Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 1 of 25 Page ID #:1367

1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANA AREOPAJA, CV 21-4739-RSWL-JPRx

12 Plaintiff, ORDER re: MOTION FOR 13 v. SUMMARY JUDGMENT [24]

14 MORRISON MANAGEMENT SPECIALISTS, et al., 15

16 Defendants. 17 18 19 Plaintiff Ana Areopaja (“Plaintiff”) brought this 20 Action against Defendants Morrison Management 21 Specialists, Inc. and Compass Group USA, Inc. 22 (collectively, “Defendants”), asserting the following 23 claims for relief: (1) disability discrimination in 24 violation of California Fair Employment and Housing Act 25 (“FEHA”); (2) retaliation in violation of FEHA; 26 (3) failure to prevent discrimination and retaliation in 27 violation of FEHA; (4) failure to accommodate disability 28 in violation of FEHA; (5) failure to engage in the 1 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 2 of 25 Page ID #:1368

1 interactive process in violation of FEHA; (6) violation

2 of the California Family Rights Act (“CFRA”);

3 (7) discharge in violation of Labor Code § 233; and 4 (8) wrongful termination in violation of public policy. 5 Plaintiff also seeks punitive damages. Currently before 6 the Court is Defendants’ Motion for Summary Judgment 7 [24]. 8 Having reviewed all papers submitted pertaining to 9 this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: 10 the Court GRANTS Defendants’ Motion in part and DENIES 11 Defendants’ Motion in part. The Court VACATES the trial 12 date subject to being reset, along with the filing of 13 amended pretrial documents and motion in limine 14 briefing, and ORDERS the Parties to submit a Status 15 Report addressing compliance with Local Rule 16-15.1. 16 I. BACKGROUND 17 A. Factual Background 18 Plaintiff was employed by Defendants as a diet 19 technician from September 14, 2006, until September 21, 20 2020. Defs.’ Statement of Undisputed Facts (“Defs.’ 21 SUF”) ¶ 5, ECF No. 24-2. During her employment, 22 Plaintiff received an employee handbook describing 23 Defendants’ attendance policies. Id. ¶ 31. Employee 24 absences, whether authorized or not, were recorded on a 25 “PTO Tracker,” and Plaintiff’s manager was responsible 26 for updating the PTO Tracker for Plaintiff for the last 27 year of her employment. Id. ¶¶ 31-32. Plaintiff has 28 the opportunity to review her PTO Trackers to ensure 2 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 3 of 25 Page ID #:1369

1 their accuracy. Id. ¶ 83. If a date in the PTO Tracker

2 had a black “X” in the corresponding box, that indicated

3 that Plaintiff was not scheduled to work that date. Id. 4 ¶ 34. If the date had a red “V,” in the corresponding 5 box it indicated that Plaintiff was scheduled to work 6 but was absent and paid vacation time, and if there was 7 a red “S” in the corresponding box then Plaintiff was 8 absent and paid sick leave. Id. ¶ 35. If the “V” was 9 accompanied by a number, it indicated the number of 10 hours the Plaintiff was absent and paid vacation time. 11 Id. ¶ 37. The PTO Tracker notes that employees can only 12 use forty-eight hours of paid sick leave each fiscal 13 year. Id. ¶ 40. 14 Under Defendants’ employee policies outlined in its 15 employee handbook, excused time away from work includes 16 any requested time off from work that is approved by the 17 employee’s manager at least one day in advance, 18 including use of vacation or paid time off. Decl. of 19 Elizabeth Toushin in Supp. of Defs.’ Mot. for Summ. J. 20 at 58 (“Toushin Decl.”), ECF No. 24-3. Excused time 21 also includes time missed excused by federal, state, or 22 local law. Id. Unexcused time away from work is 23 referred to as an “Occurrence.” Id. at 59. An 24 Occurrence includes an absence that doesn’t fall within 25 one of the “excused time away” categories. Id. Failure 26 to follow notice protocol will also result in an 27 occurrence even if the absence is approved. Defs.’s SUF 28 ¶ 21. If an employee incurs seven occurrence points in 3 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 4 of 25 Page ID #:1370

1 a rolling twelve-month period, they will be discharged.

