Summary
rejecting FEHA retaliation claim because employee never complained to anyone that she felt harassed due to a disability and "[m]ore importantly, insufficient evidence showed Taco Bell was on notice that she had been diagnosed with . . . any condition that might be a qualified disability under FEHA and that her leaves of absence were taken because of such a disability," and "[c]onsequently, insufficient evidence supported a finding of a causal link, on the one hand, between Taco Bell's decisions to place [the employee] on a [performance improvement plan] and ultimately terminate her employment and, on the other hand, her engaging in protected activity."
Summary of this case from Velasquez v. Constellation Brands US Operations, Inc.Opinion
G052170
04-05-2018
REYNA MARTINEZ, Plaintiff and Appellant, v. TACO BELL CORP., Defendant and Respondent.
Law Office of Tamara S. Freeze, Tamara S. Freeze and Robert A. Odell for Plaintiff and Appellant. Wesierski & Zurek, Christopher P. Wesierski and Laura J. Barns for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00640924) OPINION Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed. Law Office of Tamara S. Freeze, Tamara S. Freeze and Robert A. Odell for Plaintiff and Appellant. Wesierski & Zurek, Christopher P. Wesierski and Laura J. Barns for Defendant and Respondent.
* * *
INTRODUCTION
Reyna Martinez sued her former employer Taco Bell Corp. (Taco Bell) for violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), violations of the California Family Rights Act (CFRA) (§§ 12945.1, 12945.2), wrongful employment termination in violation of public policy, and violation of California's unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.). Martinez's claims went to a jury trial and the trial court granted Taco Bell's motions for entry of judgment of nonsuit after the presentation of Martinez's case-in-chief. Martinez appeals from the judgment entered in Taco Bell's favor on the ground Taco Bell's nonsuit motions were granted in error.
All further statutory references are to the Government Code unless otherwise specified.
We affirm. Judgment of nonsuit was properly entered because Martinez failed to produce sufficient evidence to support a verdict in her favor on any of her claims.
PROCEDURAL HISTORY
Martinez filed a complaint against Taco Bell containing claims based on violations of FEHA and CFRA. The FEHA claims alleged in the complaint included disability discrimination (§ 12940, subd. (a)); failure to accommodate a disability (id., subd. (m)); failure to engage in the interactive process (id., subd. (n)); and retaliation for exercising FEHA rights (id., subd. (h)). It also alleged a violation of the UCL based on the FEHA violations underlying the above cited causes of action.
The complaint alleged two claims based on violations of the CFRA: interference with the CFRA (§ 12945.2, subd. (t)) and retaliation for exercising rights under the CFRA (id., subd. (l)). The complaint also alleged a claim for wrongful employment termination in violation of public policy based on violations of both FEHA and CFRA.
Taco Bell filed an answer in which it alleged several affirmative defenses, including that the California Workers' Compensation Appeals Board had exclusive jurisdiction over Martinez's claims pursuant to Labor Code section 3601 et seq. Taco Bell filed a motion for summary judgment or summary adjudication on the ground Martinez's claims were barred by the exclusivity of the workers' compensation law. The trial court denied the motion as to all claims on several grounds, including procedural defects in the motion. The trial court rejected Taco Bell's argument that it was entitled to summary judgment as to its workers' compensation exclusivity affirmative defense, stating in its minute order: "Plaintiff argues correctly that the California Supreme Court has squarely held that a plaintiff's common law claims and FEHA claims . . . are not barred by the workers' compensation remedy. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156.)"
Martinez's claims were tried to a jury. After Martinez rested her case-in-chief, Taco Bell filed two motions for entry of a judgment of nonsuit under Code of Civil Procedure section 581c, subdivision (a). Taco Bell's first motion requested that judgment of nonsuit be entered on all of Martinez's claims on the ground she failed to produce sufficient evidence to support a jury verdict in her favor on any of her claims. In the second motion, Taco Bell moved for entry of a judgment of nonsuit "as Plaintiff's claimed injuries are covered by workers' compensation only and Plaintiff cannot recover on her claim for punitive damages."
The trial court granted both motions in their entirety and judgment was entered in Taco Bell's favor. Martinez appealed.
Because we affirm entry of judgment of nonsuit based on the insufficiency of the evidence supporting Martinez's claims, we do not address the merit of the second motion for entry of judgment of nonsuit.
FACTS
In light of the applicable standard of review following the grant of a motion for judgment of nonsuit discussed post, our summary of facts accepts as true the evidence most favorable to Martinez.
