Siegel v. Newspapers First, Inc.

Filed 8/24/07 Siegel v. Newspapers First, Inc. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, David A. Workman, Judge. Affirmed.

Hughes Hubbard & Reed, William T. Bisset and Todd P. Piro (Los Angeles Office); Hughes Hubbard & Reed, Ned Bassen and Jodi Divak (New York Office), for Defendants and Respondents.

Shegerian & Associates, Inc. and Carney R. Shegerian for Plaintiff and Appellant.

________________

INTRODUCTION

In her disability discrimination action under the California Fair Employment and Housing Act (Gov. Code,  12940 et seq. (FEHA)), plaintiff Melanie Ann Siegel appeals from the judgment of the trial court entered after it granted the motion for summary judgment brought by defendants Newspapers First, Inc. (defendant) and Janet Hokama (Hokama). We conclude plaintiff has not raised triable issues of material fact with the result as a matter of law, summary judgment was proper. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual history

Viewing the submissions as we are required to do (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769), it shows that defendant is a national sales and marketing organization that represents leading newspapers in the countrys major advertising markets. Its offices, located in California, Florida, New York, Illinois, and Texas, have approximately 53 employees in total. Plaintiff was one of ten employees located in the Los Angeles office.

Hokama is a sales assistant in the Los Angeles office and in 1997 became administrative assistant to the Vice President. Defendant hired plaintiff as a sales assistant in April 2001. Plaintiff was the last sales assistant of the three in Los Angeles to be hired. At the time plaintiff was hired, Carol Mintz was the Vice President. In July 2003, Kymn Goldstein replaced Mintz as Vice President.

Plaintiff was supervised by Goldstein. As another sales assistant in the office, Hokama had no supervisory authority over plaintiff or any other employee in the office. Hokama did not evaluate employees, was not authorized to grant other employees time off, did not have hiring authority or the authority to discipline employees. The Vice President always conducted plaintiffs performance reviews.

Defendants handbook includes comprehensive policies against discrimination and harassment. Those policies were communicated to all employees when they commenced employment and the employees were required to sign the handbook acknowledging receipt of it. The handbook also states that there is no employment contract, either express or implied, and that the relationship between the Company and its employees is at will. The employee or the Company may terminate the employment relationship at any time for any reason, with or without cause.

2. Plaintiffs illness

Plaintiff suffers primarily from Sjogrens syndrome and secondarily from lupus. The two diseases are so close that it makes little difference. Plaintiffs disease is an autoimmune disorder  that can affect various parts of the body, especially the skin, joints, blood and kidneys.  Symptoms include inflammation, injury to tissue, and pain. It can develop different combinations of symptoms and organ involvement. Common complaints and symptoms include fatigue, low-grade fever, loss of appetite, muscle aches, arthritis, ulcers of the mouth and nose, facial rash, unusual sensitivity to sunlight, inflammation of the lining that surrounds the lung and the heart, and poor circulation to the fingers and toes.

Plaintiffs disease was in remission at the time she began employment with defendant in 2001. In February 2003, plaintiff was involved in a serious car accident. Her injuries from the car accident caused her disease to emerge from remission. Plaintiff went on disability leave for slightly more than six months and was paid full salary and benefits from defendant for six months. At the expiration of her leave, defendant reinstated plaintiff to her original position.

Plaintiff returned from disability leave in September 2003 and reported to Goldstein the following two work-related limitations: no heavy lifting and she must move frequently. Plaintiff also told Goldstein that she was on chemotherapy and would have to be followed closely, but did not list this as a limitation. While plaintiff and Goldstein had ongoing discussions about doctors appointments and laboratory tests, plaintiff did not tell Goldstein that she would need time off as an accommodation.

In response, although plaintiffs job did not require heavy lifting, Goldstein relieved plaintiff of the duty of bringing in the mail, a job traditionally shared by all sales assistants, and told plaintiff to get up and walk around as often as needed. Goldstein told plaintiff that it was [plaintiffs] responsibility to tell [Goldstein] what she could and could not do [and] that [plaintiff] needed to be cognizant of her stress level and that she had to let [Goldstein] know if anything got out of hand. [Plaintiff] never reported to [Goldstein] that her [disease] affected her ability to perform her job or that she needed any other accommodations. Plaintiff never reported to Goldstein that she needed additional time off.

Three months after plaintiff returned from her disability leave, in December 2003, she received a satisfactory performance review from Goldstein and a raise from defendant.

By February 2004, plaintiff had used up all of her sick leave days for the year. She never told Goldstein that her absences were related to her disease. For example, she required time off for dental surgery. After she ran out of paid sick leave, in February 2004, Goldstein informed plaintiff that her absences would be charged to vacation time or would be unpaid. Goldstein also allowed plaintiff to leave work early for illness or to pick up her daughter and never docked plaintiff her pay.

