1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KYLE BRAGER, No. 2:19-cv-00044-MCE-KJN 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 COSTCO WHOLESALE CORPORATION, a corporation; and 15 DOES 1-25, inclusive, 16 Defendants. 17 18 Through this action, Plaintiff Kyle Brager (“Plaintiff” or “Brager”) seeks to recover 19 damages from his former employer, Defendant Costco Wholesale Corporation 20 (“Defendant” or “Costco”), for sexual orientation harassment (hostile work environment); 21 disability discrimination; failure to accommodate; failure to engage in interactive process; 22 failure to prevent discrimination, harassment and retaliation; retaliation; and wrongful 23 termination. See Complaint, ECF No. 1, Ex. 1. Presently before the Court is 24 Defendant’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication 25 brought pursuant to Federal Rule of Civil Procedure 56 (ECF No. 8) (“Motion”). For the 26 reasons that follow, Defendant’s Motion is GRANTED in part and DENIED in part.1 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. ECF No. 9; see E.D. Cal. Local Rule 230(g). 1 BACKGROUND2 2 3 Plaintiff was employed by Costco from August 2005 through his involuntary 4 termination on or about December 7, 2016. He worked as a front-end supervisor at 5 Defendant’s Manteca warehouse at the time of his termination. Plaintiff’s employment 6 was covered by Costco’s Employee Agreement, which includes a Family and Medical 7 Leaves of Absence (“LOA”) Policy. The policy is distributed when updated every three 8 years, and Plaintiff acknowledged receipt of the Agreement throughout his employment. 9 In relevant part, the LOA informs employees that they must submit appropriate 10 paperwork to have their leave approved and that providing false information in 11 connection with a leave request may subject the employee to discipline up to 12 termination. 13 Plaintiff openly identifies as a gay man. Plaintiff alleges that starting in 2015, 14 fellow employee Clayton Sanford (“Sanford”) began subjecting Plaintiff to harassment 15 related to his sexual orientation (e.g., homophobic epithets). Plaintiff alerted various 16 managers of this conduct throughout his employment and, while those managers 17 indicated they would take steps to redress Sanford’s offensive behavior, Plaintiff claims 18 they ultimately took no action to prevent it. 19 By July 2016, Plaintiff, who already suffered from depression and anxiety, claims 20 those disabilities were exacerbated by Sanford’s ongoing harassment. He requested 21 medical leave and provided medical documentation to Defendant from his healthcare 22 provider, Dr. Abdul Khan (“Dr. Khan”). In September 2016, Plaintiff returned to work full- 23 time, but alleges that upon his return the sexual orientation harassment recommenced 24 and that Defendant’s management continued to do nothing to stop Sanford’s behavior. 25 In October 2016, Brager requested more time off, which Defendant granted, with 26 Plaintiff again supplying documentation from Dr. Khan listing him as “totally 27 2 The facts are assembled from the Complaint (ECF No. 1) and Plaintiff’s Response to 28 Defendant’s Separate Statement of Undisputed Facts (ECF No. 10-1), unless otherwise stated. 1 incapacitated.” Defendant avers that, at the time of this request, the Manteca 2 Warehouse’s General Manager, Eugene Laughery (“Laughery”), began to doubt the 3 authenticity of the medical notes because Brager was supplying copies of the excuses 4 instead of original documents. Additionally, Brager was bringing the notes after the time 5 off when the threat of discipline for unexcused absences was looming. Given those 6 concerns, Laughery reached out to Costco’s third-party leave administrator, WorkCare, 7 for guidance. In turn, WorkCare contacted Dr. Khan’s office to ask about four specific 8 notes submitted by Brager. All from 2016, the notes were dated July 7, July 30, 9 September 9, and October 20. Dr. Khan’s office faxed a response to WorkCare stating 10 that the July 7 and October 20 notes were valid, but the July 30 and September 9 notes 11 were invalid. 12 Upon receiving this news from WorkCare, Laughery confronted Brager about the 13 potentially fraudulent notes. Brager responded (as he continues to do) that the notes 14 were authentic and had been received from an assistant to Dr. Khan. Laughery 15 requested additional documentation from Brager to prove the notes were real, giving him 16 a deadline of November 30, 2016. When Brager provided no such documentation, 17 Laughery suspended him. With the suspension, Laughery instructed Brager to return on 18 December 7, 2016, to meet with Assistant General Manager Rick Malfatti (“Malfatti”), 19 and to bring documentation from Dr. Khan’s office supporting the contested absences. 20 Laughery instructed Brager to meet Malfatti because Laughery had a scheduled meeting 21 outside of the warehouse on that day. 22 On December 7, 2016, Brager met Malfatti and presented a December 7, 2016, 23 note from Dr. Khan’s office purportedly certifying all previous absences, including those 24 contested. Malfatti states that he took a picture of the document and sent it to Laughery. 25 Laughery determined that the note was practically identical to those already submitted of 26 questionable authenticity and again appeared to be only a copy. Because Brager failed 27 to bring in original documentation, Laughery instructed Malfatti to terminate Plaintiff 28 /// 1 using a form that Laughery prepared and signed the day before (December 6, 2016) in 2 anticipation of that eventuality.3 3 The next day, Brager contacted a person with whom he had previous contact from 4 Costco’s corporate human resources, Jonathan Shue, claiming that all of the notes were 5 authentic. Accordingly, Defendant directed WorkCare to again contact Dr. Khan’s office. 6 On December 12, 2016, Dr. Khan’s office responded that the December 7, 2016, note 7 that authorized all of the above absences was valid, despite what the office previously 8 told WorkCare. In light of this information, Costco corporate managers directed 9 Laughery to reinstate Brager. Laughery claims he attempted to call Brager twice to offer 10 his position back, but Brager never answered. 11 On December 14, 2016, WorkCare contacted Costco to state that Dr. Khan’s 12 office called with new information. While their previous reversal was based on reference 13 to the office’s internal electronic filing system, Dr. Khan’s staff ultimately spoke directly 14 to the doctor himself. Dr. Khan clarified that on December 7, 2016, Brager requested 15 that the doctor authorize his absences related to the July 30 and September 9 notes, but 16 Dr. Khan refused to do so. Despite this rejection, Brager told one of the office clerks that 17 Dr. Khan had authorized the absences, and in reliance on that misrepresentation the 18 clerk generated the December 7 note in response. Dr. Khan’s office further confirmed 19 that the July 30 and September 9 notes were inauthentic and possibly forged. At 20 deposition, Dr. Khan confirmed that his office discontinued professional services with 21 Brager related to these events. With this reversal from Dr. Khan’s office, Costco again 22 changed course and determined that it would not reinstate Brager.4 23 ///
