Filed 1/11/18 Jaurique v. Schneider Electric USA, Inc. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

BRADLEY A. JAURIQUE,

Plaintiff and Appellant,

v.

SCHNEIDER ELECTRIC USA, INC., et al.,

Defendants and Respondents.

F073028

(Super. Ct. No. 13CECG03903)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Mark Wood Snauffer, Judge.
Michael J.F. Smith and John L. Migliazzo for Plaintiff and Appellant.
Seyfarth Shaw, Laura Wilson Shelby, Kiran Aftab Seldon and Chantelle C. Egan for Defendants and Respondents.
-ooOoo-
Bradley Jaurique (plaintiff) filed a complaint against his former employers, Pelco, Inc. (Pelco) and Schneider Electric USA, Inc. (Schneider Electric) (collectively defendants) alleging wrongful termination and disability-related claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and the Moore-Brown-Roberti Family Rights Act (CFRA) (§ 12945.1 et seq.). Defendants successfully moved for summary judgment. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Pelco is a global provider of video surveillance equipment. Plaintiff was employed by Pelco from 1996 to 1999, voluntarily resigned to pursue a different job opportunity, and was rehired in 2000. During this general time frame, he worked in the company’s engineering department at its headquarters in Clovis. Plaintiff developed expertise with regard to printed circuit boards (PCBs), a component part used in various products, and by the mid-2000s was promoted to the position of Senior PCB Designer. At a later, unspecified point in time, he sought and received a transfer to what was then known as the procurement department and thereafter worked as a Procurement Component Specialist.
In 2007, Pelco was acquired by Schneider Electric. Following the acquisition, plaintiff’s job title changed to Procurement Engineer. By 2008, he was performing the dual roles of Procurement Engineer and Strategic Source Commodity Manager, both of which involved the purchasing of PCBs. His duties involved identifying and selecting PCB vendors, negotiating purchase prices, quality control functions, and an overall focus on the reduction of PCB purchasing costs. The job required domestic and international travel to meet with vendors, conduct negotiations, and perform audits at vendors’ facilities.
Sometime around 2009 or 2010, plaintiff developed back problems and sought medical treatment to alleviate pain. In approximately 2011, he was diagnosed with degenerative disc disease. In 2012, following a lack of success with steroid injections for pain management, plaintiff’s doctor recommended surgery. In October of that year, plaintiff notified his supervisor that he had scheduled back surgery for the following month. He further advised that he would be taking a months-long leave of absence for post-operative recovery. On November 16, 2012, two weeks prior to the date of his surgery, defendants informed plaintiff that his position had been eliminated and he was being laid off.
In December 2013, plaintiff filed a complaint against defendants alleging three FEHA causes of action and one cause of action under the CFRA: (1) disability or perceived disability discrimination and failure to prevent such discrimination; (2) failure to engage in the interactive process to determine a reasonable accommodation for a medical condition or disability; (3) failure to accommodate a disability; and (4) retaliatory discharge. In April 2015, defendants moved for summary judgment or, in the alternative, summary adjudication of plaintiff’s individual causes of action and his prayer for punitive damages. The motion was heard and ruled upon in August 2015.
Defendants’ Evidence
Plaintiff was a salaried, at-will employee. The termination of his employment occurred during a period of financial difficulty for Pelco. Faced with shrinking revenues and increasing costs, the company eliminated portions of its workforce. A total of 446 people were laid off between 2009 and 2012. There were 183 layoffs in 2011 and another 124 in 2012. In November 2012 alone, Pelco eliminated the positions of at least 39 individuals, including plaintiff. There were additional layoffs in 2013 as part of Schneider Electric’s pre-planned global restructuring of its corporate purchasing functions. Plaintiff had been aware, since at least mid-2012, of the pending reorganization.
The decision to eliminate plaintiff’s position was made by John Supino, with input and approval from Supino’s manager, Tom Perkins, and a human resources (HR) business partner named Consuelo Martinez. Supino was then the Director of Strategic Sourcing for Schneider Electric’s Building Business Unit. He described himself as being “responsible for overseeing commodity strategy and new product purchasing for the Building Business,” and, in that role, was plaintiff’s direct manager. Perkins was Vice President of Purchasing for Schneider Electric’s Building Business Unit. He was “responsible for overseeing and managing the purchasing function across all of the [Building Business] Unit’s activities, including Pelco, and as such, [he] was the direct manager of John Supino.”
The termination of plaintiff’s employment in November 2012 was preceded by two notable events, both of which occurred prior to the scheduling of his surgery. On October 4, 2012, Supino received an e-mail from Ryan Pring, who was the “Head of Engineering.” The e-mail begins with these statements: “Here is the list of issues that I’d like to address with you tomorrow. As you can see, I’ve spent considerable time capturing the issues. I don’t take playing with someone’s career lightly, but I do consider removing roadblocks a necessity for us to grow and succeed.” What follows is a detailed and scathing criticism of plaintiff that goes on for three and a half pages (in single-spaced type). Pring’s grievances are broken down under the headings of “Ethical Issues,” “Professionalism,” “Job,” and “Strategy Slides [that plaintiff had prepared for a PCB Strategy Presentation].” Among other topics, Pring addresses plaintiff’s relationships with certain vendors, alleged lack of professionalism in dealing with vendors (e.g., “salesmen have complained that Brad yells and curses at them and is the least professional individual they work with”) and competency issues (e.g., “Brad’s PCB knowledge is not up to date. … Yes, Brad was a PCB designer, so he knows the language. But he wasn’t an engineer and he has been out of the technology for a long time. … Brad always has an answer. If he doesn’t know the right answer, he makes it up. This makes it very hard to trust anything he says.”).
Pring’s central allegation was that plaintiff was “preventing the business from progressing” by interfering with, and damaging, the engineering department’s relationships with PCB vendors. Supino’s summary judgment declaration states that he “took Mr. Pring’s concerns very seriously because he was Mr. Jaurique’s [i.e., plaintiff’s] internal customer, requiring them to work together closely. Moreover, Mr. Jaurique’s role was to support, not hinder, his internal customer, as Mr. Pring reported.” In deposition testimony, plaintiff acknowledged that his job required him to collaborate with Pring and other people in the engineering department.
