federal court may look to well-reasoned decisions 20 from other jurisdictions
How later courts described this case
- federal court may look to well-reasoned decisions 20 from other jurisdictions
Written by the judges who cited it.
The opinion
Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 1 of 25 Page ID #:1367
1 O
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 ANA AREOPAJA, CV 21-4739-RSWL-JPRx
12 Plaintiff, ORDER re: MOTION FOR
13 v. SUMMARY JUDGMENT [24]
14 MORRISON MANAGEMENT
SPECIALISTS, et al.,
15
16 Defendants.
17
18
19 Plaintiff Ana Areopaja (“Plaintiff”) brought this
20 Action against Defendants Morrison Management
21 Specialists, Inc. and Compass Group USA, Inc.
22 (collectively, “Defendants”), asserting the following
23 claims for relief: (1) disability discrimination in
24 violation of California Fair Employment and Housing Act
25 (“FEHA”); (2) retaliation in violation of FEHA;
26 (3) failure to prevent discrimination and retaliation in
27 violation of FEHA; (4) failure to accommodate disability
28 in violation of FEHA; (5) failure to engage in the
1
Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 2 of 25 Page ID #:1368
1 interactive process in violation of FEHA; (6) violation
2 of the California Family Rights Act (“CFRA”);
3 (7) discharge in violation of Labor Code § 233; and
4 (8) wrongful termination in violation of public policy.
5 Plaintiff also seeks punitive damages. Currently before
6 the Court is Defendants’ Motion for Summary Judgment
7 [24].
8 Having reviewed all papers submitted pertaining to
9 this Motion, the Court NOW FINDS AND RULES AS FOLLOWS:
10 the Court GRANTS Defendants’ Motion in part and DENIES
11 Defendants’ Motion in part. The Court VACATES the trial
12 date subject to being reset, along with the filing of
13 amended pretrial documents and motion in limine
14 briefing, and ORDERS the Parties to submit a Status
15 Report addressing compliance with Local Rule 16-15.1.
16 I. BACKGROUND
17 A. Factual Background
18 Plaintiff was employed by Defendants as a diet
19 technician from September 14, 2006, until September 21,
20 2020. Defs.’ Statement of Undisputed Facts (“Defs.’
21 SUF”) ¶ 5, ECF No. 24-2. During her employment,
22 Plaintiff received an employee handbook describing
23 Defendants’ attendance policies. Id. ¶ 31. Employee
24 absences, whether authorized or not, were recorded on a
25 “PTO Tracker,” and Plaintiff’s manager was responsible
26 for updating the PTO Tracker for Plaintiff for the last
27 year of her employment. Id. ¶¶ 31-32. Plaintiff has
28 the opportunity to review her PTO Trackers to ensure
2
Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 3 of 25 Page ID #:1369
1 their accuracy. Id. ¶ 83. If a date in the PTO Tracker
2 had a black “X” in the corresponding box, that indicated
3 that Plaintiff was not scheduled to work that date. Id.
4 ¶ 34. If the date had a red “V,” in the corresponding
5 box it indicated that Plaintiff was scheduled to work
6 but was absent and paid vacation time, and if there was
7 a red “S” in the corresponding box then Plaintiff was
8 absent and paid sick leave. Id. ¶ 35. If the “V” was
9 accompanied by a number, it indicated the number of
10 hours the Plaintiff was absent and paid vacation time.
11 Id. ¶ 37. The PTO Tracker notes that employees can only
12 use forty-eight hours of paid sick leave each fiscal
13 year. Id. ¶ 40.
14 Under Defendants’ employee policies outlined in its
15 employee handbook, excused time away from work includes
16 any requested time off from work that is approved by the
17 employee’s manager at least one day in advance,
18 including use of vacation or paid time off. Decl. of
19 Elizabeth Toushin in Supp. of Defs.’ Mot. for Summ. J.
20 at 58 (“Toushin Decl.”), ECF No. 24-3. Excused time
21 also includes time missed excused by federal, state, or
22 local law. Id. Unexcused time away from work is
23 referred to as an “Occurrence.” Id. at 59. An
24 Occurrence includes an absence that doesn’t fall within
25 one of the “excused time away” categories. Id. Failure
26 to follow notice protocol will also result in an
27 occurrence even if the absence is approved. Defs.’s SUF
28 ¶ 21. If an employee incurs seven occurrence points in
3
Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 4 of 25 Page ID #:1370
1 a rolling twelve-month period, they will be discharged.
2 Toushin Decl. at 60. Defendants’ policies provide that
3 all absences, lateness, and early-outs must be
4 communicated to the employee’s manager. Id. Failure to
5 follow this procedure will be considered a work rule
6 policy violation rather than an attendance violation and
7 will result in progressive counseling up to and
8 including termination. Id. at 61.
