1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARTHA DEA LA ROSA, an individual, Case No.: 3:21-cv-1630-W-BGS

12 Plaintiff,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART DEFENDANT

COSTCO WHOLESALE

14 COSTCO WHOLESALE

CORPORATION’S MOTION FOR

CORPORATION, a Washington 15 SUMMARY JUDGEMENT OR, IN Corporation; and DOES 1 through 25,

THE ALTERNATIVE, PARTIAL

16 inclusive,

SUMMARY JUDGEMENT [DOC. 18]

17 Defendants. 18 19 Pending before the Court is Defendant Costco Wholesale Corporation’s motion for 20 summary judgement or, in the alternative, partial summary judgement. [Doc. 18.] 21 The Court decides the motions on the papers, and without oral argument. See 22 Civ.L.R. 7.1.d.1. For the reasons that follow, GRANTS IN PART and DENIES IN 23 PART Defendant’s motion [Doc. 18]. 24 25 I. FACTUAL BACKGROUND 26 A. De La Rosa’s Beginning of Employment at Costco 27 De La Rosa began her employment with Costco Wholesale Corporation (“Costco”) 28 in August 2001 as a Quality Control Line Technician at Costco’s 910 packing facility in 1 San Diego. (Deposition of Johnny Vergara (“Vergara Dep.”), Exhibit G to Declaration of 2 Christopher L. Garcia (“Garcia” Decl.”) [Doc. 18-1], ¶ 8.) As a Quality Control Line 3 Technician, De La Rosa’s essential job duties included monitoring the production lines, 4 deciphering codes for products, checking the work of other quality control employees, 5 checking the cleanliness of machines, entering information into a computer, and checking 6 the weight of products. (Deposition of Martha De La Rosa (“De La Rosa Dep.”) at 7 22:22-23:8.) De La Rosa reported to production supervisor Erick Rosas. (Joint 8 Statement of Disputed and Undisputed Facts [Doc. 20], #13.) Rosas reported to quality 9 control manager Johnny Vergara. (Id., #14.) Vergara reported to Eric Foster. (Id., #15.) 10 Foster reported to Kenneth Eakes. (Id., #15.) 11 B. De La Rosa’s Leaves Of Absence 12 De La Rosa requested, and was approved for intermittent leave from March 8, 13 2017 to September 8, 2017. (Id., #6.) De La Rosa requested, and was approved for 14 continuous leave from November 2, 2017 to November 7, 2017. (Id., #10.) De La Rosa 15 requested, and was approved for continuous leave from November 13, 2017 to December 16 8, 2017, which was in turn extended to January 25, 2018, and then further extended to 17 May 1, 2018. (Id., #11.) 18 C. De La Rosa’s Work Restrictions and Medical Accommodations 19 In 2007, De La Rosa reported a carpal tunnel injury while working with a 20 machine. (De La Rosa Dep. at 66:6-67:3.) De La Rosa’s doctor-imposed work 21 restrictions of not lifting more than 10 pounds and no repetitive work. (De La 22 Rosa Dep. at 67:5-10.) Following the injury, De La Rosa was never reprimanded 23 or disciplined for falling behind in her work. (De La Rosa Dep. at 68:15-69:19.) 24 In July 2017, De La Rosa presented a doctor’s note indicating she had work 25 restrictions precluding her from lifting, pulling, or pushing in excess of 10 pounds. (Joint 26 Statement of Disputed and Undisputed Facts, #7.) Costco held an in-person job 27 assessment review meeting with De La Rosa to determine if she could perform the 28 essential functions of her Quality Control Line Technician position in light of her 1 restrictions, and if not, to explore whether any reasonable accommodations were 2 available to enable her to do so. (Id., #8.) Both Costco and De La Rosa agreed that De 3 La Rosa could perform all of her position’s essential functions and that no 4 accommodation was necessary for her to do so. (Foster Decl., ¶ 2; Ex. C.) As to the non- 5 essential functions of her position, De La Rosa agreed she would “self monitor to ensure 6 [she was] working within [her] restrictions and request assistance when needed.” (Id., 7 #9.) 8 D. 2019 Medical Leave 9 On January 9, 2019, De La Rosa began experiencing severe pain in her abdomen 10 shortly after the start of her shift. (De La Rosa Dep. at 217:17-18.) De La Rosa 11 immediately approached Rosas informing him of the pain and requesting to be excused 12 from her shift. (Id. at 217:11-20.) Rosas refused to let her leave. (Id., 217:17-18.) De 13 La Rosa then requested that she be placed on a “lighter” production line which Rosas also 14 refused. (De La Rosa Dep. at 31:3-8.) At some point, Vergara and Rosas also spoke 15 with Angela Cruz (“Cruz”), another production supervisor, regarding De La Rosa’s 16 request to leave. (De La Rosa Dep. at 29:15-29:25; De La Rosa Decl., ¶ 2.) They held a 17 meeting in Cruz’s office while De La Rosa waited outside. (De La Rosa Dep. at 30:1-3.) 18 After the meeting, De La Rosa was told that she had to continue working. (Id. at 30:11- 19 18.) Two hours after her first request, De La Rosa approached Vergara again, informing 20 him that she was in a lot of pain and again asked to leave early or be placed on a lighter 21 production line. (De La Rosa Dep. at 30:25-32:2; 150:21-24.) Vergara told De La Rosa 22 that he could not do anything and instead admonished her for always being sick. (De La 23 Rosa Dep. at 30:19-22; 150:21-151:4.) When her pain continued, De La Rosa again 24 approached Rosas, stating she was in pain and needed help, but Rosas refused her pleas. 