On October 12, 2012, eight days after his receipt of Pring’s e-mail, Supino received an e-mail from Schneider Electric’s Global Commodity Director for PCBs, Patrick Durand. Durand’s position in the corporation made him plaintiff’s indirect manager. Supino was actually one of three recipients of the e-mail, which was addressed directly to Supino’s boss, Tom Perkins. The message reads (verbatim except where bracketed): “Tom as discuss by phone I have a big problem with Brad. I have explained several times to him that he has to upload [certain data] for Pelco and TAC Sweden. Without [it] we can’t compare the prices and transfer business. […] In general Brad do what he want to do and not what he has to do. All the buyers in the G4 play the same game as a team, Brad play his game and not [as] a team member. For me he is unmanageable. Please find a solution by a new buyer or new organization for G4, I don’t want Brad participation for the negotiation and for 2013. Hope you understand the issue and expect your support.”
Pursuant to Durand’s request, Supino informed plaintiff that he would not be representing the company as planned at a November 2012 vendor negotiation in China. According to his declaration, Supino also felt compelled to take further action: “Negotiations with vendors was a significant component of Mr. Jaurique’s duties. Combined with the pending reorganization of the purchasing function, the removal of Mr. Jaurique’s negotiation responsibility and the complaints from Mr. Pring and Mr. Durand caused me to begin considering eliminating Mr. Jaurique’s position. Almost immediately upon reviewing Mr. Durand’s October 12, 2012 email, I began conferring with other individuals on the subject of eliminating [the] position.”
It is undisputed that in early 2012, Perkins asked his subordinate managers, including Supino, to identify cost-cutting solutions, including potential layoffs. Supino attests that the Pring and Durand e-mails came at a time when he had already begun to consider consolidating purchasing functions across Pelco and other entities for which he had purchasing responsibility. Pelco was under pressure to reduce costs, and implementation of Schneider Electric’s global restructuring of purchasing was scheduled for the beginning of 2013. The e-mails allegedly prompted him to weigh the economic costs and benefits of plaintiff’s job. Suppino arrived at his decision to eliminate the position “sometime in the second half of October or first week of November.” He does not recall, nor is there any evidence of, exactly when that occurred.
Defendants’ financial explanation for terminating plaintiff’s employment is detailed in the supporting declaration of Perkins, which includes these excerpts:
“The following table illustrates that sales for Pelco dropped approximately $100 million dollars between 2011 to 2013:
Sales (in Millions)
2011 $460.3
2012 $419.5
2013 $368.8
During the same period of time, the relative cost for operations, as a percentage of sales, increased. The costs to sales ratio increased from 55.8% in 2011, to 59% in 2012, and increased again to 59.8% in 2013. Put simply, Pelco was selling less and it was becoming more expensive to operate.”
“… The main focus of Mr. Jaurique’s position was the delivery of cost savings for PCBs. [¶] A major reason for the elimination of Mr. Jaurique’s position was that, of the members of Mr. Supino’s purchasing team, he had the least ability in terms of dollars to drive savings and impact the bottom line. PCBs were – and continue to be – a relatively small line item for Pelco. PCB purchasing for Pelco amounted to approximately $10 million in 2012. By comparison, in 2012, other commodity categories were anywhere from approximately $20 million to $110 million. Mr. Jaurique had a smaller ability to impact the bottom line due to the simple fact that PCBs represented the smallest commodity category.”
“Not only was the dollar amount of PCBs smaller, but the projected savings for PCBs for 2013 was far less than other commodity categories. There was limited room to drive costs down for PCBs, as the PCBs utilized by the business are not overly complex and the PCBs were already sourced in Asia. This economic reality was borne out by Mr. Jaurique’s own PCB cost saving projections for 2013. In September 2012, Mr. Jaurique, along with other members of Mr. Supino’s purchasing team, made presentations regarding expected 2013 cost savings for commodity categories. Mr. Jaurique forecast about a 2% cost savings in 2013 for PCBs. By comparison, my recollection is that the forecasted cost savings for other commodity categories were much higher, in the range of five percent or more. Accordingly, given Mr. Jaurique’s focus on PCBs, his ability to drive savings and deliver value on an actual and relative basis was limited.”
“Additionally, at the time of Mr. Jaurique’s layoff, Schneider was working to globally consolidate the purchasing function for the entire corporation. I was directly involved in this company initiative. There were several goals of this consolidation, including cost minimization through the elimination of operational inefficiencies. By consolidating PCB purchasing, it was thought that economies of scale in purchasing could be achieved. After global restructuring, a Schneider employee outside of Pelco would become responsible for handling and facilitating PCB-related purchasing in North America, the volume of which would be far greater than that supported by Mr. Jaurique. Mr. Jaurique’s position at Pelco would therefore become redundant. Moreover, the intent at the time of restructuring was that the employee responsible for supporting PCB-related purchasing would also be responsible for supporting additional commodity categories.”
Defendants’ moving papers alleged that the timing of plaintiff’s back surgery in relation to the layoff decision was coincidental at worst, but likely reflected a preemptive move by plaintiff in hopes of saving his job or laying the groundwork for a lawsuit. They argued his exclusion from the upcoming vendor negotiations was a clear signal to him that his job was in jeopardy. As noted above, Durand’s e-mail to Perkins and Supino was sent on October 12, 2012. On October 15, 2012, plaintiff e-mailed Supino the following message: “John, I was pushing my back surgery till after G4 negotiations so I could make sure your G4 business plan was [met] but [s]ince you stated I am not going I called my doctor. It looks like surgery can be done 2nd week of November (11-9-12) so I scheduled it. I may not be able to return for up to 5-6 months or longer depending on progress made post operation….” The next morning, Supino responded to plaintiff’s e-mail and told him to contact the Reed Group, i.e., the third party administrator that handled leave of absence requests for Schneider Electric. Plaintiff contacted the Reed Group that afternoon, and his request for leave was approved a few days later.
