Spott v. United Rentals
Filed 7/31/07 Spott v. United Rentals CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
MARY SPOTT, Plaintiff and Appellant, v. UNITED RENTALS, INC., et al., Defendants and Appellants. | C050897, C051624 (Super. Ct. No. 02AS06066) |
After plaintiff Mary Spotts FEHA[1]claims were dismissed on procedural grounds, the trial court granted defendant United Rentals, Inc.s, motion for summary judgment dismissing her lone remaining cause of action for wrongful termination in violation of public policy.
In case No. C050897, Spott appeals from the judgment. She claims that there were triable issues of material fact surrounding her claim for wrongful termination. In case No. C051624, United cross-appeals from the trial courts dismissal of its motion to recover fees incurred in defending Spotts FEHA claims.[2]
We shall affirm both the judgment and the postjudgment order denying attorney fees.
FACTUAL BACKGROUND
Spott was employed by United as the branch office administrator in its Folsom office beginning in 2000. On October 3, 2001, she took 12 weeks leave under the Family Medical Leave Act (FMLA) (29 U.S.C. 2601 et seq.) because of panic attacks relating to her job. Her leave was scheduled to expire on December 26, 2001. Prior to the expiration of her leave, Spott called her manager and informed him that she would not be returning to work on December 27 because her doctor had not cleared her to do so. On December 27, 2001, United sent Spott a letter terminating her employment. The letter stated that it was replacing her, but invited her to call the human resources office to be considered for another position when her doctor released her to return to work.[3]
Spotts initial application for disability benefits through the Social Security Administration (SSA) was denied. However, she successfully appealed this determination before the SSA Office of Hearings and Appeals. In a written decision, the SSA administrative law judge found that Spott had been totally disabled due to severe impairments: panic disorder with agoraphobia and major depression, since October 3, 2001, the first day of her FMLA leave.
In October 2002, Spott filed suit against United, three of its employees, Shawn OConnell, Aaron Bradley and Kevin Willy, and her former supervisor, Brett Kobell. Her third amended complaint (hereafter complaint) is the operative pleading in this case. It features four causes of action. The first three accuse United and its employees of disability discrimination and harassment in violation of FEHA. The fourth cause of action alleges that Spott was wrongfully terminated in violation of public policy.
United moved for summary adjudication on the first three (FEHA-based) counts, on the ground Spott failed to exhaust her administrative remedies. Although the trial court denied the motion, we granted Uniteds petition for writ of mandate and directed the trial judge to dismiss all FEHA causes of action. (United Rentals, Inc. v. Superior Court (Spott) (May 19, 2005, C047773) [nonpub. opn.] (United Rentals I).)
Spotts fourth cause of action, captioned Wrongful Termination in Violation of Public Policy recites numerous instances of alleged harassment by supervisors and coworkers at United. For example, she avers that after she discovered embezzlement by other employees and brought it to the attention of her supervisor and branch manager Brett Kobell, the disciplined employees called her stupid and retarded. Her supervisor sided with [the employees] and changed Spotts duties, intimating he was prepared to fire her. She claims she was branded as disloyal after a rumor circulated that she had encouraged another employee to bring a complaint to the Labor Board. She also alleges that Kobell assaulted her and accused her of insubordination for attempting to aid an upset coworker. Two days before she took her medical leave of absence, Kobell retaliated against her by disciplining her for patting a coworker on the shoulder in a joking manner. Finally, after Spott took her medical leave, Kobell defamed her by telling coworkers she had been fired.
United filed a motion for summary judgment as to the fourth and remaining cause of action. It produced evidence that Spotts own doctor had declared her disabled and unsuitable for rehabilitation, and that Spott herself made admissions in discovery establishing that she was totally disabled and unable to perform the duties of her position as of the date of her termination.
In opposition, Spott produced favorable job performance reviews from March and July 2001. She also presented voluminous evidence purporting to show that the emotional distress created by the hostility of her workplace caused her disability. Lastly, she introduced the written decision by the SSA, determining that she was totally disabled as of October 3, 2001.
