Filed 12/18/14 Strauss v. Aerojet Rocketdyne CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



MARY STRAUSS,                                                             B247439

         Plaintiff and Appellant,                                         (Los Angeles County
                                                                          Super. Ct. No. BC469152)
         v.

AEROJET ROCKETDYNE OF DE, INC.,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Malcolm H. Mackey, Judge. Reversed in part and affirmed in part.
         Golan Law, PC and Jeremy M. Golan; Bent Caryl & Kroll, LLP and Steven M.
Kroll for Plaintiff and Appellant.
         Seyfarth Shaw LLP, Timothy L. Hix and John T. Anthony III for Defendant and
Respondent.

                                        _________________________
       Plaintiff and appellant Paul Strauss (Strauss) appeals a judgment following a grant
of summary judgment in favor of defendant and respondent Pratt & Whitney Rocketdyne,
Inc. (PWR).1
       Strauss, a longtime employee of PWR, was diagnosed with multiple myeloma and
took time off from work for ongoing chemotherapy treatments. Strauss alleged he was
selected for layoff by PWR based on his medical condition and age. PWR justified
Strauss’s layoff as part of a reduction in force (RIF) due to the economic downturn.
PWR contended Strauss was selected for layoff because there would be very little work
for him in the future.
       We conclude various triable issues of material fact are present, particularly with
respect to whether PWR’s stated reason was pretextual. Therefore, the judgment is
reversed in part and affirmed in part.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts.
       Strauss was born in 1942 and began working for Rocketdyne in 1979. PWR was
formed in 2005, when its parent company United Technologies Corporation (UTC)
acquired Rocketdyne from Boeing. Strauss’s position with PWR was principal engineer
in the Structures and Dynamics Department. He was classified as an L4 grade engineer,
which is the top grade. Over the years, he received numerous awards and positive
evaluations. His employment was at-will.
       In August 2009, at age 67, Strauss was diagnosed with multiple myeloma, an
incurable and chronic form of blood cancer. He took a four-month leave of absence from
PWR and managed the disease with twice-weekly chemotherapy treatments. He returned
to work at PWR in late December 2009, with restrictions. A flexible work schedule and
the ability to work from home were the only accommodations Strauss requested or
needed, and PWR accommodated him. In March 2010, he was cleared by PWR to work
1
       Both parties were substituted by successors in interest during the pendency of the
appeal. Paul Strauss died in 2013 and was succeeded by his spouse, Mary Strauss. Pratt
& Whitney Rocketdyne, Inc. was succeeded by Aerojet Rocketdyne of DE, Inc.

                                             2
without restrictions. He continued to require intermittent time off for chemotherapy.
Due to pressure from Strauss’s supervisors regarding his absences, he subsequently
revised his chemotherapy treatment schedule to evenings and weekends to reduce time
away from the office.
       In October 2010, PWR implemented a company-wide RIF due to the economic
downturn. Strauss was not selected for the 2010 RIF.
       On June 1, 2011, Strauss submitted forms for intermittent leave under the
FMLA/CFRA. From June 1, 2011 until his last day of work on July 28, 2011, he
continued to take time off to receive needed treatment.
       In 2011, PWR implemented another RIF. As part of the 2011 RIF, evaluators
were trained and required to consider employees’ performance based on the future needs
of the company, not past performance.
       On March 30, 2011, Strauss received a total score of 25 credits and was ranked
No. 22 out of the 27 L4 engineers in his department. Thus, five colleagues were ranked
beneath him.
       On April 5, 2011, following another review, Strauss received the same rating and
ranking.
       Strauss’s supervisor, John Larson, then recommended that Strauss’s scores be
lowered. According to Larson, “the SSME [Space Shuttle Main Engine] program had far
less funding than I had previously assumed, and thus, there would be very little work for
[Strauss] going forward.” In contrast, the five engineers who were ranked lower than
Strauss worked on programs which had significant future work, and Strauss “did not have
the skill set to replace any of those five in a reasonable amount of time. Based on this
additional information, I recommended that [Strauss’s] scores be lowered and that he was
the appropriate person to layoff based on the needs of the Engineering department.”
       In this litigation, Strauss disputed the motivation for the reduction in his score. He
cited, inter alia, comments by Larson that “my hours were down and that it was affecting
his ‘realization’ metric [which] measures the entire department’s hours worked,” and
Larson’s suggestion “that I retire or work part-time,” and that “I might be healthier if I