On November 5, 2012, plaintiff sent an e-mail to Supino that said, “My Doctor scheduled my surgery for November 26. This gives me time to make sure I could get [a] couple important tasks done before I leave.” A few sentences later, plaintiff added, “I know there will be a re-org while I am gone and I’m not sure how this will affect me and wanted to discuss this as well.” Three days later, on November 8, 2012, plaintiff contacted the Reed Group regarding his rescheduled surgery date and asked questions about the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 et seq.). A contemporaneously prepared record made by the representative who spoke with plaintiff contains the following notation: “Employee asked if the FMLA will protect him from company lay-offs next week.” Plaintiff lost his job the following week.
Defendants’ motion was supported by additional evidence concerning the claims of failure to accommodate a disability and failure to engage in the interactive process. On October 17, 2012, two days after plaintiff had notified Supino of his scheduled surgery, plaintiff’s doctor faxed a one-sentence note to the HR department: “Please allow patient to work from home as needed while he awaits spine surgery.” On October 25, 2012, plaintiff sent an e-mail to Supino asking, “Do you have any updates on the doctor note to work from home I presented to you?” Supino replied the same day: “Brad, I mentioned this briefly to you, but the job isn’t one that can be done from home. Availability for ad-hoc meetings, various other on site meetings, availability for international calls and travel (among other things) are all required parts of the job, and can’t be effectively done from home on an extended basis. [¶] The request we’d make to your doctor is to identify what your limitations/restrictions are. We can then determine whether we can accommodate that.” Plaintiff did not obtain a second doctor’s note, and he never followed up on the issue with HR.
Following the elimination of plaintiff’s position, defendants’ PCB purchasing was no longer managed at the local business unit level. As of September 2014, when Supino was deposed in this case, those responsibilities were being handled on a global scale and were no longer performed by anyone under Supino’s supervision. Plaintiff went on to secure employment as a commodity manager with a different company in January 2014. His new job paid a higher base salary than he had received at Pelco and included a comprehensive benefits package.
Plaintiff’s Evidence
Supino had long been aware that plaintiff suffered from back pain. In deposition testimony, plaintiff claimed to have informed Supino in August 2012 that he would soon need to undergo surgery, which would necessitate a leave of absence of approximately three to four months. Supino allegedly responded by saying, “We can’t have you gone that long” and/or “You can’t be gone that long.”
Plaintiff wanted to avoid activities that would aggravate his back, e.g., walking to and from the parking lot, climbing stairs, and sitting at a desk for extended periods of time. He believed much of his daily routine (exchanging e-mails, making phone calls, and teleconferencing) could be performed from the comfort of his home. He claimed to have broached the subject of working from home with Supino prior to October 2012, and Supino had always said that he would need a doctor’s note. After plaintiff supplied such a note, he was confused by Supino’s request to have the doctor identify specific restrictions and/or limitations. This was because Supino knew about his back pain and was aware of why he wished to be at home. Rather than discussing the matter with HR, plaintiff attempted to obtain clarification of the restrictions/limitations requirement from Supino.
Supino allegedly began to avoid plaintiff during his final weeks of employment. There is evidence of a cancelled meeting in an e-mail from Supino to plaintiff on Friday, November 2, 2012 with the subject line: “Canceled: Monthly 1:1 John / Brad.” The message reads: “Need to cancel today so I can [attend to a specific work matter].” Plaintiff wrote back asking if the meeting would be rescheduled, and Supino replied, “We can catch up sometime next week.” On Monday, November 5, 2012, plaintiff sent the e-mail referenced in the above summary of defendants’ evidence. In addition to advising of his rescheduled surgery date and asking about the pending “re-org,” plaintiff informed Supino that he would be attending a local vendor negotiation on November 20, which would be his last day of work. Plaintiff also stated that he would not be returning until February 2013 at the earliest, and requested to speak with Supino and Perkins about “what you wanted to do with my tasks while I am gone.”
Plaintiff was notified of his job termination during a meeting with Supino and the aforementioned HR representative, Consuelo Martinez. It is undisputed that plaintiff was told the decision had nothing to do with his job performance. In deposition testimony, Supino maintained that this was true, i.e., that plaintiff was terminated for reasons unrelated to job performance. When Martinez was deposed, she said, “I don’t specifically remember [Supino] saying that [to plaintiff], although it would make sense because it was a position elimination. It wasn’t based on performance.” When asked for her opinion regarding whether the termination had been based on finances or performance, she replied, “Performance may have played a part in it, but I think it’s the position, the specific position, the spend on the commodity that Brad was in charge of.” In his summary judgment declaration, Tom Perkins indicates that the complaints of Pring and Durand were factored into the layoff decision insofar as “[k]ey individuals [had] lost confidence in Mr. Jaurique’s ability to continue to function in his role.”
In further support of his opposition, plaintiff submitted written job performance evaluations from 2009, 2010, and 2011. He also relied on his own deposition testimony regarding company meetings on unspecified dates in 2012 during which Supino had displayed “potential reorganization charts.” The relevant testimony is as follows: “And in those charts, it showed me taking on a global role, for the building business. It had me taking on a role of global strategic sourcing manager for my commodity, as well as continuing the role that I did, part time, with my job as procurement engineer, globally, for the commodity I was responsible for. As a matter of fact, there was some questions, by people to John, would this – would there be any eliminations; and I believe, at those meetings, John said there would be no eliminations in our group.”
In 2013, plaintiff discovered postings for Schneider Electric jobs on the Internet. The advertised positions were for a “New Project Buyer,” “Sourcing Manager,” “Regional Commodity [M]anager NAM for Passif components (G2) and PCB (G4),” and “Senior Buyer.” Plaintiff believed he was qualified to perform most, if not all, of the duties associated with each job. The record contains printouts of three of the job listings, each bearing the date of November 12, 2013. Plaintiff believed the “11/12/13” notation reflected the date that he or his legal counsel printed the postings off of a computer. He testified to having discovered the job listings “earlier in the year,” but could not provide a more specific time frame.
