Rebolledo v. Nuevo CA2/1 ( 2021 )

Filed 4/27/21 Rebolledo v. Nuevo CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LIANNA REBOLLEDO, B303332
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC695003)
v.
HOMBRE NUEVO, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert S. Draper, Judge. Affirmed.
Cristal Law Offices, Cristal L. Cabrera; G-ROD Law
and Griselda S. Rodriguez for Plaintiff and Appellant.
Andrade Gonzalez, Sean A. Andrade and Henry H.
Gonzalez for Defendant and Respondent.
Plaintiff Lianna Rebolledo appeals from a judgment in
favor of her former employer, defendant Hombre Nuevo (HN),
after the trial court granted HN’s motion for summary judgment
on all claims in Rebolledo’s complaint against HN. Rebolledo’s
complaint alleges that HN’s termination of her employment
violated public policy and the Fair Employment and Housing Act
(the FEHA), that HN employees made defamatory statements
about her in discussing her discharge with HN students and
volunteers, that HN did not provide her with a copy of her
complete personnel file in the manner required by Labor Code
section 1198.5, and that the statutory violations Rebolledo
alleges constitute actionable unlawful business practices under
Business and Professions Code section 17200. We conclude
that HN met its burden of establishing that there is no triable
issue of material fact as to any of Rebolledo’s causes of action.
Accordingly, we affirm.
FACTUAL BACKROUND
HN is a Catholic nonprofit organization that operates a
radio station, Guadalupe Radio, and Escuela de la Fe, a religious
institute. Escuela de la Fe offers various courses taught by
volunteers (referred to as trainers, or formadores) at HN’s
facilities in El Monte and local parishes in Los Angeles.
HN hired Rebolledo in August 2013 as an assistant at
Guadalupe Radio, and she later became the coordinator for
Escuela de la Fe. As coordinator, her responsibilities included
recruiting and coordinating trainers and volunteers for
Escuela de la Fe, increasing Escuela de la Fe’s enrollment,
promotions, inventory, publicity, and public relations.
Rebolledo’s immediate supervisor testified—and HN does not
dispute—that Rebolledo performed her job duties satisfactorily.
2
A. Rebolledo’s Diagnosis of Cysts Requiring
Surgery1
In late 2016, Rebolledo’s doctor, Dr. Rumi K. Lakha, found
what he believed were lumps in her breasts. Dr. Lakha referred
Rebolledo to the Downey Breast Center, where she was diagnosed
with having various cysts that required further examination.
In November 2016, Rebolledo’s doctor told her she would need
surgery, and that her surgery “was being programmed to take
place in January of 2017.”
B. Rebolledo’s 2016 Requests for Leave
In November 2016, Rebolledo informed Father Carlos
Orozco, the director of Escuela de la Fe at the time, that she
would need one to two months off for surgery beginning sometime
in January 2017. Orozco responded that Rebolledo should try
to leave everything at work in order before taking time off and
directed her to speak with Elvia Arango and Rosalba Cervantes,
who handled personnel and human resource matters.
In November or December 2016, Rebolledo told Cervantes
she would need time off for her surgery beginning in January
2017 (without providing a specific date), to which Cervantes
replied, “ That’s fine. That’ll be fine.”2 Also in November or
1 HN disputes whether Rebolledo was diagnosed with
breast cancer and whether she ever had surgery. However, as
discussed below, we view the evidence in the light most favorable
to Rebolledo (see Loggins v. Kaiser Permanente Internat. (2007)
151 Cal.App.4th 1102, 1109 (Loggins)), and doing otherwise on
this particular point would not affect our ultimate disposition
on appeal in any event.
2 Although Rebolledo disputes Arango’s deposition
testimony that she responded in a similar manner when
3
December 2016, Rebolledo sent Arango an email requesting the
time off in writing, and “mentioned [her] medical reasons.” In
discussing her upcoming absence with Cervantes in November
2016, Rebolledo “offered to help move the Escuela de la Fe office
items into the main building of HN,” as the Escuela de la Fe
office building was going to be demolished. Rebolledo also offered
to train someone to replace her during her upcoming absence.
In December 2016, Rebolledo discussed her upcoming
absence with Cervantes again, as well as her related offer of
help with the office move and to train a temporary replacement.
They also discussed the monthly report Rebolledo would need to
complete before her absence, and that Rebolledo would need to
“submit everything that was related to the upcoming classes for
the month of January 2017” before her time off as well.
C. Rebolledo’s January 5, 2017 Car Accident,
Doctor’s Visit, and Doctor’s Note
On January 5, 2017, Rebolledo was involved in a car
accident before work. Although she did not suffer any physical
injuries in the accident, “[she] was scared, anxious and fearful
because the accident occurred on a rainy day on the freeway.”
She left early from work that day to see her doctor (Dr. Lakha).
Dr. Lakha provided her a note stating that Rebolledo “received
treatment at [his] office” and “require[d] a medical leave of
absence from [January 5, 2017] to [January 12, 2017].” The
note did not specify why Rebolledo required leave. However,
as of January 5, 2017, Rebolledo still did not know what date
Rebolledo informed Arango in November or December 2016
that Rebolledo needed time off, Rebolledo does not maintain,
or offer any evidence to suggest, that Arango denied any such
request in November or December 2016.
4
her surgery was scheduled, and she does not argue (nor does
anything in the record suggest) that the cysts in her breasts
required her to take leave beginning on January 5, 2017.
Rebolledo informed Cervantes via phone that same evening
that she had received a doctor’s note “excus[ing] [her] off of
work.” The next day (January 6, 2017), Rebolledo went to HN
and provided Cervantes with her January 5 doctor’s note. At
that time, Cervantes informed Rebolledo she “could not leave
work until [Rebolledo] provided the yearly and monthly reports,
the annual reports, inventory, work plan ahead, and work plan.”
