1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

GLORIA RODRIGUEZ,

7 Case No. 16-cv-04413-SK Plaintiff, 8 v. ORDER REGARDING DEFENDANT'S 9 MOTION FOR SUMMARY COMCAST INC., et al., JUDGMENT ON REMAND 10 Defendants. Regarding Docket No. 29 11

12 Defendant Comcast Communications Management LLC (“Comcast”) filed a motion for 13 summary judgment. The Court addressed and granted summary judgment on some, but not all, of 14 the issues raised. On remand, the Court now considers the remaining issues raised in Comcast’s 15 motion for summary judgment. Having carefully considered the parties’ papers, relevant legal 16 authority, and the record in the case, the Court hereby GRANTS IN PART and DENIES IN PART 17 Comcast’s motion for the reasons set forth below. 18 BACKGROUND 19 A. Plaintiff’s Employment at Comcast. 20 Plaintiff worked as a customer service representative for Comcast until Comcast 21 terminated her employment on December 15, 2015. Plaintiff suffered a brain hemorrhage in 22 March of 2015 and was on leave from work until the termination of her employment. She 23 contends that Comcast terminated her employment in violation of the California Fair Housing and 24 Employment Act (“FEHA”), California Government Code § 12940, et seq. In opposition to 25 Comcast’s pending motion for summary judgment, Plaintiff argues that she was requesting, as an 26 accommodation, additional leave from work until April 19, 2016 and that Comcast’s failure to do 27 so constitutes discrimination based on her disability in violation of FEHA. Plaintiff also brings 1 failure to engage in the interactive process, for retaliation for requesting leave as an 2 accommodation, and failure to prevent discrimination, as well as a claim for wrongful termination 3 in violation of public policy. 4 Under its personal leave policy, Comcast provided non-disabled employees up to six 5 months of personal leave. (Dkt. No. 29-1, Ex. B to Declaration of Mark S. Spring (Deposition of 6 Sarah Stofferahn) at 39:11-19.) However, Comcast made individual determinations as to whether 7 the law required additional time off as accommodations under the ADA. (Id. at 39:11-40:1; Dkt. 8 No. 30-5, Ex. H to Declaration of Daniel Ray Bacon (Deposition of Sophia Lowenberg) at 128:1- 9 21.) 10 In early March 2015, Plaintiff suffered a brain hemorrhage. (Dkt. No. 29-1, Ex. A to 11 Spring Decl. (Deposition of Gloria Rodriguez) at 89:23-93:9.) She was on leave from Comcast 12 from March 2, 2015, until her termination in December 2015. (Dkt. No. 29-1, Ex. A at 117:8-13.) 13 Comcast provided her the first leave after her hemorrhage from March 2 through May 22, 2015 14 under the Family Medical Leave Act. (Dkt. No. 29-1, Ex. A at 118:8-12; Dkt. No. 29-4 15 (Declaration of Ezra Moore), ¶4, Ex.1.) 16 On July 1, 2015, Plaintiff’s doctor, Frank Tortorice, completed a medical certification 17 stating that Plaintiff was limited in her walking and standing for long periods of time, had blurred 18 and double vision, and was limited in her driving, reading, and lifting. (Dkt. No. 29-3 19 (Declaration of Sarah Stofferahn), Ex. 4.) He further stated that “due to blurred vision/double 20 vision being temporarily blind in her L eye, [Plaintiff] has an unsteady gait, cannot read without 21 getting dizzy, and cannot operate a motor vehicle.” (Id.) Tortorice said that Plaintiff had an 22 expected recovery time of 6 months. (Id.) In response to a question about the reasonable 23 accommodations that would enable Plaintiff to perform her essential job functions, he responded 24 that Plaintiff “is not able to work. Recovery time for my patient’s physical impairment is 25 important.” (Id.) In response to this certification, Comcast provided Plaintiff with a medical leave 26 of absence from May 23 through August 18, 2015. (Dkt. No. 29-1, Ex. A at 117:15-17, 163:22- 27 164:2, Ex. 17 to Rodriguez Depo; Dkt. No. 29-4 (Moore Decl.), Ex. 1.) 