Soria v. Univision Radio Los Angeles , 5 Cal. App. 5th 570 ( 2016 )

Filed 11/15/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SOFIA SORIA, B263224
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC499492)
v.
UNIVISION RADIO LOS ANGELES,
INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court for the County of Los Angeles,
Yvette M. Palazuelos, Judge. Reversed and remanded.
The deRubertis Law Firm, David M. deRubertis and Kelly A. Knight, Lavi &
Ebrahimian, N. Nick Ebrahimian for Plaintiff and Appellant.
Venable, Daniel P. Hoffer and Robert H. Pepple for Defendants and Respondents.
____________________
Sofia Soria, a former on-air radio personality for Univision Radio Los Angeles,
Inc. and Univision Communications, Inc. (collectively Univision), appeals from the
judgment entered after the trial court granted summary judgment in favor of Univision in
Soria’s action for disability discrimination, wrongful termination and related employment
claims. Because material issues of fact exist regarding each of Soria’s claims, we
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Soria’s Employment at Univision
Soria worked for Univision as an on-air radio personality from 1997 until her
termination in November 2011. Soria had three direct supervisors during the relevant
time period: Fernando Perez prior to April 2011, Haz Montana from April to August
2011 and Maria Nava from August to November 2011. In addition, Montana was Soria’s
second-level supervisor throughout 2011.
For nine years preceding her termination, Soria hosted the mid-day radio show on
a Univision radio station in Los Angeles. Soria was scheduled to be in the radio booth
from 10 a.m. to 3:00 p.m. during which time she spoke on the air between songs and
commercials, took calls from listeners and announced promotions and giveaway winners.
Soria was expected to arrive at the station approximately 30 minutes in advance of going
on the air in order to review the “audio log,” which indicated how many times per hour
she would speak that day and for how long each time. Soria was also expected to use this
pre-air time to research relevant topics and prepare what she would discuss on the air.
2. Soria’s Tumor Diagnosis
In 2007 Soria was diagnosed with a small tumor at the junction of her esophagus
and stomach. Testing showed the tumor to be benign, and Soria was told that no
treatment was necessary at that time. In August 2010 Soria experienced nausea and
vomiting and returned to the doctor for further examination. Soria testified the doctors
again told her the tumor was benign, but that she should either have it removed or return
every three to six months for monitoring. Soria opted to return for monitoring rather than
undergo surgery.
2
In October 2011 medical tests revealed Soria’s tumor had grown, and her doctors
stated malignancy could not be definitively ruled out. As such, on October 14, 2011
Dr. Harmik Soukiasian recommended she have the tumor removed “in the next few
weeks” and stated removal “should not be put off any longer.” On that same day Soria
was evaluated by Dr. Miguel Burch, who concurred with Dr. Soukiasian and stated he
was “fairly emphatic about the fact that the mass must be removed.”
Still unsure about whether to have the surgery, Soria sought a third opinion on
November 2, 2011 from Dr. Marvin Derezin. Dr. Derezin stated in his contemporaneous
medical report that he believed the tumor was “most likely” benign. However,
Dr. Derezin wrote he believed the tumor should be removed so that Soria would no
longer be concerned about it. In December 2011 Soria saw yet another doctor,
Dr. Formosa Chen, who also believed the tumor was benign. While Dr. Chen presented
Soria with the option of continuing to monitor the tumor, Dr. Chen ultimately
recommended removal of the mass in order to “definitively diagnose this lesion, as well
as to give the patient peace of mind.” Dr. Chen stated in her report that Soria had not yet
decided whether to have the surgery but would continue to think about it. Soria
ultimately had the tumor removed in April 2012, after the termination of her
employment, at which time tests showed that the tumor was not cancerous.
It is undisputed Soria had no physical symptoms as a result of her tumor that
interfered with her ability to perform her job duties. Soria experienced some pain on the
right side of her torso, but did not know whether it related to her tumor. There was no
evidence the pain or any other symptom inhibited her ability to work. In addition,
Dr. Derezin and Dr. Chen both noted in their examination reports that the tumor was
asymptomatic.
3. Soria’s Communications with Supervisors Regarding Medical Appointments
and Diagnosis
It is undisputed that between May 2011 and November 2011 Soria missed work or
arrived late nine times due to doctor appointments related to her tumor. On each
occasion Soria notified her supervisor(s) in advance and requested permission for the
3
time off. Each request was granted. Most of the emails and text messages in which Soria
requested time off simply stated she had a doctor’s appointment. However, in one email
to supervisor Montana on September 23, 2011, Soria wrote she would be absent one day
the following week due to a “biopsy.”
In addition to emails requesting time off, Soria testified she had three or four
conversations with Nava in 2011 regarding her appointments and diagnosis. Specifically,
Soria stated in September or October 2011 she told Nava she had a tumor and her doctors
recommended the tumor be removed, which would require major surgery, including
cutting off part of her stomach and esophagus. Soria testified Nava had cried during this
conversation, said her brother had died of cancer and recommended a specific doctor and
hospital to Soria. Soria further testified that Nava sent her a text message on
September 30, 2011, the day of her biopsy, in which Nava wrote, “I wish you luck today.
May I call you this evening to know how you are doing? Put your faith in God.” Soria
said Nava did call her that evening to inquire how the biopsy had gone.
Nava, on the other hand, testified she may have known Soria had medical
appointments in 2011, but she never had any conversations with Soria regarding the
reasons for the appointments and Soria never told her she had a tumor or was having a
biopsy. Nava stated she did not recall whether she wrote Soria a text message on
September 30, 2011, but, after reviewing the text message, stated that she “could have”
sent it.
Similarly, Soria recalls telling Montana in the summer of 2011 that she would be
undergoing “several medical exams.” However, Montana testified he did not learn that
Soria had any medical issue until after Soria had been terminated.
4. Soria’s Discussions with Supervisors Regarding Potential Surgery
At her deposition Soria testified that in late October or early November 2011 she
informed Nava she wanted to have surgery in December to remove the tumor and
requested medical leave. According to Soria, Nava told her she could not take leave in
December because another employee would be on leave that month. Nava denied this
conversation took place and testified Soria did not request time off for surgery.
4
5. Univision’s Termination of Soria’s Employment
Nava testified, after she became Soria’s supervisor in August 2011, she repeatedly
observed Soria arrive to work only minutes before her on-air time or after her show had
already started. Nava also stated that other station personnel had complained about
Soria’s tardiness. In October 2011 Nava instructed Soria that she must arrive to work
30 minutes to one hour ahead of her show’s start time to review the daily music log,
research relevant topics and prepare her remarks. Nava also informed the Vice President
of Content, Haz Montana, that she had concerns about Soria’s tardiness and lack of
preparation. According to Nava, in late October or early November she and Montana
concluded Soria’s tardiness was not improving, and they decided to terminate her
employment. Soria was discharged on November 16, 2011.
6. Soria’s Complaint
On January 18, 2013 Soria filed a complaint and on January 24, 2013 a first
amended complaint alleging six causes of action: (1) disability discrimination in
violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900
et seq.);1 (2) failure to provide reasonable accommodation in violation of FEHA;
(3) failure to engage in the interactive process in violation of FEHA; (4) violation and
interference with rights under the California Family Rights Act (CFRA) (§ 12945.1
et seq.); (5) retaliation in violation of CFRA; and (6) wrongful termination in violation of
public policy. In her general allegations Soria averred that she had a “serious medical
condition” and was terminated due to her “need for leave and disability/perceived
disability.” The first amended complaint also alleged Univision had improperly failed to
engage in the interactive process or to provide reasonable accommodations.
7. Univision’s Motion for Summary Judgment/Summary Adjudication
On March 21, 2014 Univision moved for summary judgment or, in the alternative,
summary adjudication. Univision argued Soria’s FEHA claims failed because she did not
have a “disability” as recognized by FEHA since her tumor did not interfere with her
1
Statutory references are to the Government Code unless otherwise stated.
5
ability to perform her job and because Univision did not have knowledge of any
“disability.” Univision also argued, even if Soria was disabled, Univision had a
legitimate, nondiscriminatory reason for terminating her employment and Univision did
not fail to accommodate Soria or fail to engage in the interactive process. As to Soria’s
CFRA claims, Univision argued Soria never requested CFRA leave and such leave was
never denied. Finally, Univision argued Soria’s common law wrongful termination claim
failed because it was premised on the same conduct as the FEHA and CFRA claims.
