Filed 3/2/15 Avedian v. Progressive Casualty Co. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN

RAFI AVEDIAN,                                                        B244193

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC455138)
         v.

PROGRESSIVE CASUALTY
INSURANCE CO., et al.,

         Defendants and Respondents.


JILLIAN MCGUINNESS, et al.                                           B245747

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. BC455138)
         v.

PROGRESSIVE CASUALTY
INSURANCE CO., et al.,

         Defendants and Respondents.




                   APPEALS from judgments of the Superior Court of Los Angeles County,
Holly E. Kendig, Judge. Reversed and remanded.
              Mancini & Associates, Marcus A. Mancini and Christopher M. Barnes;
Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Plaintiffs and
Appellants.
              Littler Mendelson (Los Angeles) and Brandie N. Charles; Littler
Mendelson (Sacramento) and Michelle L. Christian for Defendants and Respondents
Progressive Casualty Insurance Co., Jim Grant and Peter Hawkins.
                       ___________________________________

                                    INTRODUCTION
       Three insurance company claims representatives were terminated for falsification
of their timecards. They each filed a complaint against their former employer. Two
appellants, Rafi Avedian and Dawn Diaz, alleged wrongful termination in violation of
public policy, among other claims, asserting they had been terminated for complaining
about their employer’s business practices that allegedly violated the Insurance Code. The
third appellant, Jillian McGuinness, alleged the employer had failed to accommodate her
disability and failed to engage in the interactive process, among other claims. The
insurance company filed motions for summary judgment, and the trial court granted each
of these motions. This appeal followed. As we shall explain, triable issues of fact exist
as to the appellants’ respective claims. We conclude the trial court erred in granting
summary judgment for Progressive, and accordingly reverse.
                     FACTUAL AND PROCEDURAL SUMMARY
1.     Appellants’ Employment with Progressive.
       Rafi Avedian, Dawn Diaz, Jillian McGuinness and Kristin Giarletto worked
together as claims specialists in the Sherman Oaks office of Progressive Casualty
Insurance Company (Progressive).1 Claims specialists negotiate on Progressive’s behalf



1      Avedian, Diaz, McGuinness and Giarletto filed separate complaints against
Progressive, but their actions were consolidated in the trial court. Each filed a notice of
appeal. Kristin Giarletto subsequently dismissed her appeal and is no longer a party
(although she is discussed as relevant). In an order dated September 24, 2013, we denied
                                             2
and settle claims with Progressive’s funds. Beginning in May 2009, the branch manager
of the Sherman Oaks office was Peter Hawkins.2 Marcia Meyers and Laura Doran were
supervisors in the office.
       In its Code of Business Conduct and Ethics (Code), Progressive states: “We
operate in a highly regulated industry” and “are subject to many laws and regulations
designed to protect the communities and people we serve.” “These include state
insurance laws and federal state and local laws of general application. [¶] You are
responsible for complying with all applicable laws and regulations in your work for
Progressive.”3
       Claims specialists were required to review the Code each year, and Avedian and
Diaz did so.


joint motions to consolidate the appeals but ordered the court may consider appeals
B244193 (relating to Avedian) and B245747 (relating to Diaz and McGuinness)
concurrently for purposes of oral argument and decision.

2       Before Hawkins, Charlie Neville was the branch manager of the Sherman Oaks
office, but when Progressive terminated Neville’s employment, Hawkins took his place.

3       In fact, under the heading “Voicing Concerns and Reporting Possible Violations,”
Progressive’s Code further states: “It is your responsibility under this Code to speak up
whenever you know of or suspect a possible Code violation. As you consider this
responsibility, keep in mind: [¶] Speaking up is not optional. It is your duty to speak up
anytime you become aware of a concern, even if you aren’t sure whether the Code has
been violated. [¶] Speaking up is not risky. As explained in detail below, you can speak
up anonymously and are protected from retaliation whenever you speak up in good
faith. [¶] Speaking up is not harmful to Progressive. Reporting concerns helps keep
our Company strong by allowing us to address issues promptly and remedy problems
quickly.” (Original emphasis.)

       The Code provides a “confidential, toll-free Alertline” (accessible by telephone or
online) “if you’d like confidential assistance on ethics and compliance issues, to
anonymously report suspected violations of this Code, or if you believe that ethics and
compliance issues raised through other channels have not been resolved.” Initially,
however, the Code indicates: “You might start with your manager or your Human
Resources (HR) representative, but you should feel free to consult any of Progressive’s
managers or business leaders.”
                                            3
       A.     Insurance Code Section 790.03.
       The purpose of Insurance Code section 790 et seq. is to “regulate trade practices in
the business of insurance . . . by defining, or providing for the determination of, all such
practices in this State which constitute unfair methods of competition or unfair or
deceptive acts or practices and by prohibiting the trade practices so defined or
determined.” (Ins. Code, § 790 [all statutory references are to the Insurance Code unless
otherwise indicated].) “No person shall engage in this State in any . . . unfair method of
competition or an unfair or deceptive act or practice in the business of insurance.”
(§ 790.02.) Section 790.03 lists conduct expressly “define[d] as unfair methods of
competition and unfair and deceptive acts or practices in the business of insurance.” As
relevant here, subdivision (h) of section 790.03 “enumerates sixteen claims settlement
practices that, when either knowingly committed on a single occasion, or performed with
such frequency as to indicate a general practice, are considered unfair claims settlement
practices and are, thus, prohibited” by the Insurance Code. (Cal. Code Regs., tit. 10
(Regs.), § 2695.1, subdivision (a); § 790.03, subd. (h).)
       The unfair practices listed in subdivision (h) of section 790.03 include: “(2)
Failing to acknowledge and act reasonably promptly upon communications with respect
to claims arising under insurance policies[;] [¶] (3) Failing to adopt and implement
reasonable standards for the prompt investigation and processing of claims arising under
insurance policies[;] [¶] (4) Failing to affirm or deny coverage of claims within a
reasonable time after proof of loss requirements have been completed and submitted by
the insured[;] [¶] (5) Not attempting in good faith to effectuate prompt, fair, and equitable
settlements of claims in which liability has become reasonably clear[;] . . . [and] (13)
Failing to provide promptly a reasonable explanation of the basis relied on in the
insurance policy, in relation to the facts or applicable law, for the denial of a claim or for
the offer of a compromise settlement . . . .”
       As stated in the preamble of the “Fair Claims Settlement Practices Regulations”
(Regs., § 2695.1, subd. (a)), “The Insurance Commissioner has promulgated . . .
regulations in order the accomplish the following objectives: [¶] (1) To delineate certain