25 (De La Rosa Dep. at 149:17-19.) Before the end of the shift, two of De La Rosa’s 26 coworkers offered to switch production lines with her; however, Rosas refused the 27 request despite rotation being a regular occasion on the production lines. (De La Rosa 28 Dep. 31:23- 32:8; Vergara Dep. at 25:24-26:7.) That same day, De La Rosa went on a 1 medical leave of absence after having surgery for a hernia. (Joint Statement of Disputed 2 and Undisputed Facts, #25.) Costco accommodated De La Rosa’s absence until she 3 returned in April 2019. (De La Rosa Dep. at p. 32:22-33:17.) When De La Rosa 4 returned to work, she did not submit any doctor’s note or other documentation indicating 5 she needed any accommodations. (Id. at 247:7-25.) 6 De La Rosa returned to work on April 9, 2019. She was placed on two of the 7 heavier production lines and experienced pain. She asked to change to a lighter 8 production line but her request weas denied. She continued working until April 24, 2019, 9 when she went back to the hospital and stayed there for several days. (Id. at 40:1-14.) 10 Her leave was extended to May 2, 2019, then again to June 1, 2019, then again to June 11 17, 2019, and finally to July 10, 2019. (Id. at 174:11-177:20.) 12 E. Costco’s Investigation 13 On February 20, 2019, Erin Sieglock, Costco’s Ancillary Operations Manager, 14 contacted Celeste Parker regarding a claim for benefits that had been submitted by De La 15 Rosa. (Parker Decl. ¶ 3.) Ms. Parker contacted David Pehau, the Optical Manager of the 16 Costco warehouse located in Chula Vista, California, to learn more information about the 17 matter. (Id.) Mr. Pehau informed Ms. Parker that on January 5, 2019, De La Rosa’s 18 husband attempted to order eyeglasses for himself at the Optical Department of a Costco 19 warehouse in Chula Vista, under De La Rosa’s benefits plan through Costco. (Id.) Mr. 20 Pehau further informed Ms. Parker that De La Rosa’s husband submitted a lens 21 prescription from a Dr. Mascareno supposedly located in Chula Vista, but the 22 prescription did not have an exam or expiration date listed. (Id.) Mr. Pehau further 23 stated that the Optical Department called Dr. Mascareno’s office to obtain the missing 24 information, but the provider instead stated it had no record of De La Rosa’s spouse ever 25 getting an eye exam at its office. (Id.) Mr. Pehau further relayed that the provider stated 26 that while the prescription form was the provider’s, it appeared the name of the patient 27 had been altered. (Id.) 28 1 Upon receiving this information, Ms. Parker investigated the conduct of De La 2 Rosa and her husband. (Parker Decl. ¶ 4.) She concluded that: 3 • On November 20, 2016, De La Rosa had an eye exam at the Costco optical 4 department located at a Costco warehouse on H Street in Chula Vista. 5 (Parker Decl., ¶ 4; De La Rosa Dep. at 77:7-78:17.) 6 • On January 25, 2017, De La Rosa presented an optical prescription for 7 herself issued by a doctor in Mexico, with a very different lens strength 8 compared to that prescribed by the Costco optician two months earlier. De 9 La Rosa presented this prescription to a different Costco warehouse located 10 on Broadway in Chula Vista. (Parker Decl., ¶ 4; De La Rosa Dep. at 77:7- 11 78:17.) 12 • On March 28, 2018, De La Rosa presented the Costco warehouse on 13 Broadway in Chula Vista with a different optical prescription for herself 14 issued by a doctor in Mexico, which again reflected a very different lens 15 strength. (Parker Decl., ¶ 4; De La Rosa Dep. 79:23-80:10.) 16 • Also on March 28, 2018, De La Rosa presented another optical prescription 17 from the same doctor in Mexico for her son, Ryan. (Parker Decl., ¶ 4.) 18 Ryan had also previously received a Costco eye exam, and the prescription 19 from the doctor in Mexico was dramatically stronger. (Id.) 20 • On March 20, 2019, De La Rosa ordered another pair of glasses for her son 21 using the prescription from the doctor in Mexico. (Id.) 22

23 On April 18, 2019, Ms. Parker called De La Rosa to question her about these 24 events. (Parker Decl., ¶ 5; De La Rosa Dep. 82:19-24; 84:18-85:14; 87:3-17.) De La 25 Rosa denied any wrongdoing and said she would talk to her husband and call back. 26 (Parker Decl., ¶ 5.) 27 De La Rosa did not call back, and on April 29, 2019, Ms. Parker called her again 28 and left a voicemail message. (Parker Decl., ¶¶ 5-6.) The next day, De La Rosa returned 1 the call and claimed that another doctor in Mexico had written the prescription for her 2 husband using Dr. Mascareno’s form. (Parker Decl., ¶ 6.) De La Rosa was not able to 3 provide the phone number or name of the provider in Mexico. (Id.) With regard to the 4 various prescriptions with varying lens strengths, De La Rosa told Ms. Parker that the 5 eyeglasses she obtained using the Costco optician’s prescriptions did not work, so she 6 instead received an exam with a non-Costco provider. (Parker Decl., ¶ 6; De La Rosa 7 Dep. 74:18-77:6.) After completing this interview, Ms. Parker reported what she had 8 learned to a Costco Personnel Manager – Kyle Hofman – at Costco’s home office. 9 (Parker Decl., ¶ 7; Declaration of Kyle Hofman in Support of Motion for Summary 10 Judgment or, in the Alternative, Partial Summary Judgment (“Hofman Decl.”), ¶ 6, Ex. 11 D.) Mr. Hofman, in turn, conferred with Ancillary Operations Manager Erin Sieglock to 12 understand the ramifications of using Costco’s vision benefits to obtain fake and/or 13 forged prescriptions. (Hofman Decl., ¶ 8.) Ms. Sieglock informed Mr. Hofman that 14 filling fraudulent prescriptions may jeopardize the dispensing license of the Costco 15 optician who filled the prescription. (Hofman Decl., ¶ 8.) Mr. Hofman concluded that 16 De La Rosa’s conduct constituted terminable offenses, and that Human Resources would 17 support a decision to terminate De La Rosa’s employment as a result. (Hofman Decl., ¶ 18 9.) Mr. Hofman reported the findings of the investigation and his conclusions to Eric 19 Foster, the General Manager of CWI West, where De La Rosa worked. (Hofman Decl., ¶ 20 10; Foster Decl., ¶ 6.) Mr. Foster consulted with Assistant Vice President Noe 21 Betancourt regarding De La Rosa’s conduct. (Foster Decl., ¶ 7.) Mr. Betancourt told Mr. 22 Foster that he believed termination was appropriate because De La Rosa’s conduct put 23 Costco and the optician’s license at risk, and this was a zero tolerance in his eyes. (Foster 24 Decl., ¶ 7.) Mr. Foster then made the decision to terminate De La Rosa’s employment. 