Filed 11/27/18 Christensen v. Pacific Bell Telephone Co. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

After Randy Christensen was terminated from his job as a splicing technician, he sued his former employer, Pacific Bell Telephone Company (PacBell), alleging age discrimination, disability discrimination, and retaliation in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.). He now appeals from the trial court’s award of summary judgment to PacBell. We conclude that PacBell is entitled to judgment on Christensen’s causes of action for age discrimination, but not on his causes of action for disability discrimination and retaliation and not on his claim for punitive damages. Accordingly, we shall affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

A. Christensen’s Employment with PacBell

The following facts are undisputed. Christensen began working for PacBell in 1998 at the age of 46, when he was hired as a services technician. From 2006 to the summer of 2011, Christensen served as union vice president and did not work in the field. When his position with the union ended, he returned to field work as a splicing technician based at PacBell’s West Grand garage. Splicing technicians install and maintain wires and cables and other components of telecommunications equipment, which may be located on top of telephone poles or houses, under the sidewalk, or under buildings. The job required Christensen to perform the same tasks he had performed as a services technician, with the addition of fixing problems in cable. In the course of his work, Christensen would climb ladders and poles and crawl under houses. The work involved walking, standing, stooping and squatting with frequent kneeling, frequent bending and twisting at the neck and waist, and frequent grabbing and grasping with the hands and fine manipulation of the hands. Christensen had to carry ladders weighing up to 50 pounds, as well as tools and a belt for climbing that together weighed 10 to 15 pounds, while wearing heavy work boots.[1]

In May 2012, Christensen began a short-term disability leave as a result of a work-related knee injury for which he eventually had surgery. He filed a workers’ compensation claim, which was resolved through a stipulation and request for award based on the November 2013 report of an Agreed Medical Evaluator (AME), Dr. Feinberg. Dr. Feinberg’s report stated that Christensen “could not return to full and unrestricted work duties, although he is hoping to soon return to some type of modified work for his employer.” The report further stated that Christensen had a permanent and stationary disability that precluded “heavy work,” pole climbing, and repetitive kneeling and squatting.[2] Based on Christensen’s responses to a task ability profile, the report concluded Christensen could meet the physical demands of “[m]edium work.” To resolve the workers’ compensation claim, the parties stipulated that Christensen’s injuries caused permanent disability of 43 percent and that Christensen would receive an award of $58,423.29, and in April 2014, an administrative law judge approved the stipulation.

Meanwhile, in May 2013, a nurse practitioner working with Christensen’s orthopedist, Dr. Bozic, wrote a letter stating that Christensen could not yet return to his previous job as a splicing technician, but that he could return to full-time modified duty, with “restrictions related to lifting, climbing poles, standing for long periods of time, kneeling, crawling and hooking a pole.” According to the letter, Christensen did not “have the strength or endurance to do these tasks, but over time with continued physical therapy he should be able to resume these job functions.” The letter stated that Christensen “may do a job that includes driving, walking pushing, pulling, bending[,] stooping and reaching, aside from the restrictions above.”

In May or June of 2013, Christensen gave the letter to a manager, John Fortenbury, and asked to return to work at the West Grand garage as a splicing technician on light duty. Fortenbury told him that light duty was not available and that to return to work Christensen would have to perform all the tasks ordinarily expected of a splicing technician. Soon thereafter, Antoinette Carter, a PacBell employee relations manager, informed Christensen that he was being placed on unpaid leave.

Several months later, in October 2013, Christensen contacted his supervisor, Joe Heath, and requested either a transfer to a vacant splicing technician position based at PacBell’s 45th Street garage, or a return to his previous position at the West Grand garage with the accommodation that he no longer climb poles and, if necessary, be provided the use of a bucket truck for any aerial work.[3] The next month, Carter told Christensen that the vacant position had been filled by another employee, and that Christensen’s department had informed her that it could not accommodate him. She also discussed with Christensen the use of a “nonmanagement priority job search,” in which PacBell tries to find a new job within 30 days for an employee who cannot continue his or her usual job.