                                                4
minimum standards for the settlement of claims . . . [and] (2) to promote the good faith,
prompt, efficient and equitable settlement of claims on a cost effective basis . . . .” These
regulations mandate compliance with multiple strict deadlines. For example, unless the
claimant has initiated legal action, the insurer “shall immediately, but in no event more
than fifteen (15) calendar days” later, (1) acknowledge receipt of any claim (or pay the
claim) (Regs., § 2695.5, subd. (b)(1)); (2) provide the claimant necessary forms,
instructions and reasonable assistance, including but not limited to specifying the
information needed for proof of claim (Regs., § 2695.5, subd. (b)(2)); and (3) begin any
necessary investigation (Regs., § 2695.5, subd. (b)(3)).
       Upon receiving any communication from a claimant regarding a claim that
“reasonably suggests a response is expected,” in the absence of notice of legal action by
the claimant, the insurer “shall immediately, but in no event more than fifteen (15)
calendar days” later, furnish the claimant with a “complete response based on the facts
then known . . . .” (Regs., § 2695.5, subd. (b).) Upon receiving proof of claim, every
insurer “shall immediately, but in no event more than forty (40) days later,” accept or
deny the claim (and document the claim file as specified in the regulation) (Regs.,
§ 2695.7, subd. (b)), or if more time than the time allotted in subsection (b) of section
2695.7 is needed, the insurer shall provide written notice that more time is needed within
the same timeframe, and must specify the additional information required to make a
determination and state any continuing reason for the insurer’s inability to make a
determination (Regs., § 2695.7, subd. (c)(1)). Thereafter, written notice “shall be
provided every thirty (30) calendar days” until a determination is made or notice of legal
action is served, and if the determination cannot be made until some future event occurs,
the insurer must comply with this continuing notice requirement by advising the claimant
of the situation and providing an estimate as to when the determination can be made.
(Ibid.) Upon acceptance of a claim (in whole or in part), and upon receipt of a properly
executed release when necessary, every insurer (unless certain specified exceptions
apply) “shall immediately, but in no event more than thirty (30) calendar days late, tender


                                              5
payment” or otherwise take action to perform on the claim obligation.4 (Regs., § 2695.7,
subd. (h).)
       Pursuant to these regulations, the insurer “shall provide thorough and adequate
training regarding the regulations to all of their claims agents” and “shall certify that their
claims agents have been trained regarding these regulations and any revisions thereto.”
(Regs., § 2695.6, subd. (b).) Compliance with this mandatory obligation requires annual
written certification that the entity’s “claims adjusting manual contains a copy of these
regulations and all amendments thereto” and that “clear written instructions regarding the
procedures to be followed to effect proper compliance with this subchapter were provided
to all its claims agents . . . .” (Id., § 2695.6, subd. (b)(1) & (2).)
       B.      Appellants’ Workload and Complaints to Progressive.
       The claims representatives were responsible for knowing the requirements in the
Insurance Code that pertained to their work. In particular Avedian acknowledged having
received and read Progressive’s policies regarding those obligations.
       Avedian, Diaz and the other claims representatives in the Sherman Oaks office
were handling about 270 files on average; they looked at the claims numbers for the other


4      Some additional mandatory deadlines include the following:

       Except where a claim has been settled (or a claimant is represented by counsel),
the insurer “shall provide written notice of any statute of limitation or other time period
requirement upon which the insurer may rely to deny a claim” “not less than sixty (60)
days prior to the expiration date” except that, if notice is received within that sixty days,
then notice of the expiration date must be given to the claimant “immediately” and if the
claim is a first-party claim involving an uninsured motorist, the notice shall be given at
least 30 days prior to the expiration date or, if notice is first received within that 30 days,
such notice shall be given “immediately.” (Regs., § 2695.7, subd. (f).)

        Upon receipt of any inquiry from the Department of Insurance concerning a claim,
the insurer “shall immediately, but in no event more than twenty-one (21) calendar days
of receipt of that inquiry,” furnish a complete written response based upon the facts then
known, addressing all issues raised and providing copies of all documentation and claim
files requested. (Regs., § 2695.5, subd. (a).)

                                                6
Progressive offices and saw that the Sherman Oaks office had the highest workload out of
the entire state “by far.”
       On several occasions, Diaz complained to her supervisor that the workload was
“completely unmanageable.” She complained about “being swamped,” and she later
stated, “[I was] not able to properly handle my files . . . , [and it] was getting to the point
where people were not even responding to their demands in time. . . .” Diaz also
complained there were times when she was ready to write up her evaluation of a claim up
to the policy limits—“do[ing her] best to protect the insured” and “prevent bad faith from
happening[,]” but she was not permitted to do so and what she was told to do instead did
not “seem like the most ethical way[] of handling claims . . . .”
       Diaz and Giarletto also complained to Human Resources Consultant James
Kiedaisch at a group meeting with other claims specialists in the Sherman Oaks office.
They told Kiedaisch how upset they were about claims volumes and that they were “just
so overwhelmed with work” that they were “falling behind[,]” even though they were
“working as hard as [they] could” and sometimes staying late. It was a “terrible work
environment at the time. People were crying at their desk[s], leaving the
office . . . shaking.” Giarletto expressed her concern that the high workload might be
deemed impermissible by the Department of Insurance.
       Toward the end of 2008 and into 2009, Avedian complained at least 10-15 times
to branch manager Neville about the “enormous amount of work” and said it was
“impossible to control.” Avedian also complained about the workload to supervisors
Myers (about 10 times) and Doran as well. Neville said there was “nothing we can do”
and Myers told Avedian to “do his best.” When Hawkins replaced Neville in May 2009,
Avedian complained twice to him, but the high workload continued through the summer
of 2009.
       When he replaced Neville, Hawkins spoke with employees and saw the high
incoming claim volume was impacting morale; he saw that other branches did not have as
high an inventory as the Sherman Oaks office.
       Despite the complaints, the office’s workload conditions changed.

                                               7
2.       McGuinness’s Disability.
         In February 2009, McGuinness informed Progressive she had experienced a panic
attack on her way to work.5 Thereafter, she was diagnosed with bipolar disorder, anxiety
and depression. On February 12, 2009, she requested, and Progressive granted, disability
leave under the California Family Rights Act (CFRA). Her CFRA leave was exhausted
on May 4, 2009. At her request, Progressive granted her further personal leave. During
this time, her doctor prescribed a number of medications, had to increase dosages and
scheduled McGuinness to attend an intensive outpatient program three times per week.
McGuinness remained in contact with Progressive’s Leave Specialist Patricia Turner
until her leave time ran out. Before her leave time expired, McGuinness contacted
Human Resources Consultant Kiedaisch to discuss her return to work and to inquire
about further accommodations, including a transfer to the Valencia office and reporting
to a supervisor other than Myers.
         Thereafter, Progressive (through Turner) told McGuinness she could not transfer
to Valencia because the office was not a casualty office.6 Progressive extended
McGuinness’s personal leave to June 1, 2009, indicating it would not hold her position
open after that, and granted her request for a new supervisor.
         Upon her return in June 2009, McGuinness continued to see her doctor on a
weekly or biweekly basis; her new supervisor (Laura Doran) knew of the appointments
and discussed them with McGuinness. She also discussed her condition with the new
branch manager (Hawkins). McGuinness told Doran she was still having a difficult time
with work, her doctor was still adjusting her medications, and she felt scattered and
unfocused; Doran told McGuinness: “We’re trying to be understanding, but at some