The trial court granted summary judgment. The court wrote: [D]efendants present evidence, which plaintiff does not dispute, that after October 3, 2001, when plaintiff went on medical leave, plaintiff has been permanently disabled and is unable to perform the job she previously held. Plaintiffs evidence of her ability to perform prior to October 3, 2001, is not relevant. Unable to perform the job she held as an employee, plaintiff is therefore unable to state a prima facie case for termination in violation of public policy. Spotts motion for reconsideration was also denied.
After judgment of dismissal was entered, United filed a postjudgment motion requesting $176,360.25 in attorney fees for successfully defending Spotts FEHA causes of action under section 12965, subdivision (b) on the ground that these claims, which had been ordered dismissed by the Court of Appeal, were frivolous and without foundation. The trial court disagreed and denied the motion for attorney fees.
DISCUSSION
I. Principles of Review
Summary judgment is granted only when the papers presented in support of the moving party establish that no issue of material fact exists to be tried and the moving party is entitled to judgment as a matter of law. [Citations.] On appeal, the reviewing court exercises its independent judgment, deciding whether the moving party established undisputed facts that negate the opposing partys claim or state a complete defense. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486-487.) Summary judgment may be affirmed on any theory, regardless of the ground relied on by the trial court. (Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 54.)
II. Termination Based on Disability Discrimination Will Support a Tameny Claim
Following this courts decision in United Rentals I, Spotts lone remaining cause of action was for wrongful termination in violation of public policy. This tort was established in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny). Tameny causes of action are limited to those claims finding support in an important public policy based on a statutory or constitutional provision. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79.)
In Stevenson v. Superior Court (1997) 16 Cal.4th 880, the California Supreme Court held that an employee could maintain a tortious wrongful discharge claim based on age discrimination, independent of the FEHA. (Stevenson, at pp. 885, 908.)
Like age discrimination, discrimination on the basis of an employees physical disability or mental disability is also outlawed by the FEHA. ( 12940, subd. (a).) We shall therefore presume, for present purposes, that discriminatory termination of an employee on account of her mental disability may support a Tameny cause of action, regardless of whether her statutory FEHA claims were procedurally barred. (See Rojo v. Kliger (1990) 52 Cal.3d 65, 89.) We look to the provisions of the FEHA as the statutory foundation for such a cause of action.
III. Spotts Claim of Discrimination Cannot Succeed
Because She Was Totally Disabled
A prima facie case of discrimination on account of disability may be established by showing that (1) the employee suffered from a disability, (2) she was otherwise qualified to do the job, and (3) an adverse employment action (here, termination) was a result of her disability. (See Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44 (Deschene).) If any of these elements cannot be proved, Spott cannot maintain a viable cause of action.
The evidence adduced by both parties on summary judgment showed conclusively that Spott was totally disabled and could not return to her former job at United at the time she was terminated:
(1) After taking a 12-week medical leave of absence, Spott telephoned her supervisor and told him she would not return to work after her leave expired on December 26, 2001, because her doctor had not released her to do so.
(2) In deposition, Spott admitted that a month after leaving United, she began to suffer from agoraphobia, as a result of which she was house-bound except for medical appointments. This condition lasted almost a year.
(3) In July 2003, the SSA awarded Spott disability benefits based on a finding that Spott was severely depressed and suffering from panic disorder and agoraphobia, rendering her unable to engage in substantial gainful activity since October 3, 2001.
(4) On an insurance form completed in February 2003, Spotts attending physician Allison Lee, M.D., declared that Spott suffered from panic disorder with agoraphobia and major depression. Dr. Lee stated that Spott was not expected to make significant improvement, was not a suitable candidate for rehabilitation services in her present position and that her job could not be modified to allow for handling with her impairment.[4]
To maintain a viable claim for disability discrimination, the employee must show that at the time of her firing she had the ability to perform her job, either with or without accommodation. (Deschene, supra, 76 Cal.App.4th at p. 44.) In light of the evidence that Spott was totally unable to perform her duties at United, the trial court correctly concluded that United had carried its initial burden on summary judgment of showing that Spotts claim could not succeed.
Spotts opposition did not rebut Uniteds initial showing. As the trial court noted, performance reviews from March and July 2001, before her debilitating panic attacks commenced, are not relevant to Spotts ability to work at the position when she took medical leave in October 2001 or at the time of her termination on December 27, 2001.