2 Toushin Decl. at 60. Defendants’ policies provide that

3 all absences, lateness, and early-outs must be 4 communicated to the employee’s manager. Id. Failure to 5 follow this procedure will be considered a work rule 6 policy violation rather than an attendance violation and 7 will result in progressive counseling up to and 8 including termination. Id. at 61. 9 Plaintiff was absent from her job on various dates 10 throughout 2020: 11  Plaintiff was absent from work on February 17, 12 2020, because “the clinic was closed that day for a 13 holiday and she had no patients there.” Pl.’s 14 Statement of Genuine Disputes in Opp’n to Defs.’ 15 Mot. for Summ. J. (“Pl.’s SGD”) ¶ 44, ECF No. 25-1.1 16 Plaintiff requested to take the February 17 off on 17 February 14. Id. Defendant contends this violates 18 the notice policies and Plaintiff received one 19 occurrence point for this day. Id. ¶¶ 46, 48. 20  Plaintiff asked for and took March 10, 2020, off 21 because the hot water at her home was not working. 22 Id. ¶¶ 49-50. Defendant contends that Plaintiff’s 23 same-day request violates notice policies and 24 25 1 This document contains a table with Plaintiff’s responses 26 to Defendants’ statement of uncontroverted facts and a table with facts that Plaintiff asserts are disputed. The Court refers to 27 the former table as “Pl.’s SGD” and the latter table as “Pl.’s 28 SDF.” 4 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 5 of 25 Page ID #:1371

1 Plaintiff received one occurrence point for this

2 absence. Id. ¶¶ 51, 53.

3  Plaintiff requested and took March 19, 20, and 23, 4 2020 off work because the clinic where she was 5 scheduled to work those days did not have patients 6 coming in. Id. ¶¶ 54, 56. For those dates, 7 Plaintiff used paid vacation for her absences. Id. 8 ¶ 55. Defendant contends Plaintiff violated notice 9 protocols by asking for this time off only a few 10 days prior, and Plaintiff received one occurrence 11 point. Id. ¶¶ 57, 59. 12  Plaintiff requested leave and was absent from work 13 on April 2 and 3, 2020, for her brother’s 14 gallbladder surgery. Id. ¶¶ 60-61. Plaintiff once 15 again used paid vacation time for this absence. 16 Id. ¶ 62. Plaintiff received one occurrence point 17 for these absences. Id. ¶ 63. 18  Plaintiff also testified at her deposition that she 19 took time off from April 7 to 24, 2020, to 20 quarantine after learning she was exposed to COVID- 21 19. Decl. of Lisa Watanabe-Peagler in Supp. of 22 Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Peagler 23 Decl.”), Ex. 13 (“Pl. Dep.”) 133:14-137:17, ECF 24 No. 25-3. 25  Plaintiff asked to and took off work on May 15, 26 2020, because her brother was having cataract 27 surgery. Pl.’s SGD ¶ 64. She used paid vacation 28 time for this absence as well. Id. ¶ 66. 5 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 6 of 25 Page ID #:1372

1 Plaintiff received another occurrence point for

2 this absence. Id. ¶ 67.

3  Plaintiff was absent on June 1 and 2, 2020, due to 4 severe stomach pains. Id. ¶ 69. She was paid 5 vacation time for this absence. Id. ¶ 71. 6 Defendant contends that Plaintiff did not follow 7 notice protocols because she contacted her manager 8 about her absence on the morning of June 1. Id. 9 ¶ 70. Plaintiff received an occurrence point for 10 this absence. Id. ¶ 72. 11  Plaintiff asked on July 7, 2020, to leave early to 12 pick up her car from the mechanic. Id. ¶ 73. 13 Plaintiff left early and was paid vacation time. 14 Id. ¶ 75. Defendant contends Plaintiff did not 15 follow notice protocols because she requested to 16 leave that same day. Id. ¶ 74. Plaintiff received 17 one half of an occurrence point for this day. Id. 18 ¶ 76. 19  Plaintiff tested positive for COVID-19 around July 20 13 and was on approved medical leave of absence 21 from July 13 to 25, 2020. Id. ¶¶ 7-8; 81. 22  Late on the night of September 17, 2020, Plaintiff 23 asked to take September 18, 2020, off work to see 24 her brother in the hospital. Id. ¶ 77. Plaintiff 25 was paid vacation time for this absence. Plaintiff 26 received one occurrence point for this day. Id. 27 ¶ 81. 28 On September 21, 2020, Plaintiff’s manager provided 6 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 7 of 25 Page ID #:1373

1 Ms. Elizabeth Toushin, the Senior Director of Nutrition

2 at the time, with an Associate Counseling Report (“ACR”)