Ruling and Subsequent Proceedings
On or about August 31, 2015, the trial court issued a written decision granting the motion for summary judgment. On September 25, 2015, judgment was formally entered in favor of defendants and against plaintiff. Plaintiff later filed a motion for new trial, which was heard and denied in December 2015. This timely appeal followed.
DISCUSSION
Standard of Review
“A trial court should grant a defendant’s motion for summary judgment if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. On appeal, we review the matter independently, resolving in the plaintiff’s favor any doubts regarding the propriety of summary judgment.” (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 415.) “We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court’s stated reasons.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)
The standard of review requires that we scrutinize the defendants’ moving papers and liberally construe those of the plaintiff to determine the existence of any triable issues of fact. (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10.) “In deciding whether a plaintiff has met her burden of proof, we consider both direct and circumstantial evidence, and all reasonable inferences to be drawn from both kinds of evidence, giving full consideration to the negative and affirmative inferences to be drawn from all of the evidence, including that which has been produced by the defendant.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 (Leslie G.).) Evidence that “gives rise to no more than mere speculation,” is insufficient to establish a triable issue (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163), and a plaintiff must do more than posit “inferences based entirely on tortured reasoning or logic strained to the breaking point . . . .” (O’Neil v. Dake (1985) 169 Cal.App.3d 1038, 1044-1045.)
“There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof,” i.e., more likely than not. (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A reviewing court may not weigh the evidence or assess credibility, but it must nevertheless determine whether the evidence is sufficient to allow a judge or jury to find in favor of the plaintiff. (Id. at p. 856.)
Alleged Discrimination and Retaliation
First Cause of Action
“FEHA prohibits an employer from, among other things, discharging a person from employment because of a medical condition or physical disability. (§ 12940, subd. (a).)” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583 (Soria).) Actionable conduct includes discrimination based on an existing physical disability and discrimination based on a potential disability or the employer’s perception that an employee has an existing or potential disability. (Id. at p. 584.) Plaintiff’s first cause of action alleges not only discrimination based on an actual or perceived disability, but also the failure to prevent discrimination. Failure to prevent discrimination is a derivative claim; there is no liability for failure to prevent conduct prohibited by FEHA “except where [such] actions took place and were not prevented.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289; accord, Okorie v. Los Angeles Unified School District (2017) 14 Cal.App.5th 574, 597.)
The applicable summary judgment framework is well explained in Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150 (Featherstone): “In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Id. at p. 1158.)
“Once the employer sets forth a nondiscriminatory reason for the decision, the burden shifts to the plaintiff to produce ‘ “substantial responsive evidence” ’ that the employer’s showing was untrue or pretextual.’ ” (Soria, supra, 5 Cal.App.5th at p. 591.) “The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive.” (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “The employee’s ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ ” (Ibid.)
Defendants’ evidence satisfies their burden to show a facially legitimate, nondiscriminatory basis for terminating plaintiff’s employment. “When an employer modifies its workforce for business reasons, it has no obligation to transfer an employee to another position within the company.” (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 800.) Likewise, “ ‘[e]mployers are sometimes forced to remove employees who are performing poorly, engaging in improper work conduct, or severely disrupting the workplace.… Precedent does not prevent [an employer] from removing such an employee simply because the employee [recently] engaged in a protected work activity.’ ” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 354 (Arteaga), quoting Strong v. University Healthcare System, L.L.C. (5th Cir. 2007) 482 F.3d 802, 808.)
Nevertheless, “if the employer has a compelling reason wholly unrelated to the disabilities of any of its employees to reduce the size of its work force, this does not entitle it to use the occasion as a convenient opportunity to get rid of its disabled workers.” (Matthews v. Commonwealth Edison Co. (7th Cir. 1997) 128 F.3d 1194, 1195; accord, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358 (Guz), quoting ibid.) The issue to be determined is whether plaintiff’s evidence would allow a reasonable fact finder to conclude, under the preponderance standard, that “the proffered justification is mere pretext.” (Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 426.) “An employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the reasons offered by the employer for the employment decision that a reasonable trier of fact could rationally find the reasons not credible, and thereby infer the employer did not act for the stated nondiscriminatory purpose.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1007 (Scotch).)
“Pretext may be inferred from the timing of the discharge decision, the identity of the decisionmaker, or by the discharged employee’s job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) However, suspicious timing is not alone sufficient to raise a triable issue. (Arteaga, supra, 163 Cal.App.4th at p. 353.) “In the classic situation where temporal proximity is a factor, an employee has worked for the same employer for several years, has a good or excellent performance record, and then, after engaging in some type of protected activity—disclosing a disability—is suddenly accused of serious performance problems, subjected to derogatory comments about the protected activity, and terminated. In those circumstances, temporal proximity, together with the other evidence, may be sufficient to establish pretext.” (Id. at pp. 353-354.)
Plaintiff contends that pretext is inferable from defendants’ “logically inconsistent” and “fundamentally different” explanations for terminating his job. He relies on the principle that, “in an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions.” (Guz, supra, 24 Cal.4th at p. 363.) The argument focuses on what we will call defendants’ “official reason” for his discharge, which is a financially motivated position elimination, and the secondary reason articulated in the declarations of Supino and Perkins, i.e., that key individuals were displeased with his job performance.
There is a difference between “shifting” reasons and additional reasons for an employment decision. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 815, citing Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918 [If employer’s reasons are not incompatible, they are not properly characterized as “ ‘shifting reasons’ ”].) There is nothing inconsistent about Supino making a cost-effective decision to eliminate plaintiff’s job after being pressured to do so by other corporate managers who were unhappy with plaintiff’s work. In deposition testimony, plaintiff acknowledged there was friction between him and Ryan Pring: “Actually, Ryan and I, we complained about each other [in] 2011/2012. There were several meetings in regards to that.” Plaintiff alleged that Supino knew Pring’s complaints were invalid and was initially supportive of him, but the support waned over time: “I don’t know if he was taking Ryan’s side. I just felt that he wasn’t – he wasn’t aggressive enough with him.” The interdepartmental meetings over these issues occurred in “early 2012,” but the conflict persisted.