9 Plaintiff was absent from her job on various dates
10 throughout 2020:
11 Plaintiff was absent from work on February 17,
12 2020, because “the clinic was closed that day for a
13 holiday and she had no patients there.” Pl.’s
14 Statement of Genuine Disputes in Opp’n to Defs.’
15 Mot. for Summ. J. (“Pl.’s SGD”) ¶ 44, ECF No. 25-1.1
16 Plaintiff requested to take the February 17 off on
17 February 14. Id. Defendant contends this violates
18 the notice policies and Plaintiff received one
19 occurrence point for this day. Id. ¶¶ 46, 48.
20 Plaintiff asked for and took March 10, 2020, off
21 because the hot water at her home was not working.
22 Id. ¶¶ 49-50. Defendant contends that Plaintiff’s
23 same-day request violates notice policies and
24
25
1 This document contains a table with Plaintiff’s responses
26 to Defendants’ statement of uncontroverted facts and a table with
facts that Plaintiff asserts are disputed. The Court refers to
27
the former table as “Pl.’s SGD” and the latter table as “Pl.’s
28 SDF.”
4
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1 Plaintiff received one occurrence point for this
2 absence. Id. ¶¶ 51, 53.
3 Plaintiff requested and took March 19, 20, and 23,
4 2020 off work because the clinic where she was
5 scheduled to work those days did not have patients
6 coming in. Id. ¶¶ 54, 56. For those dates,
7 Plaintiff used paid vacation for her absences. Id.
8 ¶ 55. Defendant contends Plaintiff violated notice
9 protocols by asking for this time off only a few
10 days prior, and Plaintiff received one occurrence
11 point. Id. ¶¶ 57, 59.
12 Plaintiff requested leave and was absent from work
13 on April 2 and 3, 2020, for her brother’s
14 gallbladder surgery. Id. ¶¶ 60-61. Plaintiff once
15 again used paid vacation time for this absence.
16 Id. ¶ 62. Plaintiff received one occurrence point
17 for these absences. Id. ¶ 63.
18 Plaintiff also testified at her deposition that she
19 took time off from April 7 to 24, 2020, to
20 quarantine after learning she was exposed to COVID-
21 19. Decl. of Lisa Watanabe-Peagler in Supp. of
22 Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Peagler
23 Decl.”), Ex. 13 (“Pl. Dep.”) 133:14-137:17, ECF
24 No. 25-3.
25 Plaintiff asked to and took off work on May 15,
26 2020, because her brother was having cataract
27 surgery. Pl.’s SGD ¶ 64. She used paid vacation
28 time for this absence as well. Id. ¶ 66.
5
Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 6 of 25 Page ID #:1372
1 Plaintiff received another occurrence point for
2 this absence. Id. ¶ 67.
3 Plaintiff was absent on June 1 and 2, 2020, due to
4 severe stomach pains. Id. ¶ 69. She was paid
5 vacation time for this absence. Id. ¶ 71.
6 Defendant contends that Plaintiff did not follow
7 notice protocols because she contacted her manager
8 about her absence on the morning of June 1. Id.
9 ¶ 70. Plaintiff received an occurrence point for
10 this absence. Id. ¶ 72.
11 Plaintiff asked on July 7, 2020, to leave early to
12 pick up her car from the mechanic. Id. ¶ 73.
13 Plaintiff left early and was paid vacation time.
14 Id. ¶ 75. Defendant contends Plaintiff did not
15 follow notice protocols because she requested to
16 leave that same day. Id. ¶ 74. Plaintiff received
17 one half of an occurrence point for this day. Id.
18 ¶ 76.
19 Plaintiff tested positive for COVID-19 around July
20 13 and was on approved medical leave of absence
21 from July 13 to 25, 2020. Id. ¶¶ 7-8; 81.
22 Late on the night of September 17, 2020, Plaintiff
23 asked to take September 18, 2020, off work to see
24 her brother in the hospital. Id. ¶ 77. Plaintiff
25 was paid vacation time for this absence. Plaintiff
26 received one occurrence point for this day. Id.
27 ¶ 81.
28 On September 21, 2020, Plaintiff’s manager provided
6
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1 Ms. Elizabeth Toushin, the Senior Director of Nutrition
2 at the time, with an Associate Counseling Report (“ACR”)
3 showing that Plaintiff had incurred over seven
4 occurrence points, exceeding the number of allowances
5 under Defendants’ policies. See id. ¶ 89; Decl. of
6 Elizabeth Toushin in Supp. of Defs.’ Mot. for Summ. J.
7 (“Touchin Decl.”) ¶ 2, ECF No. 24-3. Ms. Toushin then
8 made the decision to terminate Plaintiff’s employment.
