Filed 3/8/22 Dillard v. Government Employees Ins. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KARMA DILLARD, D077704
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00021333-CU-OE-CTL)
GOVERNMENT EMPLOYEES
INSURANCE CO.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Reversed; remand with directions.
Gruenberg Law and Joshua P. Pang for Plaintiff and Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, Spencer C. Skeen, Jack S.
Sholkoff and Jennifer M. Hendricks for Defendant and Respondent.
Karma Dillard brought this action against her current employer,
Government Employees Insurance Co. (GEICO), alleging a variety of causes
of action under the California Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12900 et seq.),1 including failure to engage in the interactive
process and failure to accommodate. The trial court granted GEICO’s motion
for summary judgment, and Dillard appeals the ensuing judgment.
Although the operative complaint contained seven causes of action,
Dillard’s appeal is only directed at three claims: failure to accommodate,
failure to engage in the interactive process, and punitive damages. Because
we conclude disputed issues of material fact exist as to those claims, we
reverse the judgment and remand this matter to the trial court, with
instructions to enter an order denying GEICO’s motion for summary
judgment consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Dillard began working for GEICO as a customer service representative
in 2002. Within a few years, Dillard was promoted to the highest pay grade
for her position. In 2007, she was promoted to an adjustor in the auto
damage department, where she ultimately received the highest pay grade for
her position. Some eight years later, Dillard was promoted to her current
position as field supervisor in the auto damage department.
As a field supervisor, Dillard is generally responsible for managing a
team of adjustors in evaluating and resolving auto damage claims. Her
position requires a substantial amount of driving because Dillard performs
her job out in “the field,” which covers the Southern Riverside region. On
average, Dillard drives 50 to 70 miles per day. GEICO provides company
vehicles to each of its adjustors and field supervisors. In 2014, GEICO
assigned Dillard a 2014 Chevrolet Cruze.
1 Statutory references refer to the Government Code unless otherwise
specified.
2
Since about 2003, Dillard has suffered from scoliosis, a chronic spinal
health condition. The condition manifests in intermittent severe pain,
although the pain and severity is not constant. The scoliosis flares up in
certain situations and has progressed with age.
For her condition, Dillard has been under treatment by physicians and
other medical care professionals. She has been able to manage her condition
with various accommodations and treatment, including engaging in certain
exercises and using a lumbar pillow to sleep.
Around June 2017, Dillard’s condition became aggravated when she
started taking longer drives in her car to meetings in Orange County.
Instead of having to drive 50 to 70 miles a day, Dillard was finding herself
spending four to six hours in traffic when she was required to travel to
Orange County. When Dillard returned home from these drives, her back
pain was so severe that she could not do much of anything for the remainder
of those days.
Dillard experienced severe back pain sitting in her car, which did not
have lumbar support. In addition, the Cruze’s headrest pushed Dillard’s
head forward, resulting in migraine headaches (especially during the longer
drives to Orange County).
On July 12, 2017, Dillard called Angela Alvarado, an employee in
GEICO’s human resources department, to complain that she was
experiencing severe back pain that was worsened by long drives in the Cruze.
Dillard requested lumbar support. Specifically, Dillard requested swapping
her Cruze for a different GEICO vehicle that had built-in lumbar support. At
that time, Dillard was aware that one of her subordinates had relinquished
3
her GEICO provided car, a Ford Fusion, the month before; so, she proposed
exchanging her Cruze for the Fusion. Alvarado informed Dillard that she
would send her paperwork to be filled out by her health care provider.
Two days later, Alvarado had not yet sent Dillard the paperwork; thus,
Dillard sent her an email reminder. Alvarado apologized for the delay and
emailed Dillard the promised paperwork. As instructed, Dillard faxed the
paperwork to her health care provider’s disability department on July 17,
2017. The provider did not return the completed form until late September
2017.
Among other things, the form stated that Dillard was “being followed
for a serious health condition” and “requires lumbar support while seated and
ergonomic consideration as needed for her job duties. This is a permanent
recommendation.”
After receiving the health care provider paperwork, GEICO did not
further discuss the issue with Dillard. Instead, on October 3, 2017, GEICO
purchased a $20 lumbar pillow for Dillard. The pillow was a cushion for the
lower back. It did not provide adjustable lumbar support, and it did not
include a seat cushion.
Dillard drove with the pillow for about a month. On October 30, 2017,
Dillard notified GEICO’s human resources department that the pillow was
not accommodating her back condition. Dillard explained that the pillow
pushed her forward, which caused a lack of support for her legs, resulting in
even more pain in her lower back. Dillard informed GEICO: “I’m happy to
send the pillow to you at the office (perhaps someone else can benefit from it),
but at this time I’m going to re-request a fleet car with built-in lumbar
support.”
4
Eight days later, LaDonna Bond, GEICO’s Human Resources Regional
Manager, called Dillard and suggested Dillard try another pillow. However,
Dillard was skeptical that a pillow would alleviate her pain. When Dillard
asked if she was able to swap her Cruze for a company vehicle with built-in
lumbar support, Bond asserted that GEICO “was unable to approve or
provide a different fleet vehicle” because “the doctor’s paperwork didn’t
recommend a different fleet vehicle.” Dillard then asked “if the fleet vehicle
didn’t get approved because of the cost or was there none available.” In
response, Bond noted “that the doctor’s recommendation was for lumbar
support[,] which [GEICO] provided and not a different fleet vehicle.” After
the call, Bond emailed Dillard a link to a new car pillow option on
Amazon.com.