The more significant piece of evidence is the e-mail from Patrick Durand, the Global Commodity Director for PCBs and plaintiff’s indirect manager. His directive to Perkins and Supino was clear, albeit awkwardly worded: “[F]ind a solution by a new buyer or new organization for G4 [PCBs], I don’t want Brad participation for the [November 2012] negotiation and for 2013.” In other words, find someone else to handle plaintiff’s PCB purchasing duties. Plaintiff testified that he was surprised to learn Durand felt this way because Durand had been complimentary of him in the past, though he conceded the two of them also had “disagreements.”
Key to our analysis is the lack of any evidence suggesting that Durand’s e-mail was disingenuous. This is underscored by plaintiff’s own testimony: “In his mind he felt I wasn’t following the strategy, but I don’t agree.” Furthermore, there is no indication that Pring or Durand were aware of plaintiff’s back problems or had any inkling that he was planning to undergo surgery. According to plaintiff’s statements, the immediate fallout from Durand’s e-mail is what prompted him to move forward with scheduling the surgery.
A reasonable juror could, and likely would, conclude that Supino was less than forthright in telling plaintiff that his job performance was unrelated to the layoff decision. This does not necessarily create a triable issue of fact. “[A]n inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. … [T]here must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Guz, supra, 24 Cal.4th at pp. 360-361.) Since defendants’ nondiscriminatory explanations are consistent, plausible, and factually supported, Supino’s alleged lack of candor during the termination interview and stubborn adherence to the official reason for discharge is not enough to satisfy plaintiff’s burden on the issue of pretext.
Plaintiff claims he was “the only employee terminated out of 50 employees in his department,” that is, among the employees under Supino’s direct supervision. (Original emphasis.) This assertion is made no less than five times in his briefing, yet it is unsupported by the evidence upon which he relies. Consuelo Martinez testified to having worked with Supino for approximately three or four years, but the corresponding dates were never specified. Plaintiff’s counsel asked her “how many people worked at one time for Mr. Supino in his department?” and she replied, “I don’t [-] I know there were moves and reorganizations and there were people that were part of his team. At one point there were, I’d guess, around 50, but I’m not sure.” The next question was, “So Brad Jaurique was the first of 50 people laid off; is that correct?” Her response: “I don’t know that.”
At Supino’s deposition on September 11, 2014, nearly 22 months after plaintiff was terminated, he testified that there were currently 45 to 50 employees who reported directly to him. Plaintiff’s counsel tried to ascertain how many people had been under his supervision when he managed plaintiff, but Supino merely said, “I don’t know the highest number [of people who reported to me during plaintiff’s tenure]. I don’t remember what period of time he reported to me. I can tell you the lowest number was probably, but again I’m speculating, was probably at the end of his employment.”
Supino confirmed that plaintiff was the first employee under his supervision to be terminated during the latter half of 2012, and he initially estimated that the next layoff in his department occurred three months later. Upon further reflection, Supino clarified: “Sorry, I’m going to need to refresh my memory before I give you a date. There have been several positions eliminated in my department through various reorganizations, and I’m going to have to refresh my memory to give you a date. … Yeah. I’m saying there were several during that same general time frame.” Plaintiff’s counsel asked, “What does that mean, same general time frame?” Suppino replied, “End of 2012, beginning of 2013, and we reorganized again in the middle of 2013, so there were several.”
“Although an employee’s evidence submitted in opposition to an employer’s motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’ ” (Featherstone, supra, 10 Cal.App.5th at p. 1159.) We need not indulge arguments that amount to a sleight of hand exercise. The uncontroverted evidence is that plaintiff was among 124 Pelco employees who lost their jobs in 2012, and one of 39 terminated in the month of November. He was the first person in his department to be terminated during the latter half of the year, but the size of his department cannot be determined from the record. There were subsequent layoffs of employees who worked under Supino, possibly as soon as the “[e]nd of 2012, beginning of 2013.” In any event, it is undisputed that plaintiff was the only person under Supino’s direct management responsible for purchasing PCBs. As detailed in defendants’ moving papers, the PCB purchasing position was eliminated. Even assuming that plaintiff was the “only” person in his department to be terminated in late 2012, this fact has only slight probative value.
Equally unmoving is the allegation that, on his last day of employment, “Pelco told Jaurique that he was not allowed to work for Pelco ‘ever again.’ ” Plaintiff argues “[t]his type of retaliatory and blacklisting rhetoric” suggests an unlawful motive. By way of background, plaintiff’s deposition testimony covered his 2013 Internet search for Schneider Electric job postings. When asked if he had applied for any of those positions, plaintiff answered, “No. I was told that, at my termination I was told that I was not allowed to work for Schneider ever again.” Defense counsel sought clarification: “Now, did they tell you that after your position was eliminated that you would never be able to work at Schneider again, or did you understand that that was part of the severance package they were offering and that if you signed it that you would agree not to work for Schneider again?” Plaintiff responded, “… I believe I glanced through the package and that was one of the things that was listed in there that said you couldn’t work for Schneider again. And I believe I’d asked, you know, I think I asked if my job was eliminated was there other positions available. I can’t recall at this time. … When I’d asked, maybe I’d asked that question or as I was reading through that I pointed it out. I’m not sure if I asked or pointed it out at this time.” Here again, plaintiff demands more than the standard of review requires. He is asking us to consider evidence in isolation and out of context, which is simply not appropriate.
Plaintiff’s remaining arguments attempt to analogize the facts of this case to those in Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088 (Kelly). There, the employer was an internet company that had hired a new chief executive officer (CEO) during a period of financial hardship. The new CEO brought in a “turnaround specialist” who was tasked with recommending ways to cut costs and streamline the company’s marketing efforts. Within a few months, a decision was made to eliminate approximately 150 jobs and consolidate three separate business units into one. The turnaround specialist evaluated the marketing personnel and compiled for the chief financial officer (CFO) a list of employees to be retained. The CFO merged the turnaround specialist’s list together with those he had received from other managers and submitted the combined list to the CEO. Absent from the turnaround specialist’s list was plaintiff Kelly, a well-compensated vice president of marketing who was seven months pregnant and would soon be taking paid maternity leave. In a written evaluation, the turnaround specialist appraised Kelly as being an ineffective leader who lacked certain skills and had “limited motivation.” Kelly’s employment was terminated amid the company-wide layoffs, ostensibly because her position had been eliminated. (Id. at pp. 1091-1093.)
