14.
27
As previously stated, the Court will not grant summary judgment on such a basis, especially here where
Defendant explicitly stated in its Motion that it engaged in a good faith interactive process with Plaintiff on
28 June 2, 2017.
1 ‘[b]oth sides must communicate directly, exchange essential information and neither side
2 can delay or obstruct the process.’” Id. at 984–85.
3 As stated above, there are triable issues of fact as to whether Plaintiff could have
4 performed the essential functions of his position with or without accommodation, as well
5 as whether Defendant failed to reasonably accommodate Plaintiff on June 2, 2017. For
6 example, the Doctor’s First Report, which was presented to Summers and Hammond at
7 the June 2 Meeting, states that Plaintiff could have continued working so long as he
8 tolerated the pain. A jury could reasonably infer that, as of June 2, 2017, alternative
9 accommodations besides putting Plaintiff on leave should have been considered, such
10 as Plaintiff’s suggestion that Jones assist him in lifting the camera. See Ex. 1,
11 Cotterman Dep., ECF No. 19-6, at 32; Cotterman Decl., ECF No. 19-1 ¶ 29.
12 Furthermore, during his deposition, Hammond testified that he could not recall if
13 Plaintiff “espouse[d] any kind of opinion about whether he should go see his primary
14 doctor, whether he shouldn’t return to work, [or] whether he could return to work[.]”
15 Ex. 2, Hammond Dep., ECF No. 19-6, at 52–54. Similarly, Plaintiff testified that, at the
16 June 2 Meeting, there was no discussion as to what Plaintiff could or could not do with
17 his injury despite Plaintiff presenting Summers and Hammond with the Doctor’s First
18 Report that said he could work. Ex. 1, Cotterman Dep., ECF No. 19-6, at 24; see also
19 Cotterman Decl., ECF No. 19-1 ¶ 24 (stating that Summers and Hammond ignored
20 Plaintiff’s request to not be sent home). Accordingly, the Court finds triable issues of fact
21 as to whether Defendant engaged in a good faith interactive process and thus, summary
22 judgment as to this cause of action is DENIED.
23 C. First, Second, Third, and Sixth Causes of Action: Disability
Discrimination, Retaliation, and Failure to Prevent Discrimination and
24 Retaliation in Violation of FEHA and Declaratory Judgment
25 The FEHA prohibits discriminatory discharge stemming from an employee’s
26 actual disability, or the employer’s perception that he or she is disabled, if the employee
27 can otherwise perform with reasonable accommodations. Cal. Gov’t Code § 12940.
28 Under subdivision (a) of the statute, it is unlawful employment practice to discharge an
1 employee based on a disability. FEHA also explicitly declares its legislative intent as
2 providing “protection when an individual is erroneously or mistakenly believed to have
3 any physical . . . condition . . .” even if he or she actually does not. Id. § 12926.1.
4 A three-step burden shifting framework, first enunciated by the United States
5 Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is generally
6 used to assess discrimination claims in the absence of direct evidence of discrimination.
7 Scotch, 173 Cal. App. 4th at 1004–05. Under the so-called McDonnell Douglas test, a
8 plaintiff must make a prima facie case of discrimination by producing evidence that he or
9 she (1) was either disabled or perceived to be disabled; (2) was qualified for the position
10 with the requisite skills to perform its essential functions with or without
11 accommodations; (3) suffered an adverse employment action like discharge that was
12 (4) substantially motivated by the plaintiff’s disability or perceived disability. Id. (citing
13 Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 355 (2000); see also Nadaf-Rahrov, 166
14 Cal. App. 4th at 962). If the required prima facie showing is made, a presumption of
15 discrimination arises and the burden shifts to the employer to rebut that presumption with
16 evidence of a legitimate, non-discriminatory reason for its adverse action against the
17 employee. Scotch, 173 Cal. App. 4th at 1004–05. Finally, if that burden is met, the
18 employee must then offer evidence that the reasons proffered by the employer to justify
19 its decisions were mere pretexts. Id.