In support of its argument it had a legitimate, nondiscriminatory reason for
terminating Soria’s employment, Univision submitted declarations from Soria’s
coworkers stating she had a habit of arriving late to work without prior approval.
Univision also relied on declarations from Nava and Montana that Soria had failed to
arrive at the required time even after being specifically instructed to do so.
8. Soria’s Opposition to the Summary Judgment Motion
In opposition to the motion Soria first argued that triable issues of fact existed as
to whether she was entitled to FEHA protection. Soria relied on her medical records and
the testimony of her physicians to argue her tumor was a “medical condition,” a
perceived disability, a potential disability and/or an actual disability within the meaning
of FEHA. Soria also asserted triable issues of fact existed as to whether her supervisor(s)
knew of her medical situation. Soria insisted her alleged tardiness was a pretext for
disability discrimination. As evidence Soria cited the timing of her termination—shortly
after requesting time off for surgery. She also relied on evidence she had received
positive performance reviews, survived two rounds of lay-offs and been awarded a full
bonus in the year before her termination. Soria submitted her deposition testimony in
which she stated that she had been late to work for non-medical reasons fewer than
10 times during 2011. Soria’s opposition also pointed to “weaknesses and
inconsistencies” in Univision’s evidence regarding Soria’s tardiness.
As for her CFRA claims, Soria argued the information submitted to Soria’s
supervisors was sufficient to put Univision on notice she was requesting CFRA-
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qualifying leave and the true reason for her termination was retaliation for requesting
CFRA leave.
9. Univision’s Reply
In reply Univision argued that Soria had not pleaded that she was entitled to
FEHA protection due to a “medical condition,” potential disability or perceived
disability. As such, Univision argued, Soria’s argument was improper and should not be
considered. Alternatively, Univision argued Soria was not entitled to FEHA protection
under these new theories.2
10. Summary Judgment for Univision
The trial court granted summary judgment in favor of Univision, concluding as to
the FEHA claims and the common law claim for wrongful termination that Soria did not
have a physical disability or medical condition entitling her to protection. In addition, the
trial court found Univision had demonstrated a legitimate, nondiscriminatory reason for
the termination and Soria had not presented evidence that the proffered reason was a
pretext for unlawful discrimination. The trial court also ruled Soria’s CFRA claims failed
because Soria did not meet the CFRA requirements for requesting leave.
DISCUSSION
1. Standard of Review
A motion for summary judgment or summary adjudication is properly granted
only when “all the papers submitted show that there is no triable issue as to any material
2
Along with its reply brief Univision submitted a “Reply Separate Statement of
Undisputed Material Facts,” as well as deposition testimony of one of Soria’s physicians,
Dr. Marvin Derezin, that had been taken after Soria’s opposition had been filed. Soria
filed an objection and motion to strike the reply separate statement and an objection to
the testimony of Dr. Derezin. The trial court granted Soria’s motion to strike the reply
separate statement and sustained the objection to the deposition testimony but
nonetheless relied on Dr. Derezin’s testimony. Although Univision has not challenged
the trial court’s evidentiary ruling, it suggests we consider Dr. Derezin’s testimony
because Soria has had an opportunity to respond to it. (See Plenger v. Alza Corp. (1992)
11 Cal. App. 4th 349, 362, fn. 8.) We decline that invitation and have not considered the
deposition testimony of Dr. Derezin in our analysis.
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fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).) We review a grant of summary judgment or summary
adjudication de novo and decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party or a determination a cause of action has
no merit as a matter of law. (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014)
59 Cal. 4th 277, 286; Schachter v. Citigroup, Inc. (2009) 47 Cal. 4th 610, 618.) The
evidence must be viewed in the light most favorable to the nonmoving party. (Ennabe v.
Manosa (2014) 58 Cal. 4th 697, 703; Schachter, at p. 618.)
When a defendant moves for summary judgment in a situation in which the
plaintiff would have the burden of proof at trial by a preponderance of the evidence, the
defendant may, but need not, present evidence that conclusively negates an element of
the plaintiff’s cause of action. Alternatively, the defendant may present evidence to
“‘show[] that one or more elements of the cause of action . . . cannot be established’ by
the plaintiff.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 853; see § 437c,
subd. (p)(2).) “‘“‘The moving party bears the burden of showing the court that the
plaintiff “has not established, and cannot reasonably expect to establish,”’ the elements of
his or her cause of action.”’” (Ennabe v. Manosa, supra, 58 Cal.4th at p. 705; accord,
Wilson v. 21st Century Ins. Co. (2007) 42 Cal. 4th 713, 720 [same]; Kahn v. East Side
Union High School Dist. (2003) 31 Cal. 4th 990, 1002-1003 [“the defendant must present
evidence that would preclude a reasonable trier of fact from finding that it was more
likely than not that the material fact was true [citation], or the defendant must establish
that an element of the claim cannot be established, by presenting evidence that the
plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’”].)
Once the defendant’s initial burden has been met, the burden shifts to the plaintiff
to demonstrate, by reference to specific facts, not just allegations in the pleadings, there is
a triable issue of material fact as to the cause of action. (§ 437c, subd. (p)(2); Aguilar v.
Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) On appeal from an order granting
summary judgment, “the reviewing court must examine the evidence de novo and should
draw reasonable inferences in favor of the nonmoving party.” (Miller v. Department of
8
Corrections (2005) 36 Cal. 4th 446, 470; accord, Aguilar, at p. 843.) “[S]ummary
judgment cannot be granted when the facts are susceptible to more than one reasonable
inference . . . .” (Rosas v. BASF Corp. (2015) 236 Cal. App. 4th 1378, 1392.)
2. The Trial Court Erred in Granting Summary Adjudication on Soria’s FEHA
Claim for Discrimination
a. Governing law
FEHA prohibits an employer from, among other things, discharging a person from
employment because of a medical condition or physical disability. (§ 12940, subd. (a).)
The express purposes of FEHA are “to provide effective remedies that will both prevent
and deter unlawful employment practices and redress the adverse effects of those
practices on aggrieved persons.” (§ 12920.5.) The Legislature accordingly has mandated
that the provisions of the statute “shall be construed liberally” to accomplish its purposes.
(§ 12993, subd. (a).) As the Supreme Court has recognized, “[b]ecause the FEHA is
remedial legislation, which declares ‘[t]he opportunity to seek, obtain and hold
employment without discrimination’ to be a civil right [citation], and expresses a
legislative policy that it is necessary to protect and safeguard that right [citation], the
court must construe the FEHA broadly, not . . . restrictively.” (Robinson v. Fair
Employment & Housing Com. (1992) 2 Cal. 4th 226, 243.)
To establish a prima facie case for unlawful discrimination, a plaintiff must
provide evidence that “(1) he [or she] was a member of a protected class, (2) he [or she]
was qualified for the position he [or she] sought or was performing competently in the
position he [or she] held, (3) he [or she] suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some circumstance suggests
discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 355.)
Under FEHA medical condition and physical disability are separate bases for
improper discrimination, each with its own statutory definition. Physical disability under
FEHA includes “[h]aving any physiological disease, disorder, condition, cosmetic
disfigurement, or anatomical loss that” both affects one or more of the body’s major
systems and “[l]imits a major life activity.” (§ 12926, subd. (m)(1).) Major life activity
9
is “broadly construed” and includes working. (Id., subd. (m)(1)(B)(iii).) FEHA protects
individuals not only from discrimination based on an existing physical disability, but also
from discrimination based on a potential disability or the employer’s perception that the
individual has an existing or potential disability. (§§ 12926, subd. (m)(4), (5), 12926.1,
subd. (b).)