In December 2013 and January 2014, Christensen filed union grievances claiming that PacBell unfairly refused to allow him to return to his job with a reasonable accommodation. Both were denied. In March 2014, Christensen filed a complaint with the Department of Fair Employment and Housing, alleging age discrimination, disability discrimination, and failure to accommodate.

In April 2014, the same month that Christensen’s workers’ compensation claim was resolved, Carter (PacBell’s employee relations manager) learned that Christensen’s physician, Dr. Kermani, had authorized Christensen’s return to work. Dr. Kermani noted that Christensen could not climb poles and would never be able to do that in the future, but that he was able to “squat, crawl and stand fine.” Carter met with Gregory Pickle, Christensen’s “third-level manager,” who told her that Christensen’s limitation on pole-climbing could be accommodated if Christensen could use a ladder. Carter asked Christensen if he could climb a ladder; Christensen said he could; and Carter said that his department could accommodate him as a splicing technician.

There followed several months of back-and-forth about the extent to which the use of ladders would obviate the need for pole-climbing, whether a bucket truck would be required for Christensen to do aerial work, the restrictions set forth in the AME’s report, and Dr. Kermani’s views on the heights of ladders Christensen could climb and the frequency with which he could climb them.[4]

Ultimately, Christensen sought the following accommodations, which he claimed were fully consistent with the AME report: no pole climbing, use of a bucket truck for aerial work, and (only in “emergency situations,” which were not defined) the use of ladders up to 28 feet in length. Those accommodations, like Dr. Kermani’s authorization, said nothing about the AME’s November 2013 conclusion (to which Christensen had stipulated) that Christensen was precluded from doing heavy work and from repetitive kneeling and squatting.

As reflected in a letter from Carter to Christensen, PacBell ultimately took the position that Christensen had avoided disclosing the restrictions set forth in the AME report, which precluded heavy work and repetitive kneeling and squatting, that the accommodations Christensen requested would not address the restrictions, and that PacBell was not aware of any way for Christensen to perform his pre-injury job while complying with the restrictions. In her letter, Carter stated she had attempted to hold a “job search discussion” with Christensen, his department and union; that Christensen refused to participate, but the union attended on his behalf; and that as a result of the discussion a job search was scheduled for September 9 through October 8, 2014. The job search concluded unsuccessfully and in January 2015 Christensen’s employment with PacBell was terminated. Pickle testified at his deposition that he made the decision to terminate Christensen, and that the decision was based solely on Christensen’s inability to climb poles and 28-foot ladders.

B. Trial Court Proceedings

In 2015, Christensen filed a complaint against PacBell in superior court alleging six causes of action under FEHA: age discrimination, disability discrimination, failure to prevent age and disability discrimination, failure to reasonably accommodate his disability, failure to engage in a good-faith interactive process to reasonably accommodate his disability, and retaliation.

PacBell moved for summary judgment or, in the alternative, summary adjudication. The motion was supported by declarations from Pickle, Carter, and PacBell’s attorney. PacBell’s primary argument was that under the doctrine of judicial estoppel, Christensen could not disavow the restrictions to which he stipulated in his workers’ compensation proceeding, which meant he could not do heavy work, or climb poles, or engage in repetitive kneeling and squatting. PacBell claimed that because “heavy lifting,” pole climbing, and repetitive kneeling and squatting were among the essential functions of the splicing technician job, Christensen could not show that he was a qualified individual for the job, and his causes of action that relied on allegations of disability discrimination failed as a matter of law. PacBell also argued that Christensen could not raise a triable issue of fact as to his age discrimination claim or his retaliation claim.

In opposing PacBell’s motion, Christensen submitted six declarations: his own, one from his attorney, and four from present or former PacBell employees. Only the attorney declaration meets the requirements of Code of Civil Procedure section 2015.5;[5] the others do not state where they were signed or that they were signed under penalty of perjury.

With its reply memorandum, PacBell submitted a request to strike the five defective declarations as inadmissible, but also submitted 73 numbered evidentiary objections to the contents of those declarations.

