Opinion
C074938
10-16-2017
KELLY TEVIS, Plaintiff and Appellant, v. SPARE TIME, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34201100116411CUWTGDS) OPINION ON REHEARING
The trial court granted summary adjudication of all 10 causes of action in plaintiff Kelly Tevis's complaint against her former employer, Spare Time, Inc. (Spare Time), and the general manager of the company's Natomas facility, Joe Rose (Rose). We affirm the summary adjudication of causes of action arising from Rose's alleged sexual harassment, assault, and intentional infliction of emotional distress. The claims are barred by the statute of limitations, by an admission by plaintiff, and by a failure of proof of intentional tortious conduct. We reverse, however, a single cause of action for disability discrimination, and four causes of action arising from Spare Time's alleged failure to engage in the interactive process in good faith, failure to provide a reasonable accommodation, retaliation, and wrongful termination; triable issues of material fact remain as to those causes of action.
Summary judgments are only designed to dispose of claims that clearly lack merit, though defendants, including employers seeking an early dismissal of an employee's lawsuit before trial, are motivated to disregard nuance, simplify complexity and portray potentially meritorious claims as utterly without redemption. Here a careful reading of the entire record compels us to reject the employer's central arguments on appeal that plaintiff's admissions during her deposition testimony, and her failure to request and identify a reasonable accommodation, doom her claims for reasonable accommodation and failure to engage in the interactive process.
The record is anything but clear or simple. This is not a typical claim of disability discrimination in which the disability stems from causes unrelated to actions by the employer, and a beneficent employer is asked to accommodate an employee's regrettable misfortune beyond the employer's control. What transpired in the mere four months from when Rose's alleged harassment culminated in plaintiff's diagnosis of severe depression and anxiety and Spare Time fired her is messy and unclear. We therefore reject the smooth gloss Spare Time attributes to the plaintiff's deposition testimony and acknowledge the thorny and unusual legal issues that arise when an employer's actions or failure to act assertedly causes the employee's disability.
Plaintiff's claims for sexual harassment may not be actionable for procedural reasons but the allegedly hostile workplace environment in which Spare Time expected plaintiff to proceed as any other disabled employee without removing her from her harasser cannot be ignored.
We will examine all of plaintiff's deposition testimony in context and not just the isolated answers Spare Time highlights and will examine the entire record in light of established precedent, and will remain mindful that all doubts must be resolved in favor of a plaintiff resisting summary judgment. A case is not meritless as long as there remain triable issues of material fact. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 370-371.)
Allegations of Sexual Harassment and Violence
Plaintiff alleges that Rose was violent, crass, and vulgar, and used sexually inappropriate language in the workplace. There is no dispute that plaintiff had been a rising star at Spare Time's fitness centers before Rose was transferred to the Natomas facility in the summer of 2007. What is in dispute is what led to plaintiff's medical leave in April of 2010, how and what the parties communicated during her leave, and why she was fired in August of 2010. Because this is an appeal of a summary judgment, the facts are presented in the light most favorable to plaintiff. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1005 (Scotch).)
Six months after she was hired as an assistant marketing director at Spare Time's Lodi facility, Spare Time promoted plaintiff to be a marketing director at the Natomas Racquet Club. In 2006 and 2007 she was selected as the "Rookie of the Year" and "Marketing Director of the Year."
Plaintiff alleges Rose began exhibiting inappropriate behavior a few months after his arrival. By mid-2008, she claims he was sexually harassing her. Although plaintiff testified in her deposition that it was difficult to remember when the many incidents occurred, she recalled at least three before March 2009. She alleges that Rose shared stories about (1) training Muslim women and how he was "between their legs and in their chest" even though their husbands would disapprove, (2) a man blow-drying his penis in the locker room, and (3) girls wearing their bathing suit bottoms in the club. He told plaintiff that as the general manager he could waive the club rules, and he did not have a problem if they wanted to run around like that. Plaintiff reported Rose stated, "I don't give an f that they cover, I'm the GM. If I want to see it, I want to see it."
On or about March 10, 2009, Rose went into a violent rage, slamming doors, screaming obscenities, and pacing the office before picking up an office chair and slamming it into the ground until it was in pieces. He left the club but later stormed into plaintiff's office and harassed her. Alone in her office, she tried to assure Rose that everything was going to be okay.
Plaintiff went home and called Dave Anderson, the president of Spare Time, to complain about Rose's violent outbursts and sexually inappropriate behavior. She also complained to Gavin Russo, the marketing supervisor. On March 16 Mark Tappan, the director of operations, met with plaintiff and two of her female coworkers to discuss Rose's behavior. They each recounted a few stories about Rose's behavior during the lunch meeting. They told Tappan that Rose had exhibited a pattern of violent outbursts and had thrown reams of paper across the office, hitting walls, desks, and ceiling fans, and barely missing staff members.
Plaintiff reported that Rose's behavior improved for a few months, particularly during the time period when the owner's daughter was working on-site. But after the owner's daughter went on maternity leave, Rose's behavior deteriorated once again. Plaintiff warned Russo that Rose was having problems and was "going to blow." Russo assured plaintiff he would take action, but nothing changed.
Although plaintiff could not piece together a precise chronology, she recounted a number of incidents that thereafter ensued. On one occasion, Rose "stretched out" an employee's leg after she pulled a muscle and told the employee and a coworker that the employee was "ready for a man tonight." Rose found pornography in a locker, took it home, and thought it was really funny that his wife became angry. According to plaintiff, as a female employee was bending over, Rose commented that she "should have just asked [him] for a raise."
Rose constantly touched, adjusted, and rubbed his crotch in plaintiff's presence. Plaintiff believed that his behavior reflected "certain control over women, and I think that it's in the form of intimidation and power." It was embarrassing to her and she did not know what to say. Rose recounted endless stories about his past sexual adventures to plaintiff, including the orgies that were performed for him while he played in a band, the abundance of sex he enjoyed while he was stationed in Thailand, and how on one occasion a young woman wanted to "fuck him" in the back of his truck, even after he showed her the baby car seats that would be in the way.
Plaintiff heard Rose repeatedly refer to female employees as "bitches," particularly when he was angry. At least twice, he told plaintiff to "call the bitches and tell them they better get their fuckin' asses in here." When new computer programs were being installed at the club, Rose lashed out and said he was going to "kick that little fat fuck-in [sic] homosexual Craig's ass." He referred to the same man as a "fucking faggot."
In addition to his sexually charged stories and profanities, Rose flew into occasional fits of rage. Plaintiff saw Rose slam a young man against a wall. When plaintiff was redesigning her office, Rose became frustrated, called her a "bitch" in her absence, and hit her door. Plaintiff heard about his outburst and was afraid to return to the office that day. On another occasion, Rose told a group of female employees, including plaintiff, "we needed to get our fat asses on the treadmills and stuff. And so I [Tevis] am bigger than most of the girls, and so I already started getting nervous." According to plaintiff, Rose said, "shut the fuck up," and then "shut the fuck up again."
In early April 2010 Rose was out of the office attending a conference. When he returned on April 12, plaintiff sent him an e-mail in which she mentioned that she was happy to have him back.
On Friday, April 16, Rose had another tirade at a team meeting during which he told plaintiff to "shut the fuck up." He was about two feet from her face as he berated her, giving her an anxiety attack. At her deposition, she testified she sat there with extreme pressure in her chest, fearful that he might strike her. On Monday morning, April 19, her doctor diagnosed her with severe depression and anxiety, and put her on a medical leave of absence. She testified that her doctor opined she would be unable to return to work as long as Rose was there. Spare Time insists that neither plaintiff nor her doctor ever informed anyone at the club she could not return to work for Rose. Plaintiff faxed Anna Sierra, the human resources manager, a written request for a two-and-a-half-week leave accompanied by a doctor's note.
What Transpired After Plaintiff Became Unable to Work
The following day, April 20, Rose called plaintiff at home. He had never called her at home before. He left a message stating, "call me when you can." She felt threatened, and because she had communicated the need for a medical leave with human relations, she did not return his call.
On April 21 Sierra mailed information to plaintiff regarding the Family and Medical Leave Act of 1993 (FMLA; 29 U.S.C. § 2601 et seq.) and workers' compensation. On April 26 plaintiff filled out the workers' compensation incident report wherein she described Rose's violent fits of rage, the pervasive nature of his sexual innuendos, the stress incident that led to her anxiety attack, and her inability to come to work because she did not feel safe and her health had deteriorated. According to plaintiff, "His threatening behavior was due to sexual harassment." She identified 12 witnesses. She believed she had submitted all that was required of her.
Nevertheless, on May 13 plaintiff sent Sierra an e-mail entitled "Formal Complaint towards Joe Rose," in which she described a pattern of "displaying signs of rage and bullying, making slurs and derogatory comments about race, sexual activities and sexual experiences." She complained that after a brief period of improvement, Rose "again started displaying and creating the same intimidating, hostile work environment." "Over the next few months Joe Rose became bolder regarding his conduct. During directors' meetings, and at other times, he slammed his fist into doors, kicked desks, used excessive profanity, bullied and intimidated to the point where I feared for my safety. Joe Rose also continued using derogatory comments regarding race, sexual orientation, and sexual activities that were offensive." In sum, "Joe Rose's consistent verbal aggression, intimidation, severe abusive and offensive actions causes a sense of dread and fear."