                                              3
stayed home more. On other occasions, [supervisor Bonnie Boyce] told me that my time
off ‘doesn’t look good for the group.’ ” Strauss also asserted that although the SSME
program ended in 2011, PWR’s RS25 program for space flight, which uses an SSME
derivative engine, continued to the present. Therefore, his skill set enabled him to work
outside the SSME program.2
       On April 15, 2011, after conducting a third-tier review, Barcza adjusted Strauss’s
score. Barcza lowered Strauss’s score from 25 (which he had received 10 days earlier) to
a final score of 18. Instead of being ranked at 22 of 27, Strauss now was ranked at
number 27, the lowest in the department. In May 2011, Strauss was selected for layoff.
Of the 27 L4 engineers in his department, Strauss was the sole L4 engineer who was laid
off. He was 69 years old at the time. His employment ended on July 28, 2011. This
litigation followed.
       2. Proceedings.
              a. Pleadings.
       Strauss commenced this action against PWR on September 8, 2011. The operative
first amended complaint set forth seven causes of action: (1) medical condition/disability
discrimination in violation of the California Fair Employment & Housing Act (FEHA)
(Gov. Code, § 12940, subd. (a));3 (2) failure to provide reasonable accommodation
(§ 12940, at subd. (m)); (3) failure to engage in the interactive process (§ 12940, at subd.
(n)); (4) age discrimination in violation of FEHA (§ 12940, subd. (a)); (5) failure to take
all reasonable steps necessary to prevent discrimination from occurring (§ 12940,
subd. (k)); (6) retaliation under the California Family Rights Act (CFRA) (§ 12945.2) for
taking medical leave; and (7) wrongful termination of violation of public policy,


2
       William Kevin Barcza (Barcza), PWR’s Vice President of the Engineering
Organization, acknowledging in his deposition the RS25 was a derivative of the SSME
and that work on the RS25 was ongoing.
3
       All further statutory references are to the Government Code, unless otherwise
specified.

                                             4
predicated on the policies articulated in FEHA and CFRA. The complaint also sought
attorney fees and included a prayer for punitive damages.
       The gravamen of Strauss’s complaint was that discriminatory intent, based on
Strauss’s medical condition, his need to take medical leave, and his age, were motivating
factors in PWR’s decision to select him for layoff.
              b. PWR’s motion for summary judgment.
       PWR moved for summary adjudication or, in the alternative, summary
adjudication. It contended the causes of action for medical condition/disability
discrimination and age discrimination were meritless because Strauss’s inclusion in the
layoff had nothing to do with his medical condition or his age. The causes of action for
failure to provide reasonable accommodations and failure to engage in the interactive
process likewise were meritless because PWR timely engaged in the process and never
refused a single requested accommodation. The cause of action for failure to prevent
discrimination was not viable because the underlying discrimination claims failed. The
cause of action for retaliation in violation of CFRA was meritless because his inclusion in
the 2011 RIF had nothing to do with his having taken medical leave two years earlier, in
2009, and after he had already survived the 2010 RIF. Finally, the cause of action for
wrongful termination in violation of public policy was untenable because the underlying
statutory claims were meritless.
       PWR further argued Strauss had no basis to seek punitive damages because neither
Boyce nor Larson was a managing agent of PWR, and in any event, Strauss’s layoff was
in the context of a legitimate reduction in PWR’s workforce due to the economic
downturn.
              c. Strauss’s opposition.
       Strauss asserted there was ample evidence that PWR selected him for layoff with a
discriminatory motive. He cited, inter alia, repeated remarks by Boyce and Larson
regarding his time off for chemotherapy treatments. Further, his performance evaluations
consistently had been favorable until the final RIF assessment on April 15, 2011. At that


