Alvarez v. Lifetouch Portrait Studios, Inc.

ANTOINETTE ALVAREZ, Plaintiff and Appellant, v. LIFETOUCH PORTRAIT STUDIOS, INC., et al., Defendants and Respondents.

B286910

B289910

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

January 6, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC637848)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Reversed in part, affirmed in part.

Law Offices of Sima Fard, Sima Fard; Burns & Schaldenbrand and Edward W. Burns for Plaintiff and Appellant.

Jackson Lewis, Elizabeth H. Murphy, Sherry L. Swieca, Negin Iraninejadian and Philip Johnson for Defendants and Respondents.

____________________ Plaintiff Antoinette Alvarez appeals from a judgment entered after the trial court granted summary judgment in favor of defendant Lifetouch Portrait Studios, Inc. (B286910). Alvarez was a studio manager for Lifetouch, in which position she spent 20 to 25 percent of her time taking photographs. After Alvarez suffered a workplace injury to her neck and right shoulder in 2013, she provided Lifetouch a doctor's note placing restrictions on her work, but for the first two months thereafter Alvarez continued to take photographs without any accommodation or discussion with Lifetouch on how to accommodate her restrictions. When her condition worsened in 2014, Lifetouch provided Alvarez a part-time staff member to assist with Alvarez's photographic duties as an accommodation for Alvarez's injuries. But after a doctor in her workers' compensation case opined Alvarez was permanently disabled and could no longer perform photography, Lifetouch terminated Alvarez's employment. When Alvarez threatened to sue, Lifetouch reinstated her employment in a position that did not require photography, but on less favorable terms. Alvarez briefly worked in the new position before taking leave and later resigning.

Alvarez brought claims under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.)¹ for failure to accommodate; failure to engage in a good faith interactive process; discrimination; retaliation; harassment; failure to prevent discrimination, retaliation and harassment; wrongful termination; and constructive discharge. Alvarez also alleged interference with her right to leave and retaliation inviolation of the California Moore-Brown-Roberti Family Rights Act (CFRA; §§ 12945.1, 12945.2). The trial court granted summary judgment, finding Alvarez could not perform the essential job function of photography, she was not denied an accommodation or leave, and the conduct of Alvarez's supervisors was not sufficiently severe or pervasive to constitute harassment under FEHA or support a claim for constructive discharge.

We conclude there are disputed questions of fact as to Alvarez's claims for discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, interference with CFRA leave, and wrongful termination. Although Lifetouch engaged in the interactive process and provided accommodations for Alvarez's injury after a flare up in the summer of 2014, its failure to take any steps during the first two-month period following Alvarez's injury raises a triable issue of fact. Similarly, Alvarez presented evidence that at the time of her termination in July 2015, she could perform photography with assistance from a second employee when necessary to perform certain tasks. Whether the photography studio where Alvarez worked was typically staffed with a second staff member who could assist Alvarez is also a disputed question of fact. As to her harassment claim, however, Alvarez has not presented evidence to show severe or pervasive harassment by her supervisor. Nor has she shown the conditions of her employment were intolerable when she resigned during her medical leave in July 2016. We reverse in part and affirm in part.

Alvarez also appeals from the trial court's denial of her motion for consideration and multiple discovery orders. We reverse the court's September 19, 2017 order allocating 50percent of the referee's fees for certain depositions to Alvarez. In all other respects we affirm.

Alvarez separately appeals from the trial court's order awarding Lifetouch $37,188 in costs incurred following Lifetouch's offer to compromise under Code of Civil Procedure section 998, which Alvarez rejected (B289910).² Because we reverse the trial court's order granting summary adjudication as to eight of 12 causes of action, we summarily reverse the order granting Lifetouch its costs.

FACTUAL AND PROCEDURAL BACKGROUND

A. Alvarez's Employment with Lifetouch³

Lifetouch operates portrait studios in retail big box stores throughout the United States. Lifetouch hired Alvarez as a photographer and salesperson in 1989. Alvarez became studio manager of Lifetouch's Montebello store in 1990 or 1991. Alvarez's duties as studio manager included photography, sales, customer service, and management, training, and scheduling of studio staff. Alvarez spent about 20 to 25 percent of her time photographing customers, and ranked photography as having a"middle or a little higher" importance in relation to her other job duties. During the holiday season, photography occupied more of Alvarez's time. The amount of time Lifetouch studio managers spent actively managing their subordinates varied from 50 to 80 percent.