20 Similarly, FEHA prohibits any retaliation against an employee in response to a
21 request for accommodation. Cal. Gov’t Code § 12940(m)(2). To establish retaliation
22 under FEHA, the employee must show that he was engaged in protected activity, and
23 that he was subsequently subjected to an adverse employment action that was
24 substantially motivated by that activity. Moore v. Regents of the Univ. of Cal.,
25 248 Cal. App. 4th 216, 244 (2016). The McDonnell Douglas burden shifting analysis
26 applies. Id. at 248. In addition, close temporal proximity between an employee’s
27 protected conduct and an adverse employment action may support an inference that the
28 ///
1 action was retaliatory. Rope v. Auto-Chlor Sys. of Wash., 220 Cal. App. 4th 635, 653
2 (2013) (abrogated by statute on other grounds).
3 Here, Defendant claims that “Plaintiff cannot establish a triable issue that
4 Defendant subjected him to an adverse employment action for requesting reasonable
5 accommodation” because Defendant did not terminate Plaintiff at the June 2 Meeting.10
6 Def.’s Mot. at 17–18. It is undisputed that Plaintiff “was not explicitly told he was
7 terminated, and was not given a formal termination notice.” Pl.’s Opp’n at 20; see Ex. E,
8 ECF No. 17-6, at 53–54 (showing that none of the termination boxes were marked and
9 stating that “[f]urther violations may result in further disciplinary action, up to and
10 including termination.”); Ex. I, Hammond, Dep., ECF No. 17-6, at 139–40 (stating that he
11 never explicitly told Plaintiff he was terminated or laid off during the June 2 Meeting).
12 Nevertheless, Plaintiff argues that “it was clear to Plaintiff based on Defendant’s conduct
13 that it had terminated him.” Pl.’s Opp’n at 20–21 (“To Plaintiff, this clearly constituted a
14 termination because Plaintiff was being separated from the job he was specifically and
15 solely hired to perform, and flown thousands of miles away.”).
16 For example, Plaintiff claims that the nature of his employment with Defendant,
17 i.e., having to be hired on a job-by-job basis and being laid off at the end of each job,
18 supports the conclusion that Defendant sending Plaintiff back to Pennsylvania was in
19 effect a termination. Id. at 20–21. Additionally, Plaintiff testified at his deposition that
20 Summers and Hammond told him at the June 2 Meeting to “go home, get better and
21 then call them and maybe they’ll bring [him] back.” Ex. A, Cotterman Dep., ECF No. 17-
22 6, at 24 (emphasis added); see Pl.’s Opp’n at 21 (“Instead, there is a reasonable – and
23 triable – inference that Hammond deliberately gave reason to doubt he would ever be
24 allowed to return to work with Defendant, because Defendant did not want Plaintiff to
25 return to work.”). However, even considering Plaintiff’s arguments, they raise nothing

26
10 Regarding the disability discrimination cause of action, Defendant argues that Plaintiff cannot
establish the second element, i.e, that he is a qualified individual, and relies on arguments it previously
27
made with regard to Plaintiff’s failure to reasonably accommodate claim. Def.’s Mot. at 17. As explained
above, however, there is a triable issue of fact as to whether Plaintiff could have performed the essential
28 functions of his job on June 2, 2017, with or without accommodation.
1 more than speculation that he was terminated especially in light of the Employee
2 Corrective Action form issued at the June 2 Meeting which does not state Plaintiff was
3 terminated but instead provides that Plaintiff was issued a written warning for not abiding
4 by the Reporting Policy and that he was being removed from duty “until [he has] been
5 evaluated by [his] personal care provider as directed by the treating
6 physician/[physician’s assistant].”11 See Ex. E, ECF No. 17-6, at 53–54.
7 Alternatively, in the event the Court finds that there was no actual termination,
8 Plaintiff claims that the same facts suggest there was constructive termination. Pl.’s
9 Opp’n at 22 n.3. In order to prove a constructive discharge, Plaintiff must show that
10 Defendant “either intentionally created or knowingly permitted working conditions that
11 were so intolerable or aggravated at the time of the employee’s resignation that a
12 reasonable employer would realize that a reasonable person in the employee’s position
13 would be compelled to resign.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1251
14 (1994). However, Plaintiff has not made any specific allegations or presented any
15 evidence to such an effect.
16 Accordingly, Defendant’s Motion for Summary Judgment as to Plaintiff’s disability
17 discrimination and retaliation causes of action is GRANTED. Furthermore, because
18 Plaintiff’s causes of action for failure to prevent discrimination and retaliation and
19 declaratory relief are derivative of the discrimination and retaliation claims, summary
20 judgment is also GRANTED as to those causes of action. See Glynn v. Superior Ct.,
21 42 Cal. App. 5th 47, 56 (2019).