In reply, Sierra assured plaintiff that Spare Time had undertaken an investigation. While the investigation was underway, plaintiff was granted additional leaves of absence. Tappan, the director of operations who had met with plaintiff and two other female employees in March 2009 to give them the opportunity to discuss Rose's inappropriate behavior at work, conducted the investigation on behalf of Spare Time. He reported that the other two employees did not observe the same deterioration in Rose's behavior and concluded that plaintiff's complaints did not have merit. He believed most of her complaints regarded behavior that had occurred a year earlier and before he met with Rose. Plaintiff alleges that Tappan did not interview her and that none of the other 10 witnesses she identified in her incident report were ever interviewed during the investigation.
On July 6 Sierra sent plaintiff a letter informing her that her leave of absence had been designated as FMLA/CFRA (California Family Rights Act; Gov. Code, § 12945.2) leave which would expire at the end of 12 weeks on July 12. On July 9 plaintiff sought clarification regarding the FMLA designation and outlined her progress with her workers' compensation claim.
But on July 7 Sierra notified plaintiff that the investigation was completed, her complaint had no merit, and she was expected to continue to report to Rose. Sierra wrote: "We expect you two to work together to achieve a cohesive and productive work environment, and we expect respectful behavior and courteous treatment by and among all [Spare Time] employees." Plaintiff was instructed to keep the details of the investigation confidential, and she was warned she would incur disciplinary action if she breached the confidence. Plaintiff alleges that Rose was not put under similar restrictions. In her view, the investigation was not complete since Tappan had failed to interview the majority of the percipient witnesses. In the July 7 letter, Sierra accused plaintiff of failing to respond to company inquiries. Sierra wrote, "On multiple occasions, [Spare Time] tried to contact you (by telephone and e-mail) to discuss and obtain more information about your complaint. Unfortunately, you did not return any of those telephone calls or e-mails, nor did you otherwise contact anyone in response."
Plaintiff insists Spare Time's accusation that she did not communicate is patently untrue. In her written defense on July 13, plaintiff addressed both the phone calls and e-mails. She explained that she received four phone calls at home within the first 24 hours after her doctor put her on medical leave, while she was still trying to process what he had told her. Because she was depressed, fragile, and upset, her husband had asked Spare Time to give her "some space because [she] was extremely stressed." She also recapped the correspondence, including e-mails, letters, and forms, she had sent to Spare Time from April 19 through July 9, 2010.
"Here is the total of e-mails and faxes that I have sent you from the same time period: 10 e-mails and 4 faxes. A check in the amount of $180.00 was sent to Spare Time for my portion of the health premium for the months of May, June and July. I have also completed, signed and returned 4 forms to you: Employment Incident Report; MPN Form B; Worker's Compensation Claim Form; and Leave of Absence Request Form.
"Furthermore, I have received multiple letters and forms from Dean Nguyen, the claims agent for Republic Indemnity, Spare Time's worker's compensation insurance carrier. For example: W-2 form; Employee Wage Schedule; Cop[y] of each month's earnings statement; Forms for QME panel list; Employee's Report of Injury; miles traveled for medical treatment forms; Authorization for Release of Medical Records; and forms for Medicaid and Medicare. All of these forms have been completed, signed and returned to Republic Indemnity. I have also called the QME doctors on the panel list in order to set up a doctor's appointment with one of them, and kept in contact with Dean Nguyen.
"On top of all of this, I have stayed in contact with my doctor, Dr. Michael Lin. Per the advice of my doctor I have also been meeting with someone weekly in regards to my work situation. I have tried extremely hard to communicate on a timely basis while staying on top of emails, letters, reports, forms and Doctor Appointments."
On July 12 Tappan gave Sierra a summary of his investigation, although Sierra had sent plaintiff a letter five days earlier informing her the investigation had determined that her complaint had no merit.
On July 16 Sierra notified plaintiff that Spare Time had designated her initial request for leave as a leave of absence under the FMLA/CFRA, but that 12-week leave had expired on July 12. She further explained: "Because you have exhausted the maximum leave time available under FMLA/CFRA, you are not eligible for or entitled to any further FMLA/CFRA leave. You may, however, be eligible for a leave of absence as an accommodation under the California Fair Employment and Housing Act ('FEHA' [Gov. Code, § 12900 et seq.]) and/or the federal Americans with Disabilities Act ('ADA' [42 U.S.C. § 12101 et seq.]) if you are a qualified individual with a disability. As a result, [Spare Time] is treating your latest doctor's note as a request for an accommodation in the form of a leave of absence." Sierra assured plaintiff Spare Time was committed to "engaging in a reasonable interactive process with all employees who may be eligible for reasonable accommodations in the workplace." She enclosed a questionnaire to be completed by plaintiff's doctor and returned by plaintiff within 15 days.
Plaintiff missed the deadline. Sierra wrote to her on August 3 encouraging her to participate in the interactive process and extending her deadline to submit the questionnaire to August 11. She also offered to send the questionnaire directly to plaintiff's doctor, and she invited plaintiff to call her if she wished to ask any questions. Throughout this letter, as in her letter initiating the interactive process, she referred to an additional leave of absence as a possible accommodation.
On August 9 plaintiff e-mailed Sierra, explaining that she could not get in to see her doctor until August 23. Sierra extended the deadline until 5:00 p.m. on August 23. Spare Time never received the completed questionnaire. Plaintiff testified she does not know whether her doctor completed the questionnaire or if she told him about the deadline. At one point she testified it was not her responsibility to make sure the completed questionnaire was returned, but she later testified that she did not know if it was her responsibility or not.
Plaintiff was discharged on August 26, 2010. Sierra explained: "Based on your failure to provide any response to the questionnaire or otherwise identify what 'accommodations' you need, [Spare Time] has determined that you are not willing to engage in the interactive process. Despite that, [Spare Time] still evaluated your eligibility for an accommodation. Based on all information available, we have determined that you are not eligible for a reasonable accommodation. First of all, [Spare Time] has no information to suggest that you are suffering from any type of 'disability' within the meaning of the ADA and/or FEHA. Moreover, there is no suggestion that any type of 'reasonable accommodation' will enable you to return to work. [Spare Time] is not aware of any changes that could be made to your Marketing Director position that would enable you to perform the essential functions of that position. As for a continued leave of absence, you have already been on leave from your position for over 4 months. There is no indication - from either you or your medical provider - that you will be capable of returning to work after a reasonable extension of that leave." She concluded: "If and when you are released to return to work, please let us know. At that time, we will evaluate what openings are available and reinstate your employment, if possible."
Plaintiff's Admissions
Spare Time seizes on the isolated bits of plaintiff's deposition testimony to claim that, by her own admission, she was not a qualified employee either with or without accommodation. Spare Time asserts, "The only evidence in the record is her admissions that she did not think she could do another job at Spare Time prior to her termination, that during the interactive process she did not think she was ready to go back to work, that she did not start to feel better until October or November 2010, and that, even as of July 13, 2012, she did not know if she could go back to any job at the company." In Spare Time's view, her admission that she was unable to return to work constitutes an admission she was not qualified to perform the essential functions of the job. But the record captures so much more to plaintiff's story than Spare Time's selective excerpts suggest.
Plaintiff's deposition testimony could be plausibly read to indicate that she was overwhelmed by the paperwork required by Spare Time as she also processed her workers' compensation claim and obtained the medical services she needed to treat her ongoing anxiety and depression. She provided her doctor the questionnaire Spare Time required and she relied on him to meet the August 23 deadline Spare Time imposed. She was unsure whether he actually sent in the documentation by that date. She was discharged a mere three days later.
In the next-to-last paragraph of the written letter of termination, Spare Time invited plaintiff, "[i]f and when you are released to return to work, please let us know. At that time, we will evaluate what openings are available and reinstate your employment, if possible." When asked at her deposition whether she ever notified Spare Time she was prepared to return to work, plaintiff responded, "[W]orkman's comp sent them a letter saying that I could return as long as Mr. Rose did not -- as long as I didn't work under Mr. Rose." She further testified that the reason she did not personally notify Spare Time she could return to work was because she was on disability and she knew Rose was still there. Spare Time previously had sent her a letter informing her she was required to work with Rose.
At her deposition, Spare Time, referring to June of 2010, inquired if she would have been able to return to work if Rose had not been there. She replied, "I was ready to go back, yeah. I think it would have taken some of the anxiety down, and I would have definitely," and "I would have gone back." She testified she did not recall telling a Dr. Harbison that she could not return to work at Natomas Racquet Club even without Rose. She testified, "No. I wanted to go back. I thought I would go back." She did concede that if she had seen another opening for a marketing director at another club before she was terminated she probably would not have applied for it because at that time she was very depressed and was under medical supervision. She stated she was "still pretty emotional and stressed and having a lot of anxiety." Indeed, she had told Spare Time from the outset that "Joe Rose's consistent verbal aggression, intimidation, severe abusive and offensive action causes a sense of dread and fear." With Rose still there, she just did not know if she could have returned to work. She was adamant: "In my circumstance, the only reasonable accommodation that I would be aware of would be if Mr. Rose was -- if I was not working with Mr. Rose. And they were very clear, Spare Time, that said for me to hush, come back to work and work under Mr. Rose."