Dillard remained concerned that a different pillow would not
accommodate her condition. So, she conducted research and talked with an
ergonomic specialist. On November 8, 2017, Dillard expressed doubt about
Bond’s accommodation plan, reminding Bond that her health care provider
recommended “ergonomic consideration.” In an email to Bond, Dillard
suggested, “Before we invest in another pillow that may or may not work, I’ve
found an ergonomic specialist that is willing to meet with me for an
assessment. Her fee is $150. Are you willing to pay this fee, for ergonomic
consideration, as my doctor recommended?” Bond declined to pay for the
ergonomic assessment. Rather, she sent Colleen Moore, GEICO’s worker’s
compensation coordinator and a licensed vocational nurse, to conduct an
ergometric test and take a measurement of the Cruze. Moore met with
Dillard and produced a report dated November 14, 2017. Among other
observations contained in the report, Moore noted:
“The driver’s seat has basic adjustments that allow the
driver to move forward and backwards in relation to the
5
steering wheel depth. The seat back does allow the driver
to recline and sit up as needed. The seat pan doesn’t allow
for adjustment in depth and tilt. The lumbar support that
is standard in the seat is not adjustable. I would
recommend that [Dillard] be able to look at a few different
types of lumbar supports, included in this report.”
The report included links to three different types of lumbar support for car
seats.
In an email dated November 28, 2017,2 Dillard took issue with Moore’s
report and conveyed to Bond the following inaccuracies: (1) Although Moore
stated the Cruze’s headrest fit Dillard, it did not; (2) Moore stated that
Dillard did not indicate discomfort in the Cruze until a lumbar pillow was
added, but Dillard stated that she was uncomfortable even with the lumbar
support pillow; and (3) the Cruze did not have built-in lumbar support (Moore
reported it did). As part of her email, she attached an additional
recommendation from her doctor regarding her scoliosis condition: “[Dillard]
requires adjustable lumbar and seat pad support while seated[,] which would
require mid size [sic] vehicle with ergonomic consideration as needed for her
job duties. This is a permanent recommendation.” Dillard again requested a
vehicle change. Neither Bond nor anyone else at GEICO responded to
Dillard’s December 4 email. In fact, Bond stated that she did not remember
receiving Dillard’s email. Based on Bond’s lack of response, Dillard “gave up”
and assumed that further discussions with GEICO would not be fruitful.
In addition, in late November or early December 2017, Dillard visited
GEICO’s Poway regional office and talked to Bond in person. She told Bond
that she was “not trying to make waves” but was experiencing intense back
2 In an email dated December 4, 2017, Dillard apologized for not getting
back to Bond sooner, explaining that she wanted to wait until she had a
follow-up appointment with her doctor.
6
pain because of the lack of lumbar support. Dillard again asked about
obtaining a new GEICO vehicle. In response, Bond admitted that Phil
Gallimore, the Auto Damage Director, did not approve the vehicle change.
On April 30, 2018, about five months after she first engaged GEICO to
address her back condition, Dillard filed suit against GEICO, alleging causes
of action for: (1) gender discrimination (§ 12940, subd. (a)); (2) violation of
the California Equal Pay Act (Lab. Code, § 1197.5, subd. (a)); (3) disability
discrimination (§ 12940, subd. (a)); (4) failure to prevent discrimination
(§ 12940, subd. (k)); (5) failure to accommodate (§ 12940, subd. (m));
(6) failure to engage in the interactive process (§ 12940, subd. (n)); and
(7) intentional infliction of emotional distress.
Although she had filed suit against GEICO, Dillard continued to work
for the company. On January 8, 2019, 17 months after initial accommodation
request, GEICO allowed Dillard to swap her Cruze for a Fusion.
After answering the complaint and engaging in discovery, GEICO
moved for summary judgment on all causes of action as well as Dillard’s
claim for punitive damages. In opposing the motion for summary judgment,
Dillard dismissed her claims for gender discrimination, violation of the Equal
Pay Act, failure to prevent discrimination, and intentional infliction of
emotional distress. Thus, Dillard’s opposition focused on her causes of action
for failure to accommodate and failure to engage in the interactive process as
well as her prayer for punitive damages.
After considering the papers and entertaining oral argument, the court
granted GEICO’s motion for summary judgment. Regarding Dillard’s cause
of action for failure to accommodate, the court explained:
“[GEICO] reasonably accommodated [Dillard] by offering
lumbar support options, which included an adjustable
lumbar support for her mid-size vehicle. While this was
7
not the option [Dillard] preferred, [Dillard] has not shown
that the accommodation was not reasonable. [GEICO] was
not required to provide [Dillard] with her preferred
accommodation. [GEICO] was within its rights to offer an
adjustable lumbar support rather than a different vehicle.