Shortly after PacBell filed its reply, in the days just before the scheduled summary judgment hearing, and without seeking leave of court, Christensen filed “errata declarations” that were identical to the defective opposition declarations, except that the errata declarations included penalty of perjury certifications and information about the place of execution. PacBell then filed objections to the errata declarations and asked the court to disregard them as late-filed papers which PacBell, in any event, had no time to address. Christensen filed a response explaining that the errata declarations addressed PacBell’s earlier objection that the originally-filed declarations lacked penalty of perjury certifications and place of execution, that the errata declarations were substantively identical to the previous ones, and that there was no prejudice to PacBell, because PacBell had addressed the substance of all the declarations in its reply papers.

The trial court issued a tentative ruling that granted PacBell’s summary judgment motion. At the hearing on the motion, Christensen’s counsel asked the court to overrule PacBell’s objection to the errata declarations, on the grounds that the court had discretion to overlook procedural errors in opposition papers and PacBell was not prejudiced by the late submission. PacBell conceded that the court had discretion to allow the submission of opposition evidence that was otherwise untimely, but argued that such discretion was to be exercised “for good cause,” apparently referring to section 437c, subdivision (b)(2), and observed Christensen had not offered any explanation of why the declarations as originally filed were defective.[6] In response, Christensen’s counsel said, “I’ll be frank. It was an oversight by our office that I take full responsibility for,” and argued again that the primary issue for the court was whether PacBell had been prejudiced.

Christensen’s counsel then addressed the issue of judicial estoppel, arguing that the doctrine should be invoked only where a miscarriage of justice will result from a party taking inconsistent positions, which was not the case here, and that “disability” had different meanings in the contexts of workers’ compensation and FEHA. He noted that workers’ compensation does not distinguish between marginal and essential job functions or consider whether an employee can work with reasonable accommodation, and argued there were triable issues whether the AME report precluded Christensen from performing essential functions and, if so, whether his disability could be reasonably accommodated.

The trial court took the matter under submission and subsequently issued an order granting summary judgment to PacBell. The court sustained PacBell’s objections to the five defective declarations on the grounds that they failed to comply with section 2015.5, and declined to consider the five errata declarations, including Christensen’s own, on the grounds that counsel’s “broad statement” that the original declarations were improperly prepared as a result of clerical error did not show good cause in support of the request. That said, the order granting summary judgment refers to evidence in and attached to Christensen’s errata declaration, indicating that the court considered the declaration despite sustaining PacBell’s objection to it.

Judgment was entered for PacBell, and Christensen timely appealed.

DISCUSSION

A. Applicable Law and Standard of Review

1. Discrimination Claims

Claims of discrimination under FEHA are subject to the three-stage burden-shifting test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. The McDonnell Douglas test “ ‘reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially,’ ” and places the initial burden at trial on the plaintiff to establish a prima facie case of discrimination. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307 (Sandell), quoting Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The employee must show “ ‘ “ ‘actions taken by the employer from which once can infer, if such actions remain unexplained, that it is more likely than not that such actions were “based on a [prohibited] discriminatory criterion. . . . ” ’ ” ’ ” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2 (Reid), quoting Guz, supra, 24 Cal.4th at p. 355.)

If the plaintiff establishes a prima facie case of discrimination, “there is a presumption of discrimination, and the burden then shifts to the employer to show that its action was motivated by legitimate, nondiscriminatory reasons. ([Guz, supra, 24 Cal 4th] at pp. 255-256.) A reason is ‘ “legitimate” ’ if it is ‘facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination.’ (Id. at p. 358.)” (Reid, supra, 50 Cal.4th at p. 520, fn. 2.) If the employer meets this burden, the employee must present evidence that the employer’s stated reason for the action is false or pretextual, or evidence that the employer acted with discriminatory animus. (Sandell, supra, 188 Cal.App.4th at p. 314.) “In demonstrating that an employer’s proffered nondiscriminatory reason is false or pretextual, ‘ “[an employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. . . . Rather, the [employee] must demonstrate such weaknesses, implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them ‘unworthy of credence,’ . . . and hence infer ‘that the employer did not act for the [asserted] nondiscriminatory reasons.’ [Citations.] . . .” [Citations.]’ ” (Ibid.)