Plaintiff and her doctor thought the situation at work would change, thereby enabling her to return to work. She testified that Tappan had told her that Rose's behavior was unacceptable and she believed "they would remove him from the situation." Plaintiff and her doctor expected the environment to change. She explained that she did not make another explicit request for separation from Rose because "I just assumed they were going to say Joe had been transferred to a different place or Joe's been dismissed and life would just go back into the same normal way, and it just didn't." She repeated her hope that Rose would be removed. And she reiterated that she had not explicitly asked to be separated because she had already received a letter from Spare Time dismissing her complaints and ordering her to work with Rose.
Plaintiff insisted that Spare Time's justification for terminating her because, among other things, she did not participate in the interactive process was a lie. She explained the basis of her belief as follows: "Interactive process is from beginning to end. I didn't -- one paper they were frustrated with. I sent them back forth, back forth. That to me -- to be terminated on one thing, when I tried and I told them over and over, to me it looks like an interactive process is just that one thing.
"And interactive process is the whole thing. How is my behavior throughout the whole process? Was excellent. Everything I did, everything workman's comp told me to do, everything they told me to do, I did.
"And so that is false. It's not right. And regarding the disability or being off, I never had any paperwork that said, I was going to be forever disabled."
Plaintiff does not believe she had a fair opportunity to request an accommodation that would have allowed her to return to work. She repeated the same allegation that Spare Time had rejected her request to work for someone besides Rose. "I was working with -- I was told prior to this, that I was to come back and to do -- keep my mouth quiet and work with Joe Rose, and that was prior."
Plaintiff was very distressed that Spare Time accused her of failing to communicate with them. "And I just wanted to say, this is everything I have done. I have -- everything. I've seen QME doctors. I've done their testing. I've done their reports. I've done paperwork. Everything you've asked. I've done on a timely manner." When asked if she believed she participated in the interactive process, she responded, "Absolutely, 100 percent." But she was emphatic that Spare Time absolutely did not.
"So by the time this came, which was only probably a few weeks later, I did the best I could. I was seeing workman's comp to find out what was exactly, I need to do with my life because I was on disability. So at that point, I wasn't thinking about going to work. I was on disability." She stressed again, "At this point right here, I was on stress leave disability." As of the date she was terminated, she "was very stressed and overwhelmed, and I don't think I was ready to go back to work." This was late August 2010.
Plaintiff began to feel ready to go back to work soon thereafter, although it was a painful and bumpy process. She explained, "I started feeling better, I mean, probably after I saw the QME doctor in late September, October, I mean I could -- I was on medication, and I was doing better. So I don't know October, November. There was up and down time."
When asked why she had not requested yet another leave of absence, she again had relied on the workers' compensation system. She testified, "Workman's comp was doing all that to find out. I got terminated on -- in August. A week or so later, workman's comp had all of that. So no, I wouldn't. I was figuring that's what that was all about. I did lots of paperwork, so they would have those answers."
Finally, plaintiff stated she would return to work because she did not have a choice. Financially, she could not afford not to work, whatever her mental state. She lamented, "I ran out of disability money, and I had no choice but to go on unemployment. Otherwise, I don't know if mentally, emotionally, I am actually ready. But I have to do what I have to do because I have -- I need to make money." In this vein, she was applying for any kind of employment. She was determined and optimistic about returning to work. She testified, "I mean I just believe that if a door opens and somebody calls me back, I just have to. I have to. I go. And I just put my whole self into it, and I just believe -- I mean God's going to help me. I have to. I want to do it. I think it will make me feel better." But plaintiff also insisted, "I could do any job in that company." She was confident that "[i]f I was presented the opportunity, I would do my best. I would go in there, and I would try to be the Kelly that I was.
Having been off work for over two years, however, she honestly expressed her insecurity and ambivalence about her ability to work for Spare Time. On the one hand she testified, "I could do any job in that company." On the other hand, however, she expressed her reservations and fears. "I want to say that I would [be able to do the job] -- I want to believe that I could do it. I mean I have a hard time during the day. I'm sad. I just -- I would do the best. I don't know. I mean -- I wouldn't know. I haven't been working for two years. I want to say I could do it."
Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) on April 19, 2011. On December 30, 2011, she filed a civil complaint for damages, alleging 10 causes of action: (1) wrongful termination in violation of public policy, (2) failure to prevent sexual harassment, (3) sexual harassment, (4) gender discrimination in violation of the California Constitution, (5) disability discrimination, (6) failure to accommodate, (7) failure to engage in the interactive process, (8) retaliation, (9) assault, and (10) intentional infliction of emotional distress. The trial court granted defendants' motion for summary judgment. Plaintiff appeals.
DISCUSSION
I
Standard of Review
Plaintiff attempts to focus our attention on the tentative ruling, wherein the trial court denied summary adjudication of most of the causes of action based on the existence of triable issues of material fact. Unfortunately for plaintiff, the trial court changed its mind with little explanation and granted summary judgment. We agree with defendants that the tentative ruling is not binding on the trial court and can be modified and changed (Horning v. Shilberg (2005) 130 Cal.App.4th 197, 203); moreover, it carries no weight on appeal (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647). The mere fact that plaintiff repeats the trial court's tentative rationale as to each cause of action does not make it relevant. (Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 638, fn. 9.) We review the trial court's final ruling de novo. (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999 (Birschtein).)
It is true, however, as plaintiff urges with equal vigor, that we must liberally construe her declarations to determine the existence of triable issues of fact and draw all inferences and resolve all doubts in her favor. (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 720 (Dominguez).) A moving defendant has the burden to demonstrate that the undisputed facts establish an affirmative defense, such as a statute of limitations, as a matter of law. (Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 322 (Trovato).) " 'While resolution of the statute of limitations is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. [Citation.]' " (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054-1055.)
II
Plaintiff's Causes of Action for Sexual Harassment and
Failure to Prevent Sexual Harassment Were Barred by the Statute of Limitations and
Were Not Saved by the Continuing Violation Doctrine or Equitable Tolling
Before filing a lawsuit for sexual harassment or any of its derivatives, a plaintiff must file an administrative complaint with the DFEH within one year of the date on which the harassment occurred. (Gov. Code, § 12960, subd. (d); Trovato, supra, 192 Cal.App.4th at p. 323.) Spare Time alleged that the last potential incident of harassment occurred on plaintiff's last day of work, April 16, 2010. Since she did not file her administrative complaint until April 19, 2011, Spare Time maintains that she missed the one-year deadline and consequently failed to exhaust her administrative remedy, a " 'jurisdictional prerequisite to resort to the courts.' [Citation.]" (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.)
Plaintiff urges us not only to give her every benefit of the doubt in determining whether a triable issue of fact exists but also to liberally construe the FEHA statute of limitations. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 819 (Richards).) "In order to carry out the purpose of the FEHA to safeguard the employee's right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on the merits." (Romano v. Rockwell Internat., Inc., (1996) 14 Cal.4th 479, 493-494.) Plaintiff insists that the continuing violation doctrine, liberally applied, saves her lawsuit.
The continuing violation doctrine " 'allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.' [Citation.]" (Trovato, supra, 192 Cal.App.4th at pp. 325-326.) The employer's unlawful actions are "sufficiently connected" if they satisfy three criteria: (1) the unlawful conduct occurring outside the statute of limitations is "sufficiently similar in kind" to the unlawful conduct within the limitations period, (2) the unlawful actions have occurred with "reasonable frequency," and (3) they have not "acquired a degree of permanence." (Richards, supra, 26 Cal.4th at p. 823.)
In the context of a motion for summary judgment, plaintiff contends she need only raise a reasonable inference that Rose's phone call to her at home on April 20, leaving the message, "call me when you can," was a continuation of the sexual harassment she had endured for nearly two years. It is certainly true that what might appear to be an isolated act must be viewed in the context of all the circumstances. (Dominguez, supra, 168 Cal.App.4th at pp. 722-723.) "Discriminatory behavior comes in all shapes and sizes, and what might be an innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of her gender." (Draper v. Coeur Rochester, Inc. (9th Cir. 1998) 147 F.3d 1104, 1109.)
There is no evidence that either the substance or the tone of the phone message was inappropriate in any way. Rose simply asked plaintiff to call him when she could. Plaintiff does not suggest otherwise. The leap she asks us to make is based on the simple facts that Rose called her at home, which he had never done before, and that the call was made just a few days after Rose's outburst at the team meeting in which he angrily told her to "shut the fuck up." Plaintiff argues these circumstances give rise to a reasonable inference that the call was meant to her harass her. That is the leap we are unable to make.
To constitute a continuing violation, the unlawful act must be " 'similar in kind' " to the harassment that occurred outside the statute of limitations. (Trovato, supra, 192 Cal.App.4th at p. 326; see id. at p. 327.) There is simply no evidence that the phone call was similar to the profanities, sexually inappropriate references, stories, and innuendos, or to the violent outbursts, that had characterized Rose's behavior at the office. To the contrary, the message was entirely appropriate. Rose was the general manager of the club, and plaintiff, the marketing director, had just gone out on an unexpected medical leave. He might have wanted to discuss projects she had underway and to solicit her advice on how they should be handled in her absence. He might have wanted to apologize for his quick-tempered remarks at the meeting or, because they had worked closely together for an extended period of time, to check on her health and well-being. The record is silent as to his motivation. But because Rose was the general manager of the club and plaintiff's immediate supervisor, his call to her at home does not give rise to an inference that he was continuing a pattern of harassment. Indeed, the message he left was the polar opposite of his alleged abusive pattern in that he simply asked her to call him.
