Sanchez v. Loews Hotels Holding Corporation

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RAMON SANCHEZ, JR., Case No.: 19-cv-02084 W (MDD)

12 Plaintiff,

ORDER:

13 v.

(1) GRANTING IN PART AND

14 LOEWS HOTELS HOLDING

DENYING IN PART DEFENDANTS’

CORPORATION, a Delaware

15 MOTION FOR SUMMARY

corporation; LOEWS CORONADO

JUDGMENT OR ALTERNATIVELY,

16 HOTEL CORPORATION, a California

PARTIAL SUMMARY JUDGMENT

corporation; and DOES 1 through 20

17 [DOC. 12]; AND

inclusive,

18

Defendants. (2) GRANTING PLAINTIFF’S EX

19 PARTE APPLICATION FOR THE

COURT TO CONSIDER THREE

20

SUPPLEMENTAL EXHIBITS [DOC.

21 25.]

22 Pending before this Court is Defendants’ motion for summary judgment. The

23 Court decides the matters without oral argument pursuant to Civil Local Rule 7.1(d)(1).

24 For the reasons that follow, the Court GRANTS-IN-PART and DENIES-IN-PART

25 Defendants’ motion [Doc. 12].

26 Further, good cause showing, the Court GRANTS Plaintiff’s ex parte application

27 for the Court to consider three supplemental exhibits [Doc. 25].

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1 I. BACKGROUND

2 On July 4, 2013, Defendants Loews Hotels Holding Corporation and Loews

3 Coronado Hotel Corporation (collectively “Loews”) hired Plaintiff Ramon Sanchez, Jr. as

4 a cook at a restaurant in the hotel. (Sanchez Dep. [Doc. 12-2, Ex. A] 32:3–35:22.)

5 On May 15, 2015, Sanchez suffered his first seizure while at home. (Id. 46:3–

6 47:17, 50:19–51:3.) After a two week leave of absence, Sanchez submitted a doctor’s

7 note providing the following restrictions from June 2 to June 9: he was not to work more

8 than eight hours per day, was limited to working with cold products, and was to avoid

9 work near ovens and knives. (Id. 49:25–56:4; 5/28/15/ Kaiser Work Status Report [Doc.

10 12-2, Ex. 4.) The note stated that Sanchez would be able to return to work at full

11 capacity on June 10. Loews granted each of the modified duty requests and moved

12 Sanchez to the salads section for one week. (Sanchez Dep. 49:25–56:4, 57:20–58:8.)

13 Sanchez suffered two more seizures that required leaves of absence in October of

14 2015 and February of 2016. (Sanchez Dep. 64:16–66:9, 66:14–15; 71:17–73:5; 10/7/15

15 Kaiser Work Status Report [Doc. 12-2, Ex. 7]; 3/1/16 Kaiser Work Status Report [Doc.

16 12-2, Ex. 8].)

17 In January of 2017, Sanchez began working at a new Loews restaurant named

18 Crown Landing. (Sanchez Dep. 81:9–21.) Sanchez alleges he provided his

19 supervisors—Chef Aguirre and Chef Dunn—with doctor’s notes dated March 22, 2017,

20 and August 2, 2017, wherein his doctor requested that Sanchez be kept on “a regular

21 schedule during daytime hours.” (Id. 123:16–125:7, 163:23–166:16; 168:3–172:9; 8/2/17

22 Kaiser Letter from Dr. Vidka Hawkins D.O. [Doc.12-2, Ex. 12]; 3/22/17 Kaiser Letter

23 from Dr. Vidka Hawkins D.O. [Doc. 12-2, Ex. 14].) Sanchez claims he gave another

24 copy of the August 2 note to Loews’ Human Resources (“HR”). (Sanchez Decl. [Doc.

25 24-1] ¶ 48.) HR claims it has no record of ever receiving these requests. (Neyens Decl.