5        Her commute reportedly averaged 1 ¾ hours each way.

6        The office later closed in October 2010 (16 months after McGuinness’s return to
work).
                                             8
point you’re going to have to perform, and that’s not going to be an excuse anymore.”7
McGuinness’s workload increased upon her return. McGuinness believed she had
returned to work sooner than she should have.
3.        Appellants’ Termination for Timecard Falsification.
          Progressive’s Code requires employees to keep timecards, accurately reflecting the
hours worked. Non-exempt employees are required to complete and submit a timecard
for each two-week pay period. Progressive follows an “honor system” requiring each
employee to keep track of hours worked in a manner enabling easy retrieval upon
request. Employees are to report errors promptly to their supervisor or human resources
representative. Intentional misrepresentation, such as the failure to report time off, is a
violation of the Code; falsification of timecards is identified as grounds for immediate
termination under Progressive’s policies. Integrity is listed as the first of Progressive’s
“Core Values.”
          On September 22, 2009, Human Resources Manager Jolane Davis sent an email to
claims specialists in which she stated it was the employee’s responsibility to accurately
report their hours worked on their time cards in order for Progressive to pay them
properly. She stated that to work but not report the time and to not work but report the
time were both violations of the Code which could subject the employee to disciplinary
action.
          On September 30, 2009, while “Progressive’s leadership” from the Sherman
Oakes Branch Office was attending a conference in Irvine, Claims Specialists
McGuinness, Avedian, Giarletto, Diaz and Caitlin Lassen were allegedly “away from the
Progressive office for an extended amount of time, leaving other Claims Specialist[s] to
cover their desks and calls.” Claim Specialist Danielle Sweet complained to Peter
Hawkins, Sherman Oaks Branch Manager, about the claims representatives’ extended
absences on October 2, 2009. Sweet also complained that three other employees,


7         As we will explain, the trial court erroneously excluded this evidence.

                                                9
Margaret Chavez, Lusine Marakian and Mia Lipton had also taken an “extended lunch”
that day.
       Claims specialists were entitled to a 30-minute lunch break, and when Hawkins
reviewed employee timecards for September 30, 2009 date, he saw that each of these
employees had recorded only a 30-minute lunch break.
       On October 8, 2009, Hawkins re-sent Davis’s September 22, 2009 email to the
claims specialists in the Sherman Oaks office. Hawkins also advised claims specialists, if
they had not accurately documented their hours worked on their timecards, they should
correct the timecards to make them accurate. He indicated an “overstatement” of hours
was not only an issue of a falsification of a record but also an “Integrity” violation and a
terminable offense under the Code.
       None of the claims representatives with inaccurate timecards made any changes to
their timecards.
       Based on Sweet’s complaint and Hawkins’s preliminary findings, on October 21,
2009, Progressive initiated a formal investigation, requesting the timecards of these
employees, along with “time data” (phone records, swipe records, computer activity
records and garage in and out records) for Diaz, Giarletto, Avedian, McGuinness and
Lassen for September 30, 2009.
       On October 27, 2009, Hawkins held a branch meeting and addressed the proper
procedures for completing timecards, emphasizing the importance of accurately reporting
hours worked. None of the appellants came forward to make any changes. Hawkins
acknowledged the employees in the Sherman Office seemed to view the October email as
establishing a new expectation with respect to timekeeping.
       Avedian’s timecard for the period including September 30, 2009 indicated that he
had worked nine hours (including one hour of overtime) on September 30, 2009—
commencing work at 7:00 a.m., stopping at noon, resuming at 12:30 p.m., and concluding
at 4:30 p.m. Diaz’s timecard indicated Diaz had worked an eight-hour day on September
30, 2009, commencing work at 7:30 a.m., stopping work at 11:00 a.m., resuming at 11:30
a.m., and concluding at 4:00. McGuinness’s timecard for the same date reflected an

                                             10
eight-hour work day, commencing at 9:00 a.m., stopping at 11:30 a.m., resuming at noon,
and concluding at 5:30 p.m. Giarletto’s timecard showed that she had worked nine hours
on September 30, 2009 (including one hour of overtime), commencing work at 8:00 a.m.,
stopping work at 11:30 a.m., resuming at noon, and concluding at 5:30 p.m.
      The timecards for the other four employees that were investigated – Lassen,
Chavez, Marakian and Lipton – also reflected that they all claimed to have worked an
eight-hour day on September 30, 2009.
      On November 11, 2009, Human Resources Manager Davis and Senior Claims
Director Grant interviewed Diaz and McGuinness (separately); Hawkins and Grant
interviewed Avedian and Giarletto (separately). Lassen, Chavez, Lipton were also
interviewed on November 11.8
      Based on Progressive’s investigation and interviews with Avedian, Diaz,
McGuinness and Giarletto, Progressive concluded all four had deliberately falsified their
September 30, 2009 timecards. They all left the Sherman Oaks office at about 11:40 a.m.
and had gone to lunch together at a popular casual dining restaurant. They returned to the
office between 1:42 and 1:51 p.m. Progressive determined Avedian had worked 6 hours
and 33 minutes (not the 9 hours he claimed); Diaz worked 6 hours and 25 minutes (not
the 8 hours she claimed); McGuinness worked about 5 hours and 25 minutes (not the 8
hours she claimed); and Giarletto worked 5 hours and 17 minutes (not the 9 hours she had
claimed).
      The investigation revealed that on September 30, 2009, Lassen, Chavez, Lipton,
and Marakian went to lunch with another employee, April Brandenburg, at a Japanese
restaurant. The timecards for Lassen, Chavez, Lipton, and Marakian were inaccurate.
Lassen worked 7 hours and 35 minutes, rather than the 8 hours she had claimed on her
timecard; Chavez worked 7 hours and 30 minutes, rather than the 8 hours she had
claimed; Marakian worked 7 hours and 12 minutes rather than the 8 hours reflected on

8      Progressive’s investigatory notes reflect Lusine Marakian was on family leave at
the time the interviews were conducted and thus was not interviewed on November 11,
2009.
                                           11
her timecard; and Lipton had worked a full 8 hours, but had not accurately recorded the
time she came to work and the time she left in the evening.
       On November 12, 2009, Progressive terminated Avedian, Diaz, McGuinness and
Giarletto for timecard falsification.9 According to the declaration of Human Resources
Consultant James Kiedaisch, who participated in the investigation of the timecard
discrepancies, Claims Specialists Lassen, Chavez, Marakian and Lipton were not
terminated for the inaccuracies in their respective timecards pertaining to September 30,
2009 “because the Company determined that the minimal time discrepancies involved
amount only to sloppy record keeping rather than an intentional integrity violation of the
Code of Business Conduct and Ethics. Nonetheless, these employees were still
disciplined through written and/or verbal warning.”
4.     Appellants’ Civil Action.
       Avedian, Diaz and McGuinness (along with Giarletto) each filed a complaint
against Progressive.10 Although each appellant asserted multiple claims, the only claim
at issue in Avedian’s and Diaz’s appeals is for wrongful termination in violation of public
policy (Lab. Code, § 1102.5; Ins. Code, § 790.03; Bus. & Prof. Code, § 17200 et seq.).
In McGuinness’s appeal, the only causes of action at issue are for failure to accommodate
disability and failure to engage in good faith in the interactive process (Gov. Code,
§ 12940, subds. (m) & (n)).
       More particularly, both Avedian and Diaz alleged that, during the six months
before they were terminated, they complained to Progressive managers and supervisors
that Progressive was actually or potentially violating statutes regarding unfair/deceptive
insurance business practices and claims settlement practices, including but not limited to
section 790.03, subdivision (h), and Business and Professions Code section 17200 et seq.


9     Avedian and Diaz had worked for Progressive for about six years; McGuinness
had worked for Progressive for less than three years.

