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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FRANKLIN E. DAVIS,

Plaintiff,

v.

PHILLIPS 66,

Defendant.

Case No. 17-cv-00128-JST 

ORDER GRANTING IN PART AND 

DENYING IN PART MOTIONS FOR 

SUMMARY JUDGMENT

Re: ECF No. 31

Before the Court is Defendant Phillips 66 Company’s Motion for Summary Judgment or, 

in the Alternative, Partial Summary Judgment. The Court will grant the motion in part and deny it 

in part.

I. BACKGROUND 

Plaintiff Franklin Davis began working for Defendant Phillips 66 Company (“Phillips”) in 

September 2011 as an operator in its Rodeo refinery. ECF No. 31-2 at 5. As an operator, his 

duties included working on the fire brigade. ECF No. 31 at 9. Most operators are required to 

serve on the fire brigade except in limited circumstances, for example, due to seniority, 

accommodation of disability, or because the individual is working on a unit that is staffed by one 

person at a time. ECF 31-2 at 75, 84. Operators at the Marine Terminal, where Davis was 

working in the first half of 2016, have fire brigade duties. Id. Absent responding to an 

emergency, fire brigade duty mostly involves participating in periodic training exercises. Id. Fire 

brigade duty is performed by more junior employees –an operator will typically be allowed to 

cease fire brigade duty after five to seven years of employment. Id. at 75. 

Davis had his knees replaced in 2012 and 2013. Id. at 5. After each knee replacement, and 

again in 2015, Davis took an agility test to determine whether he could perform the functions of 
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the fire brigade. Id. at 7-8. He passed the test each time. Id.

Davis testified that he asked to be removed from fire brigade in 2013, 2014, and 2015 

because his “knees didn’t work properly” and he didn’t want to “take a chance.” Id. at 8. Davis 

said his request was denied because he “did not have the seniority to get out of [his] unit,” and 

participation in the fire brigade was a condition of his employment. Id. at 8. 

In April 2016, Davis asked Tim Stubenvoll, a Human Resource Manager, to complete fire 

school at the Rodeo refinery, as opposed to the Texas fire school, because the Texas fire school 

was more physically demanding. Id. According to Davis, Stubenvoll told him that he had to go to 

Texas because he had not completed five years’ employment. Id. Davis again asked to be taken 

off fire brigade because he did not want to be responsible for injuring others. Id. Stubenvoll 

asked Davis to fill out a request for accommodation. Id. Davis filled out a request, in which he 

asked either to complete fire brigade training at the Rodeo refinery or to be removed from fire 

brigade duty entirely. Id. at 10. 

After Davis submitted his request for accommodation, Phillips asked Davis to provide 

medical documentation of his disability. Id. On June 3, 2016, Davis submitted restrictions from 

his doctor. Id. at 9-11. The restrictions included no kneeling for greater than one minute at a time; 

no stair or ladder climbing for more than 20 minutes per day; and walking greater than ten minutes 

with heavy gear. Id. at 79. Davis had asked for the restrictions he thought would keep him from 

fire brigade duty, but “the doctor worded them differently.” Id. at 11. Phillips deemed the 

restrictions to be so severe as to prevent Davis from performing any of his customary job duties. 

Id. at 11, 70. 

As a result, Davis was put on short term disability until there was potentially a change in 

his condition that would allow him to perform normal operator duties. Id. Mr. Davis was told that 

there was no position he could work in with such extreme restrictions, that the Company could not 

accommodate these restrictions, and that he was being put on short term disability until there was 

potentially a change in his condition that would allow him to do his normal operator duties. Id. at 

11, 73. 

At this point, the parties’ stories diverge. Davis testified that he was put on short-term 
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leave as “punishment,” that he immediately had his doctor modify the restrictions so that he could 

return to work as an operator, and that he passed a company physical, but Phillips still refused to 

allow him to return to work. Id. at 11. Phillips witnesses testified that Davis was placed on leave 

only because of an inability to accommodate the restrictions requested by his doctor, and that 

when he returned one month later with reduced restrictions, he was allowed to return to work at 

that time. In any event, the parties agree that Davis’ doctor reduced his restrictions, which now 

were “Avoid wearing full bunker gear for periods of more than 2 hrs/d.” ECF No. 31 at 10, 103. 

This restriction allowed Davis to work as an operator, but not to participate in the fire brigade. Id.

at 10. 