On August 18, 2004, plaintiff suffered a work-related injury to her knee and went on disability.

3. Reduction in work force (RIF)

Defendants revenue is derived solely from the fees that it receives from member newspapers. Defendant experienced some business downturns in 2003, and in particular, a member newspaper announced its intention to leave defendant, which would have a negative impact on the companys revenue. Defendant determined in early 2004 that, as a cost-saving measure, it needed to streamline its staff.

The Los Angeles office had more sales assistants per sales executives than any other of defendants offices. Robert Termotto, defendants Senior Vice President and Chief Financial Officer, decided that the Los Angeles office would have to reduce its sales‑assistant staff by one. He communicated by e-mail on July 22, 2004, with Erich Linker. Four other positions were also eliminated, including another sales assistant position in New York. Because plaintiff had the least seniority of the sales assistants in Los Angeles, Goldstein decided plaintiffs would be the position eliminated in response to Termottos instruction. The decision to eliminate the five positions was made in July 2004. Termotto decided that the decision would be communicated to the five affected employees in September 2004, once defendants new business plan was approved by its executive committee. That approval was given in late August 2004. Hokama had no input into the decision to eliminate plaintiffs position.

Between July and August 2004, three employees, whose jobs were identified for the RIF, left defendants employ voluntarily, and their positions were eliminated. Hence, on September 2, 2004, defendant discharged plaintiff. As it happened, plaintiff was on disability leave as the result of her work-related knee injury in August 2004. Also, a sales presentation writer from the New York office was discharged the same day. None of the five eliminated positions has been refilled.

Defendant paid plaintiff two weeks salary in lieu of notice, plus six months severance pay. Termottos notes, written contemporaneously with the termination, state that plaintiffs  [t]ermination of employment [was] due to reduction, not performance. 

4. Procedural history

Plaintiffs operative complaint is cast in six causes of action: (1) disability discrimination; (2) failure to accommodate; (3) retaliation; (4) harassment on the basis of disability; (5) breach of an implied contract; and (6) intentional infliction of emotional distress. Defendant filed an answer denying every allegation in the complaint and asserting 16 affirmative defenses.

After the case was at issue, defendant moved for summary judgment. It asserted there were no triable issues of fact that:  (1) defendant had a legitimate, non‑discriminatory reason for discharging plaintiff (discrimination cause of action); (2) plaintiff could not connect her discharge to her complaints of interpersonal conflict with Hokama (retaliation causes of action); (3) plaintiff could not demonstrate that defendant failed either to provide reasonable accommodation or failed to engage in the interactive process (failure to accommodate disability cause of action); (4) plaintiff could not show a hostile work environment (harassment cause of action); (5) plaintiff had no evidence of an implied-in-fact contract not to terminate except for cause (breach of implied contract cause of action); and (6) there being no actionable conduct, plaintiff could not demonstrate the alleged conduct was extreme or outrageous (intentional infliction of emotional distress cause of action).

In opposing the summary judgment motion, plaintiff attempted to dispute nearly every one of defendants proffered facts by asserting factual and legal conclusions. Relying for evidentiary support largely on her own declaration, executed after her deposition, plaintiff claimed that defendant was intolerant of her need to take time off to obtain treatments for her disability. She asserted that Hokama reprimanded her for talking too much on the telephone and looked at her watch when plaintiff returned late from doctors appointments. Plaintiff declared that Hokama commented on the number of times plaintiff used the bathroom, while the other sales assistants did not receive this kind of treatment.

Plaintiff also claimed that defendant did not accommodate her disability or engage in the interactive process. Defendant, plaintiff asserted, required her to exhaust her sick days and then to use vacation days to see doctors. She observed that Goldstein never offered her paid time-off to see her doctors, criticized her over the number of absences she had, and never inquired of plaintiff about accommodations.

As further evidence of harassment, plaintiff asserted that in March 2004, when she told Hokama she was too sick to work and had to go home to rest, Hokama responded with the comment:  Going home to be with who?  In April 2004, when plaintiff had a rash on her face from medication, Hokama commented,  As much as you have been sick lately, are you sure you dont have AIDS?  Hokama claimed that once plaintiff explained that she had lupus, and that it caused rashes similar to Hokamas friend with AIDS, Hokama apologized. Finally, plaintiff asserted that Hokama once wrongly blamed plaintiff for making a work-related mistake. Plaintiff also explained that she complained to Human Relations about Hokamas conduct toward her in March 2004. Plaintiff declared that she complained, but only once did anything come of her complaints.