The Kelly plaintiff sued for wrongful termination and unsuccessfully opposed the employer’s motion for summary judgment. On appeal, the trial court was found to have erred by overlooking ample evidence of pretext. Kelly had presented evidence of excellent performance evaluations, as well as a declaration from her former supervisor in which he attested to having included her name on his own list of recommended employees that was given to the CEO. Moreover, the supervisor had personally discussed the matter with the CEO and relayed his opinion that Kelly was an indispensable employee. In response, the CEO allegedly “ ‘made intonations about [plaintiff] being pregnant, saying she had mentally “checked out,” and questioning whether she was really doing her job.’ [The supervisor] responded, ‘You know that is not true,’ and defended [Kelly’s] commitment [and] hard work.” (Kelly, supra, 135 Cal.App.4th at p. 1094.) Kelly also alleged that when she inquired about the employment decision, the CEO lied to her by saying that the supervisor had not included her name on his list of recommended employees. (Id. at p. 1096.)
In further support of her opposition, Kelly relied on the deposition testimony of an individual who had been part of the employer’s senior management team. This witness testified to having been contacted by the CEO for his opinion as to whom among the company’s marketing personnel should be retained in the restructuring, and telling the CEO, “ ‘You absolutely have to … start with [plaintiff], she is the heart and soul of that team,’ and he couldn’t imagine it functioning without her.” The CEO allegedly replied, “ ‘[She] has checked out’ … saying it ‘in a definitive, end-of-conversation type of way.’ ” (Kelly, supra, 135 Cal.App.4th at p. 1095.) In addition, there was proof that Kelly’s job was not eliminated, but had actually been filled by the turnaround specialist, who even “took the same title as plaintiff had had, vice-president of marketing.” (Id. at pp. 1093, 1095.)
The present case is distinguishable from Kelly in several ways. For instance, the evidence in Kelly raised a triable issue concerning “whether the claim that defendant eliminated plaintiff’s position was true or untrue.” (Kelly, supra, 135 Cal.App.4th at p. 1099.) Here, there is nothing to refute defendants’ evidence that Pelco’s PCB purchasing position was, in fact, eliminated. Plaintiff argues there is a triable issue based on Schneider Electric’s job postings from “early 2013,” but this is yet another example of a strained inference that goes well beyond what the record can support. When deposed, plaintiff claimed to have seen the relevant job postings “shortly after I was terminated.” He was pressed to explain what he meant by “shortly after,” which led to the revelation that he or his attorney printed the job postings from the Internet on November 12, 2013, nearly one year after he had lost his job. Plaintiff insisted he had seen the postings “before that [date],” but was incapable of narrowing the time frame: “Ma’am, I don’t have a timeline. You’re asking me for something I don’t have information - … Earlier in the year. I don’t – I can’t give you a – I want to say 2013, I’ll say that much.”
The record includes the corresponding printouts for three positions: New Project Buyer, Sourcing Manager, and “Regional Commodity [M]anager NAM for Passif components (G2) and PCB (G4).” Plaintiff testified that he was qualified to fill these positions, not that any of them constituted the same position he had at Pelco. He characterized New Project Buyer as “a job that [defendants] could have put me in, if my job was eliminated.” That posting describes responsibility for selecting “the components and sub assembly/suppliers in consistency with global commodity strategy and supplier strategy,” but does not specify the commodity or commodities associated with those duties. Likewise, plaintiff believed the job description for Sourcing Manager matched that of his former position at Pelco, but conceded “it could be for a commodity that I don’t have experience in.”
The third job posting involved “[c]ross management on purchasing business in NAM for PCB and [Passif] components.” Plaintiff testified that he “held this position at Schneider, when I was there, minus the Passif components.” Passif components, or G2, is a commodity that was managed by a different employee (who plaintiff identified by name) when plaintiff worked at Pelco. Plaintiff fails to appreciate that this evidence actually supports defendants’ position regarding his job elimination, as it shows different purchasing functions were consolidated following the termination of his employment.
Viewing the evidence in the light most favorable to plaintiff, a trier of fact could reasonably conclude that Schneider Electric had job openings as of November 12, 2013, and that plaintiff was a qualified candidate for the available positions. These jobs may have been open at some earlier point in time. There is no evidence that any of the jobs existed in November 2012 or were expected to be created and available in the near future (relative to plaintiff’s 11/16/12 termination date). Therefore, the evidence does not raise a triable issue regarding whether or not plaintiff’s job at Pelco was eliminated through corporate restructuring and consolidation.
Next, plaintiff relies on his performance evaluations to draw parallels between this case and Kelly, supra. The Kelly plaintiff’s evidence portrayed her as a well-liked and exemplary employee. (Kelly, supra, 135 Cal.App.4th at pp. 1094-1095.) Here, while some of plaintiff’s performance evaluations contain noteworthy praise, there are elements that undermine his pretext argument. We note that defendants’ evaluations used a five-level performance appraisal scale, with “5” representing “Consistently Exceeds Requirements,” “4” representing “Exceeds Requirements,” “3” equating with “Meets Requirements,” and so on. Plaintiff received an overall performance rating of 4 for the period of June 2008 to June 2009, and 3 for the periods of January 2010 through December 2010 and January 2011 through December 2011.
Plaintiff’s 2008-2009 review is quite positive, but notes that “Teamwork/Building Relationships” is “an area that Brad continues to make improvements on and struggles with. Brad is strong willed and takes pride in his area of expertise to the point of being a perfectionist. Although Brad has made improvements on diplomacy and [tact], this is an area that he will have to continue to work on.” The 2010 performance evaluation states that plaintiff “works well with team members in materials as well as other departments within Pelco.” However, the 2011 evaluation contains the following assessment: “Working relationship and team building was a major concern thru 2009 and 2010, and was addressed end of 2010 as an objective for 2011. … [In] 2011 Brad made major improvements improving the business side, working relationship and leadership skill set. I believe it is very possible that 2012 is the year [that] could bring forth what Brad is asking for [i.e., a “desire to succeed in his current dual role position”] if he continues to show that he can maintain the working relationship [within] his team as stated above under ‘Professional Behavior/Attitude Objective for 2012’ … .” (Italics added.)