1 Plaintiff’s medical condition. (Dkt. No. 29-3, Ex. 4.) Tortorice stated that Plaintiff had the same 2 symptoms and limitations as stated on the prior medical certification. (Id.) He stated that her 3 expected recovery time was six months from May 23, 2015 and provided October 19, 2015 as her 4 estimated date to return to work. (Id.) Comcast extended Plaintiff’s leave through October 19, 5 2015. (Dkt. No. 29-2, Ex. A to Declaration of Marianne C. Koepf (Deposition of Sophia 6 Lowenberg) at 36:12-37:23, 77:21-79:13, Ex. 17 to Lowenberg Depo.) 7 Plaintiff did not return to work and on November 12, 2015, and she submitted another 8 medical certification from Tortorice dated November 9, 2015. (Dkt. No. 29-3, Ex. 4.) Tortorice 9 stated that Plaintiff was limited in her walking and standing for long periods of time, had blurred 10 and double vision, and was limited in her driving, reading, lifting, and speaking. (Dkt. No. 29-3, 11 Ex. 4.) He further stated that “due to blurred vision/double vision being temporarily blind in her L 12 eye, [Plaintiff] has an unsteady gait, cannot drive, read for long periods of time, and stand for long 13 periods of time.” (Id.) He stated that her expected recovery time was six months from October 14 19, 2015 and that the expected date she could return to work was April 19, 2016. (Id.) 15 Although the expected return to work dates were estimates or predictions, Tortorice did not 16 believe Plaintiff’s leave was indefinite. (Dkt. No. 30-4, Ex. F to Bacon Decl. (Tortorice 17 Deposition) at 17:19-18:2.) Tortorice explained that, with a serious issue such as Plaintiff’s, with 18 brain surgery, a patient must have adequate time to heal. Patients often heal at different rates and 19 need additional time. (Dkt. No. 30-4, Ex. F at 18:4-10.) With respect to the April 19, 2016 20 expected return to work date, Tortorice testified: 21 When we make these evaluations, they’re at a certain point in time, and my best judgment at that time was that it would be possible that 22 by April, we would have a better sense that she should be able to return to work -- without being certain in a complex brain injury. 23 (Dkt. No. 30-4, Ex. F at 20:19-24.) However, Tortorice did not believe that Plaintiff was 24 permanently disabled. He believed she would be able to heal and work again. (Dkt. No. 30-4, Ex. 25 F at 19:8-22.) As of November 30, 2015, Tortorice had a question about whether Plaintiff may be 26 permanently disabled, but he had not assessed her with or concluded that she had a permanent 27 disability. (Dkt. No. 30-4, Ex. F at 83:1-9.) He testified that Plaintiff’s condition was particularly 1 difficult to estimate when she could return to work. (Dkt. No. 30-4, Ex. F at 76:1-6.) 2 In early November 2015, Lowenberg and Stofferahn discussed Plaintiff’s situation and 3 request for additional leave. (Dkt. No. 29-3, ¶ 8.) Lowenberg recommended terminating 4 Plaintiff’s employment because of the indefinite nature of her need for leave. (Id.) On November 5 16, 2015, Lowenberg mistakenly told Plaintiff that her job was terminated. (Dkt. No. 29-1, Ex. B 6 at 92:12-94:15); Dkt. No. 30-1 (Declaration of Gloria Rodriguez), ¶ 20.) On December 2, 2015, 7 Lowenberg corrected that mistake and explained to Plaintiff that her employment had not been 8 terminated. (Dkt. No. 30-1, ¶ 21.) 9 On December 7, 2015, Comcast requested additional information from Tortorice, and 10 asked if Plaintiff could return to work in an alternative sedentary position. (Dkt. No. 29-3, Ex. 3.) 11 Tortorice responded that, at that time, Plaintiff was not able to return to work, even in an 12 alternative, sedentary position and that even with reasonable accommodation, she remained totally 13 disabled. (Id.) 14 Stofferahn then determined that Plaintiff would not be able to return on or near the April 15 27, 2016, date provided by Tortorice and that Plaintiff was actually seeking indefinite leave. 16 Stofferahn testified that she thought Plaintiff was seeking an indefinite leave because this was the 17 longest extension that Plaintiff had requested and Stofferahn thought that Tortorice did not know 18 with reasonable certainty when Plaintiff would be able to return to work without a reasonable 19 accommodation. (Dkt. No. 29-1, Ex. B at 42:5-43-14, 44:15-45:8.) Stofferahn also was aware 20 that Plaintiff had applied for and was approved for long term disability benefits through 21 September of 2016, which also informed Stofferahn’s belief that Plaintiff would not be able to 22 return to work in April of 2016. (Dkt. No. 29-1, Ex. B at 45:4-8.) 23 Stofferahn then made the decision to terminate Plaintiff’s employment, effective December 24 16, 2015. (Dkt. No. 29-3, ¶ 11; Dkt. No. 29-2, Ex. A at 121:9-14; Dkt. No. 30-1, ¶ 24, Ex. I.) In 25 the letter notifying Plaintiff of the termination of her employment, Comcast informed Plaintiff that 26 she was eligible for rehire if she became able to work. (Dkt. No. 29-1, Ex. A at Ex. 5 to 27 Rodriguez Depo.) 1 was not well enough to work: 2 I was not able to stand up the same way. I -- I was not able to talk clearly. Half of my -- my left side of my face was paralyze [sic]. So 3 the doctor said approximately it will take six month [sic] because he wanted to do another MRI to see how I was healing inside. 