                                            5
time, in order the justify the layoff, Barcza reduced his score from 25 to 18, and lowered
his ranking from 22 of 27 to the very bottom of the matrix.
       Strauss also disputed PWR’s assertion the layoff was justified due to the
termination of the SSME program in 2011. He presented evidence that although the
SSME program ended in 2011, PWR’s RS25 program for space flight, which uses an
SSME derivative engine, continued to the present, and therefore, his skill set enabled him
to work outside the SSME program. Specifically, Barcza’s deposition testimony showed
the RS25 was a derivative engine of the SSME and that work on the RS25 was ongoing.
              d. Trial court’s ruling.
       On January 31, 2013, the matter came on for hearing. The trial court observed “a
reduction in force [is] a little bit different than just firing somebody.” In response to
plaintiff’s counsel’s argument that PWR manipulated Strauss’s score in order to justify
his layoff, the trial court stated, “you disputed the facts, but they pled the facts. And I
find that these are the correct facts. He was recommended. That’s my facts [sic].”
(Italics added.) Later, the trial court reiterated, “Counsel, on summary judgment, I can
look at the facts presented to me and make findings. And I’m doing that.” (Italics
added.)
       On March 1, 2013, the trial court entered an order granting summary judgment in
favor of PWR as to all seven causes of action. The trial court further ruled punitive
damages were unavailable because “Plaintiff cannot raise an issue of fact supporting that
an officer, director, or managing agent of Defendant acted with fraud, oppression, or
malice.” It overruled all of Strauss’s objections to PWR’s evidence and sustained all of
PWR’s objections to Strauss’s evidence.
       Strauss filed a timely notice of appeal from the judgment.
                                      CONTENTIONS
       Strauss contends triable issues exist with respect to his claims for (1) medical
condition/disability discrimination; (2) failure to reasonably accommodate; (3) failure to
engage in the interactive process; (4) age discrimination; (5) failure to prevent


                                               6
discrimination; (6) retaliation under CFRA; and (7) wrongful termination in violation of
public policy.
       Strauss further contends the trial court erred in granting summary adjudication as
to his request for punitive damages and that it erred in overruling his objections to PWR’s
evidence.
                                       DISCUSSION
       1. Standard of appellate review.
       Although the trial court purported to make factual finding in ruling on the motion
for summary judgment, it is established the issue at summary judgment “consists of
spotting material factual disputes, not resolving them. (EHP Glendale, LLC v. County of
Los Angeles (2011) 193 Cal.App.4th 262, 270 [‘The purpose of summary judgment is not
to resolve issues of fact, but rather to determine whether there are issues of fact that must
be resolved through a trial’].)” (People ex rel. City of Dana Point v. Holistic Health
(2013) 213 Cal.App.4th 1016, 1029; accord, Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 856 [trial court may not weigh the plaintiff’s evidence or inferences
against the defendant’s as though it were sitting as the trier of fact].)
       Because this appeal follows “the granting of summary judgment, the evidence
must be examined according to summary judgment standards. Examining evidence in
light of summary judgment standards is far different from applying the substantial
evidence test that often governs on appeal. In the judgment after trial context the
evidence need only be sufficient to support the judgment for the winning party, even
though the evidence might, in another reasonable mind, also have supported a judgment
for the losing party. In the summary judgment context, by contrast, the evidence must be
incapable of supporting a judgment for the losing party in order to validate the summary
judgment. Thus even though it may appear that a trial court took a ‘reasonable’ view of
the evidence, a summary judgment cannot properly be affirmed unless a contrary view
would be unreasonable as a matter of law in the circumstances presented.” (Binder v.
Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838; accord, Faust v. California Portland
Cement Co. (2007) 150 Cal.App.4th 864, 876-877.)

