Friedman v.
Filed 11/14/12 Friedman v. Fairfield Residential CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
KAREN FRIEDMAN,
Plaintiff and Appellant,
v.
FAIRFIELD
RESIDENTIAL, LLC, et al.,
Defendants and Respondents.
B235208
(Los Angeles
County
Super. Ct.
No. BC412575)
APPEAL from a judgment of the Superior
Court of
County.
Michael C. Solner, Judge.
Affirmed.
Eisenberg & Associates and
Michael B. Eisenberg for Plaintiff and Appellant.
Ogletree, Deakins, Nash, Smoak
& Stewart and Alexandra A. Bodnar for Defendants and Respondents.
______________________
Plaintiff and appellant Karen
Friedman (Friedman) appeals from a summary judgment entered in favor of
defendants and respondents Fairfield Residential, LLC, and Fairfield
Properties, LLC (collectively Fairfield). We conclude that the trial court rightly
determined that plaintiff failed to present a
claims. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Fairfield
Fairfield
is a real estate operating company specializing in multi-family housing. Fairfield
hired Friedman in April 2006 as an administrative assistant to Steve Kealer
(Kealer) in its Marina Del Rey office.
Kealer worked as vice president of
the condominium group. Because he
traveled frequently and was out of the office more than he was in the office,
he needed Friedman available and in the office when he was out to handle office
tasks. In fact, many of Friedman’s job
duties, such as checking Kealer’s e-mails and mail, printing documents for him,
and managing office equipment, could only be performed while Friedman was
physically in the office.
name="_ftnref1" title="">[1]
Friedman’s Attendance
and Performance Were Poor
Despite Fairfield’s
attendance policy and Kealer’s needs, Freidman’s attendance and performance
were unsatisfactory. For example, Kealer
asked Friedman to print materials for him to bring to his Monday meetings in San
Diego. Because
she repeatedly failed to provide these materials on time, he told her that he
would do it himself. As for her
attendance, she missed 23 days of work between April and October 2007, and was
out several times earlier in the year.
On October 3, 2007, Friedman was verbally
counseled about her attendance. On
November 7, 2007, Friedman received a final written warning for: (1) Numerous incidents of unscheduled
absences dating back to April 2007, constituting failure to meet company
standards of performance and conduct; (2) Numerous days tardy; (3) Taking days
off without properly coding them as personal time off (PTO), in violation of
Fairfield’s policies;
name="_ftnref2" title="">[2] (4) A lack of judgment and a conflict of
interest in setting up an online travel agency through which she intended to
book work-related travel for Kealer and other employees; and (5) Work
performance that was not up to standards and caused other members of the office
to be forced to take on additional job duties.
In December
2007, Kealer informed Friedman that she had earned a bonus.
After the Warning,
Friedman’s Performance did not Improve
In February
and March 2008, Jennifer Perley (Perley), Fairfield’s
human resources manager, and Kealer discussed Friedman’s continued performance
issues and poor attendance. She was
absent on January 2 and February 12, 13, 18, 28, and 29, and she only worked a
partial day on March 3. On March 4, 2008, Perley noticed that
Friedman’s timesheet for February 18 showed that she worked even though she did
not. A few days later, Perley discovered
more falsified time entries.
Specifically, Friedman’s timesheet for the week of February 26 through
29, which she approved herself, showed that she worked 8:00 a.m. to 5:00 p.m. every day that week when
she had not; in fact, Friedman was out of the office entirely on February 28
and 29. It also showed that she had
worked 8:00 a.m. to 5:00 p.m.
on March 3, 2008, when
she had not.
Because Friedman had already received a final written
warning regarding her timesheets, on March
4, 2008, Perley determined that Friedman’s employment with Fairfield
should be severed. Although it was not Fairfield’s
general practice to offer a severance package to employees who are terminated
for cause, Kealer was sympathetic to personal issues that Friedman was facing
and Fairfield decided to offer
Friedman a severance package.
