SAPIENS v CICLEO LANDSCAPES, INC.
SAPIENS v CICLEO LANDSCAPES, INC.
Case Number
22CV00360
Case Type
Hearing Date / Time
Mon, 01/22/2024 - 10:00
Nature of Proceedings
Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Defendant
Tentative Ruling
SAPIENS v CICLEO LANDSCAPES, INC.
Case No. 22CV00360
Hearing Date: January, 22, 2024
HEARING: Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Defendant
ATTORNEYS: For Plaintiff : Bruce Anticouni, Nicole Ricotta,
ANTICOUNI & RICOTTA
For Defendant : Melissa Fassett, Jeremy Frankel
PRICE, POSTEL & PARMA, LLP
TENTATIVE RULING:
The motion for summary adjudication is denied as to each cause of action: and the motion for summary judgment is therefore also denied.
__________________________________________________________________
Background:
Plaintiff, who was employed by Defendant as a landscaper/driver, alleges that he suffered an on-the-job injury to his knee; and that he was terminated at age 66 while still on medical leave for this injury. He asserts eight causes of action for: disability discrimination (1st c/a); retaliation in violation of FEHA (2d c/a); failure to prevent discrimination and retaliation (3rd c/a); failure to accommodate (4th c/a); failure to engage in interactive process (5th c/a); age discrimination (6th c/a); wrongful discrimination in violation of public policy (7th c/a); and intentional infliction of emotional distress (8th c/a).
Defendant asserts that Plaintiff was not terminated; that he never sought an accommodation from Defendant; that he simply stopped reporting to work because of his fear of Covid; and that he was not qualified to work. Defendant moves for summary judgment, or alternatively, summary adjudication as to each cause of action.
Evidence presented
Plaintiff and Defendant have each filed Separate Statements which contain numerous facts which they contend are “material”. The following are the key material facts, evidence and objections to evidence which the court deems material to its disposition of this motion.
Plaintiff’s highest level of education is third grade, English is his second language, and he has difficulty speaking reading and writing in English. He therefore has his daughter, Marie Sapiens, communicate and email for him. (Pltf’s AUF 8, 9, 10, 11).
Plaintiff commenced his employment with Defendant Cicileo Landscapes (CLI) on May 23, 2018. (Def’s UMF 2) Defendant does not dispute that on August 10, 2020, Plaintiff injured his left knee while at work when he stepped into a sprinkler head hole. (Plaintiff’s AUF 15). There is a dispute, however, as to whether Plaintiff asked CLI for accommodation (Def.’s UMF14). Plaintiff has stated in deposition, in his declaration, and in responses to discovery that that he reported his injury to one of his supervisors, Cusner, on the afternoon of August 10; and that Cusner told him to tell Mr. Almazar the next morning and ask for a form to see a company doctor. On the morning of August 11, when he told Almazar that he didn’t think he could work because of his knee, and asked Almazar for the form, Almazar told him CLI did not have a company doctor, did not give him any information about worker’s compensation, and told him to go home. (Pltf’s Response to Def’s UMF 14--Plaintiff’s Decl., parag. 6, 7; Plaintiff’s Depo., pp. 28:24-29:5; Plaintiff’s Form Rog. Response No. 17.1 (b) on RFA No. 2 [Defendant’s Appendix of Evidence Exhibit 2].)
On August 11, 2020, Plaintiff had a telemedicine visit with Family Nurse Practitioner Nancy Warner, who sent a note to CLI (Def.’s UMF 8). Defendant admits that the note was sent to CLI ((Def.’s UMF 8), but asserts that the note “prevented” Plaintiff from returning to work until September 20, 2020. The note itself states that Plaintiff “is under my care for medical problems + possible covid exposure”; that he “should be excused from work from 8/11-9/20”; and that he may return to work “with no restrictions on 9/20”. (Ricotta Decl., Ex A: Marie Sapiens Decl., Ex. A).