We must reiterate that we are acutely sensitive to the principles plaintiff advocates; that is, that we must construe the evidence in her favor and liberally construe the application of the statute of limitations to assure that meritorious claims are not forsaken prematurely. But the facts of the cases upon which plaintiff relies bear no resemblance to the innocuous phone message she received from her alleged harasser. For example, in Birschtein, supra, 92 Cal.App.4th 994, the plaintiff's coworker stopped harassing her with sexual come-ons and crude remarks following the plaintiff's complaint to management, but he continued to pass by her workstation several times a day and stare at her. The continuing violation doctrine applied, the court concluded, because the staring was sufficiently related to the overt acts of harassment that had come earlier. (Id. at pp. 1003, 1005-1006.)
Birschtein states in a slightly different way what the Supreme Court articulated in Richards, supra, 26 Cal.4th 798. The conduct must be "sufficiently related" to the conduct that preceded it, as Birchstein characterizes it (Birschtein, supra, 92 Cal.App.4th at pp. 1005-1006), and it must be "similar in kind" as the Supreme Court characterizes it (Richards, at p. 823). Similarly, in Dominguez, the plaintiff's harasser constantly blocked her access to her workstation with heavy boxes and jammed the wheels of her pallet jack several times, in plaintiff's estimation, to make her life impossible at work. (Dominguez, supra, 168 Cal.App.4th at pp. 723-724.) In Birschtein and Dominguez, the Courts of Appeal found that the harassing conduct that occurred outside the statute of limitations was a continuation of the same type of harassing conduct that occurred within the statute, and because the conduct was similar and sufficiently related, the one-year statute of limitations for filing a FEHA complaint did not bar a subsequent civil lawsuit.
Our case is much different. The isolated phone call was not similar in kind or substantially related to the type of harassment plaintiff's supervisor had engaged in at the office. Whereas the plaintiffs in Birschtein and Dominguez remained at work and the harassment was ongoing, plaintiff in the case before us never returned to work and had no further contact with the alleged harasser. We cannot say that the mere existence of the message, devoid as it was of any crude or inappropriate language, was similar or substantially related to the kind of harassment plaintiff alleged occurred at the office. Nor are we willing to say that any contact, even for work-related and totally legitimate business purposes by plaintiff's supervisor once she was on leave, constituted harassment based solely on the history of sporadic inappropriate behavior. In other words, mere contact alone, devoid of any harassment, does not delay the running of the statute of limitations. Because plaintiff did not file her FEHA complaint within one year of the last incident of alleged harassment, her administrative complaint for sexual harassment was barred and she failed to timely exhaust her administrative remedies. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1612-1613.)
But plaintiff contends that the cause of action for failing to prevent sexual harassment equitably tolled the statute of limitations. She relies on the internal complaint she made about the harassment and analogizes to cases in which a plaintiff pursues a formal alternative legal remedy to resolve the dispute. She cites no case, and we cannot find any, in which a plaintiff forestalled the running of the statute merely by lodging an internal complaint about harassment.
Pursuant to the doctrine of equitable tolling, "the running of a limitations period is equitably tolled when an injured person has several formal legal remedies and reasonably and in good faith pursues one." (Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 108.) Equitable tolling "allows a plaintiff who has a choice of legal remedies to pursue one remedy without simultaneously pursuing another remedy" and "generally requires a showing that the plaintiff is seeking an alternate remedy in an established procedural context." (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416.) In answer to plaintiff's argument, Acuna squarely holds that "[i]nformal negotiations or discussions between an employer and employee do not toll a statute of limitations under the equitable tolling doctrine." (Id. at p. 416.) As in Acuna, plaintiff does not allege any facts showing she was pursuing an alternate remedy that excused her from filing her administrative claim on time. In the absence of any authority, we reject the notion that an employee can forestall the running of the statute indefinitely by simply lodging an internal complaint with a human relations department.
III
Gender Discrimination
To establish a prima facie claim for discrimination, plaintiff must establish that she was fired because of her gender or her disability. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235-236.) At her deposition she testified that gender was not a reason considered by Spare Time in terminating her. Plaintiff's unvarnished admission that gender was not a motivating factor in terminating her is fatal to her gender discrimination cause of action. Any later alteration of her view in declarations or arguments cannot undo the damage. Since she was not fired because of her gender, she has no gender discrimination case, and mere suspicions of improper motives based on conjecture and speculation are insufficient as a matter of law to create a triable issue of fact. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1563-1564, superseded by statute on other grounds as explained in Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)
IV
Plaintiff Cannot Prevail on the Assault or
the Intentional Infliction of Emotional Distress Causes of Action
Assault
Plaintiff asserts that Rose's history of violent outbursts, including throwing objects, shouting obscenities, and manhandling a patron, creates triable issues of material fact to support her cause of action for assault. "The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm." (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.) Defendants contend plaintiff's assault claim fails as a matter of law because (1) she cannot establish that Rose intended to cause harmful or offensive contact and (2) " '[m]ere words, however threatening, will not amount to an assault.' [Citation.]" (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604 (Plotnik).)
" ' "Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present." [Citation.]' (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6-7.) . . . 'A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm. Every person has "the right of protection from bodily restraint or harm." [Citation.] . . .' (Id. at p. 7 . . . .) [¶] . . . [¶] . . . [A]ssault 'requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.' (People v. Williams (2001) 26 Cal.4th 779, 790; see People v. Chance (2008) 44 Cal.4th 1164, 1169 [assault ' "established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery" '].)" (Plotnik, supra, 208 Cal.App.4th at pp. 1603-1604.)
The facts of Plotnik provide an instructive template. In Plotnik, the alleged assailants, the Meihaus brothers, aggressively approached the victim, shortly after their father allegedly beat the victim's dog with a bat, and threatened to beat and kill both the victim and his dog. But because neither brother displayed a weapon, took a swing at him, or otherwise attempted to touch him, the court found that neither committed an act that could or was intended to inflict immediate injury on the victim. As a result, the court reversed a jury verdict for the plaintiff. (Plotnik, supra, 208 Cal.App.4th at p. 1604.)
Like that of the Meihaus brothers, Rose's alleged behavior, including his directive to plaintiff to "shut the fuck up," was threatening and intimidating. And we do not doubt plaintiff's assertion that she was frightened, given the additional fact that Rose stood in close proximity to her. But, as in Plotnik, there are no facts that Rose took any action to evidence an intent to inflict immediate injury on her. Thus, Spare Time's evidence was sufficient to shift the burden to plaintiff to create a triable issue of material fact.
This she failed to do. She relies exclusively on Rose's past behavior, and while deplorable, his history of violent outbursts did not give rise to a reasonable inference that he was about to strike her. He had never assaulted her in the past. Rather, the examples she recites of his throwing reams of paper and breaking a chair were not directed at her and did not constitute assaults. Even the incident she recounted in which he was forceful with a young man at the club was far different from striking his marketing director in front of an entire team. We conclude, as Spare Time urges, that the summary adjudication of the assault cause of action was properly granted because Rose's obscenities, though offensive and possibly threatening, did not give rise to a reasonable inference that he was about to publicly batter plaintiff. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)
Intentional Infliction of Emotional Distress
A prima facie case of intentional infliction of emotional distress requires: " ' " ' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." ' " ' " (Hughes, supra, 46 Cal.4th at pp. 1050-1051.) Plaintiff has not raised a triable issue of fact on these elements.
Summary judgment is proper if a claim cannot " 'reasonably be regarded as so extreme and outrageous as to permit recovery.' [Citation.] 'Conduct, to be "outrageous," must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.' [Citation.] 'Severe emotional distress means . . . emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.' [Citation.]. 'Ordinarily mere insulting language, without more, does not constitute outrageous conduct.' [Citation.]" (Schneider v. TRW, Inc. (9th Cir. 1991) 938 F.2d 986, 992.)
Plaintiff rejects the notion that Rose was merely insulting. She emphasizes the number of times he threw objects, broke a chair, and became physically intimidating while shouting obscenities. She distinguishes, therefore, those sexual harassment cases wherein the defendant used sexually inappropriate language and verbally berated the victim from her case, in which Rose had a demonstrated pattern of explosive behavior.
Defining where deplorable, heartless, and insensitive remarks, coupled with disgusting behavior, deserve opprobrium and where they become the type of extreme and outrageous conduct a civilized society cannot tolerate is a difficult task, particularly in the sexual harassment arena. (See Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67-68 & fn. 21.) We certainly do not condone the type of behavior plaintiff alleges. Nevertheless, plaintiff alleges only one incident in which Rose's profanity was directed at her, and that was when he told her to "shut the fuck up." She does not allege any other occasion when he threatened her physically or directed his profanities at her. He never threw objects at her or directly at anyone else.
A trier of fact therefore could not reasonably find in her favor on this evidence. Outrageous conduct must ordinarily be directed at the plaintiff. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 905-906.) Here, most of Rose's venom was directed at others, not at plaintiff. While a manager certainly should refrain from humiliating and threatening an employee with the use of profanity, we cannot say his outburst qualifies as the type of extreme and outrageous conduct the tort was designed to curb. (Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 389.) The summary judgment was properly granted as to plaintiff's cause of action for the intentional infliction of emotional distress.