On March 17, 2008, Perley prepared
Friedman’s termination paperwork, including finalizing a severance agreement
for her and preparing Kealer for the termination meeting to occur three days
later. Friedman’s employment with Fairfield
was terminated for cause on March 20,
2008.
title="">[3]
Friedman’s Back Injury
and Fairfield
Friedman
had a back injury when she was hired in 2006.
Kealer was aware of that back injury at the beginning of the employment
relationship.
Throughout
Friedman’s employment, Fairfield
made accommodations for her because of her injury. She ordered for herself a special executive
chair in February 2006 that had a high back rather than the standard executive
chair with a short back. The chair was
an ergonomic chair. She was allowed to
take time off for chiropractor appointments.
When she reinjured her back in February 2008, Fairfield
permitted her to stand at her computer as needed.
Moreover,
as soon as Perley learned that Friedman’s physician had instructed her to stay
on bed rest for one week and that Friedman was not following that instruction,
she contacted Friedman and told her to follow her physician’s
recommendation. Kealer echoed Perley’s
sentiment. In fact, Fairfield
provided Friedman with PTO for this purpose on March 4, 5, and 7, and a
floating holiday on March 6, 2008.
Fairfield
for Friedman
On March 10, 2008, Friedman’s doctor
cleared her to return to work. On the
advice of her doctor, Friedman requested accommodations from Kealer, such as
being able to lie on her back, to change tasks periodically, and for an
ergonomic chair. According to Friedman,
Kealer was visibly angry with her requests.
On March 12, 2008, Friedman sent Perley an e-mail stating,
“my doctor has suggested I purchase an ergonomic chair for the computer.†On March
17, 2008, Friedman e-mailed Kealer, notifying him that she had a
doctor’s appointment for more tests on her back and that she would be available
by telephone if he needed anything.
Kealer forwarded this e-mail to Perley.
resources on March 19, 2008,
stating that her doctor suggested that she get an ergonomic chair. Although she had previously been told that if
there were a medical condition that needed to be accommodated, she needed to
submit a doctor’s note to human resources, she did not do so.
Even though
all of the task chairs at Fairfield are ergonomic chairs (and, in fact,
Friedman had already ordered herself a special executive chair), it is
Fairfield’s practice to provide employees with a more specialized ergonomic
chair if they submit a doctor’s note requesting such a chair. Had Fairfield not already decided to sever
Friedman’s employment relationship with the company, Perley would have followed
Fairfield’s standard procedure to request a doctor’s note substantiating the
medical need for an accommodation. But,
the decision to sever Friedman’s employment had already been made, before
Friedman’s e-mails. In fact, the
termination paperwork had been created and the termination meeting had been
scheduled before Friedman’s March 19, 2008,
e-mail.
The Lawsuit
On April 27, 2009, Friedman filed a complaint against
Fairfield alleging two causes of action for disability discrimination. According to the second amended complaint,
Fairfield discriminated against Friedman by failing to accommodate Friedman and
failing to engage in an interactive process to find a reasonable accommodation
for Friedman’s disability. Friedman
further alleged that Fairfield discriminated against her by terminating her
employment because of her disability and request for an accommodation.
Fairfield’s Successful
Motion for Summary Judgment
Fairfield
moved for summary judgment or, in the alternative, summary adjudication. First, it argued that because of her
excessive absenteeism, Friedman was not a qualified person with a disability. Thus, Fairfield was entitled to
judgment. Regarding the first cause of
action (disability discrimination—failure to engage in the interactive process
and failure to provide a reasonable accommodation), Fairfield claimed that it
did engage in the interactive process and accommodated Friedman in numerous
ways. As for Friedman’s claim that
Fairfield failed to respond to her request for an ergonomic chair, Fairfield
asserted that Friedman never made such a request. Alternatively, Fairfield contended that her
request was not reasonable and that an accommodation would have been
futile. Regarding Friedman’s second
cause of action (disability discrimination arising out of her termination),
Fairfield argued that it was entitled to judgment because Friedman could not
establish discriminatory animus or motive.