3 showing that Plaintiff had incurred over seven 4 occurrence points, exceeding the number of allowances 5 under Defendants’ policies. See id. ¶ 89; Decl. of 6 Elizabeth Toushin in Supp. of Defs.’ Mot. for Summ. J. 7 (“Touchin Decl.”) ¶ 2, ECF No. 24-3. Ms. Toushin then 8 made the decision to terminate Plaintiff’s employment. 9 Pl.’s SGD ¶ 90. Defendant contends that Plaintiff 10 accumulated occurrence points when she was absent due to 11 illness but did not have any remaining paid sick leave 12 available, and when she violated notice policies. Id. 13 ¶¶ 46, 51, 57, 62, 70, 74, 96. Plaintiff counters that 14 there is nothing in Defendants’ attendance and sick time 15 policies providing that an employee must be given an 16 occurrence point for taking sick time after using up 17 paid sick time, and that the policy requiring only one 18 days’ notice for an absence controls. Id. ¶¶ 46, 51, 19 57, 96. 20 Shortly after Plaintiff’s manager contacted 21 Ms. Toushin, Plaintiff was terminated from her position 22 and was provided an ACR outlining her occurrence points. 23 Pl.’s Additional Material Facts in Dispute (“Pl.’s SDF”) 24 ¶¶ 55-56, ECF No. 25-1. In this ACR, Plaintiff had 25 incurred a total of two occurrence points for her April 26 7 through 24 absence, when she was quarantining after 27 COVID-19 exposure, and for her July 13 through 25 28 absence, when she was ill with COVID-19. Id. ¶¶ 67, 70. 7 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 8 of 25 Page ID #:1374

1 Ms. Toushin stated that both of these occurrence points

2 were “erroneously added” to the ACR, and Plaintiff’s

3 manager stated that after Plaintiff’s termination, he 4 crossed out the July absence as incurring an occurrence 5 point when he realized it was mistakenly included. 6 Toushin Decl. ¶ 15; Peagler Decl., Ex. 14 (“Webb Dep.”) 7 162:16-163:20. 8 B. Procedural Background 9 Plaintiff filed her Complaint in California state 10 court and Defendants removed [1] to this Court on 11 June 10, 2021. Defendant Morrison moved for summary 12 judgment [24] on December 14, 2023, and Defendant 13 Compass joined [24-7] in bringing this motion. 14 Plaintiff opposed [25] on December 27, 2023, and 15 Defendants replied [26] on January 3, 2023. 16 II. DISCUSSION 17 A. Legal Standard 18 Summary judgment is appropriate when the moving 19 party “shows that there is no genuine dispute as to any 20 material fact and the movant is entitled to judgment as 21 a matter of law.” Fed. R. Civ. P. 56(a). A fact is 22 “material” if it might affect the outcome of the suit, 23 and the dispute is “genuine” if the evidence is such 24 that a reasonable factfinder could return a verdict for 25 the nonmoving party. Anderson v. Liberty Lobby, 477 U.S 26 242, 248 (1986). 27 The moving party bears the initial burden of 28 proving the absence of a genuine dispute of material 8 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 9 of 25 Page ID #:1375

1 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

2 (1986). Where the nonmoving party bears the burden of

3 proof at trial, the moving party need only show “an 4 absence of evidence to support the nonmoving party’s 5 case.” Id. at 325. If the moving party meets its 6 burden, the burden then shifts to the nonmoving party to 7 present “specific facts showing that there is a genuine 8 issue for trial.” Anderson, 477 U.S at 250. The 9 nonmoving party “must show more than the mere existence 10 of a scintilla of evidence . . . or some ‘metaphysical 11 doubt’ as to the material facts at issue.” In re Oracle 12 Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). 13 The evidence, and all reasonable inferences based 14 on underlying facts, must be construed in the light most 15 favorable to the nonmoving party. Scott v. Harris, 550 16 U.S. 372, 378 (2007). In reviewing the record, the 17 court’s function is not to weigh the evidence but only 18 to determine if a genuine issue of material fact exists. 19 Anderson, 477 U.S. at 255. “A district court’s ruling 20 on a motion for summary judgment may only be based on 21 admissible evidence.” In re Oracle Corp. Sec. Litig., 22 627 F.3d at 385. “While the evidence presented at the 23 summary judgment stage does not yet need to be in a form 24 that would be admissible at trial, the proponent must 25 set out facts that it will be able to prove through 26 admissible evidence.” Norse v. City of Santa Cruz, 629 27 F.3d 966, 973 (9th Cir. 2010). 28 /// 9 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 10 of 25 Page ID #:1376

1 B. Analysis

2 1. Evidentiary Objections

3 Plaintiff lodged twenty-five evidentiary objections 4 to evidence relied on in Defendants’ Motion. See 5 generally Pl.’s Objs to Defs.’ Evid. In Supp. of Mot. 6 for Summ. J., ECF No. 25-4. Many of Plaintiff’s 7 objections read as a continuation or reiteration of 8 Plaintiff’s arguments in its Opposition. See generally 9 Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Opp’n”), ECF 10 No. 25. Defendant also lodged an objection to 11 Plaintiff’s proffered opinion on the status of her 12 COVID-19 illness. See Defs.’ Objs to Pl.’s Evid. In 13 Opp’n to Mot. for Summ. J., ECF No. 26-1. The Court has 14 considered the admissibility of the evidence and has not 15 considered facts that are irrelevant or that could not 16 be in a form that would be admissible at trial. See 17 Norse, 629 F.3d at 973. The objections are therefore 18 OVERRULED. 19 2. Claims One, Three, Four, and Five 20 Plaintiff’s claims of disability discrimination, 21 failure to prevent discrimination and retaliation, 22 failure to accommodate, and failure to engage in the 23 interactive process are all premised on Plaintiff being 24 disabled under FEHA. See generally Compl., ECF No. 1-1. 25 Plaintiff contends that she was disabled at the time the 26 relevant events occurred because she suffered from 27 COVID-19. See, e.g., Compl. ¶¶ 23, 35; Opp’n 8:7-23. 28 Plaintiff argues that she was terminated from her 10 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 11 of 25 Page ID #:1377