V
Admissions
Before addressing plaintiff's arguments regarding the viability of her disability discrimination, failure to provide a reasonable accommodation, failure to engage in an interactive process, and retaliation causes of action, we first confront the first of two threshold issues—whether plaintiff's admissions during her deposition are fatal to her claims. Spare Time, as described above, contends that her testimony she could not have returned to work, even at another club or without Rose, means she was not a qualified employee because she could not perform the essential functions of the job. Spare Time reminds us that plaintiff's declaration, filed long after her deposition testimony, cannot defeat a summary judgment by contradicting her sworn deposition testimony. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 (D'Amico).)
In D'Amico, the California Supreme Court held, " '[w]here . . . there is a clear and unequivocal admission by the plaintiff, himself, in his deposition;' " and the plaintiff contradicts that admission in a subsequent declaration, " 'we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.' " (D'Amico, supra, 11 Cal.3d at p. 21.) "Courts have consistently refused to apply the D'Amico rule to exclude evidence adduced in opposition to a summary judgment motion when either evidence adduced on the motion credibly explains or contradicts a party's earlier admissions." (Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 144-145.) "While the D'Amico rule permits a trial court to disregard declarations by a party which contradict his or her own discovery responses (absent a reasonable explanation for the discrepancy), it does not countenance ignoring other credible evidence that contradicts or explains that party's answers or otherwise demonstrates there are genuine issues of factual dispute." (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524-1525 (Scalf).) "[L]ater cases have cautioned that D'Amico should not be read 'as saying that admissions should be shielded from careful examination in light of the entire record.' (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482.)" (Scalf, at p. 1514.)
Thus the D'Amico rule is quite permeable and subservient to the overarching objective to preserve the right to a trial on the merits, if indeed genuine triable issues of fact remain. Here we need not go as far as the court did in Scalf to search the record for other credible evidence that contradicts or explains the party's answers. We need look no further than the remainder of plaintiff's testimony for it is only in extracting a few of her statements that she appears to admit she was not a qualified employee. The so-called fatal "admissions" isolated by Spare Time, when reviewed in context, are neither clear nor unequivocal as the D'Amico rule demands. To say, as Spare Time does, that plaintiff unambiguously testified that she could not return to work whether Rose was there or not is to unfairly focus on isolated words without reading them in the context of the entire record.
We, therefore, will put a wider lens on the facts Spare Time characterize as undisputed and fatal to her claims. In its separate statement of undisputed material facts, Spare Time included the following salient facts:
"151. Tevis testified that, prior to her termination on August 27, 2010, she did not think she could have gone back to work at another Spare Time club, even without Rose being present, because she was still emotional stressed, and had a lot of anxiety."
"152. Tevis testified that she did not start to feel better until October or November 2010."
"153. Tevis testified that as of July 13, 2012, the date of her deposition, she does not know whether she could perform a marketing director position at another health club, because she is not sure whether she was ready, mentally and emotionally."
"187. Tevis admits that she never asked Spare Time for any kind of accommodation."
From plaintiff's point of view, she had notified Spare Time that Rose had harassed her and created a hostile work environment with his violent outbursts, and despite her allegations, Spare Time had conducted but a cursory investigation and ordered her to return to work for her abuser. Her testimony throughout her deposition repeated the same theme. She could not work for a violent person who peppered his language with sexual innuendo, bombarded her with stories of his sexual exploits, adventures, and advances, and demeaned her by calling her names and using obscenities. The time frame in which all of this occurred is critical.
While the harassment had occurred over a prolonged period of time, her emotional reaction to it peaked in April of 2010 and her doctor ordered her to take a medical leave to relieve her anxiety and ameliorate the severe depression she was suffering. She explained repeatedly throughout her deposition that once she filed an incident report for workers' compensation and went out on leave she was expected to complete an avalanche of paperwork, to be examined by doctors, and ultimately to engage in an interactive process with Spare Time all while she was incapacitated with anxiety and depression. While she remained on disability, she focused on improving her mental health and completing the necessary paperwork. She explained, "So by the time this came, which was only probably a few weeks later, I did the best I could. I was seeing workman's comp to find out what was exactly, I need to do with my life because I was on disability. So at that point, I wasn't thinking about going to work. I was on disability." Thus, when she was asked by defense counsel if during that time she had no desire to return to work, she replied, "I was very stressed and overwhelmed, and I don't think I was ready to go back to work."
We do not interpret her explanation as an admission that she was no longer qualified for the position, but rather that she was temporarily disabled as a result of the stress and anxiety she experienced working for someone who had verbally harassed her and physically intimidated her. In other words, her mental health had not yet stabilized in the few weeks since the harassment ended and it had ended only because she had separated herself from her tormenter by taking a medical leave of absence.
Plaintiff was terminated at the end of August 2010. A jury could reasonably infer that her mental health had plummeted as a result of Rose's inappropriate behavior. Her testimony about when she was ready to return to work was ambiguous as she struggled with the roller coaster nature of anxiety and depression. But, as Spare Time asserts, she did testify that she was feeling better by October or November of 2010. She did not say she could not have returned to work sooner had Spare Time removed her from working with Rose. To the contrary, she testified she would have returned to work as soon as June of 2010 if Rose had been removed, but instead she was ordered to return to work for him in July.
We believe that a jury could find her testimony was not a fatal admission that she was permanently no longer qualified to perform her job, but a recognition that while she was on disability she was temporarily too anxious and depressed to resume her responsibilities. Throughout her testimony, she conflated the workers' compensation proceedings with the interactive process she was engaged in with Spare Time. Her termination had come as a shock, she believed she had a temporary financial reprieve while she received disability benefits, and she was prepared to return to work as soon as her mental health allowed.
Having explained that she could not return to work for Rose, that the mental health challenges she suffered as a result of the work environment had not abated by the time she was fired, and that she felt better in the fall of 2010, defense counsel pressed further asking her if she felt ready to go back to work at the time of the deposition. By then she had been off work for nearly two years. She explained that financially she had no choice but to return to work. She expressed some trepidation but stated, "But I have to do what I have to do because I . . . need to make money." Defense counsel asked her, "[C]ould you go do a marketing director position at a health club similar to what you were doing at Spare Time tomorrow?" To this question she responded, "I don't think so." But she went on to explain she applied for anything and if she was given a job offer, she would take it. She felt compelled to work, she was committed to putting her "whole self into it," and she believed "God's going to help me." She insisted she could perform any job at Spare Time "tomorrow."
Spare Time points to her equivocal statement that she said she did not think she could immediately assume a marketing director position at another health club as an admission that she could not perform the essential functions of the position even two years after she was terminated. Again Spare Time oversimplifies her answer and overstates its significance. Her hesitation to assume the responsibility of directing marketing at an entirely different health club the very next day is hardly a clear and unequivocal admission she was unable to resume her old position in the absence of Rose. A jury could reasonably conclude that plaintiff was honestly assessing her inability to make such an abrupt decision to assume a new position in a new facility and yet also conclude she remained qualified to reassume the position she was forced to leave.
Finally, Spare Time insists plaintiff admitted she never asked for any kind of accommodation, including separation from Rose. We disagree. She complained to management. Together with two other women employees she met with Tappan and detailed the many episodes of harassment. She filed a written incident report. And, when the harassment continued, she took a medical leave of absence. While she may not have used the precise terminology "reasonable accommodation," certainly her complaints give rise to the obvious need to be separated from the man who harassed her. The record is replete with evidence that plaintiff believed Rose was the source of her anxiety and depression. A request for separation from Rose was implicit.
Moreover, once Spare Time concluded its perfunctory investigation and found no merit to her charges, they ordered her to return to work for Rose. A jury could reasonably conclude that any further requests to be separated were futile.
Thus we conclude that none of the answers plaintiff gave in her deposition, examined either individually or collectively, constitute a clear and unequivocal admission she could not perform the essential functions of her position as the marketing director or that she had not sought a reasonable accommodation. Her deposition testimony, when read in its entirety, exposes a number of triable issues as described below.
VI
Burden to Identify a Reasonable Accommodation
Citing cases that do not involve sexual harassment and do not involve a disability caused by the employer's prohibited conduct, Spare Time insists that plaintiff failed to meet her burden to identify, during litigation if not during the interactive process, a vacant position she was qualified to assume or another accommodation that would have allowed her to return to work. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952 (Nadaf-Rahrov); Scotch, supra, 173 Cal.App.4th 986.) The issue is most relevant to plaintiff's causes of action for the failure to provide a reasonable accommodation and the failure to engage in the interactive process, but we consider it here as another threshold issue to all her FEHA-related causes of action because Spare Time maintains that plaintiff's inability to identify a specific vacant position, or other accommodation, that would have allowed her to return to work entitles it to judgment as a matter of law.
Spare Time denies the allegations of sexual harassment. For purposes of summary judgment, however, we must construe the evidence in favor of plaintiff. Plaintiff has presented sufficient evidence to raise a triable issue as to whether Rose sexually harassed her. It is the prerogative of the trier of fact, not us, to make the ultimate determination as to whether sexual harassment occurred.
It is true the law has evolved to place a greater burden on plaintiffs to identify an accommodation the interactive process should have produced. "[A]n employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because ' " '[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have . . . .' " ' [Citation.] However, as the Nadaf-Rahrov court explained, once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced." (Scotch, supra, 173 Cal.App.4th at p. 1018.)
