1

Filed 9/8/16 Tevis v. Spare Time, Inc. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

KELLY TEVIS,

Plaintiff and Appellant,

v.

SPARE TIME, INC., et al.,

Defendants and Respondents.

C074938

(Super. Ct. No. 

34201100116411CUWTGDS)

The trial court granted summary adjudication of all 10 causes of action in plaintiff 

Kelly Tevis’s complaint against her former employer, Spare Time, Inc. (the Company),

and her supervisor, Joe Rose (Rose). We affirm the summary adjudication of the causes 

of action arising from Rose’s alleged sexual harassment, assault, and intentional infliction 

of emotional distress based on the running of the statute of limitations, fatal admissions 

by plaintiff, and a failure of proof of intentional tortious conduct. We reverse, however 

four causes of action arising from the Company’s alleged failure to engage in the 

interactive process in good faith, failure to provide a reasonable accommodation, 

retaliation, and wrongful termination because we find there remain triable issues of 
2

material fact as to those causes of action. The result is that the claims alleging the more 

egregious conduct by plaintiff’s supervisor will not be tried, whereas the Company’s 

response to her complaints will be.

Allegations of Sexual Harassment and Violence

Plaintiff alleges that Rose was violent, crass, and vulgar, and used sexually 

inappropriate language in the workplace. There is no dispute that plaintiff had been a 

rising star at the Company’s fitness centers before Rose was transferred to the Natomas 

facility in the summer of 2007. What is in dispute is what led to plaintiff’s medical leave 

in April of 2010, how and what the parties communicated during her leave, and why she 

was fired in August of 2010. Because this is an appeal of a summary judgment, the facts 

are presented in the light most favorable to plaintiff. (Scotch v. Art Institute of California

(2009) 173 Cal.App.4th 986, 1005 (Scotch).)

Six months after she was hired as an assistant marketing director at the Company’s 

Lodi facility, the Company promoted plaintiff to be a marketing director at the Natomas

Racquet Club. In 2006 and 2007 she was selected as the “Rookie of the Year” and 

“Marketing Director of the Year.”

Plaintiff alleges Rose began exhibiting inappropriate behavior a few months after 

his arrival. By mid-2008, she claims he was sexually harassing her. Although plaintiff 

testified in her deposition that it was difficult to remember when the many incidents 

occurred, she recalled at least three before March 2009. She alleges that Rose shared 

stories about 1) training Muslim women and how he was “between their legs and in their 

chest” even though their husbands would disapprove, 2) a man blow-drying his penis in 

the locker room, and 3) girls wearing their bathing suit bottoms in the club. He told 

plaintiff that as the general manager he could waive the club rules, and he did not have a 

problem if they wanted to run around like that. On at least one occasion, Rose told her to 

“shut the fuck up.”
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On or about March 10, 2009, Rose went into a violent rage, slamming doors, 

screaming obscenities, and pacing the office before picking up an office chair and 

slamming it into the ground until it was in pieces. He left the club but later stormed into 

plaintiff’s office and harassed her. Alone in her office, she tried to assure Rose that 

everything was going to be okay.

Plaintiff went home and called Dave Anderson, the president of the Company, to 

complain about Rose’s violent outbursts and sexually inappropriate behavior. She also 

complained to Gavin Russo, the marketing supervisor. On March 16 Mark Tappan, the 

director of operations, met with plaintiff and two of her female coworkers to discuss 

Rose’s behavior. They each recounted a few stories about Rose’s behavior during the 

lunch meeting. They told Tappan that Rose had exhibited a pattern of violent outbursts 

and had thrown reams of paper across the office, hitting walls, desks, and ceiling fans,

and barely missing staff members.

Plaintiff reported that Rose’s behavior improved for a few months, particularly 

during the time period when the owner’s daughter was working on-site. But after the 

owner’s daughter went on maternity leave, Rose’s behavior deteriorated once again. 

Plaintiff warned Russo that Rose was having problems and was “going to blow.” Russo 

assured plaintiff he would take action, but nothing changed.

Although plaintiff could not piece together a precise chronology, she recounted a 

number of incidents that thereafter ensued. On one occasion, Rose “stretched out” an 

employee’s leg after she pulled a muscle and told the employee and a coworker that the 

employee was “ready for a man tonight.” Rose found pornography in a locker, took it 

home, and thought it was really funny that his wife became angry. According to plaintiff, 

as a female employee was bending over, Rose commented that she “should have just 

asked [him] for a raise.”

Rose constantly touched, adjusted, and rubbed his crotch in plaintiff’s presence. 

And he recounted endless stories about his past sexual adventures to plaintiff, including 
4

the orgies that were performed for him while he played in a band, the abundance of sex 

he enjoyed while he was stationed in Thailand, and how on one occasion a young woman 

wanted to “fuck him” in the back of his truck, even after he showed her the baby car seats 

that would be in the way.

Plaintiff heard Rose repeatedly refer to female employees as “bitches,” 

particularly when he was angry. At least twice, he told plaintiff to “call the bitches and 

tell them they better get their fuckin’ asses in here.” When new computer programs were 

being installed at the club, Rose lashed out and said he was going to “kick that little fat 

fuck-in [sic] homosexual Craig’s ass.” He referred to the same man as a “fucking 

faggot.”