10     Appellants also named as defendants Grant and Hawkins, but do not appeal from
the judgments entered as to these individual defendants.
                                            12
Avedian and Diaz alleged Progressive’s managers and supervisors freely admitted the
caseload in the Sherman Oaks office (about 250 cases and as many as 270 cases) was
“completely unmanageable” but warned the only way to meet expectations was to be
“‘perfect’” in the claims handling process and “‘complainers are the first to lose their
jobs.’” Avedian and Diaz further alleged public policy, as expressed in Labor Code
section 1102.5, was to prohibit employers from discriminating against, retaliating against
and terminating an employee for complaining of unlawful activity, such as unfair and
deceptive insurance business practices (including but not limited to violations of section
790.03, subdivision (h) and Business and Professions Code section 17200 et seq.), and
this public policy was designed to protect all employees and promote the general well
being of the community at large. Consequently, they alleged, Progressive’s actions in
retaliating against and terminating them were wrongful and in violation of the express
public policy of this state.
       According to McGuinness’s complaint, as a result of her work environment at
Progressive, she developed, aggravated and/or sustained bipolar disorder, anxiety and
depression. Beginning in or around February 2009 and continuing at least through
November 12, 2009, Progressive discriminated against, harassed and retaliated against
McGuinness on the basis of her disabilities by failing to determine the extent of her
disabilities and how they could be accommodated; failing to take affirmative steps to
inform her of job opportunities within the company; failing to consider her for and move
her into an opening for which she was qualified and could handle subject to her
disabilities; failing to engage in a timely, good faith, interactive process with her to
determine effective reasonable accommodations; and wrongfully terminating her on
November 12, 2009, for the pretextual reason she had “‘falsified documentation’ and
stolen time.”
       After answering and conducting discovery, Progressive filed motions for summary
judgment as to all of the appellants’ claims. With respect to Avedian’s and Diaz’s




                                              13
wrongful termination in violation of public policy claims, Progressive argued neither
Avedian nor Diaz could establish they engaged in protected activity.11
       In moving for summary adjudication of McGuinness’s claim for failure to
accommodate, Progressive argued the undisputed evidence established Progressive had
provided her with reasonable accommodation as she had been permitted to take leave and
had been assigned a different supervisor. Similarly, in moving for summary adjudication
of her claim for failure to engage in good faith in the interactive process, Progressive
argued the undisputed evidence demonstrated Progressive had engaged in good faith in
the interactive process.
       Avedian and Diaz argued Progressive wrongfully terminated their employment in
retaliation for their complaints about Progressive’s business practices and the stated
reason for their termination was pretextual. McGuinness argued Progressive’s
accommodations were insufficient and Progressive had ignored her continued efforts to
communicate the inadequacy of the accommodations provided.12 Over the appellants’
opposition, the trial granted Progressive’s motions for summary judgment in their
entirety.

11      Actually, in its notices of motion for summary judgment as to Avedian’s and
Diaz’s wrongful termination causes of action, Progressive framed the issue as follows:
“Because Plaintiff premises [his or her] cause of action for retaliation in violation of
public policy upon a violation of . . . Labor Code section 1102.5, this claim fails to the
extent [his or her] Labor Code section 1102.5 claims fails.” As to the Labor Code section
1102.5 causes of action, Progressive asserted its entitlement to summary adjudication on
the ground(s) that “Plaintiff’s cause of action for violation of . . . Labor Code section
1102.5 et seq. fails because the undisputed material facts establish that Progressive did
not enforce any rule, regulation or policy preventing an employee from disclosing
information to a government agency. The undisputed material facts also establish that
Plaintiff did not engage in a protected act under . . . Labor Code [section] 1102.5 et seq as
Plaintiff did not complain to a government or law enforcement agency. There is also no
triable issue of fact that Defendant’s actions were based upon legitimate business reasons
and Plaintiff cannot show evidence of pretext.”

12     Progressive also filed objections to the appellants’ evidence, and the trial court
sustained a number of these objections. Each appellant challenges a number of these
evidentiary rulings on appeal.
                                             14
       McGuiness, Diaz and Avedian appeal from the judgments subsequently entered.
                                        DISCUSSION
I.     Standard of Review.
       “[T]he party moving for summary judgment bears the burden of persuasion that
there is no triable issue of material fact and that he is entitled to judgment as a matter of
law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar), fn.
omitted; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) “Once the
[movant] has met that burden, the burden shifts to the [other party] to show that a triable
issue of one or more material facts exists as to that cause of action . . . .” (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) The party opposing
summary judgment “may not rely upon the mere allegations or denials of its pleadings,”
but rather “shall set forth the specific facts showing that a triable issue of material fact
exists . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact
exists where “the evidence would allow a reasonable trier of fact to find the underlying
fact in favor of the party opposing the motion in accordance with the applicable standard
of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.)
       “On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained.” (Guz, supra, 24
Cal.4th at p. 334.) We consider all the evidence set forth in the moving and opposition
papers, except that evidence to which objections have been made and sustained. (Ibid.)
However, “[w]e do not resolve conflicts in the evidence as if we were sitting as the trier
of fact. [Citation.] Instead, we draw all reasonable inferences from the evidence in the
light most favorable to the party opposing summary judgment. [Citation.]” (Nadaf-
Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961.)
       This appeal requires an analysis of what inferences may be drawn from the
admissible evidence. A material issue of fact may not be resolved based on inferences, if
contradicted by other inferences or evidence. (See Code Civ. Proc., § 437c, subd. (c);
Aguilar, supra, 25 Cal.4th at p. 856.) “[T]he court may not weigh the plaintiff’s evidence

                                              15
or inferences against the defendants as though it were sitting as the trier of fact,” but must
determine the question of law of “what any evidence or inference could show or imply to
a reasonable trier of fact.” (Aguilar, at p. 856.) Where the evidence and inferences
would allow a reasonable trier of fact to find the underlying fact in favor of a plaintiff in
accordance with the applicable standard of proof, then a defendant’s motion for summary
judgment must be denied. (Id. at p. 850.)
       With respect to appellate review of the trial court’s evidentiary rulings on the
evidence submitted in connection with the motion, our Supreme Court has not yet
determined whether we review the trial court’s evidentiary rulings for abuse of discretion
or de novo. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [“we need not decide
generally whether a trial court's rulings on evidentiary objections based on papers alone
in summary judgment proceedings are reviewed for abuse of discretion or reviewed de
novo”]; but see Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326,
1335 [“‘the weight of authority holds that an appellate court reviews a court's final
rulings on evidentiary objections by applying an abuse of discretion standard’”].) We
need not decide this issue here, as our conclusion would be the same applying either
standard of review.
II.    The Avedian (B244193) and Diaz (B245747) Appeals: Wrongful Termination
in Violation of Public Policy.
       Avedian’s and Diaz’s claims for wrongful termination are based on their
complaints of illegal business practices in violation of section 790.03. To establish such
a claim, a plaintiff must prove: (1) the plaintiff was employed by the defendant; (2) the
defendant employer discharged the plaintiff (or took other adverse action); (3) the
termination of the plaintiff’s employment was a violation of public policy—that is, a
nexus exists between the termination and the employee’s protected activity (in this case,
the internal reporting of an unlawful business practice) such that the protected activity
was a substantial motivating reason for the plaintiff’s discharge; and (4) the discharged