FEHA defines “medical condition” as either “[a]ny health impairment related to or
associated with a diagnosis of cancer or a record or history of cancer” or a genetic
characteristic. (§ 12926, subd. (i); see also Cal. Code Regs., tit. 2, § 11065, subd. (d)(7)
[“‘Medical condition’ is a term specifically defined at Government Code section 12926,
to mean either: [¶] (A) any cancer-related physical or mental health impairment from a
diagnosis, record or history of cancer; or [¶] (B) a ‘genetic characteristic,’ . . . ”].) Unlike
the definition of physical disability, there is no requirement that a medical condition limit
a major life activity in order to be protected.
b. Soria was not entitled to raise a medical condition as an alleged basis for
discrimination for the first time in opposition to the motion for summary
judgment
Univision’s summary judgment motion did not address whether Soria had a
“medical condition” protected under FEHA. In her opposition to summary judgment and
again on appeal, Soria argues there are triable issues of fact whether her tumor was
related to, or associated with, a diagnosis of cancer and, as such, was a protected medical
condition. As it did in its summary judgment reply, on appeal Univision argues the first
amended complaint alleged discrimination based only on a physical disability, not a
medical condition, and that Univision “investigated these allegations and conducted
discovery limited thereto . . . .” Univision contends Soria’s new theories based on
medical condition should be disregarded because they were not properly alleged in
Soria’s first amended complaint.3
3
The trial court did not specifically rule whether the first amended complaint
alleged discrimination based on medical condition, finding only that there was no
evidence or legal authority to support “Plaintiff’s attempted new theories . . . .”
10
“A defendant moving for summary judgment need address only the issues raised
by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her
opposing papers.” (Government Employees Ins. Co. v. Superior Court (2000)
79 Cal. App. 4th 95, 98-99, fn. 4; see Distefano v. Forester (2001) 85 Cal. App. 4th 1249,
1264 [“[t]o create a triable issue of material fact, the opposition evidence must be
directed to issues raised by the pleadings”].) In assessing whether the issues raised by
plaintiff in opposing summary judgment are encompassed by the controlling pleading, we
generally construe the pleading broadly (see, e.g. Laabs v. City of Victorville (2008)
163 Cal. App. 4th 1242, 1257); but the pleading must allege the essential facts “with
reasonable precision and with particularity sufficient to acquaint a defendant with the
nature, source and extent of [the] cause of action.” (Doheny Park Terrace Homeowners
Assn., Inc. v. Truck Insurance Exchange (2005) 132 Cal. App. 4th 1076, 1099.)
In essence, Soria urges us to read her first cause of action as stating two separate
claims, one for discrimination based on physical disability and one for discrimination
based on medical condition.4 The general allegations of the first amended complaint aver
that Soria “had a serious medical condition, specifically a stomach tumor which might be
cancerous . . . .” The phrase “medical condition” appears two additional times in the
general allegations and twice in the first cause of action for discrimination. Soria argues
this use of the term “medical condition” to describe her impairment was sufficient to
expressly allege a cause of action for discrimination based on medical condition.
The first cause of action is captioned “Disability or Perceived Disability
Discrimination in Violation of [FEHA]” and contains multiple allegations that Univision
4
Whether captioned as one or more causes of action in a complaint, discrimination
based on each protected characteristic is a separate claim under FEHA. (Mathieu v.
Norrell Corp. (2004) 115 Cal. App. 4th 1174, 1187 [allegations of sexual harassment and
retaliation actually alleged two separate causes of action under FEHA even though
pleaded in single count of complaint]; see Skrbina v. Fleming Companies (1996)
45 Cal. App. 4th 1353, 1364 [plaintiff who alleges defendant’s single wrongful act invaded
two different rights has stated two causes of action even though pleaded in a single count
of the complaint].)
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terminated Soria “because of” a “disability and/or perceived disability.” Although Soria
used the term “medical condition” several times, she did not allege she met the definition
of having a medical condition under the statute—that is, that she had an impairment
related to a diagnosis of cancer. Indeed, other than the statement her tumor might be
cancerous, the first amended complaint does not mention cancer, let alone contain any
allegation that Soria had received a diagnosis of cancer. Further, the first amended
complaint contains no allegation a medical condition was the cause of, or a motivating
factor for, Soria’s termination. To the contrary, the only reason for termination expressly
or impliedly stated in the first amended complaint is discrimination based on disability.
In sum, even viewing the pleading liberally, Soria did not allege discrimination based on
medical condition sufficiently to put Univision on notice she was asserting this separate
claim. Accordingly, Soria cannot defeat summary judgment by arguing triable issues of
fact exist regarding a claim for discrimination based on medical condition.5
c. Triable issues of fact exist as to whether Soria had a disability under FEHA
Soria contends she suffered from an actual disability under FEHA because she had
a physical impairment, a tumor, that limited two major life activities, normal cell growth
and working. In the alternative, Soria argues she had a potential disability or was
regarded by her supervisors as having had an actual or potential disability.
i. Disability discrimination based on limitation of normal cell growth
A physical disability under FEHA includes a physical condition that “[l]imits a
major life activity.” (§ 12926, subd. (m)(1).) Major life activities, in turn, “include the
operation of major bodily functions, including . . . normal cell growth . . . .” (Cal. Code
Regs., tit. 2, § 11065, subd. (l)(2).) In response to Soria’s argument she presented
5
During oral argument before the trial court Soria’s counsel requested leave to
amend the first amended complaint should the court find her opposition went beyond the
pleadings. The trial court did not expressly rule on the request. Soria failed to address
this issue in her briefing on appeal. Soria has forfeited any challenge to a ruling on the
request to amend. (See, e.g., Behr v. Redmond (2011) 193 Cal. App. 4th 517, 538 [failure
to brief issue “constitutes a waiver or abandonment of the issue on appeal”]; Kelly v.
CB&I Constructors, Inc. (2009) 179 Cal. App. 4th 442, 452 [“point not raised in opening
brief will not be considered”].)
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evidence raising a triable issue of fact whether her tumor limited normal cell growth,
Univision contends this theory of disability discrimination was not adequately pleaded in
the first amended complaint and, in any event, abnormal cell growth without further
symptoms or limitations does not constitute a disability under FEHA.
Soria’s first amended complaint alleged she had a “stomach tumor which might be
cancerous” and the tumor “made it difficult for her to work and . . . limited her ability to
participate in a major life activity such as work.” Because the only major life activity
specified was working, Univision contends Soria cannot assert her tumor limited any
other major life activity. To be sure, the allegations provide the bare minimum of
supporting detail and only vague, generalized assertions of the limitation of major life
activity. However, the complaint identifies working as one such example of a life
activity affected by the tumor, not the only one. There is no question the pleading
adequately put Univision on notice that Soria claimed discrimination based on an ailment
that limited a major life activity. It was Univision’s obligation through discovery to learn
the factual grounds for this theory of liability before moving for summary judgment. Its
decision not to do so and its consequent failure to address this basis for Soria’s disability
discrimination claim in its moving papers are fatal to its effort to obtain summary
judgment/summary adjudication as to this claim. (See Code Civ. Proc., § 437c,
subd. (p)(2); Scripps Clinic v. Superior Court (2003) 108 Cal. App. 4th 917, 929
[summary judgment in favor of defendant inappropriate where defendant failed to
address cause of action alleged, albeit not separately pleaded, in complaint; defendant
cannot defeat for first time in reply cause of action it failed to address in its moving
papers]; Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal. App. 4th 1509, 1534 [if
defendant fails to meet its initial burden of showing entitlement to judgment as a matter
of law, burden does not shift to plaintiff and motion is properly denied without regard to
plaintiff’s opposition].)
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ii. Disability discrimination based on limitation of ability to work6
Univision also argues Soria was not disabled under FEHA because she was not
limited in the major life activity of working: Soria’s tumor was asymptomatic; and,
while she experienced some pain, there was no evidence the pain interfered with her
ability to work. Soria contends the evidence demonstrated her tumor required her to
attend multiple doctor appointments and potentially undergo surgery, all of which
prevented her from working full time. Univision denies this limited her ability to work
because it granted her requests for absences and late arrivals due to doctor visits.
FEHA defines “major life activity” to include working. (§ 12926,
subd. (m)(1)(B)(iii); see also Cal. Code Regs., tit. 2, § 11065, subd. (l)(1).) A physical
condition will be considered a limitation on a major life activity “if it makes the
achievement of the major life activity more difficult.” (§ 12926, subd. (m)(1)(B)(ii);
see Cal. Code Regs., tit. 2, § 11065, subd. (l)(3).)