9 Pl.’s SGD ¶ 90. Defendant contends that Plaintiff
10 accumulated occurrence points when she was absent due to
11 illness but did not have any remaining paid sick leave
12 available, and when she violated notice policies. Id.
13 ¶¶ 46, 51, 57, 62, 70, 74, 96. Plaintiff counters that
14 there is nothing in Defendants’ attendance and sick time
15 policies providing that an employee must be given an
16 occurrence point for taking sick time after using up
17 paid sick time, and that the policy requiring only one
18 days’ notice for an absence controls. Id. ¶¶ 46, 51,
19 57, 96.
20 Shortly after Plaintiff’s manager contacted
21 Ms. Toushin, Plaintiff was terminated from her position
22 and was provided an ACR outlining her occurrence points.
23 Pl.’s Additional Material Facts in Dispute (“Pl.’s SDF”)
24 ¶¶ 55-56, ECF No. 25-1. In this ACR, Plaintiff had
25 incurred a total of two occurrence points for her April
26 7 through 24 absence, when she was quarantining after
27 COVID-19 exposure, and for her July 13 through 25
28 absence, when she was ill with COVID-19. Id. ¶¶ 67, 70.
7
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1 Ms. Toushin stated that both of these occurrence points
2 were “erroneously added” to the ACR, and Plaintiff’s
3 manager stated that after Plaintiff’s termination, he
4 crossed out the July absence as incurring an occurrence
5 point when he realized it was mistakenly included.
6 Toushin Decl. ¶ 15; Peagler Decl., Ex. 14 (“Webb Dep.”)
7 162:16-163:20.
8 B. Procedural Background
9 Plaintiff filed her Complaint in California state
10 court and Defendants removed [1] to this Court on
11 June 10, 2021. Defendant Morrison moved for summary
12 judgment [24] on December 14, 2023, and Defendant
13 Compass joined [24-7] in bringing this motion.
14 Plaintiff opposed [25] on December 27, 2023, and
15 Defendants replied [26] on January 3, 2023.
16 II. DISCUSSION
17 A. Legal Standard
18 Summary judgment is appropriate when the moving
19 party “shows that there is no genuine dispute as to any
20 material fact and the movant is entitled to judgment as
21 a matter of law.” Fed. R. Civ. P. 56(a). A fact is
22 “material” if it might affect the outcome of the suit,
23 and the dispute is “genuine” if the evidence is such
24 that a reasonable factfinder could return a verdict for
25 the nonmoving party. Anderson v. Liberty Lobby, 477 U.S
26 242, 248 (1986).
27 The moving party bears the initial burden of
28 proving the absence of a genuine dispute of material
8
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1 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
2 (1986). Where the nonmoving party bears the burden of
3 proof at trial, the moving party need only show “an
4 absence of evidence to support the nonmoving party’s
5 case.” Id. at 325. If the moving party meets its
6 burden, the burden then shifts to the nonmoving party to
7 present “specific facts showing that there is a genuine
8 issue for trial.” Anderson, 477 U.S at 250. The
9 nonmoving party “must show more than the mere existence
10 of a scintilla of evidence . . . or some ‘metaphysical
11 doubt’ as to the material facts at issue.” In re Oracle
12 Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
13 The evidence, and all reasonable inferences based
14 on underlying facts, must be construed in the light most
15 favorable to the nonmoving party. Scott v. Harris, 550
16 U.S. 372, 378 (2007). In reviewing the record, the
17 court’s function is not to weigh the evidence but only
18 to determine if a genuine issue of material fact exists.
19 Anderson, 477 U.S. at 255. “A district court’s ruling
20 on a motion for summary judgment may only be based on
21 admissible evidence.” In re Oracle Corp. Sec. Litig.,
22 627 F.3d at 385. “While the evidence presented at the
23 summary judgment stage does not yet need to be in a form
24 that would be admissible at trial, the proponent must
25 set out facts that it will be able to prove through
26 admissible evidence.” Norse v. City of Santa Cruz, 629
27 F.3d 966, 973 (9th Cir. 2010).
28 ///
9
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1 B. Analysis
2 1. Evidentiary Objections
3 Plaintiff lodged twenty-five evidentiary objections
4 to evidence relied on in Defendants’ Motion. See
5 generally Pl.’s Objs to Defs.’ Evid. In Supp. of Mot.