In 2002, Taco Bell hired Martinez as a lab technician. In 2007, she was promoted to the position of a lab coordinator in the quality assurance department. She received recognition awards during her employment at Taco Bell—the bulk of which she received before 2008. She received "On Target" and "Above Target" performance reviews.
In February 2010, Martinez began reporting to a new supervisor, Christine Gallegos. Within a few months, Martinez felt that Gallegos was micromanaging her. On September 3, 2010, Anna Ohki, Taco Bell's Chief Innovation Food Officer, e-mailed Gallegos's supervisor, Kathleen Ensley, asking why Martinez had not received more responsibilities and had not "step[ped] up." Ohki expressed her expectation that Martinez would be stepping up her leadership given that she had received an increase in salary. Ensley told Ohki that Gallegos was working with Martinez and training her on what was expected of her. Ensley forwarded the e-mail to Gallegos because she wanted Gallegos to be aware of what the executive team expected from Martinez and told Gallegos to take action.
At some point in 2010, Martinez began feeling that she had too much work. Although she was relieved of certain significant job responsibilities, she was given other responsibilities. The amount of work she had to do made her feel tired, nervous, and stressed, and caused her to have trouble sleeping. She testified she was working more than eight hours a day and had too much to do. She said she "couldn't keep up."
At the beginning of 2011, Martinez went to the doctor and took two or three sick days in January or February 2011. On March 15, 2011, Martinez saw a doctor about stress related health issues. The doctor prescribed her anti-depressants, sleep medication, and anti-anxiety medication, and referred her to a psychiatrist. Martinez was off work for three days. Martinez gave Taco Bell the work status report provided by her doctor approving the days off work; the report did not reveal her diagnosis. The record does not show that Martinez had any restrictions upon returning to work.
On March 30, Martinez saw a licensed clinical social worker whose notes stated in part: "Patient [reports] that she has been confronted with stress at work and wants to feel better. Patient reports that she has been crying a lot, headaches, sleepy, and noticed she stopped smiling 1 month ago. Patient attributes her sadness to the manner her boss treats her. Patient reports that her boss confronted her in 12/2010 re: some data entry and overtime. Patient reports that her boss was sarcastic when she requested some overtime compensation. Patient is presently affected by the manner her boss responds and gives her feedback. Patient enjoys working and presently feels unappreciated at work." The notes further stated that Martinez "denied experiencing any history of depression or work related issues" and that "her symptoms have worsened in the past month." The notes reflected Martinez had some form of depression and set forth the following treatment plan: "Patient will increase self care as evidenced by listening to music when driving home from work."
After she returned to work, Martinez spoke with Gallegos and told her that she had seen a doctor who had proscribed her medication including anti-depressants. She told Gallegos that she was having a lot of stress working and needed help because it was "too much for [her], too much to do." Gallegos explained that help was not possible because the quality assurance budget was short.
Although Gallegos began micromanaging Martinez "months" after she became Martinez's supervisor in 2010, Martinez testified that she noticed a change in Gallegos after Martinez started taking sick days in 2011 in the form of micromanaging her, checking on what she was doing, failing to give her support, and staring at her.
Martinez complained to Ensley and told her she was under too much stress, had seen a doctor, was taking anti-depressants, and was experiencing headaches, nausea, and difficulty sleeping. She further complained that Gallegos was harassing her and closely monitoring her. Ensley told Martinez to go back and talk to Gallegos.
Martinez went back to Gallegos and told her she was having a lot of stress and needed help and requested an assistant. Martinez also spoke with Quality Assurance Director Alex Malone and told him that she had a lot of stress, had gone to the doctor before, and was taking anti-depressants. She told him that Gallegos's attitude toward her had changed after Martinez took sick days. She said she needed help. Malone told Martinez to give Gallegos a second chance. At some point in time, Martinez was offered the assistance of an intern. Martinez felt that the intern was of limited use to her and was "not there to absorb the amount of work that [she] was doing."
In September 2011, Martinez told Gallegos that she would go to her sister and start crying about the stress and anxiety she was experiencing. She testified she told Gallegos she did not want to end up like she was in March when she had to see a psychiatrist (our record does not show she saw a psychiatrist). Martinez also testified that she did not remember whether she ever told anyone at Taco Bell that she had been referred to a psychiatrist. Gallegos listened to her but did not say anything. Martinez went back to Malone and told him things were getting worse and that Gallegos was still harassing her. Malone did not say anything.
