Filed 12/24/13 Lopez v. Stone Brewing Co. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


KEVIN B. LOPEZ,                                                     D062431

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2011-00052402-
                                                                    CU-WT-NC)
STONE BREWING COMPANY et al.

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

M. Casserly, Judge. Reversed.



         Law Office of David A. Miller and David A. Miller for Plaintiff and Appellant.

         Gordon & Rees, James J. McMullen, Jr., Eric M. Volkert and Tara J. Gillman for

Defendants and Respondents.

         Kevin B. Lopez appeals a judgment entered after the trial court granted summary

judgment in favor of his former employer, Stone Brewing Company (Stone) and

Koochenvagners Brewing Company (together, Defendants), in this action arising out of

his termination from employment. He contends that the court erred in summarily
adjudicating his claims against Defendants. As we shall explain, the trial court erred in

summarily adjudicating two of Lopez's claims; accordingly, we reverse the judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND

       In November 2007, Defendants hired Lopez to work as a line cook in Stone's

bistro. In July 2009, Lopez became a bottling line operator, reporting to Kris Ketcham,

Stone's packaging supervisor. In December 2009, Ketcham filled out a team lead

statement reporting that Lopez had rashes on his skin that went away after Lopez took

one week off of work, concluding that sanitizing chemicals caused the rashes. Stone sent

Lopez to its corporate clinic, Palomar Pomerado Health (the Clinic). The Clinic

recommended that Lopez avoid contact with known irritants, use appropriate personal

protective equipment when using products and rotate job tasks.

       In late December 2009, the Clinic concluded there was no "clear work place

etiology" and referred Lopez to a primary care physician for further assessment of his

upper extremity dermatitis because Lopez's rashes did not go away after he avoided

contact with the known irritants. In early April 2010, a work status report from the Clinic

indicated that Lopez should avoid the use of gloves, hand contact with hot water,

chemicals and known irritants. (All further date references are to 2010.) Stone

transferred Lopez to its distribution center for about a month where he performed

warehouse work that did not require wearing gloves, such as driving a forklift and

stacking pallets.




                                             2
       In late April, a work status report from the Clinic instructed Lopez to wear glove

liners. The glove liners that Stone purchased did not improve Lopez's symptoms. In

early May, the Clinic again advised Lopez to wear glove liners and avoid contact with hot

water and chemicals. Around this time, Stone offered Lopez a keg line operator position,

but Lopez declined this reassignment because the shifts interfered with his class schedule.

       On May 12, Lopez's dermatologist advised that Lopez must avoid wearing gloves

altogether because it "worsens his skin condition." Lopez's supervisor shifted job duties

to provide Lopez with additional forklift duties so that Lopez could avoid wearing gloves.

Lopez, however, took a turn too quickly while driving a forklift that caused half of the

cases on the pallet to fall off. Lopez met with Vickie Motte, Stone's human resources

director, to discuss job reassignment, but they postponed the discussion until after Lopez

finished his exams.

       On May 18, Motte sent Lopez a letter explaining that Stone was not aware of an

effective accommodation to return him to the bottling line as a result of his recent "no

glove" restriction. Two days later, Lopez met with Motte to discuss available jobs within

his restrictions. Motte inquired if Lopez would be interested in a busser position, but he

declined believing he would contact water when bringing dishes to the kitchen. Lopez

and Motte also discussed prep cook and Chef de Partie positions, but Lopez believed he

did not have the skills for the Chef de Partie position and that both positions required him

to get his hands wet.




                                             3
       When Motte informed him that there were no other available positions, Lopez

believed he had no choice but to agree to a separation from Stone. On his unemployment

application form, Lopez stated he could "no longer fulfill the responsibilities" of his

position due to a skin condition.

       Lopez filed this action alleging causes of action for wrongful termination,

disability discrimination, retaliation, failure to prevent retaliation and discrimination,

failure to accommodate, failure to engage in interactive process, violation of Labor Code

section 132a and unsafe working conditions. Defendants moved for summary judgment,

alternatively summary adjudication of each of Lopez's causes of action. The trial court

issued a tentative ruling granting the motion. The trial court later confirmed its tentative

ruling and entered judgment in favor of Defendants.

                                       DISCUSSION

                                        I. Objections

A. Defendants' Separate Statement

       Lopez objected to Defendants' separate statement of undisputed facts as "fatally

defective." Lopez asserted that Defendants improperly lumped numerous facts into each

"undisputed fact" to tell a story, thus making it difficult to respond to the motion. The

trial court overruled Lopez's objection to the format of Defendants' separate statement.