24 3 John McKay, Executive Vice President, approved the termination. See Declaration of Eugene 25 Laughery, ECF No. 8-3, ¶ 8.
4 For its part, Defendant acknowledges that Plaintiff reported discriminatory comments to 26 management on multiple occasions. Defendant further admits that Plaintiff requested medical leave throughout his employment. However, Defendant asserts that Brager admitted at deposition that no one 27 at Costco knew about his disabilities of depression and anxiety other than himself and Andrea Young, a payroll clerk with no managerial responsibilities. Finally, Defendant avers that the decision-maker behind 28 Brager’s termination, Laughery, was unaware of Brager’s disabilities and harassment complaints. 1 On December 5, 2017, just under a year following his termination, Brager filed a 2 Department of Fair Employment and Housing (“DFEH”) charge against Costco and 3 received an immediate right-to-sue notice. Plaintiff subsequently filed a lawsuit against 4 Defendant in the San Joaquin County Superior Court on December 4, 2018, and that 5 action was removed by Costco to this Court on diversity of citizenship grounds pursuant 6 to 28 U.S.C. § 1441(a). 7 8 STANDARD 9 10 The Federal Rules of Civil Procedure provide for summary judgment when “the 11 movant shows that there is no genuine dispute as to any material fact and the movant is 12 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal 13 purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex 14 Corp. v. Catrett, 477 U.S. 317, 325 (1986). 15 In a summary judgment motion, the moving party always bears the initial 16 responsibility of informing the court of the basis for the motion and identifying the 17 portions in the record “which it believes demonstrate the absence of a genuine issue of 18 material fact.” Id. at 323. If the moving party meets its initial responsibility, the burden 19 then shifts to the opposing party to establish that a genuine issue as to any material fact 20 actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 21 586-87 (1986). 22 Rule 56 also allows a court to grant summary judgment on part of a claim or 23 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 24 move for summary judgment, identifying each claim or defense—or the part of each 25 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 26 Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a 27 motion for partial summary judgment is the same as that which applies to a motion for 28 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 1 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 2 judgment standard to motion for summary adjudication). 3 In attempting to establish the existence or non-existence of a genuine factual 4 dispute, the party must support its assertion by “citing to particular parts of materials in 5 the record . . . ; or showing that the materials cited do not establish the absence or 6 presence of a genuine dispute, or that an adverse party cannot produce admissible 7 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The opposing party must 8 demonstrate that the fact in contention is material, i.e., a fact that might affect the 9 outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 10 242, 248, 251-52 (1986). The opposing party must also demonstrate that the dispute 11 about a material fact “is ‘genuine,’ that is, [] the evidence is such that a reasonable jury 12 could return a verdict for the nonmoving party.” Id. at 248. In other words, the judge 13 needs to answer the preliminary question before the evidence is left to the jury of “not 14 whether there is literally no evidence, but whether there is any upon which a jury could 15 properly proceed to find a verdict for the party producing it, upon whom the onus of proof 16 is imposed.” Id. at 251 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) 17 (emphasis original). As the Supreme Court explained: “When the moving party has 18 carried its burden under Rule [56(a)], its opponent must do more than simply show that 19 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. 20 Therefore, “[w]here the record taken as a whole could not lead a rational trier of fact to 21 find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587 (citing First 22 Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). 23 In resolving a summary judgment motion, the evidence of the opposing party is to 24 be believed, and all reasonable inferences that may be drawn from the facts placed 25 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 26 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 27 obligation to produce a factual predicate from which the inference may be drawn. 28 /// 1 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 2 810 F.2d 898 (9th Cir. 1987). 3 4 ANALYSIS 5 6 A. Plaintiff’s Sexual Orientation Harassment Claim Survives 7 1. The Claim Is Not Time-Barred 8 “The statute of limitations under the Fair Employment and Housing Act (‘FEHA’) 9 provides that actions alleging FEHA violations must be brought within one year from the 10 date upon which the alleged unlawful practice or refusal to cooperate occurred.” 11 Sanchez v. Loews Hotels Holding Corp., No. 19-CV-02084 W (MDD), 2021 WL 424288, 12 at *3 (S.D. Cal. Feb. 8, 2021) (citing Cal. Gov’t Code § 12960) (internal quotation marks 13 omitted). The parties agree that there is an exception to FEHA’s limitation period under 14 the so-called “continuing violation doctrine.” Compare Mot. at 10, with Opp’n at 6. For 15 the doctrine to apply, Plaintiff must establish: “(1) the conduct occurring within the 16 limitations period is similar in kind to the conduct that falls outside the period; (2) the 17 conduct was reasonably frequent; and (3) the conduct had not yet acquired a degree of 18 permanence.” Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 802 (2001). 