The trial court granted the summary judgment motion. Plaintiffs appeal was timely filed after the court entered judgment dismissing her action.

CONTENTION

Plaintiff contends that summary judgment was improperly granted.

DISCUSSION

1. Standard of review

The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.] (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Thus, summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing there is no merit to a cause of action if that party shows that one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. (Code Civ. Proc.,  437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co., supra, at p. 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.

On appeal from a summary judgment, we make an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.] (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.) We review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We construe the moving partys affidavits and declaration strictly, and the opposing partys evidence liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it. (Castillo v. Express Escrow Co. (2007) 146 Cal.App.4th 1301, 1306.)

2. Disability discrimination (FEHA)

a. Plaintiff cannot make a prima facie case of disability discrimination and is unable to demonstrate that defendants legitimate, nondiscriminatory reason for her termination is pretextual or untrue

With particular reference to discrimination claims, California courts have adopted a three-stage burden-shifting test established by the United States Supreme Court . . . . (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 354.) Under that test, the plaintiff-employee must first set forth sufficient evidence to establish a prima facie case of discrimination. (Id. at pp. 354-356.) To establish a prima facie case of disability discrimination, a plaintiff must show that he or she (1) suffers from a disability; (2) was a qualified individual; and (3) was subjected

to an adverse employment action because of the disability. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)[1]

When the employer moves for summary judgment,  the predominant view  is to require the employer to present a non-discrimination based reason for an adverse employment action. Once the employer makes that showing, the burden shifts to the employee  to avoid summary judgment [by offering] substantial evidence that the employers stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. [Citations.] (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.)

To carry this later burden, the employee must show more than that the employers decision was wrong, mistaken, or unwise. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807.) The employee   must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, [citation], and hence infer that the employer did not act for the [. . . asserted] non-discriminatory reasons. [Citations.] [Citations.] [Citation.] (Ibid.) The employee must provide evidence that supports a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employers actions. [Citation.] Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 361, italics added, fn. omitted.) With these rules in mind, we turn to the undisputed factual showing.

(i) Plaintiff has no direct evidence of discrimination

Plaintiff must demonstrate that defendant was motivated by disability discrimination when it discharged plaintiff. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 806.) To do so, she contends that defendants numerous comments on [plaintiffs] disability, including comparing her illness to AIDS, telling her she looked awful, and asking her whom she was sleeping with in discussing her medical conditions constitute direct evidence of disability bias. (Italics added.) Consequently, she argues, she need not make an indirect showing. We disagree.

Citing federal cases, plaintiff asserts that the rule in discrimination cases is that very little proof is needed to establish a prima facie case. Yet, in each of the cases plaintiff cites the discriminatory comments were made by a decisionmaker, contained explicit reference to the plaintiffs job status, and were directly related to a protected attribute, such as age, sex, or race. (E.E.O.C. v. Alton Packaging Corp. (11th Cir. 1990) 901 F.2d 920, 923 [statement by decisionmaker: if it [were] his company he wouldnt hire black[s], is direct evidence of race discrimination]; Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 151-153 [statements by decisionmaker that plaintiff  was so old [he] must have come over on the Mayflower  and that he  was too damn old to do [his] job  is direct evidence of age-based animus]; Burns v. Gadsden State Community College (11th Cir. 1990) 908 F.2d 1512, 1518 [statement by decisionmaker that  no woman would be named to a B scheduled job  is direct evidence that gender played a motivating part in the defendants decision to refuse to hire plaintiff]; Lowe v. City of Monrovia (9th Cir. 1985) 775 F.2d 998, 1009-1010, [comments by employer to applicant that citys police force had no women, no blacks, and  no facilities,  and suggesting that applicant apply for a position in another city where police department is  literally begging for minorities and especially females,  along with other evidence, created inference the employment decision was based on an illegal discriminatory criterion].)

Here, the comments plaintiff cites were made by Hokama, a non-decisionmaker.[2] One cannot reasonably infer that the termination decision was based on discriminatory animus from Hokamas suggestion that plaintiff was going home early to have sex. Likewise, a comment by a co-worker, unrelated to the discharge decision, that plaintiff looked bad when she was feeling ill, is equally as likely to be an observation as it is to be a discriminatory statement. These comments are simply not enough to establish defendants discriminatory purpose in terminating plaintiff. The comments plaintiff lists are nothing more than stray remarks made by one who was not plaintiffs superior. As such, the remarks do not establish defendants discriminatory animus. (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 801.)

(ii) Plaintiff cannot make a circumstantial case of disability discrimination

To demonstrate a prima facie circumstantial case of discrimination, plaintiff must show that she: (1) suffers from a disability; (2) was a qualified individual; and (3) was subjected to an adverse employment action because of the disability. (Brundage v. Hahn, supra, 57 Cal.App.4th at p. 236.)