And, Fairfield had several legitimate business reasons for terminating
Friedman’s employment, including (1) Friedman’s record of absenteeism and
failing to perform the essential functions of her job; (2) Friedman’s conflict
of interest in setting up and using her own travel agency to book business
travel; (3) Friedman’s falsification of her timesheets, even after she received
a final written warning; and (4) Fairfield’s economic reasons.
Friedman opposed Fairfield’s
motion. She argued that she suffered a
legally cognizable disability,
namely her back problems. She further
asserted that she requested a reasonable accommodation, but that Fairfield
repeatedly refused to offer accommodations or enter into the interactive
process with her. Finally, Friedman
contended that the termination of her employment stemmed directly from her
disability and requests for an accommodation.
In so arguing, Friedman noted that Fairfield’s reason for terminating
her employment changed, evidencing Fairfield’s lack of truthfulness. And, each purported reason for the
termination of her employment lacked credibility.
After
entertaining oral argument, the trial court granted Fairfield’s motion. With respect to the first cause of action,
the trial court found that Fairfield accommodated Friedman in several respects
during her employment and that it had no duty to engage in the interactive
process or accommodate Friedman with an ergonomic chair because doing so would
have been futile in light of Fairfield’s prior decision to terminate Friedman’s
employment for legitimate business reasons.
With respect to the second cause of action, the trial court determined
that Fairfield was entitled to judgment because (1) Friedman had received a
written warning about failing to properly code her days off as paid time off in
violation of company policy; (2) After receiving the final written warning,
Friedman falsified her timesheets; (3) Fairfield terminated Friedman’s
employment for, among other things, falsifying her timesheets; (4) Fairfield’s
reasons for terminating Friedman’s employment were legitimate; and
(5) Friedman failed to show that Fairfield had a discriminatory animus or
motive towards her.
Judgment was entered and Friedman’s
timely appeal ensued.
DISCUSSION
I. Standard
of Review
“A trial court properly grants
summary judgment where no triable issue of material fact exists and the moving
party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd.
(c).) We review the trial court’s
decision de novo.†(Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
II. Fair
Employment and Housing Act (FEHA)
FEHA outlaws
several employment practices relating to physical disabilities. As relevant here, it is an unlawful
employment practice:
(1) Because of a physical
disability, “to refuse to hire or employ the person . . . or to
bar or to discharge the person from employment . . . or to
discriminate against the person in compensation or in terms, conditions, or
privileges of employment.†(Gov. Code, §
12940, subd. (a).) This provision does
not prohibit the discharge of an employee with a physical disability where the
employee “is unable to perform his or her essential duties even with reasonable
accommodations.†(Gov. Code, § 12940,
subd. (a)(1).)
(2) “[T]o fail to make reasonable
accommodation for the known physical . . . disability of an
applicant or employee,†unless the accommodation is shown to produce undue
hardship to the employer’s operation.
(Gov. Code, § 12940, subd. (m).)
(3) “[T]o fail to engage in a
timely, good faith, interactive process with the employee
. . . to determine effective reasonable accommodations, if any,
in response to a request for reasonable accommodation by an employee
. . . with a known physical
. . . disability.†(Gov.
Code, § 12940, subd. (n).)
To establish a prima facie case of
physical disability discrimination under FEHA, the employee must demonstrate
that she is disabled and otherwise qualified to do the job and was subjected to
an adverse employment action because of such disability. (King
v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 432–433,
fn. 2.) If this burden is met, it
is then incumbent on the employer to show it possessed a legitimate,
nondiscriminatory reason for its employment decision. (Deschene
v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) When this showing is made, the burden shifts
back to the employee to produce substantial evidence that the employer’s given
reason was either “untrue or pretextual†or that the employer acted with
discriminatory animus in order to raise an inference of discrimination. (Hersant
v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004–1005.)