19 Costco contends that because Brager did not file his DFEH charge “until 20 December 5, 2017, the relevant period for his sexual orientation harassment claim dates 21 back to December 5, 2016. Any events that transpired prior to that date are time-barred 22 and not actionable.” Mot. at 10. Defendant insists that Plaintiff fails the continuing 23 violation test because the claim obtained a degree of permanence – i.e., he fails prong 24 three. Id. (citing Maridon v. Comcast Cable Commc'ns Mgmt., LLC, No. C-12-2109 25 EMC, 2013 WL 1786592, at *11 (N.D. Cal. Apr. 25, 2013); Morgan v. Regents of Univ. of 26 California, 88 Cal. App. 4th 52, 65 (2000)). This is because, according to Defendant, the 27 alleged harassment continued to the point where Plaintiff became hopeless that 28 continued complaints would relieve him of Sanford’s taunts. Mot. at 11. Once Plaintiff 1 determined that such efforts were futile – which Defendant avers occurred in 2015 – the 2 statute of limitations began to run, and Brager should have exercised his legal rights in 3 that timeframe. Id. As relevant here, the Richards Court recognized that “the statute of 4 limitations begins to run . . . when the employee is on notice that further efforts to end 5 the unlawful conduct will be in vain.” Richards, 26 Cal. 4th at 823. 6 Plaintiff responds that the requisite permanence was never present. He further 7 claims, at the very least, that whether permanence had been reached raises a triable 8 issue of fact not amenable to disposition on summary judgment. Reply at 6-8 (citing 9 Brome v. California Highway Patrol, 44 Cal. App. 5th 786 (2020); Blue Fountain Pools & 10 Spas, Inc. v. Superior Court, 53 Cal. App. 5th 239 (2020)). This is because Brager did 11 not form the belief that Costco supervisors would refuse to intervene, “but rather that 12 Sanford was such an inveterate abuser he would continue his misconduct anyway.” 13 Opp’n at 8. 14 In Richards, the California Supreme Court explained: 15 [C]onsistent with our case law and with the statutory objectives of the FEHA, we further hold that “permanence” in the context 16 of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood 17 to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further 18 efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile. 19 20 26 Cal. 4th at 823 (emphasis added). This requires the employer to make “clear to the 21 employee in a definitive manner that it will not be granting any such” relief from 22 harassment to commence the running of the statute of limitations. Id. at 823-24 23 (emphasis added). 24 “The cases finding prior courses of discriminatory conduct had reached 25 permanence involved plaintiffs who had pursued formal grievance procedures and been 26 denied relief.” Blue Fountain Pools & Spas Inc., 53 Cal. App. 5th at 253 (collecting 27 cases). In Blue Fountain Pools (a case of different consequence to the respective 28 parties here), the aggrieved party made complaints that were “ineffectual,” but the 1 plaintiff believed that her supervisor took them seriously despite the continuing 2 harassment. Id. at 254. Similar to the instant matter, the employee started to form 3 beliefs that complaining was having no effect because the abuser was going to continue 4 the harassment regardless. See id.; cf. Opp’n at 8. The court nonetheless refused to 5 find as a matter of law that this created permanence, instead finding that was an issue 6 “for the jury to decide.” Blue Fountain Pools & Spas Inc., 53 Cal. App. 5th at 255. 7 In Brome, another case whose import is contested by the parties, the court held 8 that there was no permanence as a matter of law when, despite years of alleged 9 harassment, the employer’s words and actions “could support a conclusion that the 10 situation was not futile.” 44 Cal. App. 5th at 800. “At no time did Brome's superiors 11 indicate they had reached an impasse, they were rejecting his concerns, or that he 12 should leave or give up. Instead, they consistently told him they would look into and 13 address his concerns.” Id. The court concluded: “While it is possible that a jury could 14 conclude the situation was objectively futile, that is not the only conclusion supported by 15 the record.” Id. at 800-01. 16 In the instant matter, in determining whether Plaintiff can show the existence of a 17 continuing violation, this Court must consider the definitive actions of the employer, 18 Costco. See Richards, 26 Cal. 4th at 823-24. The record does not demonstrate that 19 Defendant had taken, as a matter of law, unambiguous actions to place Plaintiff on 20 notice that litigation was his only possibility of relief. Cf. Willis v. City of Carlsbad, 21 48 Cal. App. 5th 1104, 1127-28 (2020) (defendant city’s repeated denials of transfers 22 and promotions constituted definitive acts and thus created permanence). In fact, 23 Plaintiff was contacting human resources personnel only months before his termination 24 with a belief that his disciplinary troubles were part of an ongoing effort of retaliation and 25 harassment. See Opp’n, Exs. D, E. Such petitions for assistance would be illogical if 26 Plaintiff believed them to be in vain. Finally, any feelings of hopelessness that Sanford 27 would continue to harass him regardless of how the company reacted are not sufficient, 28 /// 1 standing alone, to defeat the continuing violations prong. See Blue Fountain Pools & 2 Spas Inc., 53 Cal. App. 5th at 255. 3 Thus, Plaintiff has adequately demonstrated that a triable issue of fact exists as to 4 whether Brager believed that attempts at internal resolution through Defendant’s 5 channels would be futile. See Romano v. Rockwell Internat., Inc., 14 Cal. 4th 479, 494 6 (1996) (“[T]he limitations period set out in the FEHA should be interpreted so as to 7 promote the resolution of potentially meritorious claims on the merits.”); Cal. Gov’t Code 8 § 12993(a). Consequently, Defendant’s attempt to limit any actionable conduct to 9 events occurring not more than one year before Plaintiff filed his FEHA complaint 10 necessarily fails, and in now proceeding to analyze the merit of Plaintiff’s sexual 11 orientation harassment claim the Court considers the entirety of the harassment he 12 identifies. 13 2. Plaintiff Offers Triable Issues of Fact as to Sexual Orientation Harassment 14 15 Defendant acknowledges that Plaintiff must plausibly allege harassment so 16 severe or pervasive that it created an abusive work environment. See Lyle v. Warner 17 Brothers Television Productions, 38 Cal. 4th 264, 279 (2006). Courts may weigh, among 18 other considerations, the frequency and severity of, and injury from, the harassment. Id. 19 Isolated, sporadic, or trivial incidents will not suffice. Id. 20 Plaintiff’s alleged continued harassment from Sanford meets and exceeds these 21 requirements. See Compl. ¶¶ 18, 41 (cataloguing the epithets to which Plaintiff was 22 regularly subjected). Accordingly, Plaintiff’s second cause of action for sexual 23 orientation harassment survives, and Defendant’s Motion is DENIED as to this claim. 