                                               7
       The standards applicable to appellate review of a summary judgment ruling are
well established. “We independently review an order granting summary judgment.
(Aguilar v. Atlantic Richfield Co., [supra,] 25 Cal.4th [at p.] 860.) We determine whether
the court’s ruling was correct, not its reasons or rationale. (Salazar v. Southern Cal. Gas
Co. (1997) 54 Cal.App.4th 1370, 1376.) ‘In practical effect, we assume the role of a trial
court and apply the same rules and standards which govern a trial court’s determination
of a motion for summary judgment.’ (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.)”
(Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 504-505.)
In performing our de novo review, we view the evidence in the light most favorable to
Strauss, as the party opposing summary judgment. (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768.)
       2. Triable issues exist with respect to Strauss’s causes of action for medical
condition/disability discrimination and age discrimination (first and fourth causes of
action).4
              a. General principles.
       Generally, to make a prima facie showing of employment discrimination under
FEHA, the plaintiff must provide evidence that (1) he was a member of a protected class,


4
       The following definitions are germane:

       “Medical condition” includes, inter alia, “Any health impairment related to or
associated with a diagnosis of cancer or a record or history of cancer.” (§ 12926,
subd. (i)(1).)

        “Physical disability” includes, inter alia, “(1) Having any physiological
disease . . . that does both of the following: [¶] (A) Affects one or more of the following
body systems: neurological, immunological, musculoskeletal, special sense organs,
respiratory, including speech organs, cardiovascular, reproductive, digestive,
genitourinary, hemic and lymphatic, skin, and endocrine. [¶] (B) Limits a major life
activity.” (§ 12926, subd. (m).) “Major life activity” includes working. (§ 12926,
subd. (m)(1)(B)(iii).)

       Age “refers to the chronological age of any individual who has reached his or her
40th birthday.” (§ 12926, subd. (b).)

                                             8
(2) he was qualified for the position he sought or was performing competently in the
position he held, (3) he suffered an adverse employment action, such as termination,
demotion, or denial of an available job, and (4) some other circumstance suggests
discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).)
       Once the plaintiff makes out a prima facie case of discrimination based upon a
protected category, “the burden then shifts to the employer to offer a legitimate,
nondiscriminatory reason for the adverse employment action. Once the employer has
done so the plaintiff must offer evidence that the employer’s stated reason is either false
or pretextual, or evidence that the employer acted with discriminatory animus, or
evidence of each which would permit a reasonable trier of fact to conclude the employer
intentionally discriminated. [Citation.]” (Deschene v. Pinole Point Steel Co. (1999)
76 Cal.App.4th 33, 44, accord, Faust, supra, 150 Cal.App.4th at p. 886.)
              b. Strauss made out a prima facie case of physical disability/medical
condition and age discrimination.
       Strauss made out a prima facie case pursuant to the elements set forth in Guz,
supra, 24 Cal.4th at page 355.
       Given Strauss’s medical condition and his age at termination (69), it is undisputed
he was a member of protected classes.
       Strauss’s historical evaluations, including the one dated April 5, 2011, ten days
before he was downgraded by Barcza, tend to show he was performing competently in
the position he held.
       Strauss suffered an adverse employment action, in that his employment was
terminated.
       Further, Strauss presented evidence that circumstances suggested a discriminatory
motive. As discussed, Strauss cited, inter alia, comments by Larson that “my hours were
down and that it was affecting his ‘realization’ metric [which] measures the entire
department’s hours worked,” and Larson’s suggestion “that I retire or work part-time,”
and that “I might be healthier if I stayed home more. On other occasions, [supervisor
Bonnie Boyce] told me that my time off ‘doesn’t look good for the group.’ ” Moreover,