4 . . . 5 It was still paralyzed. And my eye, my left eye, I was seeing -- I was 6 still seeing double. Not like when I first got my surgery, but I was still -- I was healing. 7 . . . 8 . . . I had a lot of problem concentrating [sic]. It was my brain, it was 9 -- I try hard. 10 (Dkt. No. 29-1, Ex. A at 26:18-25, 27:14-19, 27:25-28:1, 28:15-16.) 11 Dr. Matthew Liss was employed by or was a consultant for Comcast. (Dkt. No. 30-5, Ex. 12 H at 39:7-20.) Liss participated in compliance review calls with Comcast. (Dkt. No. 30-5, Ex. H 13 at 43:1-4.) In these calls, Comcast would review next steps, including whether Comcast should 14 terminate employment or return the employee to work. (Dkt. No. 30-5, Ex. H at 40:8-24.) Liss 15 reviewed documentation and determined from a doctor’s perspective whether additional 16 clarification was needed to make any recommendation. (Dkt. No. 30-5, Ex. H at 51:1-9.) At the 17 time of her deposition, Lowenberg did not have an independent recollection, apart from looking at 18 the documents, of what was discussed on the compliance call in November 2015 to discuss 19 Plaintiff. (Dkt. No. 30-5, Ex. H at 51:10-15.) Lowenberg did not recall having any conversations 20 with Liss regarding Plaintiff, but Lowenburg stated that there could have been a conversation. 21 (Dkt. No. 30-5, Ex. H at 51:22-52:14.) 22 B. Post Termination. 23 On January 28, 2016, Dr. Michael T. Lawton signed a form stating that Plaintiff could 24 return to work without any restrictions on March 28, 2016. (Dkt. No. 30-1, Ex. D.) 25 In August 2016, Plaintiff’s counsel informed Comcast that she had recovered and was able 26 to return to work. (Dkt. No. 29-1 (Spring Decl.), ¶ 7.) Comcast then offered Plaintiff the 27 opportunity to return to work at her same position at the same pay rate. (Dkt. No. 30-1, ¶ 24, Ex. 1 No. 29-1, Ex. A at 89:4-10.) Nor did Plaintiff ever discuss this offer letter with any doctors. (Dkt. 2 No. 29-1, Ex. A at 89:11-12.) Plaintiff testified that she declined the offer because she did not 3 trust Comcast after it fired her. (Dkt. No. 29-1, Ex. A at 50:22-51:7, 52:10-15.) She also testified 4 that she did not believe that she was medically allowed to work at that point. (Dkt. No. 29-1, Ex. 5 A at 88:1-4.) In early 2017, Plaintiff was diagnosed with and treated for severe depressive 6 disorder. (Dkt. No. 30-5, Ex. I to Bacon Decl. (Deposition of Juan Rodriguez, Psy. D.) at 52:16- 7 22, Ex. J (Deposition of Elizabeth Crockett-Chaney, Psy. D.) at 31:11-14.)1 Plaintiff testified that 8 the termination of her employment was emotionally traumatic and that she “was too stressed and 9 depressed to look for other work until February 2017.” (Dkt. No. 30-1 (Rodriguez Decl.), ¶ 31.) 10 When Plaintiff testified at her deposition on January 24, 2017, she stated that she had not 11 applied for any jobs since she was terminated on December 16, 2015. (Dkt. No. 29-1, Ex. A at 12 47:7-9.) She further testified that she was still on disability, that her brain was better but still not 13 at one hundred percent, and that she was scared emotionally to go back to work. (Dkt. No. 29-1, 14 Ex. A at 47:19-24.) Plaintiff testified at her deposition on January 24, 2017 that she did not have 15 any medical release from a doctor clearing her to work. (Dkt. No. 29-1, Ex. A at 87:19-25.) 16 However, on October 14, 2017, Plaintiff signed a declaration in which she stated that she was able 17 to physically work at Comcast and perform all of her essential job functions without any 18 accommodation by early January 2016. (Dkt. No. 30-1, ¶ 30.) She clarified that she had forgotten 19 at her deposition about the release from Lawton signed on January 28, 2016, stating that she could 20 return to work without restrictions by March 28, 2020. (Dkt. No. 30-1, ¶ 28, Ex. D.) 21 As of January 30, 2017, when she was deposed, Stofferahn testified that she had not seen 22 any medical documentation since November 2015 regarding Plaintiff’s ability to work. (Dkt. No. 23 29-1, Ex. B 46:17-47:2.) Additionally, as of January 30, 2017, Stofferahn thought that Plaintiff 24 was still approved for long term disability and was still receiving social security disability as of 25 January 30, 2017. (Dkt. No. 29-1, Ex. B 47:3-6.) 26 1 In her supplemental brief, Plaintiff cites to the entire deposition transcripts of Drs. 27 Rodriguez and Crockett-Chaney, which were over eighty pages combined. It is not the Court’s 1 2 C. Plaintiff’s Social Security Proceedings. 