Opinion
B308840
11-07-2022
VINCENT BERRY, Plaintiff and Appellant, v. EVERPORT TERMINAL SERVICES INC., Defendant and Respondent.
Cummins & White, Erick J. Becker and Edward J. Farrell for Plaintiff and Appellant. Atkinson, Andelson, Loya, Ruud & Romo, Brigham M. Cheney and David B. Sarfati for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCV13361, Jon R. Takasugi, Judge. Reversed and remanded.
Cummins & White, Erick J. Becker and Edward J. Farrell for Plaintiff and Appellant.
Atkinson, Andelson, Loya, Ruud & Romo, Brigham M. Cheney and David B. Sarfati for Defendant and Respondent.
FEUER, J.
Vincent Berry appeals from a judgment entered after the trial court granted summary judgment in favor of Everport Terminal Services Inc. Berry was a manager for Everport at its Los Angeles marine container terminal facility. In December 2018 Berry took a leave of absence for medical treatment of pneumonia. On Berry's first day back one month later, Everport terminated him, citing his poor work performance.
Berry brought claims under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) for discrimination, retaliation, failure to accommodate, failure to engage in a good faith interactive process, and wrongful termination based on an actual or perceived physical disability. Berry also alleged interference with his right to medical leave and retaliation for his use of medical leave in violation of the California Moore-Brown-Roberti Family Rights Act (CFRA; §§ 12945.1, 12945.2). The trial court granted summary judgment, finding Berry had failed to rebut Everport's showing it had a legitimate, nondiscriminatory reason for terminating Berry (his poor performance); Berry's CFRA interference claim failed because Berry could not show injury; and Everport did not fail to accommodate or engage in the interactive process regarding Berry's disability because it learned of Berry's need for accommodations only after it terminated Berry for poor work performance.
All further undesignated statutory references are to the Government Code.
On appeal Berry argues he has raised triable issues of fact whether Everport's proffered reason for terminating him is pretext for unlawful discriminatory and retaliatory animus and whether Everport interfered with his rights under CFRA. Berry contends further he raised a triable issue whether Everport failed to engage in the interactive process and failed to accommodate his physical disability because Everport terminated him without considering his request for modified work. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Berry's Employment with Everport
The factual background is taken from evidence submitted by the parties in connection with Everport's motion for summary judgment. We note where the facts are in dispute.
Everport operates marine container terminals, transferring cargo containers from sea vessels to land transportation. In November 2015 Everport hired Berry as a superintendent. When Berry began at Everport, he received an employee handbook. As a superintendent, Berry oversaw labor operations at Everport's Los Angeles terminal facility. Berry's position required him to use independent judgment and discretion in operational decisionmaking to direct labor, determine equipment requirements, advise senior management of issues impacting production, manage advance planning activities, and prepare various reports and forms related to operations.
In Berry's 2016 year-end performance evaluation, rail department manager Frank Morales gave Berry an overall rating of "Needs Improvement." Morales wrote that Berry failed to meet targets, "lack[ed] consistency" and understanding of operations, and needed to focus "attention on priority setting." The evaluation directed Berry to take enumerated "action steps" to improve his performance.
In July 2017 Everport changed the title for the position of superintendent to operations labor manager (OLM) and increased the salary for each employee in the position, irrespective of individual job performance. Berry received a salary increase and title change to OLM. Around this time, Everport provided training on activity logs for all OLM's, including Berry. In addition, in December 2017 Berry attended a full-day training session to learn to use a spreadsheet software. In a 2017 performance review, assistant department manager Vicente Maglinti rated Berry "Fair" overall, defined in the review form to mean Berry's "[p]erformance does not consistently meet job requirements and/or expectations." Again, the evaluation directed Berry to take enumerated "action steps" to improve his performance, including "[l]earning how to understand and complete various yard cost reports and forecasting inventory tools" and spending "more time with management and the yard planners to get a better understanding [of] how operations are [run] in the TOSPro system."
On January 30, 2018 assistant department manager Anthony Dominguez informed Berry by email that Berry would be the lead superintendent in the yard department the following week. Dominguez wrote, "Going forward you will be held to the same standard as your peers, and you will determine whether you sink or swim." Berry testified he understood Dominguez's comment about sinking or swimming to refer to Berry's job at the company.
On March 9, 2018 Dominguez wrote to Berry in an email, "This e-mail is to serve as written counseling regarding the poor quality of the Daily Activity Logs you have been submitting lately." On the same day, vice president and general manager Ron Neal wrote an email to terminal manager Dennis Delgado regarding the quality of Berry's activity logs, stating, "He really shows he does nothing." On March 19 department manager Thinh Vo wrote in an email to Dominguez regarding Berry's recently submitted payrolls, "[We n]eed to write him up for not doing this correctly." On the same day, the payroll department contacted Berry and requested he resubmit a corrected payroll document. On March 23 the payroll department again contacted Berry, requesting he resubmit a payroll document that was missing required information.