Rebolledo stated she had completed the reports, but Arango
responded the reports needed to be formatted differently and
that Rebolledo needed to reformat them. Cervantes and Arango
also informed Rebolledo that she needed to train two individuals
before taking her leave as well.
On January 9, 2017, Rebolledo learned that her surgery
would take place on January 27, 2017.
Rebolledo completed the requested reports in the required
format on January 10, 2017, and finished training the two
individuals on January 11, 2017.
D. Rebolledo’s January 12, 2017 Doctor’s Note and
Resulting Leave
On January 12, 2017, Rebolledo obtained another doctor’s
note from Dr. Lakha indicating that Rebolledo had “received
treatment at [his] office” and “require[d] a medical leave of
absence from Jan[uary] 12[,] 2017 to Jan[uary] 31[,] 2017.”
Although her surgery was not scheduled until two weeks into
that period, according to Rebolledo, she “needed this time because
of the additional stress that [she] was undergoing because of
all the reports that [Cervantes and Arango] were having [her]
5
prepare and submit, . . . coupled with the date for the January
class enrollments.”
Rebolledo provided the January 12th note to Cervantes.
No one at HN expressly approved or denied the request for leave
included in the note, but Rebolledo did not return to work
beginning January 12, 2017. Rebolledo does not contend that
anyone at HN indicated to her after that point that she had to
return to work or was not permitted to take leave.
E. Rebolledo’s January 27, 2017 Doctor’s Note and
Additional Time Off
Rebolledo underwent surgery on January 27, 2017.
On January 30, 2017, Rebolledo submitted another note from
Dr. Lakha dated January 27, 2017 indicating Rebolledo required
additional time off of work until February 28, 2017. Rebolledo
did not receive a response, and indicated in an email that she
would instead use her personal time, sick time, and vacation days
until returning to work.3 Rebolledo does not contend that anyone
at HN indicated to her after that point that she had to return
to work or was not permitted to take the additional time off she
requested.
3 Rebolledo’s declaration indicates that she submitted
the third doctor’s note to HN on January 30, 2017, but that she
emailed HN on January 27, 2017 “[b]ecause [she] did not hear
about [her] doctor’s note.” Obviously, Rebolledo could not have
been emailing HN regarding HN’s lack of response to a note she
had not yet provided. Nevertheless, when Rebolledo informed
HN that she would use her sick and vacation days to extend
her leave past January 31, 2017 does not affect our analysis on
appeal.
6
F. Rebolledo’s Communications with HN During
Her Leave
During her time off, Rebolledo had several communications
via email, text, and phone with HN employees and volunteers
regarding issues that HN would later cite as the basis for
terminating her employment.
1. Text messages with trainer Marco
Valenzuela
On January 26, 2017, Rebolledo sent a text to Marco
Valenzuela, an Escuela de la Fe trainer, saying, “Would you come
with us, or would you stay with Guadalupe Radio?” Moments
after sending that text, Rebolledo followed up with a text saying,
“Please don’t mention this to anyone else.” HN characterizes
this text as reflecting efforts by Rebolledo to persuade trainers
to leave HN and join Rebolledo in a new, competing school.
Rebolledo testified that Valenzuela initiated this text exchange,
and that it was in fact Valenzuela who asked Rebolledo about
starting a new school. Rebolledo contends that a more complete
version of the text exchange would support this, but if either
party produced one, it does not appear in the record on appeal.
It is undisputed that trainers had in the past approached
Rebolledo about starting a new school, and that Rebolledo
declined. Rebolledo contends that these discussions, as well as
her discussion with Valenzuela, arose in the context of trainers’
concerns that, after the Escuela de la Fe office was demolished,
the school would not reopen. Rebolledo testified that she had no
intention to, and never did, form a new school.
7
2. Communications regarding
HN participation at the
Mujeres de Fe Congreso
On February 3, 2017, the day before the Mujeres de Fe
Congreso, a religious convention at which HN had in the past
had a booth, Rebolledo sent an email to all of Escuela de la Fe’s
trainers. The exact contents and meaning of the email are the
subject of dispute, and the record does not contain an English
language version thereof. Rebolledo admitted at deposition,
however, that the email informed the trainers that HN would not
have a booth at the event. According to Rebolledo, trainers had
been contacting her while she was on leave to ask whether there
would be such a booth, since Rebolledo was typically the one who
organized HN’s participation at the event. Rebolledo assumed
there would not be a booth, given that she had not organized one,
but did not confirm this with anyone at HN before so informing
the trainers. Rebolledo learned after sending the email that HN
did have a booth at the event.
3. Communications regarding curtains
During Rebolledo’s time off, Cervantes contacted Rebolledo
regarding curtains in the Escuela de la Fe office that appeared to
be missing. Rebolledo initially told Cervantes that the curtains
belonged to Rebolledo. Rebolledo later indicated the individual
who had donated the curtains had asked her to return them,
and still later that she had already returned the curtains
to the donor. Rebolledo admits to making these statements,
and that none of them were true, but further testified that she
was convalescing from her surgery at the time and was “under
heavy medication.” According to Rebolledo, she also “felt under
pressure” when asked about the curtains, and she said what she
felt she needed to say in order to be left alone during her leave.
8
The Escuela de la Fe offices where the curtains were
initially located were open and accessible to all trainers,
students, and volunteers. It is undisputed that the curtains
were ultimately found in a closet located on HN property
sometime after Rebolledo was fired.
For some time after the curtains were found, HN continued
to maintain that Rebolledo had stolen them. Rebolledo does not
dispute that HN was conducting an investigation into the
missing curtains during some of that time, but characterizes
HN’s investigation as “haphazard” and a “sham.”