3 On September 11, 2015, Plaintiff applied for social security disability insurance (“SSDI”) 4 payments. (Dkt. No. 30-1, ¶ 11; see also Dkt. No. 42 (Plaintiff’s documents from the Social 5 Security Administration (“SSA”)) at p. 8.) Plaintiff represented to the SSA that she was disabled 6 due to brain cavernous malformation, double vision, headaches, slow speech, memory loss, 7 numbness on the left side of her face, unsteady gate, impaired vision in the left eye, and a hernia. 8 (Dkt. No. 40 (Declaration of Marianne C. Koepf attaching Plaintiff’s SSDI Records), Ex. D at 9 SSA 006.) She asserted to the SSA that she was unable to work starting on March 2, 2015. (Dkt. 10 No. 40, Ex. D at SSA 006-7.) 11 On December 9, 2015, Plaintiff was evaluated by Dr. Thanh Quoc Tran for a neurology 12 disability evaluation for the Social Security Administration. (Dkt. No. 40, Ex. D at SSA 026-028.) 13 Plaintiff appears to have reported to Dr. Tran that, after her operation in April 2015, she continued 14 to have poor balance, daily headaches, poor memory, and left face numbness and that she was not 15 able to continue to work. (Dkt. No. 40, Ex. D at SSA 026, 028.) During a psychological disability 16 evaluation for SSDI benefits conducted on December 14, 2015, Plaintiff reported that she 17 continued to experience headaches, dizziness, decreased balance, numbness on the left side of her 18 head and face, and decreased ability to produce tears from her left eye. (Dkt. No. 40, Ex. D at 19 SSA 021.) She further told the evaluator that she was unable to return to work due to her physical 20 health problems and cognitive symptoms. (Dkt. No. 40, Ex. D at SSA 022.) The psychological 21 disability evaluator also noted that she reported forgetfulness and decreased concentration since 22 her brain surgery. (Dkt. No. 40, Ex. D at SSA 024.) 23 The SSA determined in January 2016 that Plaintiff was disabled as of March 2, 2015 and 24 that medical improvement was not expected. (Dkt. No. 40, Ex. D. at SSA 018-19; see also Dkt. 25 No. 29-1, Ex. A at 133:14-18, Ex. 11 to Rodriguez Depo.) Plaintiff learned that the SSA approved 26 her application for disability benefits on February 21, 2016. (Dkt. No. 30-1 at ¶ 11; see also Dkt. 27 No. 42 at pp. 12-16.) The letter informing her of the SSA’s determination that she is disabled 1 that fact that her health had improved if that occurred. (Dkt. No. 42 at p. 13.) As of January 24, 2 2017, Plaintiff was continuing to receive monthly SSDI checks, and she understood that she would 3 continue to receive those checks for the foreseeable future. (Dkt. No. 29-1, Ex. A at 134:1-9.) 4 In her declaration signed on October 14, 2017, Plaintiff represented that was still receiving 5 checks from the SSA. (Dkt. No. 30-1, ¶ 34.) Comcast argues that Plaintiff is continuing to 6 receive SSDI benefits from the SSA. (Dkt. No. 29-2 (Koepf Decl.), Ex. B.) Plaintiff confirmed at 7 the hearing on Comcast’s motion for summary judgment held on November 6, 2017, that she was 8 still receiving monthly SSDI payments and that she has not informed the SSA about any 9 improvement in her disabling conditions. 10 D. Punitive Damages. 11 Non-expert discovery closed on May 18, 2017. (Dkt. No. 15.) After the deadline had 12 passed, on May 26, 2017, Plaintiff requested leave to conduct a deposition of Comcast pursuant to 13 Federal Rule of Civil Procedure 30(b)(6) regarding Comcast’s and Comcast’s related entities’ 14 policies and procedures regarding steps taken to accommodate disabled employees, the process for 15 engaging in the interactive process, policies and practices for evaluating whether Comcast could 16 accommodate a disabled employee, and steps taken to prevent disability discrimination. (Dkt. No. 17 23.) The Court denied this request because Plaintiff did not explain how or why those general 18 policies and procedures are relevant to the litigation in light of the fact that the two people who 19 made the decision regarding Plaintiff’s employment had already been deposed. (Dkt. No. 25.) 20 Additionally, the scope of the deposition subpoena was overbroad. (Id.) 21 In her brief filed in opposition to Comcast’s motion for summary judgment, Plaintiff 22 requested permission to conduct a deposition of a Comcast corporate official pursuant to Federal 23 Rule of Civil Procedure 30(b)(6) “in order to make her case for punitive damages.” (Dkt. No. 31 24 at p. 25.) 25 ANALYSIS 26 A. Applicable Legal Standard on Motion for Summary Judgment. 