On August 16, 2018 Berry failed timely to submit his end-of-shift report before he left work for the day, instead submitting the report the next morning. Assistant department manager Timothy Fletcher spoke with Berry and told him "never to leave the workplace without submitting his activity log for the shift." On September 6 Berry again failed to submit his activity log before leaving work, submitting it in the early hours of the next morning. On September 7 department manager Andrew Gonzales sent an email to Fletcher and others stating, "Why is this so late? NOBODY leaves early without sending this first. I believe he has already been addressed? This happens again we will take action. Make sure he's spoken to ASAP." On the same day, Fletcher responded to Gonzales that he had spoken with Berry about the issue and Berry acknowledged it was the second time.
On October 8, 2018 assistant department manager Heng Wei Wang counseled Berry for mishandling a crane breakdown. Wang sent Gonzales an email documenting the conversation.
On October 18, 2018 Fletcher spoke with Berry about Berry's late submission of his pre-shift activity report. Fletcher asked Berry why the report was tardy, and Berry responded he had been "spinning his wheels." Fletcher then accompanied Berry on a drive around the terminal. Afterward Fletcher wrote an email to himself based on his observations, noting Berry "consistently put his vehicle in unsafe areas" and did not understand the importance of certain work practices. Fletcher "was surprised to find out how Mr. Berry drives the yard for someone who has been here for three years."
On November 21, 2018 Berry's supervisor counseled him about his error in double booking equipment.
In his 2018 performance review (completed on October 30, 2018), Berry received an overall score of 2.53, connoting a rating of "Fair." Berry received a rating of "fair" (2 out of 5) in seven out of 18 categories and a rating of "good" (3 out of 5) in the remaining 11 categories. In the category of leadership and managerial responsibility, Berry received a fair rating, indicating Berry's "supervisory skills are ineffective" and his "[e]mployees are not well managed or motivated." As to prioritization of tasks and objectives, Berry also received a fair rating, indicating Berry "[o]ccasionally requires additional attention and assistance to complete work" and "[l]acks time management skills and accountability for assigned duties." Berry's supervisor wrote that Berry "needs to step-up to be part of the team that develops the plan." In the area of oversight of operations and cost control, Berry again received a fair rating, signaling that Berry's "[b]udget projections are inaccurate and/or compliance is repeatedly not met." In a comment, Berry's supervisor added, "This process will probably take [Berry] the long duration to learn." Berry's supervisor wrote in summary, "[Berry] has shown improvement the last year, but he still has a way to go. Continuous involvement and working with the yard managers [and] steady labor are key. Overall his confidence and efforts have been his strength for improvement." As part of his 2018 review, Berry completed a self-evaluation, in which he rated himself on a scale from 1 to 5 either a 3 (meaning "Good") or a 2 (meaning "Fair") in each performance area.
In November 2018 assistant vice president Marcy Russell completed an assessment of Everport employees' 2018 performance reviews. Berry's rating was the lowest of any OLM. Based on Berry's three consecutive years of "substandard year-end reviews," Russell "determined that [Berry's] employment should be terminated on the basis of poor performance." On November 13, 2018 Russell wrote in an email to president George Lang, "This is the third year in a row Vince Berry has been below standards and although from what I understand he 'tries' he does not meet [Everport's] standards." Russell testified she "intended this statement to convey that Mr. Berry's employment should be terminated for failure to meet company performance standards."
In mid-November 2018, Russell met with Delgado to discuss Berry's performance deficiencies. Russell told Delgado that Berry had again received a low performance review, as he had each year since starting at Everport, and that Gonzales recommended Everport terminate Berry based on his history of poor performance. Russell asked Delgado what Everport's "next step" should be.
The next day Delgado informed Russell of his decision to terminate Berry. Russell told Delgado she would prepare the paperwork. Delgado testified the paperwork for Berry's termination was complete in mid-November, and he saw "a letter that said termination of employment." Although Russell gave Delgado the go-ahead to terminate Berry "whenever," Delgado decided to wait to terminate Berry until after an upcoming company Christmas event.
B. Berry's Leave and Termination
On November 2, 2018 Berry went to the emergency room with chest pain and shortness of breath. One of Berry's lungs contained nodules, and Berry's physician temporarily placed him off work. Everport placed Berry on leave through November 9, at which time Berry returned to work in the same position.