G. Rebolledo’s February 13, 2017 Termination
On February 13, 2017, while still off work in connection
with her surgery, Rebolledo received a certified letter from
Cervantes informing her that her employment with the
organization had been terminated. The letter stated that
Rebolledo’s employment was being terminated “because [HN]
learned that (1) within the last week [Rebolledo] contacted
professors from the Escuela de la Fe in an attempt to persuade
them to leave [HN] and join [her] in a new competing school;
(2) within the last week [Rebolledo] contacted Escuela de la Fe
professors and told them not to attend the February 2017
Mujeres de Fe [C]ongreso and as a result, there was nobody from
the school to tend the Escuela de la Fe booth; and (3) [Rebolledo]
removed and/or disposed of curtains and other items that were
donated to the Escuela de la Fe without authorization” (italics
omitted) and “[w]hen [Rebolledo] [was] asked why [she] did so,
[she] first indicated that the curtains belonged to [her] but then
said that [she] returned them to the donor. However, [HN]
underst[ood] from the donor . . . [they] were never returned to
him.”
9
A few days later, Rebolledo filled out an HN form
requiring her to certify that she had returned to HN “all
supplies, equipment, property, and proprietary information.”
Under the form’s entry for “USB [d]rive of Escuela de la Fe
[m]aterials,” she indicated, “[n]ever receive[d] one.” During her
deposition, Rebolledo testified that she had received a USB drive
containing Escuela de la Fe training materials, but from the
Escuela de la Fe central office in Mexico, rather than from HN.
She further testified that she last recalled seeing the USB drive
in her desk at HN. The parties dispute whether the training
materials contained on the USB drive were confidential and/or
proprietary. HN employees testified they were unable to locate
the USB drive.
H. Orozco and Arango’s February 17, 2017
Statements to HN Employees and Volunteers
Regarding Rebolledo
Rebolledo later learned that Orozco and Arango had spoken
with Escuela de la Fe trainers and volunteers regarding her
termination and the allegations in the termination letter during
a meeting at the Escuela de la Fe office on February 17, 2017.
The parties do not dispute that this meeting took place, but there
is very little information in the record regarding what specifically
was said. Rebolledo testified that she heard a recording of the
meeting that a volunteer who attended made using her cell
phone. Rebolledo recalled that the recording reflected Orozco
answering questions from others present about Rebolledo’s
termination, and Orozco “mention[ing] that he couldn’t talk about
this but that they were going to use all their power and resources
to make [Rebolledo] return to [HN] the databank that [she] had
taken from them and all the other things that were missing.”
Rebolledo’s declaration also describes hearing what sounded like
10
Arango stating that HN was considering pressing criminal
charges against Rebolledo. Rebolledo could not recall whether
Arango’s statements were in response to questions.
Regarding Orozco’s reference to the Escuela de la Fe
database, Rebolledo offered uncontradicted testimony that the
Los Angeles chapter database is digitally stored as an Excel file
on an HN computer, and that a global Escuela de la Fe database
is stored in a separate online server. There is no evidence in the
record suggesting Rebolledo took a copy of either database.
I. Rebolledo’s Personnel Records
On July 21, 2017, Rebolledo’s counsel made a formal
request for her personnel file and payroll records. The records
HN initially provided were missing six pages, which HN
ultimately produced to Rebolledo two years later in connection
with the litigation. The parties do not dispute that three of
these pages were photographs related to the curtains. Although
Rebolledo disputes that the remaining three pages related to an
investigation of possible theft, the only competent evidence in
the record regarding the content of these three pages is a 2019
declaration of Rene Heredia, then-executive director of HN.
Through his declaration, Heredia testified that the six pages of
documents HN did not provide prior to litigation were documents
and photographs “related to the investigation of the missing
curtains and USB [d]rive.”
PROCEEDINGS BELOW
On February 22, 2018, Rebolledo filed a complaint against
HN, alleging causes of action based on the FEHA—namely,
retaliation, disability discrimination, and failure to engage in
the interactive process—as well as causes of action for wrongful
termination, defamation, intentional and negligent infliction
11
of emotional distress, unfair business practices, and failure to
comply with Labor Code section 1198.5, subdivision (h), which
requires an employer to produce certain employee records upon
request. (See Lab. Code, § 1198.5, subd. (h).) HN filed an answer
and, following the conclusion of discovery, moved for summary
judgment.
The trial court granted summary judgment on all causes
of action in favor of HN.
The trial court entered judgment in favor of HN and
dismissed the case against HN.4 Rebolledo appealed the
judgment entered as to HN following the trial court’s order
granting HN’s motion for summary judgment.
DISCUSSION
Code of Civil Procedure section 437c, subdivision (c)
“requires the trial judge to grant summary judgment if all the
evidence submitted, and ‘all inferences reasonably deducible from
the evidence’ and uncontradicted by other inferences or evidence,
show that there is no triable issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th
1110, 1119, quoting Code Civ. Proc., § 437c, subd. (c).) “There is
a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in
favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 (Aguilar).)
Our review of a trial court’s grant of summary judgment is
4 It appears Rebolledo added at least one HN employee
as an individual defendant at some point, but no individual
defendant is a party to this appeal.
12
de novo. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1037.) We therefore independently analyze the evidence in the
record that was presented to the trial court, except that to which
objections were properly sustained, under the same summary
judgment legal framework applicable in the trial court. In so
doing, “[w]e liberally construe the evidence in support of the
party opposing summary judgment [citation], and assess whether
the evidence would, if credited, permit the trier of fact to find in
favor of the party opposing summary judgment under applicable
legal standards.” (Loggins, supra, 151 Cal.App.4th at p. 1109.)
The party moving for summary judgment bears the initial
burden of producing a prima facie showing that there is no triable
issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.)
Where, as here, the moving party is a defendant, it may make
such a showing by establishing the plaintiff cannot prove one or
more elements of plaintiff ’s claim, or by proving an affirmative
defense. (See Code Civ. Proc., § 437c, subds. (o)(1)-(2) & (p)(1)-(2);
Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355−356
(Guz).)