Neither party disputes that plaintiff is disabled as defined by Government Code section 12926, subdivisions (k)(1) and (3). Nor has defendant disputed that plaintiff was qualified to work in her position. However, plaintiffs evidence does not demonstrate the third element that the adverse employment action here was taken because of her disability.

Plaintiff argues the most damning evidence of discrimination is the timing, i.e., that she was discharged from employment only after she went on disability leave in late August 2004. However, the record shows indisputably that her disability leave was for a knee injury, absolutely unrelated to her disability, and her selection for termination was made in July 2004, one month before her knee injury. Plaintiff attempts to demonstrate a dispute of fact about when defendant decided to discharge her; but she provided no actual evidence, other than speculation in her own declaration, that the decision was made after she went on leave. By contrast, e‑mails show that defendant concluded that one employee had to be released from the Los Angeles office and Goldstein chose plaintiffs position all before plaintiff went on leave. Additionally, timing, without more is not always probative of discrimination. In Schultz v. Spraylat Corp. (C.D.Cal. 1994) 866 F.Supp. 1535, pretext was not shown even though there was one day between the employees confirmation of his disability and his termination.[3] Plaintiff here has been unable to show even circumstantially that she was discharged because of her disability. (Brundage v. Hahn, supra, 57 Cal.App.4th at p. 236.) There is no substantive evidence from which a legitimate inference of a disability bias in defendants Los Angeles office can be made.

(iii) Defendant demonstrated a non-discriminatory reason for plaintiffs discharge

Even assuming plaintiff has demonstrated a prima facie case of disability discrimination, defendant presented undisputed evidence of a legitimate, non‑discriminatory reason for its decision to terminate plaintiff from employment, namely, the business necessity. (Brundage v. Hahn, supra, 57 Cal.App.4th at p. 236; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 355‑356.) That is, plaintiffs position was eliminated as part of an RIF where plaintiff had the least seniority.

There are two elements to the business necessity defense pursuant to the California Code of Regulations: Where an employer or other covered entity has a facially neutral practice which has an adverse impact (i.e., is discriminatory in effect), the employer or other covered entity must prove that [1] there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business and [2] that the challenged practice effectively fulfills the business purpose it is supposed to serve. The practice may still be impermissible where it is shown that there exists an alternative practice which would accomplish the business purpose equally well with a lesser discriminatory impact. (Cal. Code Regs., tit. 2,  7286.7, subd. (b).)

Reductions in workforce because of adverse economic conditions have been held to constitute good cause for employee termination. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1731-1732.)  [T]he depressed condition of [the employers] . . . business and its business decision to reduce its staff with the result that [the employees] services [are] no longer needed can be good cause for discharging the employee [citations] . . . . (Id. at p. 1732; Joanou v. Coca-Cola Co. (9th Cir. 1994) 26 F.3d 96, 99-100; Pfeifer v. U.S. Shoe Corp. (C.D.Cal. 1987) 676 F.Supp. 969, 973; Weisbrot v. Medical College of Wisconsin (7th Cir. 1996) 79 F.3d 677; cf. Clutterham v. Coachmen Industries, Inc. (1985) 169 Cal.App.3d 1223, 1227.)

Schultz v. Spraylat Corp., supra, 866 F.Supp. 1535, is on point. A salesman, the plaintiff informed his employer that he was unable to travel by air without suffering debilitating pain. Spraylat offered to expand Schultzs territory to cover northern California, if he could fly. Spraylat required Schultz to take a test flight. Twenty-four hours after learning that Schultz remained unable to fly, Spraylat discharged him. Spraylats reason was a lack of sufficient business to support a full-time salesman in Schultzs territory. Schultz sued alleging, inter alia, disability discrimination in violation of FEHA. (Id. at p. 1537.) The federal district court granted Spraylats motion for summary judgment. The court reasoned that, even if Schultz were physically disabled within the meaning of FEHA, Spraylat produced uncontroverted evidence of a legitimate business reason for Schultzs termination, namely, to save money. (Id. at p. 1539.) Spraylat showed through documentation that its west coast divisions sales were down and it was losing money. To reverse the decline, Spraylat hired an expert to assess the economic conditions and to take steps to return the company to profitability. The expert found that staffing levels had to be reduced and so the total employee headcount was reduced by 22 percent, i.e., three positions were eliminated, one of which was Schultzs. Finally, since Schultzs termination, Spraylat had not hired anyone to replace him or assigned any of its other sales representatives to his territory on a full-time basis. (Ibid.) Schultz was thereafter unable to meet the shifting burden to produce evidence that Spraylats reason was pretextual and so the court entered summary judgment in favor of Spraylat. (Ibid.)