On December 15, 2018 Berry was again having difficulty breathing. He called 911 and was taken to a hospital where he was diagnosed with pneumonia. Because Berry's illness was sudden, he did not request leave from Everport in advance of his hospitalization. That evening Berry informed Morales by text message that he was hospitalized. Berry did not report to work on Monday, December 17, as scheduled. Berry's girlfriend, Kerrin Melendrez, communicated with Morales and others at Everport on Berry's behalf. On December 18 Russell sent Berry a text message requesting an estimate of the length of leave Berry required and documentation from Berry's doctor "to go ahead and place you on medical leave of absence." Berry or Melendrez later provided Russell with a doctor's note placing Berry "out of work" through January 27, 2019. Everport never told Berry he could not take medical leave. After Berry went out on leave, Delgado decided Everport would terminate Berry when Berry returned to work.
On Friday, January 25, 2019 Russell called Berry on the phone. Berry confirmed he was returning to work the following Monday, and Russell told him to report to her office at 8:00 a.m. rather than beginning his shift at his workstation at 6:00 a.m. as scheduled.
On January 28, 2019 Berry met with Russell and Delgado in Russell's office, where they informed him that he was being terminated for poor performance. During the meeting, Berry gave Russell a doctor's note, which Russell "glanced at" before telling Berry he was terminated but did not read "closely" until after the meeting. The note stated Berry required "modified activity" at work through February 8, 2019. The previous doctor's note submitted by Berry indicated Berry could "return to work at full capacity" on January 28.
Berry did not receive a final warning before his termination. Everport did not replace Berry after his termination.
C. Berry's Complaint
On April 17, 2019 Berry filed a complaint against Everport alleging, among other things, Everport terminated him because of his pneumonia diagnosis and in retaliation for his use of medical leave. Berry alleged causes of action against Everport for (1) interference with his right to leave in violation of CFRA; (2) discrimination in violation of FEHA based on actual or perceived physical disability; (3) failure to engage in the interactive process; (4) failure to reasonably accommodate a disability; (5) retaliation in violation of FEHA based on disability and in violation of CFRA based on his request for or use of medical leave; and (6) wrongful termination in violation of public policy.
Berry alleged Everport interfered with his rights under CFRA by failing to grant him a leave of absence under CFRA, failing to notify him of his right to protected leave of absence, and failing to reinstate him after he recovered from his illness. As to his wrongful termination claim, Berry alleged Everport violated the public policies embodied in FEHA and CFRA.
D. Everport's Motion for Summary Judgment
On December 20, 2019 Everport filed a motion for summary judgment or, in the alternative, summary adjudication. In support of its motion, Everport submitted deposition testimony, declarations, and other evidence relating to Berry's employment and leave of absence. Everport argued Berry's discrimination and retaliation claims failed because Everport had a legitimate, nondiscriminatory business reason for its actions, namely, Berry's poor work performance. Everport argued further it made its decision to terminate Berry in November 2018 based on Berry's 2018 year-end performance review-before Berry became ill or requested leave. Everport delayed its termination of Berry until after a company Christmas party, and then until after Berry returned from medical leave.
Everport asserted Berry lacked evidence Everport's proffered reason for terminating Berry was pretextual, arguing his discrimination and retaliation claims were based on speculation and questioning of Everport's business judgment. As to Berry's CFRA interference claim, Everport argued Berry received the medical leave to which he was entitled under the statute and Berry was not prejudiced by any lack of notice or designation of leave by Everport because Everport affirmatively acted to provide Berry his leave. Berry's claims for failure to accommodate and failure to engage in the interactive process failed because Berry did not request any accommodation (beyond the medical leave he received) until after Everport terminated his employment. And Berry's claim for wrongful termination failed for the same reasons because Everport did not violate FEHA or CFRA in terminating Berry.
Everport attached copies of its 2016 and 2018 employee handbooks, which were in effect during Berry's employment. The handbooks stated all Everport employees are at-will employees, subject to changes in the terms and conditions of their employment with or without notice or cause, including "termination, demotion, promotion, transfer, compensation, benefits, duties, and location of work." Further, "[i]f an employee fails to meet [Everport's] expectations, [Everport] reserve[s] the right to take corrective action up to and including termination." The handbooks continued, "At [Everport's] discretion, [Everport] may choose to use various corrective actions, short of termination, such as verbal warning, written warning, suspension, demotion, or transfer, but may decide to proceed directly to termination."
The handbooks provided notice that qualifying employees are entitled to up to 12 months of unpaid leave of absence under CFRA for serious health conditions, among other circumstances, and use of leave permitted by CFRA "cannot result in the loss of any employment benefit that accrued prior to the start of an employee's leave." The handbooks noted "[i]t is unlawful for employers to interfere with, restrain, or deny the exercise of any right provided under . . . the CFRA or to discharge or discriminate against any person for opposing any practice made unlawful by [CFRA] or for involvement in any proceeding under or relating to . . . CFRA." Russell averred in her declaration that throughout 2018 and 2019 Everport posted notices of its employees' rights under CFRA in the employee breakroom for the terminal where Berry worked.