Further, [GEICO] eventually provided [Dillard] with a Ford
Fusion. [Dillard] has not raised an issue of fact that the
delay was so long that it effectively amounted to a refusal
to accommodate.”
As to Dillard’s cause of action for failure to engage in the interactive
process, the court noted that “[n]ot only did [GEICO] provide [Dillard] with a
reasonable accommodation, but [Dillard] failed to even consider the lumbar
support options suggested by Colleen Moore.”
Because the court granted the motion for summary judgment as to the
remaining two causes of action, it also granted the motion as to Dillard’s
prayer for punitive damages.
In reaching its conclusions, the court found that the Cruze was a mid-
sized vehicle.
Dillard filed a timely notice of appeal from the ensuing judgment.
DISCUSSION
A. Standard of Review
The trial court may grant summary judgment if there is no triable
issue of material fact and the issues raised by the pleadings may be decided
as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(2); Biancalana v.
T.D. Service Co. (2013) 56 Cal.4th 807, 813.) A moving defendant must show
that one or more elements of the challenged cause of action cannot be
established or that there is a complete defense to the cause of action. (Code
Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 849 (Aguilar).)
8
Once the moving defendant has carried its initial burden, the burden
shifts to the plaintiff to show a triable issue of material fact with respect to
the cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar,
supra, 25 Cal.4th at p. 849.) The court must consider all of the evidence and
the reasonable inferences from it in the light most favorable to the
nonmoving party. (Aguilar, at p. 843.) “There is a triable issue of material
fact if, and only if, 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.” (Id. at p. 850.)
We review summary judgment orders de novo and apply the same legal
standard as the trial court. (Miller v. Department of Corrections (2005) 36
Cal.4th 446, 460.) We independently examine the record to determine
whether there are triable issues of material fact and whether the moving
party is entitled to summary judgment as a matter of law. (Ibid.)
B. Failure to Provide Reasonable Accommodation
Dillard argues the trial court erred by granting summary judgment on
the failure to accommodate cause of action. We agree.
FEHA prohibits employers from failing to make reasonable
accommodation for the known physical or mental disability of an employee.
(§ 12940, subd. (m)(1).) The elements of a failure to accommodate cause of
action are: (1) the employee has a qualifying disability; (2) the employee can
perform the essential functions of the job; and (3) the employer failed to
provide reasonable accommodation for the employee’s disability. (Wilson v.
County of Orange (2009) 169 Cal.App.4th 1185, 1192.)
The employer must consider “any and all reasonable accommodations of
which it is aware or that are brought to its attention by the . . . employee,
except ones that create an undue hardship.” (Cal. Code Regs., tit. 2, § 11068,
9
subd. (e).) The employer “shall consider the preference of the applicant or
employee to be accommodated, but has the right to select and implement an
accommodation that is effective for both the employee and the employer.”
(Ibid.) In other words, “[t]he employer is not obligated to choose the best
accommodation or the accommodation the employee seeks.” (Hanson v.
Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.) The “ ‘employee cannot
make his employer provide a specific accommodation if another reasonable
accommodation is instead provided.’ ” (Ibid.; accord Raine v. City of Burbank
(2006) 135 Cal.App.4th 1215, 1222 [FEHA requires only that the
accommodation be reasonable, not that it be the best one or the one the
employee seeks].) The employer is entitled to summary judgment on a cause
of action for failure to accommodate if it shows through undisputed facts that
“reasonable accommodation was offered and refused.” (Jensen v. Wells Fargo
Bank (2000) 85 Cal.App.4th 245, 263.) “Although the question of a
reasonable accommodation is ordinarily a question of fact [citation], when the
undisputed evidence leads to only one conclusion as to the reasonableness of
the accommodation sought, summary judgment is proper.” (Raine, at
p. 1227, fn. 11.)
In the instant matter, GEICO offered seven undisputed, material facts
supporting its claim that summary judgment was appropriate as to Dillard’s
failure to accommodate claim. If any one of those material facts is disputed
then summary judgment is not warranted. (See Code. Civ. Proc., § 437c,
subd. (c); Aguilar, supra, 25 Cal.4th at pp. 856-857.) Here, we shall focus on
three of GEICO’s undisputed material facts: (1) Dillard’s doctor never
provided a note stating that she needed a new car to do her job; (2) GEICO
10
provided Dillard with a Ford Fusion in November 2018 as soon as one became
available; and (3) when Dillard requested a different vehicle in July 2017,
GEICO did not have one available.
GEICO asserts it was an undisputed, material fact that Dillard did not
produce a doctor’s note stating that she needed a “new” car. As a threshold
matter, this material fact is somewhat ambiguous. GEICO’s use of the word
“new” seems to mean new to Dillard (as in, she needs a different car), not a
brand new car. Indeed, the context of the discussion about Dillard’s request
for a different car strongly supports this interpretation. As such, we read
this material fact as GEICO claiming Dillard never produced any notation
from her doctor that she needed a car different than the Cruze she was
driving.
Dillard produced evidence that her doctor wrote that she requires an
“adjustable lumbar and seat pad support while seated,” which necessitates a
mid-sized vehicle. Thus, Dillard’s doctor did provide a note indicating that
Dillard needed a mid-sized car. GEICO claims to have not received this note.