Just like Spraylat, and in accordance with the regulations, defendant here produced evidence of a legitimate, non‑discriminatory reason for plaintiffs discharge from employment, namely, to save money. Termotto testified in his declaration about defendants business plan for 2004 that defendant would lose income as the result of the loss of a member-newspaper with the result that staff cuts were required. This constitutes its overriding legitimate business purpose such that the job eliminations were necessary to the safe and efficient operation of the business. (Cal. Code Regs., tit. 2,  7286.7, subd. (b).) Termotto found that the Los Angeles office had more sales‑assistants per sales executives than any other office and so that office would have to reduce its sales assistant staff by one. Because plaintiff had the least seniority of the sales assistants in Los Angeles, hers was the position eliminated. Four other positions in the company nation-wide were also eliminated, including an employee who was discharged from defendants New York office on the same day. Thus, nearly 10 percent of the company was eliminated as part of the RIF, belying plaintiffs assertion that she was the only employee to be discharged. None of those eliminated positions was re-filled. (Cal. Code Regs., tit. 2,  7286.7, subd. (b) [the challenged practice effectively fulfills the business purpose it is supposed to serve].) Defendant made the necessary, undisputed showing of a legitimate non‑discriminatory reason for terminating plaintiff from her employment.

(iv) Plaintiff produced no evidence that defendants proffered reason was pretext or motivated by discrimination

The burden shifted to plaintiff either to demonstrate that defendants proffered reason was pretext, or to offer other evidence of discriminatory motive. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 806.) Plaintiff points to the testimony of Erich Linker, defendants then-Vice President of Sales, that sales had increased in 2004. However, increases in sales revenue are irrelevant to defendants bottom line. Both Termotto and Linker testified that defendants revenue is based on the annual fees it receives from its member newspapers, not on sales revenue, which goes not to defendant but directly to its member newspapers. Other than speculation, plaintiff presented no actual evidence that defendants downsizing was merely an opportunity to rid itself of plaintiff.

As a factual dispute, plaintiff observes that an interrogatory response identified Termotto as the one who decided to discharge plaintiff, while Goldstein testified she made that decision. We perceive no material dispute. An interrogatory response identified Termotto, Linker, and Goldstein as all having input into the termination decision. Termotto, Linker, and Goldstein all testified in deposition and presented e‑mails confirming that Termotto and Linker established that Termotto would ask Goldstein to discharge one sales assistant in Los Angeles, and she selected plaintiff on the ground that plaintiff had the least seniority.

Plaintiff also lists her strong performance reviews as evidence that she was not discharged as part of a downturn in business. To the contrary, we think these positive performance reviews only bolster the claim by Goldstein that plaintiffs position was selected for elimination because plaintiff had the least seniority and that disability discrimination played no part. Plaintiff has not demonstrated that defendants reason for selecting plaintiffs position for elimination was pretext for discriminatory motive. In short, the trial court properly granted summary adjudication of plaintiffs first cause of action alleging disability discrimination in violation of the FEHA.

3. Failure to accommodate (FEHA)

FEHA provides an independent cause of action for an employers failure to provide a reasonable accommodation for an applicants or employees known disability. ([Gov. Code,] 12940, subds. (a), (m).) Under the express provisions of the FEHA, the employers failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself. [Citations.] Similar reasoning applies to violations of Government Code section 12940, subdivision (n), for an employers failure to engage in a good faith interactive process to determine an effective accommodation, once one is requested. [Citations.] (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54, italics added.)[4]

Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. (Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 54, citing Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)

[A]n employer cannot prevail on summary judgment unless it establishes through undisputed facts that . . . reasonable accommodation was offered . . . . (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.) Looking to the ADA as a guide An employer carrying out the ADAs interactive process in good faith should meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered employees request, and offer and discuss available alternatives when the request is too burdensome. [Citations.] (Tannlund-McCoy v. Golden Gate Bridge, Highway and Transportation District (N.D.Cal. 2003) WL 21838278 *8.)[5]

In moving for summary judgment, defendant proffered undisputed evidence that it accommodated the health needs that plaintiff raised in relation to her job and disability. Plaintiff went on medical leave in 2003 after her car accident. Defendant granted plaintiff six months of paid leave after the car accident, notwithstanding that was not the norm; it reinstated her after her leave. Under FEHA, holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future. (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 263.)

Upon plaintiffs return from disability leave, Goldstein met with her to discuss limitations. Plaintiff listed for Goldstein two work limitations: (1) no heavy lifting and (2) she must move frequently. Defendant met the two limitations that plaintiff named. Goldstein relieved plaintiff of the duty of carrying the mail, and allowed her to get up and walk around as needed. Otherwise, plaintiff admitted that she was able to perform all essential job functions.