In his opposition, Berry argued there were disputed questions of material fact whether Everport terminated him based on an actual or perceived disability or in retaliation for his taking medical leave under CFRA. As to his retaliation and discrimination claims, Berry contended the timing of his termination on the day he returned from leave showed Everport's proffered nondiscriminatory reason for termination was pretextual. Further, his evaluations contained substantial positive assessments; he had not received any written disciplinary corrective actions in the several months preceding his termination; and Everport's termination of his employment without written warning was contrary to the company's policies and practices. Moreover, Everport violated CFRA by failing to provide him with notice of his rights under the statute, to designate his leave as covered by CFRA, and to reinstate Berry's employment when he returned from leave. With respect to his claims for failure to accommodate and to engage in the interactive process, Berry asserted Everport violated FEHA by terminating him without considering whether it could accommodate his disability.
In support of his opposition, Berry submitted excerpts of Russell's deposition testimony, in which she stated it was Everport's policy and practice to give an employee with performance issues a corrective action before termination. Russell testified that, depending on the situation, a written reprimand may be appropriate, in which case Russell would prepare an internal memo documenting the issues, copies of which are given to the employee and placed in the employee's file.
However, Everport's performance evaluations were also a form of corrective action that "document[s] . . . performance deficiencies that need to be addressed." Russell testified further all Everport employees received spreadsheet software training, not just Berry. According to Russell, Everport had no documentation regarding the planned termination of Berry on December 17, 2018.
Berry also submitted excerpts of Delgado's deposition testimony, in which Delgado testified that another Everport employee received "[w]ritten, verbal warnings, [and a] final warning" before termination. Although Delgado reviewed the disciplinary warnings given to employees as part of the termination decision, he did not know whether Berry received any oral warnings after August 31, 2018 or any written disciplinary actions after October 30, 2018. Delgado likewise did not know whether Gonzales ever gave Berry written disciplinary warnings while Berry worked in the marine department. Berry also filed numerous objections to Everport's evidence.
Berry's attorney only asked Delgado about warnings given after the August 31 and October 30, 2018 dates. It is not clear from the record the significance of these dates.
Everport submitted additional evidence with its reply brief. In excerpts of Berry's deposition testimony, Berry was asked, "Did anyone at Everport ever say or do anything to suggest to you that the reason for your termination was something other than poor performance?" Berry responded, "No, I don't believe so."
E. The Trial Court's Ruling
After a hearing, on July 15, 2020 the trial court granted summary judgment in favor of Everport. The court ruled Berry's claims for discrimination under FEHA, retaliation under FEHA and CFRA, and wrongful termination failed because Everport had shown a legitimate, nondiscriminatory reason to terminate Berry (for poor work performance), and Berry had not offered evidence Everport's reason was pretextual to show Everport acted with a discriminatory or retaliatory intent in terminating Berry because of his disability or use of his medical leave. The court found Everport carried its burden to show Berry could not establish a prima facie case of interference under CFRA because Berry was not prejudiced by any failure of Everport to provide Berry notice of his rights under CFRA or to designate his medical leave as taken pursuant to CFRA. Further, Everport carried its burden to show Berry could not prove his claims for failure to accommodate and to engage in the interactive process because Everport had no duty to accommodate Berry after it lawfully terminated him. The trial court did not rule on Berry's evidentiary objections.
Where the trial court fails to rule on evidentiary objections in the context of a summary judgment motion, on appeal the court presumes the objections have been overruled, with the objector having the burden to renew its objections in the Court of Appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.) Berry does not raise his evidentiary objections on appeal.
On August 28, 2020 the trial court entered judgment for Everport. Berry timely appealed.
DISCUSSION
A. Standard of Review on Summary Judgment
Summary judgment is appropriate only if there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618; Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 668.) "'"'"We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; accord, Doe, at p. 669; Sabetian v. Exxon Mobil Corporation (2020) 57 Cal.App.5th 1054, 1068.)
A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; Sabetian v. Exxon Mobil Corporation, supra, 57 Cal.App.5th at p. 1068.) If the defendant satisfies this initial burden, the burden shifts to the plaintiff to present evidence demonstrating there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Sabetian, at p. 1069.) "The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show . . . a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists." (Code Civ. Proc., § 437c, subd. (p)(2); accord, Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054 ["It is fundamental that to defeat summary judgment a plaintiff must show 'specific facts' and cannot rely on allegations of the complaint."]; Regional Steel Corp. v. Liberty Surplus Ins. Corp. (2014) 226 Cal.App.4th 1377, 1388.)
In evaluating claims of discrimination under FEHA, California courts apply the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The same approach is applied in evaluating claims of retaliation under FEHA and CFRA. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz) [applying McDonnell Douglas burden-shifting to claim of retaliation under FEHA]; Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560 (Bareno) ["CFRA retaliation claims . . . are subject to the McDonnell Douglas burden-shifting analysis [citation]."].)