                                             9
Strauss was one of the two oldest engineers in his group, and he was the only one of 27
L4 engineers in the department to be laid off.
              c. PWR’s proffered reason for selecting Strauss for layoff.
       Once Strauss made out a prima facie case, the burden shifted to PWR to offer a
legitimate, nondiscriminatory reason for the adverse employment action.
       PWR asserted the five employees who had been ranked beneath Strauss had
significantly more work than Strauss, and Strauss was selected for layoff because his
skills did not translate to the needed work as well as the five other employees who
initially had been ranked lower.
       PWR’s proffered explanation is not dispositive and does not end the analysis. In
Guz, the employer argued “the exercise of its prerogative to eliminate [the plaintiff’s]
work unit and position constitutes, as a matter of law, a legitimate, nondiscriminatory
reason for his termination. However, [Guz explained] downsizing alone is not
necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of an
age-protected worker. An employer’s freedom to consolidate or reduce its work force,
and to eliminate positions in the process, does not mean it may ‘use the occasion as a
convenient opportunity to get rid of its [older] workers.’ [Citations.] Invocation of a
right to downsize does not resolve whether the employer had a discriminatory motive for
cutting back its work force, or engaged in intentional discrimination when deciding
which individual workers to retain and release. Where these are issues, the employer’s
explanation must address them. [Citation.] On the other hand, if nondiscriminatory, [the
employer’s] true reasons need not necessarily have been wise or correct. [Citations.]
While the objective soundness of an employer’s proffered reasons supports their
credibility . . . , the ultimate issue is simply whether the employer acted with a motive to
discriminate illegally.” (Guz, supra, 24 Cal.4th at pp. 357-358, italics omitted.)




                                             10
               d. Strauss raised a triable issue of material fact with respect to physical
disability/medical condition and age discrimination by presenting evidence PWR’s stated
reason was false or pretextual.
        Once the employer has presented a legitimate, nondiscriminatory reason for the
adverse employment action, the plaintiff must offer evidence that the employer’s stated
reason is either false or pretextual. (Faust, supra, 150 Cal.App.4th at p. 886.) Strauss
met his burden in resisting summary judgment.
        As indicated, on April 15, 2011, ten days after Strauss earned a score of 25 and a
ranking of 22 out of 27 in his department, Barcza lowered his score to 18 and ranked him
at the bottom of the department. According to Barcza, the downward adjustment in the
third-tier review was based on PWR’s “future business needs” because there would be
very little work on the SSME program going forward.
        However, irrespective of the winding down of the SSME program, Barcza
admitted that work on the RS25 project was ongoing, and that the RS25, the next
generation engine, was a derivative engine of the SSME. These circumstances raise an
inference that Strauss could have been reassigned to work on the RS25 project.
Accordingly, whether PWR’s stated reason for Strauss’s layoff, i.e., there would be very
little work for him in the future, was false or pretextual requires resolution by a trier of
fact.
        Therefore, the grant of summary judgment with respect to the first and fourth
causes of action must be reversed.
        3. Triable issue with respect to fifth cause of action for failure to prevent
discrimination.
        PWR obtained summary judgment with respect to the fifth cause of action, failure
to prevent discrimination, on the ground there is no cause of action for failure to prevent
discrimination absent an underlying claim of actual discrimination.
        At this juncture, because the first and fourth causes of action for employment
discrimination are viable, the grant of summary judgment with respect to Strauss’s fifth
cause of action for failure to prevent discrimination likewise must be reversed.

                                              11
               4. Triable issue with respect to sixth cause of action for retaliation under
       CFRA.
               a. General principles.
       CFRA, which is contained within the FEHA (§ 12900 et seq.), “is intended to give
employees an opportunity to take leave from work for certain personal or family medical
reasons without jeopardizing job security.” (Nelson v. United Technologies (1999)
74 Cal.App.4th 597, 606.)
       The elements of a cause of action for retaliation in violation of the CFRA are as
follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA leave; (3) the plaintiff exercised his right to take leave
for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment
action, such as termination, fine, or suspension, because of his exercise of his right to
CFRA leave. (Faust, supra, 150 Cal.App.4th at p. 885.)
       Once an employee establishes a prima facie case, the employer is required to offer
a legitimate, nonretaliatory reason for the adverse employment action. If the employer
produces a legitimate reason for the adverse employment action, the presumption of
retaliation drops out of the picture and the burden shifts back to the employee to prove
intentional retaliation. (Faust, supra, 150 Cal.App.4th at p. 885.)
               b. No merit to PWR’s argument that Strauss admitted he was not retaliated
against for having taken extended leave in 2009.
       In moving for summary judgment, PWR contended the cause of action for
retaliation in violation of CFRA failed because Strauss could not show a nexus between
his medical accommodations and his inclusion in the RIF.
       At this juncture, PWR argues no triable issue exists with respect to the CFRA
retaliation claim because Strauss admitted in his deposition that he did not suffer
retaliation for having taken extended leave in 2009.
       PWR’s focus on the 2009 leave period is misplaced. PWR misconstrues Strauss’s
claim. Strauss did not contend he suffered retaliation based on the 2009 absence. Rather,