It is undisputed Soria’s symptoms did not make it more difficult for her to work.
The contemporaneous notes of two doctors who examined Soria prior to and shortly after
her termination indicate the tumor was asymptomatic. Further, the only symptom Soria
6
Although discrimination based on separate protected characteristics (for example,
race and age) or claims of employer liability for different actions (for example,
harassment and retaliation) are distinct causes of action for purposes of a motion for
summary adjudication (see Mathieu v. Norrell Corp., supra, 115 Cal.App.4th at p. 1188),
Soria’s cause of action for disability discrimination asserts the violation of a single
primary right on alternative factual grounds: She had an actual physical disability or a
physical condition that was potentially disabling; or Univision regarded her as having a
disabling or potentially disabling physical impairment. (See Crowley v. Katleman (1994)
8 Cal. 4th 666, 681 [“a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff,
a corresponding ‘primary duty’ of the defendant and a wrongful act by the defendant
constituting a breach of that duty”; “the violation of a single primary right gives rise to
but a single cause of action”]; id. at p. 683 [“under the primary right theory a properly
pleaded cause of action must be premised on a single primary right even though it states
multiple grounds of liability”].) The viability of any one of these factual theories defeats
the motion for summary adjudication. (See Nazir v. United Airlines, Inc. (2009)
178 Cal. App. 4th 243, 251; Hindlin v. Rust (2004) 118 Cal. App. 4th 1247, 1258.)
However, we address each of them for the guidance of the trial court on remand.
14
herself complained of was some pain in her side; however, there is no evidence the pain
resulted from her tumor or caused her any difficulty in performing her job.
However, this is not the end of the inquiry. When the mitigating measure taken by
an individual to treat or accommodate a physical ailment limits a major life activity, then
the ailment may qualify as a disability under FEHA. (See § 12926, subd. (m)(1)(B)(i)
[whether a major life activity is limited “shall be determined without regard to mitigating
measures such as medications, assistive devices, prosthetics, or reasonable
accommodations, unless the mitigating measure itself limits a major life activity”];
Cal. Code Regs., tit. 2, § 11065, subd. (l)(3)(C).) Here, the treatment for Soria’s tumor
consisted of doctor visits and potential surgery that prevented Soria from coming to
work.7 It is undisputed Soria was tardy or absent from work at least nine times in 2011
due to medical appointments related to her tumor; and a jury could reasonably infer either
surgery, if it occurred, or follow-up appointments to continue to monitor the tumor would
result in further time away from work. Repeated or extended absences from work may
constitute a limitation on the major life activity of working. (See Jadwin v. County of
Kern (E.D.Cal. 2009) 610 F. Supp. 2d 1129, 1178 [for purpose of summary judgment
inability to work full time “is certainly a ‘limitation’ on working”]; cf. Rizzio v. Work
World America, Inc. (E.D.Cal. Sept. 22, 2015, 2:14-cv-02225-TLN-DAD) 2015 U.S.
Dist. LEXIS 127154 [finding on motion to dismiss that “the Court could draw a
reasonable inference that Plaintiff’s condition limited a major life activity by virtue of the
fact that the condition required hospitalization and subsequent leave from work”].)
Univision’s contention Soria’s need to miss work for doctors’ appointments
cannot constitute a limitation of a major life activity because it gave her time off for those
visits misses the point. The company’s response to Soria’s requests may have been
7
Univision argues Soria did not properly plead her treatment of the tumor made
working difficult. Again, we reject Univision’s overly narrow reading of the first
amended complaint. In light of FEHA’s definition of physical disability, Soria’s
allegation she had a physical disability that limited a major life activity was sufficient to
put Univision on notice that her treatment may be the cause of the limitation.
15
appropriate and no doubt will be part of its defense to her disability discrimination claim.
But evidence she could not work full time due to treatment of her condition plainly
established a triable issue of material fact on the issue whether Soria had a disability
under FEHA.
iii. Discrimination based on a potential or perceived disability
In addition to protecting against discrimination based on an existing physical
disability, FEHA also prohibits discrimination based on a physical impairment that is
potentially disabling. (§ 12926.1, subd. (b).) Further, FEHA defines disability to
include: “Being regarded or treated by the employer . . . as having, or having had, any
physical condition that makes achievement of a major life activity difficult” and being
regarded by the employer as having a condition “that has no present disabling effect but
may become a physical disability . . . .” (§ 12926, subd. (m)(4) & (5).) By protecting
individuals “regarded as” disabled, the Legislature intended “to provide protection when
an individual is erroneously or mistakenly believed to have any physical or mental
condition that limits a major life activity.” (§ 12926.1, subd. (d).)
Univision argues Soria’s tumor was not potentially disabling because it was shown
to be benign when it was removed in 2012. Once again Univision misconstrues the
fundamental purpose of FEHA. Based on what was known in November 2011, Soria’s
tumor could have been malignant, had the potential to become malignant or could
continue to grow in a way that obstructed Soria’s bodily functions and limited a major
life activity. Discriminatory treatment of Soria in November 2011 because of that
potential would violate FEHA whether or not the condition ultimately became disabling.
The Legislature intended to protect employees from adverse employment action by
employers concerned about what may happen in the future.
Summary judgment was likewise improper on the issue whether Univision
regarded or treated Soria as having a disability or potential disability. Soria testified she
told Nava about her tumor and explained the possibility she would have to undergo major
surgery. She also produced evidence of a text message in which Nava wished her luck on
the day of a biopsy. Although Nava denies she knew about Soria’s tumor and possible
16
surgery, the evidence on this point is in conflict; and a jury could reasonably conclude
Nava knew of Soria’s tumor and believed she might continue to miss work due to further
doctor appointments.
The issue whether Univision regarded Soria as having a condition that was
potentially disabling, under the theory that Soria’s tumor adversely affected normal cell
growth, was not addressed by Univision in its moving papers. Because being regarded as
having a potential disability is included within the definition of physical disability under
FEHA (§ 12926, subd. (m)(5)), the first amended complaint adequately alleged this
alternate basis for her claim of disability discrimination. The fault for failing to discover
this theory and to address it in its moving papers is entirely Univision’s: On this record
Univision cannot be found to have met its initial burden to show the claim was without
merit.
d. There are triable issues of fact whether Univision acted with discriminatory
intent
In addition to demonstrating triable issues of material fact regarding her
membership in a protected class, Soria established there were material issues of fact as to
Univision’s motive in terminating her, the only other contested element of Soria’s claim
for disability discrimination.8
i. Proving discriminatory intent
Discriminatory intent is a necessary element of a discrimination claim. (See
§ 12940, subd. (a); Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal. App. 4th 1367, 1370 [plaintiff’s claim based on a disparate treatment theory
“requires a showing that the employer acted with discriminatory intent”]; see also Clark
v. Claremont University Center (1992) 6 Cal. App. 4th 639, 662; Mixon v. Fair
Employment & Housing Com. (1987) 192 Cal. App. 3d 1306, 1316.) In addition, “there
must be a causal link between the employer’s consideration of a protected characteristic
and the action taken by the employer.” (Harris v. City of Santa Monica (2013)
8
Univision does not dispute that Soria was qualified for her position and/or was
performing competently and that she suffered an adverse employment action.
17
56 Cal. 4th 203, 215 (Harris).) To “more effectively ensure[] that liability will not be
imposed based on evidence of mere thoughts or passing statements unrelated to the
disputed employment decision,” a plaintiff must demonstrate “discrimination was a
substantial motivating factor, rather than simply a motivating factor.” (Id. at p. 232;
see DeJung v. Superior Court (2008) 169 Cal. App. 4th 533, 551 [“proof of discriminatory
animus does not end the analysis of a discrimination claim. There must also be evidence
of a causal relationship between the animus and the adverse employment action”].) As
part of showing that discriminatory animus was a substantial cause of the adverse
employment action, an employee must show that the employer had knowledge of the
employee’s protected characteristic (here, Soria’s disability). (See Avila v. Continental
Airlines, Inc. (2008) 165 Cal. App. 4th 1237, 1247 [“‘[a]n adverse employment decision
cannot be made “because of” a disability, when the disability is not known to the
employer’”].)