24 B. Plaintiff’s Discrimination Claim Fails as a Matter of Law 25 1. Defendant May Have Held Knowledge of Plaintiff’s Disability 26 Courts recognize that a prima facie case of disability discrimination can be 27 established in two ways. First, a plaintiff may make the requisite showing through direct 28 evidence. Recognizing, however, that such “direct evidence of intentional discrimination 1 is rare,” California courts have also adopted the so-called McDonnell Douglas test for 2 situations when claims must “be provided circumstantially.” Guz v. Bechtel Nat. Inc., 3 24 Cal. 4th 317, 354 (2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 4 (1973)). That test “places on the plaintiff the initial burden to establish a prima facie case 5 of discrimination. This step is designed to eliminate at the outset the most patently 6 meritless claims . . . .” Id. To establish a prima facie case of disability discrimination, a 7 plaintiff must demonstrate that: (1) he suffered from a disability; (2) he was performing 8 competently in the position he held; and (3) he suffered an adverse employment action 9 as a result of his disability. See id. at 355. If the plaintiff establishes a prima facie case, 10 this creates a rebuttable presumption of discrimination. Id. The burden then shifts to the 11 employer to demonstrate a “legitimate, nondiscriminatory reason” for the employment 12 action. Id. at 356. If the employer meets the burden, a plaintiff may “attack the 13 employer's proffered reasons as pretexts for discrimination, or to offer any other 14 evidence of discriminatory motive.” Id. at 356. 15 One California appellate court, reviewing Guz, recently held that in the context of 16 a summary judgment motion for an employer, an employer may proceed to step two of 17 the McDonnell Douglas analysis to offer credible, non-discriminatory reasons for 18 terminating an employee. Arnold v. Dignity Health, 53 Cal. App. 5th 412, 425 (2020) 19 (citing Guz, 24 Cal. 4th at 357). This transitioned the burden to the plaintiff “to rebut this 20 facially dispositive showing by pointing to evidence which nonetheless raises a rational 21 inference that intentional discrimination occurred.” Id. (citing Guz, 24 Cal. 4th at 357). 22 “[S]ummary judgment for the employer may thus be appropriate where, given the 23 strength of the employer’s showing of innocent reasons, any countervailing 24 circumstantial evidence of discriminatory motive, even if it may technically constitute a 25 prima facie case, is too weak to raise a rational inference that discrimination occurred.” 26 Id. at 426. (citing Guz, 24 Cal. 4th at 362). 27 As indicated above, the McDonnel Douglas test does not apply when “plaintiff 28 presents direct evidence of discrimination.” Glynn v. Superior Ct., 42 Cal. App. 5th 47, 1 53 (2019). Therefore, there is a “threshold issue” in disability discrimination cases of 2 “whether there is direct evidence that the motive for the employer’s conduct was related 3 to the employee’s physical or mental condition.” Id. (quoting Wallace v. County of 4 Stanislaus, 245 Cal. App. 4th 109, 123 (2016)). A plaintiff may establish this employer 5 intent by proving: 6 (1) the employer knew that plaintiff had a physical condition that limited a major life activity, or perceived him to have such 7 a condition, and (2) the plaintiff’s actual or perceived physical condition was a substantial motivating reason for the 8 defendant’s decision to subject the plaintiff to an adverse employment action. 9 10 Id. (quoting Wallace, 245 Cal. App. 4th at 129). 11 Defendant avers that the McDonnel Douglas / Guz burden-shifting approach 12 applies. Mot. at 12. Defendant believes that there is no prima facie case for 13 discrimination because Plaintiff lacks evidence of a causal link between his alleged 14 disabilities and termination. Mot. at 12. This is supported, according to Costco, by 15 Laughery’s deposition testimony that he had no knowledge of Brager’s disability. 16 Defendant further claims that Laughery’s belief in that respect is reinforced by Plaintiff’s 17 own testimony that none of Defendant’s personnel, besides a single payroll clerk, knew 18 about the anxiety and depression he experienced. Mot. at 12. 19 Plaintiff, on the other hand, counters that Glynn is applicable because there is 20 “direct evidence of discrimination in this case.” Opp’n at 9. This is because Laughery 21 knew that Brager suffered from a disability, regardless of his deposition testimony to the 22 contrary. Opp’n at 10. Plaintiff points to his own doctor notes given to Laughery with 23 “DISABILITY CERTIFICATE” at the top that stated “totally incapacitated” in the text. 24 Opp’n at 10. Plaintiff further insists that Laughery essentially admitted during deposition 25 to recognizing that Brager had a disability related to his time off. See Opp’n at 10. 26 Finally, Plaintiff asserts that John McKay, the Executive Vice President, also played a 27 role in Brager’s termination, and Defendant offers no evidence as to his knowledge. 28 /// 1 In response to Plaintiff’s observation about the medical notes, Defendant cites 2 King v. Permanente Med. Grp., Inc. for the proposition that “[a]n employee’s vague or 3 conclusory statements revealing an unspecified incapacity are not sufficient to put an 4 employer on notice of its obligations under the FEHA.” Reply at 5 (quoting No. CIV. 5 2:13-01560 WBS, 2013 WL 5305907, at *7 (E.D. Cal. Sept. 19, 2013)); see Avila v. 6 Cont'l Airlines, Inc., 165 Cal. App. 4th 1237, 1249 (2008), as modified (holding that an 7 employer’s mere knowledge of health problems does not necessarily rise to awareness 8 of a qualifying disability). In King, the plaintiff took sick leave on three occasions for an 9 unspecified illness, but the court found this merely alerted the employer to health 10 problems, not a disability. King, 2:13-01560 WBS, 2013 WL 5305907, at *7. Regarding 11 doctor notes submitted by the plaintiff, the court found that these notes contained 12 insufficient information to put her employer on notice of disability because the proffered 13 content of the notes was that the plaintiff merely could not work. Id. at *8. 14 These cases are distinguishable. In the instant matter, it is clear that Dr. Khan’s 15 notes would put a reasonable observer on notice of the existence of a disability. Opp’n, 16 Ex. F. While the specific disability was unclear from the note, it is at least a triable issue 17 of fact whether Laughery had knowledge that Brager had a disability that left him “totally 18 incapacitated” and in need of accommodation on occasion. See Opp’n, Ex. F; see also 19 generally Motion, Ex. D (Deposition of Eugene Laughery), at 26-27. Thus, Plaintiff’s 20 claim does not immediately fail as a matter of law because there are triable issues of fact 21 as to whether or not Costco knew that Brager suffered a disability. 