26 [Doc. 12-2, Ex. B] ¶ 10.) Nevertheless, Sanchez began working the morning shift shortly

27 thereafter, but continued to work overtime and six-day weeks. (Id.; 11/9/17 – Scheduling

28 Preference Form [Doc.12-2, Ex. 26].)

1 On January 15, 2018, Sanchez submitted another doctor’s note to HR stating that

2 he was “completely disabled from performing work” and requested a leave of absence

3 through February 12, 2018. (Sanchez Dep. 78:1–79:16, 103:13–105:4, 108:24–109:10;

4 1/29/18 Kaiser Work Status Report [Doc. 12-2, Ex. 9]; 1/9/18 Kaiser Work Status Report

5 [Doc. 12-2, Ex. 10].) When Sanchez returned to work, he did so without any work

6 modifications or restrictions.

7 On May 16, 2018, Sanchez suffered another seizure at home and Loews granted

8 his subsequent request for a leave of absence from May 16 to May 21. (Sanchez Dep.

9 105:5–106:2.) Again, he returned to work at full duty. (Neyens Decl. ¶ 13.)

10 On July 13, 2018, Chef Aguirre took Sanchez to the security office after noticing

11 he was sweating and appeared pale. (Sanchez Dep. 188:25–190:6; 250:1–253:23.)

12 According to the incident report, Sanchez was told to sit down and sip some water.

13 (7/13/18 Employee Incident Report [Doc. 12-2, Ex. 23].) After about twenty minutes,

14 Security Officer William Masterson reported that Sanchez appeared to be feeling better

15 and permitted him to return to work. (Id.; Masterson Decl. [Doc. 12-2, Ex. D] ¶¶ 3–4.)

16 The next day, Sanchez suffered a grand mal seizure while in a walk-in freezer at

17 the restaurant and was taken to the hospital by ambulance where he remained in a coma

18 for four days. (Sanchez Dep. 252:8–253:23; 7/14/18 Employee Accident Report [Doc.

19 12-2, Ex. 24]; Sanchez Decl. ¶ 76.) Sanchez alleges he informed Chef Aguirre that he

20 was not feeling well on the day of his workplace seizure, to which Chef Aguirre replied,

21 “the only way you’re leaving early is in an ambulance.” (Sanchez Dep. 147:11–18;

22 195:5–197:14.)

23 Sanchez has been deemed unable to work by his doctor since the incident and

24 remains on medical leave. (Sanchez Dep. 211:23–212:6; 214:14–21.)

25 Sanchez alleges a general environment of hostility existed at the restaurant,

26 beginning with Chef Aguirre and continuing through various supervisory chefs.

27 Specifically, Sanchez alleges that Chef Aguirre mistreated Sanchez and his co-workers at

28 Crown Landing, claiming Aguirre belittled them and slammed utensils around them.

1 (Sanchez Dep. 184:21–188:11.) According to Sanchez, Chef Aguirre’s verbal

2 harassment of Sanchez in particular would increase when Sanchez’s symptoms caused

3 him to slow at work. (Sanchez Decl. ¶ 16.) Further, Sanchez claims Chef Dunn talked to

4 him as if he was stupid and told Sanchez he had a “target on [his] back.” (Sanchez Decl.

5 ¶ 43, 51–52; 12/17 Sanchez Letter [Doc. 24-13, Ex. G].) During his time at Crown

6 Landing between January 2017 through July 2018, Sanchez alleges Chef Aguirre did not

7 send Sanchez home when he was feeling unwell, did not transfer him to the morning

8 shift, denied his meal and rest breaks, and scheduled him to work overtime and six days a

9 week. (Sanchez Dep. 134:4–137:2.)

10 On January 24, 2019, Sanchez filed charges with the Department of Fair

11 Employment & Housing (“DFEH”). (Compl. [Doc.1-4, Ex. A] ¶ 33.) On October 1,

12 2019, following receival of a right to sue letter from the DFEH, Sanchez filed suit in San

13 Diego Superior Court. Loews timely removed the case to this Court based on diversity

14 jurisdiction. (Notice of Removal [Doc. 1].)

15 Loews now seeks an order granting summary judgment as to all Sanchez’s claims

16 or, in the alternative, partial summary judgment as to each separate unlawful act alleged.

17 (P&A [Doc. 12-1].) Sanchez opposes. (Opp’n [Doc. 24].)