25 (Foster Decl., ¶ 8.) On July 10, 2019, Mr. Foster met with De La Rosa, explained to De 26 La Rosa the investigation that was conducted, the conclusion reached that she engaged in 27 benefits fraud, and that her employment was being terminated as a result. (Hofman 28 Decl., ¶ 12; Foster Decl., ¶ 11.) 1 2 II. LEGAL STANDARD 3 Summary judgment is appropriate under Rule 56(c) where the moving party 4 demonstrates the absence of a genuine issue of material fact and entitlement to judgment 5 as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 6 (1986). A fact is material when, under the governing substantive law, it could affect the 7 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 8 dispute about a material fact is genuine if “the evidence is such that a reasonable jury 9 could return a verdict for the nonmoving party.” Id. at 248. “Disputes over irrelevant or 10 unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. 11 v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 12 A party seeking summary judgment always bears the initial burden of establishing 13 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving 14 party can satisfy this burden in two ways: (1) by presenting evidence that negates an 15 essential element of the nonmoving party’s case; or (2) by demonstrating that the 16 nonmoving party failed to make a showing sufficient to establish an element essential to 17 that party’s case on which that party will bear the burden of proof at trial. Id. at 322–23. 18 If the moving party fails to discharge this initial burden, the court must deny summary 19 judgment and need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress 20 & Co., 398 U.S. 144, 159–60 (1970). 21 If the moving party meets this initial burden, the nonmoving party cannot avoid 22 summary judgment merely by demonstrating “that there is some metaphysical doubt as to 23 the material facts.” In re Citric Acid Litig., 191 F.3d 1090, 1094 (9th Cir. 1999) (citing 24 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton 25 Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 26 U.S. at 252) (“The mere existence of a scintilla of evidence in support of the nonmoving 27 party’s position is not sufficient.”). Rather, the nonmoving party must “go beyond the 28 pleadings and by her own affidavits, or by ‘the depositions, answers to interrogatories, 1 and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for 2 trial.’” Ford Motor Credit Co. v. Daugherty, 279 Fed. Appx. 500, 501 (9th Cir. 2008) 3 (citing Celotex, 477 U.S. at 324). At this stage, the court must view all inferences drawn 4 from the underlying facts in the light most favorable to the nonmoving party. See 5 Matsushita, 475 U.S. at 587. 6 7 III. DISCUSSION 8 A. Discrimination and Retaliation Claims 9 The first issue raised in Defendant’s motion is De La Rosa’s discrimination and 10 retaliation claims under the Fair Employment and Housing Act (“FEHA”). De La Rosa’s 11 first cause of action contends that her protected status (disability) was a motivating factor 12 in Defendants’ termination of her (Compl. ¶ 29) and her fourth cause of action contends 13 that her termination was taken in retaliation for exercising her rights under FEHA 14 (Compl. ¶ 56). The parties address the two causes of action together; the Court will do 15 the same. 16 When a plaintiff alleges retaliatory employment termination under the FEHA and 17 the defendant seeks summary judgment, California follows the burden-shifting analysis 18 of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to determine whether there 19 are triable issues of fact for resolution by a jury. See Loggins v. Kaiser Permanente, 151 20 Cal. App. 4th 1102, 1113 (2007). And so too where a plaintiff alleges discrimination 21 under the FEHA. See Caldwell v. Paramount Unified School District, 41 Cal. App. 4th 22 189, 195 (1995). 23 Under the McDonnell Douglas framework, the plaintiff carries the initial burden of 24 establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. 25 If established, the prima facie case “results in a ‘presumption that the [defendant] 26 unlawfully discriminated against the [plaintiff].’” Lessard v. Applied Risk Management, 27 307 F.3d 1020, 1025 (9th Cir. 2002) (quoting Texas Department of Community Affairs v. 28 Burdine, 450 U.S. 248, 254 (1981)). The burden then shifts to the defendant to articulate 1 a legitimate, non-discriminatory reason for the employment action being challenged. See 2 McDonnell Douglas, 411 U.S. at 802. If the defendant carries this burden, plaintiff must 3 then demonstrate that the defendant's asserted reason is pretextual. McDonnell Douglas, 4 411 U.S. at 802, 804. 