Dillard asserts she sent it to Bond.
Although this note appears to dispute GEICO’s statement of material
fact, GEICO argues that the Cruze Dillard was driving at the time is a mid-
sized car. In support of this assertion, GEICO states that Dillard admitted
this conclusion during her deposition. Regarding the size of the Cruze,
Dillard and GEICO’s attorney engaged in the following exchange:
“Q. Okay. Is that [the Cruze]—do you know if that’s a
mid size or a compact or—
“A. I don’t think it’s a compact. If I had to guess, I
would say it’s a mid size.
“Q. Yeah. I was looking at the rentals categories and I
see it here listed as a mid size along with Toyota Corolla,
11
Ford Focus, Nissan Sentra, Dodge Avenger. [¶] Does that
sound about right?
“A. Yes.
“Q. So you would agree that that’s a mid size, correct?
“A. Yes.”
Thus, GEICO argues that Dillard admitted that she already had a mid-sized
car. As such, GEICO maintains Dillard’s second doctor’s note does not say
that Dillard needs a different car because it only states she needs a mid-sized
car, which she admitted she already had. In other words, according to
GEICO, what makes GEICO’s statement of material fact undisputed is the
fact that a Chevrolet Cruze is a mid-sized car. Indeed, the trial court based
its conclusion that GEICO reasonably accommodated Dillard, in part, by
providing “an adjustable lumbar support for her mid-size vehicle.”
GEICO’s and the trial court’s use of Dillard’s “admission” that the
Cruze was a mid-sized car gives us pause. Whether a Cruze is a mid-sized
car is an easily provable statement of fact. Either it is or it is not, regardless
of what Dillard believes. GEICO is in the business of insuring cars. Thus, it
seems logical that if GEICO would have wanted to prove the Cruze is a mid-
sized car, it could have easily had an employee, who is very familiar with
cars, offer an informed opinion as to that fact. Or GEICO could have used
Chevrolet’s promotional materials describing the Cruze as a mid-sized car (if
it is classified as such). Yet, GEICO did not simply prove the fact that the
Cruze is a mid-sized car. Instead, it points to Dillard’s deposition testimony
and claims that she admitted that fact.
Adding to our concern here is that Dillard’s admission is not clear. She
testified that if she had to “guess” then she would say it was a mid-size car.
Guesses and speculation are not evidence. (See Aguilar, supra, 25 Cal.4th at
12
p. 864; cf. LaChapelle v. Toyota Credit Corp. (2002) 102 Cal.App.4th 977, 981;
Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.) During the
deposition, GEICO’s attorney attempted to lead Dillard to become more
confident that the Cruze was a mid-size car by saying that it was listed in a
rentals category with other cars—a Toyota Corolla, Ford Focus, Nissan
Sentra, and Dodge Avenger. However, at least three of the four cars listed
are compact not mid-size cars. Therefore, Dillard’s “admission” that the
Cruze is a mid-sized car is even more suspect.
In addition, on the record before us, the record is muddled regarding
whether the parties disputed if the Cruze is a mid-sized car. For example,
GEICO did not dispute one of Dillard’s additional facts that, “[i]n 2014,
GEICO assigned [Dillard] a 2014 Chevrolet Cruze, a compact car.” Thus,
based on GEICO’s response to Dillard’s claim in her opposition that the
Cruze is a compact car, it appears there is a dispute regarding whether the
Cruze is a compact or mid-sized car. Moreover, in support of her opposition
to the motion for summary judgment, Dillard provided Chevrolet promotional
materials that referred to the Cruze as a compact car. GEICO does not
challenge this evidence on appeal and does not point to any indication in the
record that these promotional materials were excluded by the trial court. 3
Because of the dispute as to the type of car (mid-sized or compact) that
Dillard was driving when she requested an accommodation, whether Dillard
3 GEICO did dispute that the promotional material “self-identifies” the
Cruze as a compact car. In doing so, GEICO makes several objections to the
evidence but does not indicate in this appeal that the court ruled on those
objections. Nor does GEICO raise those same objections in the instant
appeal. Also, curiously, GEICO claims that whether the Cruze is a compact
car is immaterial for purposes of its motion for summary judgment. Such an
argument is inconsistent with some of GEICO’s own statements of material
fact.
13
produced a doctor’s note saying that she needed a different car is a disputed,
material fact. Consequently, summary judgment, as to Dillard’s claim of
failure to accommodate, was not warranted.
In addition, we conclude two additional issues of material fact are
disputed regarding Dillard’s cause of action for failure to provide a
reasonable accommodation. These two facts are: (1) GEICO provided Dillard
with a Ford Fusion in November 2018 as soon one became available; and (2)
when Dillard requested a different vehicle in July 2017, GEICO did not have
one available. As evidence that GEICO did not have a vehicle available for
Dillard before November 2018, GEICO points to Bond’s declaration and her
deposition testimony. In her declaration, Bond asserts: “Based on Ms.