1 position based on her COVID-19 infection, which she

2 contends is a disability under FEHA. See generally

3 Compl. This Court holds, however, that COVID-19 does 4 not qualify as a disability under FEHA. 5 A federal court exercising diversity jurisdiction, 6 as this Court is here, applies the law of the state in 7 which it sits. Dimidowich v. Bell & Howell, 803 F.2d 8 1473, 1482 (9th Cir. 1986). In doing so, a federal 9 court will follow a state supreme court’s precedent, or 10 alternatively, predict how the supreme court would rule 11 based on intermediate appellate court decisions and 12 decisions by courts in other jurisdictions. See Knapp 13 v. Cardwell, 667 F.2d 1253, 1260 (9th Cir.), cert. 14 denied, 459 U.S. 1055 (1982); Fiorito Bros. v. Fruehauf 15 Corp., 747 F.2d 1309, 1314 (9th Cir. 1984); Lewis v. 16 Anderson, 615 F.2d 778, 781 (9th Cir. 1979), cert. 17 denied, 449 U.S. 869 (1980); see also Takahashi v. 18 Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 19 1980) (federal court may look to well-reasoned decisions 20 from other jurisdictions); Am. Sheet Metal v. Em-Kay 21 Eng’g Co., 478 F. Supp. 809, 813 (E.D. Cal. 1979) 22 (decisions by California Courts of Appeal may be 23 persuasive). At this time, neither the California 24 Supreme Court nor the California courts of appeal have 25 addressed whether a COVID-19 infection is a disability 26 under FEHA. 27 This Court finds the reasoning in Roman v. Hertz 28 Local Edition Corp. instructive. No. 20CV2462-BEN 11 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 12 of 25 Page ID #:1378

1 (AGS), 2022 WL 1541865 (S.D. Cal. May 16, 2022). There,

2 the court first looked to regulations issued by the

3 California Department of Fair Employment and Housing 4 (“DFEH”), which administers FEHA. Id. at *4-5. As 5 administrator of FEHA, DFEH regulations are 6 presumptively valid and binding. See Cal. Gov. Code § 7 12935; Tomlinson v. Qualcomm, 118 Cal. Rptr. 2d 822, 828 8 (2002). 9 In turn, Cal. Code Regs. tit. 2, § 11065(d)(9)(B) 10 excludes from the definition of a FEHA disability those 11 “conditions that are mild, which do not limit a major 12 life activity, as determined on a case-by-case basis.” 13 This regulation defines a mild condition and gives 14 examples. For instance, “mild conditions” are ones 15 which have “little or no residual effects,” like “the 16 common cold . . . seasonal or common influenza . . . 17 muscle aches, soreness . . . [and] non-migraine 18 headaches” as specific examples of ailments that do not 19 qualify as a disability under FEHA. Id. Thus, the 20 court in Roman concluded, “[w]hen it presents with 21 temporary symptoms akin to the common cold or seasonal 22 flu, COVID-19 will fall outside the FEHA definition of 23 ailments considered a disability, pursuant to § 24 11065(d)(9)(B).” 2022 WL 1541865 at *5. Accordingly, 25 there, the court found that the plaintiff’s COVID-19 26 infection did not constitute a disability under FEHA 27 because the undisputed facts showed that Plaintiff’s 28 COVID-19 infection resulted in only mild symptoms and 12 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 13 of 25 Page ID #:1379

1 little to no residual effects. Id.