Warner’s Office Visit Note dated August 11, 2020, identifies the reason for Plaintiff’s visit as “Sciatic pain/ Rt knee Pain”, but the assessment identifies “left knee pain” and “left knee swelling”. The Office Visit Note also states “COVID 19 exposure as many co- workers have tested +. He (and daughter) do not feel it is safe for him to continue work”. (Riccota Decl., Ex. B, Gregorio Sapiens Depo., Ex. 15)
Cheryl McCallon is the office manager for CLI and handles their HR issues. On August 11, 2020, Marie Sapiens emailed McCallon stating “My father is having a rough time right now with his knee and a possible Covid -19 contact. His Dr has placed him on medical leave for a month to help him feel better. He will return to work if all goes well (God permit) on 09/21/2020”. McCallon emailed Marie back asking if Plaintiff had been tested to relieve his mind, and Marie responded “He feels horrible he is not able to work but believe me when I say he prefers to be working than to be home all day. He will be back in no time.”. (Ricotta Decl., Ex A: Marie Sapiens Decl., Ex. B)
Plaintiff testified that on Thursday August 20, he called his doctor and said he was ready to go back to work. (Plaintiff’s Depo., p. 71:4-17, 72:7-73:6.) FNP Nancy Warner’s Office Visit Note of that same date states: “Functional ability/level of safety: “Fully functional”, “sciatic and knee pain almost resolved”. (Plaintiff’s Decl., ¶ 12, Ex. B.)
On Friday, August 21, McCallon sent an email to Marie stating “I just wanted to check in to see if your dad's knee is doing better.” Marie responded that same day, stating “We spoke to his Dr yesterday and hoping he can return to work on Wednesday. He is doing better and he is eager to get back to work. I will keep you posted and reach out to you on Monday to confirm”. (Ricotta Decl., Ex A: Marie Sapiens Decl., Ex. C)
Plaintiff has testified to the following: He called Mr. Almanza early on the morning of Monday, August 24, told him that he had seen his doctor, was ready to go back to work, and he would be returning on Wednesday, August 26, 2020 (Plaintiff's Depo. p. 71:18-22; Plaintiff's Decl., § 14.). Mr. Almanza told Plaintiff that work was slow, that the boss said that he wanted Plaintiff to wait a few more days, and to wait for CLI to let Plaintiff know when worked picked up (Plaintiff’s Depo., pp. 29:6-20; 62:1-7; 73:11- 18). Mr. Almanza told Plaintiff that CLI would send him notification when he could come back to work, but they never called him back. (Plaintiff's Depo., pp. 60:11-61:5.). During their telephone conversation, Mr. Almanza asked Plaintiff whether he had gotten a negative Covid test because that was a requirement for any return to work at CLI during that time period. Plaintiff responded, “No. But tell me where to go test.” Mr. Almanza responded that Cicileo was no longer paying for worker’s Covid tests and stated, “Plain and simple, Mr. Cicileo says to take a couple of days off until work picks up. We'll call you when work picks up.” Plaintiff responded, “Okay boss. I'll wait for your call.” Mr. Almanza then stated, “Come over and drop off any belongings you have from the company.” Plaintiff responded, “I'll head over now.” (Plaintiff's Depo., 73:24-74:8; Plaintiff's Decl., § 15.)
Plaintiff declares that when he went to CLI that morning to return his company clothing and belongings Ms. McCallon stated to him, “Thank you, Gregorio. We’re going to miss you.” (Plaintiff Decl., parag, 6.); and that this caused him to be confused as to whether he had been fired, so he called his daughter, who said she would contact McCallon.
Defendant objects to the portions of Plaintiff’s declaration cited in support of the above statements (paragraphs 6, 14, 15), on the basis that the declaration is written in English when he indicates that English is his second language; and as contradicted by his deposition testimony. Defendant does not explain how Plaintiff’s declaration contradicts his deposition testimony, and the court’s review of the transcript of his deposition testimony (Defendant’s Exhibit 5) does not reveal any conflict. These objections are therefore overruled.