A. Wrongful Termination, Discrimination, and
Retaliation Causes of Action
1. Elements
Rebolledo’s discrimination, wrongful discharge, and
retaliation claims all require Rebolledo to prove that HN fired
her because she requested and took time off due to her breast
surgery.
The elements of a discrimination claim under the FEHA
are: “(1) [the plaintiff] suffers from a disability [or medical
condition]; (2) he [or she] is otherwise qualified to do his [or her]
job; and, (3) he [or she] was subjected to adverse employment
13
action because of his [or her] disability [or medical condition].”
(Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th
864, 886; see Gov. Code, § 12940, subd. (a) [referring to both
disability and “medical condition”].) Rebolledo argues that HN
fired her because she took time off to treat a medical condition
(the cysts in her breasts), and that HN thereby engaged in
discrimination prohibited by the FEHA. Because discharging
an employee in a manner that violates the anti-discrimination
provisions of the FEHA may constitute a violation of public
policy as well (see Stevenson v. Superior Court (1997) 16 Cal.4th
880, 897), Rebolledo argues that her allegedly discriminatory
firing was also a discharge in violation of public policy. (See
Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239
Cal.App.4th 1224, 1234−1235 [“ ‘[t]he elements of a claim for
wrongful discharge in violation of public policy are (1) an
employer-employee relationship, (2) the employer terminated
the plaintiff ’s employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge
caused the plaintiff harm’ ”].)
The elements of a retaliation claim under the FEHA are
“ ‘ “(1) [the plaintiff] engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment
action, and (3) a causal link existed between the protected
activity and the employer’s action.” ’ ” (Nealy v. City of
Santa Monica (2015) 234 Cal.App.4th 359, 380 (Nealy).)
“[P]rotected activity takes the form of opposing any practices
forbidden by FEHA or participating in any proceeding conducted
by [certain fair employment and housing entities].” (Ibid.)
Rebolledo argues that she “engaged in protected activity
by requesting a reasonable accommodation for her breast
surgery . . . and . . . [taking] leave without any express approval
14
or disapproval by [HN] after [submitting] her third doctor’s
note,”5 and that HN fired her as a result, thereby engaging in
retaliation actionable under FEHA.
2. The McDonnell-Douglas framework
Because California law recognizes “that direct evidence
of intentional discrimination is rare, and that such claims must
usually be proved circumstantially” (Guz, supra, 24 Cal.4th at
p. 354), California courts employ the burden-shifting framework
set forth in McDonnell Douglas Corporation v. Green (1973)
411 U.S. 792 (McDonnell Douglas) to the proof of all disparate
treatment-based claims under the FEHA, such as disability
discrimination and retaliation claims, as well as to claims for
termination in violation of public policy. (See Guz, supra, at
p. 354 [discrimination]; Loggins, supra, 151 Cal.App.4th at
p. 1109 [wrongful termination and retaliation].) “[B]y successive
steps of increasingly narrow focus, the [so-called McDonnell
Douglas test] allows discrimination to be inferred from facts that
create a reasonable likelihood of bias and are not satisfactorily
explained.” (Guz, supra, 24 Cal.4th at p. 354.) In the first stage
of the test, “ ‘the plaintiff must show (1) he or she engaged in
a “protected activity [or was a member of a protected class],”
(2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the
protected activity [or employee’s membership in protected
class] and the employer’s action.’ [Citation.] If the employee
5 The parties have not briefed whether this meets the
definition of protected activity for the purposes of a retaliation
claim. Whether or not it does would not affect our ultimate
disposition of this appeal. We therefore need not and do not
decide the issue.
15
successfully establishes these elements and thereby shows a
prima facie case exists, the burden shifts to the employer to
provide evidence that there was a legitimate, nonretaliatory
[and nondiscriminatory] reason for the adverse employment
action. [Citation.] If the employer produces evidence showing
a legitimate reason for the adverse employment action, ‘the
presumption of retaliation “ ‘ “drops out of the picture,” ’ ” ’
[citation], and the burden shifts back to the employee to provide
‘substantial responsive evidence’ that the employer’s proffered
reasons were untrue or pretextual. [Citation.]” (Loggins, supra,
at p. 1109.)
“ ‘A defendant employer’s motion for summary judgment
slightly modifies the order of these [McDonnell Douglas]
showings. If, as here, the motion for summary judgment relies
in whole or in part on a showing of nondiscriminatory reasons
for the discharge, the employer satisfies its burden as moving
party if it presents evidence of such nondiscriminatory reasons
that would permit a trier of fact to find, more likely than not, that
they were the basis for the termination. [Citations.] To defeat
the motion, the employee then must adduce or point to evidence
raising a triable issue, that would permit a trier of fact to find
by a preponderance that intentional discrimination occurred.’ ”
(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986,
1005 (Scotch).) “ ‘In determining whether these burdens were
met,’ ” we “liberally constru[e]” the employee-plaintiff ’s evidence
“ ‘while strictly scrutinizing [the defendant-employer’s]’ ”
evidence. (Ibid.) Liberal scrutiny does not, however mean no
scrutiny: “The employee’s evidence must relate to the motivation
of the decision makers and prove, by nonspeculative evidence,
‘an actual causal link between prohibited motivation and
termination.’ ” (Featherstone v. Southern California Permanente
16
Medical Group (2017) 10 Cal.App.5th 1150, 1159.)