In June 2013 district manager Frank Marino became Alvarez's direct supervisor. Alvarez had a good work record until September 2014 and was well-liked by fellow employees and management.

1. Alvarez's injury

Alvarez's photography work was "physically demanding" and required her to move heavy backgrounds and props. At some point in 2008 and again in 2010, Alvarez was injured at work when a "wand" being used to hold a photography backdrop fell and hit her in the head. Following the 2010 incident, Alvarez's supervisor Nicole Messina placed Alvarez on "light duty" without photography duties for six or seven months, having a second photographer work with Alvarez to take photographs while she recovered. This arrangement was typical for employees whose conditions limit their ability to photograph.

On October 23, 2013 Alvarez "experienced a sharp numbness and tingling pain in [her] right arm, fingers, neck and shoulder," caused by repetitive movements in arranging photography props and using a camera and computer mouse. Alvarez submitted to Lifetouch an employee incident report, describing an injury to her right hand, arm, and wrist, which limited Alvarez's ability to "hold[] [a] camera or typ[e] on [a] keyboard."

Later that day a doctor diagnosed Alvarez with right hand, right shoulder, and cervical sprains, epicondylitis of the right elbow, and cervical radiculopathy. The physician issued a work status report restricting Alvarez's use of her right hand, including "[l]imited gripping and grasping," lifting, pulling, and pushing up to five pounds. The report also required Alvarez to take hourly 10-minute stretch breaks. The report stated, "In the event that your employee has restrictions and no modified work is made available, employer must keep employee off work unless, and until, such modified work is made available."

Although the Lifetouch human resources department received the work status report, Lifetouch never discussed the restrictions with Alvarez. Marino did not engage in any interactive process with Alvarez at this time. Lifetouch told Alvarez she was on "light duty," but did not explain to her what that meant. Alvarez returned to work and "continued to photograph which caused [her] pain," and she did not take stretch breaks. Lifetouch did not offer Alvarez any time off and Alvarez was unaware she was entitled to any leave. At the time, Lifetouch's employee handbook did not address Alvarez's CFRA leave rights,⁴ and she was not otherwise apprised of her rights.

Several doctors evaluated Alvarez over the next two months, each time maintaining restrictions on her work. A work status report dated January 6, 2014 lifted Alvarez's work restrictions. However, Alvarez's pain continued.

During a February 3, 2014 examination by Dr. Ronald E. Bishop, Alvarez reported feeling "much better," complaining only of experiencing numbness and tingling, without pain, in her neck and right shoulder. Dr. Bishop noted Alvarez was "working full duty" at this time. Dr. Bishop discharged Alvarez from care "with no limitations or restrictions," noting, "She has been working full duty. She should continue to work full duties."

2. Alvarez's transfer to the Chino studio and recurrence of her injury

In March 2014 Alvarez transferred to Lifetouch's Chino studio. It is disputed whether Marino asked Alvarez to transfer to Chino because it "was a mess," or Alvarez decided on her own to apply for a transfer. Alvarez became studio manager at Lifetouch's Chino studio. Although the Chino studio was hosted by a "top-performing" department store, its sales were lower than Montebello, and it was not showing yearly growth. According to Alvarez, she "almost always had staff" working with her in Chino.⁵

Beginning in about July 2014, Jennifer Sunbury replaced Marino as Alvarez's district manager. On August 14, 2014 Sunbury and regional manager Serenity Odom made a "surprise visit" to Alvarez's Chino studio. Alvarez was not present at thestore and had not informed Sunbury she would be out. Sunbury observed a sticky note on the register with a promotion code, which she considered evidence of discounts being improperly given to customers. She also noted there were employees who were not following required sales procedures. On August 18 or 19 Sunbury spoke to Alvarez by...