                                              16
caused the plaintiff harm. (See Holmes v. General Dynamics Corp. (1993) 17
Cal.App.4th 1418, 1426; see also CACI No. 2430.)13
       “When a plaintiff alleges retaliatory employment termination . . . [such] as a claim
for wrongful employment termination in violation of public policy, and the defendant
seeks summary judgment, California follows the burden-shifting analysis of McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792 to determine whether there are triable issues
of fact for resolution by a jury. . . . In the first stage, the ‘plaintiff must show (1) he or
she engaged in a “protected activity,” (2) the employer subjected the employee to an
adverse employment action, and (3) a causal link existed between the protected activity
and the employer's action.’ [Citation.]” (Loggins v. Kaiser Permanente Internat. (2007)
151 Cal.App.4th 1102, 1108-1109 (Loggins).)
       If the employee successfully establishes these elements, “the burden shifts to the
employer to provide evidence that there was a legitimate, nonretaliatory reason for the
adverse employment action. [Citation.]” (Loggins, supra, 151 Cal.App.4th at p. 1109.)
If such a legitimate reason is shown, the burden shifts back to the employee to provide
“‘substantial responsive evidence’ that the employer’s proffered reasons were untrue or
pretextual. [Citation.]” (Ibid.)
       A.      Prima Facie Case.
               1.     Protected Activity.
       Our Supreme Court has determined that, in a claim of wrongful termination in
violation of public policy, the employee’s protected activity must fall into one of four
categories: the employee must have (1) refused to violate a statute; (2) performed a
statutory obligation; (3) exercised a constitutional or statutory right or privilege; or (4)


13      As the use notes to CACI No. 2430 (elements of claim for wrongful termination in
violation of public policy) state: “The judge should determine whether the purported
reason for firing the plaintiff would amount to a violation of public policy. (See Gantt v.
Sentry Insurance (1992) 1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680];
overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80
fn. 6 [78 Cal.Rptr.2d 16, 960 P.2d 1046] (Green).) The jury should then be instructed
that the alleged conduct would constitute a public-policy violation if proved.”
                                               17
reported a statutory violation for the public’s benefit. (Green, supra, 19 Cal.4th at p. 76.)
Courts have routinely found that employees have engaged in a protected activity when
they have complained about workplace circumstances or policies which violate statutes,
regulations or constitutional provisions. (See, e.g., Scott v. Phoenix Schools, Inc. (2009)
175 Cal.App.4th 702, 709 [employee was discharged for refusing to violate an
administrative regulation limiting minimum teacher-student ratios]; Gould v. Maryland
Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1149 [employee fired for reporting
violations of overtime laws to management]; Collier v. Superior Court (1991) 228
Cal.App.3d 1117, 1123 [employee discharged after reporting to management that
company executives were violating bribery, embezzlement, and tax laws]; Hentzel v.
Singer Co. (1982) 138 Cal.App.3d 290, 298 [employee was discharged for protesting
unsafe work conditions]; Petermann v. International Brotherhood of Teamsters (1959)
174 Cal.App.2d 184, 188-189 [employer insisted an employee perjure himself].)
       Progressive concedes section 790.03 constitutes a fundamental statutory provision
designed for the public’s benefit as required. (Tameny v. Atlantic Richfield Co. (1994)
7 Cal.4th 1238, 1256-1257 [the tort of wrongful discharge in violation of public policy is
not a vehicle for enforcement of an employer’s internal policies or the provisions of its
agreements with others; the discharge must implicate a “fundamental public policy
embodied in a statute or constitutional provision”]; Green, supra, 19 Cal.4th at p. 80.)
However, Progressive claims neither Avedian nor Diaz engaged in protected activity
because a complaint about a “heavy workload does not translate into unlawful conduct
violative of statutory insurance claims handling requirements.” We disagree.
       Here appellants’ ability to prove they were engaged in a protected activity depends
on whether they reported to Progressive that its business practices violated the Insurance
Code. More specifically, the issue is whether appellants’ complaints about their
unmanageable workload and their inability to timely complete their work could
reasonably be interpreted as complaints that the volume of work at Progressive had
resulted in the violation of Insurance Code provisions governing the prompt settlement of
claims.

                                             18
       In our view, the admissible evidence presented in connection with the summary
judgment motions gives rise to a reasonable inference that appellants’ complaints
informed Progressive of its violation of its obligations under the Insurance Code. The
statute and related insurance regulations at issue promote good faith and timely
settlement of claims. (See § 790.03 [prohibiting unfair or deceptive acts and practices];
10 Cal. Code Regs., §§ 2695.1, 2695.2, 2695.3, 2695.5, 2695.7, 2695.12 [promoting good
faith, prompt, efficient and nondiscriminatory equitable settlement of claims].)
Progressive was aware of these legal obligations related to claims settlement, and was
required to train its Claims Specialists about those requirements. Appellants were
knowledgeable of these claims-handling obligations imposed by the law.
       Diaz, Avedian, McGuiness and Giarletto all held the same position at Progressive
as a “ Claims Specialist” and all performed the same job functions. They regularly
interacted with each other in the workplace and socially outside of work. In fact, on
September 30, 2009 – the date they allegedly misreported the time they worked – they
went to lunch together. This evidence gives rise to the inference that appellants and
Giarletto discussed among themselves the high workload and the challenges they faced in
promptly responding to insurances claims.
       In addition, in the months before they were terminated, appellants all
communicated essentially the same complaint to their supervisors at Progressive: they
could not properly and timely handle their claims files because of the unmanageable
volume of work.14 They made these complaints repeatedly. They complained



14     We agree with appellants that the trial court erred in excluding evidence of their
complaints on hearsay grounds; the appellants’ complaints about their workload were not
offered for the truth of the matter stated. Instead the evidence was offered to prove that
appellants were engaged in a protected activity—complaining about a violation of statute.
Evidence that these words were spoken is admissible as nonhearsay evidence. (See
People v. Fields (1998) 61 Cal.App.4th 1063, 1068–1069; People v. Smith (2009) 179
Cal.App.4th 986,1003 [“Written or spoken words offered as original evidence rather than
for their truth are generally referred to as ‘operative facts’ and are admissible as non-
hearsay.”]. )
                                            19
individually and during group meetings. Giarletto even went so far as to question
whether the high workload might be deemed impermissible by the Department of
Insurance.15 The sum and substance of appellants’ complaints directly related to the
unfair practices listed under section 790.03, subdivision (h), even though appellants did
expressly name the regulation or statute that they suggested Progressive violated by its
workload conditions. Indeed, a plaintiff is not required to identify the precise statute or
regulation to prove he or she reported a statutory violation for the public’s benefit. (See
Green, supra, 19 Cal.4th at p. 85 [general reports of suspected wrongful activity may
constitute protected activity, and an employee need not prove an actual violation of law].)
       Green is instructive on this point. The defendant in Green manufactured and
supplied airplane components for military and civilian aircraft. Green worked for
defendant as quality control inspector. In 1990, Green claimed he noticed that defendant
was sending airplane parts to its clients even though, according to Green, some of those
parts failed the inspections his team performed. On several occasions over the next year,
Green objected to defendant’s practice to supervisory and management personnel and to
the company president. After he was fired in 1991, Green filed a wrongful termination
action against defendant. Green alleged that defendant terminated him in retaliation for
his complaints about its inspection practices. (Green, supra, 19 Cal.4th at pp. 72-73.)
The defendant in Green, like Progressive in this case, claimed that Green had failed to
engage in a protected activity, because, among other arguments, Green’s complaints
about the safety inspections focused on defendant’s internal practices and procedures, and
did not amount to a complaint that defendant’s conduct violated any federal law. Our
Supreme Court disagreed, concluding that “by informing defendant that he believed it
was shipping defective parts for use in passenger aircraft, [Green] gave defendant
adequate notice that his concern involved potentially significant public policy matters