On August 24, at 10:55 a.m,.Marie emailed McCallon: “Confirming my father was let go this morning or was he furloughed?” McCallon responded: “ We weren't able to hold his position open not knowing when he was corning back and had to hire several new people. When we can start adding back new maintenance jobs, we will definitely give him a call. I'm going to miss him until then. He came in this morning to bring his shirts back and to pick up his personal tools. He still had a big smile on his face. I'll keep in touch and let you know when we start getting more jobs back.” At 1:40 pm Marie’s email to McCallon states: “On Friday we communicated and said he was going to come back on Wednesday and would confirm today” McCallon emailed back: “I didn't know anything about this until I came in this morning. I did let everyone here know on Friday that Gregorio had intended on returning Wednesday.” (Ricotta Decl., Ex A: Marie Sapiens Decl., Ex. D).
Later, on August 24, 2020, Marie received a doctor’s note by Nancy Warner, FNP, confirming that Plaintiff was able to return to work on August 26, 2020, that Plaintiff had no symptoms of Covid19, and that Plaintiff had self-isolated for 14 days. However, since she already knew that Plaintiff had been terminated, Marie did not forward the note to CLI. (Plaintiff’s Decl., ¶ 18; Marie Sapiens Decl., ¶ 10, Ex. E; Plaintiff’s Form Rog. Response No. 17.1 (b) on RFA No. 5 [Defendant’s Appendix of Evidence Exhibit 2.].) Defendant’s objections to Marie’s declaration in support of this statement, based on hearsay, inadmissible opinion and best evidence rule, are overruled.
On September 30, 2020, Plaintiff returned to FNP Warner. Her Office Visit Note says that his sciatic “is improving”, but that his left knee was painful when walking. Warner recommended stretching and a walking program. (Ricotta Decl., Ex B, Plaintiff’s Depo; pp. 11 58:21-59:1, Ex. 17.)
On August 3, 2021, Plaintiff again saw FNP Warner, whose Office Visit Note states .“ Patient continues to complain of pain in both knees but right is severe and he cannot bend down. He experiences pain when bending down”. (Ricotta Decl., Ex B, Plaintiff’s Depo; pp. 11 58:21-59:1, Ex. 17.)
Plaintiff filed for EDD benefits On September 13, 2020 (Pltf.’s AUF 32) While preparing wage information for this claim McCallon realized that Plaintiff was still on CLI’s insurance, and offered him COBRA benefits (Pltf.’s AUF 33. ) On October 6,2020 McCallon wrote to Marie regarding canceling Plaintiff’s insurance under CLI, referring to his “last day” as “8/10/20”. (Pltf’s ADF 35, McCallon Depo., pp. 75:2-78:17, Ex. 9, Marie Sapiens’ Decl., Parag.13, Ex. F.) Defendant disputes and objects to Pltf.’s ADF 35, but does not provide any controverting evidence. Defendant’s objection to Marie’s declaration on the bases of hearsay, inadmissible opinion and best evidence rule are overruled. This fact remains undisputed.
On November 3, 2020, McCallon prepared a DE 1545 form (Notice of Wages Used for Unemployment Insurance Claim) stating that Plaintiff’s separation date was August 25, 2020 (Pltf.’s AUF 39, McCallon Depo., p. 86:25-92:20, Ex. 10.) Defendant disputes this AUF, but does not provide any controverting evidence. This fact remains undisputed.
McCallon has testified that in her role handling HR for CLI she did not observe any CLI procedure for an interactive process with regard to accommodation. (Ricotta Decl., Ex D, McCallon depo. 12:11-14)
McCallon testified in her deposition that after about a week “we gave his position to someone else”. (Ricotta Decl., Ex. D, Depo. of McCallon, 12:11-14.) Plaintiff’s supervisor, Almazana, also testified that two to three weeks after Plaintiff stopped working CLI hired new employees to replace him. (Ricotta Decl., Ex. D, Depo. of Almazana, 28: 3-11)
CLI President Michael Cicileo declares: There were no vacant positions at Cicileo Landscapes, and no other positions that Plaintiff was qualified for, nor any other positions available which Plaintiff could perform with or without an accommodation given the restrictions imposed on him by his doctor. (Decl. of J. Michael Cicileo, parag. 6).