22 ///
23 ///
24 ///
25

11 Plaintiff points to notes made by the physician’s assistant in Pennsylvania and AllOne’s nurse
26
case manager stating that Plaintiff claimed he was let go as further evidence that Defendant terminated
Plaintiff. See Ex. 7, ECF No. 19-6 (report completed by physician’s assistant); Ex. 8, ECF No. 19-6, at 163
27
(email from nurse case manager). In addition to being inadmissible hearsay, see Fed. R. Evid. 801, such
statements still only evince Plaintiff’s subjective belief and is insufficient to raise a triable issue of fact as to
28 whether Plaintiff was actually terminated.
1 D. Seventh Cause of Acton: Denial of and Discrimination Based Upon
the Use of Sick Leave in Violation of California Labor Code §§ 233,
2 234, and 246.5
3 California Labor Code § 233 states that “[a]ny employer who provides sick leave
4 for employees shall permit an employee to use in any calendar year the employee’s
5 accrued and available sick leave entitlement, in an amount not less than the sick leave
6 that would be accrued during six months at the employee’s then current rate of
7 entitlement, for the reasons specified in subdivision (a) of Section 246.5.” See also Cal.
8 Lab. Code § 234 (“An employer absence control policy that counts sick leave taken
9 pursuant to Section 233 as an absence that may lead to or result in discipline, discharge,
10 demotion, or suspension is a per se violation of Section 233.”). Under California Labor
11 Code § 246.5(a)(1), “[u]pon the oral or written request of an employee, an employer shall
12 provide paid sick days for . . . [d]iagnosis, care, or treatment of an existing health
13 condition of, or preventative care for, an employee or an employee’s family member.”
14 In his Complaint, Plaintiff alleges that he “used and attempted to use accrued sick
15 leave to seek treatment for a medical condition” but “[i]n response, Defendant[]
16 threatened Plaintiff with termination, disciplined Plaintiff and ultimately terminated
17 Plaintiff.” Compl. ¶ 88; see also Pl.’s Opp’n at 24 (contending that Defendant “fail[ed] to
18 permit [Plaintiff] to use his accrued and available sick leave to diagnose, care for, and
19 treat his health condition in Sacramento, California, on or prior to June 2, 2018”12 and
20 instead terminated Plaintiff at the June 2 Meeting). As outlined above, there is no triable
21 issue of fact based on the present record that Plaintiff was terminated on June 2, 2017,
22 let alone that his termination was based on any use of sick leave. See Def.’s Reply at
23 15–16. Therefore, summary judgment is GRANTED as to this cause of action.
24 ///
25 ///
26 ///
27
12 Given that Plaintiff reiterates he was terminated at the June 2 Meeting, the Court assumes that
28 Plaintiff intended to say 2017, not 2018.
1 E. Eighth Cause of Action: Wrongful Termination in Violation of Public
Policy
2
3 Wrongful termination requires a showing of the following elements: (1) an
4 || employer-employee relationship; (2) termination or other adverse employment action;
5 | (3) a violation of public policy; (4) causation; and (5) damages. See, e.g., Holmes v.
6 | Gen. Dynamics Corp., 17 Cal. App. 4th 1418, 1426 (1993). This cause of action is
7 | derivative of Plaintiff's disability discrimination and retaliation causes of action and
| because the evidence before the Court on summary judgment does not show that
g | Plaintiff was terminated, summary judgment is GRANTED as to this cause of action.
10
11 CONCLUSION
12
13 For the foregoing reasons, Defendant's Motion for Summary Judgment, ECF
44 | No. 17, is GRANTED as to Plaintiff's First, Second, Third, Sixth, Seventh, and Eighth
15 | Causes of Action. The Motion for Summary Judgment is otherwise DENIED as to
16 | Plaintiff's Fourth and Fifth Causes of Action. Plaintiff's ex parte Objection to and Motion
17 | to Strike Defendant's Evidence Introduced on Reply, ECF No. 22, is DENIED as moot.
18 IT |S SO ORDERED.
49 | Dated: March 17, 2022
ar LE
Mtg» _{ ZL SNC.
21 SENIOR UNITED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10043306. Public record. Not legal advice.