2. Summary Judgment

In deciding a summary judgment motion in a discrimination case, the trial court must “ ‘ “ ‘decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing. . . .’ ” ’ ” (Sandell, supra, 188 Cal.App.4th at p. 309.)

“ ‘ “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case. . . .” [Citation.]’ (Guz, supra, 24 Cal.4th at p. 362.)” (Sandell, supra, 188 Cal.App.4tth at p. 309.)

On appeal, we review a grant of summary judgment “de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “[W]e exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff’s claims.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253 (Nazir).) We “ ‘ “view the evidence in the light most favorable to plaintiff[ ] as the losing part[y]” and “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.” ’ ” (Id. at p. 254.) Under the weight of authority, we review the trial court’s rulings on evidentiary objections in summary judgment proceedings for abuse of discretion (Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 53), and the parties agree we should apply an abuse of discretion standard to the evidentiary rulings here.

B. Christensen’s Late-Filed Declarations

Christensen argues that the trial court abused its discretion when it denied his request, made at the summary judgment hearing, to consider the five errata declarations. We agree. The better course would have been for Christensen to seek leave of court and show good cause before he filed his errata declarations. (§ 437, subd. (b)(2).) But there was no prejudice whatsoever to PacBell, which had already addressed the substance of all the declarations in its reply papers. What is more, despite the “errata” declarations, the judge commended counsel for both parties for their excellent work at the summary judgment hearing and in their written papers, strong evidence that there was no pattern of rule violations warranting sanctions. In these circumstances, the trial court abused its discretion in striking the errata declarations. Accordingly, we treat the late-filed declarations as part of Christensen’s opposition for purposes of this appeal.[7]

C. Disability Discrimination

1. Prima Facie Showing of Disability Discrimination

To establish a prima facie case of disability discrimination, a plaintiff must present evidence demonstrating “that her or she (1) suffered from a disability . . . ; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability.” (Sandell, supra, 188 Cal.App.4th at p. 310.) By analogy to the Americans with Disabilities Act of 1990 (ADA, 42 U.S.C. §§ 12101-12213), the term “qualified individual” is often used to refer to an individual who can perform the essential duties of the job with or without reasonable accommodation. (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2017) ¶ 9:2245, p. 9-200.)

The essential functions of a job are a question of fact. (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 967, fn. 6.) Under Government Code section 12926, subdivision (f)(1), “A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: [¶] (A) The function may be essential because the reason the position exists is to perform that function. [¶] (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. [¶] (C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.” Government Code section 12926, subdivision (f)(2) provides, “Evidence of whether a particular function is essential includes, but is not limited to, the following: [¶] (A) The employer's judgment as to which functions are essential. [¶] (B) Written job descriptions prepared before advertising or interviewing applicants for the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The consequences of not requiring the incumbent to perform the function. [¶] (E) The terms of a collective bargaining agreement. [¶] (F) The work experiences of past incumbents in the job. [¶] (G) The current work experience of incumbents in similar jobs.”

The reasonableness of a job accommodation is also a question of fact. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 374 (Nealy).) “Reasonable accommodations may include, among other things, job restructuring or permitting an alteration of when and/or how an essential function is performed.” (Id. at p. 374, citing Gov. Code, § 12926, subd. (p)(2) & Cal. Code Regs., tit. 2, § 11065, subd, (p)(2)(G).) “The examples of reasonable accommodations in the relevant statutes and regulations include reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether. FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.” (Nealy, supra, 234 Cal.App.4th at p. 375.)

2. Judicial Estoppel

PacBell relies on Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171 (Jackson) to argue that the doctrine of judicial estoppel prevents Christensen from showing that he is a qualified individual for the splicing technician position. Judicial estoppel is an equitable doctrine to protect against fraud on the courts, and it applies when a party has taken two positions in judicial or quasi-judicial administrative proceedings; the tribunal accepted the first position as true; the positions are totally inconsistent; and the first position was not taken as a result of ignorance, fraud or mistake. (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 47.) We determine de novo whether judicial estoppel can apply to the facts of a case. (Id. at p. 46.)