                                             12
Strauss contended he was selected for layoff in 2011 due to absences subsequent to the
2009 leave period.5
              c. Triable issue of material fact as to whether Strauss was selected for
       layoff in May 2011 in retaliation for absences preceding the layoff decision.
       Strauss made out a prima facie case of retaliation by presenting evidence that he
was entitled to leave under the CFRA, he availed himself of that right, and was
terminated for taking the leave to which he was entitled.
       The burden then shifted to PWR to present evidence to establish a legitimate,
nonretaliatory reason for the discharge. PWR asserted it had a legitimate nonretaliatory
reason for laying off Strauss because he was the lowest ranked employee in his
department and it had insufficient work to retain Strauss as an employee. As already
discussed, the circumstances of Strauss’s layoff raise a triable issue of material fact as to
pretext. Accordingly, the grant of summary judgment with respect to the sixth cause of
action for retaliation under CFRA was erroneous.
       5. No triable issue of material fact with respect to second cause of action for
failure to provide reasonable accommodation.
       PWR’s theory on summary judgment is that it provided Strauss with every
accommodation he requested or needed. Its position is supported by the record.
       The undisputed evidence is as follows: Strauss requested a leave of absence for a
prolonged hospital stay and recovery (August 17, 2009 to December 21, 2009), which
PWR granted. Upon his return from medical leave in December 2009, PWR allowed
Strauss to work from home with decreased hours. The flexible work schedule and ability
to work from home were the only accommodations Strauss requested or needed from
December 31, 2009 to March 8, 2010, and PWR provided it to him. From March 8, 2010
to June 1, 2011, Strauss did not require any additional accommodations from PWR.


5
      Although Strauss took additional medical leave between June 1 and July 28, 2011,
the CFRA retaliation claim properly is limited to medical leave which Strauss prior to
May 2011, the date of the layoff decision.

                                             13
       Strauss testified at deposition that he “didn’t need any further accommodation
after March 8th, 2010, from Rocketdyne.” Further, “if [he] had needed some other type
of accommodation from Rocketdyne, [he] would . . . have gone to the medical office to
request that[.]”
       In resisting summary judgment, Strauss attempted to dispute the above with his
declaration testimony that he required time off for chemotherapy treatments, and that he
told PWR’s medical department and human resources department that he required time
off for chemotherapy.
       However, Strauss cannot raise a triable issue in this regard by submitting a
declaration which contradicts his deposition testimony. (Prilliman v. United Air Lines,
Inc. (1997) 53 Cal.App.4th 935, 961.) On the record presented, there is no triable issue
of material fact on Strauss’s cause of action against PWR for failure to provide
reasonable accommodation under FEHA (§ 12940, subd. (m).) Therefore, the trial
court’s ruling with respect to the second cause of action must be affirmed.
       6. No triable issue with respect to third cause of action for failure to engage in
interactive process.
       Section 12940 at subdivision (n) makes it an unlawful employment practice “[f]or
an employer or other entity covered by this part to fail to engage in a timely, good faith,
interactive process with the employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable accommodation by an
employee or applicant with a known physical or mental disability or known medical
condition.” (Italics added.)
       As discussed above, the undisputed evidence established: PWR granted Strauss’s
request for a leave of absence from August 17, 2009 to December 21, 2009; upon
Strauss’s return from medical leave in December 2009, PWR approved a flexible work
schedule and the ability to work from home, which were the only accommodations
Strauss requested or needed until March 8, 2010; Strauss “didn’t need any further
accommodation after March 8th, 2010, from Rocketdyne”; and “if [he] had needed some