A plaintiff may prove his or her discrimination case by direct or circumstantial
evidence or both. (Morgan v. Regents of University of California (2000) 88 Cal. App. 4th
52, 67.) Because direct evidence of intentional discrimination is rare and most
discrimination claims must usually be proved circumstantially, in FEHA employment
cases California has adopted the three-stage burden-shifting test established by the United
States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792
[93 S. Ct. 1817, 36 L. Ed. 2d 668]. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at
pp. 356-357; see Harris, supra, 56 Cal.4th at p. 214.) “[A] plaintiff has the initial burden
to make a prima facie case of discrimination by showing that it is more likely than not
that the employer has taken an adverse employment action based on a prohibited
criterion. A prima facie case establishes a presumption of discrimination. The employer
may rebut the presumption by producing evidence that its action was taken for a
legitimate, nondiscriminatory reason. If the employer discharges this burden, the
presumption of discrimination disappears. The plaintiff must then show that the
employer’s proffered nondiscriminatory reason was actually a pretext for discrimination,
and the plaintiff may offer any other evidence of discriminatory motive. The ultimate
18
burden of persuasion on the issue of discrimination remains with the plaintiff.” (Harris,
at pp. 214-215; see Guz, at pp. 354-356.)
An employer moving for summary judgment on a FEHA cause of action may
satisfy its initial burden of proving a cause of action has no merit by showing either that
one or more elements of the prima facie case “is lacking, or that the adverse employment
action was based on legitimate nondiscriminatory factors.” (Cucuzza v. City of Santa
Clara (2002) 104 Cal. App. 4th 1031, 1038; see Guz v. Bechtel National, Inc., supra, at
pp. 356-357; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal. App. 4th 138,
150.) Once the employer sets forth a nondiscriminatory reason for the decision, the
burden shifts to the plaintiff to produce “‘substantial responsive evidence’ that the
employer’s showing was untrue or pretextual.” (Martin v. Lockheed Missiles & Space
Co. (1994) 29 Cal. App. 4th 1718, 1735; accord, Slatkin v. University of Redlands (2001)
88 Cal. App. 4th 1147, 1156; see also Guz, at p. 357.) “[A]n employer is entitled to
summary judgment if, considering the employer’s innocent explanation for its actions,
the evidence as a whole is insufficient to permit a rational inference that the employer’s
actual motive was discriminatory.” (Guz, at p. 361; see also Kelly v. Stamps.com Inc.
(2005) 135 Cal. App. 4th 1088, 1097-1098 [if a defendant employer’s motion for summary
judgment “relies in whole or in part on a showing of nondiscriminatory reasons for the
[adverse employment action], 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 [adverse action]. [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”].)
ii. Univision’s knowledge of Soria’s disability
“[A]n employer ‘knows an employee has a disability when the employee tells the
employer about his condition, or when the employer otherwise becomes aware of the
condition, such as through a third party or by observation. The employer need only know
the underlying facts, not the legal significance of those facts.” (Faust v. California
19
Portland Cement Co. (2007) 150 Cal. App. 4th 864, 887.) “While knowledge of the
disability can be inferred from the circumstances, knowledge will only be imputed to the
employer when the fact of disability is the only reasonable interpretation of the known
facts. ‘Vague or conclusory statements revealing an unspecified incapacity are not
sufficient to put an employer on notice of its obligations . . . .’” (Brundage v. Hahn
(1997) 57 Cal. App. 4th 228, 237.)
Although Soria provided no medical records to Univision and did not notify
anyone in human resources regarding her condition, no authority supports Univision’s
argument, which the trial court appeared to accept, that either step is essential to establish
a claim for disability discrimination. All that is required is that the plaintiff show that the
“employees who decided to discharge [her] knew of [her] disability.” (Avila v.
Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1248.) Soria’s testimony of her
conversations with Nava provided that evidence.
In her deposition Soria stated she told Nava she had a tumor and the doctors
wanted to remove it and “cut off part of my stomach and my esophagus.” Soria also
testified she told Nava she would like time off for surgery in December 2011. Although
Nava testified that these conversations never took place and she was unaware of Soria’s
diagnosis or need for surgery, this disputed issue of fact precludes summary adjudication
of the discrimination claim based on Univision’s lack of knowledge of Soria’s disability.
Relying on Avila v. Continental Airlines, Inc., supra, 165 Cal. App. 4th 1237,
Univision contends even if Soria told Nava about the tumor and need for surgery, Soria’s
statements “fall short of what is required to establish employer notice . . . .” The plaintiff
in Avila, was fired for violating his employer’s attendance policy. Prior to being
dismissed, plaintiff had been hospitalized for acute pancreatitis and missed four days of
work. He submitted two medical forms to his employer documenting his absences. The
first form stated plaintiff had visited a medical center and was unable to work for one
day. The second form, dated four days later, stated plaintiff had been admitted to the
hospital for a few days and would be unable to work for five days. The forms did not
include any information about the reason for plaintiff’s hospitalization and did not
20
indicate there would be any restriction on plaintiff’s ability to work after the five-day
period. Only after his termination did plaintiff tell his employer the hospitalization was
related to pancreatitis. The trial court granted the employer’s motion for summary
judgment on plaintiff’s FEHA disability discrimination claim, ruling the medical forms
submitted by plaintiff were insufficient to put the employer on notice that plaintiff
suffered from a disability. Our colleagues in Division Five of this court agreed, holding
“the forms communicated only that plaintiff was unable to work on four work
days . . . due to an unspecified condition, and that plaintiff was hospitalized for three
days. . . . Informing Continental merely that plaintiff had been hospitalized was not
sufficient to put Continental on notice that plaintiff was suffering from a qualifying
disability. [Citation.] Plaintiff might have been hospitalized for reasons other than
disability—for example, he might have had minor elective surgery, or he might have
sought preventative treatment for some other condition that was not disabling.” (Avila, at
p. 1249.)
In contrast to the facts in Avila, the information Soria testified she had relayed to
her supervisor was not vague or conclusory, nor did it communicate an unspecified
incapacity. According to Soria, she specifically told Nava she had been diagnosed with a
potentially cancerous tumor and the doctors wanted to remove it, which would require
removal of part of her stomach and esophagus. The only reasonable interpretation of this
information, if the jury finds Soria’s testimony credible, is that Soria had a serious
condition that would interfere with her ability to work. The fact Soria did not use the
term “disability” or unequivocally invoke the protections of FEHA is of no moment. An
employer need only know the underlying facts, not whether those facts fit into the
statutory definition of “disability” under FEHA. (See Faust v. California Portland
Cement Co., supra, 150 Cal.App.4th at p. 887 [“‘whether defendant knew alcohol abuse
is considered a “disability” is of no consequence here. It is sufficient that defendant
knew plaintiff had an alcohol problem’”].)
21
iii. Evidence Univision’s proffered reason for termination was a pretext
for discrimination
Soria does not dispute Univision proffered a legitimate, nondiscriminatory reason
for her termination. However, she argues she presented sufficient evidence that
Univision’s reason was pretextual to defeat Univision’s motion.
Generally in cases involving affirmative adverse employment actions, pretext may
be demonstrated by showing “‘the proffered reason had no basis in fact, the proffered
reason did not actually motivate the discharge, or, the proffered reason was insufficient to
motivate discharge.’” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App. 4th 215, 224; see
also Hersant v. Department of Social Services (1997) 57 Cal. App. 4th 997, 1005 [pretext
may be shown by “‘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”’”]; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal. App. 4th 686, 715 [court
may “take into account [] manifest weaknesses in the cited reasons [for termination] in
considering whether those reasons constituted the real motive for the employer’s actions,
or have instead been asserted to mask a more sinister reality”].) However, simply
showing the employer was lying, without some evidence of discriminatory motive, is not
enough to infer discriminatory animus. “The pertinent [FEHA] statutes do not prohibit
lying, they prohibit discrimination.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at
p. 361; see also Slatkin v. University of Redlands, supra, 88 Cal.App.4th at p. 1156.)
“‘Pretext may also be inferred from the timing of the company’s termination decision, by
the identity of the person making the decision, and by the terminated employee’s job
performance before the termination.’” (California Fair Employment & Housing Com. v.
Gemini Aluminum Corp. (2004) 122 Cal. App. 4th 1004, 1023.)