At an unspecified time, Gallegos suggested Martinez was going to the doctors too much. Martinez interpreted that suggestion as "kind of making fun of [her], like she didn't believe [her]." Martinez visited a doctor's office on several occasions on work days that did not have to do with her feeling stress or anxiety. She had appointments for fingernail fungus, colds and flu, food poisoning, and obstetrical/gynecological exams. She missed work to attend those appointments. Martinez testified that her missing so many days of work did not cause her to fall behind.
Gallegos began tracking Martinez's sick days and time she was missing in the office. Martinez "had been in and out of the office quite a bit with not just sick days, but being late, leaving early, [and] not being able to find her." Malone sent an e-mail to Gallegos on November 4, 2011 asking to discuss where Martinez "is at with number of sick days this year . . . concerning."
In November 2011, Martinez felt weak and down. She had chills and headache, felt sick to her stomach, and had a fever. On November 14, she went to see a doctor. The doctor put her off work for three days until November 16. On November 16, however, Martinez went to the emergency room and saw a doctor who put her off work until November 21. She was diagnosed with an upper respiratory infection and/or a viral condition (a cold). She gave a doctor's note about her absence from work to Taco Bell which did not communicate any diagnosis. She also communicated directly with Gallegos via e-mail informing her that she would be out of work until November 21.
Martinez filed a state disability claim form in connection with the time she was out of work in November 2011. Gallegos suggested Martinez file her claim with Taco Bell's third party disability benefit provider instead of filing a disability benefits claim with the state. Martinez did so and withdrew her request for benefits with the state. Martinez thanked Gallegos for straightening out the disability claim issue for her.
Martinez returned to work on November 22, 2011. No later than December 2, Gallegos began working on placing Martinez on a performance improvement plan (PIP) for 60 days due to concerns with her work performance.
In a letter dated January 19, 2012, the third party disability administrator informed Martinez that Martinez's leave of absence would be counted against her FMLA and CFRA entitlement. (She shared that information with Gallegos on February 18, 2012.)
On January 20, 2012, Gallegos called Martinez into Ensley's office. Martinez was told that she was being placed on PIP for 60 days due to concerns with her work performance. The PIP document listed performance issues, which included a failure to complete certain tasks, the perception of her being unapproachable, her lack of engagement with and communication on projects, and her taking insufficient ownership and initiative. Martinez disagreed with each of the performance issues raised in the PIP.
In February 2012, she received a performance review in which she was given a below target performance rating; the performance review was a "mirror" of the PIP. At the end of February, she complained to senior human resources manager Bailey Weinberg and discussed how she disagreed with the PIP. She also complained that Gallegos stared at her and made mean faces like she was angry. The following day, she complained to Human Resources Director Kevin Weisman and told him she had a lot of stress and anxiety over what was "happening for over a year," how Gallegos made fun of the days she was going to the doctor, and that she felt the PIP was in retaliation for her complaints.
On March 6, Gallegos sent Weinberg an e-mail stating that it appeared Martinez would be unable to successfully complete the PIP. She wrote: "As we have discussed in the past there seems to be more of a 'check the box' approach versus complete the task and meet the objective. In a couple of areas of the plan the tasks are being completed while in other areas we have fallen very short and continue to miss deadlines associated with the expectation." Gallegos recommended "taking further action" and to "draw up the paperwork." They agreed to discuss this issue the following day.
On March 8, Martinez went to see Dr. David Chau Ming Cheng, M.D., which resulted in her being placed out of work through March 17. Cheng's notes reflected that Martinez reported that she had been under significant job stress, similar to the stress she experienced a year prior. His note stated the "date of onset" of her current condition as February 20, 2012, based on her report. His note further stated: "Patient feels that she has [a]n overly demanding and micromanaging boss who is basically about to fire her. Patient states that her stress symptoms are a depressed mood, insomnia, decreased energy and interest, GI distress and headache and neck pain. Patient states that she is interested in medications and time off for her present situation." He diagnosed her with "major depression recurrent" and "stress reaction acute" and advised her that if she needed more time off work, it would need to be authorized by the psychiatry department. He prescribed Prozac and Ativan, which she had been prescribed a year before.
Taco Bell did not receive Cheng's notes or other information about Martinez's health except that it was informed about the time period the doctor placed her off work. Weinberg testified that Taco Bell had no information that Martinez's absence was because of a disability. She explained that Taco Bell does not question doctors' notes requesting time off. Martinez saw a therapist in the psychiatry department who placed her off work from March 19 until March 25, 2012. Psychiatrist Anh Tran placed her off work from March 19 until April 11, and then extended the leave to May 10, and then again extended the leave to June 11. Martinez's FMLA and CFRA leave entitlement was exhausted on May 20. Martinez was approved for short term disability benefits through June 11.