Plaintiff believes he was terminated because CLI wanted to hire younger people. (Plaintiff's Depo., p. 75:22-25.) Plaintiff declares that during his employment at Cicileo Landscapes, Inc., he observed the ages of his workers. All of them were much younger than him. He estimates that most of them, if not all of them, were between 30 and 40 years. As far as Plaintiff observed, he was the only employee let go during the time period of January 2020 and August 24, 2020. (Plaintiff's Decl., § 31.) Defendant objects to these statements as inadmissible opinion and for lack of foundation. The court overrules the objection as to Plaintiff’s observation of his co-worker’s ages, as this is within the common experience of a layperson; and overrules the objection as to his observation regarding employees being let go.
Analysis:
Disability discrimination (1st c/a)
In order to establish a disability claim under FEHA a plaintiff must demonstrate that he (1) suffers from a disability; (2) is a qualified individual; and (3) was subjected to an adverse employment action. Jensen v Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 254.
Plaintiff has presented the following evidence which creates a triable issue of fact as to whether Plaintiff was subjected to the adverse employment action of termination before the expiration of his medical leave: the email exchange between McCallon and Marie ( Ricotta Decl., Ex A: Marie Sapiens Decl., Ex. D); McCallon’s testimony that after about a week “we gave his position to someone else”. (Ricotta Decl., Ex. D, Depo. of McCallon, 12:11-14.); Almazana’s testimony that 2-3 weeks after Plaintiff stopped working CLI hired new employees to replace him. (Ricotta Decl., Ex. D, Depo. of Almazana, 28: 3-11); McCallon’s email to Marie regarding canceling Plaintiff’s insurance under CLI, referring to his “last day” as “8/10/20”. (Pltf’s ADF 35, McCallon Depo., pp. 75:2-78:17, Ex. 9, Marie Sapiens’ Decl., Parag.13, Ex. F.); the ) stating that Plaintiff’s separation date was August 25, 2020 (Pltf.’s AUF 39, McCallon Depo., p. 86:25-92:20, Ex. 10.); the DE 1545 form completed by McCallom stating that Plaintiff’s separation date was August 25, 2020 (Pltf.’s AUF 39, McCallon Depo., p. 86:25-92:20, Ex. 10.)
Plaintiff has also presented evidence of FNP Warner’s note releasing him to return to work on August 26, 2020, which creates a triable issue of fact as to whether he was able to perform his duties without accommodation as of August 26, 2020: Plaintiff’s Decl., ¶ 18; Marie Sapiens Decl., ¶ 10, Ex. E; Plaintiff’s Formhe told Rog. Response No. 17.1 (b) on RFA No. 5 [Defendant’s Appendix of Evidence Exhibit 2.].) There is no evidence presented demonstrating that Plaintiff was unable to work at his job until August 3, 2021, when he told FNP Warner that it was painful to bend down.
The motion for summary adjudication of this cause of action is denied.
Retaliation in violation of FEHA (2d c/a)
To prevail on this claim Plaintiff must demonstrate that (1) he engaged in protected activity; (2) he was thereafter subjected to an adverse employment action; and (3) there was a causal link between the two. Chen v County of Orange (2002) 96 Cal. App. 926, 948.
Plaintiff has presented evidence that he requested a medical leave, which constitutes protected activity under FEHA, and raises a triable issue of fact as to whether he engaged in protected activity. Pardi v Kaiser Foundation Hospitals (9th Cir. 2004) 389 F. 3d 840. The temporal proximity between the request for a medical leave on August 11, 2020, and the adverse employment action on August 24 or 26, 2020, demonstrates the causal link. Flait v North American Watch Corp. (1992) 3 Cal. App. 4th 467, 479.
The motion for summary adjudication of this cause of action is denied.
Failure to prevent discrimination and retaliation (3rd c/a)
This claim requires Plaintiff to demonstrate that (1) he was subjected to discrimination or retaliation; (2) Defendant failed to take all reasonable steps to prevent discrimination: and (3) resulting damages. Caldera v Dept. of Corrections and Rehabilitation (2018) 25 Cal. App. 5th 31, 43-44.