Univision relied on declarations from five of Soria’s coworkers and supervisors,
who each stated Soria was repeatedly late to work in 2011, to support its decision to
terminate Soria for her chronic tardiness and lack of motivation and/or engagement in her
22
job. One declarant, Priscy Fernandez, stated Soria was often late on Mondays when, as
Soria told him, she would “sometimes” be stuck in traffic driving to the studio after
spending the weekend in San Diego or Tijuana. Supervisor Nava declared, not only had
she observed Soria arrive after the start of her program on “three to four occasions” after
August 2011, but also two staff members of the morning show had complained about
Soria’s tardiness on “multiple other occasions.” Nava also stated in her declaration that
Soria’s “lack of preparation led to poor quality radio content” and “embarrassing
mistakes on the air.” Nava said she “repeatedly” instructed Soria to arrive 30 minutes to
one hour ahead of her program and reported the two women had a longer conversation at
some point in October 2011 regarding precisely what Soria needed to do to prepare for
her show. According to Nava, after this conversation Soria continued to arrive “only
minutes” before her show started and “gave only the bare minimum effort toward her
job.” Nava voiced her concerns to Vice President of Content Haz Montana beginning in
September 2011; in late October or early November the two decided to terminate Soria’s
employment.
Soria presented no direct evidence of discrimination. The circumstantial evidence
she advanced, however, when viewed as a whole, is sufficient to permit a reasonable
inference Univision’s actual motive for firing Soria was discriminatory. First, there are
inconsistencies and contradictions in the evidence of tardiness submitted by Univision.
For example, Fernandez stated in his declaration he observed Soria arrive 10-15 minutes
after her show had started on 10 separate occasions in 2011. However, at his deposition
Fernandez testified he observed Soria arrive after her show had started two to three times
per week. In addition, in his declaration Fernandez said that he reported Soria’s tardiness
to Maria Nava “each time it occurred.” However, at his deposition he testified he told
Nava about Soria’s tardiness only three or four times. Similarly, Nava stated in her
declaration she observed Soria arrive after her show had started “more than once per
month,” but in her deposition Nava testified that she personally observed Soria arrive late
“[p]robably once a week.” Not surprisingly, Soria’s testimony regarding her punctuality
conflicts with the evidence submitted by Univision. Soria testified that, other than days
23
on which she was late due to medical appointments for which she had advance
permission, she arrived after her show started fewer than 10 times in 2011.
Such conflicts and inconsistencies in the evidence supporting an employer’s
proffered legitimate reason for termination, without more, cannot support an inference of
discrimination; however such evidence may be probative when considered together with
other factors. (See California Fair Employment & Housing Com. v. Gemini Aluminum
Corp., supra, 122 Cal.App.4th at p. 1023 [“[w]hile an inference of intentional
discrimination cannot be drawn solely from evidence showing the employer to be
unworthy of credence, it is circumstantial evidence that may be probative when
considered together with the elements of the prima facie case”].) In this case the
conflicting evidence is particularly significant because the proffered reason for
termination intertwines with the employee’s disability. It is undisputed Soria was absent
or late to work nine times between May and November 2011 for medical appointments
related to her tumor. Apart from one instance where Nava learned after the fact that
Soria’s tardiness was due to a doctor appointment, there is no testimony in the record that
the late arrivals observed by Soria’s coworkers and supervisors were not due to tumor-
related appointments. On this record a finder of fact could reasonably infer at least some
of the tardiness observed by Univision employees in 2011 was due to Soria’s medical
appointments and, as a result, Soria was improperly terminated, at least in part, as a direct
result of protected activity. (See Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001)
239 F.3d 1128, 1139-1140 [employee terminated for “absenteeism and tardiness” created
“triable issue of fact as to whether her attendance problems were caused by” her
disability and therefore “jury could reasonably find the requisite causal link between [the
disability] and Humphrey’s absenteeism and conclude that MHA fired Humphrey
because of her disability”].)
Soria’s performance prior to her termination also supports a finding of pretext.
Soria’s final performance review was completed in February 2011 by Fernando Perez,
who rated Soria overall as “Consistently Meets Expectations.” Perez noted Soria’s music
breaks were “well executed” and Soria “is always prepared.” The review also stated an
24
objective for Soria during 2010 had been to “[s]pend more time doing show prep to avoid
monotonous delivery and improve execution of talk breaks.” Commenting on whether
she had achieved that objective, Perez wrote, “Sofia has added more personality and a
brighter sound to her delivery.” Other than the single negative comment about
preparation time, which Soria appeared to have rectified, the entire review was positive.
In addition, Soria’s ratings were consistent with Univision’s expectations: The
performance review stated “[t]he show is meeting all ratings expectations.” Soria also
submitted ratings logs for the relevant time period showing her program consistently
received higher ratings than competitors in her time slot. Elizabeth Alvarado, another
Univision on-air personality, provided additional evidence of Soria’s positive
performance. Alvarado testified Soria was often requested by clients to appear at
promotional events. Finally, Univision conducted lay-offs in April and August 2011,
which included lay-offs of on-air talent, but Soria was not terminated at either time.
The probative value of these positive performance indicators is underscored by the
fact that Soria’s tardiness was not a new issue in 2011. Fernandez testified in deposition
that Soria had been late two to three times a week during the 10 years he had worked with
her. Similarly, three other coworkers testified Soria’s tardiness was a consistent issue for
years prior to her termination. Yet despite this pattern of behavior over a decade, Soria
had not been disciplined, but instead received positive reviews and survived two rounds
of lay-offs. The only negative comment in her most recent review was mitigated by
statements her performance was improving.
Viewing the evidence most favorably to Soria, as we must, it was not until Soria
disclosed her disability to her supervisor that her tardiness became a problem. Soria told
Nava in September or October 2011 about her tumor and potential surgery after a series
of approved tardiness and absences due to doctor appointments. On September 30, 2011
Nava texted Soria wishing her luck on her biopsy. Then in October, after disclosure of
the biopsy and tumor, Nava and Soria had a conversation in which Nava told Soria to
arrive earlier. In late October or early November, Soria again discussed the tumor with
25
Nava and told her that she may need time off for surgery. Only then did Nava and
Montana decide to fire Soria for a purported problem that had persisted for years.
Taken together, this evidence—the timing of the disclosure and discharge, the
apparent ongoing nature of Soria’s late arrival at work, the positive performance reviews
and the contradictions in the testimony proffered by Univision—is sufficient to permit a
finding the business justification for Soria’s termination advanced by Univision was
pretextual. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1061-1062
[finding triable issues of fact as to whether proffered reasons for termination were
pretextual when complaints about employee were known prior to protected activity and
included in performance reviews, but no action had been taken and employee rated
“above expectation”]; Diego v. Pilgrim United Church of Christ (2014) 231 Cal. App. 4th
913, 930-932 [finding triable issues of fact regarding pretext when employee terminated
shortly after perceived protected activity and conversation with supervisor about
perceived protected activity and employee had received primarily favorable performance
reviews during 10 years of employment]; Flait v. North American Watch Corp. (1992)
3 Cal. App. 4th 467, 479-480 [holding reasonable trier of fact could find pretext when
evidence existed undermining purported reason for termination, individual
recommending termination knew of protected activity, termination occurred only four
months after protected activity and job performance predominantly positive]; California
Fair Employment & Housing Com. v. Gemini Aluminum Corp., supra, 122 Cal.App.4th
at pp. 1023-1024 [substantial evidence existed to find pretext where employee terminated
less than two weeks after protected activity, supervisor gave inconsistent reasons for
termination, employer lacked credibility and employee had “excellent work record”].)
3. The Trial Court Erred in Granting Summary Adjudication on Soria’s FEHA
Claim for Failure To Provide Reasonable Accommodation
In addition to prohibiting disability discrimination, FEHA provides an independent
cause of action for an employer’s failure “to make reasonable accommodation for the
known physical or mental disability of an applicant or employee” unless the
accommodation would cause “undue hardship” to the employer. (§ 12940, subd. (m).)
26
Once an employer is aware of a disability, it has an “affirmative duty” to make
reasonable accommodations for the employee. (Cal. Code Regs., tit. 2, § 11068,
subd. (a).)