PacBell argues that the essential functions of Christensen’s job as a splicing technician include heavy work, climbing poles, and crawling, kneeling and stooping, and that Christensen’s position in the workers’ compensation proceeding prevents him from establishing that he can perform those functions with or without reasonable accommodation. Therefore, PacBell contends, Christensen cannot prove an element of his prima facie case of disability discrimination. For his part, Christensen does not dispute that he is bound by his stipulations in the workers’ compensation proceeding. Instead, he argues that the position he took there (he hoped to “return to some type of modified work for his employer,” even though he could not do heavy work, run, climb poles, or engage in repetitive kneeling and squatting) is consistent with the position he took in the trial court (he could perform the essential functions of the splicing technician position with or without reasonable accommodation).

Christensen has the better argument. The AME report, to which Christensen stipulated in the workers’ compensation proceeding, unambiguously states that Christensen’s disability precluded heavy work, pole climbing, and repetitive kneeling and squatting. But the report says nothing about any accommodation, except to note without comment that PacBell had rejected Christensen’s request to return to work with light duty and his subsequent request to return to work with modifications of a bucket truck and no pole climbing. Accordingly, even if heavy work, pole climbing, and repetitive kneeling and squatting are essential functions of Christensen’s work as a splicing technician (an issue we address below), the AME report does not preclude the possibility that Christensen could perform those functions with some accommodation. Because Christensen’s position in the workers’ compensation proceeding is not totally inconsistent with his position in his lawsuit, the doctrine of judicial estoppel does not apply.[8]

3. Essential Functions of the Splicing Technician Job

PacBell relies primarily on the deposition testimony of Pickle as evidence that the essential job functions of a splicing technician include climbing, “heavy lifting,” crawling, kneeling, and stooping. We consider these functions in turn, and conclude that there are triable issues of material fact as to whether they are essential or whether Christensen can perform them with or without accommodation, and therefore PacBell has not shown that Christensen cannot make a prima facie case of disability discrimination.

a. Climbing

PacBell presented evidence, including testimony from Christensen’s third-level manager, Pickle, and testimony from Christensen’s deposition in his workers’ compensation action, that climbing is an essential function of the splicing technician job, specifically climbing poles and climbing 28-foot ladders. Christensen has come forward with evidence that, even assuming it is an essential function of the job that a splicing technician be able to access aerial equipment, there are triable issues of fact as to whether climbing poles and 28-foot ladders are essential functions and, if they are, whether his inability to climb poles and 28-foot ladders can be reasonably accommodated. Christensen stated in his declaration that most aerial work sites are accessible with a bucket truck, and the remainder can be reached by ladder, a situation that occurs only once or twice a week. Another splicing technician based at the West Grand garage stated in a declaration that since being assigned a bucket truck, he climbed poles only once a month, and ladders once or twice a week, generally using an 18-foot ladder that weighed between 20 and 30 pounds. Christensen came forward with evidence that bucket trucks were available for him to use, and, even though Christensen stipulated that he was restricted in his ability to climb a stepladder, he came forward with evidence that he could climb ladders up to 20 feet in length and had so informed PacBell. This raises a triable question whether Christensen’s inability to climb poles and 28-foot ladders could be reasonably accommodated.

b. Lifting

PacBell claims that “heavy lifting” is an essential function of the splicing technician job. We do not equate “heavy lifting” with the “heavy work” that Christensen stipulated he could not perform, because PacBell does not define “heavy lifting,” or offer evidence of equivalence between “heavy work” and the lifting that is an essential function of the splicing technician job. In any event, Pickle’s testimony that he did not consider Christensen’s ability to perform the required lifting in reaching his decision to terminate Christensen’s employment casts doubt on whether “heavy lifting” is an essential function of the job. Furthermore, Christensen testified that he never had to lift more than 50 pounds, and lifting 50 pounds up to one-third of the workday is permissible in connection with the “medium work” that Christensen stipulated he can do.