Dillard’s stated preference for a Ford Fusion, we provided her with this fleet
vehicle in November 2018, as soon as one became available.” This portion of
Bond’s declaration is a mere conclusion. There is no explanation how Bond,
the director of human resources for GEICO, knew this fact to be true. In
addition, Bond’s statement does not show that no other cars were available
for Dillard. At most, Bond’s statement reads that a Ford Fusion was not
available until November 2018. Although Dillard did mention a Fusion as a
possible replacement for her Cruze, she asked for a different car in general, a
mid-sized car. Thus, Bond’s declaration does not prove that no other mid-
sized cars were available for Dillard before November 2018.4
GEICO also relies on specific portions of Bond’s deposition testimony to
establish that no other cars were available for Dillard until November 2018.
4 It is unclear in the record when Dillard received the Fusion. She states
she did not receive that car until January 2019. GEICO, on the other hand,
states that it provided Dillard with the Fusion in November 2018.
14
To this end, GEICO cites to the following exchange between Bond and
Dillard’s attorney during Bond’s deposition:
“Q. Wasn’t it true that what she was asking for was a
vehicle with a different lumbar support system in the seat?
“A. As I’ve said several times, I don’t recall her
specifically asking me for a car. If she did, I don’t
remember that. But it really wouldn’t matter, as we didn’t
have one available at that time.
“[¶] . . . [¶]
“[Q.] Did you have any discussions with Manny Campos
about providing a new, different fleet vehicle to Ms.
Dillard?
“A. I don’t believe I have. We didn’t have any fleet
vehicles available.
“Q. Did you have any conversations with anyone at
GEICO, including Ms. Dillard, about a new and different
vehicle for Ms. Dillard?
“A. As I mentioned earlier, she may have mentioned
that to me. I don’t recall a conversation specific.
“Q. And you can’t recall any conversations with
anyone else about providing a new and different vehicle to
Ms. Dillard; is that true?
“A. To recall . . . any conversations, no. I do recall
that there was not one available.”
Although Bond testified that she did not recall Dillard asking for a car
and she did not remember whether she talked to anyone at GEICO about
finding a car for Dillard, later during her deposition she stated that she did
speak to someone about that issue. Bond testified as follows:
“Q. Did you speak with anyone at GEICO about
providing a new fleet vehicle for Ms. Dillard?
15
“A. Yes.
“Q. Who?
“A. Karina Sanchez.
“Q. What is her position?
“A. She is a fleet coordinator.
“Q. When did you speak with her?
“A. I asked her to keep a lookout for when one became
available to give it to [Dillard], and she did in November of
2018.
“Q. She gave [Dillard] a new vehicle?
“A. She did.”
Despite the contradictory nature of Bond’s testimony, 5 later she apparently
reiterated that no other car was available for Dillard until November 2018:
“Q. Is it your testimony that there were no fleet
vehicles from July 2017 through November of 2018?
“A. Yes. It is my testimony that she got the first one
that was available.
So, GEICO maintains that Bond’s declaration and deposition testimony
establish that there were no cars available for Dillard from the time she
requested one until November 2018 when she was provided one. 6 Putting
aside the conclusory and sometimes contradictory nature of this evidence,
5 It might be that Bond’s deposition testimony, as a whole, was not as
contradictory as it appears in the excerpts provided in the record. That said,
we must address the issues on the record before us, not what might be.
6 Again, it is unclear in the record whether GEICO provided Dillard with
a different car in November 2018 or January 2019.
16
even if we agree that it supports GEICO’s assertions of fact, on the record
before us, we determine that Dillard produced sufficient evidence to create a
dispute as to whether a car was available before November 2018.
In Dillard’s declaration, she states that she knew one of her
subordinates relinquished her GEICO fleet vehicle, which was a Ford Fusion,
in June 2017, a month before she requested an accommodation for her back
condition. She also stated that the particular Fusion that was relinquished
“stayed unused for months in a GEICO auto body shop parking lot.”
GEICO challenges Dillard’s evidence by focusing on one line in her
declaration where she states that she believed a car swap would be “easy.”
Yet, Dillard’s belief that a car swap would be easy is not important for
purposes of opposing the motion for summary judgment. Instead, she offered
evidence that supports her claim a car was available to swap before GEICO
actually provided her with a car. GEICO claims Dillard’s evidence “shows
nothing” because she “does not explain whether the car was in the GEICO
body shop being repaired or having mechanical issues (and therefore not
drivable), or whether it was sitting there because it had already been
reassigned to someone else.”
We disagree that, for purposes of opposing a motion for summary
judgment, Dillard had to explain why the car was parked at the GEICO body
shop. Dillard provided evidence that a Ford Fusion was parked at a GEICO
body shop “unused for months.” We must consider that evidence in a light
most favorable to the opposition and draw reasonable inferences from it. (See
Aguilar, supra, 25 Cal.4th at p. 843.) Moreover, “[w]e liberally construe the
evidence in support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1037.) If the Fusion was parked in a
17
GEICO parking lot for months, it is reasonable to infer that it was not
reassigned to someone else. Also, because it remained in the parking lot and
was not being worked on, it could be inferred that the car was not in need of
repair and was available for Dillard.