Under this approach, if the plaintiff establishes a prima facie case supporting his or her discrimination or retaliation claim, the burden shifts to the employer to rebut the presumption of discrimination or retaliation by offering a legitimate, nondiscriminatory reason for the adverse employment action. (Harris v. City of Santa Monica, supra, 56 Cal.4th at p. 214; Guz, supra, 24 Cal.4th at p. 355.) An employer may meet its initial burden in moving for summary judgment or adjudication of an employment discrimination or retaliation cause of action by presenting evidence that one or more elements of a prima facie case is lacking, or the employer acted for a legitimate, nondiscriminatory reason. (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181; Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone); Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591 (Soria).) A legitimate, nondiscriminatory reason is one that is unrelated to the prohibited bias and, if true, would preclude a finding of discrimination or retaliation. (Guz, at p. 358.) "[I]f nondiscriminatory, [the employer's] true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer's proffered reasons supports their credibility . . ., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally." (Ibid.)
If the employer satisfies its initial burden, the burden shifts to the plaintiff to present evidence creating a triable issue of fact showing the employer's stated reason was a pretext for unlawful animus in order to avoid summary judgment or adjudication. (Husman v. Toyota Motor Credit Corp., supra, 12 Cal.App.5th at p. 1182; Featherstone, supra, 10 Cal.App.5th at pp. 1158-1159; Soria, supra, 5 Cal.App.5th at p. 591.) "The plaintiff's evidence must be sufficient to support a reasonable inference that discrimination [or retaliation] was a substantial motivating factor in the decision. [Citations.] The stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory [or retaliatory] motive." (Featherstone, at p. 1159; see Soria, at p. 591 [plaintiff must produce "'"substantial responsive evidence" that the employer's showing was untrue or pretextual'"].)
To meet his or her burden, the plaintiff may present evidence showing the stated reason by the employer was "unworthy of credence" as circumstantial evidence of pretext. (Guz, supra, 24 Cal.4th at p. 361; see Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 147 ["In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose."].) However, in order to prevail, a plaintiff must present evidence to support a rational inference that intentional discrimination or retaliation, "on grounds prohibited by the statute, was the true cause of the employer's actions." (Guz, at p. 361, italics omitted; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 863 (Serri) ["'"the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence'"'"].)
B. Berry Raised a Triable Issue of Fact as to His CFRA Retaliation Claim
CFRA "'is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.'" (Soria, supra, 5 Cal.App.5th at p. 600; accord, Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 233.) CFRA provides that a qualified employee of an employer with five or more employees may take up to 12 weeks of family care and medical leave in any 12-month period. (§ 12945.2, subd. (a), (b)(3)(A).) The act prohibits an employer from taking any adverse employment action against an individual because of his or her exercise of the right to family care and medical leave. (Id., subd. (k)(1); Bareno, supra, 7 Cal.App.5th at p. 560; Soria, at pp. 600-601.)
Section 12945.2, subdivision (k), provides, "It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of . . . [¶] (1) [a]n individual's exercise of the right to family care and medical leave . . . ."
In order to prove a cause of action for retaliation in violation of CFRA, the plaintiff must prove: "'"(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised [his or] her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of [the] exercise of [his or] her right to CFRA [leave]."'" (Bareno, supra, 7 Cal.App.5th at p. 560; accord, Soria, supra, 5 Cal.App.5th at p. 604.)
Everport does not dispute it was an employer covered by CFRA and Berry was eligible for and took CFRA leave in December 2018 to receive medical treatment for pneumonia. Thus, the viability of Berry's CFRA retaliation claim turns on the fourth factor-whether he was terminated because of the exercise of his right to CFRA leave. (Bareno, supra, 7 Cal.App.5th at p. 560; Soria, supra, 5 Cal.App.5th at p. 604.)
Everport contends it terminated Berry based on the legitimate, nonretaliatory reason that Berry's work performance did not meet Everport's standards. Berry argues he raised a triable issue of fact showing Everport's purported reason was pretext for retaliation against Berry for exercising his right to medical leave under CFRA. Liberally construing the evidence in support of Berry and resolving doubts concerning the evidence in his favor, as we must, Berry has raised a triable issue whether Everport's asserted reason for terminating him was pretext for unlawful retaliation based on Berry's use of CFRA leave.
As Berry contends, the temporal proximity between Berry's medical leave and Everport's termination of Berry raises an inference Everport, through Delgado and Russell, was motivated to terminate Berry because he recently exercised his right to medical leave. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243 ["close temporal proximity between a plaintiff's protected activity and the alleged retaliatory conduct against the plaintiff has been found sufficient to support a prima facie case of causation" with respect the retaliatory animus and the adverse action]; Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 365 [temporal proximity between protected disclosure of information and adverse employment action supported whistleblower retaliation claim].) However, "'temporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action, does not, without more, suffice also to satisfy the [employee's burden] to show a triable issue of fact on whether the employer's articulated reason was untrue and pretextual.'" (Serri, supra, 226 Cal.App.4th at p. 868; accord, Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112.)