Davis underwent a return to work exam and was cleared to return to work with a few

additional restrictions. Id. at 10-11, 105. “Based upon these restrictions and because the

Company had an open Operator position at Unit 40, which did not involve fire brigade duties,”

Davis was transferred to Unit 40. Id. at 11. Operators in Unit 40 do not have fire brigade duties. 

Id. Davis would have been transferred to Unit 40 anyway as a matter of seniority, but Phillips 

accelerated the transfer to accommodate his restrictions. Id. at 77. In July 2016, Davis passed an 

agility exam showing that he was capable of performing Unit 40’s job functions. ECF No. 31-2 at 

12. 

On August 24, 2016, Davis reported that he injured his knee at work. ECF No. 31-2 at 12. 

Davis claims that he slipped off an uneven surface and put his weight on his left hand and fell to 

the right, and felt a severe pain in his right knee. Id. at 13. Davis was alone at the time of the 

incident. Id. Afterwards, he reported the incident to a temporary supervisor. Id. He was sent to 

“CareOnSite” in Martinez, Phillips’ medical care provider. Id. The doctor released him to work 

with no limitations. Id. Davis returned to work the next day, where he stayed inside and studied, 

as part of his ongoing training at Unit 40. Id. at 13-14. After work, Davis went to see a Kaiser 

professional, nurse practioner Kimmie Wong. Id. at 15. Nurse Wong ordered Davis “off work” 

from August 26, 2016 through September 1, 2016 and gave him modified restrictions at work 

through September 8, 2016. Id. at 16.

During the week of August 26, 2016, Davis states that “hung around” with his wife, 
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including going to the movies and sitting in a golf cart while his wife played golf. Id. at 17. 

Phillips was unconvinced that Davis was really injured and hired Pinkerton detectives to follow 

him around. Id. at 141-151. Davis was seen “out and about during the period of his absence from

work, walking, eating out, riding around in a golf cart at a golf course, shopping for groceries and 

putting them in the trunk of his Corvette, shifting his weight freely on and off both knees, crossing 

his legs and engaging in a good deal of bending of his knee.” ECF No. 31 at 13. Phillips also 

claims that Davis cancelled an August 31, 2016 medical appointment with CareOnSite, Phillips’ 

medical provider, claiming he was ill. Id. Phillips tried to contact Davis three times and left three 

voicemails, but Davis was unresponsive. Id.

During the week of September 1, 2016, Davis returned to work with modified restrictions. 

ECF No. 31-2 at 16. He was given instructions “not to leave the building” and not to “get in a 

vehicle without somebody being in it.” Davis also participated in meetings with company officials 

about the August 24, 2016 incident and the extent of his injuries. Id. at 17 – 21. Phillips claimed 

that the purpose of these meetings was to “understand what was preventing Mr. Davis from being 

able to work from August 26 to September 1.” ECF No. 31 at 14. Phillips states that Davis 

“refused to provide information concerning the specific limitations that prevented him from 

working” and “contended that that was between him and his healthcare provider.” Id. at 15. 

After the second meeting, Davis went out on stress leave. Id. at 23. Davis provided the 

company with a doctor’s note that took him off work from September 19, 2016 through October 

16, 2016. ECF No. 31 at 16. Phillips claimed that Davis golfed regularly during this time and 

“reported his scores to the NCGA for handicapping purposes.” Id. In his deposition, Davis 

acknowledged that he golfed during his stress leave, and documents show that he did so several 

times. ECF No. 31-2 at 28. 

Phillips concluded that Davis had violated its global ethics policy and basic rules of 

conduct “by misrepresenting the circumstance around his absence at the end of August and his 

failure to provide an appropriate explanation for that absence.” ECF No. 31 at 17. Phillips 

unsuccessfully tried to reach Davis by telephone to communicate the termination decision on 

October 21, 2016. Id. at 18. Davis was terminated by a letter dated on October 21, 2016. Id. at 
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18; 31-2 at 27. 

Davis filed a complaint with the Equal Employment Opportunity Commission (EEOC) and 

received a right to sue letter on November 16, 2016. ECF No. 1 at 9. On January 11, 2017, Davis 

filed a complaint in this Court, alleging eight claims pursuant to the Americans with Disabilities 

Act (“ADA”) (disability discrimination and retaliation) and the California Fair Employment & 

Housing Act (“FEHA”) (disability discrimination, failure to reasonably accommodate, failure to 

engage in interactive process, harassment, retaliation, and failure to prevent discrimination and 

harassment). See ECF No. 1. 