During her leave of absence, one of her therapists suggested that she look for a new job. Martinez testified that she loved Taco Bell and wanted to be with the company for a long time, so "why should I go for another job? When I talked to Alex [Malone] the second time I told him if I can get another manager instead." A health care provider advised Martinez to go out and look for work; Martinez responded that she was not ready to look for a job and wanted to go on vacation and spend time with her friend.
She returned to work on June 12, 2012. That morning, she was informed she was no longer employed by Taco Bell. She was paid through June 23, 2012. While the record shows Martinez regularly offered Taco Bell health providers' notes authorizing her absences from work, it does not show that any employee of Taco Bell ever received any information regarding the reason for any of Martinez's absences from work, or that any health care professional had given Martinez work restrictions or otherwise suggested Martinez be provided any form of work accommodation. Martinez testified she never told anyone that she had been harassed because of a disability.
At trial, Martinez was asked: "It is true, ma'am, isn't it, you were not able to keep up on the job?" Martinez answered: "It was too much for me. It was too much for one person."
DISCUSSION
I.
STANDARD OF REVIEW
We review an order granting nonsuit de novo, using the same standard as the trial court. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) "A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by the plaintiff is insufficient to permit a jury to find in the plaintiff's favor." (Ibid.) The court must not weigh the evidence or consider witness credibility, must accept as true the evidence most favorable to the plaintiff, must disregard conflicting evidence, and must draw every reasonable inference—and resolve all presumptions, conflicts, and doubts—in the plaintiff's favor. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214-1215.) Evidence is legally insufficient "when no substantial evidence exists tending to prove each element of the plaintiff's claim." (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 263; Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750-751.)
We review de novo issues dealing solely with statutory interpretation and application of a statute to undisputed facts. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
II.
DISABILITY DISCRIMINATION CLAIM UNDER FEHA.
For the reasons we explain, we conclude Martinez did not produce sufficient evidence to support a verdict in her favor on her mental disability discrimination claim.
Under FEHA, it is unlawful "[f]or an employer . . . because of . . . mental disability . . . to discriminate against [an employee] . . . in terms, conditions, or privileges of employment." (§ 12940, subd. (a).) A "'[m]ental disability"' within the meaning of FEHA includes "any mental or psychological disorder . . ., such as . . . emotional or mental illness . . . that limits a major life activity." (§ 12926, subd. (j)(1).) The term "'[m]ajor life activities'" is "broadly construed and includes physical, mental, and social activities and working" (id., subd. (j)(1)(C)); "limits" means the achievement of a major life activity is made difficult (id., subd. (j)(1)(A) & (B)).
"To establish a prima facie case of mental disability discrimination under FEHA, a plaintiff must show the following elements: (1) She suffers from a mental disability; (2) she is otherwise qualified to do the job with or without reasonable accommodation; and (3) she was subjected to an adverse employment action because of the disability." (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84.)
We first address whether Martinez produced sufficient evidence that she had a disability. The record is replete with evidence that Martinez's claimed disability is based on the stress, anxiety, and depression she experienced as a result of Gallegos's supervision. In a case that was decided two months after trial, Higgins-Williams v. Sutter Medical Foundation, supra, 237 Cal.App.4th 78, the appellate court held: "An employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a disability under FEHA." (Id. at p. 84; see Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 628 ["the inability to . . . work under a particular supervisor, does not constitute a qualified disability" under FEHA], overruled on another ground in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)
Section 12926.1, subdivision (c), however, provides that the physical and mental disabilities within the meaning of FEHA include "clinical depression." (See Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1592-1593 [cases held that depression and its related manifestations can meet the definition of disability under antidiscrimination laws].) The statute does not provide further clarification on what constitutes clinical depression.
Even were we to assume that Martinez's depression diagnoses in March 2011 and in March 2012 constituted sufficient evidence to prove she had a mental disability within the meaning of FEHA, she admitted that she was unable to perform the essential functions of her job, with or without reasonable accommodation. Martinez unequivocally testified that the job was just too much for her. She admitted Taco Bell provided her requested accommodation of time off work and the assistance of an intern (although the intern provided her less help than she would have liked). Martinez does not address this element in her appellate briefs much less argue that there was a reasonable accommodation that would have enabled her to perform the essential functions of the job.