To bolster his argument Everport acted with retaliatory animus, Berry challenges Everport's assertion it made the decision to terminate Berry in November 2018 but waited to carry out the termination until after the company Christmas event and then until after Berry returned from medical leave. Berry asserts Everport has not "introduced one shred of corroborating documentary evidence" that it intended to terminate Berry prior to his use of medical leave, and that "[i]f [Everport's] story were true, there should be some written evidence of its intention to terminate [Berry] on December 17."
Berry is correct Everport offered no documentary evidence it decided to terminate Berry in November 2018, although both Delgado in his deposition testimony and Russell in her declaration and deposition testimony averred that the decision to terminate Berry was made in mid-November 2018. In addition, on November 13, 2018 Russell sent an email to Everport president Lang memorializing that Berry's performance fell "below standards" three years in a row and Berry "does not meet [Everport's] standards" despite the fact "he 'tries.'" However, in the email Russell did not expressly recommend that Berry be terminated or recommend any other course of action as to Berry. Further, as Berry notes, it is unusual for a company not to have any paper trail for its planned termination of an employee. Indeed, the record shows Everport's employees regularly communicated by email with one another regarding operations and employee work performance. While it is certainly possible Delgado and Russell proceeded by way of in-person meetings rather than an exchange of emails, Russell's testimony that Everport had no documentation regarding the planned termination of Berry on December 17, 2018 is not entirely consistent with Delgado's testimony that in mid-November Russell prepared a letter regarding Berry that "said termination of employment." A reasonable factfinder could conclude this evidentiary inconsistency casts doubt on the credibility of Russell and Delgado.
Further, as Berry argues, there is a triable issue of fact whether Everport contradicted its own policies and practices in terminating him without first issuing him a final warning. (See Moore v. Regents of University of California, supra, 248 Cal.App.4th at p. 239 ["A defendant's failure to follow its own policies or procedures may . . . provide evidence of pretext."]; accord, Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 45 ["'An employer's failure to follow its own policies and procedures is not illegal in and of itself, but may be evidence of pretext.'"].)
Everport contends its policies did not require it to provide an employee any notice or corrective action prior to termination, relying on its employee handbook. But Everport's written policy, as memorialized in its employee handbook, that Everport reserved the right to terminate employees who "fail[] to meet [Everport's] expectations" with or without issuance of a prior corrective action, is contradicted by Russell's deposition testimony that it was Everport's policy and practice to give an employee with performance issues a corrective action before termination.
Russell and Delgado testified Everport did not require a final warning before termination, but both acknowledged that in practice some employees received final warnings before termination for performance issues. Delgado testified that another Everport employee who was terminated for poor performance received "[w]ritten, verbal warnings, [and a] final warning" before termination. And Russell testified Everport's employees sometimes received a "last and final" warning in the form of a written internal memorandum before termination, though she could not recall how many of the six employee terminations in which she had participated involved final warnings. In addition, in her November 13, 2018 email to Lang (referring to Berry's below-standards performance), Russell noted she was "in the process of drafting the last and final" for the anticipated termination of another employee who "violated security and . . . entry regulations," was "caught sleeping on the job, left prior to the completion of an investigation[,] and has not mastered any of the reporting requirements." Thus, Berry's evidence suggests some Everport employees with serious documented performance issues received final warnings prior to termination. This evidence creates a triable issue whether Everport failed to follow its own prior practices in terminating Berry for poor performance without a final warning.
In addition, the record reflects that Berry's performance rating increased from 2017 (2.0) to 2018 (2.53), and Berry's 2018 evaluation contained positive comments from Berry's supervisor, noting his improvement and that Berry's "confidence and efforts" were "his strength for improvement." The statement by Berry's supervisor that Berry "still has a way to go" could be understood to mean Everport expected Berry would continue to improve his performance to meet company standards, not that he should expect to be terminated. This evidence creates a question of fact whether Berry's performance problems alone motivated his termination. (See Soria, supra, 5 Cal.App.5th at p. 594 ["Generally in cases involving affirmative adverse employment actions, pretext may be demonstrated by showing '"the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge."'"].)
Considering Berry's evidence of pretext together with the immediate temporal proximity between Berry's use of medical leave and Everport's termination of his employment on the day he returned from leave, Berry raised a triable issue of fact whether Everport's proffered reason for terminating him was pretext for retaliation for his exercise of his right to medical leave under CFRA. Accordingly, we reverse the trial court's order granting summary adjudication of Berry's CFRA retaliation claim.
Because we conclude the motion for summary judgment was not properly granted, we analyze each cause of action separately with respect to Berry's motion for summary adjudication.