15     According to Giarletto, the “gist” of her manager’s response to that question was
that “she [the manager] wasn’t exactly sure it was allowed by the Department of
Insurance, to handle that many claims.”
                                             20
because the FAA requires manufacturers to establish quality control procedures for the
component parts they produce.” (Id. at p. 85.) The Supreme Court concluded, “[t]hus,
unlike some cases in which an employer’s violation of its own internal procedures does
not implicate public policy . . . , the internal quality control procedures at issue in this
case are part of a statutory and regulatory scheme established by Congress and the FAA,
designed to ensure the manufacture of safe aircraft.” (Ibid.)
       So too here, the unmanageable workload at Progressive that purportedly caused
the claims specialists to fail to timely complete their work implicated the statutory and
regulatory scheme governing the good faith, prompt processing of insurance claims.
In the context of appellants’ employment as claims specialists in the highly regulated
insurance industry, it is reasonable to infer that the complaints at issue here constituted
complaints about unlawful business practices. Because the evidence and inferences from
the evidence could allow a trier of fact to find that appellants were reporting a violation
of the law, a triable issue of material fact exists on the issue of whether appellants
engaged in a protected activity.
              2.      Adverse Employment Action.
       This element is undisputed as both Avedian and Diaz were terminated.
              3.      Causal Link.
       Avedian and Diaz presented evidence they had worked for Progressive for
approximately six years, as well as evidence they had been making their complaints
within the six months preceding their terminations. (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 615 [“‘The causal link may be established by an
inference derived from circumstantial evidence, “such as the employer’s knowledge that
the [employee] engaged in protected activities and the proximity in time between the
protected action and allegedly retaliatory employment decision.”’ [Citation.]”].)
       B.     Legitimate, nonretaliatory reason.
       Progressive presented evidence Avedian and Diaz were terminated for falsifying
their timecards, satisfying its burden of producing a legitimate, nonretaliatory reason for
their terminations. (Loggins, supra, 151 Cal.App.4th at p. 1109.) Progressive argues that

                                               21
although appellants were given the opportunity to correct their time cards, they failed to
do so.
         C.     Pretext.
         Because Progressive presented a legitimate, nonretaliatory reason for appellants’
terminations, the burden shifted back to Avedian and Diaz to provide substantial
responsive evidence that Progressive’s proffered reasons were untrue or pretextual.
(Loggins, supra, 151 Cal.App.4th at p. 1109.)
         To that end, appellants contend that Progressive’s stated reason for their
termination is a pretext because Progressive did not terminate the other employees –
Lassen, Chavez, Lipton and Marakain – who had also misreported their work time for
September 30, 2009. Appellants point out that these other claims specialists were only
issued warnings for their timecard inaccuracies. Appellants also assert that there is no
evidence that any of the claims specialists who were investigated for the timecard
discrepancy corrected the errors in the timecards. Appellants argue that the difference
between the claims specialists who were fired for falsifying timecards and those who
were not fired for the recordkeeping mistake is that appellants (and Giarletto) had
complained about the unmanageable workload at the office. Appellants maintain that the
fact that they were singled out for termination demonstrates that Progressive’s proffered
reason for terminating their employment is a pretext.
         Progressive counters appellants’ pretext argument, responding that Lassen,
Chavez, Lipton and Marakain, on the one hand, and appellants, on the other hand, were
not similarly situated. Progressive claims that Lassen, Chavez, Marakian and Lipton
were not terminated for the inaccuracies in their respective timecards (ranging from 25 to
48 minutes) because Progressive determined that Lassen’s, Chavez’s, Marakian’s and
Lipton’s timekeeping errors were “minimal time discrepancies” that reflected “sloppy
record keeping” rather than an “intentional integrity violation.” In contrast, Progressive
asserts that appellants committed falsification of time cards to such a “significant degree”
and under “such circumstances” that Progressive determined their conduct to be
“intentional” and thus constitute an integrity violation.

                                              22
          Progressive’s response is problematic; it does not resolve the issue of pretext.
The only uncontroverted distinction between the appellants and Lassen, Chavez,
Marakian and Lipton is the amount of the time discrepancy – a maximum of 48 minutes
for those who received warnings compared to a maximum of more than two hours for
those who were terminated. However, Progressive has never claimed that the amount of
the time discrepancy justified the different discipline. In fact, Branch Manager Hawkins
testified that he was unaware of any company policy establishing that a certain time
discrepancy on a timecard would establish “intentional” timecard falsification while a
smaller discrepancy would constitute only “sloppy record keeping.” Indeed, whether an
employee misreports her time worked by 30 minutes or an hour and 30 minutes, the
amount of the time discrepancy, standing alone, does not resolve the issue of her intent in
reporting her time. On appeal, Progressive does not argue that the amount of the time
discrepancy was solely indicative of intent to falsify the timecard; Progressive refers to
other unspecified “circumstances” in conjunction to the time discrepancies as the basis of
its conclusion that appellants acted with intent.
       Thus, the determination of pretext must be resolved by examining evidence in the
record in addition to the amount of the time discrepancy. The evidence Progressive relies
upon on this issue is presented in the declaration of HR Consultant James Kiedaisch.
Although Kiedaisch described Progressive’s conclusions about the investigation, he does
not identify the evidence underlying those conclusions – i.e., how or why Progressive
determined that appellants’ falsification of their cards was intentional. Likewise
Kiedaisch fails to explain why falsification by Lassen, Chavez, Marakian and Lipton was
merely “sloppy record keeping.” Progressive’s response as disclosed in Kiedaisch’s
declaration is, therefore, conclusory and lacking in a foundation in the evidence in the
record.
       Nonetheless, elsewhere in the record, Kiedaisch’s investigation notes and
summary illuminate these issues. These documents disclose, however, similarities
among the claims specialists who were fired and those who received warnings for the
timecard errors. For example, Chavez admitted to investigators she had misreported her

                                               23
time—she “[l]ooked at her timecard, says that lunch was probably a little longer than
what she put down [on the card.]” Chavez’s admission about misreporting her 30 minute
lunch break was corroborated by April Brandenburg who went to lunch with Chavez,
Lipton and Marakian on September 30, 2009. Brandenburg told investigators that they
took “probably a 45 minute lunch.” This evidence raises questions about Progressive’s
conclusion that Chavez’s timecard error was unintentional or inadvertent. In fact,
Chavez’s response is substantially similar to Diaz’s admission (recorded in the notes of
her interview) that her timecard was incorrect.
       In addition, Lassen told investigators that she kept track of her time by simply
documenting her daily work schedule, rather than recording the actual time she worked.
She figured “it all came out in the wash” as in “I buy dinner today and you buy dinner
tomorrow.” Avedian similarly told investigators that he worked the same schedule every
day, and that he took lunch at the same time so that he did not write down his exact hours
he worked every day. Evidence that Avedian and Lassen used a similar inexact method
to record their time raises a question as to why they received different punishment for
their inaccurate time cards.
       Furthermore, it appears that while Progressive gave Lassen, Chavez and Lipton an
opportunity to explain the discrepancies in their respective timecards, and that
Progressive apparently gave credence to those explanations, Diaz, Avedian and
Grialetto’s explanations were summarily rejected or ignored by Progressive.16
According to Diaz, she asked if she could get her calendar to refresh her recollection as to
what happened on September 30, 2009, but she was not allowed to do so. The
investigator’s notes from Diaz’s interview appear to corroborate Diaz’s claim that she