Construing the evidence in plaintiff’s favor does not alter the most important distinctions between the facts of this case and those in Kelly. Whereas the decision makers in Kelly fired their employee after having recently received positive evaluations of her job performance, Supino’s decision to terminate plaintiff’s employment came on the heels of severe criticism by other corporate managers. Furthermore, the complaints expressed in the e-mails of Pring and Durand, i.e., lack of professionalism and deficient teamwork skills, are not inconsistent with plaintiff’s past performance evaluations.
The only aspect of this case that gives us any pause is the allegation that Supino, in August 2012, was informed of plaintiff’s intentions regarding future surgery and reacted with words to the effect of, “We can’t have you gone that long” and/or “You can’t be gone that long.” The trial court’s ruling fails to acknowledge this issue. Although plaintiff’s allegation is uncorroborated and self-serving, it must be accepted as true. Again, the question is whether the purported statements, considered with the other evidence presented, would permit a reasonable trier of fact to conclude it is more likely than not that defendants’ nondiscriminatory explanations were pretextual.
Defendants provided a detailed and cogent financial reason for the adverse employment decision. There is also compelling proof that the October 4, 2012 e-mail from Pring to Supino and the October 12, 2012 e-mail from Durand to Perkins and Supino are what first prompted the decision makers to consider eliminating plaintiff’s position. Even if one believes that, five to eight weeks earlier, Supino was informed of plaintiff’s anticipated surgery and responded negatively to the idea of him taking a leave of absence, a finding of pretext essentially requires belief in a larger conspiracy. The conspiracy would have involved collusion among Durand, Perkins, Pring, and Supino to create a paper trail to support a fabricated, performance-based excuse to terminate plaintiff’s employment, all to have Supino later deny that performance had anything to do with the layoff decision. There is no evidence that Durand, Perkins, and/or Pring had any knowledge of plaintiff’s anticipated surgery and leave of absence, and it may be a stretch to assume any of them were even aware of his back problems. The theory rests on speculation alone.
Considered against the totality of the evidence, Supino’s alleged statements in August 2012 give rise to what our state and federal Supreme Courts have described as a weak issue of fact. “[E]ven where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer’s proffered innocent reasons are false, the fact finder is not necessarily entitled to find in the plaintiff’s favor.” (Guz, supra, 24 Cal.4th at pp. 361-362.) “ ‘For instance, an employer would be entitled to judgment as a matter of law … if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred….’ ” (Id. at p. 362, quoting Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148; see Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541 [“a totality of circumstances analysis successfully winnows out cases ‘too weak to raise a rational inference that discrimination occurred.’ ”].) For all of the reasons discussed, we conclude plaintiff failed to carry his evidentiary burden. Therefore, the first cause of action was properly adjudicated in defendants’ favor.
Fourth Cause of Action
The CFRA entitles eligible employees to take up to 12 unpaid workweeks in a 12-month period for family care and medical leave, which includes time to recover from a serious health condition. (§ 12945.2, subd. (a); Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487.) A “serious health condition” is statutorily defined as “an illness, injury, impairment, or physical or mental condition that involves either of the following: [¶] (A) Inpatient care in a hospital … [¶] (B) Continuing treatment or continuing supervision by a health care provider.” (§ 12945.2, subd. (c)(8).) Plaintiff’s fourth cause of action alleges that defendants “discharged [him] from his employment because he exercised his right to request medical leave to care for his serious medical condition.”
“The elements of a cause of action for retaliation in violation of CFRA are ‘ “(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, … because of her exercise of her right to CFRA [leave].” ’ ” (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560.) The summary judgment analysis for this claim mirrors the one applicable to plaintiff’s first cause of action. If, as the moving party, the employer produces evidence showing a legitimate reason for the adverse employment action, the burden shifts to the employee “to provide ‘substantial responsive evidence’ that the employer’s proffered reasons were untrue or pretextual.” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.) Given plaintiff’s inability to show an unlawful motive for the termination of his employment, his retaliatory discharge claim under the CFRA necessarily fails.
Alleged Failure to Accommodate a Physical Disability
Plaintiff’s second and third causes of action allege failure to engage in the interactive process and failure to accommodate a physical disability or medical condition. These are separate claims, but “each necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) Under FEHA, it is unlawful for an employer to fail to make reasonable accommodations for a known physical disability of an employee. (§ 12940, subd. (m)(1).) “The elements of a failure to accommodate claim are ‘(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.’ ” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.) Employers have a concomitant duty to engage in a good faith interactive process with the disabled employee to explore ways to accommodate their disability. (§ 12940, subd. (n); Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424.)
“The interactive process imposes burdens on both the employer and employee. The employee must initiate the process unless the disability and resulting limitations are obvious.” (Scotch, supra, 173 Cal.App.4th at p. 1013, italics added.) “ ‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, … the initial burden rests primarily upon the employee … to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’ ” (Ibid., quoting Taylor v. Principal Financial Group, Inc. (5th Cir. 1996) 93 F.3d 155, 165 (Taylor); accord, Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384.) Once the interactive process is initiated, the employer is obligated to engage in the process in good faith. (Scotch, supra, 173 Cal.App.4th at p. 1013.)
“ ‘[I]t is important to distinguish between an employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of the disability.’ ” (Scotch, supra, 173 Cal.App.4th at p. 1013, quoting Taylor, supra, 93 F.3d at p. 164.) The term “physical disability” broadly refers to any physiological condition that limits a major life activity. (§ 12926, subd. (m)(1)(B)(i).) It is safe to assume plaintiff’s degenerative disc disease and associated pain constituted a physical disability. However, as we discuss, there is scant evidence of any specific work-related limitations or medical restrictions of which defendants had notice and/or were legally obligated to accommodate.