Lopez claims the ruling amounted to a prejudicial abuse of discretion.




                                               4
       Subdivision (b)(1) of Code of Civil Procedure section 437c requires that summary

judgment motions include a separate statement that "plainly and concisely" sets forth "all

material facts which the moving party contends are undisputed. Each of the material

facts stated shall be followed by a reference to the supporting evidence. The failure to

comply with this requirement of a separate statement may in the court's discretion

constitute a sufficient ground for denial of the motion." The rules of court further

provide that the moving separate statement "separately identify each cause of action,

claim, issue of duty, or affirmative defense, and each supporting material fact claimed to

be without dispute with respect to the cause of action, claim, issue of duty, or affirmative

defense. In a two-column format, the statement must state in numerical sequence the

undisputed material facts in the first column followed by the evidence that establishes

those undisputed facts in that same column. Citation to the evidence in support of each

material fact must include reference to the exhibit, title, page, and line numbers." (Cal.

Rules of Court, rule 3.1350(d).)

       Defendants' separate statement follows this format, however, each "undisputed

fact" is a collection of facts. For example, Defendants' first "undisputed fact" consists of

the following: "On November 26, 2007, [Lopez] was hired to work as a line cook in

Stone's Bistro earning $9.00/hour. Soon thereafter, in or around February 1, 2008, his

title changed to "Commis" or prep cook. While working as a line and prep cook in the

Bistro, he was accommodated by being allowed to leave early for his classes and other

class-related work to finish his Bachelors [sic] Degree in Philosophy. At no time while



                                             5
working in the Bistro did he complain about any medical condition or otherwise." These

numerous facts are then followed by citations to the supporting evidence.

       The purpose of the separate statement requirement is to give the parties notice of

the material facts at issue and to allow the trial court to focus on those facts. (Parkview

Villas Assn., Inc. v. State Farm Fire Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.)

This purpose is defeated when background information is mixed with facts material to a

cause of action or defense. With that said, putting background information in a separate

statement can save the trial court a substantial amount of time by allowing it to focus on

facts that are truly disputed. Accordingly, if background facts are put into a separate

statement each fact should be separately listed. Because facts were lumped together,

Lopez was required to list those facts he agreed were undisputed and then those facts he

contended were disputed. While this may have increased his burden in opposing the

motion, we cannot conclude that the trial court prejudicially abused its discretion in

accepting Defendants' separate statement.

B. Evidentiary Objections

       In ruling on the motion, the trial court expressly sustained or overruled numerous

objections to evidence submitted by the parties. In summary judgment proceedings, the

weight of authority holds that appellate courts review evidentiary rulings under an abuse

of discretion standard. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th

1326, 1335.) Here, however, the parties do not challenge any of the trial court's

evidentiary rulings as erroneous or prejudicial; accordingly, we accept the trial court's

evidentiary rulings and deem any challenge to them as waived. (Cahill v. San Diego Gas

                                              6
& Electric Co. (2011) 194 Cal.App.4th 939, 956 [" ' "When an appellant fails to raise a

point, or asserts it but fails to support it with reasoned argument and citations to

authority, we treat the point as waived." ' "].) In reviewing this appeal we considered

only evidence to which the parties did not object, or to which the trial court overruled the

objections.

                                         II. Motion

A. General Legal Principles

       We independently review an order granting summary judgment or adjudication,

viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v.

Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We first identify the issues framed by

the pleadings because it is those issues the papers must address. (Clark v. Baxter

Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054.) Second, we determine if the

moving party's evidence demonstrates the opponent cannot establish its claim and

justifies a judgment in the moving party's favor. (Ibid.) Lastly, we determine whether

the opposing party's evidence demonstrates a triable issue of material fact. (Ibid.) In

determining whether there are triable issues of fact, we consider all the evidence set forth

by the parties, except that to which objections have been made and properly sustained.

(Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,

334 (Guz).) In performing our review, we are not bound by the trial court's stated

rationale, but independently determine whether the record supports the trial court's

conclusion that the plaintiff's claims failed as a matter of law. (Prilliman v. United Air

Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)

                                              7
B. Disability Discrimination

       The Fair Employment and Housing Act (FEHA; Gov. Code § 12940 et. seq.)