27 A principal purpose of the summary judgment procedure is to identify and dispose of 1 judgment is proper “if the movant shows that there is no genuine dispute as to any material fact 2 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In considering 3 a motion for summary judgment, the court may not weigh the evidence or make credibility 4 determinations, and is required to draw all inferences in a light most favorable to the non-moving 5 party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). 6 The party moving for summary judgment bears the initial burden of identifying those 7 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue 8 of material fact. Celotex, 477 U.S. at 323. An issue of fact is “genuine” only if there is sufficient 9 evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, 10 Inc., 477 U.S. 242, 248-49 (1986). A fact is “material” if it may affect the outcome of the case. 11 Id. at 248. If the party moving for summary judgment does not have the ultimate burden of 12 persuasion at trial, that party must produce evidence which either negates an essential element of 13 the non-moving party’s claims or that party must show that the non-moving party does not have 14 enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan 15 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). 16 Once the moving party meets his or her initial burden, the non-moving party must go 17 beyond the pleadings and, by its own evidence, set forth specific facts showing that there is a 18 genuine issue for trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 19 2000). In order to make this showing, the non-moving party must “identify with reasonable 20 particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 21 1279 (9th Cir. 1996). In addition, the party seeking to establish a genuine issue of material fact 22 must take care to adequately point a court to the evidence precluding summary judgment because 23 a court is “not required to comb the record to find some reason to deny a motion for summary 24 judgment.” Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) 25 (citation omitted). If the non-moving party fails to point to evidence precluding summary 26 judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. 27 /// B. Comcast’s Motion for Summary Judgment. 1 1. Whether Plaintiff Can Demonstrate She Was Qualified to Perform the 2 Essential Functions of Her Job. 3 Plaintiff alleges claims for disability discrimination, failure to provide a reasonable 4 accommodation, and failure to engage in the interactive process under FEHA. Each claim requires 5 Plaintiff to demonstrate that she was qualified to perform the essential functions of her job, with or 6 without reasonable accommodations. See Green v. State, 42 Cal. 4th 254, 264 (2007) (“FEHA 7 and the [Americans with Disabilities Act (“ADA”)] both limit their protective scope to those 8 employees with a disability who can perform the essential duties of the employment position with 9 reasonable accommodation.”); see also Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. 10 App. 4th 952 (2008) (requiring Plaintiff to prove a reasonable accommodation existed that would 11 enable plaintiff to perform her job in order to defeat summary judgment on all three types of 12 claims under FEHA). 13 The Court initially found that Plaintiff was estopped from arguing that she was she is 14 qualified and could perform the essential duties of her job under FEHA in light of the statements 15 she made to obtain SSDI benefits. The Ninth Circuit reversed the Court on this decision. 16 Accordingly, the Court will consider whether, in light of the evidence in the record viewed in the 17 light most favorable to Plaintiff, there is a material question of fact regarding Plaintiff’s ability to 18 work. Comcast argues that Plaintiff’s request for an extension of leave to April 2016 was a 19 request for indefinite leave, which Comcast is not required to provide. Upon review of the 20 evidence, the Court finds that a reasonable juror could conclude that Plaintiff’s request for 21 additional leave was just that – a request for additional time off, but a finite one. 22 Under the FEHA, “a finite leave can be a reasonable accommodation . . ., provided it is 23 likely that at the end of the leave, the employee would be able to perform his or her duties.” 