5 1. Whether De La Rosa Has Established a Prima Facie Case Under 6 the McDonnell Douglas Framework 7 De La Rosa contends that Costco concedes that she has established a prima facie 8 case of discrimination and retaliation for her first and fourth causes of action. (Opp. to 9 MSJ at 15.) Because the analysis in Costco’s motion begins with discussion of the 10 legitimate business justification and because Costco does not dispute this in their reply 11 papers, the Court agrees. 12 Even if Costco did not concede this point, the Court would find that De La Rosa 13 has met her burden at this step. The amount of proof necessary to establish a prima facie 14 case at the summary judgment stage is minimal and need not even rise to a 15 preponderance of the evidence. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 16 1994). Rather, De La Rosa need only adduce proof that “gives rise to an inference of 17 unlawful discrimination.” Id. This requires “very little” evidence. Caldwell, 41 Cal. 18 App. 4th at 197 (quoting Sischo-Nownejad v. Merced Community College District, 934 19 F.2d 1104, 1111 (9th Cir. 1991)). De La Rosa has satisfied her burden by showing that: 20 (1) she was a member of a protected class (disabled), (2) she was performing competently 21 in the position she held, (3) she was terminated, and (4) she was terminated very close in 22 time to an extended medical leave for her disability. See Guz v. Bechtel National, 24 23 Cal.4th 317, 355 (2000). 24 2. Costco’s Legitimate, Non-Discriminatory Explanation 25 Since De La Rosa has established a prima facie case, Costco must articulate a 26 legitimate, non-discriminatory reason for its adverse employment action. Burdine, 450 27 U.S. at 255. Costco’s proffered legitimate, non-discriminatory reason for the termination 28 is that it determined that De La Rosa had engaged in fraud and violated Costco policy. 1 (See MSJ at 12.) Undisputed facts establish that Costco was alerted to potential fraud. 2 Costco investigated that potential fraud and came to the reasonable conclusion that De La 3 Rosa was engaging in the fraud. Based on the results of the investigation, Costco 4 determined De La Rosa had violated Costco policy and terminated her. Given this 5 evidence, the Court concludes that Costco has articulated a legitimate, non-discriminatory 6 reason for De La Rosa’s termination. 7 3. Whether De La Rosa Has Raised a Genuine Issue of Fact 8 Regarding Pretext 9 Because Costco has adduced evidence that it had a legitimate reason for 10 terminating De La Rosa, she must, to survive summary judgment, demonstrate that 11 Costco’s articulated reason is a pretext for unlawful discrimination by “‘either directly 12 persuading the court that a discriminatory reason more likely motivated the employer or 13 indirectly by showing that the employer's proffered explanation is unworthy of 14 credence.’” Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting 15 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). When relying on 16 indirect, circumstantial evidence to prove pretext, a plaintiff must produce specific and 17 substantial evidence “that tends to show that the employer's proffered motives were not 18 the actual motives because they are inconsistent or otherwise not believable.” Chuang, 19 225 F.3d at 1127. The “evidence must be both specific and substantial to overcome the 20 legitimate reasons[.]” Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 21 (9th Cir. 2002), as amended (July 18, 2002). 22 The California Supreme Court has held that “evidence of dishonest reasons, 23 considered together with the elements of the prima facie case, may permit a finding of 24 prohibited bias.” Guz, 24 Cal.4th at 380; see also Morgan, 88 Cal. App. 4th at 75 (“An 25 employee in this situation cannot simply show the employer's decision was wrong, 26 mistaken, or unwise. Rather, the employee must demonstrate such weaknesses, 27 implausibilities, inconsistencies, incoherencies, or contradictions in the employer's 28 proffered legitimate reasons for its action that a reasonable factfinder could rationally 1 find them unworthy of credence, ... and hence infer that the employer did not act for the 2 [... asserted] non-discriminatory reasons”) (quoting Horn v. Cushman & Wakefield, Inc., 3 72 Cal. App. 4th 798, 807 (1999) (internal quotations omitted)). 4 De La Rosa points to several different aspects of the investigation and termination 5 decision to argue that there is a genuine issue of material fact regarding the truth of 6 Costco’s articulated non-discriminatory reason. 7 a) Costco’s termination approval process 8 De La Rosa first argues that Costco “failed to adhere to the company’s policy that 9 controls terminating an employee of De La Rosa’s tenure” and that this “points to 10 unlawful discriminatory animus as the true reason for Foster’s decision to terminate.” 11 (Opp. at 16.) Specifically, De La Rosa argues that Foster did not receive approval for De 12 La Rosa’s termination from an Executive Vice President, as required by Costco’s 13 Employee Agreement. 14 Costco does not dispute that Costco’s policy states that De La Rosa’s termination 15 should have been reviewed by an Executive Vice President or higher and does not dispute 16 that no executive vice president approved De La Rosa’s termination. (See Joint 17 Statement of Disputed and Undisputed Facts, #116-119.) This failure does not raise 18 doubts regarding Costco’s articulated reason. Foster informed Kenneth Eakes, an 19 Assistant Vice President at Costco, and Richard Chavez, a Senior Vice President at 20 Costco, of his decision to terminate De La Rosa and they both approved the termination. 21 (Foster Decl., ¶ 8.) 