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19 II. LEGAL STANDARD

20 Summary judgment is appropriate under Rule 56(c) where the moving party

21 demonstrates the absence of a genuine issue of material fact and entitlement to judgment

22 as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

23 (1986). A fact is material when, under the governing substantive law, it could affect the

24 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

25 dispute about a material fact is genuine if “the evidence is such that a reasonable jury

26 could return a verdict for the nonmoving party.” Id. at 248.

27 A party seeking summary judgment always bears the initial burden of establishing

28 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving

1 party can satisfy this burden in two ways: (1) by presenting evidence that negates an

2 essential element of the nonmoving party’s case; or (2) by demonstrating that the

3 nonmoving party failed to make a showing sufficient to establish an element essential to

4 that party’s case on which that party will bear the burden of proof at trial. Id. at 322–23.

5 “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary

6 judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630

7 (9th Cir. 1987). If the moving party fails to discharge this initial burden, summary

8 judgment must be denied and the court need not consider the nonmoving party’s

9 evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

10 If the moving party meets this initial burden, the nonmoving party cannot avoid

11 summary judgment merely by demonstrating “that there is some metaphysical doubt as to

12 the material facts.” In re Citric Acid Litig., 191 F.3d 1090, 1094 (9th Cir. 1999) (citing

13 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton

14 Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477

15 U.S. at 252) (“The mere existence of a scintilla of evidence in support of the nonmoving

16 party’s position is not sufficient.”). Rather, the nonmoving party must “go beyond the

17 pleadings and by her own affidavits, or by ‘the depositions, answers to interrogatories,

18 and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for

19 trial.’” Ford Motor Credit Co. v. Daugherty, 279 Fed. Appx. 500, 501 (9th Cir. 2008)

20 (citing Celotex, 477 U.S. at 324). Additionally, the court must view all inferences drawn

21 from the underlying facts in the light most favorable to the nonmoving party. See

22 Matsushita, 475 U.S. at 587.

23 Rule 56(d) provides for partial summary judgment. See Fed. R. Civ. P. 56(d)

24 (“[T]he court . . . shall if practicable ascertain what material facts exist without

25 substantial controversy and what material facts are actually and in good faith

26 controverted.”). Under Rule 56(d), the court may grant summary judgment on less than

27 the non-moving party’s whole claim. Zapata Hermanos Sucesores, S.A. v. Hearthside

28 Baking Co., Inc., 313 F.3d 385, 391 (7th Cir. 2002) (Posner, J.). Partial summary

1 judgment is a mechanism through which the Court deems certain issues established

2 before trial. Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (quoting 6

3 Moore’s Federal Practice ¶ 56.20 (3.–2) (2d ed. 1976)). “The procedure was intended to

4 avoid a useless trial of facts and issues over which there was really never any controversy

5 and which would tend to confuse and complicate a lawsuit.” Id.

6

7 III. DISCUSSION

8 As an initial matter, Loews moves to exclude all actions alleged by Sanchez to

9 have taken place before January 24, 2018.

10 A. Statute of Limitations and the Continuing Violation Doctrine

11 The statute of limitations under the Fair Employment and Housing Act (“FEHA”)

12 provides that actions alleging FEHA violations must be brought within “one year from

13 the date upon which the alleged unlawful practice or refusal to cooperate occurred.” Cal.

14 Gov’t Code § 12960. Loews argues the allegations that occurred before January 24,

15 2018—one year before Sanchez filed his DFEH charge—are time barred. Specifically,

16 Loews targets three discrete allegations:

17 (1) being scheduled to work overtime and not being put on a limited

schedule in 2015 and 2016; (2) not being transferred to a morning shift or

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having his work hours limited based on his March and August 2017 doctor’s

19 notes; and (3) any alleged harassment by Chef Aguirre (or other chef) from

2016 through January 23, 2018, including being told he “did not belong in

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fine dining.”

21 (P&A 18:5–9.)

22 Although these incidents occurred outside the limitations period, Sanchez argues

23 they are properly included under the continuing violation doctrine. The continuing

24 violation doctrine permits a plaintiff to “recover for unlawful acts occurring outside the

25 limitations period if they continued into that period.” Wassmann v. S. Orange Cty. Cmty.