6 for Summ. J., ECF No. 25-4. Many of Plaintiff’s
7 objections read as a continuation or reiteration of
8 Plaintiff’s arguments in its Opposition. See generally
9 Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Opp’n”), ECF
10 No. 25. Defendant also lodged an objection to
11 Plaintiff’s proffered opinion on the status of her
12 COVID-19 illness. See Defs.’ Objs to Pl.’s Evid. In
13 Opp’n to Mot. for Summ. J., ECF No. 26-1. The Court has
14 considered the admissibility of the evidence and has not
15 considered facts that are irrelevant or that could not
16 be in a form that would be admissible at trial. See
17 Norse, 629 F.3d at 973. The objections are therefore
18 OVERRULED.
19 2. Claims One, Three, Four, and Five
20 Plaintiff’s claims of disability discrimination,
21 failure to prevent discrimination and retaliation,
22 failure to accommodate, and failure to engage in the
23 interactive process are all premised on Plaintiff being
24 disabled under FEHA. See generally Compl., ECF No. 1-1.
25 Plaintiff contends that she was disabled at the time the
26 relevant events occurred because she suffered from
27 COVID-19. See, e.g., Compl. ¶¶ 23, 35; Opp’n 8:7-23.
28 Plaintiff argues that she was terminated from her
10
Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 11 of 25 Page ID
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1 position based on her COVID-19 infection, which she
2 contends is a disability under FEHA. See generally
3 Compl. This Court holds, however, that COVID-19 does
4 not qualify as a disability under FEHA.
5 A federal court exercising diversity jurisdiction,
6 as this Court is here, applies the law of the state in
7 which it sits. Dimidowich v. Bell & Howell, 803 F.2d
8 1473, 1482 (9th Cir. 1986). In doing so, a federal
9 court will follow a state supreme court’s precedent, or
10 alternatively, predict how the supreme court would rule
11 based on intermediate appellate court decisions and
12 decisions by courts in other jurisdictions. See Knapp
13 v. Cardwell, 667 F.2d 1253, 1260 (9th Cir.), cert.
14 denied, 459 U.S. 1055 (1982); Fiorito Bros. v. Fruehauf
15 Corp., 747 F.2d 1309, 1314 (9th Cir. 1984); Lewis v.
16 Anderson, 615 F.2d 778, 781 (9th Cir. 1979), cert.
17 denied, 449 U.S. 869 (1980); see also Takahashi v.
18 Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir.
19 1980) (federal court may look to well-reasoned decisions
20 from other jurisdictions); Am. Sheet Metal v. Em-Kay
21 Eng’g Co., 478 F. Supp. 809, 813 (E.D. Cal. 1979)
22 (decisions by California Courts of Appeal may be
23 persuasive). At this time, neither the California
24 Supreme Court nor the California courts of appeal have
25 addressed whether a COVID-19 infection is a disability
26 under FEHA.
27 This Court finds the reasoning in Roman v. Hertz
28 Local Edition Corp. instructive. No. 20CV2462-BEN
11
Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 12 of 25 Page ID
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1 (AGS), 2022 WL 1541865 (S.D. Cal. May 16, 2022). There,
2 the court first looked to regulations issued by the
3 California Department of Fair Employment and Housing
4 (“DFEH”), which administers FEHA. Id. at *4-5. As
5 administrator of FEHA, DFEH regulations are
6 presumptively valid and binding. See Cal. Gov. Code §
7 12935; Tomlinson v. Qualcomm, 118 Cal. Rptr. 2d 822, 828
8 (2002).
9 In turn, Cal. Code Regs. tit. 2, § 11065(d)(9)(B)
10 excludes from the definition of a FEHA disability those
11 “conditions that are mild, which do not limit a major
12 life activity, as determined on a case-by-case basis.”
13 This regulation defines a mild condition and gives
14 examples. For instance, “mild conditions” are ones
15 which have “little or no residual effects,” like “the
16 common cold . . . seasonal or common influenza . . .
17 muscle aches, soreness . . . [and] non-migraine
18 headaches” as specific examples of ailments that do not
19 qualify as a disability under FEHA. Id. Thus, the
20 court in Roman concluded, “[w]hen it presents with
21 temporary symptoms akin to the common cold or seasonal
22 flu, COVID-19 will fall outside the FEHA definition of
23 ailments considered a disability, pursuant to §
24 11065(d)(9)(B).” 2022 WL 1541865 at *5. Accordingly,
25 there, the court found that the plaintiff’s COVID-19
26 infection did not constitute a disability under FEHA
27 because the undisputed facts showed that Plaintiff’s
28 COVID-19 infection resulted in only mild symptoms and
12
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1 little to no residual effects. Id.
2 Similarly, here, Plaintiff was unable to work for
3 only a short period of time. Indeed, it is uncontested
4 that Plaintiff was on approved medical leave from
5 July 13, 2020, through July 25, 2020, due to her COVID-
6 19 infection. See Defs.’ SUF ¶ 8; Pl.’s SGD ¶ 8.
7 Moreover, Plaintiff stated that her symptoms consisted
8 of fatigue, headaches, loss of smell, loss of taste, a
9 sore throat and cold, runny nose, and loss of appetite.