The plaintiff in Scotch was a teacher who was HIV positive. (Scotch, supra, 173 Cal.App.4th at p. 994.) He made no claim of sexual harassment; nor did he attribute his disability to any conduct by his employer. Rather he presented the typical fact pattern—an employee with a physical disability who sought a reasonable accommodation to continue his employment. In those circumstances, placing the burden on the plaintiff to demonstrate the availability of an alternative position or reasonable accommodation that enables him or her to perform the essential functions of the job is imminently reasonable. Since the FEHA is remedial in nature, it serves the remedial purpose of the statute not to impose liability on an employer for either failing to engage in an interactive process or failing to provide a reasonable accommodation if there was no vacant position for which the employee was qualified available at the time the interactive process had, or should have, taken place. (Id. at p. 1019.) That situation is far different from the circumstance, as alleged here, where supervisory personnel of the employer created the hostile working condition and purportedly caused the very disability that prevents the employee from, at least temporarily, performing the essential function of her job. Under these circumstances, we are not persuaded FEHA requires the plaintiff to do more than she did here—request a separation from the manager she accuses of harassing her.
Much has already been said about plaintiff's complaint regarding Rose's violent and sexually inappropriate behavior and the obvious and implicit request to be separated from him. Plaintiff maintains her request for separation was expressly set forth in the workers' compensation proceedings. Whether it was explicit or implicit, Spare Time was certainly on notice that plaintiff perceived Rose as an ongoing threat and sought to be separated from him. At its essence, she was not asking to be reassigned to a different position, for until Rose arrived and the harassment began, plaintiff had thrived in her position. She sought to be separated from the source of the problem so she could continue to excel at her job as she always had. Thus, unlike Scotch and Nadaf-Rahrov, she was not necessarily seeking a reassignment to a new position. Rather she sought to maintain her existing position, a position she was qualified to perform as long as the person whose conduct was causing her severe anxiety and depression, was separated from her.
A jury will have to resolve a multitude of triable issues of fact before the duties of the employer and the employee can be fairly apportioned in this case. For purposes of summary judgment, however, we conclude that a person in plaintiff's predicament does not have the burden, as a matter of law, to identify a vacant position that she must assume, when a potentially reasonable accommodation would be to separate her from the person whose behavior produced the disability from the disabled worker.
VII
Disability Discrimination
FEHA prohibits an employer from discharging an employee because of a physical disability. (Gov. Code, § 12940, subd. (a).) Because the Legislature has determined that the right to maintain employment without discrimination is a civil right that must be protected and safeguarded, we must construe FEHA liberally and broadly to accomplish its purposes. (Gov. Code, § 12993, subd. (a); Soria v. Univision Radio of Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583 (Soria).) "In order to prevail on a discriminatory discharge claim under [Government Code] section 12940[, subdivision ](a), an employee bears the burden of showing (1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without accommodation." (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 962.)
Although plaintiff bears the burden of proof at trial, "[a]n employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee." (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 966 (Swanson).) The defendant employer, as the moving party, also bears the ultimate burden of proving there are no triable issues of fact and is entitled to judgment as a matter of law. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 962.)
Spare Time contends it was entitled to summary judgment because it negated an element of plaintiff's prima facie case, to wit, that she could not perform the essential functions of her job based on her admissions. We have rejected the notion above that plaintiff made clear and unambiguous admissions and conclude, for purposes of summary judgment, that plaintiff produced substantial evidence to create a genuine triable issue of fact that she could have, and would have, returned to work if Spare Time had separated her from Rose. As a consequence, Spare Time did not satisfy its initial burden on summary judgment of negating an element of the plaintiff's cause of action for disability discrimination. Nadaf-Rahrov provides a useful, if imperfect, analogy.
Nadaf-Rahrov began working as a clothes fitter for Neiman Marcus in 1985. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 957.) After working for over a dozen years, she experienced severe back and joint pain. (Ibid.) Her doctor informed Neiman Marcus that Nadaf-Rahrov required various accommodations, was unable to perform work of any kind, and she was unable to perform all the essential functions of the job. (Id. at p. 958.) At the end of 2003 she took a one-month family leave, which the doctor extended at least seven times. (Id. at pp. 958-959.) By July of 2004, the plaintiff had not obtained a release to work from her doctor and the human resource manager concluded she was not qualified to fill any open and available position within Neiman Marcus. The manager testified, "Ms. Nadaf-Rahrov utterly failed to provide me with any reason to believe that her condition was likely to change anytime in the near future. In fact, our conversations and correspondence (or lack thereof) lead [sic] me to believe just the opposite." (Id. at pp. 959-960.) Neiman Marcus terminated Nadaf-Rahrov. (Id. at p. 959.) She sued for employment discrimination based on disability, among many other causes of action. (Id. at p. 960.) The trial court granted Neiman Marcus's motion for summary judgment because "the undisputed facts established that she was not able to perform the essential functions of her fitter position or any other available position at Neiman Marcus." (Ibid.)
The Court of Appeal reversed the summary judgment finding Neiman Marcus failed to show there were no triable issues of fact about Nadaf-Rahrov's ability, with or without accommodation, to perform the essential functions of an available vacant position that would not be a promotion. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 993.) The court's evaluation of the employer's evidence provides a template for our analysis.
Nadaf-Rahrov's doctor certified that she was " 'unable to perform work of any kind' " as of November 2003. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 964.) The human resources manager averred that she was never told that this restriction had been modified or was no longer in effect. (Ibid.) Neiman Marcus insisted there was no triable issue of fact—Nadaf Rahrov was unable to perform the essential functions of her job with or without accommodation and, therefore, her discharge did not violate FEHA. The Court of Appeal disagreed that the doctor's certification was determinative. (Id. at pp. 964-966.) The court found that the doctor's certification pertained only to her job as a fitter; the doctor had not opined whether she could perform the essential functions of any other job because none was offered to her. The court concluded, "In light of Dr. Klompus's averments, the medical certifications and notes in the record do not alone establish as a matter of law that Nadaf-Rahrov was unable to perform work of any kind at the time of her termination or in the foreseeable future. A reasonable fact finder could find that the Certification of Health Care Provider included overstatements and that the 2004 medical notes indicated she couldn't work as a fitter but might be able to work in another position if it did not involve more than incidental bending, kneeling, and standing." (Id. at pp. 965-966.)
Nor did the court accept Neiman Marcus's argument that Nadaf-Rahrov's admissions or the human resource manager's professional opinion entitled it to judgment as a matter of law by eliminating any triable issue regarding her ability to perform the essential functions of a vacant position. At her deposition, Nadaf-Rahrov testified she was still so severely disabled she was unable to perform most ordinary household chores or activities of daily living. (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 966-967.) She suffered chronic pain in her knee, low back, shoulders, and neck, she had difficulty sleeping, she had difficulty moving around, she could not walk for more than five or 10 minutes without severe pain, and she had been advised not to bend, lift, stoop, stand for too long, or use her knees. (Ibid.) Nevertheless, the Court of Appeal, rejecting the trial court's finding to the contrary, found that "[a]lthough these physical restrictions are substantial, they did not self-evidently prevent Nadaf-Rahrov from performing any work whatsoever with or without accommodation." (Id. at p. 967.) The court intimated that her limitations did not necessarily foreclose desk work with accommodation and she had raised a triable issue of fact about whether vacant desk jobs for which she was otherwise qualified were available. (Ibid.)
Finally, the court found that the human resources manager's opinion that Nadaf-Rahrov was unable to perform the physical demands of the available positions was not dispositive. She based her opinion on the doctor's certification, Nadaf-Rahrov's description of her physical limitations, and her own assessment of Nadaf-Rahrov's qualifications to assume another position with Neiman Marcus. (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 967-968.) According to the court, the manager failed to evaluate all of the available positions and failed to justify why Nadaf-Rahrov could not be reassigned to another position that was below her current pay grade. (Id. at p. 969.) The court concluded that Nadaf-Rahrov had raised a triable issue of fact about her qualification for the vacant positions and her ability to perform the essential functions of these jobs. (Ibid.)
As a result, Nadaf-Rahrov escaped summary judgment on her disability discrimination claim on a far weaker record than plaintiff presents here. The employer presented compelling evidence from Nadaf-Rahrov's doctor and from her own testimony that she was severely physically disabled, suffering from intense chronic pain, and unable to do even simple chores at home. There was no evidence her condition was improving. On this evidence, the human resources manager believed Nadaf-Rahrov could no longer perform the essential functions of any job for which she would be qualified. Even with an employee suffering long-term and intensive pain precluding her from participating in basic life activities, the court recognized that there remained triable issues surrounding her ability to perform some desk jobs that had been available during the protracted interactive process in which Neiman Marcus and Nadaf-Rahrov were engaged.
Plaintiff's mental health, by contrast, had significantly improved within six months of separating herself from Rose. Of course, Spare Time had discharged her in a mere four months. Its justification, similar to the justification offered by Neiman Marcus, was that they had no information to suggest she could or would return to work or that she was, or in the future would be, qualified to perform the essential duties of a marketing director. Like Neiman Marcus, they relied on plaintiff's doctor's notes and her own testimony expressing hesitation about her ability to resume her responsibilities. We conclude, as the court did in Nadaf-Rahrov, that Spare Time's evidence does not entitle it to judgment as a matter of law. There remain, as there did in Nadaf-Rahrov, a number of triable issues as to whether and when plaintiff was or would have been qualified to resume her position if Spare Time had removed the obvious trigger to plaintiff's mental health deterioration—separating her from the man who harassed her.