Plaintiff contends defendant objected to the simple accommodation of frequent doctor visits that she requested upon her return from her car accident in September 2003. She asserts that rather than to accommodate her, defendant harassed her. Plaintiff cannot demonstrate a claim of failure to accommodate or even to engage in the interactive process.

Plaintiff did tell Goldstein that she was on chemotherapy and would have to be followed closely and had ongoing discussions about doctors appointments and laboratory tests. However, there is no dispute that plaintiff never listed doctors visits as a limitation or requested accommodation for her frequent laboratory and physician appointments. While Goldstein specifically requested plaintiff inform her if plaintiff required further accommodations, plaintiff testified she said nothing to Goldstein about the possibility of needing time off. FEHA puts the onus on the disabled employee to request further interactive discussions. It only requires the employer to engage in the interactive process in response to a request for reasonable accommodation by an employee . . . . (Gov. Code,  12940, subd. (n), italics added.) Yet, the record shows indisputably that plaintiff never asked for any other accommodation or for additional time off.

Plaintiffs contention that defendant failed to give her additional paid sick leave for doctor visits after she had exhausted her paid leave is also unavailing. There is no evidence that defendant failed to allow plaintiff additional unpaid time off for doctor visits or that defendant prevented plaintiff from seeing her physicians. Rather, Goldstein suggested plaintiff use her vacation days or unpaid leave to see doctors after she had exhausted her sick leave. Also, Goldstein permitted plaintiff to leave work early for doctors appointments, without cutting her pay.  Unpaid medical leave may be a reasonable accommodation under the ADA. [Citation.]  (Tannlund-McCoy v. Golden Gate Bridge, Highway and Transportation District, supra, F.Supp.2d WL 21838378 *5.) In any event, plaintiffs lupus doctor testified in deposition that he had not treated plaintiff since October 24, 2003,[6]-- well before she used up her sick leave undermining her claim that her absences were occasioned by her disability. In short, defendant carried its burden to show by undisputed facts that it granted plaintiff all accommodations requested and that plaintiff was able to perform the essential functions of her job. The record reveals indisputably that defendant engaged in good faith in the interactive process here, but that plaintiff never asked for the accommodations she now insists were denied her. Summary adjudication of this cause of action was properly entered.

4. Retaliation

  To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.  [Citations.] The retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.  [Citation.] (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

Here, plaintiff cannot demonstrate the necessary causal connection between her disability and her complaints of a conflict with co-worker Hokama on the one hand, and the elimination of her position in the RIF on the other. Plaintiff makes much of the timing of her termination, i.e., while she was on disability leave. (See (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69 [causal link can be shown by, inter alia,   the proximity in time between the protected action and allegedly retaliatory employment decision  ].) However, plaintiffs August 2004 medical leave was for a temporary knee injury and had nothing to do with her lupus or Sjogrens syndrome. Hence, no causal link is shown here. Furthermore, the evidence shows that defendant decided to eliminate plaintiffs position a full month before plaintiffs knee injury. Finally, even assuming that plaintiffs complaints to Goldstein about her relationship and conflicts with Hokama constitute protected activity under FEHA, which we doubt, there is no evidence, beyond plaintiffs mere speculation, that Hokama was involved in any manner in the decision to eliminate plaintiffs position. The trial court properly granted summary adjudication of the retaliation cause of action.

5. Harassment on the basis of disability

Government Code section 12940, subdivision (j)(1) makes it unlawful for an employer or its employees,[7] because of physical disability, . . . medical condition, to harass an employee.

The only published California case addressing the requirements for a claim of harassment based on a disability or medical condition is Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431 (disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6). There, as here, the plaintiff alleged that she was subjected to a hostile work environment created by repeated harassing statements by co-workers. For guidance on the standard, Muller looked to cases involving sexual harassment-based hostile work environments. (Id. at p. 446.)   For [hostile work environment] sexual harassment to be actionable, [the harassment] must be sufficiently severe or pervasive to alter the conditions of [the victims] employment and create an abusive working environment.  [Citation.] [Citations.] In determining what constitutes sufficiently pervasive harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.] [Citation.] (Ibid.)

Whether a hostile environment was created depends on numerous factors. They include  the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance. [Citation.] The plaintiff must prove that the defendants conduct would have interfered with a reasonable employees work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.] [Citation.] (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517.)

As harassment, plaintiff alleges that Hokama (1) looked at her wrist to indicate that plaintiff was coming back late from doctor appointments and reprimanded plaintiff for making personal telephone calls; (2) asked plaintiff whether her rash was because of AIDS; (3) joked when plaintiff left early once to go home to bed, that she was going with someone; (4) monitored plaintiffs bathroom usage; and (5) once wrongly accused plaintiff of making a work-related mistake.