22 However, the inquiry does not end here. First, while Plaintiff has created 23 sufficient doubt as to Laughery’s knowledge of a disability, this is not direct evidence of 24 discrimination as envisioned by the Glynn Court. In Glynn, the plaintiff was terminated 25 — possibly in good faith and with a lack of animus — because the employer “mistakenly 26 believed he was totally disabled and unable to work.” 42 Cal. App. 5th at 54. Glynn 27 relies heavily on Wallace, where the plaintiff similarly was removed for the mistaken 28 belief that he could not perform his job safely even with reasonable accommodation. 1 See id. at 53 (citing Wallace v. County of Stanislaus, 245 Cal. App. 4th 109, 115 (2016)). 2 No such circumstances exist in the instant matter. This is not a case where Costco 3 terminated Brager under the mistaken belief that while he was disabled, he could not 4 perform his duties even with accommodation. Accordingly, the Guz / McDonnel Douglas 5 approach for establishing circumstantial, as opposed to direct, discrimination remains 6 most on point. Returning to the McDonnell-Douglas test, the Court next considers 7 Costco’s proffered reason for termination. 8 2. Defendant Offers a Legitimate, Non-discriminatory Basis for Termination 9 10 If the plaintiff establishes a prima facie case, this creates a rebuttable 11 presumption of discrimination. Guz, 24 Cal. 4th at 354. The burden then shifts to the 12 employer to demonstrate a “legitimate, nondiscriminatory reason” for the employment 13 action. Id. at 356. “A reason is legitimate if it is facially unrelated to prohibited bias, and 14 which if true, would thus preclude a finding of discrimination.” Reid v. Google, Inc., 15 50 Cal. 4th 512, 520 n.2 (2010) (quoting Guz, 24 Cal. 4th at 358) (internal quotation 16 marks omitted). The employer “need not persuade the court that it was actually 17 motivated by the proffered reasons.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 18 (1993) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). 19 Defendant offers: “Costco’s reason for terminating Brager’s employment is both 20 undisputed and plainly lawful: Brager was found to have violated Costco’s Leave of 21 Absence Policy by submitting falsified doctor’s notes to support his absences between 22 July 30, 2016 and August 7, 2016[,] and between September 9, 2016[,] and September 23 19, 2016.” Mot. at 13. As an initial matter, this Court is uncertain that the reason for 24 Brager’s termination is “undisputed” – it seems that such a “dispute” is the basis for this 25 entire controversy. Defendant then offers the doubtful assertion that “[a]s a matter of 26 law, there can be no unlawful conduct when an employer interprets or applies its own 27 policies or rules, even if an employee disagrees with the employer’s decision.” Mot. 28 at 12. Neither case offered by Defendant provides such carte blanche employment 1 decisions to employers who happen to have written policies in place. Cf. Arteaga v. 2 Brink’s, Inc., 163 Cal. App. 4th 327, 344 (2008) (“The employer may fire an employee for 3 a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, 4 as long as its action is not for a discriminatory reason . . . .”) (emphasis added). 5 With that said, if Defendant held an honest belief that it was firing Brager for non- 6 discriminatory reasons, even if not objectively true, then Costco will meet its burden of a 7 legitimate termination decision. See Picazo v. Randstad US, LP, No. 5:16-CV-06644- 8 HRL, 2018 WL 1510246, at *8 (N.D. Cal. Mar. 27, 2018). In other words, if Laughery in 9 good faith believed he was terminating Brager for providing false medical documentation 10 from Dr. Khan in violation of the LOA policy — and only for that reason — then Costco 11 shifts the burden back to Brager. 12 Laughery’s Declaration states that he observed Brager’s medical notes were 13 consistently brought in after the work absence, and Brager was supplying copies of the 14 notes instead of originals, leading the manager to question the notes’ authenticity. Mot., 15 Declaration of Eugene Laughery, ¶ 3 (“Laughery Declaration”). Laughery then contacted 16 Costco’s third-party leave administrator, which contacted Dr. Khan’s office directly and 17 confirmed that two of the four notes in question were not authorized. Id. ¶ 4. Laughery 18 confronted Brager, who insisted the notes were real, and gave him approximately a 19 week to provide additional documentation as to their authenticity. Id. ¶ 5. When Brager 20 failed to bring such documentation, Laughery suspended him and demanded proof from 21 Dr. Khan’s office that the notes in question were authentic when Plaintiff returned from 22 suspension. Id. ¶¶ 6-7. When Brager returned on December 7, 2016, with 23 documentation that appeared essentially the same as the suspicious notes, Laughery 24 made the call to fire him.5 Id. ¶¶ 9-10. 25 /// 26 5 Laughery had received prior authorization to do so from John McKay, Executive Vice President. 27 Id. ¶ 8. Laughery was not physically present for the firing due to a prior engagement, but he directed Assistant General Manager Rick Malfatti to terminate him after reviewing the suspicious documentation. 28 Id. ¶¶ 9-10. 1 Based on the foregoing, Defendant has met its burden of demonstrating that 2 Laughery had a legitimate, non-discriminatory reason for firing Brager. Plaintiff was on 3 clear notice that providing “false or misleading information in connection with [his] leave 4 of absence” would subject him to discipline up to termination. Mot., Ex. A (Employee 5 Agreement). The decision to terminate Plaintiff was based on an independent 6 investigation from Costco’s third-party leave administrator, which told Costco that at least 7 two of Brager’s notes ostensibly from Dr. Khan were inauthentic and possibly forged. 8 See Mot., Exs. B, F (Declaration of Linda Smith); Laughery Declaration, ¶¶ 4, 12.6 9 Although irrelevant to Laughery’s contemporaneous knowledge, the credibility of 10 the decision is bolstered by later deposition testimony where Dr. Khan confirmed that he 11 refused Brager’s request to authorize at least two of Plaintiff’s absences (Mot., Ex. C, 12 Deposition of Abdul W. Khan, M.D. (“Khan Deposition”), at 17:12-24), and that 13 Dr. Khan’s office determined that Brager had forged the authorization letters. Id. at 14 19:24-25. This led to Brager’s dismissal as Dr. Khan’s patient. Id. at 19:24-25. Under 15 such circumstances, the decision to terminate Brager was facially unrelated to prohibited 16 bias. Cf. Velasquez v. Constellation Brands US Operations, Inc., No. 1:18-CV-00364- 17 SAB, 2019 WL 2642510, at *12 (E.D. Cal. June 27, 2019) (finding the plaintiff’s multiple 18 unexcused absences, violation of company policy, and falsification of internal forms 19 sufficient as legitimate non-discriminatory reasons for termination); English v. Estes 20 Express Lines, No. 5:16-CV-01353-CAS (SKx), 2017 WL 5633037, at *12 (C.D. Cal. 21 Nov. 21, 2017) (employee’s repeated workplace violations provided sufficient legitimate, 22 non-discriminatory reason for termination). 23 /// 24 /// 25 /// 26