Contrary to Spotts argument, a notation on Dr. Lees report that she might be retrained for adifferent job where she could work two hours per day with less stress and minimal physical & cognitive skills, does not raise a triable issue of fact over whether she could have performed her essential duties at United. To the contrary, on the very same form, Dr. Lee declares that Spott is not a suitable candidate for rehabilitation and that her present job could not be modified to allow for handling with impairment.[5] This is consistent with the SSAs later finding that Spott was totally disabled beginning in October 2001.[6]
An employer is not required to wait indefinitely for a disabled employee to return to work. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227.) Nor is an employer required to turn a full-time job into a part-time job, create a light‑duty position, or create a new permanent position, in order to accommodate an employee who is unable to perform essential job functions. (2 Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2006) 9:1120 to 9:1121, p. 9-93.) Spott failed to refute the overwhelming evidence that at the time she was terminated, she was totally disabled as a result of her psychological disorders and unable to return to her former position at United.
IV. United Cannot Be Liable on a Theory of Failure to Accommodate
Spott spends most of her brief championing the argument that she could have returned to work with accommodation, but that United failed and refused to accommodate her. For example, she claims that the trial court erred in failing to follow the test set forth in Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344 (Bagatti), which recognized that a disability discrimination claim under the FEHA may be predicated on an employers failure to accommodate a disabled employee.
Spotts failure to accommodate claim may be dismissed for two compelling reasons: (1) she never pleaded facts supporting this newly raised accusation; and (2) there was no evidence before the trial court that she ever requested accommodation.
A. No Reference to Accommodation in the Pleadings
Nowhere in the fourth cause of action does Spott allege that United discriminated against her by failing to offer her reasonable accommodation for her disability. Instead, the cause of action is directed to allegations that she was harassed, assaulted, defamed and disciplined unfairly while she was still employed at United.
A summary judgment motion is directed to the issues framed by the pleadings. (Ann M.v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673; Addyv. Bliss & Glennon (1996) 44 Cal.App.4th 205, 215; Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65.) A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4.) Because the complaint did not allege that Spott was discriminated against because of a failure to accommodate her duties on account of her disability, neither United nor the court was obligated to respond to it.[7]
B. No Evidence That Spott Requested Accommodation
Spotts argument that there was a triable issue of fact regarding Uniteds failure to accommodate her disability is infirm for another reason. She failed to produce any evidence that she requested accommodation for the medical condition that caused her to take FMLA leave in October 2001.
Section 12940, subdivision (n) makes it unlawful [f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. (Italics added.) Accordingly, an employers obligation to enter into the interactive process is triggered by an employee or an employees representative giving notice of the employees disability and the desire for accommodation. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261, quoting Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, 1114, italics added; accord, see Taylor v. Principal Fin. Group (5th Cir. 1996) 93 F.3d 155, 165.)
It was uncontradicted that Spott never asked for accommodation prior to termination, nor did she protest her termination on grounds that United should have accommodated her. To the contrary, the evidence is clear that, from the time she took her medical leave in October 2001, Spott devoted her energies to treatment for her multiple psychological disorders and convincing the government that she was unable to work, so she could obtain disability benefits. These efforts culminated in a declaration by the SSA that she had been totally disabled since October 3, 2001.
Spotts failure to request accommodation distinguishes this case from Bagatti, wherein the plaintiff requested that her employer provide accommodation for her disability, but was rebuffed. (Bagatti, supra, 97 Cal.App.4th at p. 350.) Absent evidence that she communicated a desire to continue employment by United with accommodation, Spotts accommodation theory of liability evaporates into thin air.
V. Other Grounds for Wrongful Termination
Spott argues that her cause of action for wrongful termination is supported by other public policies set forth in the Labor Code and Civil Code Section 47. Spott does not explain how the alleged commission of torts by fellow coworkers during her employment supports a claim against United for wrongfully discharging her in violation of public policy. Since this contention is unaccompanied by elaboration or coherent legal argument, it is deemed forfeited and undeserving of further consideration. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106; Mansellv.Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
VI. Cross-appeal on Attorney Fees
Early in these proceedings, United filed a motion to summarily adjudicate Spotts FEHA causes of action against her on grounds that she failed to exhaust her administrative remedies. As noted, the motion was denied by the trial court and United filed a petition in this court for peremptory writ of mandate. In our decision in United Rentals I, we granted the requested relief, ordering the trial court to dismiss all of Spotts FEHA claims.