2 Similarly, here, Plaintiff was unable to work for

3 only a short period of time. Indeed, it is uncontested 4 that Plaintiff was on approved medical leave from 5 July 13, 2020, through July 25, 2020, due to her COVID- 6 19 infection. See Defs.’ SUF ¶ 8; Pl.’s SGD ¶ 8. 7 Moreover, Plaintiff stated that her symptoms consisted 8 of fatigue, headaches, loss of smell, loss of taste, a 9 sore throat and cold, runny nose, and loss of appetite. 10 Pl.’s SGD ¶ 9. Just as in Roman, where a short-term 11 COVID-19 infection with cold or flu-like symptoms was 12 not a disability, here, the duration and symptoms of 13 Plaintiff’s COVID-19 infection do not rise to the level 14 of a disability under FEHA. 15 Plaintiff contends that Roman is distinguishable 16 from the instant Action because there, the plaintiff was 17 ill for four days total and was out of work for only one 18 day, whereas here, Plaintiff was ill and on leave from 19 work from July 13 to 25. Defs.’ SUF ¶ 8; Pl.’s SGD ¶ 8. 20 But regardless, the reasoning in Roman is still 21 applicable here. Plaintiff’s COVID-19 infection spanned 22 approximately twelve days. She testified that she 23 suffered from the previously mentioned symptoms for 24 about four to five days. Opp’n 9:7-9. And Plaintiff 25 even concedes that her conditions were temporary. Id. 26 8:21-23. Thus, Plaintiff’s COVID-19 infection does not 27 constitute a disability under FEHA, as it was neither 28 longer-term nor severe. 13 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 14 of 25 Page ID #:1380

1 Since Plaintiff is not disabled under FEHA, her

2 claims of disability discrimination, failure to prevent

3 discrimination and retaliation, failure to accommodate, 4 and failure to engage in the interactive process fail. 5 Therefore, the Court GRANTS Defendants’ Motion as to 6 these claims. 7 3. Claim Two: Retaliation 8 To establish a prima facie case of retaliation 9 under FEHA, a plaintiff must show (1) she engaged in 10 protected activity, (2) the employer subjected her to an 11 adverse employment action, and (3) a causal link between 12 the protected activity and the employer’s action exists. 13 See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 14 1042 (2005). 15 Plaintiff contends that Defendants “retaliated 16 against Plaintiff based in part on her physical 17 disability and request for an accommodation for such 18 disability.” Compl. ¶¶ 35, 36, 40. Plaintiff again 19 states that her COVID-19 infection constitutes the 20 disability at issue and provides no other basis for the 21 alleged retaliation. Id. ¶ 35. As discussed, 22 Plaintiff’s COVID-19 infection is not a disability under 23 FEHA. Accordingly, Plaintiff did not engage in a 24 protected activity by asking for accommodations, and 25 therefore Defendants did not retaliate against Plaintiff 26 as defined by FEHA. Thus, the Court GRANTS Defendants’ 27 Motion as to Plaintiff’s retaliation claim. 28 /// 14 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 15 of 25 Page ID #:1381

1 4. Claim Six: Violation of the California Family

2 Rights Act

3 The CFRA is a portion of FEHA that “is intended to 4 give employees an opportunity to take leave from work 5 for certain personal or family medical reasons without 6 jeopardizing job security.” Bareno v. San Diego 7 Community College Dist., 7 Cal. App. 5th 546, 558 (2017) 8 (quoting Nelson v. United Techs., 74 Cal. App. 4th 597, 9 606 (1999)). “The CFRA entitles eligible employees to 10 take up to [twelve] weeks of unpaid medical leave during 11 a [twelve]-month period for certain personal or family 12 medical conditions, including care for their children, 13 parents, or spouses or to recover from their own serious 14 health condition.” Neisendorf v. Levi Strauss & Co., 15 143 Cal. App. 4th 509, 516 (2006) (citations omitted). 16 “CFRA’s regulations provide that, for an employee to be 17 entitled to a medical leave for her own serious health 18 condition, the condition must cause her to be unable to 19 work at all or unable to perform one or more of the 20 essential functions of her position.” Id. at 516-17 21 (citation omitted). 22 “An employee who takes CFRA leave is guaranteed 23 that taking leave will not result in a loss of job 24 security or in other adverse employment actions.” Id. 25 (citation omitted). “Violations of the CFRA generally 26 fall into two types of claims: (1) ‘interference’ claims 27 in which an employee alleges that an employer denied or 28 interfered with her substantive rights to protected 15 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 16 of 25 Page ID #:1382

1 medical leave, and (2) ‘retaliation’ claims in which an

2 employee alleges that she suffered an adverse employment

3 action for exercising her right to CFRA leave.” Rogers 4 v. Cnty. of Los Angeles, 198 Cal. App. 4th 480, 487–488 5 (2011) (citations omitted). 6 Plaintiff asserts a retaliation claim under CFRA. 7 Compl. ¶¶ 76-88. To establish a prima facie CFRA 8 retaliation claim, the plaintiff must show: 9 (1) defendant was a CFRA covered employer, (2) plaintiff 10 was eligible for CFRA leave, (3) plaintiff exercised her 11 right to make a qualifying leave, and (4) plaintiff 12 suffered an adverse employment action because she 13 exercised her right to take CFRA leave. Dudley v. Dep’t 14 of Trans., 90 Cal. App. 4th 255, 261 (2001). 15 Plaintiff contends that Defendant terminated her 16 employment in retaliation for taking a day off to see 17 her brother in the hospital on September 18, 2020, and 18 for taking time off after she contracted COVID in July 19 2020. See Compl. ¶¶ 76-88. Defendant counters that 20 (1) Plaintiff was not eligible to take CFRA leave to see 21 her brother in the hospital because at the time of her 22 leave, the definition of a family member covered under 23 CFRA did not include siblings, and (2) Plaintiff has no 24 evidence that the decision to terminate her employment 25 due to her violation of Defendants’ attendance policies 26 was pretextual. Mot. 23:3-7. 27 First, the version of the CFRA effective from 28 January 1, 2020, to December 31, 2020, and therefore 16 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 17 of 25 Page ID #:1383