16     The trial court excluded as hearsay the testimony of Avedian, Diaz and Giarletto,
concerning explanations and statements they made during the interviews. In our view,
this evidence is non-hearsay and should have been admitted. This evidence was not
being offered for the truth of the statements. Instead these statements are admissible to
prove that Avedian, Diaz and Giarletto offered to explain their timecard discrepancies – a
matter that is relevant to the issue of whether the appellants were similarly situated to the
other claims specialists who were warned rather than terminated for the timecard errors.
                                             24
told her interviewers she would have taken ETB (which appears to mean something akin
to employee earned time on the books) or makeup time. Avedian testified that he told
the investigators that he “forgot” to record the long lunch hour and indicated that he
could take ETB hours. Giarletto testified that she repeatedly told investigators she would
never have intentionally misreported her time because she was sure she would have made
it up other days without being paid overtime as she often did, but it seemed to her that
nothing she said mattered.
       Finally, the investigatory notes and summary reflect it was reported that on
September 29, 2009, Diaz had “jokingly said” to another colleague that she and Avedian
“had been planning for 3 weeks about what they were going to do for lunch while the
leadership group was gone” on September 30, 2009. The investigation summary
characterized Diaz’s comment as: “[a]t the time, an innocent, funny comment perhaps,
but in retrospect, not so innocent.” The fact that appellants had coordinated their
September 30, 2009 lunch plans in advance does not, in our view, prove that they also
intended to misrepresent the time they worked on September 30. In fact, Progressive’s
investigation summary indicates that there was some confusion among the claims
specialists about how to properly document their time when they took extended breaks or
lunches.
       In short, we find evidence in the record sufficient to create a triable issue of
material fact as to pretext; a reasonable juror could conclude the stated reason for the
terminations was unworthy of credence given the inconsistencies in the evidence. (See
Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
       In view of the triable issues of fact, we conclude the trial court erred in granting
summary judgment for Progressive on Avedian’s and Diaz’s respective wrongful
termination claims.
III.   McGuinness’s Appeal.
       A.     The Trial Court Erred in Excluding McGuinness’s Evidence.
       McGuinness argues the trial court erred in excluding three portions of evidence on
which she relied in opposing Progressive’s motion for summary judgment or

                                             25
adjudication. Progressive maintains the trial court properly sustained Progressive’s
hearsay objections to this evidence.
        First, McGuinness cites to her own deposition testimony, stating that, shortly
before she returned from leave, she had asked Jim Kiedaisch if she could work out of the
Valencia office because it “would greatly reduce her stress.” According to her testimony,
she told Kiedaisch she had “[s]evere anxiety driving,” sometimes she would forget where
she was and would get lost easily, and she had been in two accidents; a transfer to the
Valencia office would make her feel more at ease because she would not have to drive as
far. The trial court sustained Progressive’s hearsay objection to this evidence.
        Second, McGuinness cites to her testimony that, on several occasions, upon her
return to work, she told her new supervisor (Laura Doran) she was “still having a difficult
time” and “was discussing it with [her] doctor at every appointment[; t]hey were still
switching medications and [she] still felt overwhelmed[;] [she] still felt very scattered and
unfocused.” Again, the trial court sustained Progressive’s hearsay objection to this
testimony.
        Third, McGuinness cites to her deposition testimony that, in response to the
foregoing statements, Doran told McGuinness: “We’re trying to be understanding, but at
some point you’re going to have to perform, and that’s not going to be an excuse
anymore.” The trial court sustained Progressive’s hearsay objection to this testimony as
well.
        The court erred. Because McGuinness relied on this evidence not to show that the
words spoken were true but rather that the words were spoken in the course of her
communications with Progressive—as part of the interactive process itself—in
connection with the accommodation of her disability, the statements were nonhearsay.
(Weathers v. Kaiser Found. Hosps. (1971) 5 Cal.3d 98, 109-110; People v. Fields, supra,
61 Cal.App.4th at pp. 1068-1069; People v. Smith, supra, 179 Cal.App.4th at p. 1003).
As we will explain in addressing the merits of McGuinness’s claims, she was prejudiced
by the exclusion of this substantive evidence.


                                             26
II. Failure to Engage in the Interactive Process.
       It is an unlawful employment practice (unless based upon a bona fide occupational
qualification or applicable state or federal security regulation) “[f]or an employer . . . to
fail to engage in a timely, good faith, interactive process with the employee . . . to
determine effective reasonable accommodations, if any, in response to a request for
reasonable accommodation by an employee . . . with a known physical or mental
disability or known medical condition.”17 (Gov. Code, § 12940, subd. (n); Claudio v.
Regents of the University of California (2005) 134 Cal.App.4th 224, 243 (Claudio) [an
employee may file a civil action based on an employer’s failure to engage in the
interactive process].)
       ““‘The interactive process is . . . the primary vehicle for identifying and achieving
effective adjustments which allow disabled employees to continue working without
placing an “undue burden” on employers.’” (Jensen v. Wells Fargo Bank (2000) 85
Cal.App.4th 245, 261-262 (Jensen), citation omitted.) “Both employer and employee
have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the
process.’ (Jensen, supra, 85 Cal.App.4th at p. 266.) ‘Each party must participate in good
faith, undertake reasonable efforts to communicate its concerns, and make available to
the other information which is available, or more accessible, to one party. Liability
hinges on the objective circumstances surrounding the parties’ breakdown in
communication, and responsibility for the breakdown lies with the party who fails to
participate in good faith.’ [Citation.]” (Scotch v. Art Institute of California (2009) 173
Cal.App.4th 986, 1014 (Scotch).)
       According to Progressive, “McGuinness bases her claim on Progressive’s alleged
failure to continue the interactive process once she returned to work. However, no such