10 Pl.’s SGD ¶ 9. Just as in Roman, where a short-term
11 COVID-19 infection with cold or flu-like symptoms was
12 not a disability, here, the duration and symptoms of
13 Plaintiff’s COVID-19 infection do not rise to the level
14 of a disability under FEHA.
15 Plaintiff contends that Roman is distinguishable
16 from the instant Action because there, the plaintiff was
17 ill for four days total and was out of work for only one
18 day, whereas here, Plaintiff was ill and on leave from
19 work from July 13 to 25. Defs.’ SUF ¶ 8; Pl.’s SGD ¶ 8.
20 But regardless, the reasoning in Roman is still
21 applicable here. Plaintiff’s COVID-19 infection spanned
22 approximately twelve days. She testified that she
23 suffered from the previously mentioned symptoms for
24 about four to five days. Opp’n 9:7-9. And Plaintiff
25 even concedes that her conditions were temporary. Id.
26 8:21-23. Thus, Plaintiff’s COVID-19 infection does not
27 constitute a disability under FEHA, as it was neither
28 longer-term nor severe.
13
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1 Since Plaintiff is not disabled under FEHA, her
2 claims of disability discrimination, failure to prevent
3 discrimination and retaliation, failure to accommodate,
4 and failure to engage in the interactive process fail.
5 Therefore, the Court GRANTS Defendants’ Motion as to
6 these claims.
7 3. Claim Two: Retaliation
8 To establish a prima facie case of retaliation
9 under FEHA, a plaintiff must show (1) she engaged in
10 protected activity, (2) the employer subjected her to an
11 adverse employment action, and (3) a causal link between
12 the protected activity and the employer’s action exists.
13 See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028,
14 1042 (2005).
15 Plaintiff contends that Defendants “retaliated
16 against Plaintiff based in part on her physical
17 disability and request for an accommodation for such
18 disability.” Compl. ¶¶ 35, 36, 40. Plaintiff again
19 states that her COVID-19 infection constitutes the
20 disability at issue and provides no other basis for the
21 alleged retaliation. Id. ¶ 35. As discussed,
22 Plaintiff’s COVID-19 infection is not a disability under
23 FEHA. Accordingly, Plaintiff did not engage in a
24 protected activity by asking for accommodations, and
25 therefore Defendants did not retaliate against Plaintiff
26 as defined by FEHA. Thus, the Court GRANTS Defendants’
27 Motion as to Plaintiff’s retaliation claim.
28 ///
14
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1 4. Claim Six: Violation of the California Family
2 Rights Act
3 The CFRA is a portion of FEHA that “is intended to
4 give employees an opportunity to take leave from work
5 for certain personal or family medical reasons without
6 jeopardizing job security.” Bareno v. San Diego
7 Community College Dist., 7 Cal. App. 5th 546, 558 (2017)
8 (quoting Nelson v. United Techs., 74 Cal. App. 4th 597,
9 606 (1999)). “The CFRA entitles eligible employees to
10 take up to [twelve] weeks of unpaid medical leave during
11 a [twelve]-month period for certain personal or family
12 medical conditions, including care for their children,
13 parents, or spouses or to recover from their own serious
14 health condition.” Neisendorf v. Levi Strauss & Co.,
15 143 Cal. App. 4th 509, 516 (2006) (citations omitted).
16 “CFRA’s regulations provide that, for an employee to be
17 entitled to a medical leave for her own serious health
18 condition, the condition must cause her to be unable to
19 work at all or unable to perform one or more of the
20 essential functions of her position.” Id. at 516-17
21 (citation omitted).
22 “An employee who takes CFRA leave is guaranteed
23 that taking leave will not result in a loss of job
24 security or in other adverse employment actions.” Id.
25 (citation omitted). “Violations of the CFRA generally
26 fall into two types of claims: (1) ‘interference’ claims
27 in which an employee alleges that an employer denied or
28 interfered with her substantive rights to protected
15
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1 medical leave, and (2) ‘retaliation’ claims in which an
2 employee alleges that she suffered an adverse employment
3 action for exercising her right to CFRA leave.” Rogers
4 v. Cnty. of Los Angeles, 198 Cal. App. 4th 480, 487–488
5 (2011) (citations omitted).
6 Plaintiff asserts a retaliation claim under CFRA.
7 Compl. ¶¶ 76-88. To establish a prima facie CFRA
8 retaliation claim, the plaintiff must show:
9 (1) defendant was a CFRA covered employer, (2) plaintiff
10 was eligible for CFRA leave, (3) plaintiff exercised her
11 right to make a qualifying leave, and (4) plaintiff
12 suffered an adverse employment action because she
13 exercised her right to take CFRA leave. Dudley v. Dep’t
14 of Trans., 90 Cal. App. 4th 255, 261 (2001).