II. LEGAL STANDARD 

Summary judgment is proper when a “movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

A dispute is genuine only if there is sufficient evidence “such that a reasonable jury could return a 

verdict for the nonmoving party,” and a fact is material only if it might affect the outcome of the 

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The mere existence of a 

scintilla of evidence in support of the plaintiff's position will be insufficient; there must be 

evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. 

Where the party moving for summary judgment would bear the burden of proof at trial, 

that party “has the initial burden of establishing the absence of a genuine issue of fact on each 

issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 

480 (9th Cir. 2000). Where the party moving for summary judgment would not bear the burden of 

proof at trial, that party “must either produce evidence negating an essential element of the 

nonmoving party’s claim or defense or show that the nonmoving party does not have enough 

evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & 

Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party satisfies 

its initial burden of production, the nonmoving party must produce admissible evidence to show 

that a genuine issue of material fact exists. Id. at 1102-03. If the nonmoving party fails to make 

this showing, the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 

U.S. 317, 322-23 (1986). The Court must view the evidence in the light most favorable to the 
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non-moving party and draw all reasonable inferences in its favor. Anderson, 477 U.S. at 255. 

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate 

inferences from the facts are jury functions, not those of a judge.” Id.

III. ANALYSIS 

A. Federal and State Disability Discrimination Claims

To establish a prima facie case under FEHA or the ADA, Davis must show that “[he] is a 

disabled person within the meaning of the ADA; (2) [he] is a qualified individual, meaning [he]

can perform the essential functions of [his] job; and (3) [Phillips] terminated him because of his

disability.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). See also 

Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 271 (9th Cir. 1996) (“California relies on federal 

discrimination decisions to interpret the FEHA. Thus, we proceed with the same analysis for the 

purposes of both claims.”). 

“Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the 

employer to offer a legitimate, nondiscriminatory reason for the adverse employment decision.” 

Haley v. Cohen & Steers Capital Mgmt., Inc., 871 F. Supp. 2d 944, 953 (N.D. Cal. 2012) (citing 

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). An employer’s reasons 

need not rest on true information. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th 

Cir. 2002). Instead, courts require only that the employer “honestly believed its reason for its 

actions, even if its reason is foolish or trivial or even baseless.” Id. (citation and quotation 

omitted). 

If the employer meets this burden, the plaintiff must then raise a triable issue of material 

fact as to whether the defendant’s proffered reasons for its actions are a mere pretext for unlawful 

discrimination. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). A 

plaintiff can prove pretext “(1) indirectly, by showing that the employer's proffered explanation is 

unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) 

directly, by showing that unlawful discrimination more likely motivated the employer.” Raad v. 

Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003) (internal quotation 

marks and citation omitted). “Circumstantial evidence of pretext must be specific and substantial 
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in order to survive summary judgment.” Bergene v. Salt River Project Agr. Imp. & Power Dist., 

272 F.3d 1136, 1142 (9th Cir. 2001). Nonetheless, Ninth Circuit law is also clear that the 

plaintiff’s burden at this stage is “minimal.” Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 

1127 (9th Cir. 2009). “[V]ery little evidence is necessary to raise a genuine issue of fact regarding 

an employer's motive; and any indication of discriminatory motive may suffice to raise a question 

that can only be resolved by a fact-finder.” Id. (quoting McGinest v. GTE Serv. Corp., 360 F.3d 

1103, 1124 (9th Cir.2004).

1

 And, “[i]f a rational trier of fact could, on all the evidence, find that 

the employer's action was taken for impermissibly discriminatory reasons, summary judgment for 

the defense is inappropriate.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (1994). 

“Importantly, the ‘shift’ back to the plaintiff does not place a new burden of production on 

the plaintiff.” Noyes v. Kelly Servs., 488 F.3d 1163, 1169–70 (9th Cir. 2007). “The factfinder 

may infer ‘the ultimate fact of intentional discrimination’ without additional proof once the 

plaintiff has made out her prima facie case if the factfinder rejects the employer's proffered 

nondiscriminatory reasons as unbelievable.” Id. (citing Raad v. Fairbanks N. Star Borough Sch. 