In addition, we observe it is somewhat ironic that GEICO is
challenging the lack of foundation of Dillard’s evidence that a car was
available for her use. GEICO merely provided the conclusory testimony of
Bond that GEICO had no cars available for Dillard until November 2018.
Bond did not explain how she knew there were no vehicles available.
Moreover, she contradicted herself during deposition regarding her
discussions with GEICO employees about the availability of another vehicle.
Again, we are puzzled by GEICO’s lack of evidence on this point. Rather
than simply offering a conclusion that no cars were available, GEICO could
have put its business records into evidence, properly authenticated, detailing
that no cars were available. Because Dillard identified a specific car left by
her subordinate at a certain time, presumably GEICO could have offered
evidence that the specific car was under repair or reassigned. Yet, GEICO
did not. It merely offered the bald assertion that no cars were available. As
such, we conclude Dillard did enough to create a triable issue of fact by
referring to a specific car that sat unused for month.
Also, we note that GEICO does not address two other pieces of evidence
Dillard offered to show a car was available before November 2018. The first
piece of evidence is her declaration that her manager had swapped his Ford
Fusion for a different car in June 2018, implying that Fusion might have
been available at that time as well. And Dillard provided evidence that when
she asked Bond about obtaining a different car in late November or early
December 2017, Bond told her that Phil Gallimore, GEICO’s auto damage
18
director, did not approve the vehicle change. Bond said nothing about a car
not being available.
For these reasons, the trial court erred in finding a triable issue of
material fact did not exist regarding whether a car was available for Dillard
before November 2018.
C. Failure to Engage in the Interactive Process
Dillard contends that the trial court erred by granting summary
judgment on the failure to engage in the interactive process cause of action.
We agree.
FEHA prohibits employers from failing “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.” (§ 12940, subd. (n).) “Both employer and
employee have the obligation ‘to keep communications open’ and neither has
‘a right to obstruct the process.’ [Citation.] ‘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.’ ”
(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1014
(Scotch).) Thus, “ ‘the employer cannot prevail on summary
judgment . . . unless it establishes through undisputed facts that . . . 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.’ ” (Soria v. Univision Radio Los Angeles,
Inc. (2016) 5 Cal.App.5th 570, 598 (Soria).)
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Here, GEICO offered the same undisputed material facts supporting its
claim that summary judgment was appropriate as to Dillard’s failure to
engage in the interactive process that it offered in support of its motion
concerning the failure to accommodate claim. As we discussed ante, at least
three of those facts are disputed, making summary judgment improper.
In addition, GEICO claims summary judgment was warranted as to the
cause of action for failure to engage in the interactive process because Dillard
did not participate in the interactive process in good faith. To that end,
GEICO offers the following material fact: Dillard demanded a new car as an
accommodation and rejected all lumbar support options provided despite a
new car not being medically recommended at the time. This fact is disputed.
As a threshold matter, GEICO appears to be adding a requirement to a
failure to engage in the interactive process claim that does not exist. There is
no requirement that Dillard could only request a specific accommodation
(here, a car) if that particular accommodation was explicitly recommended by
her doctor at the time she requested it. In the instant action, the first
medical note Dillard provided to GEICO indicated that she “requires lumbar
support while seated and ergonomic consideration as needed for her job
duties.” GEICO interpreted the phrase “lumbar support” to mean a type of
furniture that provides extra support to the lumbar region to keep the spine
aligned in its natural curvature and decreases stress and movement of the
muscles in an improper way. However, a car that included built-in lumbar
support certainly would be consistent with the first medical provider note.
In addition, contrary to GEICO’s material fact, Dillard did not reject
the first pillow GEICO provided. In fact, she drove with it for almost a
month. Thus, on this issue alone, Dillard has provided sufficient evidence to
20
dispute GEICO’s material fact, and summary judgment was not warranted as
to the cause of action for failure to engage in the interactive process.
Moreover, on this record, it is clear that summary judgment was not
appropriate on the failure to engage in the interactive process claim because
GEICO did not establish, through undisputed facts, that it did everything in
its power to find a reasonable accommodation but the interactive process
broke down because Dillard failed to engage in discussion in good faith. (See
Soria, supra, 5 Cal.App.5th at p. 598; Scotch, supra, 173 Cal.App.4th at
p. 1014.) For example, after Dillard informed GEICO that the first pillow
was not accommodating her back condition, Bond contacted Dillard and
suggested a different pillow. In response, Dillard requested a different
GEICO vehicle, but Bond rejected this request because Dillard’s doctor’s note
did not specifically say that she needed a different fleet vehicle.
Bond then emailed Dillard a link to a different pillow. Dillard,
concerned that a pillow would not work to accommodate her condition,
conducted research and suggested to Bond that Dillard get evaluated by an
independent, ergonomic specialist. Bond declined to pay for Dillard’s selected
specialist but, instead, tasked Moore to evaluate Dillard’s ergonomic needs as
well as the Cruze. Moore evaluated Dillard and produced a report, which
included three new back support options.
Dillard informed Bond that she disagreed with parts of Moore’s report,
claiming it was inaccurate. She also provided a new doctor’s note wherein
the doctor suggested Dillard get a mid-sized car to accommodate her
condition.7 Dillard again requested a different car. Bond did not respond to
7 As we discussed ante, whether the Cruze is a mid-sized car is a
disputed, material fact.