“The elements of a failure to
accommodate claim are similar to the elements of a . . . section
12940, subdivision (a) discrimination claim, but there are important
differences. The plaintiff must, in both
cases, establish that he or she suffers from a disability covered by FEHA and
that he or she is a qualified individual.
For purposes of [a failure to accommodate] claim, the plaintiff proves
he or she is a qualified individual by establishing that he or she can perform
the essential functions of the position to which reassignment is sought, rather
than the essential functions of the existing position. [Citations.]
More significantly, the third element [under a subdivision (a) claim]
. . . establishing that an ‘adverse employment action’ was
caused by the employee’s disability—is irrelevant to this type of claim. Under the express provisions of the FEHA, the
employer’s failure to reasonably accommodate a disabled individual is a
violation of the statute in and of itself.
[Citation.]†(
245, 246.)
“While a claim of failure to
accommodate [under Government Code section 12940, subdivision (m)] is
independent of a cause of action for failure to engage in an interactive
dialogue [under Government Code section 12940, subdivision (n)], each
necessarily implicates the other.†(
140 Cal.App.4th 34, 54 (Gelfo).) “‘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.]’
[Citations.]†(
(2008) 165 Cal.App.4th 1237, 1252.) In
other words, “‘“[r]easonable accommodation thus envisions an exchange between
employer and employee where each seeks and shares information to achieve the
best match between the [employee’s] capabilities and available positions.†[Citation.]’
[Citation.]†(
Cal.App.4th 1215, 1222.)
III. Friedman’s
First Cause of Action
Friedman’s first claim against
Fairfield is based upon her theory that Fairfield failed to engage in the
interactive process with her and provide her with a reasonable
accommodation. In support, Friedman
directs us to (1) her request to be on bed rest for one week; (2) her request
to lie on her back and stretch during the day, and to be able to switch tasks
periodically; and (3) her request for an ergonomic chair. Friedman’s evidence does not create a triable
issue of fact.
Regarding Friedman’s request to be
on bed rest for one week, it is undisputed that Fairfield instructed Friedman
to follow her physician’s orders and remain on bed rest until she was able to
return to work. In fact, she admitted at
her deposition that she was on bed rest for one week. And, she was given PTO for this exact
purpose.
As for Friedman’s request that she
be allowed to lie on her back and stretch, as well as to be able to switch
tasks periodically, again it is undisputed that she did so. Her own deposition testimony confirms that
she sat for a while, or would stand and walk around, or would lie down as
needed. While she complains that Kealer
rolled his eyes and scowled at her, she cannot demonstrate that her need to lie
down, stretch, and switch tasks was not accommodated.
Finally, with respect to Friedman’s
request for an ergonomic chair, we conclude that Fairfield was not required to
engage in the interactive process because doing so would have been futile (
327 F.Supp.2d 1128, 1137); by the time Friedman sent her e-mail requests to
Perley, Fairfield had already made the decision to terminate Friedman’s
employment. In other words, no
reasonable accommodation existed as Friedman’s employment relationship with
Fairfield was already scheduled to be severed.
(Nadaf-Rahrov v. Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 980, 982.)
In urging us to reverse on this
aspect of the trial court’s judgment, Friedman cites Gelfo, supra, 140 Cal.App.4th at page 54 for the proposition
that “courts have specifically rejected the idea that an employer is not
obligated to engage in ‘futile’ discussions related to the interactive
process.†Gelfo stands for no such thing.
At issue in Gelfo was the
question of whether an employer was required to participate in the interactive
process with an individual who is “‘regarded as’†disabled, as opposed to an
employee who is “‘actually’†disabled. (
engage in the interactive process with persons regarded as disabled, the
argument. (Ibid.) Gelfo did not wholly reject the futility argument, and did not
consider whether futility was a proper defense in circumstances such as those
presented in the instant case.
IV.
Friedman’s Second Cause of Action
In her second cause of action,
Friedman alleges that Fairfield terminated her employment because of her
disability and her request for an accommodation. Even assuming, without deciding that Friedman
had demonstrated these elements, it is undisputed that Fairfield had at least
two legitimate, nondiscriminatory reasons for her termination—Friedman
falsified her timesheets even after being warned not to do so, and Fairfield
was facing dire financial conditions.