26 Coll. Dist., 24 Cal. App. 5th 825, 850 (2018) (citing Jumaane v. City of L.A., 241 Cal.

27 App. 4th 1390, 1402 (2015)). This is because provisions of FEHA, including the

28 limitations period, are “construed liberally” so as “to promote the resolution of

1 potentially meritorious claims on the merits.” Richards v. CH2M Hill, Inc., 26 Cal. 4th

2 798, 820 (2001) (quoting Romano v. Rockwell Internat. Inc., 14 Cal. 4th 479, 493–94

3 (1996)). Therefore, under California law, “an employer’s persistent failure to reasonably

4 accommodate a disability, or to eliminate a hostile work environment targeting a disabled

5 employee, is a continuing violation if the employer’s unlawful actions are (1) sufficiently

6 similar in kind; . . . (2) have occurred with reasonable frequency; (3) and have not

7 acquired a degree of permanence.” Id. at 823.

8 All three elements are established in this case. The acts occurring before the

9 statutory period form a linked course of discriminatory conduct and failure to reasonably

10 accommodate a disabled employee. Further, this alleged conduct appears to have been a

11 pattern occurring with reasonable frequency that continued into the limitations period.

12 Finally, and most importantly, the actions had not become permanent—at no point did

13 Loews indicate that any further efforts to obtain accommodation or end harassment

14 would be futile. See Richards, 26 Cal. 4th at 823 (explaining that “permanence” in this

15 context should be properly understood to mean “that an employer’s statements and

16 actions made clear to a reasonable employee that any further efforts at informal

17 conciliation to obtain reasonable accommodation or end harassment would be futile”).

18 Indeed, Loews continued to reach out during Sanchez’s current extended medical leave

19 and asserts that Sanchez can return to work. Thus, the challenged actions are sufficiently

20 linked to unlawful conduct that took place within the limitations period to overcome any

21 assertions of staleness.

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23 B. The Interactive Process and Accommodation

24 Loews seeks to establish, through undisputed facts, that it did everything it was

25 required to do under the statute to engage in the interactive process and reasonably

26 accommodate Sanchez.

27 Under FEHA, a failure to engage in the interactive process and a failure to

28 reasonably accommodate are two distinct claims. Cal. Gov’t Code § 12940(m), (n).

1 Generally, the employee must initiate the interactive process by requesting reasonable

2 accommodation and cooperate in good faith by providing reasonable medical

3 documentation when the disability is not obvious. Id. This typically requires the

4 employee to provide the employer a list of restrictions needed to accommodate the

5 employee. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 266 (2000). Once

6 initiated, the employer is obliged to continuously engage in the interactive process in

7 good faith. Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th 954, 971 (2014)

8 (“[t]he fact that an employer took some steps to work with an employee to identify

9 reasonable accommodations does not absolve the employer of liability . . .; if the

10 employer is responsible for a later breakdown in the process, it may be held liable”).

11 To establish a failure to accommodate claim, a plaintiff must show that he or she

12 suffers from a disability covered by FEHA and that he or she is a qualified individual.

13 Jensen, 85 Cal. App. 4th at 256. A plaintiff is a qualified individual if they establish that

14 they can perform the essential functions of the position sought, rather than the essential

15 functions of the existing position. Id. Once the employer becomes aware of the need for

16 an accommodation for a qualified individual, the employer must provide a reasonable

17 accommodation unless doing so would cause undue hardship. § 12940(m)(1).

18 Genuine issues of material fact exist regarding both claims. Sanchez clearly

19 initiated the interactive process by informing Loews of his seizure disorder, and the

20 evidence shows that Loews’ initial response to Sanchez’s request for leave was

21 appropriate. However, once initiated, Loews had a continuous obligation to engage in the

22 interactive process in good faith and Sanchez has raised a triable issue of fact over

23 whether Loews bears responsibility for breakdowns in the interactive process. Sanchez

24 alleges he initially gave a doctor’s note dated March 22, 2017, to his supervisor, Chef

25 Dunn, indicating Sanchez required a regular schedule during “daytime hours.” (3/22/17

26 Kaiser Letter from Dr. Vidka Hawkins D.O. [Doc. 12-2, Ex. 14].) After no meaningful

27 change, Sanchez alleges he renewed his efforts by giving doctor’s notes dated August 2,

28 2017, to Chef Aguirre and HR. (8/2/17 Kaiser Letter from Dr. Vidka Hawkins D.O.