Plaintiff has presented evidence of discrimination/retaliation by his termination while on medical leave; and that instead of taking reasonable steps to prevent discrimination/retaliation Defendant hired others to take his position. (Ricotta Decl., Ex. D, Depo. of McCallon, 12:11-14; Ex. E, Depo. of Almazana, 28: 3-11). Plaintiff’s loss of employment resulted economic loss and damages.
The motion for summary adjudication of this cause of action is denied.
Failure to accommodate (4th c/a)
Plaintiff has presented evidence of Defendant’s failure to accommodate his request for a medical leave, by the evidence discussed above, demonstrating that he was terminated while on medical leave. An employee need not speak any “magic words” in order to request accommodation. Prillman v United Air Lines (1997) 53 Cal. App. 4th 935. Plaintiff’s conversations with his supervisors on August 10 and 11, and the note for FNP Warner excusing him from work create a triable issue of fact as to whether Plaintiff requested accommodation.
The motion for summary adjudication of this cause of action is denied.
Failure to engage in interactive process (5th c/a)
This claim generally requires an employee to initiate an informal process with his or her employer to identify a reasonable accommodation to allow the employee to perform his or her job effectively. Scotch Art Institute of California (2009) 173 Cal. App. 4th 986, 1013. Plaintiff presents evidence that he did so by requesting a medical leave to recuperate from his injury, and by securing a doctor’s note excusing him from work.
McCallom has also testified that CLI did not have any procedure for seeking an interactive process. (Ricotta Decl., Ex D, McCallon depo. 12:11-14)
The motion for summary adjudication of this cause of action is denied.
Age discrimination (6th c/a)
This claim requires Plaintiff to show that he was (1) over the age of 40 (2) employed by an employer of five or more persons, and (3) subject to an unlawful employment practice in which the employer acts with discriminatory intent. Caldwell v Paramount Unified School Dist. (199) 41 Cal. App. 4th 189, 206.
There seems to be no dispute that Plaintiff was 66 years old in August 2020; and the evidence discussed above demonstrates that he was terminated. Plaintiff has presented sufficient evidence to create a triable issue of fact as to whether Defendant terminated him with discriminatory intent due to his age, by his observations of his co-worker’s ages, and by inconsistencies between CLI President Cicileo’s declaration (no vacant positions at CLI and no other positions that Plaintiff was qualified for) and the testimony of McCallom and Almazana that CLI replaced Plaintiff within a week or two of his injury.
The motion for summary adjudication of this cause of action is denied.
Wrongful discrimination in violation of public policy (7th c/a)
Plaintiff has presented sufficient evidence to create a triable issue of fact as to whether Defendant discriminated or retaliated against him due to disability; and has therefore raised a triable issue of fact that as o to whether he was terminated in violation of public policy.
The motion for summary adjudication of this cause of action is denied.
Intentional infliction of emotional distress (8th c/a).
Defendant asserts that Plaintiff cannot establish that CLI’s conduct was sufficiently “extreme and outrageous” to support this cause of action, because even if Plaintiff was terminated, the act of terminating an employment relationship does not constitute “extreme and outrageous conduct”. Trerice v Blue Cross of California (1989) 209 Cal. App. 3d 878.
Whether a defendant’s conduct meets the standard of “extreme and outrageous” is ordinarily a question for the jury. Plotnik v Meihaus (2012) 208 Cal. App. 4th 1614. Moreover, a violation of FEHA may give rise to a claim for intentional infliction of emotional distress. Aguilar v Ad. Richfield Co. (2001) 25 Cal. App. 4th 826. As discussed above, Plaintiff has presented sufficient evidence to raise a triable issue of fact as to whether his termination was in violation of FEHA.
The motion for summary adjudication of this cause of action is denied.
Objections to Evidence:
The court need only rule on the objections to evidence that it “deems material to its disposition of the motion.” CCP Section 437(q).
The court has ruled above on the objections which it deems material to its disposition of this motion, and declines to rule on the parties’ remaining objections.