1 applicable in the instant Action, did not include

2 siblings under the definition of a family member for

3 which an employee could take time off to care for 4 without repercussion. Compare Cal. Gov’t Code § 12945.2 5 (Effective January 1, 2020, to December 31, 2020) with 6 Cal. Gov’t Code § 12945.2 (Effective January 1, 2023). 7 Accordingly, the Court considers only whether Defendant 8 violated the CFRA in relation to Plaintiff’s absence due 9 to her COVID-19 infection. 10 It is undisputed that Defendant Compass approved 11 Plaintiff’s CFRA leave from July 13 to 25. See Plf.’s 12 SGD ¶ 54. Therefore, the first three elements of a CFRA 13 retaliation claim are met, and this claim turns on 14 whether Defendant was terminated due to her CFRA 15 absence. To successfully oppose summary judgment, 16 Plaintiff must show that there is a triable issue of 17 material fact as to whether the CFRA leave taken by 18 Plaintiff was impermissibly considered as a factor in 19 the termination of her employment. Xin Liu v. Amway 20 Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). Plaintiff 21 must establish that the decision to terminate her 22 employment was “not actually independent [of her 23 employer’s purported bias related to medical leave] 24 because [her employer] influenced or was involved in the 25 decision or investigation leading thereto.” Poland v. 26 Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). 27 Plaintiff has raised a genuine issue of material 28 fact as to whether Defendant improperly considered her 17 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 18 of 25 Page ID #:1384

1 July 2020 CFRA leave of absence in deciding to terminate

2 Plaintiff’s employment. Plaintiff’s manager and Ms.

3 Toushin have both stated that Plaintiff was terminated 4 from her position due to excessive absences. See 5 Touchin Decl.; Webb Dep. The parties agree that 6 Plaintiff’s manager provided Ms. Toushin with an ACR 7 outlining Plaintiff’s absences and occurrence points, 8 and that Ms. Toushin then decided to terminate 9 Plaintiff’s employment. See Pl.’s SGD ¶ 89; Touchin 10 Decl. ¶ 2. Moreover, it is undisputed that Plaintiff 11 received a copy of the ACR outlining absences for which 12 she received occurrence points, and that the ACR 13 included her CFRA leave as an “unauthorized absence” for 14 which she received an occurrence point. Pl.’s SDF 15 ¶¶ 55-56, 67, 70. Ms. Toushin and Plaintiff’s manager 16 contend that the occurrence point stemming from 17 Plaintiff’s CFRA leave was “erroneously” added. Toushin 18 Decl. ¶ 15; Webb Dep. 162:16-163:20. Indeed, 19 Plaintiff’s manager even crossed part of that entry out 20 after Plaintiff’s termination. Webb Dep. 162:16-163:20. 21 But such an admission of error does not indicate that 22 Defendants did not consider Plaintiff’s CFRA leave when 23 deciding whether to terminate her employment. 24 Defendants also argue that they could have 25 terminated Plaintiff’s employment without the CFRA leave 26 occurrence point because Defendants’ policy allows for 27 termination after seven occurrence points, and Plaintiff 28 had a total of 9.5 occurrence points. But Plaintiff 18 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 19 of 25 Page ID #:1385

1 incurred seven points at the beginning of June, yet she

2 was not terminated from her position until September.

3 Moreover, Plaintiff’s CFRA leave, taken after she had 4 already incurred seven points, was included in the ACR 5 considered by Ms. Toushin when deciding whether to 6 terminate Plaintiff’s employment. So, while it might be 7 true that Defendants could have terminated Plaintiff 8 from her role three months earlier, the Court’s inquiry 9 is limited to whether Defendants wrongfully considered 10 the CFRA leave when deciding to terminate Plaintiff. 11 And here, there is a genuine issue of material fact as 12 to whether Defendants considered Plaintiff’s CFRA leave 13 when deciding to terminate her employment. Therefore, 14 the Court DENIES Defendants’ Motion for Summary Judgment 15 as to Plaintiff’s sixth claim. 16 5. Claim Seven: Discharge in Violation of Labor 17 Code § 233 – Paid Sick Leave 18 Plaintiff asserts a claim under California Labor 19 Code § 233. This statute prohibits employers from 20 discouraging employees from using their accrued sick 21 leave. See Cal. Lab. Code § 233. Specifically, 22 § 233(c) provides that an employer cannot “deny an 23 employee the right to use sick leave or discharge, 24 threaten to discharge, demote, suspend, or in any manner 25 discriminate against an employee for using, or 26 attempting to exercise the right to use, sick leave to 27 attend to an illness or the preventive care of a family 28 member . . . .” Plaintiff contends that she had 19 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 20 of 25 Page ID #:1386