3. Evidence of nondiscriminatory and/or
nonretaliatory motive
We agree with the trial court that HN met its burden under
the McDonnell Douglas test, because it presented “extensive
evidence regarding alternative reasons for discharging Rebolledo”
that have nothing to do with her requests for medical leave or
medical condition. Namely, it is undisputed that Rebolledo told
several inconsistent stories when asked about the whereabouts of
the curtains (whether or not the curtains were later found); that
she emailed Escuela de la Fe trainers telling them there would
be no HN booth at the Mujeres de la Fe Congreso without first
confirming this with her supervisors; and that, whether or not
Rebolledo initiated the text exchange in which Rebolledo did so,
she asked an Escuela de la Fe trainer whether he would “come
with us” or “stay with [HN],” then asked him to keep their
discussion a secret. To satisfy HN’s burden, these actions
need not support a reason for firing Rebolledo that is “wise or
correct”—just “nondiscriminatory.” (Guz, supra, 24 Cal.4th at
p. 358.) “[T]he ultimate issue is simply whether the employer
acted with a motive to discriminate illegally. Thus, ‘legitimate’
reasons [citation] in this context are reasons that are facially
unrelated to prohibited bias, and which, if true, would thus
preclude a finding of discrimination. [Citations.]” (Ibid., italics
omitted.) HN identified and provided undisputed evidence
supporting such legitimate reasons.
We reject Rebolledo’s argument that, because she engaged
in the conduct HN cited as the basis for her discharge during
what she characterizes as a medical /disability leave, that
conduct is “disability related,” such that firing her based on it is
tantamount to firing her for having a disability. Rebolledo cites
17
a line of cases that address “workplace misconduct caused by a
disability.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143,
148, italics added [employee outbursts and threatening actions
at work caused by her bipolar disorder]; Humphrey v. Memorial
Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128, 1140.) Rebolledo’s
claimed disability / medical condition was a diagnosis of cysts
found in her breasts. She cannot reasonably attribute the texts,
email, and statements HN cites as a basis for firing her to the
cysts in her breasts. Her arguments to the contrary—that she
was heavily medicated from her surgery to remove the cysts
and /or on medical leave when she made the statements—
stretches the concept of misconduct “caused” by a disability
far too thin. (Wills v. Superior Court, supra, at p. 148.)
4. Evidence of pretext
Because HN produced evidence of a legitimate reason
for firing Rebolledo, the burden shifted to Rebolledo to
“ ‘demonstrate a triable issue by producing substantial evidence
that [HN’s] stated reasons were untrue or pretextual . . . such
that a reasonable trier of fact could conclude that the employer
engaged in intentional discrimination’ ” or retaliation.6 (See
McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1529 (McGrory).) As evidence of pretext,
6 Rebolledo’s argument that an employee opposing an
employer’s summary judgment motion does not have the burden
of proving disparate treatment oversimplifies the law. An
employee-plaintiff “[does] have a burden, in the face of [a moving
employer-defendant’s] showing of nondiscriminatory [and
nonretaliatory] reasons, to show there was nonetheless a triable
issue that decisions leading to [the plaintiff ’s] termination were
actually made on [a] prohibited basis.” (Guz, supra, 24 Cal.4th
at p. 360.)
18
Rebolledo points to: (1) her declaration and testimony in which
she denies engaging in any of the behavior HN cites as a basis
for her discharge; (2) the fact that the curtains ultimately were
found on HN property and went missing during an office move
from a building that was open to the public; (3) her testimony
and declaration providing additional context for her text to
Valenzuela and email regarding the Mujeres de la Fe Congreso;
(4) evidence she argues suggests HN’s investigation regarding
the curtains was a sham; and (5) the timing of her firing in
relation to her taking time off for surgery. This showing is
insufficient to create a triable issue of fact as to pretext, even
viewing the evidence in the light most favorable to Rebolledo’s
claims and resolving all conflicts in the evidence in her favor.
The first three aspects of the record Rebolledo identifies
at most tend to suggest that HN’s stated factual basis for firing
Rebolledo was wrong or mistaken—that is, that Rebolledo
did not, in fact, steal curtains, attempt to poach trainers, or
intentionally sabotage HN’s presence at the Mujeres de la Fe
Congreso. But to make the requisite showing of pretext,
Rebolledo “cannot ‘simply show [HN]’s decision was wrong,
mistaken, or unwise. Rather, [she] “ ‘ “must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally find
them ‘unworthy of credence’ [citation], and hence infer ‘that the
employer did not act for the [ . . . asserted] non-discriminatory
reasons.’ [Citations.]” [Citations.]’ [Citation.]” ’ ” (See
Batarse v. Service Employees Internat. Union, Local 1000
(2012) 209 Cal.App.4th 820, 834.) Rebolledo identifies no such
inconsistencies or implausibility. That the curtains were later
found at HN is not a basis on which a reasonable factfinder
19
could deem HN’s claim that it believed she stole the curtains
because she repeatedly lied about their whereabouts “unworthy
of credence.” (See Guz, supra, 24 Cal.4th at p. 361.) Similarly,
HN’s claim that it fired Rebolledo because she made statements
that can be reasonably interpreted as reflecting disloyalty to
HN does not become “unworthy of credence” based on Rebolledo
offering innocent explanations for those statements after HN
decided to fire her. (See ibid.; see also Hanson v. Lucky Stores,
Inc. (1999) 74 Cal.App.4th 215, 224 (Hanson).) Nor does it
support the conclusion that there was “ ‘no basis in fact’ ” for
HN’s claimed understanding of Rebolledo’s statements. (Hanson,
supra, at p. 224.) Whether Rebolledo has shown pretext depends
not on whether a reasonable factfinder could find Rebolledo
actually did steal curtains or actually was disloyal to HN. (See
King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426,
436 [“[i]t is the employer’s honest belief in the stated reasons
for firing an employee and not the objective truth or falsity of
the underlying facts that is at issue in a discrimination case”].)