Dist., 323 F.3d 1185, 1194 (9th Cir.2003)). 

The parties do not dispute the first two elements of this test, and the Court finds they are 

established in this record.2 First, the Court concludes that Plaintiff has established a prima facie 

case. He was disabled within the meaning of the ADA and the FEHA because he had instability in 

his knees following bilateral knee replacements. He was a qualified individual who was capable 

of performing the essential functions of his job. And he has presented evidence from which ‒ if 

the jury were to believe his evidence and disbelieve Phillips’ evidence ‒ he was terminated 

because of his disability. While Phillips claims it terminated Davis because its investigation 

showed that he was performing tasks that his doctor claimed he could not perform, a jury could 

 

1

Judge Legge’s observation that “the standard for demonstrating pretext in order to survive an 

employer's motion for summary judgment is not perfectly clear in the Ninth Circuit” remains just 

as true now as when he said it. Bulos v. Peoplesoft, Inc., No. C-99-1544-CAL, 2000 WL 868532, 

at *4 (N.D. Cal. June 21, 2000). 

2

Phillips states in its brief that “Defendant does not concede that Plaintiff can establish the first 

two elements of a disability discrimination claim under the ADA or FEHA” but acknowledges that 

its motion is focused only on the third element. ECF No. 31 at 19 n.6. 
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conclude that the investigation was consistent with the medical evidence and showed no wrongful 

conduct by Davis. That would leave Davis’ disability as the only basis for his termination. 

The Court also finds that Phillips has offered a legitimate, nondiscriminatory reason for its 

decision to terminate Davis: “Plaintiff’s employment was terminated because Plaintiff 

misrepresented the extent of his injuries and took a leave accommodation to which he was not 

entitled.” ECF No. 31 at 19. In his deposition, Human Resources Manager Tim Stubenvoll stated 

that Davis was terminated because “he said he couldn’t be at work . . . . But, the evidence that we 

had, including surveillance, showed that he clearly could have been at work doing his sedentary 

training duties. He also said he complied with what his doctor had told him and the restrictions 

that he placed on him. And the video surveillance showed that he had not done that.” 3 ECF No. 

31-2 at 89. Stubenvoll referenced a surveillance report that showed Davis “walking around 

normally,” and “crossing his legs in a golf cart, bending his knee a great deal.” Id. At the time, 

Davis’ medical restrictions stated “squat/kneel, knee bending: not at all.” ECF No. 33 at 8. 

Davis argues that Phillips “did not have a good faith belief in any misrepresentation” 

because the surveillance report supports Davis, not Phillips. ECF No. 33 at 15. Davis also argues 

that “the fabricated report of a conversation with Ms. Wong” and the “brutal interrogations” ‒ his 

words for the two meetings with Phillips managers ‒ demonstrate discriminatory intent.4 Id. A

reasonable juror could find that the surveillance video did not show Phillips misrepresenting the 

 

3

Phillips also argues that Davis misled his healthcare provider by telling Nurse Wong that he 

needed to climb ladders at work in order to obtain a note taking him off work. Id. Phillips did not 

learn about this alleged misrepresentation until Nurse Wong’s deposition. Id. Thus, this alleged 

misrepresentation did not impact Phillips’ decision to terminate Davis.

4 Davis also argues that the assignment to Unit 40 demonstrates discriminatory intent, but the 

Court is unclear how this demonstrates intent given that Davis was assigned to Unit 40 to 

accommodate his disability. See ECF No. 31-2 at 102. Finally, Davis argues that the “false claim 

that Mr. Davis was not required to climb ladders and was doing only sedentary work during 

training evidences discriminatory intent.” ECF No. 33 at 15. The Court is also unclear how this 

demonstrates discriminatory intent because Davis stated in his deposition that 90% of his day was 

spent doing book and computer work and the other 10 percent was spent riding “around with a 

guy.” ECF No. 37-1 at 5. Davis attempted to avoid the effect of this testimony by submitting a 

declaration in which he said he was required to climb ladders and stairs as part of training. ECF 

No. 34 at 3. The Court will disregard this declaration pursuant to the sham affidavit rule. See

Nelson v. City of Davis, 571 F.3d 924, 927 (9th Cir. 2009) (“The general rule in the Ninth Circuit 

is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition 

testimony). 
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extent of his injuries and that Davis’ belief is “unworthy of credence”. See Chuang, 225 F.3d at 

1127. The surveillance report shows Davis engaging in some knee bending, but a jury could 

conclude that he was following the advice of his caregiver. See ECF No. 31-2 141-171. Nurse 

Wong’s deposition testimony stated that she usually puts down “no kneeling, swatting, bending, 

and it gradually increases as they get better” and that at the time, Davis should not have been

bending his knee “beyond what he cannot do.” See ECF No. 31-2 at 123 (emphasis added). 