Nevertheless, Spare Time also would be entitled to summary adjudication if it proved it had a legitimate, nondiscriminatory reason to discharge plaintiff. Spare Time argues that, not only did plaintiff fail to communicate with them, she never requested a reasonable accommodation, never turned in the request form provided by Spare Time, and never told them when, or if, she could return to work. Given the importance of the marketing director to bringing in revenue and the fact plaintiff had been on a four-month leave of absence, Spare Time insists it discharged her, not because of plaintiff's disability, but because she was unavailable to work for the foreseeable future and remained uncooperative and uncommunicative.
We find Spare Time satisfied its initial burden of demonstrating a nondiscriminatory reason for discharging plaintiff by presenting evidence she did not submit the questionnaire and she did not request to return to work or provide any specificity as to when she could and would return. "[A]n employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination." (Hearsant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
A Plaintiff's evidence may be direct or circumstantial, although direct evidence of intentional discrimination is rare and a plaintiff usually proves a discriminatory animus circumstantially. (Soria, supra, 5 Cal.App.5th, at pp. 590-591.) That is true in this case. Plaintiff presented sufficient circumstantial evidence that Spare Time's asserted reason for discharging her was pretextual and that a trier of fact is needed to determine Spare Time's true motives. The evidence included Spare Time's hasty and incomplete investigation of her charges of sexual harassment; Sierra's repeated misrepresentations that she was not communicating or cooperating, when in fact, she was; Spare Time's insistence that she work for the man who, she claimed, was harassing her; Sierra's unreasonable demand that the questionnaire be returned by 5:00 p.m. on the same day as her appointment with her doctor; the aborted nature of the interactive process; and her abrupt termination, a mere 41 days after the interactive process had begun. This evidence, taken together with her entire deposition testimony, suggests that Spare Time may have discharged her because she was anxious and depressed, and rather than dealing with the difficult issues raised by her sexual harassment complaint, found it much easier to dispose of a now disabled employee. Or, a trier of fact may reject these inferences. But we conclude the trial court erred by removing the disability discrimination claim from the trier of fact and by entering summary adjudication in Spare Time's favor as a matter of law.
VIII
There Are Triable Issues of Fact Involving Other FEHA Causes of Action
At its essence, plaintiff alleges that she became severely depressed and suffered anxiety attacks as a result of Rose's violent behavior and sexual harassment. In other words, her ensuing mental health condition rendered her disabled within the meaning of the FEHA. In three separate causes of action, she alleges Spare Time engaged in different employment practices outlawed by the FEHA: the failure to engage in a good faith interactive process to find a reasonable accommodation for a known condition or disability (Gov. Code, § 12940, subd. (n)), the failure to provide a reasonable accommodation (Gov. Code, § 12940, subd. (m)), and retaliation (Gov. Code, § 12940, subd. (h)). Her first cause of action, for wrongful termination in violation of public policy, rests on the viability of her FEHA claims.
Failure to Engage in a Good Faith Interactive Process
The FEHA not only forbids discrimination based on disability, it also imposes affirmative obligations on employers to ensure that they do not discriminate. Thus, an employer must take reasonable steps to accommodate employees with disabilities. In determining an appropriate reasonable accommodation, the employer is required to consult with the employee. The FEHA makes it "an unlawful employment practice . . . [¶] . . . [¶] [f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." (Gov. Code, § 12940, subd. (n).) The interactive process burdens both the employer and the employee. Both have the continuous obligation to keep communication open and not to obstruct the process. (Scotch, supra, 173 Cal.App.4th at pp. 1013-1014.) "Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith." (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62, fn. 22.)
The trial court's ultimate obligation is to determine the cause of any breakdown in the interactive process and then assign responsibility so that liability ensues only where the employer bears responsibility. (Nadaf-Rahrov, supra,166 Cal.App.4th at p. 985.) The employer cannot prevail on summary judgment if there is a genuine dispute whether the employer engaged in good faith in the interactive process. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (Jensen).) "Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perform his or her job effectively [citation], an employer's failure to properly engage in the process is separate from the failure to reasonably accommodate an employee's disability and gives rise to an independent cause of action [citation]." (Swanson, supra, 232 Cal.App.4th at p. 971.)
Spare Time asserts that there are no genuine issues of material fact because plaintiff failed to submit the questionnaire completed by her doctor, failed to request a reasonable accommodation, and failed to openly communicate with the responsible human relations personnel. A close examination of the materials submitted in opposition to the summary judgment motion presents a much murkier and nuanced story. Neither side appears blameless; indeed, both have admitted their shortcomings. The question is, of course, whether there remain factual disputes over how the interactive process broke down. Context and timing prove to be enlightening.
The context, from plaintiff's point of view, includes the two-year period of harassment that preceded her forced medical leave. She alleges she was subjected to verbal abuse, violent outbursts, and sexually inappropriate language culminating in the April 16, 2010, meeting during which Rose shouted profanities at her. Feeling humiliated and physically threatened, plaintiff suffered a panic attack requiring medical intervention. On April 19 her doctor put her on a two-and-a-half-week medical leave. A week later she filed an incident report in which she attributed her leave to work-related stress due to Rose's sexual harassment.
As Spare Time recounts, Sierra informed plaintiff that, in addition to filing a workers' compensation claim, she was entitled to a 12-week leave of absence under the FMLA. During this time period, plaintiff filed all the necessary paperwork to obtain workers' compensation, scheduled appointments with the workers' compensation doctors, and continued treatment with her private physician. She wrote to Sierra that she had not been told she needed to apply for family leave and objected to Sierra's designation of her medical leave of absence that began April 19 as family leave. She did not apply for family leave until July 12, 2010. Her physician, Dr. Lin, extended her medical leave several times.
But neither side focused on plaintiff's disability or the need to fashion a reasonable accommodation until she exhausted her family leave in July 2010. By then her sexual harassment complaint had been dismissed by Spare Time. According to plaintiff, in April Sierra had assured her Spare Time was conducting a thorough investigation of her charges. Tappan, who alone conducted the limited investigation, interviewed only two of the 12 witnesses plaintiff identified on her incident report. He did not discuss the allegations with plaintiff. And before he issued a report, Sierra wrote to plaintiff, informed her that the investigation was complete, her charges were not substantiated, and she was expected to return to work with Rose. Sierra further admonished her to find a way to work with the man she perceived to be her harasser, and threatened plaintiff with disciplinary action if she spoke about what she deemed to be a confidential sexual harassment complaint. Sierra would later admit that attempts should have been made to interview all of the witnesses. Nevertheless, on July 7, 2010, plaintiff was definitively told her sexual harassment complaint was without merit and she was expected to work with Rose.
Sierra accused plaintiff of failing to return calls and e-mails. In an e-mail on July 13, plaintiff rebutted those accusations in a detailed description of all the correspondence between them. Yet that damning accusation persisted. The management personnel who ultimately decided to fire plaintiff all testified they relied on Sierra's representation that plaintiff had failed to communicate with her.
To recap, when Sierra initiated the FEHA-required interactive process on July 16, 2010, Spare Time already had rejected plaintiff's sexual harassment complaint and had instructed her to continue to work with Rose. Forty-one days later, Spare Time fired her. Given this context and the abbreviated timeline, are there genuine issues of fact whether Spare Time engaged in a good faith interactive process during those 41 days?
The law is clear that both the employer and the employee share the responsibility to engage in open and ongoing conversations as they seek to find a reasonable accommodation for the employee's disability. (Swanson, supra, 232 Cal.App.4th at pp. 971-972.) The facts are not so clear. It is true that plaintiff had not returned the questionnaire Sierra had requested by August 26, when she was fired. And it is also true that her leave had been extended multiple times, she had been off work for four months, and she had not given Spare Time a date certain when she could return.
But there are many inferences a jury might draw from Spare Time's handling of her grievance and its participation in the interactive process. A jury might excuse plaintiff's failure to expressly ask to be separated from Rose since Spare Time had rejected her claims and ordered her to work with him. Not only is separation of a victim from her harasser a potentially reasonable accommodation, but a jury might find that Spare Time, which failed to conduct a thorough investigation of an employee's allegations and ordered plaintiff to continue to work for the very man who had allegedly harassed her for two years, did not exhibit the requisite good faith essential to the interactive process. That is not to conclude that Spare Time acted in bad faith, only that plaintiff has raised a reasonable inference that Spare Time neither initiated nor continued to engage with plaintiff in the interactive process in good faith.
Moreover, plaintiff raises a number of other inferences a trier of fact might draw from the evidence she presents. She notes that the letter dated July 16 was not postmarked until three days later, a fact of some significance when she was given only 15 days to return the questionnaire. She also points out that she was unable to schedule an appointment with her doctor within the allotted time frame and notified Sierra that she could not be seen until August 23. Sierra agreed to extend the deadline until August 11, a date that provided no assistance to plaintiff since she could not see her doctor until August 23. It was not until plaintiff informed her a second time that she could not meet the August 11 deadline that Sierra agreed to extend the deadline to 5:00 p.m. on August 23.