1 [Doc.12-2, Ex. 12].) This resulted in Loews transferring Sanchez to the morning shift,

2 but continuing to schedule Sanchez for six-day weeks and overtime. Sanchez contends

3 he told multiple people that he couldn’t work overtime and required a regular, five days a

4 week schedule on the morning shift, but that Loews failed to respond. Based on these

5 facts, a reasonable jury could find, drawing all inferences from the evidence in favor of

6 Sanchez, that Loews caused a breakdown in the interactive process.

7 With regard to the accommodation claim, Loews was aware that Sanchez was a

8 qualified individual in need of an accommodation, but has presented no evidence it ever

9 considered whether the accommodations provided to Sanchez were sufficient to address

10 the needs of his disability. While it is true that an employee cannot expect an employer

11 to read his mind and know he secretly wanted a particular accommodation, Sanchez has

12 described numerous situations in which he requested he be scheduled for morning shifts

13 without overtime, including multiple doctor’s notes explaining the need for the

14 accommodation, but was ignored. Loews contends that the doctor’s notes stipulating the

15 need for “regular daytime hours” did not require that it refrain from scheduling Sanchez

16 to work overtime or six days a week. This argument makes summary judgment even less

17 appropriate, however, as the notes’ interpretation becomes a genuine issue of material

18 fact. Indeed, in the correspondence between Sanchez and his doctor leading up to

19 obtaining those notes, the doctor asked if Sanchez “want[ed] a letter to say that he can

20 only work a maximum of 8 hours with no night shift.” (Letter Correspondence [Doc.24-

21 7, Ex. A].) Based on these facts, a jury could find that Loews should have been aware

22 that returning Sanchez to a six-day schedule and overtime hours was an insufficient

23 accommodation.

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25 C. Disability Discrimination

26 A disabled claimant bringing suit under FEHA “can establish a prima facie case by

27 proving that: (1) plaintiff suffers from a disability; (2) plaintiff is a qualified individual;

28 and (3) plaintiff was subjected to an adverse employment action because of the

1 disability.” Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997). Loews argues Sanchez

2 cannot state a prima facie case of disability discrimination because he has not suffered an

3 adverse employment action. (P&A 20:11–13.) Sanchez argues he can because he was

4 constructively discharged. (Opp’n 13:19–20.)

5 An “adverse employment action” is one that “materially affects the terms,

6 conditions, or privileges of employment.” Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th

7 1028, 1051 (2005). “[C]onstructive discharge occurs when, looking at the totality of the

8 circumstances, a reasonable person in [the employee’s] position would have felt that he

9 was forced to quit because of intolerable and discriminatory working conditions.”

10 Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir.1989) (internal quotations and citations

11 omitted). As a result, a constructive discharge is the functional equivalent of an actual

12 termination rather than a resignation. Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238,

13 1244–45 (1994). “The determination of whether conditions were so intolerable and

14 discriminatory as to justify a reasonable employee’s decision to resign is normally a

15 question of fact.” Thomas, 877 F.2d at 1434.

16 Loews argues Sanchez has not suffered an adverse employment action because he

17 has never been terminated and has technically remained employed on an unpaid medical

18 leave of absence since the grand mal seizure on July 13, 2018. (P&A 20:13–14.)

19 However, a plaintiff does not need to formally quit to maintain a constructive discharge

20 claim. See Colores v. Bd. of Trustees, 105 Cal. App. 4th 1293, 1314 (2003). In Colores,

21 the issue was whether an employee could still bring an action for wrongful constructive

22 discharge where she took a disability retirement that could allow her to reclaim her

23 position if she recovered sufficiently The court held that the employee was not precluded

24 from bringing a constructive discharge action where it was based on the claim that

25 working conditions were so intolerable that her preexisting medical condition worsened

26 to the point where she could no longer perform her duties and needed to remove herself

27 from the job. Id. at 1318.