Nurse Wong was also asked what she tells similar patients about activity. She stated: “So they 

can—stationary bike to be in shape, motion, gentle range of motion to try to—so they don’t lose it 

and not lose all the muscle tone so they can still heal. And it is not broken so they can put weight, 

but make sure you walk heel, toe, walk so....” [sic] Id. at 125-126. She also said that being a 

passenger in a car “should be fine.” See id. Because Nurse Wong stated that the intention was for 

Davis to be able to do more and more with his knee, the fact that the surveillance report shows 

Davis bending his knee does not necessarily mean that he misrepresented his injury. 

Based on this evidence, a jury could conclude that the investigation did not actually show 

any misconduct on Davis’ part, making “the employer's proffered nondiscriminatory reasons . . . 

unbelievable.” See Noyes, 488 F.3d at 1170. Therefore, the motion for summary judgment of the 

federal and state disability discrimination claims is denied. See also Chuang, 225 F.3d at 1127 

(“As the Supreme Court recently reaffirmed, a disparate treatment plaintiff can survive summary 

judgment without producing any evidence of discrimination beyond that constituting his prima 

facie case, if that evidence raises a genuine issue of material fact regarding the truth of the 

employer's proffered reasons.”). 

B. State Law Failure to Accommodate Claim

“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.’” Nigro v. Sears, 

Roebuck & Co., 784 F.3d 495, 498 (9th Cir. 2015) (quoting Scotch v. Art Inst. of California–

Orange Cnty., Inc., 173 Cal.App.4th 986, 93 Cal.Rptr.3d 338, 358 (2009)). 

Davis’ complaint is not clear regarding which reasonable accommodation(s) he is 
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challenging. ECF No. 1 at 3. However, in his opposition to the motion for summary judgment,

Davis states that Phillips accommodated his disability from January 2016 to July 2016 by not 

assigning him to work in Unit 40, and that Phillips stopped accommodating him in July 2016

when it transferred him to that unit. ECF No. 33 at 15. Davis argues that Phillips assigned him 

“to Unit 40 despite its knowledge that [he] would not be able to perform the requisite job duties 

because they involved more climbing ladders and stairs than his position at Marine Terminal.” Id.

at 17. Although Davis provides no citation to support this argument, the Court infers that Davis is 

referring to the January 2016 conversation Davis describes in his declaration accompanying the 

opposition to the motion for summary judgment. ECF No. 34.5 Davis describes a conversation 

with Lee Whitney, the Superintendent of Production-Bulk Operations at Phillips 66, about 

whether he would have problems going from the marine terminal to cross train at Unit 40. Id. at 2. 

Davis stated that he told Lee that he was aware of the work load and responsibilities at Unit 40 and 

that he “would have problems going over there.” Id. Specifically, Davis explained that he did not 

have problems doing his work at the Marine Terminal but that he would have trouble climbing the 

tanks required in Unit 40. Id. Davis also explained that when he completed his return to work 

agility test, he was told that the only reason he was released was because he was returning to 

Marine Terminal and if he “was going to return to the Coker or a high stress job [the Phillips 

medical professional who examined Davis] would not have released me.” Id. According to Davis, 

Lee acknowledged that there were additional tanks and a bigger work load in Unit 40 and assured 

him that he was not going to be sent to Unit 40. Id. 

Even assuming this January 2016 conversation took place, it was superseded by a later 

conversation in which Davis asked to either attend fire school at Rodeo or be taken off fire 

brigade, as an accommodation for his knee injuries, “somewhere in April 2016.” ECF No. 31-2 at 

8. Phillips accommodated this request by transferring him to Unit 40, which did not require fire 

 

5

The Court notes Defendants’ objections to this declaration. ECF No. 37 at 20. The foundation 

objection to Paragraph 3 is overruled, and the hearsay objection as to statements made by Lee 

Whitney are overruled because Whitney’s statements qualify as party admissions. The hearsay 

objection as to the statements allegedly made by healthcare provider D'Arcy are sustained. In all 

other respects, Defendants’ objections are overruled 
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brigade duties. Id. Davis underwent an agility exam to demonstrate that he was capable of 

performing the job functions of Unit 40, which he passed. ECF No. 31-2 at 12. He began work in 

Unit 40 in July 2016. Id.