15 Plaintiff contends that Defendant terminated her
16 employment in retaliation for taking a day off to see
17 her brother in the hospital on September 18, 2020, and
18 for taking time off after she contracted COVID in July
19 2020. See Compl. ¶¶ 76-88. Defendant counters that
20 (1) Plaintiff was not eligible to take CFRA leave to see
21 her brother in the hospital because at the time of her
22 leave, the definition of a family member covered under
23 CFRA did not include siblings, and (2) Plaintiff has no
24 evidence that the decision to terminate her employment
25 due to her violation of Defendants’ attendance policies
26 was pretextual. Mot. 23:3-7.
27 First, the version of the CFRA effective from
28 January 1, 2020, to December 31, 2020, and therefore
16
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1 applicable in the instant Action, did not include
2 siblings under the definition of a family member for
3 which an employee could take time off to care for
4 without repercussion. Compare Cal. Gov’t Code § 12945.2
5 (Effective January 1, 2020, to December 31, 2020) with
6 Cal. Gov’t Code § 12945.2 (Effective January 1, 2023).
7 Accordingly, the Court considers only whether Defendant
8 violated the CFRA in relation to Plaintiff’s absence due
9 to her COVID-19 infection.
10 It is undisputed that Defendant Compass approved
11 Plaintiff’s CFRA leave from July 13 to 25. See Plf.’s
12 SGD ¶ 54. Therefore, the first three elements of a CFRA
13 retaliation claim are met, and this claim turns on
14 whether Defendant was terminated due to her CFRA
15 absence. To successfully oppose summary judgment,
16 Plaintiff must show that there is a triable issue of
17 material fact as to whether the CFRA leave taken by
18 Plaintiff was impermissibly considered as a factor in
19 the termination of her employment. Xin Liu v. Amway
20 Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). Plaintiff
21 must establish that the decision to terminate her
22 employment was “not actually independent [of her
23 employer’s purported bias related to medical leave]
24 because [her employer] influenced or was involved in the
25 decision or investigation leading thereto.” Poland v.
26 Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007).
27 Plaintiff has raised a genuine issue of material
28 fact as to whether Defendant improperly considered her
17
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1 July 2020 CFRA leave of absence in deciding to terminate
2 Plaintiff’s employment. Plaintiff’s manager and Ms.
3 Toushin have both stated that Plaintiff was terminated
4 from her position due to excessive absences. See
5 Touchin Decl.; Webb Dep. The parties agree that
6 Plaintiff’s manager provided Ms. Toushin with an ACR
7 outlining Plaintiff’s absences and occurrence points,
8 and that Ms. Toushin then decided to terminate
9 Plaintiff’s employment. See Pl.’s SGD ¶ 89; Touchin
10 Decl. ¶ 2. Moreover, it is undisputed that Plaintiff
11 received a copy of the ACR outlining absences for which
12 she received occurrence points, and that the ACR
13 included her CFRA leave as an “unauthorized absence” for
14 which she received an occurrence point. Pl.’s SDF
15 ¶¶ 55-56, 67, 70. Ms. Toushin and Plaintiff’s manager
16 contend that the occurrence point stemming from
17 Plaintiff’s CFRA leave was “erroneously” added. Toushin
18 Decl. ¶ 15; Webb Dep. 162:16-163:20. Indeed,
19 Plaintiff’s manager even crossed part of that entry out
20 after Plaintiff’s termination. Webb Dep. 162:16-163:20.
21 But such an admission of error does not indicate that
22 Defendants did not consider Plaintiff’s CFRA leave when
23 deciding whether to terminate her employment.
24 Defendants also argue that they could have
25 terminated Plaintiff’s employment without the CFRA leave
26 occurrence point because Defendants’ policy allows for
27 termination after seven occurrence points, and Plaintiff
28 had a total of 9.5 occurrence points. But Plaintiff
18
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1 incurred seven points at the beginning of June, yet she
2 was not terminated from her position until September.
3 Moreover, Plaintiff’s CFRA leave, taken after she had
4 already incurred seven points, was included in the ACR
5 considered by Ms. Toushin when deciding whether to
6 terminate Plaintiff’s employment. So, while it might be
7 true that Defendants could have terminated Plaintiff
8 from her role three months earlier, the Court’s inquiry
9 is limited to whether Defendants wrongfully considered
10 the CFRA leave when deciding to terminate Plaintiff.
11 And here, there is a genuine issue of material fact as
12 to whether Defendants considered Plaintiff’s CFRA leave
13 when deciding to terminate her employment. Therefore,
14 the Court DENIES Defendants’ Motion for Summary Judgment
15 as to Plaintiff’s sixth claim.