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1 Although this case involves an unpaid medical leave of absence, rather than a

2 disability retirement, a similar analysis applies. An employee who has suffered a forced

3 unpaid medical leave of absence, from which he is unable to return and which resulted

4 from intolerable working conditions, is in the same position as one who was forced to

5 quit as a result of intolerable conditions. In either case, the employer has forced the

6 employee out of the job. It is sufficient to prove that the employer rendered working

7 conditions intolerable, thereby forcing the employee to permanently “leave” the

8 employment.

9 Sanchez argues the intolerable and discriminatory working conditions leading to

10 his constructive discharge were due in part to Loews’ failure to accommodate or engage

11 in the interactive process. In response, Loews points out that a denial of an

12 accommodation request is not an adverse employment action as a matter of law. (P&A

13 20:2–11 (quoting Doe v. Dept. of Corrections and Rehab., 43 Cal. App. 5th 721, 735–36

14 (2019).) However, Sanchez is arguing that his constructive discharge—not a failure to

15 accommodate—was the adverse employment action here. In other words, Sanchez is not

16 arguing that the mere denial of a reasonable accommodation was the adverse employment

17 action, but that denying the reasonable accommodation partially caused the intolerable

18 working conditions which led to his constructive discharge. Although a failure to offer a

19 reasonable accommodation and engage in the interactive process cannot be an adverse

20 employment action, it can act as the basis for a constructive discharge claim. See Perez

21 v. Proctor & Gamble Mfg. Co., 161 F. Supp. 2d 1110, 1124 (2001); Velente-Hook v. E.

22 Plumas Health Care, 368 F. Supp. 2d 1084, 1102 (2005) (finding genuine issues of

23 material fact as to whether an employee was forced to resign due to the employer’s

24 failure to offer reasonable accommodation and to engage in interactive process,

25 precluding summary judgment as to the employee’s constructive discharge claim).

26 In addition to the failures to engage in the interactive process and reasonably

27 accommodate discussed above, Sanchez alleges that supervisory employees intentionally

28 created intolerable and discriminatory working conditions sufficient to impute knowledge

1 to Loews. See Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015)

2 (reversing an award of summary judgment for employer based on a supervisor’s

3 statement that “[i]f you're going to stick with being sick . . . [y]ou're not getting paid, and

4 you're not going to be accommodated”). According to Sanchez, his supervisors’ verbal

5 harassment would increase when Sanchez’s symptoms caused him to slow at work.

6 (Sanchez Decl. ¶ 16.) This ultimately led to supervisors telling Sanchez that he had a

7 “target on his back” and that the only way he was leaving early was “in an ambulance.”

8 (Id. ¶ 51; Sanchez Dep. 147:11–18; 195:5–197:14.)

9 When viewing the evidence in the light most favorable to the non-moving party,

10 the Court concludes that a reasonable jury could return a verdict for Sanchez on the

11 disability claim.1

12

13 D. Disability Harassment

14 Sanchez voluntarily abandons his claim for disability harassment. (Opp’n 12:n.2.)

15 Therefore, the Court grants summary judgment as to it.

16

17 E. Hostile Work Environment

18 To be actionable, Sanchez must demonstrate that he was subject to degrading,

19 insulting, or threatening comments because of his disability which were sufficiently

20 severe or pervasive so as to alter the conditions of employment and create a hostile work

21 environment. Alexander v. Cmty. Hosp. of Long Beach, 46 Cal. App. 5th 238, 262

22 (2020). “[The] acts of harassment cannot be occasional, isolated, sporadic, or trivial;

23 rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or

24 a generalized nature.” Muller v. Auto. Club of So. California, 61 Cal. App. 4th 431, 446

25 (1998). “A single harassing incident involving ‘physical violence or the threat thereof’

26

27

28

1 Because a constructive discharge cannot be a legitimate adverse employment action, there is no need to

1 may qualify as being severe in the extreme.” Hughes v. Pair, 46 Cal. 4th 1035, 1043, 209

2 P.3d 963, 971 (2009) (quoting Herberg v. Cal. Inst. of the Arts, 101 Cal. App. 4th 142,

3 151 (2002)).