“Generally, ‘“[t]he employee bears the burden of giving the employer notice of the
disability. [Citation.] This notice then triggers the employer’s burden to take ‘positive
steps’ to accommodate the employee’s limitations. . . . [¶] . . . The employee, of course,
retains a duty to cooperate with the employer’s efforts by explaining [his or her]
disability and qualifications. [Citation.] Reasonable accommodation thus envisions an
exchange between employer and employee where each seeks and shares information to
achieve the best match between the employer’s capabilities and available positions.”’”
(Raine v. City of Burbank (2006) 135 Cal. App. 4th 1215, 1222.) An employee is not
required to specifically invoke the protections of FEHA or speak any “magic words” in
order to effectively request an accommodation under the statute. (See Prilliman v.
United Air Lines, Inc. (1997) 53 Cal. App. 4th 935, 954; Avila v. Continental Airlines, Inc.,
supra, 165 Cal.App.4th at p. 1252 [“no particular form of request is required”].)
However, the employee must engage in the interactive process and “‘“can’t expect the
employer to read his mind and know he secretly wanted a particular accommodation and
sue the employer for not providing it.”’” (Id. at pp. 1252-1253.)
“When a claim is brought for failure to reasonably accommodate the claimant’s
disability, the trial court’s ultimate obligation is to ‘“isolate the cause of the
breakdown . . . and then assign responsibility” so that “[l]iability for failure to provide
reasonable accommodations ensues only where the employer bears responsibility for the
breakdown.”’” (Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 261.) Thus,
“the employer cannot prevail on summary judgment on a claim of failure to reasonably
accommodate unless it establishes through undisputed facts that . . . the employer did
everything in its power to find a reasonable accommodation, but the informal interactive
process broke down because the employee failed to engage in discussions in good faith.”
(Id. at p. 263.)
27
As discussed, Soria presented evidence demonstrating triable issues of material
fact concerning whether she gave adequate notice to Univision of her disability. As to
this cause of action, Univision argues it is nonetheless entitled to summary adjudication
because Soria never requested an accommodation. However, Soria testified she told
Nava she “wanted to have the operation in December, and she [Nava] replied by saying
that Omar would have an operation in December.” Soria reasonably understood this
response to mean Nava was denying her request for time off. There is no merit to any of
Univision’s arguments as to why this conversation, which it denies even occurred, did not
constitute a sufficient request to Nava for an accommodation.
First, Univision explains, as of the time of her conversation with Nava, Soria had
not yet decided whether to have surgery in December 2011. Thus, Univision argues,
Soria was not actually requesting leave. Whether or not Soria had finally made the
decision to undergo the operation, her testimony was that she told Nava that she wanted
to do so, not that she might have the operation or was considering it. That evidence is
sufficient to permit a finder of fact to conclude Soria sufficiently communicated to Nava
she intended to have surgery and was requesting time off as an accommodation.
(See Moore v. Regents of University of California (2016) 248 Cal. App. 4th 216, 228, 243
[holding that employee sufficiently requested accommodation of leave for surgery when
she stated she “would likely” need surgery at some point in the next few months].)
Univision next argues Soria’s conversation was unclear as to the amount of time
Soria would need to be on leave. Univision cites no authority for the proposition an
employee must supply specific details about a requested leave before it is sufficient to
qualify as a request for an accommodation. In fact, such a rule would conflict with the
established principle that an employer has a duty to take affirmative steps to
accommodate the employee once it is aware an accommodation is necessary. (See Raine
v. City of Burbank, supra, 135 Cal.App.4th at p. 1222.) Forcing the employee to come
forward with a detailed plan improperly puts the initial burden of finding an
accommodation on the employee. (See Prilliman v. United Air Lines, Inc., supra,
53 Cal.App.4th at p. 954 [“[w]e also find without merit respondents’ suggestion that the
28
disabled employee must first come forward and request a specific accommodation before
the employer has a duty to investigate such accommodation”].) By informing her
supervisor she intended to have her tumor removed and would require time off work,
Soria adequately notified Univision she was in need of an accommodation, thus shifting
the burden to Univision to investigate and respond. (See Moore v. Regents of University
of California, supra, 248 Cal.App.4th at pp. 228, 244 [finding employee sufficiently
requested leave by stating she “would likely” need surgery within the next few months
and would need a “few days off work”].)
Univision’s final two arguments similarly misconstrue its obligations as an
employer. Univision asserts Nava never denied the request for leave, she just stated
someone else was having surgery that month. Univision also argues Soria’s claim is
precluded because she failed to offer potential alternate dates for her surgery. However,
once Univision was aware of a need for accommodation, the burden was on it to do
everything in its power to find a reasonable accommodation. (Jensen v. Wells Fargo
Bank, supra, 85 Cal.App.4th at p. 263.) Accordingly, once Soria requested time off for
the surgery, the burden was on Univision to inquire further and determine whether leave
could be scheduled at a different time. There is simply no evidence in the record that
Univision took any steps to find an accommodation of any kind.
4. The Trial Court Erred in Granting Summary Adjudication on Soria’s FEHA
Claim for Failure To Engage in Interactive Process
Under section 12940, subdivision (n), it is separately actionable for an employer to
fail “to engage in a timely, good faith, interactive process with the employee . . . to
determine effective reasonable accommodations, if any, in response to a request for
reasonable accommodation by an employee . . . with a known physical or mental
disability or known medical condition.” (§ 12940, subd. (n); see Gelfo v. Lockheed
Martin Corp. (2006) 140 Cal. App. 4th 34, 54.) “The ‘interactive process’ required by the
FEHA is an informal process with the employee or the employee’s representative, to
attempt to identify a reasonable accommodation that will enable the employee to perform
the job effectively.” (Scotch v. Art Institute of California (2009) 173 Cal. App. 4th 986,
29
1013.) Both the employer and the employee are responsible for participating in the
interactive process. Typically, the employee must initiate the process “unless the
disability and resulting limitations are obvious.” (Ibid.)
As discussed, there are disputed issues of fact as to whether Soria requested an
accommodation and thus initiated the interactive process by informing Nava of her need
for surgery. Because there is no evidence Univision took any steps to work with Soria to
identify a reasonable accommodation, summary adjudication on this cause of action was
improper.
5. The Trial Court Erred in Granting Summary Adjudication on Soria’s CFRA
Claims
The Moore-Brown-Roberti Family Rights Act (CFRA) (§ 12945.1 et seq.) “is
intended to give employees an opportunity to take leave from work for certain personal or
family medical reasons without jeopardizing job security.” (Nelson v. United
Technologies (1999) 74 Cal. App. 4th 597, 606; accord, Faust v. California Portland
Cement Co., supra, 150 Cal.App.4th at p. 878.) The CFRA makes it unlawful for an
employer of 50 or more persons “to refuse to grant a request by an employee” for family
care and medical leave and “to interfere with, restrain, or deny the exercise of, or the
attempt to exercise, any right” provided by the CFRA. (§ 12945.2, subds. (a), (t).) It is
also an unlawful employment practice to discharge or discriminate against any individual
because of his or her exercise of the right to family care or medical leave as provided by
the CFRA. (§ 12945.2, subd. (l)(1).) Grounds for leave include “an employee’s own
serious health condition” when that condition “makes the employee unable to perform the
functions of the position of that employee.” (§ 12945.2, subd. (c)(3)(C).) The CFRA
defines a “[s]erious health condition” as “an illness, injury, impairment, or physical or
mental condition that involves either of the following: [¶] (A) Inpatient care in a
hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment or
continuing supervision by a health care provider.” (§ 12945.2, subd. (c)(8).) “Inpatient
care” means “a stay in a hospital, hospice, or residential health care facility, any
subsequent treatment in connection with such inpatient care, or any period of incapacity.