In McConathy v. Dr. Pepper/Seven Up Corp. (5th Cir. 1997) 131 F.3d 558, the supervisor became angry over the employees numerous missed work days because of jaw disease. The supervisor told the employee she  better get well this time, and that he would no longer tolerate her health problems.  The supervisor then pressured the employee to return to work before she was fully recovered and ordered her to take a business trip despite her claim she was still in pain from the surgery. The supervisor also allegedly told plaintiffs staff to cease communicating with her about business projects under her supervision and allegedly excluded the employee from business meetings, transferred assignments away from her, and refused to acknowledge her presence when she was with him. (Id. at p. 560.) In affirming the grant of summary judgment in favor of the employer, the court held, while insensitive and rude, [the supervisors remarks] would not be sufficient as a matter of law to state a claim of hostile environment harassment. (Id. at p. 564.) It is a simple fact that in a workplace, some workers will not get along with one another, and this Court will not elevate a few harsh words or cold-shouldering to the level of an actionable offense. (Ibid.)

Plaintiffs evidence is not anywhere near as unpleasant as in McConathy. Hokamas comments, albeit officious, offensive, and uncouth, were not sufficiently severe or pervasive to alter the conditions of plaintiffs employment and create an abusive working environment. Nor were these comments and gestures frequent. Occasional hurtful remarks by a coworker or supervisor do not reach the appropriate level of severity. [Citation.] (Morgan v. City and County of San Francisco (N.D.Cal. Jan. 13, 1998) WL 30013 *8.) And, they certainly did not interfere with plaintiffs work performance, as she garnered good performance reviews. The telephone calls were unrelated to plaintiffs disability and issues with plaintiffs telephone usage predated her disability; Hokama testified that her AIDS comment was made before she knew that plaintiff had lupus and apologized once she was informed. Hence, only a few comments or actions by Hokama even relate to plaintiffs disability. Also, as most of the comments originated from Hokama only, they were neither concerted nor generalized across the office, nor did they constitute a pattern of conduct. Perhaps the plaintiffs poor relationship with [Hokama] created unwanted tension at her job, the plaintiffs workplace cannot reasonably be described as permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the plaintiffs employment and create an abusive working environment. [Citation.] (Rodriguez v. Loctite Puerto Rico, Inc. (1997) 967 F.Supp. 653, 666, quoting Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 65.)

The record also shows that plaintiff complained to defendant about Hokamas AIDS comment and the suggestion that plaintiff was going home to bed with someone. Defendant responded to those claims by investigating. Goldstein then reprimanded Hokama, arranged lunch hours so that plaintiff and Hokama no longer ate at the same time, and instructed them to restrict their conversations to business only. The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified. An investigation is a key step in the employers response [citation] . . . . (Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184, 1193.) The trial court properly granted summary adjudication of this cause of action.

6. Breach of an implied contract not to terminate without cause

Plaintiff alleged that defendant terminated her without good cause in breach of an implied-in-fact contract.

An express disclaimer, reinforced by the statutory presumption of at-will employment (Lab. Code,  2922) satisfies an employers initial burden to show that the employees claim of a contract limiting the employers termination rights has no merit. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 339.) However, the plaintiff may present evidence showing the existence and breach of an implied agreement.

In moving for summary judgment, defendant submitted its handbook, which plaintiff signed, clearly declaring defendants intention that employment was at will. (Lab. Code,  2922). Defendant carried its burden to show there was no agreement limiting its termination rights. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 339.)

Plaintiff claims that the length of her employment with defendant, her exemplary work record and positive evaluations, defendants oral assurances of continued employment, and the industrys policy evince an implied-in-fact contract under which her termination would occur only for cause.

Our Supreme Court has explained that on the one hand, [a]bsent other evidence of the employers intent, longevity, raises and promotions are their own rewards for the employees continuing valued service; they do not, in and of themselves, additionally constitute a contractual guarantee of future employment security. A rule granting such contract rights on the basis of successful longevity alone would discourage the retention and promotion of employees. [] On the other hand, long and successful service is not necessarily irrelevant to the existence of such a contract. Over the period of an employees tenure, the employer can certainly communicate, by its written and unwritten policies and practices, or by informal assurances, that seniority and longevity do create rights against termination at will. The issue is whether the employers words or conduct, on which an employee reasonably relied, gave rise to that specific understanding. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 342, second and third italics added.) Where the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper. (Id. at p. 337.)