24 Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226 (1999). Nevertheless, “[r]easonable 25 accommodation does not require the employer to wait indefinitely for an employee’s medical 26 condition to be corrected.” Id. (citation omitted). Comcast argues that because it was not certain 27 that Plaintiff would be able to return to work on April 19, 2016, her request to further extend her 1 the light most favorable to Plaintiff, it is far from clear that her request for leave until mid-April 2 was a request for indefinite leave. Although Tortorice, her doctor, was not certain that Plaintiff 3 would be able to return to work on April 19, 2016, he did not believe that Plaintiff’s leave was 4 indefinite. (Dkt. No. 30-4, Ex. F at 17:19-18.) Nor did he believe that Plaintiff was permanently 5 disabled, as he believed she would be able to heal and work again. (Dkt. No. 30-4, Ex. F at 19:8- 6 22.) Although Tortorice may not have been one hundred percent certain, his opinion that Plaintiff 7 would be able to return to work on April 19, 2016 was his “best judgment at that time.” (Dkt. No. 8 30-4, Ex. F at 20:19-24.) As the Ninth Circuit recently noted, “the mere fact that a medical leave 9 has been repeatedly extended does not necessarily establish that it would continue indefinitely.” 10 Ruiz v. ParadigmWorks Grp., Inc., 787 F. App’x 384, 386 (9th Cir. 2019) (quoting Nadaf-Rahrov 11 v. Neiman Marcus Grp., Inc., 166 Cal.App.4th 952, 988 (2008)). 12 Notably, Comcast does not argue that extending her leave until mid-April, and thus 13 granting her thirteen months in total, was unreasonable. It appears that it was the prospect of 14 Plaintiff requesting additional time off beyond mid-April which motivated Comcast to terminate 15 her in December 2015. However, Comcast had alternatives which may have been reasonable. It 16 could have requested clarification regarding Tortorice’s opinion and whether he believed she 17 would actually be able to return to work by mid-April. Alternatively, Comcast could have granted 18 her leave until mid-April with the condition that would be her final leave extension and anything 19 beyond that would be considered unreasonable. The Court cannot find, as a matter of law, that 20 Plaintiff’s request for leave to mid-April 2016 was in fact a request for an indefinite leave. 21 Although Comcast may have had reason to doubt Plaintiff’s doctors, viewing the evidence in the 22 light most favorable to her, Plaintiff presented Comcast with a request to extend her leave to a 23 definite date and Comcast said no. Nor can the Court find, in the absence of any direct argument 24 and supporting authority, that a finite period of thirteen months under these circumstances was 25 unreasonable. 26 The Court also cannot find, as a matter of law, that Plaintiff was not capable of returning to 27 work by mid-April 2016. A jury may ultimately find that her statements, including those to the 1 precluded from demonstrating that she had sufficiently healed and was ready to work. 2 Accordingly, the Court DENIES Comcast’s motion for summary judgment on Plaintiff’s first 3 claim for disability discrimination under FEHA. For similar reasons, the Court also DENIES 4 Comcast’s motion for summary judgment on Plaintiff’s second, third, and sixth claims for failure 5 to accommodate, to engage in the interactive process, and to prevent discrimination under FEHA, 6 as well as Plaintiff’s seventh claim for termination in violation of public policy. 7 2. Plaintiff’s Claim of Retaliation. 8 To succeed on a claim of retaliation under FEHA, “a plaintiff must show (1) he or she 9 engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse 10 employment action, and (3) a causal link existed between the protected activity and the employer’s 11 action.” Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). Plaintiff contends that her 12 requests for accommodations constitute the requisite “protected activity.” The Ninth Circuit 13 reversed this Court on its determination that her requests for accommodation, standing alone, did 14 not constitute a “protected activity.” Therefore, the Court will examine the evidence in the record 15 to determine whether there is sufficient evidence to support a finding by a reasonable juror that 16 Comcast retaliated against Plaintiff for requesting time off from work as an accommodation. 