PacBell’s written job description (called a “job brief”) for the splicing technician petition states that splicing technicians “[m]ust be able to lift up to 100 lbs,” that they “[l]oad[ ] required tools and material,” and “[m]ay be required to dig with shovel, jackhammer, etc.” Christensen stipulated that he is “very restricted” from carrying a 50-pound crate for 50 feet and from lifting a 50-pound crate from the floor to a bench. Nevertheless, in view of PacBell’s failure to come forward with evidence of the weight of the tools and equipment that must be lifted or the pounds of force that must be exerted in digging with a shovel or jackhammer, or with evidence of the frequency with which that work must be performed as a percentage of the workday, and in view of Christensen’s testimony that he never lifted more than 50 pounds, there is a triable issue of fact as to whether Christensen can perform any necessary lifting with or without reasonable accommodation.

c. Crawling, Kneeling and Stooping

Finally, PacBell has come forward with evidence that crawling, kneeling and stooping are essential functions of the splicing technician job. Pickle testified that the job involves “a lot of” crawling, kneeling and stooping. Christensen testified that about once a week he worked in sidewalk boxes, which involved stooping and kneeling. A few times a week, he would crawl under houses to reach wiring. The amount of crawling varied: “sometimes you have a lot of it and sometimes you go for a period of time without any.”

Christensen, however, has come forward with evidence to create a triable issue of fact as to whether crawling, kneeling, and stooping are essential functions of the job. First, the written job description does not state that crawling, stooping and kneeling are essential or required job functions. Although the job description states that splicing technicians may work “in manholes and buried plant,” and “may work in confined/cramped well ventilated below ground structures for long periods of time,” it does not state that crawling, kneeling, or stooping are required for that work. And Christensen offers evidence from the declaration of another splicing technician based at the West Grand garage that work that can be done while kneeling or squatting can also be done while sitting. That technician stated, “I generally choose to sit down, as sitting is more comfortable and less strenuous on my knees than kneeling or squatting. Sitting does not impact my ability to perform these duties.” Moreover, Pickle’s testimony that he did not consider Christensen’s ability to crawl or stoop in making the decision to terminate him casts doubt on whether crawling and stooping are essential features of the job.

Even if crawling, kneeling and stooping are required functions, there is a triable issue of fact as to whether Christensen can perform the required functions with or without reasonable accommodation. In the worker’s compensation proceeding, Christensen stipulated that as a general matter his disability precluded him engaging in repetitive kneeling and squatting. He further represented that he was “very restricted” in his ability to crawl under a dinner table to retrieve a spoon. PacBell has not come forward with any evidence about the extent to which any required kneeling and squatting should be considered “repetitive” as that term is used in the AME report, or about whether Christensen being restricted in crawling would prevent him from performing essential functions of the job.

In sum, we conclude that there are triable issues of fact whether Christensen is a qualified individual for purposes of his claims arising from alleged disability discrimination, and therefore PacBell has failed to show that Christensen cannot make a prima face case of disability discrimination.

4. Pretext

PacBell argues that even if Christensen can make a prima facie case of disability discrimination, PacBell is entitled to judgment because it has come forward with evidence that Christensen’s termination was based on legitimate and undisputed reasons (specifically Pickle’s determination that Christensen could not perform the essential functions of the job, and the job search process revealed no alternative position), and Christensen has not come forward with evidence to create a triable issue as to that material fact. (Sandell, supra, 188 Cal.App.4th at p. 309.) We disagree.

Pickle testified that he terminated Christensen solely on the basis of his understanding that Christensen could not climb poles or 28-foot ladders. He further testified that he understood that Christensen was generally unable to climb “anything more than a three-foot step-stool.” But, as discussed above, Christensen has introduced evidence that climbing poles and 28-foot ladders were not essential functions of the job, that his inability to climb poles and 28-foot ladders could have been accommodated, and that months before his termination he informed PacBell that he could climb ladders up to 20 feet in length.