22 There is no evidence that Foster’s actions were motivated by any reasons 23 inconsistent with Costco’s articulated reason for terminating De La Rosa. De Le Rosa, 24 who has the burden at this stage, has not put forth any other evidence that suggests 25 Foster’s actions were anything more than an oversight. Both Eakes and Chavez received 26 the email with Parker’s findings, which contains nothing inconsistent with Costco’s 27 articulated reason. De La Rosa has not even shown that Foster willfully chose not to seek 28 approval from an Executive Vice President with knowledge that he was violating policy. 1 Costco’s articulated reason for the termination is that it determined that De La Rosa had 2 engaged in fraud and violated company policy. A mistake or oversight, without more, 3 does not suggest any inconsistency or implausibility in that articulated reason. 4 De La Cruz also argues that Hofman’s recommendation to Foster was based on the 5 conclusion that the prescriptions were fraudulent “despite the investigation not finding 6 the prescriptions to actually be fraudulent.” (Opp. at 17 (emphasis in original).) Costco 7 is not required to definitively prove that the prescriptions were “actually” fraudulent. See 8 Hersant, 57 Cal. App. 4th at 1005 (honest, but mistaken belief that grounds for discharge 9 exist precludes finding of discrimination). De La Rosa has not put forth any evidence 10 that raises a genuine issue of material fact as to whether Costco had a good faith belief 11 that the prescriptions were fraudulent. 12 Finally, De La Rosa argues that Foster’s interactions with Betancourt and Eakes 13 suggest that Costco’s reason is pretext for discriminatory animus. This argument recites 14 facts surrounding Foster’s decision to terminate De La Rosa but cites to no specific or 15 substantive evidence that casts doubt on Costco’s articulated reason. It is undisputed that 16 Foster had personal knowledge of De La Rosa’s medical leaves throughout Costco’s 17 investigation, but this simple fact is not evidence of pretext. And it does not transform 18 other facts—like Foster’s decision to consult Betancourt or his conversation with 19 Eakes—into evidence of pretext. The burden on De La Rosa at this stage requires her to 20 put forth specific evidence on Foster’s actions that demonstrate Costco’s proffered reason 21 is implausible. De La Rosa has not done so. The only specific evidence as to the content 22 of these interactions are the emails sent by Foster—and nothing in those emails suggest 23 that Costco’s articulated reason has inconsistencies or should not be believed. 24 b) Parker’s Investigation 25 De La Rosa argues that Parker “had personal knowledge of De La Rosa’s medical 26 leave” and that this knowledge “influenced Costco’s underlying actions and ultimately 27 lead to an incomplete investigation that was used to terminate De La Rosa.” (Opp. at 18.) 28 This argument fails at both levels. 1 At the first level, De La Rosa fails to put forth evidence that Parker’s knowledge 2 influenced her investigation. The paramount evidence on Ms. Parker’s investigation— 3 her April 30, 2019 email to Foster—suggests that her investigation was focused on the 4 suspected fraudulent prescriptions. At the very end of the email, Parker mentions that De 5 La Rosa “has been on a LOA” but De La Rosa points to nothing else that suggests her 6 knowledge of this fact affected her investigation in any way. Indeed, the rest of the email 7 and the rest of the evidence demonstrates her focus on the suspected fraudulent 8 prescription activity. 9 Parker was not the individual who initiated the investigation, she came to no 10 conclusions regarding her findings, and she made no recommendations to anyone 11 regarding any action that should be taken as to De La Rosa or her employment. And she 12 points to no evidence of how the influence occurred or where it manifested in the 13 investigation. In other words, De La Rosa does not show that Parker’s knowledge of her 14 medical leave affected the investigation in any way. De La Rosa asks this Court to infer 15 “influence” from the fact that Parker had “knowledge” but offers nothing to support that 16 connection. The mere fact that Parker had knowledge of De La Rosa’s medical leave is 17 not evidence that this knowledge influenced Costco’s termination decision. 18 At the second level, De La Rosa’s criticism of Parker’s investigation as “wholly 19 lacking” and “incomplete” does not raise a genuine dispute that Costco’s articulated 20 reason is inconsistent or not believable. De La Rosa argues that Parker “relie[d] solely on 21 a single conversation with Pehau to set the foundational facts of the investigation, did 22 “months of no work[,]” and failed to complete previous investigations “fully and 23 competently.” (Opp. at 19.) Courts analyzing this kind of argument have found that it is 24 not enough to show that the defendant’s course of action was imperfect or had missteps. 25 See Hooks v. Works, 14 Fed. Appx. 769, 772 (9th Cir. 2001) (plaintiff had not presented 26 substantial evidence that the investigation was a “sham”); Hersant v. Dep’t of Social 27 Svcs., 57 Cal. App. 4th 997, 1005 (1997) (plaintiff “raised triable issues concerning 28 1 whether the actions of Department were reasonable and well considered” but not as to 2 whether the “stated reasons were implausible, or inconsistent or baseless”). 