Davis now complains that he was unhappy about his transfer to Unit 40 because “we went 

through that whole thing in January how it would affect my knees, and that it would be a lot of 

stress, and I didn’t know if I could do it.” ECF No. 37-1 at 5. Yet the fact remains that Unit 40 

accommodated Davis’ request not to work on the fire brigade, that a Unit 40 placement was 

consistent with the available medical documentation, and that Davis passed an examination 

designed specifically to test whether he could perform the duties required by Unit 40. In other 

words, there is no admissible evidence that Unit 40 was not an appropriate placement. Therefore, 

the motion for summary judgment is granted as to the failure to reasonably accommodate claim 

under California Government Code Section 12940(m). 

C. State Law Failure to Engage in the Interactive Process Claim

Under California Government Code Section 12940(n), it is unlawful for “an employer or 

other entity covered by this part 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 condition.” (emphasis added).

Davis alleges that Phillips “failed to engage in a timely, good faith interactive process with 

Plaintiff, thereby exacerbating his disabilities.” ECF No. 1 at 4. Philips argues that it provided 

Davis with a reasonable accommodation when “it transferred him to a position that would not 

require him to serve on the fire brigade.” ECF No. 31 at 23. In response, Davis argues that “the 

reasonable accommodation was not reasonable (sic).” ECF No. 33 at 18. Davis provides no 

additional details about why the accommodation was not reasonable, but the Court infers that 

Davis is referring to his earlier argument that “Defendant assigned Mr. Davis to Unit 40 despite its 

knowledge that Mr. Davis would not be able to perform the requisite job duties because they 

involved more climbing ladders and stairs than his position at Marine Terminal.” ECF No. 33 at

17. As discussed above, Davis has not provided the Court with any evidence that he requested any 
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reasonable accommodation beyond his removal from the fire brigade. He also has provided no

evidence that the placement was medically inappropriate. Rather, the evidence shows that Phillips 

provided exactly the accommodation Davis requested. On these facts, Phillips is not liable for 

failure to engage in a timely, good faith, interactive process. As the California Court of Appeal 

noted in the failure to accommodate context, “the employee can't expect the employer to read his 

mind and know he secretly wanted a particular accommodation and sue the employer for not 

providing it.” Avila v. Cont'l Airlines, Inc., 165 Cal. App. 4th 1237, 1252–53, 82 Cal. Rptr. 3d 

440, 453 (2008) (internal quotation and citations omitted). The motion for summary judgment is 

granted as to Davis’ claim for failure to engage in an interactive process.

D. Unlawful Harassment Claim

Under FEHA, it is unlawful for an employer to harass an employee because of physical 

disability, mental disability, medical condition or age. Cal. Gov. Code §12940(j). “In the FEHA, 

the terms ‘discriminate’ and ‘harass’ appear in separate provisions and define distinct wrongs,” 

although they are sometimes interrelated or overlapping. Roby v. McKesson Corp., 47 Cal. 4th 

686, 705-707 (2009), as modified (Feb. 10, 2010). “Harassment is generally concerned with the 

message conveyed to an employee, and therefore with the social environment of the workplace, 

whereas discrimination is concerned with explicit changes in the terms or conditions of 

employment.” Id. at 708.

To be actionable, “harassment must be ‘sufficiently severe or pervasive’ to alter the 

conditions of the victim's employment and create an abusive working environment.” Etter v. 

Veriflo Corp., 67 Cal. App. 4th 457, 463, (1998), as modified on denial of reh'g (Nov. 16, 1998)

(internal citations omitted). “Commonly necessary personnel management actions such as hiring 

and firing, job or project assignments, office or work station assignments, promotion or demotion, 

performance evaluations, the provision of support, the assignment or nonassignment of 

supervisory functions, deciding who will and who will not attend meetings, deciding who will be 

laid off, and the like, do not come within the meaning of harassment . . . . These actions may 

retrospectively be found discriminatory if based on improper motives, but in that event the 

remedies provided by the FEHA are those for discrimination, not harassment.” Reno v.Baird, 18 
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Cal. 4th 640, 646–47 (1998). However, “some official employment actions done in furtherance of 

a supervisor's managerial role can also have a secondary effect of communicating a hostile 

message. This occurs when the actions establish a widespread pattern of bias.” Roby, 47 Cal. 4th 

at 709.