Rather, the correct inquiry is whether the evidence HN offered
suggesting HN fired Rebolledo for these reasons is so weak, there
cannot be a “ ‘ “causal connection” ’ ” between those reasons and
her discharge.7 (Clark v. Claremont University Center (1992) 6
Cal.App.4th 639, 665.) The record would not allow a reasonable
factfinder to reach the latter conclusion.
Rebolledo next argues that evidence regarding HN’s
investigation into the alleged theft of the curtains suggests
7 An employee can also establish pretext by offering more
direct evidence of bias or discrimination by the employer, but
Rebolledo does not argue she presented, nor does our review of
the record identify, any such evidence.
20
the investigation was a sham, and thus HN’s claim that it
fired Rebolledo because of theft is pretextual. Rebolledo points
specifically to the fact that Orozco, Cervantes, and Arango were
not all involved in the investigation, and that HN continued its
investigation after the curtains were found. A reasonable jury
could not infer from this evidence that HN’s investigation was
disingenuous. Rebolledo identifies no reason why all three of
these individuals should have been involved in the investigation.
Nor does the fact that the curtains were found necessarily mean
that they were not stolen. And HN continuing its investigation
thereafter—as well as after Rebolledo was fired—actually
suggests it was not a sham.
The final way in which Rebolledo seeks to establish
pretext—the timing of her discharge relative to taking time off—
also is not a basis on which a reasonable factfinder could
disbelieve HN’s stated grounds for termination. Although
Rebolledo correctly notes that a trier of fact may reasonably
infer discrimination and pretext from circumstantial evidence,
including timing, timing cannot be the only evidence of pretext.
(See Loggins, supra, 151 Cal.App.4th at p. 1112 [temporal
proximity between the protected action and adverse employment
action is alone insufficient to establish pretext]; Scotch, supra,
173 Cal.App.4th at p. 1009 [same].) Here, as discussed above,
none of the other evidence Rebolledo identifies suggests pretext.
Thus, the timing of her termination does not create a triable
issue of fact, whether considered alone or in connection with
the other evidence she identifies.
In sum, although we agree with Rebolledo that a
plaintiff may prove pretext purely through circumstantial
evidence, and/or through the weakness of evidence put forth
by the employer, Rebolledo “failed to demonstrate ‘ “ ‘ “such
21
weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions” ’ ” ’ in [HN’s] reasons [for firing her] that a
reasonable trier of fact could rationally find those reasons not
credible. [Citation.]” (See Scotch, supra, 173 Cal.App.4th at
p. 1009.) Thus, her “claim[s] depend[ ] on an inference, drawn
solely from the timing of events,” that HN fired her because of
her requests for leave, yet “[a] reasonable jury could not draw
that inference, and neither do we.” (See ibid.)
B. Failure to Engage in the Interactive Process
The FEHA imposes an affirmative duty on employers
“to make [a] reasonable accommodation for the known disability
of an employee unless doing so would produce undue hardship
to the employer’s operation.” (Nealy, supra, 234 Cal.App.4th
at p. 373, citing Gov. Code, § 12940, subd. (m).) The law
also requires that “in response to a request for reasonable
accommodation by an employee or applicant with a known
physical or mental disability or known medical condition,” an
employer “engage in a timely, good faith, interactive process
with the employee or applicant to determine effective reasonable
accommodations, if any.” (Gov. Code, § 12940, subd. (n).) “Once
the interactive process is initiated, the employer’s obligation
to engage in the process in good faith is continuous. . . . [¶]
Both employer and employee have the obligation ‘to keep
communications open’ and neither has ‘a right to obstruct the
process.’ [Citation.] ‘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
22
the party who fails to participate in good faith.’ [Citation.]”
(Scotch, supra, 173 Cal.App.4th at pp. 1013−1014.)
An employer’s duty to begin the interactive process is
triggered when an employer knows or should know that an
employee has a disability or medical condition and knows or
should know the limitations it places on the employee. (Scotch,
supra, 173 Cal.App.4th at p. 1013 [“ ‘[w]here the disability,
resulting limitations, and necessary reasonable accommodations,
are not open, obvious, and apparent to the employer, . . .
the initial burden rests primarily upon the employee . . . to
specifically identify the disability and resulting limitations,
and to suggest the reasonable accommodations’ ”]; see Gov.
Code, § 12940, subd. (n).) Assuming—without deciding—that
Rebolledo’s request for leave to undergo cyst-removal surgery
triggered HN’s duty to engage in the interactive process, the
evidence creates no triable issue of fact as to whether HN failed
to perform this duty.
Rebolledo argues that HN failed to engage in the
interactive process in good faith because HN employees “forced
her to keep working after [receiving] the January 5, 2017 doctor’s
note,” meaning “they [had] feigned consent to her request back in
November and December of 2016, but in January failed to follow
through.” As further evidence of HN’s alleged failure to
participate in good faith in the interactive process, Rebolledo
cites that fact that HN “did not expressly approve” her
leave request on January 12, 2017, and that HN employees
“continuously contacted her regarding work . . . while she was on
protected leave.” But nothing in the FEHA requires an employer
to grant the exact accommodation requested by the employee
without any adjustments; to the contrary, the goal of the
interactive process is finding a way to reasonably accommodate
23
limitations on the employee created by her disability or medical
condition without imposing undue hardship on the employer.
On the facts in this record, that is precisely what happened. In
2016 when Rebolledo requested leave for surgery, Orozco and
Cervantes told her it was “fine,” and Orozco asked her to try and
leave everything at work in order before her absence. In January
2017, when she presented a doctor’s note with more specific dates
for her desired leave, HN did not permit Rebolledo to start time
off immediately, but rather informed Rebolledo she would need
to complete a series of tasks in order to facilitate her time away
from the office. After Rebolledo did so, she took several weeks
off from work, as HN had indicated in 2016 it would allow her
to do. That HN did not expressly grant the leave a second time
in response to the January 12, 2017 note does not mean HN
was engaging in bad faith in the interactive process—particularly
since HN did not object to or prevent Rebolledo from taking
time off to prepare for, undergo, and recover from her surgery.