27 6 As discussed supra, there was some confusion from WorkCare as to how many of the notes were inauthentic. Ultimately, it determined that at least two of the notes were likely forged. See Mot. 28 at 4-8. 1 3. Plaintiff Fails to Demonstrate that Defendant’s Termination Justification Was Pretextual 2 3 “Once an employer has articulated a legitimate, non-discriminatory business 4 reason for terminating an employee, the burden shifts to the employee to provide 5 substantial, responsive and admissible evidence that the employer’s stated reason is a 6 pretext and that the true reason for the termination was illegal discrimination.” Faust v. 7 California Portland Cement Co., 150 Cal. App. 4th 864, 875 (2007). “Pretext may be 8 demonstrated by showing that the proffered reason had no basis in fact, the proffered 9 reason did not actually motivate the discharge, or, the proffered reason was insufficient 10 to motivate discharge.” Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 224 (1999) 11 (internal quotation marks and citation omitted). “Pretext may be inferred from the timing 12 of the discharge decision, the identity of the decision-maker, or by the discharged 13 employee’s job performance before termination.” Id. However, “[w]hen evidence of 14 pretext is circumstantial, rather than direct, the plaintiff must produce specific and 15 substantial facts to create a triable issue of pretext.” Washington, 871 F. Supp. 2d at 16 1026 (quoting Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 17 2011)) (internal quotation marks omitted). 18 Defendant avers that “Brager has no evidence of a causal link, let alone specific, 19 substantial evidence of pretext.” Mot. at 14. Defendant insists this is a “rare case where 20 the undisputed evidence affirmatively shows the absence of pretext.” Mot. at 15. This is 21 because for a brief period Costco decided to reinstate Brager when it received 22 information from Dr. Khan’s office that Dr. Khan did approve Plaintiff’s absences on the 23 dates in question. Mot. at 15. It wasn’t until December 14, 2016 – when Costco’s third- 24 party administrator told Defendant that Dr. Khan’s office contacted them to clarify that 25 Dr. Khan did not authorize Brager’s absences on the contested dates – that Defendant 26 elected not to reinstate Brager. Id. 27 Plaintiff responds that Costco is providing “shifting and contradictory reasons for 28 the termination.” Opp’n at 11. Plaintiff points to the fact that Laughery had already 1 signed the termination form the day before (December 6) the actual termination 2 (December 7), and notes that the termination form lists four reasons for the termination, 3 “three of which were inapplicable and contradictory.” Id. at 12. Plaintiff further attacks 4 Dr. Khan’s “flip-flopping” on the contested absences, suggesting that a reasonable jury 5 could “believe that Dr. Khan and his record keeping were entirely at fault for the 6 discrepancies and that Brager did not submit falsified medical leave forms.” Id. at 12.7 7 Brager fails to demonstrate that Costco’s proffered termination reasoning has no 8 basis in fact, did not motivate the discharge, or was insufficient to explain the 9 termination. See Hanson, 74 Cal. App. 4th at 224. There is simply no question that an 10 employee providing forged medical notes would logically motivate an employer to 11 terminate that employee — a termination unrelated to discriminatory animus. The fact 12 that Costco’s LOA policy directly addressed such a scenario only bolsters this finding. 13 Additionally, Defendant’s decision to reverse itself upon the short-lived belief that 14 Dr. Khan did authorize the notes affirms that the forged medical notes were the impetus 15 for the termination. That Laughery signed the termination form the day before is 16 inconsequential, as Laughery was not at the warehouse and did not make the actual 17 termination decision until December 7, 2016, when he heard from Malfatti. See Reply, 18 Ex. A, Supplemental Declaration of Eugene Laughery, ¶¶ 4-5. 19 “[A]n employer would be entitled to judgment as a matter of law . . . if the plaintiff 20 created only a weak issue of fact as to whether the employer’s reason was untrue and 21 there was abundant and uncontroverted independent evidence that no discrimination 22 had occurred.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000). 23 This is such an occasion. The Employee Counseling Notice provided to Brager pre- 24 termination did not contain four contradictory reasons for the suspension that eventually 25 became a termination — the reasons were consistent as to the good faith belief that 26 Plaintiff provided false documentation for his absences in violation of Costco’s internal
27 7 Plaintiff additionally states that Costco admitted that Brager’s leave was authorized two months after termination when it denied terminating Brager and claimed he voluntarily quit when he applied for 28 unemployment benefits. Opp’n at 13. This is irrelevant to the instant Motion and is not discussed further. 1 policy. See Motion, Ex. D, Employee Counseling Notice; Faust v. California Portland 2 Cement Co., 150 Cal. App. 4th 864, 875 (2007) (“Plaintiff cannot deny that Defendant 3 acted exactly as it had promised him it would act if he ignored the April 8, 2003[,] 4 letter.”). 5 Finally, it is not the place of the courts to empanel a jury to determine the efficacy 6 of Dr. Khan’s record-keeping. Cf. Opp’n at 12. First, Dr. Khan’s deposition testimony 7 reveals Dr. Khan’s affirmative belief that he did not authorize Brager’s contested 8 absences, and that he terminated Brager as a patient. See generally Khan Deposition 9 at 14-19. Second, even on the remote chance this entire controversy could be blamed 10 on Dr. Khan’s errant record-keeping, it is irrelevant because Costco made its termination 11 decision on the good faith, non-discriminatory belief that Brager forged the medical 12 notes. See King v. United Parcel Service, Inc., 152 Cal. App. 4th 426, 436 (2007) (“It is 13 the employer’s honest belief in the stated reasons for firing an employee and not the 14 objective truth or falsity of the underlying facts that is at issue in a discrimination case.”). 15 Because Plaintiff fails to demonstrate that the legitimate, non-discriminatory 16 termination reason offered by Costco was actually pretextual, Plaintiff’s disability 17 discrimination claim fails as a matter of law. 18 C. Plaintiff’s Failure to Accommodate Claim Fails as a Matter of Law 19 It is unlawful for an employer, with limited exception, “to fail to make reasonable 20 accommodation for the known physical or mental disability of an applicant or employee.” 