16 5. Claim Seven: Discharge in Violation of Labor
17 Code § 233 – Paid Sick Leave
18 Plaintiff asserts a claim under California Labor
19 Code § 233. This statute prohibits employers from
20 discouraging employees from using their accrued sick
21 leave. See Cal. Lab. Code § 233. Specifically,
22 § 233(c) provides that an employer cannot “deny an
23 employee the right to use sick leave or discharge,
24 threaten to discharge, demote, suspend, or in any manner
25 discriminate against an employee for using, or
26 attempting to exercise the right to use, sick leave to
27 attend to an illness or the preventive care of a family
28 member . . . .” Plaintiff contends that she had
19
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1 accrued, but unused, protected sick leave and used some
2 of this sick leave for when she suffered severe stomach
3 pains on June 1 and 2, 2020. Compl. ¶ 91. She further
4 argues that Defendants violated Labor Code § 233(c) when
5 it terminated her employment partly due to this absence.
6 Id.
7 Under Defendants’ policies, employees may use up to
8 forty-eight hours of paid sick time from October 1
9 through September 30. The following facts are
10 undisputed:
11 Plaintiff received thirty-two hours of sick pay
12 during the pay period of October 4, 2019, through
13 October 17, 2019. Plaintiff’s SGD ¶ 100
14 Plaintiff received an additional eight hours of
15 sick pay during the pay period of November 11,
16 2019, through November 14, 2019. Id. ¶ 101
17 Plaintiff was paid two hours of sick time for
18 February 13. Id. ¶ 92.
19 Plaintiff was paid six hours of sick time for the
20 week ending in July 2020. Id. ¶ 93.
21 Plaintiff was paid vacation time for her June 1 and
22 2 absences. Id. ¶ 71.
23 Plaintiff’s manager filled out her PTO Tracker on
24 her behalf during the relevant time period. Defs.’
25 SUF ¶ 5.
26 While it is undisputed that Plaintiff exhausted all
27 forty-eight hours of paid sick time by July 15, 2020,
28 Plaintiff contends that Defendant denied her the right
20
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1 to use her available sick leave to cover one or more of
2 the eight absences prior to July 15. Opp’n 19:3-21.
3 Plaintiff further argues that her manager gave her
4 occurrences for her absences on the grounds that she had
5 no sick time available, when she did. Id.; see also
6 Toushin Decl., Ex. 6. Specifically, Plaintiff argues
7 that she could have used sick leave for her June 1 and 2
8 absences and therefore she was wrongfully terminated
9 based on her use of sick leave. But by February 13,
10 2020, Plaintiff only had six hours of sick leave
11 remaining. And she was paid those six hours when she
12 was out sick in July 16, 2020. Pl.’s SGD ¶ 93.
13 Moreover, it is undisputed that Plaintiff had the
14 opportunity to review her PTO Tracker to ensure its
15 accuracy. Id. ¶ 83. If Plaintiff had wanted to use her
16 sick time, rather than vacation time, for her June 1 and
17 2 absences, she had the opportunity to raise that with
18 her manager and did not. There is no evidence to show
19 that Defendant denied Plaintiff the right to use sick
20 leave or discharged her for doing so, and Plaintiff has
21 failed to raise a genuine issue of material fact
22 regarding her Section 233 claim. Therefore, the Court
23 GRANTS Defendants’ Motion for Summary Judgment as to
24 Plaintiff’s seventh claim.
25 ///
26 ///
27 ///
28 ///
21
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1 6. Claim Eight: Wrongful Discharge in Violation of
2 Public Policy
3 Wrongful discharge in violation of public policy is
4 a California common law action providing that when an
5 employer’s discharge of an employee violates fundamental
6 principles of public policy, the discharged employee may
7 maintain a tort action. See Ferretti v. Pfizer Inc.,
8 855 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012). Wrongful
9 discharge in violation of public policy is a derivative
10 claim that may be based on the policy underlying the
11 CFRA. See Nelson v. United Techs., 88 Cal. Rptr. 2d
12 239, 245-46 (Cal. App. 1999), as modified (Sept. 22,
13 1999).
14 Here, since the Court finds there is a genuine
15 issue of material fact regarding Plaintiff’s CFRA claim,
16 Plaintiff’s derivative claim also survives summary
17 judgment. The Court therefore DENIES Defendants’ Motion
18 as to Plaintiff’s eighth claim.
19 7. Punitive Damages
20 An award of punitive damages requires a plaintiff
21 to prove “by clear and convincing evidence that [a
22 defendant was] guilty of oppression, fraud, or malice.”