4 Viewing all inferences drawn from the underlying facts in the light most favorable

5 to Sanchez, a jury could find that Sanchez was subjected to threatening comments

6 sufficiently severe to create a hostile work environment. On the day Sanchez

7 experienced a gran mal seizure at work, he asked to go home because he was

8 experiencing seizure symptoms. (Sanchez Decl. ¶¶ 71-72.) Chef Aguirre’s reply—“the

9 only way you’re leaving early is in an ambulance”—was a particularly egregious

10 statement given that Chef Aguirre was aware of Sanchez’s disability and had removed

11 Sanchez from the kitchen just the day before because he was sweaty and pale. (Sanchez

12 Dep. 147:11–18; 195:5–197:14; Jt. Stmt. Undisputed Facts [Doc. 26-2] ¶ 91.)

13 In addition to the particular incident involving Chef Aguirre, Sanchez has depicted

14 a work environment in which he was told he had a target on his back and was verbally

15 harassed when his symptoms caused him to slow at work. (Sanchez Decl. ¶¶ 16, 43, 51–

16 52; 12/17 Sanchez Letter [Doc. 24-13, Ex. G].) The combination of Aguirre’s extreme

17 comment and the more general environment of hostility at the restaurant provide

18 sufficient evidence of both subjectively and objectively severe and pervasive harassment

19 because of his disability to reach a jury.

20

21 F. Failure to Prevent

22 It is an unlawful employment practice “[f]or an employer . . . to fail to take all

23 reasonable steps necessary to prevent discrimination and harassment from occurring.”

24 Cal. Gov’t Code § 12940(k). In order to state a claim, Sanchez must show three

25 elements: “1) [he] was subjected to discrimination, harassment or retaliation; 2) [Loews]

26 failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and

27 3) this failure caused [him] to suffer injury, damage, loss or harm.” See Lelaind v. City

28 & Cty. of S.F., 576 F.Supp.2d 1079, 1103 (N.D. Cal. 2008). Section 12940(k) only

1 applies to “an employer who knew or should have known of discrimination or

2 harassment” and “fail[s] to take prompt remedial action.” Vierria v. Cal. Highway Patrol,

3 644 F.Supp.2d 1219, 1245 (E.D. Cal. 2009).

4 Loews argues the failure to prevent harassment and discrimination claim fails

5 because Sanchez cannot establish the underlying derivative claims and because Loews

6 took reasonable steps to prevent harassment and discrimination. The first argument is

7 moot because the underlying claims for discrimination and harassment have survived this

8 motion.

9 As to the second argument, Loews contends it maintains anti-discrimination and

10 harassment policies, yet Sanchez never utilized those policies by reporting any improper

11 conduct. Sanchez alleges he put Loews on notice of the harassment in its kitchens when

12 he reported a Chef to HR for inexplicably ridiculing Sanchez for someone else’s spoiled

13 pea soup. (Sanchez Decl. ¶¶ 57-58.) He claims nothing ever came of his report that the

14 chefs were harassing him. (Id. ¶ 58.) Although the evidence that Loews was aware that

15 Sanchez was being targeted because of his disability is relatively thin, Sanchez has

16 pointed to just enough to create a genuine issue of material fact to disqualify this claim

17 from adjudication at this stage.

18

19 G. Intentional Infliction of Emotional Distress

20 To state a cause of action for intentional infliction of emotional distress (“IIED”) a

21 plaintiff must show: (1) extreme and outrageous conduct by defendant; (2) the

22 defendant’s intention to inflict or reckless disregard of the probability of causing

23 emotional distress; (3) severe emotional suffering; and (4) that the defendant’s

24 outrageous conduct was the actual and proximate cause of the emotional distress.

25 Huntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App.

26 4th 1228, 1259 (2005). Conduct is outrageous if it goes beyond all possible bounds of

27 decency such that a reasonable person would regard it as intolerable in a civilized

28 community. Id. Liability does not extend to mere “trivialities such as indignities,

1 annoyances, hurt feelings, or bad manners that a reasonable person is expected to

2 endure.” Judicial Council Of California Civil Jury Instruction 1602.