"prohibits employment discrimination based on a physical disability." (Colmenares v.

Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022.) (Undesignated statutory

references are to the Gov. Code.) To resolve discrimination claims California courts use

the three-stage burden-shifting test established by the United States Supreme Court in

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (Guz,

supra, 24 Cal.4th at p. 354.) Under this test, the plaintiff has the initial burden of

establishing a prima facie case of discrimination. (Guz, at p. 354.) "A prima facie case

generally means the plaintiff must provide evidence that (1) the plaintiff was a member of

a protected class, (2) the plaintiff was qualified for the position he or she sought or was

performing competently in the position held, (3) the plaintiff suffered an adverse

employment action, such as termination, demotion, or denial of an available job, and (4)

some other circumstance suggests a discriminatory motive." (Scotch v. Art Institute of

California (2009) 173 Cal.App.4th 986, 1004 (Scotch).)

       "If the plaintiff establishes a prima facie case, then a presumption of

discrimination arises, and the burden shifts to the employer to rebut the presumption by

producing admissible evidence sufficient to raise a genuine issue of material fact the

employer took its actions for a legitimate, nondiscriminatory reason. [Citation.] If the

employer meets that burden, the presumption of discrimination disappears, and the

plaintiff must challenge the employer's proffered reasons as pretexts for discrimination or



                                              8
offer other evidence of a discriminatory motive." (Scotch, supra, 173 Cal.App.4th at

p. 1004.)

       To establish a prima facie case for disability discrimination under the FEHA a

plaintiff must show he: (1) suffers from a disability; (2) is otherwise qualified to do his

job; and (3) was subjected to adverse employment action because of his disability.

(Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) The FEHA,

however, " 'does not prohibit an employer from . . . discharging an employee with a

physical or mental disability, . . . where the employee, because of his or her physical or

mental disability, is unable to perform his or her essential duties even with reasonable

accommodations . . . .' " (Scotch, supra, 173 Cal.App.4th at p. 1005.) Where an

employee claims discriminatory discharge under section 12940, subdivision (a), the

employee has the burden of showing "(1) that he or she was discharged because of a

disability; and (2) that he or she could perform the essential functions of the job with or

without accommodation . . . ." (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166

Cal.App.4th 952, 962 (Nadaf-Rahrov).)

       Defendants moved for summary adjudication of this claim on two grounds:

(a) Lopez could not establish a prima facie case of disability discrimination because he

could not perform the essential functions of his job as a bottling line operator even with

reasonable accommodation, and (b) they had a legitimate, nondiscriminatory reason for

terminating Lopez's employment because he refused other available vacant positions.

The trial court granted the motion on the second ground noting that Defendants presented

evidence that they had a nondiscriminatory reason for terminating Lopez's employment

                                              9
because he refused other available vacant positions. Although not addressed by the trial

court, we first examine whether Defendants' evidence shows Lopez could not establish a

prima facie case of discrimination because he could not perform the essential functions of

any available position with or without reasonable accommodation.

       "Evidence of whether a particular function is essential includes, but is not limited

to, the following: [¶] (A) The employer's judgment as to which functions are essential. [¶]

(B) Written job descriptions prepared before advertising or interviewing applicants for

the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The

consequences of not requiring the incumbent to perform the function. [¶] (E) The terms

of a collective bargaining agreement. [¶] (F) The work experiences of past incumbents in

the job. [¶] (G) The current work experience of incumbents in similar jobs." (§ 12926,

subd. (f)(2).)

       Additionally, "[a] job function may be considered essential for any of several

reasons, including, but not limited to, any one or more of the following: [¶] (A) The

function may be essential because the reason the position exists is to perform that

function. [¶] (B) The function may be essential because of the limited number of

employees available among whom the performance of that job function can be

distributed. [¶] (C) The function may be highly specialized, so that the incumbent in the

position is hired for his or her expertise or ability to perform the particular function."

(§ 12926, subd. (f)(1).)




                                              10
       In moving for summary adjudication, Defendants argued that they terminated

Lopez because he could not perform the essential functions of his job with or without

accommodation. Defendants asserted that working with sanitizing chemicals was an

essential function of Lopez's job. This assertion, however, is not supported by a citation

to any evidence showing that sanitizing equipment was an essential job function and that

wearing gloves and being exposed to sanitizing chemicals or water were essential

characteristics of Lopez's job as a bottling line operator. Nor did Defendants present

evidence showing that sanitizing equipment was an essential job function because of the

limited number of employees available among whom the performance of this job function

could be distributed or that the job was highly specialized.