Thus, Fairfield was entitled to judgment unless Friedman demonstrated
that Fairfield’s stated reason was pretextual or Fairfield acted with a
discriminatory animus. (
supra, 57 Cal.App.4th at
pp. 1004–1005.) She did not do so.
Citing Washington v. Garrett (9th Cir. 1994) 10 F.3d 1421, 1434, Friedman
claims that Fairfield’s stated reasons for her termination were pretextual
because Fairfield changed its stated reason for her termination. “In an appropriate case, evidence of
dishonest reasons, considered together with the elements of the prima facie
case, may permit a finding of prohibited bias.â€
(Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 356 (Guz).) “Fundamentally different justifications for
an employer’s action . . . give rise to a genuine issue of fact
with respect to pretext since they suggest the possibility that neither of the
official reasons was the true reason.†(
insufficient to raise a triable issue that the proffered reasons were
pretextual. “[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. [Citation.]
Proof that the employer’s proffered reasons are unworthy of credence may
‘considerably assist’ a circumstantial case of discrimination, because it
suggests the employer had cause to hide its true reasons. [Citation.]
Still, there must be evidence supporting a rational inference that
prohibited by the statute, was the true cause of the employer’s
actions.†(Guz, supra, 24 Cal.4th at
pp. 360–361.)
Here, Friedman’s evidence suggests
only that Fairfield gave additional reasons rather than shifting reasons for
her termination. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th
798, 815 [“‘shifting reasons’†means inconsistent reasons].) These reasons, as discussed below, remain
undisputed—Fairfield “was not doing well†and Friedman falsified her
timesheets. Thus, under the
circumstances of this case, Fairfield’s reasons for terminating Friedman’s
employment cannot be deemed pretextual for discrimination.
Regarding Friedman’s timesheets, it
is undisputed that they did not accurately reflect the days and times she
worked. The fact that Kealer’s
timesheets may have been inaccurate does not create a triable issue of fact
regarding the accuracy of Friedman’s timesheets. And, Perley’s testimony does not support
Friedman’s assertion that Fairfield would have allowed her to return to work
even after discovering the falsified timesheets. All Perley stated was that some people were
slated for layoff months in advance, so it was possible for someone to work
after a decision to lay that person off had been made.
It is also undisputed that
Fairfield was not doing well at the time Friedman’s employment was terminated,
and its condominium group closed later in 2008.
Again, Perley’s deposition testimony does not support Friedman’s claim
that Fairfield’s business reason for terminating her employment was false.
Finally, there is no evidence of
discriminatory animus. Perley’s March
17, 2008, e-mail to Kealer, stating that “[t]ermination may be best at this
point,†does not demonstrate discriminatory animus. Rather, the e-mail just confirms what
Fairfield intended to do once it reached the decision, earlier in March, to
sever Friedman’s employment relationship with the company.
The judgment is affirmed. Fairfield is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
____________________________, P.
J. ____________________________,
J.
BOREN CHAVEZ
Fairfield’s attendance policy provides that “punctual, regular attendance is a
condition of continued employment†and “excessive unexcused absences and
tardiness will not be tolerated.â€
to Friedman, Fairfield’s Marina Del Rey office had a casual atmosphere, which
applied to keeping track of their time.
Thus, Friedman and other employees, including Kealer, routinely worked
through lunch, while putting down on their schedules that they had taken a
lunch break. Friedman also worked every
other Saturday, preparing documents for Kealer’s Monday meetings in San Diego,
and did not record this time on her timesheet.
In fact, Kealer would routinely tell Friedman and other employees to
record themselves as having worked regular hours rather than having their pay
docked if they were unable to work. In
other words, Friedman contends that she was simply following her supervisor’s
instruction to disregard Fairfield’s policies regarding timesheets and hours.