3 Parker’s investigation began when she was contacted by Ancillary Operations 4 Manager Erin Sieglock regarding an unusual claim for benefits that had been submitted 5 by De La Rosa. (Parker Decl., ¶ 3.) Parker then contacted Pehau to discuss his findings. 6 She received a significant amount of information from Pehau, including his findings 7 regarding De La Rosa’s family members’ prescription history, noted discrepancies with 8 the strength of De La Rosa’s various prescriptions, and the results of his call with Dr. 9 Mascareno’s office about the allegedly fraudulent prescription. (Parker Decl., ¶ 4.) 10 Parker relied on Pehau’s findings, as shown by her email to Foster and her deposition 11 testimony. Pehau conveyed the piece of information most crucial to Costco’s articulated 12 reason: that Dr. Mascareno’s office stated that it had no record of De La Rosa’s spouse 13 ever getting an eye exam at its office and “stated that the prescription that was submitted 14 seemed to have been altered.” (Exhibit D to Hofman Decl.) De La Rosa has put forth no 15 evidence that Parker had any reason to doubt these findings, or any other information 16 received from Pehau. 17 Parker continued her investigation by calling De La Rosa to ask her about the 18 underlying prescription and prescription history, following up with De La Rosa when she 19 did not call her back as indicated, and then reporting what she had learned to Hofman. 20 De La Rosa is correct that Parker did not contact De La Rosa until almost two months 21 after her last call with Pehau and that no further investigation between this time. (Parker 22 Dep. at 54:10-17; Parker Decl., ¶ 5.) But the evidence shows that this extended period of 23 time was due to an instruction from Costco’s director of personnel to not contact De La 24 Rosa while she was on medical leave. (Parker Dep. at 54:18-24.) 25 All in all, the evidence related to Parker and her investigation does not tend to 26 show that Costco’s articulated motives were inconsistent or not believable. See Chuang, 27 225 F.3d at 1127. 28 c) Foster’s role 1 As to Foster, De La Rosa argues a “cat’s paw theory,” alleging that Foster “used 2 the investigation [into the prescription issue] to push [AVP Kenneth] Eakes to terminate 3 De La Rosa.” (Opp. at 18.) De La Rosa proffers no specific or substantial evidence to 4 support this theory. 5 It is undisputed that Foster had knowledge of each of De La Rosa’s medical leaves. 6 (Foster Dep. at 26:25-27:14; 28:7-10; 72:20-25; 77:5-15.) But De La Rosa fails to show 7 that this knowledge affected his actions in any way. Foster sent an email to Eakes that 8 reads “FYI” with a copy of Hofman’s conclusions below it. (Opp. Ex. O.) Informing 9 does not amount to pushing. Like De La Rosa’s argument as to Parker, this argument 10 jumps from knowledge to motivation without evidence to support the leap. 11 All in all, De La Rosa has not put forth evidence that persuades the Court “that a 12 discriminatory reason more likely motivated the employer” or that Costco’s articulated 13 reasons “is unworthy of credence.” Chuang, 225 F.3d at 1124 (9th Cir. 2000) (internal 14 quotations omitted). De La Rosa has thus failed to satisfy her burden at stage three of the 15 McDonnell Douglas test. The Court therefore GRANTS Costco’s motion to dismiss the 16 first and fourth causes of action. 17 B. Derivative Wrongful Termination and Failure to Prevent Claims 18 De La Rosa’s failure to prevent claim (seventh cause of action) and her wrongful 19 termination claim (the eighth cause of action) are premised on the same facts as her 20 discrimination and retaliation claims. Because those claims fail for the reasons above, 21 these claims likewise fail. The Court therefore GRANTS Costco’s motion to dismiss the 22 seventh and eighth causes of action. 23 C. Costco’s Failure to Accommodate in Violation of FEHA 24 De LA Rosa’s third cause of action is for failure to accommodate in violation of 25 FEHA. Costco argues that this claim fails. De La Rosa argues that she a has established 26 a prima facie case for failure to accommodate. (Opp. at 19.) The Court agrees with De 27 La Rosa. 28 1 To prevail on this claim, De La Rosa bears the burden to prove that (1) she had a 2 disability covered by the FEHA, (2) she was a qualified individual (i.e., she could 3 perform the essential functions of her job with or without reasonable accommodation), 4 and (3) Costco failed to reasonably accommodate her. See Nealy v. City of Santa 5 Monica, 234 Cal. App. 4th 359, 373 (2015). As to the incident on January 9, 2019 and 6 the incident on April 9, 2019, the Court finds that De La Rosa has put forth evidence to 7 raise a genuine dispute of material fact for each of these elements. 8 At the time of both incidents, De La Rosa had a disability covered by the FEHA 9 and was a qualified individual. De La Rosa testified that when she arrived at work on 10 January 9, 2019, she immediately notified Eric Rosas that she was feeling pain and would 11 like to be excused from her shift. (De La Rosa Dep. at 217:17- 18.) She was denied this 12 accommodation. De La Rosa then approached Vergara and requested that she be put on a 13 lighter production line, but again was refused. (De La Rosa Dep. at 31:3-8.) De La Rosa 14 asked again if she could be allowed to leave or alternatively be placed on a different 15 production line but was refused each time. (De La Rosa Dep. at 30:25-32:2; 150:21-24.) 16 De La Rosa’s testimony raises a genuine issue of material fact as to whether Costco 17 failed to reasonably accommodate her on January 9, 2019. 