17      Progressive does not dispute that McGuinness has a disability within the meaning
of FEHA (Gov. Code, § 12926, subd. (j)); the recently expanded definition of mental
disability now includes bipolar disorder and similar conditions as examples of qualifying
disabilities. (Cal. Code Regs., tit. 2, § 11065, subd. (d)(1) [formerly § 7293.6, subd.
(d)(1), renumbered without substantive change].)
                                              27
obligation existed. McGuinness concedes that she returned to work full-time without any
restrictions on June 1, 2009. Upon her return to work, therefore, her request for
accommodation had concluded and she had no basis for any new request.” (Original
italics.) Progressive mischaracterizes its obligation under the law.
       In fact, contrary to Progressive’s unsupported assertion, “Once the interactive
process is initiated, the employer’s obligation to engage in the process in good faith is
continuous. ‘[T]he employer’s obligation to engage in the interactive process extends
beyond the first attempt at accommodation and continues when the employee asks for a
different accommodation or where the employer is aware that the initial accommodation
is failing and further accommodation is needed.” (Scotch, supra, 173 Cal.App.4th at
p. 1013; ibid. [“This rule fosters the framework of cooperative problem-solving . . . by
encouraging employers to seek to find accommodations that really work. . . .”].)
       McGuinness presented evidence (although the trial court erroneously excluded it)
that on several occasions after she returned to work, she told Doran she was “still having
a difficult time” as she was discussing with her doctor at every appointment, he was “still
switching [her] medications” and she “still felt overwhelmed,” “very scattered and
unfocused.” In response, Doran told McGuinness: “We’re trying to be understanding,
but at some point you’re going to have to perform, and that’s not going to be an excuse
anymore.” In other words, McGuinness presented evidence upon which a reasonable
trier of fact could conclude her “employer [wa]s aware that the initial accommodation
[wa]s failing and further accommodation [wa]s needed” (Scotch, supra, 173 Cal.App.4th
at p. 1013); yet, contrary to its continuing duty to engage in the interactive process in
good faith, Progressive did nothing to explore what other accommodation(s) might be
possible, and instead contributed to or caused a breakdown in the interactive process, as
evidenced by Doran’s characterization of a condition recognized as a disability under
FEHA as “an excuse.”18 (Id. at p. 1014; and see California Fair Employment & Housing

18     Because it is undisputed that Progressive already had notice of McGuinness’s
disability, its reliance on Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237,
1249, and Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 348, as authority for the
                                             28
Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1015 [“A supervisor is
the employer’s agent for purposes of vicarious liability for unlawful discrimination”].)
Because “[l]iability hinges on the objective circumstances surrounding the parties’
breakdown in communication, and responsibility for the breakdown lies with the party
who fails to participate in good faith” (Scotch, supra, 173 Cal.App.4th at p. 1014) and we
find triable issues in this regard, summary adjudication of McGuinness’s claim for failure
to engage in the interactive process should not have been granted.19 (See Wilson v.
County of Orange (2009) 169 Cal.App.4th 1185, 1193 (Wilson) [whether the employer
failed to engage in the interactive process is generally a question of fact].)
III. Failure to Accommodate Disability.
       It is unlawful and separately actionable under FEHA for an employer “to fail to
make reasonable accommodation for the known physical or mental disability of an
applicant or employee” unless the accommodation would cause “undue hardship” to the
employer.20 (Gov. Code, § 12940, subd. (m); see Spitzer v. Good Guys, Inc. (2000) 80


proposition McGuinness’s statements to Doran were insufficient notice of a claimed
disability or the request for accommodation of a claimed disability is entirely misplaced.
Moreover, Progressive’s own evidence documented McGuinness’s inquiries regarding
the possibility of initially returning to work part-time or working in the Valencia office in
the short term.

19      Progressive also argues McGuinness “never requested a new accommodation after
returning to work,” but cites no authority supporting such a requirement. (Original
italics.) As the Scotch court explained, the law is to the contrary. (Scotch, supra, 173
Cal.App.4th at p. 1014 [“‘[T]he employer’s obligation to engage in the interactive
process extends beyond the first attempt at accommodation and continues when the
employee asks for a different accommodation or where the employer is aware that the
initial accommodation is failing and further accommodation is needed”].)

20     Generally, the employee bears the burden of giving the employer notice of the
disability. “‘This notice then triggers the employer’s burden to take ‘positive steps’ to
accommodate the employee’s limitations. . . . [¶] . . . The employee, of course, retains a
duty to cooperate with the employer’s efforts by explaining [his or] her disability and
qualifications. [Citation.] Reasonable accommodation thus envisions an exchange
between employer and employee where each seeks and shares information to achieve the
                                              29
Cal.App.4th 1376, 1383 (Spitzer).) The elements of a claim for failure to provide
reasonable accommodation of a disability are (1) the plaintiff has a disability within the
meaning of FEHA, (2) the plaintiff is qualified to perform the essential functions of the
position and (3) the employer failed to reasonably accommodate the plaintiff’s disability.
(Scotch, supra, 173 Cal.App.4th at pp. 1009-1010, citing Wilson, supra, 169 Cal.App.4th
at p. 1192.)
       Progressive essentially argues it reasonably accommodated McGuinness until she
returned to work without restrictions and that is all that is required. Again, the law is not
so narrowly drawn. Assuming the employee is disabled, an employer cannot prevail on
summary judgment on a claim of failure to reasonably accommodate unless it establishes
through undisputed facts that (1) reasonable accommodation was offered and refused; (2)
there simply was no vacant position within the employer’s organization for which the
disabled employee was qualified and which the disabled employee was capable of
performing with or without accommodation; or (3) the employer did everything in its
power to find a reasonable accommodation, but the informal interactive process broke
down because the employee failed to engage in discussions in good faith. (Jensen, supra,
85 Cal.App.4th at p. 263; Claudio, supra, 134 Cal.App.4th at p. 243 [same].)
       “Where a necessary accommodation is obvious, where the employee requests a
specific and available reasonable accommodation that the employer fails to provide, or
where an employer participates in a good faith interactive process and identifies a
reasonable accommodation but fails to provide it, a plaintiff may sue under section
12940(m).” (Nadaf-Rahrov v. Neiman Marcus Group, supra, 166 Cal.App.4th 952, 983.)
Reasonable accommodation may include job restructuring, part-time or modified work
schedule, reassignment to a vacant position and other similar accommodations for
individuals with disabilities. (Gov. Code, § 12926, subd. (n).)
       On this record, given Progressive’s knowledge of McGuinness’s disability and the
surrounding circumstances, a reasonable trier of fact could conclude that Progressive

best match between the employer’s capabilities and available positions.’ [Citation.]”
(Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950.)
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should have known McGuinness needed an accommodation in transitioning from months
spent out of the office while seeking treatment for a recently diagnosed condition to a
heavier workload than before her leave commenced; a reasonable trier of fact could also
conclude McGuinness’s requests to initially work part-time or in the Valencia office in
the short term were reasonable accommodations Progressive failed to provide.
Accordingly, summary adjudication of the claim for failure to make reasonable
accommodation was improperly granted as McGuinness identified triable issues of
material fact in this regard. (See Spitzer, supra, 80 Cal.App.4th at p. 1389 [because the
extent of respondent’s knowledge of the failure of job restructuring to reasonably
accommodate appellant and the need to reassign her to another position is unclear, a
triable issue is presented]; Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227,
fn. 11 [whether the employer failed to provide the employee a reasonable accommodation
for her disability is generally a question of fact]; Wilson, supra, 169 Cal.App.4th at p.
1193 [same].)
                                      DISPOSITION
       The judgments in favor of Progressive on Avedian’s and Diaz’s complaints and
orders granting summary adjudication of their respective causes of action for wrongful
termination in violation of public policy are reversed. The judgment in favor of
Progressive on McGuinness’s complaint and order granting summary adjudication of her
claims for failure to accommodate disability and for failure to engage in good faith in the
interactive process are reversed. Avedian, Diaz and McGuinness are to recover their
costs on appeal.


                                                                       WOODS, J.
We concur:


              PERLUSS, P. J.                                           SEGAL, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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