21 Cal. Govt Code § 12940(m)(1). However, the law does not “require an accommodation 22 that is demonstrated by the employer . . . to produce undue hardship . . . .” Id. To 23 establish a prima facie case of failure to accommodate, the plaintiff has the burden of 24 demonstrating: “(1) he has a disability within the meaning of FEHA, (2) he is a qualified 25 individual, meaning that he can, with or without reasonable accommodation, perform the 26 essential functions of his job . . . , and (3) he suffered an adverse employment 27 action . . . .” Smith v. Sears, Roebuck & Co., 207 F. Supp. 2d 1031, 1034 (N.D. Cal. 28 2002). Reasonable accommodation “in the FEHA means (as relevant here) a 1 modification or adjustment to the workplace that enables the employee to perform the 2 essential functions of the job held or desired.” Nadaf-Rahrov v. Neiman Marcus Grp., 3 Inc., 166 Cal. App. 4th 952, 974 (2008). 4 As discussed supra, Defendant has not established as a matter of law that 5 Laughery lacked knowledge of Brager’s disability. However, the inquiry does not end 6 there. The only failure to accommodate highlighted by Plaintiff is his termination over the 7 two contested medical absences. These simply do not suffice. This Court is quite 8 certain that the legislative authors of § 12940(m) did not envision that an employer 9 needed to accommodate what the management reasonably and in good faith believed 10 were forged medical notes. It is otherwise uncontested that Defendant granted all of 11 Brager’s leave requests as accommodations. See Reply at 10. Thus, despite the 12 disputed issue of fact as to Laughery’s knowledge, Plaintiff’s failure to accommodate 13 claim fails as a matter of law. 14 D. Plaintiff’s Failure to Engage in an Interactive Process Claim Fails as a Matter of Law 15 16 Under FEHA, it is unlawful for an employer “to fail to engage in a timely, good 17 faith, interactive process with the employee or applicant to determine effective 18 reasonable accommodations, if any, in response to a request for reasonable 19 accommodation by an employee or applicant with a known physical or mental disability 20 or known medical condition.” Scotch v. Art Inst. of California, 173 Cal. App. 4th 986, 21 1003 (2009) (quoting Cal. Govt Code § 12940(n)). “Once the interactive process is 22 initiated, the employer's obligation to engage in the process in good faith is continuous.” 23 Id. at 1013. “Liability hinges on the objective circumstances surrounding the parties’ 24 breakdown in communication, and responsibility for the breakdown lies with the party 25 who fails to participate in good faith.” Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 26 34, 62 n.22 (2006). 27 Plaintiff’s vague assertions that Defendant failed to engage in the interactive 28 process are belied by the record. Plaintiff does not contest that Defendant granted all of 1 his leave requests, even when he was not eligible for FMLA. See Mot. at 16. While one 2 could perhaps offer post hoc conjecture as to additional accommodations Costco could 3 have granted Brager, the overwhelming judicial consensus is that interactive process is a 4 two-way street. See, e.g., Aparicio v. Comcast, Inc., 274 F. Supp. 3d 1014, 1030 (N.D. 5 Cal. 2017); Nadaf-Rahrov, 166 Cal. App. 4th at 984-85. There is no evidence that 6 Plaintiff sought — and Defendant denied — any additional accommodations; Plaintiff 7 does not even speculate what such accommodations would be. 8 Beyond that, Plaintiff is correct that there is also an obligation on the employer, 9 and although it is reasonable to believe that Laughery knew that Brager suffered a 10 disability requiring occasional leave, the record does not support any conclusion that 11 Defendant knew that Brager suffered from depression and anxiety specifically. It would 12 be unreasonable to demand that Defendant, without knowledge of Plaintiff’s specific 13 afflictions, to go beyond granting all leave requests without any prompting from Plaintiff 14 as to additional support required. Thus, Defendant’s Motion is GRANTED as to 15 Plaintiff’s interactive process claim. 16 E. Plaintiff’s Retaliation Claim Fails as a Matter of Law 17 The FEHA makes it unlawful for an employer “to discharge, expel, or otherwise 18 discriminate against any person because the person has opposed any practices 19 forbidden under this part or because the person has filed a complaint, testified, or 20 assisted in any proceeding under this part.” Scotch, 173 Cal. App. 4th 986, 1003 (2009) 21 (quoting Cal. Gov’t Code § 12940(h)). “[I]n order to establish a prima facie case of 22 retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected 23 activity,’ (2) the employer subjected the employee to an adverse employment action, and 24 (3) a causal link existed between the protected activity and the employer’s action.” 25 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042, 116 P.3d 1123, 1130 (2005) 26 (collecting authorities). 27 “Brager pleads retaliation on two bases: his medical leaves and his complaints of 28 sexual orientation harassment.” Opp’n at 14. Defendant contests both. First, Costco 1 states that Brager cannot establish a link between his protected activity (medical leaves 2 or complaints of sexual orientation harassment) and his termination, particularly given 3 Laughery’s lack of knowledge that Brager had made any sexual orientation harassment 4 complaints. Mot. at 17; see Laughery Declaration ¶¶ 15-16. Additionally, Defendant 5 insists that it was violation of LOA policy that caused Brager’s termination, not the 6 medical leaves standing alone. Mot. at 17. 7 Plaintiff responds that Laughery was not the only person involved in Brager’s 8 termination decision, so even assuming he did not hold discriminatory animus against 9 Plaintiff, the obligation on Defendant at this stage is to demonstrate that all Defendant 10 managers with say in the decision held no such animus. See Opp’n at 14-15 (citing 11 Reeves v. Safeway Stores, Inc., 121 Cal. App. 4th 95, 108 (2004)). Here, Plaintiff avers 12 that Carmen Colunga (“Colunga”), a previous manager, influenced Laughery’s 13 termination decision, and Colunga held animus toward Brager as demonstrated by her 14 decision to “target him and harass him herself.” Opp’n at 15.8 15 Laughery, however, insists that former managers Colunga and Steve 16 Chamberlain (“Chamberlain”) offered no input on the decision to terminate Brager. 17 Reply, Supplemental Declaration of Laughery, ¶ 4. This is supported by Colunga’s own 18 deposition testimony that she was unaware Brager had even been terminated, and she 19 had transferred to another warehouse months prior. Reply at 9. Chamberlain, for his 20 part, also no longer worked at the store when Brager was terminated, and Plaintiff’s 21 speculation that he influenced the decision is too vague and unsupported to create a 22 triable issue of fact. 23 McKay, the Costco manager that authorized Laughery’s initial decision to 24 terminate Plaintiff, similarly denied any knowledge of Brager’s sexual orientation 25 harassment claims, nor that his medical leaves were tied to disabling depression or