1 accrued, but unused, protected sick leave and used some

2 of this sick leave for when she suffered severe stomach

3 pains on June 1 and 2, 2020. Compl. ¶ 91. She further 4 argues that Defendants violated Labor Code § 233(c) when 5 it terminated her employment partly due to this absence. 6 Id. 7 Under Defendants’ policies, employees may use up to 8 forty-eight hours of paid sick time from October 1 9 through September 30. The following facts are 10 undisputed: 11  Plaintiff received thirty-two hours of sick pay 12 during the pay period of October 4, 2019, through 13 October 17, 2019. Plaintiff’s SGD ¶ 100 14  Plaintiff received an additional eight hours of 15 sick pay during the pay period of November 11, 16 2019, through November 14, 2019. Id. ¶ 101 17  Plaintiff was paid two hours of sick time for 18 February 13. Id. ¶ 92. 19  Plaintiff was paid six hours of sick time for the 20 week ending in July 2020. Id. ¶ 93. 21  Plaintiff was paid vacation time for her June 1 and 22 2 absences. Id. ¶ 71. 23  Plaintiff’s manager filled out her PTO Tracker on 24 her behalf during the relevant time period. Defs.’ 25 SUF ¶ 5. 26 While it is undisputed that Plaintiff exhausted all 27 forty-eight hours of paid sick time by July 15, 2020, 28 Plaintiff contends that Defendant denied her the right 20 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 21 of 25 Page ID #:1387

1 to use her available sick leave to cover one or more of

2 the eight absences prior to July 15. Opp’n 19:3-21.

3 Plaintiff further argues that her manager gave her 4 occurrences for her absences on the grounds that she had 5 no sick time available, when she did. Id.; see also 6 Toushin Decl., Ex. 6. Specifically, Plaintiff argues 7 that she could have used sick leave for her June 1 and 2 8 absences and therefore she was wrongfully terminated 9 based on her use of sick leave. But by February 13, 10 2020, Plaintiff only had six hours of sick leave 11 remaining. And she was paid those six hours when she 12 was out sick in July 16, 2020. Pl.’s SGD ¶ 93. 13 Moreover, it is undisputed that Plaintiff had the 14 opportunity to review her PTO Tracker to ensure its 15 accuracy. Id. ¶ 83. If Plaintiff had wanted to use her 16 sick time, rather than vacation time, for her June 1 and 17 2 absences, she had the opportunity to raise that with 18 her manager and did not. There is no evidence to show 19 that Defendant denied Plaintiff the right to use sick 20 leave or discharged her for doing so, and Plaintiff has 21 failed to raise a genuine issue of material fact 22 regarding her Section 233 claim. Therefore, the Court 23 GRANTS Defendants’ Motion for Summary Judgment as to 24 Plaintiff’s seventh claim. 25 /// 26 /// 27 /// 28 /// 21 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 22 of 25 Page ID #:1388

1 6. Claim Eight: Wrongful Discharge in Violation of

2 Public Policy

3 Wrongful discharge in violation of public policy is 4 a California common law action providing that when an 5 employer’s discharge of an employee violates fundamental 6 principles of public policy, the discharged employee may 7 maintain a tort action. See Ferretti v. Pfizer Inc., 8 855 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012). Wrongful 9 discharge in violation of public policy is a derivative 10 claim that may be based on the policy underlying the 11 CFRA. See Nelson v. United Techs., 88 Cal. Rptr. 2d 12 239, 245-46 (Cal. App. 1999), as modified (Sept. 22, 13 1999). 14 Here, since the Court finds there is a genuine 15 issue of material fact regarding Plaintiff’s CFRA claim, 16 Plaintiff’s derivative claim also survives summary 17 judgment. The Court therefore DENIES Defendants’ Motion 18 as to Plaintiff’s eighth claim. 19 7. Punitive Damages 20 An award of punitive damages requires a plaintiff 21 to prove “by clear and convincing evidence that [a 22 defendant was] guilty of oppression, fraud, or malice.” 23 Aquino v. Superior Ct., 21 Cal. App. 4th 847, 857 24 (1993); see also Cal. Civ. Code § 3294. Under 25 California law, a corporation may be held liable for 26 punitive damages through the malicious acts or omissions 27 of their employees, but only for the acts or omissions 28 of those employees with sufficient discretion to 22 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 23 of 25 Page ID #:1389