Even were we to assume Martinez produced sufficient evidence to show she had a mental disability and was able to perform the essential functions of her position with or without reasonable accommodation, she failed to produce sufficient evidence that she suffered an adverse employment action because of that disability. There is no evidence Martinez ever provided Taco Bell with any information that would enable it to determine that she had a disability or that she had any limitations due to a disability (it did not appear that any health care provider imposed any restrictions on Martinez upon being released to work). The work status forms provided by her health care providers did not contain sufficient information to put Taco Bell on notice that plaintiff had a disability. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1249.)
In Avila, supra, 165 Cal.App.4th at page 1248, the appellate court stated: "[T]o show that [the employer] acted with discriminatory intent, plaintiff was required to produce evidence that the [employer's] employees who decided to discharge him knew of his disability. [Citation.] 'While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. "Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA]."'"
Here, Martinez produced evidence that in 2011 and 2012 she saw health care providers because she was not feeling well. But, as noted in Avila, supra, 165 Cal.App.4th at page 1249, "'[n]ot every illness qualifies as [a] disability.'" (See Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237 [employer's knowledge that employee "had taken a substantial amount of leave for medical appointments" was insufficient to establish employer's knowledge of disability]; see also Avila, supra, 165 Cal.App.4th at p. 1249 [information that employee had been hospitalized was insufficient to put the employer on notice that the employee was suffering from a qualified disability].) Evidence was produced that Martinez was provided with documentation regarding her diagnosis and treatment plan, but that she opted to provide Taco Bell only with health providers' notes authorizing leaves of absence.
Martinez told her Taco Bell supervisors that she was stressed because of Gallegos's supervision. But as discussed ante, her inability to work for Gallegos because it caused her stress and anxiety does not constitute a disability under FEHA. Martinez did tell Gallegos and Malone that she had been prescribed anti-depressant medication, but that alone does not prove that she had been diagnosed with clinical depression so as to place Taco Bell on notice that she suffered a disability.
At oral argument, Martinez argued that Taco Bell regarded her as disabled as evidenced by their granting her leaves from work and benefits. Evidence that Taco Bell granted all of her requests for time off work and that the third party administrator granted her request for benefits during her lengthy leaves of absence, does not establish Taco Bell's knowledge that Martinez had a disability under FEHA. Martinez does not cite evidence showing the third party administrator's criteria for determining whether to grant such benefits, much less how those criteria align with FEHA's definition of disability. The record does not support a finding Gallegos, or any other decision maker at Taco Bell, regarded Martinez as disabled within the meaning of FEHA.
In her appellate briefs, Martinez argues that Taco Bell's policy on the Americans with Disabilities Act recognizes that stress related illness may be considered a disability by the company. Taco Bell's policy does not modify the statutory requirements and definitions of FEHA. Martinez did not pursue a breach of contract based on that policy in this action.
Insufficient evidence therefore supported Martinez's claim for disability discrimination.
III.
RETALIATION CLAIM UNDER FEHA
FEHA provides it is an unlawful employment practice "[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint . . . under this part." (§ 12940, subd. (h).) "To establish a prima facie case of retaliation under the 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.'" (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1020.)
In her opening brief, Martinez argues she engaged in protected activity in the form of taking a medical leave of absence in March 2011 for which she was harassed by Gallegos. She also argues she complained many times about the harassment and suffered adverse employment actions in the form of the PIP and the termination of her employment as a result of her complaints.
Martinez failed to produce sufficient evidence in support of her retaliation claim. Martinez testified that she never complained to anyone at Taco Bell that she felt harassed because of a disability. More importantly, insufficient evidence showed Taco Bell was on notice that she had been diagnosed with depression or any other condition that might be a qualified disability under FEHA and that her leaves of absence were taken because of such a disability. Consequently, insufficient evidence supported a finding of a causal link, on the one hand, between Taco Bell's decisions to place Martinez on a PIP and ultimately terminate her employment and, on the other hand, her engaging in protected activity.
IV.
CLAIM FOR FAILURE TO ACCOMMODATE A DISABILITY
"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." (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at pp. 1009-1010.) Even were we to assume Martinez had a disability under FEHA, Martinez failed to show that she was qualified to perform the essential functions of the position with reasonable accommodation. Martinez testified that she was unable to do the job because she thought it was too much work for anyone to do. Martinez was provided with all the time off work she had requested and also with the assistance of an intern. Furthermore, Taco Bell's lack of awareness that plaintiff had a disability or any work restrictions or limitations necessarily vitiates its responsibility to accommodate any such disability. In any event, the record does not show Martinez was denied any request for time off work.