23 Aquino v. Superior Ct., 21 Cal. App. 4th 847, 857
24 (1993); see also Cal. Civ. Code § 3294. Under
25 California law, a corporation may be held liable for
26 punitive damages through the malicious acts or omissions
27 of their employees, but only for the acts or omissions
28 of those employees with sufficient discretion to
22
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1 determine corporate policy. See Cruz v. HomeBase, 83
2 Cal. App. 4th 160, 167 (2000). Those individuals
3 include the corporation’s officer, director, or a
4 managing agent. Cal. Civ. Code § 3294(b). “The
5 managing agent must be someone who exercises substantial
6 discretionary authority over decisions that ultimately
7 determine corporate policy.” White v. Ultramar, Inc.,
8 21 Cal.4th 563, 573 (1999). “The mere ability to hire
9 and fire employees does not render a supervisory
10 employee a managing agent under section 3294(b).”
11 Samson v. Wells Fargo Bank, N.A., No. CV 16-4839-GW-
12 AGRX, 2021 WL 937687, at *6 (C.D. Cal. Jan. 21, 2021).
13 “[T]o demonstrate that an employee is a true managing
14 agent under section 3294, subdivision (b), a plaintiff
15 seeking punitive damages would have to show that the
16 employee exercised substantial discretionary authority
17 over significant aspects of a corporation's business.”
18 White, 21 Cal.4th at 577.
19 Here, Plaintiff’s allegations of misconduct pertain
20 to her manager and Ms. Toushin. There is no evidence
21 that either Plaintiff’s manager or Ms. Toushin have a
22 role in determining Defendants’ corporate policy. While
23 Plaintiff contends that Ms. Toushin’s role qualifies her
24 as a manager, she has not raised a genuine issue of
25 material fact as to whether Ms. Toushin had substantial
26 discretionary authority over significant aspects of
27 Defendants’ businesses. See generally Opp’n. Indeed,
28 Toushin testified that “policies and procedures [were]
23
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1 already implemented by the company,” and she merely
2 “ensure[d] that they [were] followed and executed
3 appropriately.” Peagler Decl., Ex. 15 (“Toushin Dep.”)
4 34:17-25, ECF No. 25-2. While Plaintiff contends that
5 Toushin was involved in drafting a policy, Toushin
6 clarified that “the one policy that [she] participated
7 in the creation of . . . [was for] the identification
8 and diagnosis of malnutrition for pediatric and adult
9 hospitalized patients.” Pl.’s SGD ¶ 102; Toushin Dep.
10 39:20-40:13. This clearly shows that Ms. Toushin was
11 not so substantially involved in Defendants’ business so
12 as to be considered an officer, director, or managing
13 agent. Accordingly, since none of the individuals
14 involved in Plaintiff’s termination were officers,
15 directors, or managing agents of Defendants, Plaintiff
16 may not seek punitive damages.
17 8. Local Rule 16-15.1
18 First, in light of the following discussion, the
19 Court hereby VACATES the trial date subject to being
20 reset along with the filing of amended pretrial
21 documents and motion in limine briefing.
22 Next, Local Rule 16-15.1 provides that parties in a
23 civil case must participate in alternative dispute
24 resolution procedures specified in the local rules or
25 otherwise approved by the trial judge. L.R. 16-15.1.
26 On June 10, 2021, the Court provided the Parties with
27 notice of this rule. Notice to Parties of Court-
28 Directed ADR Program, ECF No. 8. Then, on September 2,
24
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1 2021, the Court ordered the Parties to a private
2 mediator with the mediation to be held no later than
3 eleven days before trial. Order/Referral to ADR
4 Procedure No. 3, ECF No. 13. The Court hereby ORDERS
5 the Parties to submit a Status Report addressing whether
6 the Parties have attempted to resolve this dispute in
7 mediation or have scheduled mediation for a future date.
8 This status report must be filed by March 29, 2023.
9 In the event that the Parties have already
10 attempted to resolve this dispute in mediation and were
11 unable to do so, the Court strongly urges the Parties to
12 consider further mediation on the remaining claims. If
13 the Parties decide to further mediate, they must file a
14 Status Report updating the Court on the results of the
15 mediation within thirty (30) days of its conclusion.
16 III. CONCLUSION
17 Based on the foregoing, the Court GRANTS
18 Defendants’ motion in part and DENIES Defendants’ Motion
19 in part. The Court VACATES the trial date subject to
20 being reset, along with the filing of amended pretrial
21 documents and motion in limine briefing, and ORDERS the
22 Parties to submit a Status Report addressing compliance
23 with Local Rule 16-15.1.
24 IT IS SO ORDERED.
25
26 DATED: March 14, 2023 _____/S/ RONALD S.W. LEW______
HONORABLE RONALD S.W. LEW
27
Senior U.S. District Judge
28
25