        Moreover, Defendants' own evidence does not support their assertion.

Defendants' separate statement listed Lopez's job duties and included a written job

description signed by Lopez. The "essential duties and responsibilities" of Lopez's job

included: glass thrower, case-packer operator, taper, stamper, stacker, forklift driver and

filler operator. Each of these categories listed specific job duties; the duties listed did not

include sanitizing equipment. Additionally, the description of the work environment

noted physical demands of the job and listed several characteristics, including exposure

to airborne particles; however, wearing gloves and exposure to sanitizing chemicals or

water are not listed.




                                              11
       Furthermore, a triable issue of fact exists as to whether Lopez's exposure to

chemicals while sanitizing equipment caused his rashes. In December 2009, Lopez's

supervisor concluded that sanitizing chemicals caused Lopez's rashes because the rashes

went away after Lopez took one week off work. Admissible portions of Lopez's

declaration suggest that his use of chemicals while sanitizing equipment caused his

rashes. Namely, he did not suffer from rashes when he first began working as a bottling

line operator. While working in that position he worked with chemicals such as

Dioxychlor and Diactolate to sanitize the bottle filling machine and these chemicals

splashed on his body and collected in his gloves. His rashes developed thereafter and

worsened the longer he was exposed to them. Although Defendants also presented

evidence suggesting there was "[n]o clear workplace etiology" for Lopez's rashes, this

merely shows a conflict in the evidence for the trier of fact to resolve.

       We now turn to the second basis for summary adjudication, whether Defendants

presented evidence that they had a nondiscriminatory reason for terminating Lopez's

employment. On this ground the trial court concluded Defendants had a

nondiscriminatory reason for terminating Lopez's employment because he refused other

available vacant positions. The record supports Defendants' contention that Lopez

refused other available vacant positions; namely, busser, prep cook and Chef de Partie.

Thus, the burden of proof shifted to Lopez to present evidence showing "the employer's

proffered reasons as pretexts for discrimination or offer other evidence of a

discriminatory motive." (Scotch, supra, 173 Cal.App.4th at p. 1004.)



                                             12
       Here, the entirety of the evidence creates a reasonable inference that Defendants

had a discriminatory motive or that their nondiscriminatory reason for the adverse action

was untrue. Motte stated in her declaration that Defendants discussed reassigning Lopez

when they realized he "could not perform the essential duties and functions of his

position as a Bottling Line Operator." As our earlier discussion reveals, the evidence

suggests that sanitizing equipment using chemicals was not an essential function of

Lopez's job. Defendants' own evidence also suggests a number of reasonable

accommodations existed that might have allowed Lopez to retain his existing position,

such as wearing additional protective gear, not using the chemicals or avoiding sanitation.

(Post, pt. II.C.) Although Defendants shifted Lopez's job duties so that he could avoid

wearing gloves, wearing gloves is not listed as a characteristic of Lopez's work

environment and Defendants presented no evidence showing that Lopez was required to

wear gloves to perform the various duties listed in his written job description.

       Finally, Defendants terminated Lopez shortly after he presented a doctor's note

and requested to be accommodated to eliminate the wearing of gloves. The timing of

Lopez's termination, combined with the above evidence and weaknesses in the evidence,

is sufficient to raise a triable issue of fact as to whether the reason for Lopez's termination

was pretextual. Accordingly, the trial court erred in summarily adjudicating Lopez's

claim for disability discrimination.

C. Failure to Provide Reasonable Accommodation

       The FEHA prohibits an employer from "fail[ing] to make reasonable

accommodation for the known physical or mental disability of an . . . employee."

                                              13
(§ 12940, subd. (m).) "The elements of a failure to accommodate claim are (1) the

plaintiff has a disability under the 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.) A reasonable accommodation is "a modification or adjustment to the workplace

that enables the employee to perform the essential functions of the job held or desired."

(Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 974.)

       Under the California Code of Regulations, examples of reasonable

accommodations include reassignment to a vacant or temporary position. (Cal. Code

Regs., tit. 2, § 11068, subd. (d) & (d)(3).) "If the employee cannot be accommodated in

his or her existing position and the requested accommodation is reassignment, an

employer must make affirmative efforts to determine whether a position is available."

(Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223 (Raine).) As with a FEHA

discrimination claim, the plaintiff bears the burden of proving that he or she had the

"ability to perform the essential functions of a job with accommodation." (Nadaf-

Rahrov, supra, 166 Cal.App.4th at p. 977.)

       Defendants moved for summary adjudication of the failure to accommodate claim

arguing the undisputed facts show they did everything they were required to do under the

FEHA to reasonably accommodate Lopez. The trial court granted the motion on this

claim finding Defendants' evidence revealed that Lopez refused to accept two vacant

positions, that the burden shifted to Lopez to show a triable issue of fact as to whether a

reasonable accommodation was offered and that Lopez failed to meet this burden.

                                             14
Significantly, however, only when an employee cannot be accommodated in his existing

position must an employer make affirmative efforts to determine whether another

position is available. (Raine, supra, 135 Cal.App.4th at p. 1223.) Here, a triable issue of

fact exists as to whether Defendants could have reasonably accommodated Lopez in his

current position.

       As discussed above, Defendants failed to present evidence showing that sanitizing

equipment, using chemicals and wearing gloves were essential functions of Lopez's job.

As such, a triable issue of fact exists as to whether a reasonable accommodation included

eliminating equipment sanitizing or tasks involving chemicals or wearing gloves.

Lopez's supervisor stated that "after taking a week off" Lopez's rashes "went away" and

that when Lopez began sanitizing again, the rashes returned. Although Defendants

presented other evidence suggesting that Lopez's sanitizing work and chemical exposure

did not cause the rashes, a trier of fact must resolve this conflict.

       To the extent that sanitizing equipment, using chemicals and wearing gloves were

essential functions of Lopez's job, Defendants' own evidence suggests a number of

reasonable accommodations existed that might have allowed Lopez to retain his existing

position. For example, Lopez's supervisor recommended that Lopez wear additional

protective gear, such as a "full body suit," not use the chemicals or avoid sanitation. The

Clinic also recommended that Lopez avoid contact with known irritants, use appropriate

personal protective equipment when using products and rotate job tasks. Defendants

presented no evidence showing they offered Lopez additional personal protective

equipment, such as a full body suit as suggested by Lopez's supervisor. While

                                              15
Defendants provided Lopez with cotton glove liners as suggested by the Clinic, Lopez

presented evidence that the chemicals saturated the liners and the liners held the

chemicals against his skin.

       Additionally, "[h]olding a job open for a disabled employee who needs time to

recuperate or heal is in itself a form of reasonable accommodation and may be all that is

required where it appears likely that the employee will be able to return to an existing

position at some time in the foreseeable future." (Jensen v. Wells Fargo Bank (2000) 85

Cal.App.4th 245, 263.) Here, the evidence Defendants presented is conflicting as to

whether Lopez simply needed additional time to heal. When the rashes first manifested

Lopez's supervisor noted that they went away after Lopez took a week off sanitizing. In

contrast, Lopez testified during his deposition that when he stopped doing sanitation for

an unspecified period of time the rashes remained. Moreover, admissible portions of

Lopez's declaration suggest that his rashes began to heal after he worked in the

warehouse for two to three weeks without wearing gloves and without being exposed to

chemicals, but that he was sent back to the bottling line and his request for

accommodation of extra time to heal was refused. Thus, the trial court erred in

summarily adjudicating Lopez's claim for failing to provide a reasonable accommodation.

D. Failure to Engage in Interactive Process

       The FEHA makes it unlawful for an employer "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

                                              16
condition." (§ 12940, subd. (n).) The essential elements of a cause of action for failure

to engage in an interactive process are: (1) the plaintiff has a disability that was known to

his employer, (2) the plaintiff requested that his employer make a reasonable

accommodation for that disability so he would be able to perform the essential job

requirements, (3) the plaintiff was willing to participate in an interactive process to

determine whether a reasonable accommodation could be made, (4) the employer failed

to participate in a timely, good faith interactive process with the plaintiff, (5) the plaintiff

was harmed, and (6) the employer's failure to engage in a good faith interactive process

was a substantial factor in causing the plaintiff's harm. (§ 12940, subd. (n); CACI

No. 2546.)

       "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. This rule

fosters the framework of cooperative problem-solving contemplated by the ADA, by

encouraging employers to seek to find accommodations that really work . . . .' " (Scotch,

supra, 173 Cal.App.4th at p. 1013.) To prevail on a claim for failing to engage in the

interactive process, the plaintiff must prove not only that the employer failed to engage in

an appropriate interactive process, but that a reasonable accommodation was possible.

(Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.)



                                               17
       Defendants sought summary adjudication of this claim contending the evidence

shows they continuously engaged in the interactive process and reasonably

accommodated Lopez in numerous ways over an extended period of time. The trial court

granted the request, finding that the evidence presented in connection with the

discrimination and retaliation claims indicate Defendants engaged in the interactive

process by offering Lopez several alternative jobs and that Lopez had not met his burden

of showing the existence of a triable issue of material fact. We conclude the trial court

erred because Defendants' evidence suggests a reasonable accommodation was possible

and they failed to engage in an appropriate interactive process.

       As discussed above, a triable issue of fact exists as to whether Defendants could

reasonably accommodate Lopez by eliminating the task of sanitizing equipment from

Lopez's job duties. (Ante, pt. II.C.) This evidence creates an inference that Defendants

failed to engage in an appropriate interactive process. Notably, Defendants presented no

evidence showing they sought to keep Lopez in his current position by eliminating the

task of sanitizing equipment from Lopez's job duties. Nor did they present evidence

showing it was impossible to accommodate Lopez by eliminating the task of sanitizing

equipment. Thus, the trial court erred in summarily adjudicating Lopez's claim for failing

to engage in the interactive process.

E. Retaliation and Failure to Prevent Retaliation and Discrimination

       It is unlawful for an employer to "discharge, expel, or otherwise discriminate

against any person because the person has opposed any practices forbidden under this

part or because the person has filed a complaint, testified, or assisted in any proceedings

                                             18
under this part." (§ 12940, subd. (h).) It is also unlawful for an employer to "fail to take

all reasonable steps necessary to prevent discrimination and harassment from occurring."

(§ 12940, subd. (k).) A cause of action for failure to prevent retaliation may be stated

under section 12940, subdivision (k). (Taylor v. City of Los Angeles Dept. of Water &

Power (2006) 144 Cal.App.4th 1216, 1239-1240.)

         Lopez's complaint contains causes of action for retaliation and failure to prevent

retaliation and discrimination. Lopez alleged that Defendants retaliated against him

based on his acts of seeking accommodation for his medical condition and complaining

about broken glass. Retaliation claims, like discrimination claims, are subject to the

three-stage burden-shifting test. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,

1042.)

         "To establish a prima facie case of retaliation, a plaintiff must show that she

engaged in protected activity, that she was thereafter subjected to adverse employment

action by her employer, and there was a causal link between the two." (Fisher v.

San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614 (Fisher).) The prima

facie evidentiary burden is " 'not onerous.' " (Guz, supra, 24 Cal.4th at p. 355.) "The

retaliatory motive is 'proved by showing that plaintiff engaged in protected activities, that

his employer was aware of the protected activities, and that the adverse action followed

within a relatively short time thereafter.' [Citation.] '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



                                               19
protected action and allegedly retaliatory employment decision." ' " (Fisher, supra, at

pp. 614-615.)

       Defendants challenged Lopez's prima facie showing of retaliation, arguing that a

causal link did not exist between the protected activity and their action because there is

no evidence that an adverse employment action was based on Lopez's medical condition

or complaining about broken glass. The trial court summarily adjudicated the retaliation

claim because Lopez failed to show that Defendants were motivated by a discriminatory

reason or that their reason for termination was unworthy of credence. Because it found

no discrimination or retaliation, the trial court concluded that Lopez's claim for failure to

prevent retaliation and discrimination necessarily failed.

       We conclude that Lopez made the minimal evidentiary showing necessary to

sustain a prima facie case of retaliation. Defendants do not challenge that Lopez engaged

in a protected activity (i.e., seeking an accommodation) and that he suffered an adverse

employment action (i.e., lost his job). Defendants challenge whether Lopez met his

prima facie burden of showing that a causal link existed between the two factors.

       Significantly, "[a] plaintiff can satisfy his or her initial burden under the test by

producing evidence of nothing more than the employer's knowledge that the employee

engaged in protected activities and the proximity in time between the protected action

and the allegedly retaliatory employment decision." (McRae v. Department of

Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388.) Here, admissible

portions of Lopez's declaration show that on May 12, he obtained a doctor's note



                                              20
requesting accommodation for his work-related injury and disability. He gave the note to

Motte on May 14, and was terminated on May 20.