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A person is considered an ‘inpatient’ when a health care facility formally admits him or
her to the facility with the expectation that he or she will remain at least overnight and
occupy a bed . . . .” (Cal. Code Regs., tit. 2, § 11087, subd. (q)(1).) “Continuing
treatment” means “ongoing medical treatment or supervision by a health care
provider . . . .” (Id., subd. (q)(3).)
a. Triable issues of fact preclude summary judgment on Soria’s CFRA
interference claim
A CFRA interference claim “‘consists of the following elements: (1) the
employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or
denial of those rights.’” (Moore v. Regents of University of California, supra,
248 Cal.App.4th at p. 250.)
For the first time on appeal Univision argues Soria did not have a “serious health
condition” that would entitle her to CFRA leave because she did not require “inpatient
care” prior to or at the time of her termination. As of the date she was fired, Univision
explains, Soria had not decided whether to have the surgery, so her condition did not
necessarily involve a stay in the hospital. Even if not forfeited because not raised in the
trial court (see Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal. 3d
412, 417 [issues not raised in trial court cannot be raised for first time on appeal];
Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal. App. 4th 1466,
1488), triable issues of fact preclude summary adjudication on this issue. As discussed,
there is conflicting evidence as to whether Soria had decided to have the surgery at the
time she was fired. Regardless, Soria testified she had told Nava she wanted to have the
surgery—testimony from which a reasonable trier of fact could find she necessarily
would require a stay in a hospital.
Univision also contends for the first time on appeal that Soria did not need
“continuing treatment” because she did not present sufficient evidence to demonstrate her
condition would include more than three consecutive days of incapacity, citing a federal
regulation interpreting the Family and Medical Leave Act of 1992 (FMLA), 29 Code of
31
Federal Regulations part 825.115.9 Univision’s argument fails for two reasons. First,
three consecutive days of incapacity is only one definition of “continuing treatment”;
another is, “[a]ny period of absence to receive multiple treatments . . . for: [¶] . . . [¶]
[a] condition that would likely result in a period of incapacity of more than three
consecutive, full calendar days in the absence of medical intervention or treatment . . . .”
(29 C.F.R. § 825.115(e).) Second, as the moving party Univision, not Soria, had the
burden to present undisputed facts that Soria’s condition did not need “continuing
treatment.” Univision failed to do so.
In the trial court Univision argued, and the trial court ruled, Soria could not meet
the elements of a CFRA interference claim because she never requested CFRA leave.
This position, too, is without merit.
In enacting CFRA “the Legislature expressly delegated to [California’s Fair
Employment and Housing] Commission the task of ‘adopt[ing] a regulation specifying
the elements of a reasonable request’ for CFRA leave.” (Avila v. Continental Airlines,
Inc., supra, 165 Cal.App.4th at p. 1256; see § 12945.2, subd. (a).) The regulation
adopted by the Commission provides, in part, to request CFRA leave an employee “shall
provide at least verbal notice sufficient to make the employer aware that the employee
needs CFRA leave, and the anticipated timing and duration of the leave. The employee
need not expressly assert rights under CFRA or FMLA, or even mention CFRA or
FMLA, to meet the notice requirement; however, the employee must state the reason the
leave is needed, such as, for example, the expected birth of a child or for medical
treatment. . . . The employer should inquire further of the employee if necessary to
determine whether the employee is requesting CFRA leave and to obtain necessary
information concerning the leave (i.e., commencement date, expected duration, and other
permissible information).” (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1).) The
regulation further provides, “Under all circumstances, it is the employer’s responsibility
9
Federal regulations interpreting the Family and Medical Leave Act of 1993 apply
to CFRA definitions when not inconsistent with them. (Cal. Code Regs., tit. 2, § 11087)
32
to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on
information provided by the employee . . . , and to give notice of the designation to the
employee.” (Id., subd. (a)(1)(A).) “Whether notice is sufficient under CFRA is a
question of fact.” (Avila, at p. 1255.)
Even if Soria informed Nava she wanted to have surgery in December 2011,
Univision has argued, her notice was not sufficient under CFRA because it did not state
the duration of the requested leave. Univision improperly focuses on only part of the
governing regulation. While the employee should indicate the anticipated timing and
duration of the leave, whether or not that occurs, the employer has an obligation, once
informed of the need for a CFRA leave, “to obtain necessary information concerning the
leave (i.e. commencement date, expected duration, and other permissible information).”
(Cal. Code Regs., tit. 2, § 11091, subd. (a)(1).) Federal courts interpreting the
substantially identical notice provision in the FMLA have held an employee need not
communicate a specific duration of requested leave to adequately put the employer on
notice that a qualifying leave is being requested. (See Sarnowski v. Air Brooke
Limousine, Inc. (3d Cir. 2007) 510 F.3d 398, 402 [“the regulations are clear that
employees may provide FMLA qualifying notice before knowing the exact dates or
duration of the leave they will take”]; Lamonaca v. Tread Corp. (W.D.Va. 2016)
157 F. Supp. 3d 507, 514 [fact that employee’s emails to employer “provided no indication
of how long the requested absence would be” was not fatal to employee’s FMLA claims];
see also Spangler v. Federal Home Loan Bank of Des Moines (8th Cir. 2002) 278 F.3d
847, 852 [“‘the employer’s duties are triggered when the employee provides enough
information to put the employer on notice that the employee may be in need of FMLA
leave’”]; Manuel v. Westlake Polymers Corp. (5th Cir. 1995) 66 F.3d 758, 764 [“What is
practicable, both in terms of the timing of the notice and its content, will depend upon the
facts and circumstances of each individual case. The critical question is whether the
information imparted to the employer is sufficient to reasonably apprise it of the
employee’s request to take time off for a serious health condition.”]; see generally Rogers
v. County of Los Angeles (2011) 198 Cal. App. 4th 480, 487 [“California courts routinely
33
rely on federal cases interpreting the FMLA when reviewing the CFRA”]; Neisendorf v.
Levi Strauss & Co. (2006) 143 Cal. App. 4th 509, 514, fn.1 [same].) The record here, at
the very least, creates a triable issue of fact as to whether Soria’s statements concerning
time off for surgery were sufficient to trigger Univision’s obligation to inquire further
into the details of Soria’s request.
Finally, Univision contends Soria failed to sufficiently request CFRA leave
because she did not submit a formal leave request and did not suggest alternative times
for her surgery. Contrary to Univision’s argument, CFRA does not require a specific
form of notice by the employee. (Cal. Code Regs., tit. 2, § 11091, subd. (a)(1).) Further,
the regulations are explicit in imposing on the employer a duty to inquire as to details of
the employee’s request when necessary. (Ibid.; see also Moore v. Regents of University
of California, supra, 248 Cal.App.4th at p. 249 [“an employer bears a burden, under
CFRA, to inquire further if an employee presents the employer with a CFRA-qualifying
reason for requesting leave”].)
b. Triable issues of fact preclude summary adjudication on Soria’s CFRA
retaliation claim
“The elements of a cause of action for retaliation in violation of CFRA are:
‘“(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee
eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take leave for a
qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action,
such as termination, fine, or suspension, because of her exercise of her right to CFRA
[leave].”’ [Citation.] Similar to causes of action under FEHA, the McDonnell Douglas
burden shifting analysis applies to retaliation claims under CFRA.” (Moore v. Regents of
University of California, supra, 248 Cal.App.4th at p. 248.)
Although conceding it is an employer covered by CFRA, Univision argues Soria
cannot meet the remaining elements of a CFRA retaliation claim because she (i) did not
have a serious health condition making her eligible for CFRA leave; (ii) did not
adequately request CFRA leave; and (iii) was terminated for a legitimate
nondiscriminatory reason and not because of her request for CFRA leave. For the
34
reasons discussed, Univision was not entitled to summary adjudication on this claim: A
reasonable jury could conclude, based on the evidence presented, that Soria had a serious
health condition and that she adequately requested CFRA leave. Further, there are triable
issues of fact as to whether Univision’s purported reason for discharging Soria was
pretextual.
6. The Trial Court Erred in Granting Summary Adjudication on Soria’s Common
Law Claim for Wrongful Termination
Soria’s cause of action for wrongful termination in violation of public policy is
grounded on her contentions she was terminated because of her tumor and need for
medical treatment and/or surgery. As discussed, Soria has established triable issues of
fact as to whether Univision’s stated reason for terminating her was pretext for unlawful
discrimination. Accordingly, as with the discrimination claim, summary adjudication on
the wrongful termination cause of action should have been denied.
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings not
inconsistent with this opinion. Soria is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
ZELON, J.
KEENY, J.*
*
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
35