18 De La Rosa testified that when she returned to work on April 9, 2019 following her 19 hernia surgery, she again notified Costco that she was experiencing pain and would like 20 to be placed on a lighter production line as the one that she had placed on was 21 particularly heavy. (De La Rosa Dep. at 146:15-23; 152:20-23; 215:20-23.) According 22 to De La Rosa, Costco ignored her pleas for reasonable accommodation until De La Rosa 23 was placed back on leave on April 24, 2019. (De La Rosa Dep. at 146:19-24.) This 24 evidence demonstrates a genuine dispute of material fact as to whether Costco failed to 25 reasonably accommodate her in April 2019. 26 For the reasons states above, Costco’s motion to dismiss the third cause of action is 27 DENIED. 28 1 D. Failure to Engage in a Good Faith Interactive Process in Violation of 2 FEHA 3 Costco also seeks summary judgement on De La Rosa’s second cause of action, 4 violation of FEHA for failure to engage in a good faith interactive process. (MTD at 14- 5 15.) 6 Under the FEHA, it is unlawful for an employer to “fail to engage in a timely, 7 good faith, interactive process with the employee ... to determine effective reasonable 8 accommodations, if any, in response to a request for reasonable accommodation by an 9 employee or applicant with a known physical or mental disability or known medical 10 condition.” CAL. GOV. CODE § 12940(n). The duty to engage in the interactive process is 11 generally “triggered upon notification of the disability and the desire for 12 accommodation.” Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002) (citations 13 omitted). An “employer has a mandatory obligation to engage in the interactive process 14 and that this obligation is triggered either by the employee's request for accommodation 15 or by the employer's recognition of the need for accommodation.” Barnett v. U.S. Air, 16 Inc., 228 F.3d 1105, 1112 (9th Cir. 2000), rev'd on other grounds, 535 U.S. 391, 122 17 S.Ct. 1516, 152 L.Ed.2d 589 (2002). 18 As to Costco’s actions on January 9, 2019 and in April 2019, the Court finds that 19 De La Rosa has put forth evidence to raise a genuine dispute of material fact regarding 20 whether Costco failed to participate in a good faith interactive process. In January 2019 21 and April 2019, De La Rosa had a disability covered by the FEHA. De La Rosa testified 22 that when she arrived at work on January 9, 2019, she immediately notified Eric Rosas 23 that she was feeling pain and would like to be excused from her shift. (De La Rosa Dep. 24 at 217:17- 18.) Costco denied this requested accommodation without participating in an 25 interactive process. De La Rosa then approached Vergara and requested that she be put 26 on a lighter production line; Costco refused this request as well and did not participate in 27 an interactive process. (De La Rosa Dep. at 31:3-8.) De La Rosa asked again if she 28 could be allowed to leave or alternatively be placed on a different production line but was 1 refused each time without an interactive process. (De La Rosa Dep. at 30:25-32:2; 2 150:21-24.) De La Rosa’s testimony raises a genuine issue of material fact as to whether 3 Costco failed to engage in a good faith interactive process on January 9, 2019. 4 De La Rosa testified that when she returned to work on April 9, 2019 following her 5 hernia surgery, she again notified Costco that she was experiencing pain and would like 6 to be placed on a lighter production line as the one that she had placed on was 7 particularly heavy. (De La Rosa Dep. at 146:15-23; 152:20-23; 215:20-23.) According 8 to De La Rosa, Costco did not engage in an interactive process in response to her 9 requested accommodations, ignoring her requests until De La Rosa was placed back on 10 leave on April 24, 2019. (De La Rosa Dep. at 146:19-24.) This evidence demonstrates a 11 genuine dispute of material fact as to whether Costco failed to engage in a good faith 12 interactive process in April 2019. 13 Costco’s motion to dismiss De La Rosa’s second cause of action is DENIED. 14 E. De La Rosa’s CFRA Claims 15 Defendant moves to dismiss De La Rosa’s fifth cause of action, violation of the 16 California Family Rights Act (“CFRA”), on the grounds that Costco granted every leave 17 of absence De La Rosa ever requested. (See MTD at 15.) De La Rosa opposes, arguing 18 that Costco interfered with De La Rosa’s CFRA leave. (Opp. at 22.) De La Rosa’s 19 argument merely recites the same facts upon which she relies for her FEHA causes of 20 action, but these facts do not raise a genuine dispute as to whether Costco interfered with 21 her rights under the CFRA. Defendant is correct that De La Rosa testified that she was 22 granted every leave of absence she ever requested, and De La Rosa does not put forth 23 facts that disputes this testimony. Defendant’s motion as to the fifth cause of action is 24 GRANTED. 25 Defendant also moves to dismiss De La Rosa’s sixth cause of action for retaliation 26 in violation of the CFRA. This cause of action is premised on the same facts as her 27 retaliation claims under FEHA and the requisite legal elements are similar. To succeed 28 on a claim for retaliation in violation of the CFRA, De La Rosa must show: (1) Costco 1 was covered by the CFRA; (2) De La Rosa was eligible to take CFRA leave; (3) De La 2 Rosa exercised her right to take leave for a qualifying CFRA purpose; and (4) De La 3 Rosa suffered an adverse employment action, because of the exercise of her right to 4 CFRA leave. Soria v. Univision Radio Los Angeles, Inc., 5 Cal. App. 5th 570, 604 5 (2016). As explained above, De La Rosa has not established genuine issues of fact 6 concerning whether Costco retaliated against her for taking medical leave. The same 7 reasoning applies here. Costco put forth a legitimate business reason for terminating De 8 La Rosa and she has not shown that Costco’s proffered reason is inconsistent or 9 implausible. Defendant’s motion to dismiss the sixth cause of action is GRANTED. 