3 Loews makes three main arguments for why Sanchez’s IIED claim fails. First, it

4 argues the ambulance comment is not outrageous conduct going beyond the bounds of

5 human decency. The Court respectfully disagrees. Telling a member of your team whom

6 you know has epilepsy and who has told you of the onset of symptoms that the only way

7 they are leaving is in an ambulance is no mere annoyance or indignity a reasonable

8 person should expect to endure in civilized society.

9 Second, Loews argues the IIED claim is preempted by the Workers’ Compensation

10 Act (“WCA”). Under the WCA, any emotional distress caused by the employer’s

11 conduct in management decisions such as termination or scheduling is deemed a normal

12 part of the employment relationship and barred by the WCA’s exclusive remedy

13 provision. See Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 3d 148, 160 (1987). “The

14 Legislature, however, did not intend that an employer be allowed to raise the exclusivity

15 rule for the purpose of deflecting a claim of discriminatory practices.” Accardi v.

16 Superior Court, 17 Cal. App. 4th 341, 352, (1993). Thus, a plaintiff can purse an IIED

17 claim where the conduct at issue violates FEHA. Light v. Dep’t of Parks & Recreation,

18 14 Cal. App. 5th 75, 101 (2017). Sanchez’s IIED claim relates to the same set of facts as

19 alleged in the claims for disability discrimination and hostile work environment.

20 Accordingly, the IIED claim is not barred by the exclusivity provision because it is based

21 upon allegations of actions which violate FEHA and are thus outside the normal part of

22 Sanchez’s employment environment.

23 Finally, Loews argues any emotional distress Sanchez suffered was caused by his

24 seizure disorder rather than Loews’ conduct. As proof, Loews points to the fact that both

25 Sanchez and his therapist testified that his depression and anxiety are caused by his

26 seizure disorder. (Fact No. 80.) (Tanaka Dep. Ex. W [Doc. 24-29] 42:7-14.) However,

27 what the therapist specifically stated is that Sanchez’s depression and anxiety symptoms

28 “manifested because . . . he had the seizure where he fell unconscious in the freezer of his

1 workplace.” (Tanaka Dep. Ex. W [Doc. 24-29] 42:7-14.) Thus, contrary to Loews’

2 contention, the therapist testified that the symptoms manifested as a result of the specific

3 incident in the freezer, not Sanchez’s epilepsy in general. Beyond the depression and

4 anxiety, the therapist has also diagnosed Sanchez with post-traumatic stress disorder.

5 (Ex. V [Doc.24-28].) Such testimony adequately creates a dispute of fact regarding

6 causation to proceed past summary judgment.

7

8 H. Negligent Infliction of Emotional Distress

9 Sanchez voluntarily abandons his claim for negligent infliction of emotional

10 distress. (Opp’n 12:n.2.) Therefore, the Court grants summary judgment as to it.

11

12 I. Punitive Damages

13 A plaintiff may recover punitive damages where the defendant is shown “by clear

14 and convincing evidence” to have acted with “oppression, fraud or malice.” Colucci v.

15 T-Mobile USA, Inc., 48 Cal. App. 5th 442, 450 (2020); Cal. Civ. Code § 3294(a). “With

16 respect to a corporate employer, the advance knowledge and conscious disregard,

17 authorization, ratification or act of oppression, fraud, or malice must be on the part of an

18 officer, director, or managing agent of the corporation.” Cal. Civ. Code § 3294(b).

19 Sanchez failed to address this claim in his opposition and the undisputed evidence

20 indicates that none of the chefs or HR personnel were officers, directors, or managing

21 agents of Loews. (Jt. Stmt. Undisputed Facts [Doc. 26-2] ¶¶ 81-82.) Further, there is no

22 indication that any officers, directors, or managing agents consciously disregarded,

23 authorized, or ratified any act of oppression, fraud or malice. Summary Judgment is

24 granted as to punitive damages.

25 //

26 //

27

28

1 IV. CONCLUSION & ORDER

2 For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-

3 || PART Loews’ Motion for Summary Judgment [Doc. 12].

4

5 IT IS SO ORDERED.

6

7 || Dated: February 8, 2021 \

8 {Th ue Vor

9 Hn. 1 omas J. Whelan

10 United States District Judge

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