17 Upon review of the evidence, the Court finds that there is no evidence to show a causal 18 link between Plaintiff’s protected activity and Comcast’s actions. Plaintiff relies on the timing – 19 that she was terminated soon after she requested additional time off. However, when viewing the 20 evidence in the light most favorable to Plaintiff, there is no evidence that Comcast terminated her 21 employment because she made a request for an accommodation. Instead, the evidence only shows 22 that Comcast terminated her employment because it believed that she would not be able to return 23 to work in mid-April. In other words, Comcast determined that it could not accommodate 24 Plaintiff’s request and provide her with the additional time off of work. Plaintiff points to no 25 evidence showing otherwise. 26 As discussed above, Plaintiff is able to proceed on her claims of discrimination, failure to 27 accommodate, and failure to engage in the interactive process based on the facts in the record. 1 Plaintiff for requesting additional time off of work, the Court GRANTS Comcast’s motion for 2 summary judgment as to Plaintiff’s fifth claim for retaliation under FEHA. 3 3. Mitigation of Damages. 4 Comcast moved for summary judgment on Plaintiff’s claims for damages on the grounds 5 that she failed to mitigate her damages. In her original opposition brief, Plaintiff failed to address 6 this argument. However, in her supplemental brief filed after this case was remanded back from 7 the Ninth Circuit, Plaintiff does argue against this point and cite to evidence she filed with her 8 original opposition brief. Plaintiff should have opposed Comcast’s argument in the first briefing 9 round, or alternatively, should have requested leave to address it in her supplemental brief. She 10 did neither. Nevertheless, in the interests of fairness and because the Court provided Comcast an 11 opportunity to respond, the Court will consider Plaintiff’s newly raised argument. 12 “Under California law, an employee who has been wrongfully terminated has a duty to 13 mitigate damages through reasonable efforts to achieve other employment.” Boehm v. American 14 Broad. Co., 929 F.2d 482, 485 (9th Cir. 1991). If the employer demonstrates that the employee 15 rejected offers of comparable or substantially similar employment, then liability for backpay stops 16 accruing. Id. The burden then shifts to the employee to establish that “special circumstances” 17 justified her rejection of the offer. Id. Whether Plaintiff acted reasonably in mitigating damages is 18 a question of fact. Ortiz v. Bank of Am. Nat. Tr. & Sav. Ass’n, 852 F.2d 383, 387 (9th Cir. 1987) 19 (finding that plaintiff’s “poor mental condition” was substantial evidence supporting the jury’s 20 finding of “special circumstances” which rendered reasonable plaintiff’s refusal of reinstatement). 21 Here, it appears undisputed that Comcast offered to reinstate Plaintiff to the same or a 22 substantially similar job and that Plaintiff rejected the offer in August 2016 after Plaintiff’s 23 counsel notified Comcast that Plaintiff could return to work. However, Plaintiff submits evidence 24 which creates a question of fact as to whether her rejection of the offer was reasonable. She 25 suffered from severe depression after her employment was terminated, and she feared that 26 Comcast would treat her badly again. Even though some objective parties might view these 27 reasons as very weak, viewing the evidence in the light most favorable to Plaintiff, the Court 1 Additionally, the Court finds that there are questions of fact precluding summary judgment on the 2 grounds that Plaintiff failed to act reasonably in looking for other employment. Accordingly, the 3 Court DENIES Comcast’s motion for summary judgment on this grounds. 4 4. Punitive Damages. 5 Plaintiff also failed to address Comcast’s arguments regarding punitive damages in her 6 initial opposition brief. Again, in the interests of fairness, the Court will consider her belated 7 arguments raised in her supplemental brief. 8 To obtain punitive damages, Plaintiff has the burden to show by “clear and convincing 9 evidence” that an officer, director, or “managing agent” of Comcast acted with “malice, 10 oppression, or fraud.” Cal. Civ. Code § 3294. Under California law, an employer is not liable for 11 punitive damages based upon the conduct of an employee unless the employer: (1) had advance 12 knowledge of the employee’s unfitness and acted with “conscious disregard of the rights or safety 13 of others;” (2) authorized or ratified the wrongful conduct; or (3) was personally guilty of 14 oppression, fraud, or malice. Cal. Civ. Code § 3294(b). If the employer is a corporation, “the 15 advance knowledge and conscious disregard, authorization, ratification, or act of oppression, 16 fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” 17 Cal. Civ. Code § 3294(b). In order to qualify as an “officer, director, or managing agent of the 18 corporation,” the California Supreme Court has held that the corporate decision maker must have 19 “substantial discretionary authority over decisions that ultimately determine corporate policy.” 