A jury might reasonably infer that Sierra's rigidity evidenced bad faith. Her superiors testified that there was no reason they knew of for the self-imposed August 23 deadline. And, without any further inquiry or communication, plaintiff was fired three days later. Why was it necessary to receive the questionnaire by the end of the very day plaintiff had been scheduled to be seen? A trier of fact might conclude that Spare Time was anxious for plaintiff to fail; that is, the failure to turn in the questionnaire provided the justification for getting rid of an employee whose disability had become inconvenient and irksome. Spare Time also has a sound countervailing argument to make to the jury that it provided plaintiff with multiple extensions of time to return the questionnaire as a first step in ascertaining the scope of her disability and the possible accommodations it might provide and that, in the absence of the questionnaire, the entire process was stymied. Yet we must conclude that there remain layers of possible inferences to draw from the evidence, and although we must leave factual determinations to the jury to decide, those inferences are hotly disputed, genuine issues of fact.
Spare Time, however, expands the time horizon, insisting that plaintiff was to blame for a persistent failure to communicate from the time she went out on leave mid-April 2010 until she was fired four months later. Spare Time reminds us that it was not obligated to hold her job open indefinitely, particularly in light of her failure to return the questionnaire. These are arguments Spare Time certainly can make to the jury at trial, but there are a number of genuine, triable issues of material fact as to who was responsible for the breakdown. Thus, we must reverse the summary adjudication of the seventh cause of action for failure to engage in the interactive process.
Failure to Provide a Reasonable Accommodation
Under the FEHA, an employer's "fail[ure] to make reasonable accommodation for the known physical or mental disability of an applicant or employee" is an unlawful employment practice. (Gov. Code, § 12940, subd. (m).) "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, supra, 173 Cal.App.4th at pp. 1009-1010.)
Reasonable accommodation means "a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired." (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 983.) Because an employer has a continuing affirmative duty to reasonably accommodate a disabled employee, a single failure to accommodate may give rise to liability despite other attempts to do so. (Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1653.)
An employer's duty to provide a reasonable accommodation is separate from its duty to engage in an interactive process and gives rise to an independent cause of action. (Swanson, supra, 232 Cal.App.4th at p. 971.) And although the elements of a failure to accommodate are similar to the element of disability discrimination, there are important distinctions. "The plaintiff must, in both cases, establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual. For purposes of a [Government Code] section 12940, subdivision (k) claim, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position." (Jensen, supra, 85 Cal.App.4th at p. 256.) The employee need not prove that the failure to accommodate was caused by the employee's disability because the failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself. (Ibid.)
First, we must reiterate that plaintiff's testimony, when read in its entirety, contained no admissions fatal to her reasonable accommodation claim. We need not repeat what we outlined at length above, but merely conclude that the record supports plaintiff's position that she sought separation from Rose, whether explicitly or implicitly, and she made no unequivocal admissions she would be unable to perform the essential functions of her job as marketing director.
To say, therefore, that plaintiff unambiguously testified that she could not return to work whether Rose was there or not is to unfairly sanitize the record. From plaintiff's point of view, she had notified Spare Time that Rose had harassed her and created a hostile work environment with his violent outbursts, and despite her allegations, Spare Time had conducted a cursory investigation and ordered her to return to work for the same manager. Through the workers' compensation proceedings, Spare Time was also informed that plaintiff could return to work if she was separated from Rose. Thus, a jury could conclude that separation from Rose was the reasonable accommodation plaintiff sought.
The jury, of course, may reject plaintiff's explanations and find she no longer remained qualified to perform the position, and therefore her accommodation claim may ultimately fail. But we conclude her testimony raises triable issues of material fact and entitles her to a jury assessment of the conflicting evidence.
Spare Time correctly points out that an indefinite leave of absence does not constitute a reasonable accommodation. In Spare Time's view, it had been flexible and generous in providing four months of leave, and in the absence of the questionnaire outlining the restrictions and limitations plaintiff required, it had no duty to hold the marketing position open indefinitely. Spare Time misunderstands plaintiff's argument and ignores its responsibility to take affirmative action in designing an accommodation. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389.)
Plaintiff did not ask for an indefinite leave, nor does she argue on appeal that an indefinite leave would provide the accommodation she needs. Rather, her position throughout the litigation has been that she cannot return to work for the man who bullied and sexually harassed her for two years and who was responsible, to some degree, for her disability. Spare Time responds that neither plaintiff nor her doctor requested separation from Rose as a reasonable accommodation and it was her burden to do so.
Rather than debate the parties' respective burdens of proof in achieving or resisting summary adjudication, we again point out that plaintiff has raised a triable issue of fact as to whether she sufficiently requested a reasonable accommodation for which she was qualified. Her position is that all she needed was separation from Rose, an accommodation which seems both obvious and potentially reasonable. There is no dispute that Spare Time failed to offer the accommodation she sought. There is, however, a genuine dispute as to whether the requested separation from Rose was reasonable and whether she remained qualified to return to her job if it was. A jury will make those determinations.
Retaliation
Retaliation for seeking a reasonable accommodation constitutes yet another unlawful employment practice under the FEHA. (Gov. Code, § 12940, subd. (h).) Plaintiff relies on indirect evidence of retaliatory intent to establish her retaliation claim against Spare Time. To establish her prima facie case under the FEHA, she must show she engaged in a protected activity, Spare Time subjected her to an adverse employment action, and a causal link existed between the protected activity and the adverse employment action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) It is only the causal connection between her complaint of sexual harassment and her termination that is at issue.
Spare Time argues vehemently that there is no evidence of retaliatory animus contained in Sierra's letter of July 7, 2010, in which Sierra informed plaintiff that the investigation found no merit to her sexual harassment claim, she was expected to return to work for Rose, and she was prohibited from discussing her allegations. Nor was there any evidence, according to Spare Time, that either Russo or Anderson, who testified they saw no reason for the abbreviated deadline for returning the questionnaire, were involved in the decision to terminate her. Spare Time insists that plaintiff ignores her own responsibility to return the questionnaire to facilitate the interactive process and the fact it had already provided her with two extensions of time to do so. Spare Time asserts that the decision to terminate her was based on legitimate business reasons, most prominently that sales had plummeted in the absence of a marketing director for four months, and plaintiff remained uncooperative and uncommunicative. Unsure when she was going to return, if ever, and unable to obtain the questionnaire or otherwise determine what her limitations and restrictions were, Spare Time was left with no choice but to fire her.
Plaintiff contends Spare Time has not established the lack of retaliatory animus as a matter of law. To the contrary, she asserts that the temporal proximity between making the accusations and her termination is sufficient evidence to show a causal link. "Close proximity in time of an adverse action to an employee's resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive." (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1235, overruled on other grounds in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162-1163.) But she does not rely on temporal proximity alone. She argues that the July 7 letter threatening her with discipline if she discussed the investigation of her sexual harassment claim is yet another fact from which the jury could find a retaliatory animus. When coupled with a woefully inadequate investigation and Sierra's repeated misrepresentations that plaintiff had refused to communicate with them, plaintiff insists there are triable issues of fact and urges us to reverse the trial court's final ruling to the contrary.
We find that plaintiff's evidence establishes a prima facie case of retaliation and thereby shifts the burden to Spare Time to show a legitimate, nonretaliatory reason for the termination. (Scotch, supra, 173 Cal.App.4th at p. 1020.) For the reasons we have explained, Spare Time met this burden. The burden therefore shifts back to plaintiff to prove intentional retaliation.
Plaintiff need not present direct evidence of retaliatory animus but can rely on circumstantial evidence to raise a reasonable inference the employer intended to retaliate against the employee. (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1219-1220.) We must liberally construe the evidence in favor of the opposing party. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039 (Hughes).) Subservient to the rules of summary judgment review, including the stacked deck in favor of a party seeking resolution by a trier of fact, we conclude plaintiff has presented sufficient circumstantial evidence to raise a reasonable inference and thus a triable issue of fact that the decision makers were motivated by retaliatory animus. That evidence includes the perfunctory investigation of her complaint, the notice to her that the complaint was without merit before the report was prepared, the threat to her not to discuss the investigation, the imposition of an artificial deadline for submitting the questionnaire, and, most importantly, the insistence that plaintiff refused to communicate or to respond to calls, letters, and e-mails when she produced substantial evidence to the contrary. We acknowledge the evidence is far from compelling and a jury may well reject the inferences plaintiff urges us to draw. We conclude only that the evidence is sufficient enough to create a triable issue and therefore satisfy plaintiff's burden in opposing the summary judgment.
Wrongful Termination in Violation of Public Policy
" 'The tort cause of action for wrongful termination in violation of public policy provides a vehicle for recourse that otherwise would be unavailable under general rules of the at-will employment doctrine.' [Citation.] '[T]his public policy exception allows an employee to bring a tort cause of action against an employer who terminates an at-will employment on a ground that violates fundamental public policy.' [Citation.] 'FEHA's provisions prohibiting discrimination may provide the policy basis for a claim for wrongful discharge in violation of public policy.' [Citation.]" (Diaz v. Federal Express Corp. (C.D.Cal. 2005) 373 F.Supp.2d 1034, 1065.)
Plaintiff's ability to recover for the wrongful termination tort rests on the viability of her FEHA claims for failure to engage in an interactive process, failure to provide a reasonable accommodation, and for retaliation. Since we have found material issues of fact with respect to each of these alleged FEHA unlawful employment practices, we must reverse the summary adjudication of the wrongful termination against public policy cause of action as well.
DISPOSITION
The judgment is affirmed in part and reversed in part as explained herein. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
RAYE, P. J. We concur: BUTZ, J. RENNER, J.