Nor does Rebolledo cite any authority for the proposition
that an employer contacting an employee about work-related
matters during medical leave, or requiring an employee to
use sick days or unpaid leave to facilitate a medical leave,
renders the employer’s efforts to engage in the interactive
process disingenuous, or the medical leave an unreasonable
accommodation. (See Hanson, supra, 74 Cal.App.4th at p. 226
[“in appropriate circumstances, reasonable accommodation can
include providing the employee accrued paid leave or additional
unpaid leave for treatment”].) There is nothing in the record
from which the jury could infer that HN failed to engage in good
faith in the interactive process.
24
C. Defamation Claim
Rebolledo’s defamation claim is based on Orozco and
Arango’s statements during the February 17, 2017 meeting
with HN volunteers and personnel that HN was investigating
Rebolledo for stealing and considering pressing charges
against her. The trial court concluded that undisputed facts
established the common interest privilege protected these
statements. The common interest privilege is codified in Civil
Code section 47, subdivision (c), which provides in pertinent
part that a publication or broadcast is privileged if made “[i]n
a communication, without malice, to a person interested therein,
(1) by one who is also interested, or (2) by one who stands in
such a relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication to be
innocent, or (3) who is requested by the person interested to give
the information.” (Civ. Code, § 47, subd. (c); see Noel v. River
Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368 (Noel).)
Determining whether this privilege applies to an allegedly
defamatory statement “involves a two-step inquiry,” and “[o]n
summary judgment, . . . the defendant bears the burden of
showing in the first instance that there is no triable issue
of fact as to [both] issue[s]—that the statement was made on
a privileged occasion, and that it was made ‘without malice.’ ”
(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686,
729.)
As to the first step, Civil Code section 47, subdivision (c)
“appl[ies] to statements by management and coworkers to other
coworkers explaining why an employer disciplined an employee.”
(McGrory, supra, 212 Cal.App.4th at p. 1538.) The trial court
analogized such statements to those at issue here, because
Orozco and Arango made them in the context of HN volunteers’
25
questions about Rebolledo’s firing, and rejected Rebolledo’s
argument that volunteers should be treated differently than
employees for these purposes. We agree with the trial court.
The logic behind the privilege applying to employer statements
about employee misconduct is that such open communications
is necessary “so that (1) appropriate action may be taken against
the employee; (2) the danger of such breaches occurring in the
future may be minimized; and (3) present employees may not
develop misconceptions that affect their employment with
respect to certain conduct that was undertaken in the past.
Where an employer seeks to protect his own self-interest and
that of his employees in good faith and without abusing the
privilege afforded him, the privilege obtains even though it
is substantially certain that emotional distress will result
from uttered statements.” (Deaile v. General Telephone Co.
(1974) 40 Cal.App.3d 841, 849–850.) This logic also applies
to volunteers of an organization, as they, too, have an interest
in the organization, may have information about the possible
misconduct of the disciplined employee, and may just as easily
“develop misconceptions that affect their employment with
respect to certain conduct that was undertaken in the past.”
(Id. at p. 849.)
As to the second step, Rebolledo argues that HN has not
met its burden of establishing that the communications were
made without malice. “ ‘ “The malice necessary to defeat a
qualified privilege is ‘actual malice’ which is established by a
showing that the publication was motivated by hatred or ill will
towards the plaintiff or by a showing that the defendant lacked
reasonable ground for belief in the truth of the publication and
therefore acted in reckless disregard of the plaintiff ’s rights
[citations].” ’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 721 (italics
26
omitted), implicitly overruled on another ground as stated in
Burrill v. Nair (2013) 217 Cal.App.4th 357, 380.) Rebolledo
argues that HN has offered nothing to counteract what she
characterizes as evidence of Orozco and Arango’s reckless
disregard for the truth: Namely, that they accused Rebolledo
of stealing items from a publicly accessible space that were
later found on HN property. In order for this evidence to provide
a basis on which a jury could find such a reckless disregard for
the truth, however, it must establish that the speaker “lacked
reasonable grounds for belief in the truth of the [statement].”
(Ibid.) As discussed above, HN had reasonable grounds for
believing Rebolledo may have stolen HN property. Rebolledo
made multiple false statements when asked about the then-
missing curtains, and appeared to be making a false statement
by indicating on the property return form that she had never
received the missing USB drive. Although Rebolledo has since
offered context for these statements, she did not provide that
context to HN at the time. (See Noel, supra, 113 Cal.App.4th
at p. 1371 [“ ‘[i]nherent in the concept of reckless disregard for
truth is the notion that it is the speaker’s belief regarding the
accuracy of his [or her] statements, rather than the truth of the
underlying statements themselves, that is relevant to the malice
determination’ ”].) She did not, for example, indicate on the
form that she had never received a USB drive from HN, but had
received one from the central office in Mexico; nor is there any
evidence suggesting that, before the February 17, 2017 meeting,
Rebolledo clarified to HN that she had been on medication when
asked questions about the missing curtains. Finally, that the
curtains were found on HN property after the February 17, 2017
meeting does render the statements at the meeting about
possible theft reckless.
27
HN thus established as a matter of law that the allegedly
defamatory statements were subject to Civil Code section 47,
subdivision (c), and that nothing in the record supported the
conclusion that they were made with actual malice. The
judgment in HN’s favor on Rebolledo’s defamation claims was
therefore correct.