C. Berry Raised a Triable Issue of Fact as to His CFRA Interference Claim
Under CFRA, it is "an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section." (§ 12945.2, subd. (q).) "A CFRA interference claim '"consists of the following elements: (1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights."'" (Soria, supra, 5 Cal.App.5th at p. 601; accord, Moore v. Regents of University of California, supra, 248 Cal.App.4th at p. 250.) "An interference claim under CFRA does not invoke the burden shifting analysis of the McDonnell Douglas test." (Moore, at p. 250; accord, Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 879.) Under regulations promulgated pursuant to CFRA, "Any violation of CFRA or these implementing regulations constitutes interfering with, restraining, or denying the exercise of rights provided by CFRA." (Cal. Code Regs., tit. 2, § 11094, subd. (a).)
"Employers subject to the CFRA are required to provide notice to their employees of the right to request CFRA [leave]." (Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 879; see Cal. Code Regs., tit. 2, § 11095 ["Every employer covered by the CFRA . . . is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act's provisions . . . ."].) "'Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee . . ., and to give notice of the designation to the employee.'" (Soria, supra, 5 Cal.App.5th at pp. 602-603, quoting Cal. Code Regs., tit. 2, § 11091, subd. (a)(1)(A).) "'Whether notice is sufficient under CFRA is a question of fact.'" (Soria, at p. 603; accord, Bareno, supra, 7 Cal.App.5th at p. 565.)
The CFRA regulations provide further, "Upon granting the CFRA leave, the employer shall inform the employee of its guarantee to reinstate the employee to the same or a comparable position, subject to the defenses permitted by section 11089(d), and shall provide the guarantee in writing upon request of the employee." (Cal. Code Regs., tit. 2, § 11089, subd. (a)(1).) However, "[a]n employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the CFRA leave period. An employer has the burden of proving, by a preponderance of the evidence, that an employee would not otherwise have been employed on the requested reinstatement date in order to deny reinstatement. . . . [T]his burden shall not be satisfied if the employee has been replaced or the employee's position has been restructured to accommodate the employee's absence." (Id., subd. (d)(1); accord, Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 919.)
Berry asserts Everport interfered with his rights under CFRA by failing to reinstate him at the end of his medical leave. Everport does not dispute Berry was entitled to CFRA-protected leave during his medical treatment for pneumonia, but it contends Berry failed to raise a triable issue of fact showing Everport interfered with his rights because Everport planned to terminate Berry irrespective of his use of leave. Berry has the better argument.
When a defendant moves for summary judgment on the ground there is an affirmative defense to the action, the defendant has the initial burden of establishing all the elements of the affirmative defense; once the defendant meets this burden, the burden shifts to the plaintiff to show there is a triable issue of material fact regarding the defense. (Shiver v. Laramee (2018) 24 Cal.App.5th 395, 400; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484; see Code Civ. Proc., § 437c, subds. (o)(2) & (p)(2).) Thus, it was Everport's initial burden on summary judgment to show by a preponderance of the evidence that it would not have employed Berry as of his requested reinstatement date. (Cal. Code Regs., tit. 2, § 11089, subd. (d)(1).) Everport carried this burden by submitting evidence it made its decision to terminate Berry for poor work performance in mid-November 2018 before Berry was hospitalized with pneumonia. Everport then delayed the termination until Berry returned from leave.
However, as discussed, Berry has presented evidence raising a triable issue of fact whether Everport unlawfully retaliated against him for his exercise of his CFRA rights. If Berry proves Everport acted with retaliatory animus in terminating his employment (because of Berry taking leave, not his poor work performance), there is necessarily a question of fact whether Berry would have otherwise been employed on his requested reinstatement date absent his use of protected leave. Thus, the trial court erred in granting summary adjudication of Berry's CFRA interference claim.
Because we reverse the trial court's grant of summary adjudication of Berry's CFRA interference claim based on Everport's failure to reinstate Berry, we do not reach his contentions he raised a triable issue of fact that Everport also interfered with his CFRA rights by failing to designate his medical time off as CFRA-qualifying leave and to notify Berry of the designation.
D. Berry Raised a Triable Issue of Fact as to His FEHA Retaliation Claim
To establish a prima facie case of retaliation under FEHA, a plaintiff must show "(1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz, supra, 36 Cal.4th at p. 1042; accord, Wilkin v. Community Hospital of Monterey Peninsula (2021) 71 Cal.App.5th 806, 827.)
The parties dispute only whether Berry raised a triable issue of fact that Everport's proffered reason for his termination was pretext for retaliatory animus. For the reasons stated as to Berry's CFRA retaliation claim, he has.
On appeal, Everport does not contend Berry failed to raise a triable issue of fact as to the remaining elements necessary to show a prima facie case of retaliation.