26 8 Plaintiff also contends again that, regarding the medical leaves, there are sufficient questions surrounding Costco’s “legitimate, non-discriminatory business reason for terminating Brager” (the 27 ostensibly forged notes) to survive summary judgment. Opp’n at 16. Because this Court has already recognized above that there existed a legitimate, non-discriminatory reason for the termination, only 28 Plaintiff’s first argument is addressed. 1 anxiety. Reply, Declaration of John McKay, ¶¶ 4-5. Beyond conjecture, Plaintiff offers 2 no evidence to the contrary. See Kerr v. Rose, 216 Cal. App. 3d 1551, 1563-64 (1990) 3 (“[I]t is well established that a plaintiff’s suspicions of improper motives . . . primarily 4 based on conjecture and speculation are not sufficient to raise a triable issue of fact to 5 withstand summary judgment.”) (citation omitted) (omission original). Finally, Plaintiff 6 offers that the two corporate managers who initially told Laughery to reinstate Brager but 7 then changed their minds — Paul Cano and Jeff Abadir — perhaps had knowledge of 8 Brager’s sexual orientation harassment complaints. Defendant replies only that neither 9 had any influence over the decision. Reply at 9 n.12. Indeed, it would be peculiar if 10 Cano and Abadir held such knowledge, fostered discriminatory animus about it, told 11 Laughery to reinstate Brager, and then changed their minds under the pretext of news 12 that the medical notes were inauthentic. This Court will not entertain such exceptional 13 theories without some evidence in support. Accordingly, Defendant’s Motion is 14 GRANTED as to this claim as well. 15 F. Plaintiff’s Derivative Claims 16 1. The Failure to Prevent Discrimination and Retaliation 17 FEHA makes it unlawful for an employer “to fail to take all reasonable steps 18 necessary to prevent discrimination and harassment from occurring.” Scotch, 19 173 Cal. App. 4th at 1003 (citing Cal. Gov’t Code § 12940(k)). A plaintiff pursuing such a 20 claim must show three elements: “1) plaintiff was subjected to discrimination, 21 harassment or retaliation; 2) defendant failed to take all reasonable steps to prevent 22 discrimination, harassment or retaliation; and 3) this failure caused plaintiff to suffer 23 injury, damage, loss or harm.” Aparicio v. Comcast, Inc., 274 F. Supp. 3d 1014, 1030-31 24 (N.D. Cal. 2017) (quoting Lelaind v. City & Cty. of San Francisco, 576 F. Supp. 2d 1079, 25 1103 (N.D. Cal. 2008)).9 26 9 “Examples of reasonable steps employers may take to prevent discrimination include promptly 27 investigating the discrimination claim, developing appropriate sanctions, and implementation of effective procedures to handle discrimination-related complaints.” Ayala v. Frito Lay, Inc., 263 F. Supp. 3d 891, 906 28 (E.D. Cal. 2017) (citing Cal. Code Regs. § 11019(b)). 1 Plaintiff alleged in his Complaint that “Defendants failed to take all reasonable 2 steps to prevent discrimination, harassment and retaliation against Plaintiff from 3 occurring, and failed to take immediate corrective action to remedy the discrimination; 4 harassment, and retaliation, in violation of FEHA . . . .” Compl. ¶ 85. Specifically, 5 despite Plaintiff’s notice of ongoing harassment, “Defendants failed to take any 6 disciplinary measures to prevent and/or remedy the harassment, discrimination and 7 retaliation against Plaintiff, such as issuing a formal warning, providing counseling, or 8 imposing probation, suspension, or termination, or conducting a prompt and thorough 9 investigation . . . .” See id. ¶ 86. Defendant asserts that this claim is “entirely derivative” 10 of Plaintiff’s underlying claims, “and thus rise and fall with those claims.” Mot. at 18. 11 As determined above, there are triable issues of fact as to if Costco failed to 12 prevent ongoing harassment of Plaintiff from his coworkers. Accordingly, the Motion is 13 DENIED as to the sixth cause of action. 14 2. Wrongful Termination 15 In light of the above, Plaintiff’s wrongful termination claim must fail as a matter of 16 law. See Sneddon v. ABF Freight Sys., 489 F. Supp. 2d 1124, 1131 (S.D. Cal. 2007) 17 (finding the same result because wrongful termination is a derivative claim). 18 3. Declaratory Relief 19 Plaintiff’s declaratory relief claim is also derivative. See Roman v. BRE 20 Properties, Inc., 237 Cal. App. 4th 1040, 1055 (2015). However, because this Motion is 21 denied in relevant part as to harassment in the workplace, Defendant’s Motion is 22 DENIED as to declaratory relief as well.10 23 G. Punitive Damages 24 Plaintiff’s prayer for punitive damages is derivative of the claims for sexual 25 orientation harassment (Compl. ¶ 49); discrimination (id. ¶ 65); failure to accommodate 26 10 Defendant’s assertion as to Plaintiff’s lack of standing rests only on one unreported case that 27 does not provide the authority to which Defendant attributes it. See Mot. at 18 n.2 (citing Markowitz v. United Parcel Serv., Inc., No. SACV 15-1367 AG (DFMx), 2016 WL 3598728, at *8 (C.D. Cal. July 1, 28 2016)). 1 | (id. § 72); failure to engage in interactive process (id. | 82); failure to prevent 2 | discrimination, harassment, and retaliation (id. { 90); retaliation (id. § 101); and wrongful 3 | termination (id. { 109). Plaintiffs are entitled to punitive damages if they can show by 4 | clear and convincing evidence that the defendants were guilty of malice, fraud, or 5 | oppression. Cal. Civ. Code § 3294. Based on Plaintiff's allegations as to the sexual 6 | orientation harassment he endured and management ignored, this claim is not ripe for 7 || summary adjudication. In addition, whether to award punitive damages is generally a 8 | question for the jury. See, e.g., Johnson v. Monsanto Co., 52 Cal. App. 5th 434, 455 9 | (2020). Accordingly, the Court DENIES the Motion as to punitive damages. 10 11 CONCLUSION 12 13 For the foregoing reasons, Defendant’s Motion. ECF No. 8, is GRANTED in part 14 | and DENIED in part. 15 1. The Motion is DENIED as to the following claims: One (declaratory relief); 16 | Two (sexual orientation harassment); Six (failure to prevent harassment); and punitive 17 || damages. 18 2. The Motion is GRANTED as to the following claims: Three (disability 19 | discrimination); Four (failure to accommodate); Five (failure to engage in the interactive 20 | process); Seven (retaliation); and Eight (wrongful termination). 21 IT IS SO ORDERED. 22 | Dated: September 27, 2021 23 J Lat LEK ee NK 4 SENIOR UNITED STATES DISTRICT JUDGE 25 26 27 28 25