10 F. De La Rosa’s Wage Statement Claim 11 De La Rosa’s tenth cause of action alleges a violation of California Labor Code § 12 226 on the basis that her wage statements failed to accurately show the hours she worked 13 and the pay she received. (Compl., ¶ 101.) Costco moves to dismiss this cause of action. 14 (MTD at 16.) Costco argues that De La Rosa cannot succeed on this claim becuase the 15 wage statements provided to De La Rosa “accurately reflect the hours that were actually 16 used to pay her.” (MTD at 16-17.) De La Rosa does not dispute that her wage statements 17 do, in fact, accurately reflect the hours she was paid (see Opp. at 23), but this fact is not 18 decisive. 19 Section 226 requires an employer to accompany “each payment of wages” with 20 “an accurate itemized statement” specifying, among other details, the “gross wages 21 earned” and “net wages earned.” (Cal. Lab. Code § 226, subd. (a).) As the California 22 Supreme Court held, section 226 requires that wage statements must contain all amounts 23 earned, not just those amounts actually paid. Naranjo v. Spectrum Sec. Servs., Inc., 13 24 Cal. 5th 93, 119 (2022); see also Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 25 1308 (2018) (“Wage statements should include the hours worked at each rate and the 26 wages earned.”) (emphasis in original). 27 Section 226.7 further requires an employer to pay “one additional hour of pay” for 28 each day in which a lawful break is not provided. (Cal. Lab. Code § 226.7, subd. (c).) If 1 an employer does not provide a lawful break, both that additional credited hour of work 2 and the corresponding premium pay owed must be reported on the wage statement. (Id.; 3 see also Naranjo, 13 Cal. 5th at 120.) And if the employer does not report those items on 4 the wage statement, the employer deprives the employee of information needed to 5 evaluate whether the payment is correct and therefore injures the employee under the 6 terms of the statute. Naranjo, 13 Cal. 5th at 120. 7 Here, there is evidence that Costco failed to provide De La Rosa with a lawful 8 break at certain times. De La Rosa testified that she was told to clock out as though she 9 was taking a meal break but continued to work. (DLR I, 46:7-47:6.) De La Rosa’s wage 10 statements do not reflect payment of these premiums upon her termination. (Opp., Ex. 11 OO.) There is, therefore, a genuine dispute as to whether De La Rosa’s pay statements 12 contained all amounts earned, as required by Section 226. 13 Defendant’s motion to dismiss the tenth cause of action is DENIED. 14 G. Punitive Damages 15 De La Rosa’s complaint includes punitive damages as a prayer for relief for her 16 first, second, third, fourth, fifth, sixth, seventh, and eight causes of action. (Compl. at p. 17 19.) Costco moves to dismiss punitive damages as a prayer for relief because none of the 18 individuals at issue is an officer, director, or managing agent of Costco and, at any rate, 19 De La Rosa has not established malice or oppression by clear and convincing evidence. 20 (MTD at 18.) De La Rosa argues that Parker, Foster, Eakes, and Chavez are all agents of 21 Costco and that there is a genuine dispute as to whether these individuals’ actions 22 constitute malice or oppression. 23 Punitive damages are recoverable “where it is proven by clear and convincing 24 evidence that the defendant has been guilty of oppression, fraud, or malice.” CAL. CIV. 25 CODE § 3294. When the defendant is a corporation, “the evidence must demonstrate an 26 officer, director or managing agent of Defendant committed, authorized or ratified an act 27 of malice, oppression or fraud to create a genuine issue of material fact on punitive 28 damages.” Yeager v. Corr. Corp. of Am., 944 F. Supp. 2d 913, 931 (E.D. Cal. 2013). 1 || Punitive damages are recoverable for FEHA violations. Commodore Home Systems, Inc. 2 Superior Ct., 32 Cal. 3d 211, 221 (1982). 3 Because the Court grants summary judgement on the claims for disability 4 || discrimination, retaliation, failure to prevent discrimination, violation of the CFRA, and 5 || wrongful termination, the issue of punitive damages on those claims are moot. As to the 6 claims for failure to engage in a good faith interactive process (second cause of action) 7 || and for failure to accommodate (third cause of action), the Court DENIES summary 8 judgement on De La Rosa’s prayer for punitive damages as premature. See Martinez v. 9 || Costco Wholesale Corp., 481 F. Supp. 3d 1076, 1104 (S.D. Cal. 2020); McInteer v. 10 ||Ashley Distrib. Servs., Ltd., 40 F. Supp. 3d 1269, 1295 (C.D. Cal. 2014). 11 12 ||IV. CONCLUSION & ORDER 13 For the reasons set forth above, the Court GRANTS IN PART and DENIES IN 14 PART Defendant’s motion for summary judgement [Doc. 18]. The Court GRANTS 15 ||summary judgement on the first, fourth, fifth, sixth, seventh, eighth, and tenth and 16 || DENIES summary judgement on the remaining claims. 17 IT IS SO ORDERED. 18 |}Dated: November 23, 2022 \ 19 ihe Lon 20 Hn. 1 omas J. Whelan 1 United States District Judge 22 23 24 25 26 27 28 J]