Plaintiff’s medical condition caused him back pain. It is undisputed that his job required travel, and travel exacerbated his pain. This was an ongoing dilemma that began “a couple years” prior to the termination of his employment. Supino testified that he knew long distance travel aggravated plaintiff’s back: “[H]e mentioned that to me about 10 or 12 times over the course of three or four or five years.” In approximately 2011, plaintiff asked Supino if he could participate in a particular out-of-town vendor negotiation via telephone or video-conferencing. Supino allegedly denied the request, saying something along the lines of, “You need to travel for your job, and if you can’t travel, then you can’t do this job.”
As explained in Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, which is cited in the trial court’s ruling, “elimination of an essential function is not a reasonable accommodation. … FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.” (Id. at p. 375.) Plaintiff not only confirmed that travel was an essential part of his job, but explained it was necessary for him to perform audits of vendors’ manufacturing processes: “When I went on my negotiations, we also did audits of our vendors. And part of that audit required me to look at machinery, and that caused me to bend and twist and walk long distances… We normally did one or two [audits] per negotiation.” Since his on-site participation in vendor negotiations was a necessary component of the job, the 2011 request to attend a vendor negotiation telephonically or by other virtual means does not support a claim for failure to accommodate or failure to engage in the interactive process.
Although long-distance travel was taxing on him, plaintiff sometimes dealt with the problem by recovering at home for a few days after returning from his trips. This was apparently never an issue for his employer. The evidence indicates he generally had freedom to be away from the office so long as his absence did not interfere with essential functions of his job. He testified: “I was on salary, so I had a very flexible schedule. … So there was times when I left work. … Worked long hours, and if I needed to go do something, I did.” Plaintiff specifically acknowledged being able to leave work early if his back was hurting.
When deposed, plaintiff was asked several times to identify his pre-surgery limitations and medical restrictions. These were his responses with regard to the limitations: “Um – no heavy lifting and – I can’t recall everything, but I – I do remember a few. No sudden, strong movements. Um, that’s all I can recall, at this time. … Not twisting, bending certain ways. … As I think about it, walking for a long amount of time… After I walked for three or four minutes, I was in extreme amounts of pain. … Sitting at a desk for long periods of time. Walking from building to building.” He had less information about medical restrictions: “I don’t recall. I mean, besides, you know, be careful what you carry-type things. ... [B]efore I was scheduled for surgery there wasn’t a lot of restrictions that I can recall the doctor giving. But me physically, I gave myself restrictions, you know, sitting in a certain way. You know, when I moved a certain way I was in pain. So I can recall those things that I did that caused pain, I restricted myself from doing.”
Plaintiff argues that Supino “never spoke to [him] about providing him possible accommodations, such as parking privileges, use of the company’s golf carts to reduce walking between buildings, climbing stairs or transferring [him] into another position.” All of this is true, but it is undisputed that plaintiff never asked for any of those things. “ ‘ “[T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.” ’ ” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252-1253.)
Plaintiff claims to have asked to be able to work from home on multiple occasions, and was allegedly told each time that he would need to provide a doctor’s note. A trier of fact would have to evaluate the significance of the October 17, 2012 doctor’s note and defendants’ subsequent actions against a backdrop of the evidence summarized above. Plaintiff had suffered from back pain for years, but he performed his duties without any accommodations beyond those afforded by the flexibility of his schedule. Defendants were then presented with a doctor’s note that said, “Please allow patient to work from home as needed while he awaits spine surgery.” Defendants requested further information, i.e., that the physician identify plaintiff’s specific “limitations/restrictions.” Plaintiff failed to provide a second doctor’s note and never, prior to the date of his termination, complained to HR or other corporate personnel about receiving an insufficient response to requests for a disability accommodation.
Supino’s alleged avoidance of plaintiff following plaintiff’s submission of the doctor’s note does not raise a triable issue of fact. The evidence shows plaintiff made repeated requests to discuss the handling of his job responsibilities during his post-operative leave of absence, and Supino might have understandably wished to avoid this topic since he was considering, and may have already decided, to eliminate plaintiff’s job. Regardless, accepting as true that the avoidance occurred does not change the fact that plaintiff failed to obtain a list of restrictions and limitations from his doctor. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261, 266 [“It is an employee’s responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.”].) Viewed in its totality, none of the evidence in the record, including plaintiff’s testimony regarding confusion over why he was asked to provide a physician-approved list of restrictions and limitations, would permit a reasonable trier of fact to conclude defendants failed to engage in the interactive process or failed to reasonably accommodate a known disability.
Plaintiff’s attempt to analogize the facts to those in Thomsen v. Georgia-Pacific Corrugated, LLC (E.D. Cal. 2016) 190 F.Supp.3d 959 (Thomsen) is unpersuasive. The Thomsen plaintiff was a factory worker who received disability accommodations after undergoing shoulder surgery. The employer gave him light duty assignments upon receipt of a physician’s note that said he had “ ‘permanent restrictions’ ” and could not carry or lift anything weighing more than 30 pounds. (Id. at pp. 962, 965.) After a few weeks in a new position, the employee contacted the HR department to raise concerns that his duties occasionally required him to lift more than 30 pounds. He was told “he would need to return to his doctor to determine whether additional restrictions were needed.” (Id. at p. 966.) Although the employee failed to obtain a second doctor’s note, the district court found there was a triable issue of fact as to the employer’s good faith participation in the interactive process because, among other reasons, it had already been informed of the 30-pound lifting restriction. (Id. at p. 967.) At the risk of stating the obvious, we note the Thomsen employee provided his employer with a doctor’s note that identified a specific limitation/restriction; plaintiff did not.
Pursuant to the foregoing discussion and analysis, we conclude defendants were entitled to have the second and third causes of action summarily adjudicated in their favor. Accordingly, based on plaintiff’s failure to establish a triable issue for any of his claims, the motion for summary judgment was properly granted.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.



GOMES, J.
WE CONCUR:



LEVY, Acting P.J.



FRANSON, J.