To raise a triable issue that defendant entered into and breached an implied contract limiting its right to terminate plaintiffs employment, plaintiff relied on her longevity, work record, positive reviews, and oral assurances. However, these factors are not sufficient to constitute a contractual guarantee of future employment security. First, plaintiff was only employed at defendants company for three years. Plaintiff argues that 18 months of employment constitutes longevity. Yet, she was the last hired and so her tenure was the shortest. Second, plaintiff did nothing but allege that the practice in defendants industry is to provide secure employment. Third, and more important, plaintiff cites to general comments, such as  great job, Melanie,  and  Thank you for being on top of the situation,  and  You work well with clients,  as evidence of assurances that she would only be fired for cause. These comments do not constitute individual promises or representations that defendant would retain plaintiff except for good cause. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 341-342.) As a matter of law, such comments simply do not give rise to a specific understanding that defendant agreed to and breached an implied contract limiting its right to terminate plaintiffs employment, particularly given the handbooks statements. Plaintiff failed to present evidence giving rise to a triable issue of the existence of an implied-in-fact contract to terminate her only for cause. The trial court properly granted summary adjudication of this cause of action.

7. Intentionalinfliction of emotional distress

Plaintiff alleged that Hokama engaged in a concerted effort to force plaintiff to resign, and that her harassing conduct caused plaintiff emotional distress. She also alleges that Goldsteins call informing plaintiff of her termination, occurring as it did during plaintiffs medical leave, caused her emotional distress.

An essential element of the tort of intentional infliction of emotional distress is  outrageous conduct by the defendant. (Angie M. v.Superior Court (1995) 37 Cal.App.4th 1217, 1225.)   [M]ajor outrage is . . . essential to the tort . . . .   (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) To qualify, the conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.] (Fowler v.Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.) Behavior may be considered outrageous if a defendant abuses a position which gives him power to damage the plaintiffs interest. [Citation.] (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.) Whether behavior is so extreme and outrageous is a legal determination to be made by the court, in the first instance. (Fowler v.Varian Associates, Inc., supra.) However,  [w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. [Citations.] (Lagies v.Copley (1980) 110 Cal.App.3d 958, 974-975, disapproved on other grounds in Brownv. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738.)

Here, plaintiffs allegations simply do not describe extreme and outrageous behavior. Apart from sporadic rude and insensitive comments and gestures, as a matter of law, Hokamas actions were not extreme as to exceed the bounds of what is tolerated in a civilized community. Summary adjudication was proper.

Because the trial court properly granted defendants summary judgment motion, we need not reach the question of plaintiffs prayer for punitive damages.

DISPOSITION

The judgment is affirmed. Each party to bear its own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] Federal interpretations of the federal employment discrimination laws can be useful guides to the construction of Californias statutes. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 354.)

[2] Hokama was not plaintiffs supervisor, plaintiffs assertion to the contrary notwithstanding. Although plaintiff declared that when she first started she answered directly to Hokama who supervised all sales assistants, was responsible for training and instruction, and approved all the quotes plaintiff generated, Goldstein declared that she was the one with primary responsibility for oversight of the employees. Both Goldstein and Hokama declared that the latter had no supervisory authority over plaintiff or any other employee in the Los Angeles office. They both declared that Hokama did not evaluate plaintiff, or any other employee for that matter, was not authorized to grant employees time off, and had no authority to discipline employees. Although plaintiff declared that Hokama trained plaintiff when she first began to work with defendant, that fact does not transform Hokama into plaintiffs supervisor then or even three years later when she was discharged from employment. Defendant did not seek Hokamas opinion in preparing the annual evaluations of the sales assistants. Most important, however, is that plaintiff admitted in her deposition, which predates her declaration, that Goldstein told plaintiff that Goldstein -- not Hokama -- was her supervisor. Indeed, plaintiff listed Goldstein as her immediate supervisor in her application for unemployment insurance. Plaintiff does not raise a triable issue of fact that Hokama was her supervisor or had any input in the decision that plaintiffs position would be terminated in the RIF.

In an attempt to circumvent the fact that Hokama, who made the statements, was not a decisionmaker, plaintiff argues that Goldstein condoned Hokamas statements. However, what the record shows is that the two times plaintiff complained to Goldstein about any comment related to plaintiffs disability, Goldstein reprimanded Hokama, scheduled their lunch breaks so that Hokama and plaintiff ate at different times, and instructed them to restrict their conversations to business only.

[3] This case is unlike Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, cited by plaintiff because defendant here is not making the case that it terminated plaintiff because of her poor performance.

[4] Government Code section 12940 subdivisions (m) and (n) make it a violation of FEHA (m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.

(n) For an employer or other entity covered by this part 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.

[5] Although unpublished California cases may not be cited, the California Rules of Court do not prohibit cit