20 White v. Ultramar, Inc., 21 Cal. 4th 563, 577 (1999). Merely having the power to hire and fire is 21 not sufficient to establish that an employee is a “managing agent.” White, 21 Cal. 4th at 577. 22 Plaintiff now argues that Stofferahn was a managing agent.2 Another court in this district 23 examined Stofferahn’s role at Comcast and determined, on a motion for summary judgment, that 24 she was not a managing agent. Plaza v. Comcast Cable Commc’ns Mgmt., LLC, 2015 WL 25 7770215, at *4 (N.D. Cal. Dec. 3, 2015) (“Here, the only people involved with the decisions Plaza 26 challenges were Stofferahn and Helbig, neither of whom had substantial discretionary authority 27 1 over decisions that ultimately determine corporate policy.”). This Court agrees. 2 Stofferahn described her position at Comcast and her responsibilities as follows: 3 During 2015, when I was involved in matters related to this case, my job title with Comcast was Senior Director, Employee Relations and 4 HR Compliance. I provided support to the West Division and was based in Northern California. Even though I am a licensed attorney, 5 my role with Comcast is one of compliance. I generally do not represent Comcast as an attorney. Neither during 2015, nor at any 6 time before that, did I have the authority to make corporate policy or to exercise judgment over decisions that ultimately determine 7 corporate policy. My position was to provide consultation and advice on employee matters for Comcast, primarily within the West 8 Division, including leave issues and termination of employment decisions. I also spent time preparing training materials and 9 providing training on employment law matters to other Comcast employees in the West Division. . . . 10 (Dkt. No. 29-3, ¶ 4.) Plaintiff does not submit any evidence to the contrary. Instead, Plaintiff 11 argues that, because Stofferahn had authority to determine whether to discharge employees over a 12 wide geographic region, which included a large number of employees, “her decisions, in the 13 aggregate, unquestionably established Comcast policies and practice.” (Dkt. No. 71 at p. 19.) In 14 the absence of any evidence showing that Stofferahn had authority to make corporate policy or to 15 exercise judgment over decisions that ultimately determined corporate policy, Plaintiff fails to 16 demonstrate the existence of a question of fact which precludes summary judgment.3 17 Alternatively, even if Plaintiff could show there is a question of fact regarding whether 18 Stofferahn was a managing agent, Plaintiff cannot meet her burden to show that Stofferahn acted 19 with malice, oppression, or fraud. Stofferahn testified that she believed that Plaintiff would not be 20 able to return to work in April 2016 and that Plaintiff was requesting an indefinite leave. On that 21 basis, Stofferahn denied Plaintiff’s request for an accommodation by extending her leave. While a 22 23 3 In a footnote, Plaintiff “renews” her request to take a deposition pursuant to Federal Rule 24 of Civil Procedure 30(b)(6) of a company officer or managing agent “to address the factual issues bearing on punitive damages.” (Dkt. No. 71 at p. 20 n. 9.) Comcast responds that Plaintiff 25 already took multiple depositions, including the depositions of both decision makers, Stofferahn and Lowenberg, as well as a 30(b)(6) corporate deposition in Philadelphia. (Dkt. No. 74 at p. 5.) 26 Non-expert discovery closed in this case on May 18, 2017. (Dkt. No. 15.) On May 23, 2017, after the close of non-expert discovery, Plaintiff requested to take a 30(b)(6) deposition. (Dkt. No. 23.) 27 The Court denied Plaintiff’s request as overbroad and based on Plaintiff’s failure to demonstrate 1 || jury may ultimately find that Stofferahn was mistaken, there is no evidence to support □□□□□□□□□□□ 2 || belated argument that Stofferahn did so with malice, oppression or fraud. Accordingly, the Court 3 GRANTS Comcast’s motion for summary judgment as to Plaintiff's request for punitive damages. 4 CONCLUSION 5 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 6 || Comcast’s motion for summary judgment. 7 IT IS SO ORDERED. 8 || Dated: July 30, 2020 . 9 Atlan (ow |

SALLIE KIM

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