V.
CLAIM FOR FAILURE TO ENGAGE IN INTERACTIVE PROCESS UNDER FEHA
Martinez also alleged a claim that Taco Bell failed to engage in the interactive process required by section 12940, subdivision (n). "'The "interactive process" required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.'" (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1013.) "The interactive process imposes burdens on both the employer and employee. The employee must initiate the process unless the disability and resulting limitations are obvious. 'Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, . . . the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.'" (Ibid.)
This claim is not supported by the evidence for the same reasons discussed ante. Assuming Martinez had a disability within the meaning of FEHA, it was not open and obvious. Martinez did not provide Taco Bell information showing that she suffered a disability or that she had limitations as a result of a disability. She did not otherwise initiate the interactive process. Taco Bell's obligation to engage in the interactive process, therefore, was never triggered.
VI.
CLAIM FOR UNFAIR COMPETITION
In her complaint, Martinez alleged Taco Bell "engaged in a practice of unfair competition, as defined by California Business & Professions Code section 17200 et seq., including by discriminating against Plaintiff on the basis of her disability, failing to engage in interactive process, failing to provide her with reasonable accommodation and by retaliating against her" in violation of FEHA. Martinez's claim for unfair competition fails because she did not produce sufficient evidence to show Taco Bell violated FEHA.
VII.
CLAIMS FOR INTERFERENCE WITH RIGHTS UNDER THE CFRA AND RETALIATION FOR
EXERCISING RIGHTS UNDER THE CFRA.
"CFRA, the California corollary to the federal Family and Medical Leave Act of 1993 (29 U.S.C. §§ 2601-2654; FMLA), 'is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.'" (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 233.) "'Violations of . . . CFRA generally fall into two types of claims: (1) "interference" claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) "retaliation" claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.' [Citation.] The statutory authority for an 'interference' claim arises from section 12945.2, subdivision (t), which makes it unlawful for an employer 'to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right' provided by CFRA. The statutory authority for a 'retaliation' claim arises from section 12945.2, subdivision (l)(1), which makes it unlawful to retaliate against any individual because of his or her exercise of the right to family care or medical leave as provided by CFRA." (Ibid.)
"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.'" (Moore v. Regents of University of California, supra, 248 Cal.App.4th at p. 250.) "The elements of a cause of action for retaliation in violation of CFRA are '"(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised 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 her exercise of her right to CFRA [leave]."'" (Id. at p. 248.)
Martinez's claims for interference with CFRA rights and retaliation for exercising CFRA rights are based on allegations that after her first leave of absence, designated as CFRA leave, she was placed on a PIP, and after her second leave of absence, designated as CFRA leave, her employment was terminated.
The evidence shows Gallegos had already begun to draft the PIP document in December 2011, months before she learned in February 2012 that Martinez's November 2011 leave of absence would be designated as CFRA leave. Therefore, Martinez has failed to produce evidence showing a causal connection between her taking CFRA leave in November 2011 and her being placed on a PIP.
As for the decision to terminate Martinez's employment, Weinberg and Gallegos had already begun planning the termination of Martinez's employment for poor performance in early March 2012, before she went out on her second leave of absence designated as CFRA leave on March 8. "[T]he CFRA's reinstatement right only applies when an employee returns to work on or before the expiration of the 12-week protected leave." (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 488.) Taco Bell afforded Martinez the full 12 workweeks of leave to which she was entitled under the CFRA. She did not return to work at the end of this period on May 20, but remained on leave until June 11. She produced no evidence showing that her employment was terminated because she exercised the right to take CFRA leave. The interference with her CFRA rights claim and the claim for retaliation for exercising rights under the CFRA therefore fail as a matter of law. (Id. at p. 490-493.)
VIII.
CLAIM FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
The elements of wrongful termination in violation of public policy are: (1) an employer-employee relationship; (2) a termination or other adverse employment action; (3) the termination violated a public policy; and (4) the termination caused the plaintiff's damages. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426, fn. 8.) "With regard to the requisite policy underlying a wrongful termination in violation of public policy claim, the Supreme Court 'established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be "public" in the sense that it "inures to the benefit of the public" rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be "fundamental" and "substantial."'" (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1139-1140.)
Martinez's complaint alleged that her claim for wrongful termination in violation of public policy was based on the same violations of FEHA and CFRA underlying her other claims. As we have explained, Martinez's claims for violation of FEHA and CFRA fail; therefore, her claim for wrongful termination in violation of public policy also fails.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.