1 determine corporate policy. See Cruz v. HomeBase, 83

2 Cal. App. 4th 160, 167 (2000). Those individuals

3 include the corporation’s officer, director, or a 4 managing agent. Cal. Civ. Code § 3294(b). “The 5 managing agent must be someone who exercises substantial 6 discretionary authority over decisions that ultimately 7 determine corporate policy.” White v. Ultramar, Inc., 8 21 Cal.4th 563, 573 (1999). “The mere ability to hire 9 and fire employees does not render a supervisory 10 employee a managing agent under section 3294(b).” 11 Samson v. Wells Fargo Bank, N.A., No. CV 16-4839-GW- 12 AGRX, 2021 WL 937687, at *6 (C.D. Cal. Jan. 21, 2021). 13 “[T]o demonstrate that an employee is a true managing 14 agent under section 3294, subdivision (b), a plaintiff 15 seeking punitive damages would have to show that the 16 employee exercised substantial discretionary authority 17 over significant aspects of a corporation's business.” 18 White, 21 Cal.4th at 577. 19 Here, Plaintiff’s allegations of misconduct pertain 20 to her manager and Ms. Toushin. There is no evidence 21 that either Plaintiff’s manager or Ms. Toushin have a 22 role in determining Defendants’ corporate policy. While 23 Plaintiff contends that Ms. Toushin’s role qualifies her 24 as a manager, she has not raised a genuine issue of 25 material fact as to whether Ms. Toushin had substantial 26 discretionary authority over significant aspects of 27 Defendants’ businesses. See generally Opp’n. Indeed, 28 Toushin testified that “policies and procedures [were] 23 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 24 of 25 Page ID #:1390

1 already implemented by the company,” and she merely

2 “ensure[d] that they [were] followed and executed

3 appropriately.” Peagler Decl., Ex. 15 (“Toushin Dep.”) 4 34:17-25, ECF No. 25-2. While Plaintiff contends that 5 Toushin was involved in drafting a policy, Toushin 6 clarified that “the one policy that [she] participated 7 in the creation of . . . [was for] the identification 8 and diagnosis of malnutrition for pediatric and adult 9 hospitalized patients.” Pl.’s SGD ¶ 102; Toushin Dep. 10 39:20-40:13. This clearly shows that Ms. Toushin was 11 not so substantially involved in Defendants’ business so 12 as to be considered an officer, director, or managing 13 agent. Accordingly, since none of the individuals 14 involved in Plaintiff’s termination were officers, 15 directors, or managing agents of Defendants, Plaintiff 16 may not seek punitive damages. 17 8. Local Rule 16-15.1 18 First, in light of the following discussion, the 19 Court hereby VACATES the trial date subject to being 20 reset along with the filing of amended pretrial 21 documents and motion in limine briefing. 22 Next, Local Rule 16-15.1 provides that parties in a 23 civil case must participate in alternative dispute 24 resolution procedures specified in the local rules or 25 otherwise approved by the trial judge. L.R. 16-15.1. 26 On June 10, 2021, the Court provided the Parties with 27 notice of this rule. Notice to Parties of Court- 28 Directed ADR Program, ECF No. 8. Then, on September 2, 24 Case 2:21-cv-04739-RSWL-JPR Document 38 Filed 03/14/23 Page 25 of 25 Page ID #:1391

1 2021, the Court ordered the Parties to a private

2 mediator with the mediation to be held no later than

3 eleven days before trial. Order/Referral to ADR 4 Procedure No. 3, ECF No. 13. The Court hereby ORDERS 5 the Parties to submit a Status Report addressing whether 6 the Parties have attempted to resolve this dispute in 7 mediation or have scheduled mediation for a future date. 8 This status report must be filed by March 29, 2023. 9 In the event that the Parties have already 10 attempted to resolve this dispute in mediation and were 11 unable to do so, the Court strongly urges the Parties to 12 consider further mediation on the remaining claims. If 13 the Parties decide to further mediate, they must file a 14 Status Report updating the Court on the results of the 15 mediation within thirty (30) days of its conclusion. 16 III. CONCLUSION 17 Based on the foregoing, the Court GRANTS 18 Defendants’ motion in part and DENIES Defendants’ Motion 19 in part. The Court VACATES the trial date subject to 20 being reset, along with the filing of amended pretrial 21 documents and motion in limine briefing, and ORDERS the 22 Parties to submit a Status Report addressing compliance 23 with Local Rule 16-15.1. 24 IT IS SO ORDERED. 25 26 DATED: March 14, 2023 _____/S/ RONALD S.W. LEW______

HONORABLE RONALD S.W. LEW

27 Senior U.S. District Judge 28 25