                                             14
other type of accommodation from Rocketdyne, [he] would . . . have gone to the medical
office to request that[.]”
       Because the undisputed evidence established PWR provided Strauss with every
accommodation he needed, no triable issue exists with respect to Strauss’s cause of action
for “fail[ure] to engage in a timely, good faith, interactive process with the
employee . . . to determine effective reasonable accommodations[.]” (§ 12940,
subd. (n).)
       Therefore, the trial court’s ruling with respect to the third cause of action must be
affirmed.
       7. Triable issue with respect to seventh cause of action for wrongful termination
in violation of public policy.
       The public policies embodied in FEHA and CFRA give rise to a cause of action
for tortious wrongful discharge in violation of public policy. (Faust, supra,
150 Cal.App.4th at p. 886.) Because Strauss has viable claims under FEHA and CFRA,
it necessarily follows that a triable issue exists with respect to the seventh cause of action
for wrongful termination in violation of public policy. (Ibid.)
       8. Trial court erred in striking demand for punitive damages; triable issue as to
whether Barcza was a managing agent of PWR.
       It is settled that punitive damages are recoverable in actions brought under FEHA.
(Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1147-1148.) Punitive
damages may be awarded against an employer where a plaintiff proves, by clear and
convincing evidence, that a managing agent engaged in misconduct with malice,
oppression or fraud. For purposes of the imposition of punitive damages against an
employer, “[a]n employee is a ‘managing agent’ if he or she exercises substantial
independent authority and judgment in his or her corporate decisionmaking such that his
or her decisions ultimately determine corporate policy.” (CACI No. 3943.)
       The Barcza declaration, which PWR submitted as part of its moving papers,
indicates that Barcza was Vice President of PWR’s Engineering Organization, that
“managers and supervisors report[ed] to [him],” and that he made the final adjustment to

                                              15
Strauss’s score, based on what he “believed to be in the best interest of the future
business needs of PWR.”
       Given Barcza’s role at PWR, it cannot be said as a matter of law that Barcza was
not a managing agent of PWR. Accordingly, the issue of whether Barcza was a
managing agent of PWR is one for the jury.6
       Therefore, the trial court erred in striking the prayer for punitive damages.
       9. Evidentiary issues.
       Strauss makes a blanket assertion the trial court abused its discretion in overruling
his evidentiary objections to PWR’s supporting evidence. Strauss fails to specify the
evidentiary rulings of which he complains. For example, he makes a generalized
argument that the trial court erred “by making certain evidentiary rulings against [him],”
and that “[n]umerous exhibits also contained inadmissible hearsay.” Further, Strauss
fails to show he was prejudiced by the purportedly erroneous admission of PWR’s
evidence. (Evid. Code, § 353, subd. (b) [reversal for erroneous admission of evidence
requires showing of prejudice].)
       In any event, Strauss’s evidentiary arguments have no bearing on our analysis of
the causes of action addressed ante.




6
       PWR argued below that Strauss failed to show that Barcza “had sufficient
independent authority in order to set corporate policy which is required in order to find
him a ‘managing agent.’ ” However, at the summary judgment stage, the burden was
upon PWR, as the movant, to show Barcza was not a managing agent.

                                             16
                                     DISPOSITION
       The judgment is affirmed solely with respect to the second cause of action (failure
to provide reasonable accommodation) and third cause of action (failure to engage in
interactive process). In all other respects the judgment is reversed. Appellant shall
recover costs on appeal.

       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KLEIN, P. J.

We concur:




                     KITCHING, J.




                     ALDRICH, J.




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