After successfully obtaining a final judgment in this case, United moved to recover attorney fees in the amount of $176,360.25 for defending against Spotts assertedly frivolous FEHA claims. The trial court denied the motion.
Citing our decision in United Rentals I, United argues that it was clear at the outset that Spott could not maintain an action for damages under the FEHA, and thus her claims were frivolous and without foundation.
Section 12965, subdivision (b) reads, in relevant part: In actions brought under this section [(FEHA)], the court, in its discretion, may award to the prevailing party reasonable attorney[] fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity. Fees are awarded to prevailing plaintiffs unless there are special circumstances making the award unjust. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921 (Bond).) However, employers may be awarded fees only if the claims brought against them were unreasonable, frivolous, meritless or vexatious. (Bond, at pp. 921-922, quoting Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421 [54 L.Ed.2d 648, 656].) An order granting or denying fees is reviewed for abuse of discretion. (Bond, supra, 50 Cal.App.4th at p. 921.)
The issue in the writ proceeding (United Rentals I) was whether the Department of Fair Employment and Housing (DFEH) could effectively backdate the paperwork filed for an administrative claim. On this issue, the trial court and the appellate court reached conflicting conclusions. The trial court accepted Spotts argument that there was a triable issue of fact over whether DFEH could, in effect, declare that the statute of limitations for filing a claim had been tolled. This court disagreed. In a 15-page opinion, we explained that there was no evidence that the DFEH had made an equitable tolling determination, and that had it done so, it would have exceeded its jurisdiction.
In denying Uniteds motion for attorney fees, the trial court noted that, although Spotts FEHA causes of action were ordered dismissed by the appellate court, the courts rigorous analysis of plaintiffs contentions suggests that neither [of Spotts arguments] was frivolous.
We agree. The mere fact that Spott did not prevail on her FEHA claims does not mean they were frivolous or totally without foundation. (Bond, supra, 50 Cal.App.4th at p. 922.) That the trial court accepted Spotts equitable tolling argument as plausible suggests that reasonable minds could have differed on the issue. In such circumstances, a plaintiffs lawsuit under the FEHA cannot be deemed frivolous, unreasonable or without foundation. (See Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1389.) The trial court did not abuse its discretion in denying Uniteds motion for attorney fees.
DISPOSITION
The judgment and postjudgment order denying attorney fees are each affirmed. Each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.276(a)(3).)
BUTZ , J.
We concur:
DAVIS, Acting P.J.
NICHOLSON , J.
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[1] FEHA refers to the California Fair Employment and Housing Act. (Gov. Code, 12900 et seq.) Undesignated statutory references are to the Government Code.
[2] The two appeals were consolidated pursuant to stipulation.
[3] The letter read, in part: As a result of the business conditions effecting [sic] the Company, it has been necessary to replace you in your position. [] When your Doctor has released you, without restrictions, please contact me and you will be considered for any position, which [sic] you are qualified.
[4] Spott acknowledged in her deposition that Dr. Lee was referring to her job at United.
[5] In response to the question, When could trial employment commence? Dr. Lee wrote N/A, making it clear that Spotts disability made her return to United impossible.
[6] United urges that we apply the doctrine of judicial estoppel to prevent Spott from taking a position inconsistent with the one she took before the SSA. (See Drain v. Betz Laboratories, Inc. (1999) 69 Cal.App.4th 950, 955-957.) While this argument may have merit, we need not reach it since Uniteds moving papers negated an essential element of Spotts Tameny claim and she did not carry her burden of raising a triable issue of fact.
[7] In her opening brief, Spott asserts that the fourth cause of action encompassed a claim for failure to accommodate. However, she supports this assertion by citing to Uniteds memorandum of points and authorities in support of its motion for summary adjudication. Spott may not use a stray remark in Uniteds legal argument as a substitute for amending her pleadings.