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the second doctor’s note or Dillard’s accompanying request for a different car.
In fact, Bond does not recall if she received Dillard’s email with the second
doctor’s note.
Against this backdrop, we cannot determine, on a motion for summary
judgment, that the interactive process broke down based on Dillard’s refusal
to participate in good faith. In fact, the evidence suggests that Dillard
continued to participate in the interactive process and attempted to explain
to Bond why she did not agree with Moore’s evaluation. Although it is true
that Dillard did not provide any specific feedback on the three lumbar pillows
Moore suggested after her evaluation of Dillard, Dillard did comment on
Moore’s report, provided a second doctor’s note, and again requested a
different vehicle. We cannot say that Dillard’s actions show a lack of good
faith. Indeed, it may be that a fact finder could determine that Dillard was
reasonable and participated in the interactive process in good faith while
GEICO did not. Yet, such a dispute is not appropriate for resolution at the
summary judgment stage. Rather, the record makes it clear that summary
judgment was inappropriate because of the numerous disputed factual issues.
D. Punitive Damages
Below, the trial court granted summary judgment as to all of Dillard’s
causes of action; thus, it concluded that Dillard’s prayer for punitive damages
was moot. Because the court did not rule on the merits of the punitive
damages issue, Dillard requests we call for supplemental briefing under Code
of Civil Procedure section 437c, subdivision (m)(2) to address the punitive
damages issue. However, because we shall not grant summary judgment as
to Dillard’s claim for punitive damages, no further briefing is necessary.
Civil Code section 3294, subdivision (a) provides that punitive damages
may be awarded “for the breach of an obligation not arising from contract,
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where it is proven by clear and convincing evidence that the defendant has
been guilty of oppression, fraud, or malice.” Civil Code section 3294,
subdivision (b) limits the liability of a corporation to acts ratified, authorized,
or committed by a corporate officer, director, or managing agent. (Weeks v.
Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1151.)
In White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567 (White), the
Supreme Court explained that managing agents are “those corporate
employees who exercise substantial independent authority and judgment in
their corporate decisionmaking so that their decisions ultimately determine
corporate policy.” “[T]o demonstrate that an employee is a true managing
agent under [Civil Code] section 3294, subdivision (b), a plaintiff seeking
punitive damages would have to show that the employee exercised
substantial discretionary authority over significant aspects of a corporation’s
business.” (Id. at p. 577.) More recently, the court clarified that “[w]hen we
spoke in White about persons having ‘discretionary authority
over . . . corporate policy’ (White, supra, 21 Cal.4th at p. 577), we were
referring to formal policies that affect a substantial portion of the company
and that are the type likely to come to the attention of corporate leadership.
It is this sort of broad authority that justifies punishing an entire company
for an otherwise isolated act of oppression, fraud, or malice.” (Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 714-715.)
“ ‘The scope of a corporate employee’s discretion and authority under
our [managing agent] test is therefore a question of fact for decision on a
case-by-case basis.’ ([White, supra, 21 Cal.4th] at p. 567.) If there exists a
triable issue of fact regarding whether a corporate employee is a managing
agent under the White test, that factual question must be determined by the
trier of fact and not the court on a motion for summary adjudication. ([Code
23
Civ. Proc.,] § 437c, subds.(c), (f); Aguilar, supra, 25 Cal.4th at pp. 856-857; cf.
Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 63.)” (Davis v.
Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 366 (Davis).)
In Davis, supra, 220 Cal.App.4th 358, the plaintiff sued her former
employer for discrimination, harassment, and retaliation in violation of
FEHA. Her complaint alleged that the employer’s actions were malicious and
oppressive and were committed and/or ratified by the employer’s managing
agents, and it included a prayer for punitive damages. (Id. at pp. 361-362.)
The employer moved for summary adjudication of the punitive damages
claim, asserting plaintiff could not recover punitive damages as a matter of
law because no officer, director, or managing agent of the employer engaged
in any oppressive, malicious, or fraudulent conduct against plaintiff. The
trial court granted the motion, and plaintiff appealed. (Id. at pp. 362-363.)
This court reversed. We observed that in support of summary
adjudication, the employer submitted the declarations of the two employees
about whom plaintiff complained. Preedy, the manager of the project on
which plaintiff had worked, stated in his declaration as follows: “ ‘I am not
an officer or a director of Kiewit. As a Kiewit employee, I have never drafted
corporate policy or had substantial discretionary authority over decisions
that ultimately determine Kiewit’s corporate policy. The only role that I play
with respect to Kiewit’s anti-harassment and EEO [equal employment
opportunity] policies is to ensure that they are followed on the job.’ ”
Lochner, the company’s EEO officer, submitted a similar declaration, as
follows: “ ‘As a Kiewit employee, I have never had substantial discretionary
authority over decisions that ultimately determine Kiewit’s corporate policy.
I do not write or recommend implementation of any human resources policies
and procedures.’ ” (Davis, supra, 220 Cal.App.4th at p. 367.)