D. Negligent and Intentional Infliction of
Emotional Distress Claims
The trial court concluded that Rebolledo’s intentional
infliction of emotional distress (IIED) and negligent infliction
of emotional distress (NIED) claims were barred by the Workers’
Compensation Act (the WCA), which provides the exclusive
remedy for an injury sustained by an employee in the course and
scope of employment. (See Lab. Code, §§ 3600, subd. (a), 3602,
subd. (a); Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund
(2001) 24 Cal.4th 800, 813 (Vacanti).) The WCA exclusivity rule
is based on the “presumed ‘compensation bargain’ ” in which, in
exchange for limitations on the amount of liability, the employer
assumes liability regardless of fault for injury arising out of
and in the course of employment. (Shoemaker v. Myers (1990)
52 Cal.3d 1, 16.) The compensation bargain encompasses both
psychological and physical injury arising out of and in the course
of the employment. (Lab. Code, §§ 3600, subd. (a), 3208.3,
subd. (a).) The general rule of workers’ compensation
exclusivity “applies only if the risks resulting in the injury
were encompassed within the ‘compensation bargain’ ” which
“does not encompass conduct that contravenes a fundamental
public policy or exceeds the risks inherent in the employment
relationship.” (Singh v. Southland Stone, U.S.A., Inc. (2010)
186 Cal.App.4th 338, 366; accord, Vacanti, supra, 24 Cal.4th at
pp. 811–812.) Thus, “some claims, including those based on . . .
28
discrimination or other conduct contrary to fundamental public
policy, are not subject to the exclusivity provisions of the workers’
compensation law. [Citation.] Thus, such claims may be the
subject of both workers’ compensation proceedings and civil
actions.” (Claxton v. Waters (2004) 34 Cal.4th 367, 373.)
Rebolledo argues that her IIED and NIED claims against
HN “arise from HN’s failure to engage in the interactive process
in good faith, discrimination, retaliation, and subsequent
defamation of . . . Rebolledo, all acts which fall outside the WCA
exclusivity rule.” For the reasons discussed above, however, the
court correctly entered judgment in HN’s favor on the interactive
process, discrimination, retaliation, and defamation claims.
Rebolledo thus cannot avoid the WCA exclusivity rule on the
basis that her IIED and NIED claims are premised on conduct
that is exempt from the rule.
E. Failure to Provide Personnel Records Claim
Labor Code section 1198.5 provides that “[e]very current
and former employee, or his or her representative, has the right
to inspect and receive a copy of the personnel records that the
employer maintains relating to the employee’s performance or to
any grievance concerning the employee” within a certain period
of time after making a proper request for same. (Lab. Code,
§ 1198.5, subd. (a); see id., § 1198.5, subd. (b).) If an employer
fails to comply with this obligation, “the current or former
employee or the Labor Commissioner may recover a penalty
of seven hundred fifty dollars ($750) from the employer.” (Lab.
Code, § 1198.5, subd. (k).) The section does not, however, require
an employer to turn over “[r]ecords relating to the investigation
of a possible criminal offense.” (Id., § 1198.5, subd. (h)(1).)
29
Rebolledo seeks recovery of the statutory penalty provided
for in Labor Code section 1198.5 based on HN’s initial failure to
provide her with six pages of her personnel file—which HN has
since produced to her—within the amount of time set forth in the
section. HN contends that it was not obligated to provide these
records in response to Rebolledo’s July 2017 request because they
related to a then-ongoing investigation of possible theft (of the
USB drive and curtains). Rebolledo in turn contends that the
investigation was a sham, and that three of the six pages initially
withheld were unrelated to the purportedly stolen curtains
and/or USB drive in any event. Above, we rejected Rebolledo’s
arguments that there is a basis on which a reasonable jury
could conclude that the investigation was a sham. Nor is there
any competent evidence in the record contradicting Heredia’s
description of the initially withheld pages as relating to HN’s
investigation into potential theft. Rebolledo argues HN admitted
that some of the pages initially withheld do not relate to a
criminal investigation, because HN’s counsel stated at a
deposition that the initially withheld pages contained “emails
where your client [Rebolledo] admits that she’s trying to
start a new school, where your client [Rebolledo] admits she
wants somebody to change a password so she can access that
information.” Counsel’s statement, however, is not competent
evidence of the content of the documents. In any case, HN
counsel’s description is not necessarily inconsistent with
HN’s contention that the six pages at issue relate to an HN
investigation of possible theft. The documents themselves
were made available to Rebolledo in litigation, but she offered
neither these, nor any other evidence, to contradict the otherwise
uncontradicted Heredia declaration.
30
HN thus met its burden of establishing, based on
uncontradicted evidence, that there is no triable issue of fact
regarding Rebolledo’s Labor Code section 1198.5 claim.
F. Unfair Competition Law Claim
California’s Unfair Competition Law (UCL), Business and
Professions Code section 17200 et seq., authorizes civil actions
against, inter alia, any business entity that has engaged in
“any unlawful . . . business act or practice” (Bus. & Prof. Code,
§ 17200; see id., §§ 17203, 17204, 17206), broadly interpreted to
mean “ ‘ “anything that can properly be called a business practice
and that at the same time is forbidden by law.” ’ [Citation.]”
(People v. McKale (1979) 25 Cal.3d 626, 632.) Where, as here, a
claim depends on the allegation that a practice is “ ‘ “unlawful” ’ ”
under some other law, defeating the underlying claim
extinguishes the UCL claim as well. (See Ingels v. Westwood
One Broadcasting Services, Inc. (2005) 129 Cal.App.4th 1050,
1060 [“ ‘[i]f the [underlying] claim is dismissed, then there is
no “unlawful” act upon which to base[ ] the derivative Unfair
Competition claim’ ”].)
Because we affirm the judgment in HN’s favor on all of
Rebolledo’s other causes of action, we likewise affirm the trial
court’s judgment in HN’s favor on Rebolledo’s UCL cause of
action.
31
DISPOSITION
We affirm the trial court’s judgment in Hombre Nuevo’s
favor. Hombre Nuevo is awarded its costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
32