Pickle further testified that he could not provide Christensen with a bucket truck. Yet Pickle’s testimony that he had only 10 to 12 bucket trucks in a district that stretched from San Francisco, through San Jose and up to Oakland, is contradicted by a declaration from a PacBell employee who states that there were 14 or 15 bucket trucks in the West Grand garage alone. PacBell argues that Pickle was unaware of any accommodation that would have allowed Christensen to work as a splicing technician, but does not cite to any evidence in the record to support that contention.

The conflicts in the evidence here give rise to a triable issue of fact as to whether Christensen’s termination was motivated by legitimate, nondiscriminatory reasons, and therefore PacBell is not entitled to judgment on Christensen’s cause of action for disability discrimination. We further conclude that because there are triable issues of fact as to the essential functions of the splicing technician job, the possibility of reasonable accommodation, and the motivation for Christensen’s termination, PacBell is not entitled to judgment on Christensen’s claims for failure to prevent disability discrimination, failure to accommodate, and failure to engage in the interactive process in good faith. (Nealy, supra, 234 Cal.App.4th at p. 379 [FEHA requires employer to “ ‘engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability’ ”].) As to PacBell’s good faith in the interactive process, triable issues of fact arise from the apparent conflict between PacBell’s claim that it made continued attempts to interact with Christensen “until the end” (an apparent reference to Carter’s documentation of her efforts through September 2014) and Pickle’s testimony at his deposition that he determined that Christensen could not perform the essential functions of the splicing technician job in about June 2014.

C. Age Discrimination

To establish a prima facie case of age discrimination, a plaintiff must provide evidence that he was a member of a protected class, that he was qualified for the position he sought or was performing competently in the position he held, that he suffered an adverse employment action, and that “some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.)

Christensen argues on appeal that he has shown that circumstances suggest discriminatory motive by coming forward with evidence that similarly-situated employees under age 40 received “favorable treatment.” But the meager evidence to which he refers does not support his claim. Christensen cites his own deposition testimony that by 2011 PacBell had eliminated his former job (services technician) by advancing existing services technicians to splicing technician jobs and hiring “young people” as lower-paid “premises technicians.” But Christensen, who sought and received a position as a splicing technician when he left his union assignment, fails to explain how this represents PacBell giving favorable treatment to employees under age 40. Christensen also states he was assigned “a disproportionate number” of assignments requiring work on telephone poles and ladders, but does not assert that he was given those assignments because of his age, or that younger employees were treated differently. Furthermore, PacBell hired Christensen when he was over age 40, and Christensen testified that there were splicing technicians older than he was who continued working at PacBell.

Although the burden to establish a prima facie case of age discrimination is not onerous, Christensen fails to show any actions taken by PacBell from which a reasonable inference can be made that, absent explanation, it is more likely than not that his termination was based on his age. (See Guz, supra, 24 Cal.4th at p. 355.) Therefore, PacBell is entitled to judgment on his cause of action for age discrimination and on his cause of action for failure to prevent discrimination, to the extent that cause of action rests on an underlying claim of age discrimination.

D. Retaliation

Employees may establish a prima facie case of retaliation in violation of FEHA by showing that they engaged in activities protected by FEHA, that their employers subsequently took adverse employment action against them, and that there was a causal connection between the protected activity and the adverse action. (Nazir, supra, 178 Cal.App.4th at p. 287.)

Christensen argues that he has come forward with evidence of a causal link by showing that PacBell was aware that he engaged in protected activity, specifically, filing grievances and a complaint with the Department of Fair Employment and Housing in which he alleged age and disability discrimination, and that he was terminated “ ‘within a relatively short time’ ” for pretextual reasons. Christensen was terminated in January 2015, more than a year after he filed his December 2013 and January 2014 grievances, and more than 10 months after he filed his March 2014 complaint with the Department of Fair Employment and Housing. But Pickle testified that he reached the conclusion that Christensen could not perform the essential functions of the splicing technician job as early as June 2014, just two months after Christensen filed his March 2014 complaint. And as we discussed above in analyzing the issue of pretext, apparent conflicts in the evidence here give rise to a triable issue of fact as to PacBell’s claim that Christensen’s termination was motivated by legitimate, nondiscriminatory reasons.