24
We concluded that those declarations did not satisfy the employer’s
summary judgment burden to make a prima facie showing of the
nonexistence of triable issues of material fact. We explained that Kiewit, “by
simply restating the applicable legal standard under White for the
determination of whether Preedy was its managing agent, did not satisfy its
initial burden of production.” (Davis, supra, 220 Cal.App.4th at p. 369.) We
also noted that Preedy’s declaration did not contain a sufficient description of
his job duties and responsibilities and the nature and extent of his authority
and discretion at the subject project (along with his exercise of that authority
and discretion) “to support a reasonable inference that he did not ‘exercise[ ]
substantial discretionary authority over [significant] aspects of [Kiewit’s]
business.’ [Citation.]” (Id. at p. 370.) We reached a similar conclusion as to
the declaration of Kiewit’s EEO officer Lochner. (Id. at pp. 371-372.)
Accordingly, we found the trial court erred in granting summary adjudication
regarding the claim for punitive damages. (Id. at p. 373.)
Here, the two declarations on which GEICO relies from Bond and
Gallimore read much like the declarations we rejected in Davis. Bond
declared, in part: “I do not exercise substantial independent authority in the
GEICO corporate decision-making process such that my decisions ultimately
determine any formal, corporate-wide policies for GEICO. I am not
responsible for any operations or personnel outside of the Human Resources
Department for my region. I lack authority to modify or develop any
corporate policies applicable to GEICO in any way.”
Gallimore, a Regional Director of GEICO’s Auto Damage Department,
similarly declared: “I do not exercise substantial independent authority in
the GEICO corporate decision-making process such that my decisions
ultimately determine any formal, corporate-wide policies for GEICO. I am
25
not responsible for any operations or personnel outside of the Auto Damage
Department for my region. I lack authority to modify or develop any
corporate policies applicable to GEICO in any way.”
Like Preedy’s declaration in Davis, the declarations of Bond and
Gallimore do little more than restate the legal standard under White. The
declarations do not contain sufficient descriptions of the individuals’ job
duties and responsibilities to support a reasonable inference that the
declarants do not have “ ‘substantial discretionary authority over [significant]
aspects of [GEICO’s] business.’ ” (See Davis, supra, 220 Cal.App.4th at
pp. 369-370.)
Yet, even if we were to assume that Bond’s and Gallimore’s
declarations passed muster under White and Davis, there remain sufficient
disputed material facts on the record before us that make summary judgment
on the punitive damages claim unwarranted. In determining whether an
individual is a managing agent for purposes of establishing liability for
punitive damages, “[t]he key inquiry . . . concerns the employee’s authority to
change or establish corporate policy.” (CRST, Inc. v. Superior Court (2017)
11 Cal.App.5th 1255, 1273.) Here, GEICO has stated that its policy is to
provide a different fleet vehicle in response to a request for accommodation
only if there is medical documentation expressly supporting such a request.
Dillard produced evidence that she provided such a doctor’s note to Bond in
November or December 2017. In addition, Dillard stated that Bond informed
her that Gallimore had denied her request for a different fleet vehicle. If
Bond and/or Gallimore were aware of the doctor’s note stating that Dillard
needed a different vehicle and either Bond or Gallimore refused to provide a
different vehicle consistent with GEICO’s policy then such action could
suggest that Bond or Gallimore exercised her or his authority and discretion
26
not to comply with company policy, resulting in the ad hoc formulation of
corporate policy. (See Davis, supra, 220 Cal.App.4th at p. 373.) We therefore
conclude there is a triable issue of fact regarding whether Bond or Gallimore
was a managing agent of GEICO.
We also reject GEICO’s cursory argument that its “decision to
accommodate Dillard by offering lumbar support options is not evidence [of] a
willful act of oppression, fraud, or malice.” “Malice” is defined in Civil Code
section 3294, subdivision (c)(1) as conduct, “which is intended by the
defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others.” Oppression is defined as “despicable conduct that
subjects a person to cruel and unjust hardship in conscious disregard of that
person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “The adjective ‘despicable’
used in [Civil Code] section 3294 refers to ‘circumstances that are “base,”
“vile,” or “contemptible.” ’ (College Hospital Inc. v. Superior Court (1994) 8
Cal.4th 704, 725.)” (Cloud v. Casey (1999) 76 Cal.App.4th 895, 912.)
Here, GEICO’s argument that punitive damages are not warranted as
a matter of law is based entirely on its claim that it acted in a reasonable
manner in providing accommodations to Dillard. As we discussed ante, there
are factual disputes regarding whether GEICO acted reasonably. Although it
might not be that GEICO’s conduct rose to the level of malice or oppression
even if Dillard’s version of events is ultimately accepted by the trier of fact,
we are unwillingly to conclude, on the record before us, that punitive
damages are prohibited as a matter of law.
DISPOSITION
The judgment is reversed. The matter is remanded to the superior
court with instructions to enter an order denying GEICO’s motion for
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summary judgment as to the fifth cause of action (failure to accommodate;
§ 12940, subd. (m)), the sixth cause of action (failure to engage in the
interactive process; § 12940, subd. (n)), and the claim for punitive damages.
Dillard is entitled to her costs on appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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