Davis alleges that “Defendant harassed him by assigning him to a job that would 

exacerbate his disability, by constantly calling him into his manager’s office and subjecting him to 

interrogation about his health condition, and by threatening to terminate him on numerous 

occasions” after he requested a reasonable accommodation. ECF No. 1 at 2. In his opposition to 

summary judgment, Davis argues that he was intimidated during a meeting with upper 

management after he injured his right knee at work on August 24, 2016 and that the “two 

interrogations on September 2 and 16, 2016 were intensely harassing.” ECF No. 33 at 19-20. He 

also claims that some of the company’s alleged decisions are evidence of harassment. Id. He 

claims that the company refused to allow him to return to work after he requested a reasonable 

accommodation and brought in medical documentation with restrictions, refused to offer him 

sedentary work while he was off for the month, refused to allow him to work Marine Terminal 

normal hours, and refused to allow him to work overtime at the Marine Terminal. Id. Davis 

argues that the harassment was so severe it caused him to take medical leave. ECF No. 33 at 20. 

Davis offers no evidence that his assignment to Unit 40 was harassment, rather than a 

response to a request for a reasonable accommodation. Phillips’ decisions about where and when 

Davis could work, especially given the ongoing conversation about Davis’ medical conditions and 

the appropriate placement for him, are “commonly necessary personnel decisions.” See Reno, 18 

Cal. 4th at 646–47. Phillips has not offered sufficient evidence of a widespread pattern of bias as 

to constitute harassment. See Roby, 47 Cal. 4th at 709. 

However, Davis does offer evidence of harassment at one of the meetings, through the 

testimony of Teresa Serrano, a health and safety represenstative.

6

 Phillips argues that the 

 

6

In her disposition, Serrano stated that the meeting turned “hostile” and that Davis was providing 

the company with everything they had asked for but company officials continued to ask him the 

same questions. ECF No. 35 at 48. 
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company “was undertaking an investigation” because it appeared that Davis was misrepresenting 

his injury. ECF No. 31 at 25. Even if this meeting constituted harassment, this single incident is 

insufficient to support a harassment claim under California Government Code Section 12940(j). 

Therefore, the motion for summary judgment as to Davis’ harassment claim is granted. See

Hardin v. Wal-Mart Stores, Inc., 604 F. App’x, 545, 548 (9th Cir. 2015), cert. denied, 136 S. Ct. 

331 (2015) (finding that four incidents scattered over eight years, including several threats to fire 

plaintiff, “did not form a pattern of behavior that was sufficiently severe to constitute an FEHA 

violation” (citation omitted)).

E. Federal and State Retaliation Claims 

“To establish a prima facie case of retaliation under the FEHA, a plaintiff must show

‘(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an 

adverse employment action, and (3) a causal link existed between the protected activity and the 

employer's action.’” Scotch v. Art Inst. of California-Orange Cty., Inc., 173 Cal. App. 4th 986, 

1020 (2009) (quoting Yanowitz v. L'Oreal USA, Inc. 36 Cal.4th 1028 (2005)).

Once the employee establishes a prima facie case under a retaliation theory, the burden 

shifts to the employer to “rebut the presumption by producing evidence that it had a legitimate, 

nondiscriminatory reasons for its adverse employment action.” Santillan v. USA Waste of 

California, Inc., 853 F.3d 1035, 1042 (9th Cir. 2017). If the employer satisfies this burden, the 

employee must show that the reason “constitutes mere pretext” or “must produce other evidence of 

intentional discrimination.” Id. The analysis for a retaliation claim under the ADA is the same. 

See Pardi v.Kaiser Foundation Hospitals, 389 F.3d 840, 849 (9th Cir. 2004). 

Phillips argues that Davis has not established a prima facie case of retaliation because he 

cannot prove a causal link between a protected activity and his termination. ECF No. 21 at 26. 

Phillips contends that Davis was terminated because “he misrepresented the circumstances around 

his absence at the end of August and failed to provide an appropriate explanation for that 

absence.” Id. 