       Thus, the trial court erred in summarily adjudicating Lopez's retaliation claim.

Additionally, because Lopez has stated actionable claims for discrimination and

retaliation, his claim for failure to prevent discrimination and retaliation survives. (See

Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)

F. Wrongful termination

       A claim for wrongful termination in violation of public policy requires a plaintiff

to prove (1) he was employed by the defendant, (2) the defendant discharged him, (3) a

violation of public policy was a motivating reason for the discharge, and (4) the discharge

caused him harm. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th

623, 641.) This claim, however, fails as a matter of law where the plaintiff is unable to

establish a violation of an underlying statute or constitutional right. (See, e.g., Hobson v.

Raychem Corp. (1999) 73 Cal.App.4th 614, 632.) Because Lopez's claims alleging

various violations of the FEHA survived Defendants' motion, this claim survives as well.

(Ante, pts. II.B-E.)

G. Violation of Labor Code section 132a

       Labor Code section 132a prohibits employers from discriminating against

employees "who are injured in the course and scope of their employment." Lopez alleged

that Defendants retaliated and discriminated against him when he made it known that he

intended to file a worker's compensation claim. Relying on City of Moorpark v. Superior

Court (1998) 18 Cal.4th 1143 (Moorpark), Defendants sought summary adjudication of

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this claim on the ground it is improper to bring a claim for violation of Labor Code

section 132a in civil court. The trial court agreed.

       Moorpark provides that "the Workers Compensation Appeals Board [is] the

exclusive forum" for claims brought under Labor Code section 132a. (Moorpark, supra,

18 Cal.4th at p. 1156.) Lopez did not argue differently on appeal; rather, relying on

Moorpark, he claimed that a Labor Code section 132a violation may be used as a public

policy basis to bring a common law claim for wrongful termination.

       Our high court in Moorpark held that Labor Code section 132a does not provide

an exclusive remedy against disability discrimination and does not preclude an employee

from pursuing remedies under the FEHA and common law wrongful termination

remedies. (Moorpark, supra, 18 Cal.4th at p. 1158.) The Moorpark court, however,

never addressed the precise issue whether a violation of Labor Code section 132a can

form the basis of a common law action of wrongful termination in violation of public

policy. Recently, another appellate court addressed this issue and concluded that a

violation of Labor Code section 132a cannot be the basis of a tort action for wrongful

termination. (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal.App.4th 750,

755.) Thus, to the extent Lopez asserts this claim is one for wrongful termination based

on a violation of Labor Code section 132a, the claim fails. Thus, the trial court properly

granted summary adjudication of this claim.

H. Unsafe Working Conditions

       "Any employee who is discharged . . . by his or her employer because the

employee has made a bona fide oral or written complaint to . . . his or her employer, . . .

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of unsafe working conditions, or work practices, . . . shall be entitled to reinstatement and

reimbursement for lost wages and work benefits caused by the acts of the employer."

(Lab. Code, § 6310, subd. (b).)

       Lopez asserted a claim for retaliation for opposing unsafe working conditions in

violation of Labor Code sections 6300, et seq. and 6400, et seq. Lopez alleged that he

repeatedly complained to management about unsafe working conditions in the bottling

department created by excessive broken glass. The trial court granted summary

adjudication of this claim on the ground Lopez admitted that he never complained about

excess broken glass. During his deposition, Lopez testified that he believed broken glass

in the bottle operation constituted a safety issue, but admitted that he never complained

about the problem. The admissible portions of Lopez's declaration also fail to show he

complained about the problem; accordingly, his claim for retaliation for opposing unsafe

working conditions necessarily fails.




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                                      DISPOSITION

       The judgment is reversed and the matter is remanded to the trial court for further

proceedings consistent with this opinion. The trial court is directed to vacate its order

granting Defendants' summary judgment and to enter a new and different order (1)

denying Defendants' motion for summary judgment, (2) denying Defendants' motion for

summary adjudication of Lopez's causes of action for disability discrimination,

retaliation, failure to prevent retaliation and discrimination, failure to accommodate,

failure to engage in interactive process and wrongful termination, and (3) granting

Defendants' motion for summary adjudication of Lopez's causes of action for violation of

Labor Code section 132a and unsafe working conditions. Plaintiff is entitled to his costs

on appeal.



                                                                             MCINTYRE, J.

WE CONCUR:


NARES, Acting P. J.


O'ROURKE, J.




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