In these circumstances, we conclude that PacBell is not entitled to judgment on Christensen’s cause of action for retaliation.

E. Punitive Damages

PacBell argues that even if Christensen prevails on his underlying claims, he is not entitled to punitive damages for two reasons, neither of which we find persuasive.

First, PacBell claims there is no dispute that it had policies prohibiting discrimination, trained its employees on those policies, and required compliance with the policies, and that therefore it cannot be liable for punitive damages under White v. Ultramar, Inc. (1999) 21 Cal.4th 563 (White). But contrary to PacBell’s argument, White does not “foreclose” an award of punitive damages. “ ‘It is axiomatic that cases are not authority for propositions not considered.’ ” (People v. Avila (2006) 38 Cal.4th 491, 566.) And the portion of White on which PacBell relies makes it clear that in White our Supreme Court did not consider the proposition at issue: “Although the issue is not presented here, and we do not address it or offer our view on its merits, in future cases, if a company has a written policy that specifically forbids [illegal conduct], it may operate to limit corporate liability for punitive damages, as long as the employer implements the written policy in good faith.” (White, supra, 21 Cal.4th at p. 568, fn. 2, italics added.) Furthermore, to support its claim that PacBell required compliance with its antidiscrimination policies, PacBell cites only the following excerpt from Christensen’s deposition: “Q: Do you understand that all employees of Pacific Bell are required to follow those policies? [I.e., the policies prohibiting discrimination]. A: I understand that requirements exist.” This evidence does not suffice to make a prima facie showing that there is no triable issue of material fact as to whether PacBell implements its policies in good faith. (See Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 369 (Davis) [party moving for summary adjudication on punitive damages issue has “initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact”].)

Second, relying on Civil Code section 3294, subdivision (b), PacBell argues that to recover punitive damages Christensen must show that he was harmed by a managing agent of PacBell,[9] and claims he cannot do that because he has not come forward with any evidence to dispute statements in the declarations by Carter and Pickle, whose conduct Christensen faults, that they had never set PacBell’s corporate policy or played any role in setting its corporate policy. Christensen concedes the point as to Carter, but argues that Pickle’s testimony that he has the title of “director” (specifically, “Director – Network Services”) and is responsible for supervising almost 1,000 employees gives rise to a triable question as to whether he is a managing agent. Our Supreme Court has ruled that “managing agent[s]” are “only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy,” and that “[t]he scope of a corporate employee’s discretion and authority” is “a question of fact for decision on a case-by-case basis.” (White, supra, 21 Cal.4th at p. 566-567.) And in White, a “zone manager” who fired plaintiff and supervised eight retail stores and 65 employees was a managing agent under Civil Code section 3294, subdivision (b). (Id. at p. 577.) In the matter before us, there is little evidence in the record as to the scope of Pickle’s responsibilities, and PacBell’s evidence that Pickle is not a managing agent is limited to Pickle’s own conclusory statements that he has not and does not set PacBell’s corporate policies, that he never played any role in setting PacBell’s corporate policies, and that to the best of his knowledge, his decisions do not set or affect PacBell’s corporate policies. Even if we view Pickle’s declaration as meeting PacBell’s initial burden on summary judgment, we regard Christensen’s evidence of the number of employees Pickle supervises as meeting his burden as plaintiff to make a prima facie showing that there is a triable issue of fact as to whether Pickle was a managing agent of PacBell. (See Davis, supra, 220 Cal.App.4th at p. 370.)

DISPOSITION

The judgment is reversed in part and affirmed in part. We reverse summary judgment as to Christensen’s causes of action for disability discrimination, failure to engage in the required interactive process, failure to accommodate, failure to prevent disability discrimination, and retaliation and as to Christensen’s claim for punitive damages. We affirm summary judgment as to Christensen’s causes of action for age discrimination, and failure to prevent age discrimination. The parties shall bear their own costs on appeal.

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Miller, J.

We concur:

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Kline, P.J.

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Stewart, J.

A150787, Christensen v. Pacific Bell Telephone Company