The Court finds that Davis establishes the prima facie case because he suffered an adverse 

employment action ‒ termination ‒ about four months after he requested a reasonable 
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accommodation. ECF No. 31-2 at 27. See Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th 

Cir. 2004) (“The causal link between a protected activity and the alleged retaliatory action can be 

inferred from timing alone when there is a close proximity between the two.”) (internal citation 

omitted); see also Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 478, (1992), reh'g denied and 

opinion modified (Mar. 5, 1992) (finding a causal link when employee “was terminated only a few 

months” after he engaged in protected activity).7 

Since Davis has established a prima facie case, the burden shifts to Phillips to articulate a 

“legitimate, nondiscriminatory reasons for its adverse employment action.” Santillan, 853 F.3d at 

1035. As discussed above, the Court finds that Phillips has articulated a legitimate 

nondiscriminatory reason for its actions. See ECF No. 31 at 22. And, as discussed above, the 

Court also finds that there is a genuine issue of material fact regarding whether Davis was 

misrepresenting his injuries to the company. Although Davis did not cite this argument in his 

briefing, he has produced some ‒ perhaps just enough ‒ evidence that the legitimate reason offered 

by Phillips is mere pretext. Therefore, the motion for summary judgment as to the federal and 

state retaliation claims is denied. 

F. Failure to Prevent Discrimination, Harassment, or Retaliation Claim

It is unlawful under FEHA for an employer “to fail to take all reasonable steps necessary to 

prevent discrimination and harassment from occurring.” Cal. Govt. Code. § 12940(k). A plaintiff 

seeking to recover damages based on this claim must show that “(1) plaintiff was subjected to 

discrimination, harassment, or retaliation; (2) defendant failed to take all reasonable steps to 

prevent discrimination, harassment or retaliation; and (3) this failure caused plaintiff to suffer 

 

7

There is an additional potential problem with Plaintiff’s state law retaliation claim pursuant to 

Cal. Gov. Code §12940(h): “Under FEHA, requesting accommodations is not ‘protected activity’

unless the plaintiff first makes a complaint regarding the denial of accommodations.” Violan v. 

On Lok Senior Health Servs., No. 12-CV-05739-WHO, 2013 WL 6907153, at *11 (N.D. Cal. 

Dec. 31, 2013). Because Defendant does not address this infirmity, and because subsection (m)(2) 

of section 12940 provides a claim for retaliation based on a request to accommodate, the Court 

does not address the issue further. Under the ADA, requesting an accommodation is a protected 

activity. Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004) (“Coons was 

engaged in a protected activity when he requested that the IRS make reasonable accommodations

for his alleged disability.”); Valenzuela v. Bill Alexander Ford Lincoln Mercury Inc., No. CV-15-

00665-PHX-DLR, 2017 WL 1326130, at *4 (D. Ariz. Apr. 11, 2017) (“requesting a reasonable 

accommodation is protected activity”). 
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injury, damage, loss or harm.” Lelaind v. City & Cty. of San Francisco, 576 F. Supp. 2d 1079, 

1103 (N.D. Cal. 2008). If plaintiff has established sufficient evidence to overcome summary 

judgment with respect to a disparate treatment or retaliation claim under FEHA, defendant is not 

entitled to summary judgment on a failure to prevent discrimination claim. Id.; see also Reed v. 

First Student, Inc., No. CV 16-5483-RSWL-FFMX, 2017 WL 4325580, at *6 (C.D. Cal. Sept. 27, 

2017) (“This claim essentially derives from a FEHA discrimination claim. Because Plaintiff’s 

FEHA cause of action survives summary judgment, the Court denies Defendant’s Motion as to 

Plaintiff’s failure to prevent discrimination cause of action as well.”) (internal citations omitted).

Davis’ FEHA discrimination and retaliation claims survive summary judgment. Thus, the 

Court denies the motion for summary judgment as to the failure to prevent discrimination claim. 

CONCLUSION

The Court grants Defendants’ motion for summary judgment as to Davis’ FEHA failure to 

accommodate and failure to engage in interactive process claims. The Court denies the motion as 

to Davis’ FEHA and ADA discrimination claims, federal and state retaliation claims and failure to 

prevent claim. 

IT IS SO ORDERED.

Dated: December 22, 2017

______________________________________

JON S. TIGAR

United States District Judge