E. Berry Raised a Triable Issue of Fact as to His FEHA Disability Discrimination Claim
FEHA prohibits an employer from subjecting an employee to an adverse employment action based on the employee's protected status, including his or her physical disability. (§ 12940, subd. (a).) To prevail on his FEHA discrimination claim, Berry needed to show "'(1) he was a member of a protected class, (2) he . . . was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.'" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067-1068, quoting Guz, supra, 24 Cal.4th at p. 355.)
The parties dispute only whether Berry raised a triable issue of fact that Everport's proffered reason for his termination was pretext for discriminatory animus. For the reasons stated, Berry raised a triable issue of fact.
F. Berry Raised a Triable Issue of Fact as to His Wrongful Termination Claim
"The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm." (Yau v. Allen (2014) 229 Cal.App.4th 144, 154; accord, Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.) "The central assertion of a claim of wrongful termination in violation of public policy is that the employer's motives for terminating the employee are so contrary to fundamental norms that the termination inflicted an injury sounding in tort." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 702; see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 176.) Protected conduct includes exercising a statutory right or privilege. (Yau, at p. 155.) As discussed, Berry raised a triable issue on his claims Everport violated FEHA and CFRA in terminating him. Thus, the trial court erred in granting summary adjudication of Berry's wrongful termination claim.
G. Berry Raised a Triable Issue of Fact as to Whether Everport Failed To Engage in the Interactive Process and To Accommodate Berry's Disability
Under FEHA, it is an unlawful employment practice for an employer "to fail to make reasonable accommodation for the known physical or mental disability of an . . . employee" unless the accommodation would cause "undue hardship" to the employer. (§ 12940, subd. (m)(1); see Green v. State of California (2007) 42 Cal.4th 254, 262; Featherstone, supra, 10 Cal.App.5th at p. 1166.)
The elements of a failure to accommodate claim are "'(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.'" (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969; accord, Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.) The plaintiff bears the burden of showing he or she was able to perform the job with a reasonable accommodation. (Green v. State of California, supra, 42 Cal.4th at p. 262; Lui, at p. 971.)
"An employer's duty to reasonably accommodate an employee's disability is not triggered until the employer knows of the disability." (Featherstone, supra, 10 Cal.App.5th at pp. 1166-1167; accord, Cornell v. Berkeley Tennis Club (2017), 18 Cal.App.5th 908, 938 ["'[t]he employee bears the burden of giving the employer notice of his or her disability'"].)
FEHA also requires the employer to participate in a good faith interactive process with the disabled employee in order "to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee." (§ 12940, subd. (n).) The employer must engage in this process "to explore the alternatives to accommodate the disability. [Citations.] . . . Failure to engage in this process is a separate FEHA violation independent from an employer's failure to provide a reasonable disability accommodation, which is also a FEHA violation." (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424; accord, Soria, supra, 5 Cal.App.5th at p. 600.)
Berry contends Everport failed to accommodate his disability by not reinstating him at the end of his medical leave and accommodating his work restrictions upon his return. Everport argues it accommodated Berry by providing him medical leave for his pneumonia, and Berry was not entitled to any further accommodation because he was lawfully terminated when he returned from leave. There are triable issues of fact as to this claim as well.
Everport does not argue Berry was not qualified to perform the essential functions of the position.
As discussed, Berry raised a triable issue of fact whether Everport acted with unlawful discriminatory or retaliatory animus in terminating Berry based on his disability or use of medical leave. Thus, Everport cannot rely on the fact it lawfully terminated Berry to support its position it was not required to accommodate Berry's disability or engage in the interactive process. As the Court of Appeal explained in Moore v. Regents of University of California, supra, 248 Cal.App.4th at page 243, in rejecting the employer's argument that it had not failed to accommodate the employee because it terminated her before it denied her request for time off for surgery, "there is sufficient evidence of pretext in [the employee's] termination to make summary adjudication of [the employee's] discrimination claim inappropriate, and thus, the termination cannot support the conclusion that [the employer] did not have to address [the employee's] request for accommodation or engage in an interactive process with [the employee]."
Russell testified that on the morning of January 28 Berry gave her the doctor's note temporarily restricting him to modified activity. Before informing Berry he was being terminated, Russell "glanced at [the note] to see whether or not there was anything in that document that would preclude [Everport] from moving forward" with Berry's termination. Russell then proceeded to terminate Berry and only read the doctor's note "closely" after the meeting concluded. On these facts, there is a triable issue of fact whether Everport failed to accommodate Berry's request for work restrictions and failed to engage in the interactive process.
Everport also relies on Berry's deposition testimony that Everport never denied him a requested accommodation. But Berry only testified he did not recall requesting an accommodation, while Russell acknowledged in her declaration and deposition testimony she received Berry's request for modified activity immediately before Everport effectively denied Berry's request by terminating him.
DISPOSITION
The judgment is reversed. Berry is to recover his costs on appeal.
We concur: PERLUSS, P. J., SEGAL, J.