In addition to his sexually charged stories and profanities, Rose flew into 

occasional fits of rage. When plaintiff was redesigning her office, Rose became 

frustrated, called her a “bitch” in her absence, and hit her door. Plaintiff heard about his 

outburst and was afraid to return to the office that day.

In early April 2010 Rose was out of the office attending a conference. When he 

returned on April 12, plaintiff sent him an e-mail in which she mentioned that she was 

happy to have him back.

On Friday, April 16, Rose had another tirade at a team meeting during which he 

told plaintiff to “shut the fuck up.” He was about two feet from her face as he berated 

her, giving her an anxiety attack. At her deposition, she testified she sat there with 

extreme pressure in her chest, fearful that he might strike her. On Monday morning, 

April 19, her doctor diagnosed her with severe depression and anxiety, and put her on a 

medical leave of absence. She testified that her doctor opined she would be unable to 

return to work as long as Rose was there. The Company insists that neither plaintiff nor 

her doctor ever informed anyone at the club she could not return to work for Rose. 

Plaintiff faxed Anna Sierra, the human resources manager, a written request for a twoand-a-half-week leave accompanied by a doctor’s note.
5

What Transpired After Plaintiff Became Unable to Work

The following day, April 20, Rose called plaintiff at home. He had never called 

her at home before. He left a message stating, “call me when you can.” She felt 

threatened, and because she had communicated the need for a medical leave with human 

relations, she did not return his call.

On April 21 Sierra mailed information to plaintiff regarding the Family and 

Medical Leave Act of 1993 (FMLA; 29 U.S.C. § 2601 et seq.) and workers’ 

compensation. On April 26 plaintiff filled out the workers’ compensation incident report 

wherein she described Rose’s violent fits of rage, the pervasive nature of his sexual 

innuendos, the stress incident that led to her anxiety attack, and her inability to come to 

work because she did not feel safe and her health had deteriorated. She identified 

12 witnesses. She believed she had submitted all that was required of her.

Nevertheless, on May 13 plaintiff sent Sierra an e-mail entitled “Formal 

Complaint towards Joe Rose,” in which she described a pattern of “displaying signs of 

rage and bullying, making slurs and derogatory comments about race, sexual activities 

and sexual experiences.” She complained that after a brief period of improvement, Rose 

“again started displaying and creating the same intimidating, hostile work environment.” 

“Over the next few months Joe Rose became bolder regarding his conduct. During 

directors’ meetings, and at other times, he slammed his fist into doors, kicked desks, used 

excessive profanity, bullied and intimidated to the point where I feared for my safety. 

Joe Rose also continued using derogatory comments regarding race, sexual orientation, 

and sexual activities that were offensive.” In sum, “Joe Rose’s consistent verbal 

aggression, intimidation, severe abusive and offensive actions causes a sense of dread and 

fear.”

In reply, Sierra assured plaintiff that the Company had undertaken an 

investigation. While the investigation was underway, plaintiff was granted additional 

leaves of absence. Mark Tappan, the director of operations who had met with plaintiff 
6

and two other female employees in March 2009 to give them the opportunity to discuss 

Rose’s inappropriate behavior at work, conducted the investigation on behalf of the 

Company. He reported that the other two employees did not observe the same 

deterioration in Rose’s behavior and concluded that plaintiff’s complaints did not have 

merit. He believed most of her complaints regarded behavior that had occurred a year 

earlier and before he met with Rose. Plaintiff alleges that Tappan did not interview her 

and that none of the other 10 witnesses she identified in her incident report were ever 

interviewed during the investigation.

On July 6 Sierra sent plaintiff a letter informing her that her leave of absence had 

been designated as FMLA/CFRA (California Family Rights Act; Gov. Code, § 12945.2) 

leave which would expire at the end of 12 weeks on July 12. On July 9 plaintiff sought 

clarification regarding the FMLA designation and outlined her progress with her 

workers’ compensation claim.

But on July 7 Sierra notified plaintiff that the investigation was completed, her 

complaint had no merit, and she was expected to continue to report to Rose. Sierra 

wrote: “We expect you two to work together to achieve a cohesive and productive work 

environment, and we expect respectful behavior and courteous treatment by and among 

all Company employees.” Plaintiff was instructed to keep the details of the investigation 

confidential, and she was warned she would incur disciplinary action if she breached the 

confidence. Plaintiff alleges that Rose was not put under similar restrictions. In her 

view, the investigation was not complete since Tappan had failed to interview the 

majority of the percipient witnesses. In the July 7 letter, Sierra accused plaintiff of 

failing to respond to company inquiries. Sierra wrote, “On multiple occasions, the 

Company tried to contact you (by telephone and e-mail) to discuss and obtain more 

information about your complaint. Unfortunately, you did not return any of those 

telephone calls or e-mails, nor did you otherwise contact anyone in response.”
7

Plaintiff insists the Company’s accusation that she did not communicate is 

patently untrue. In her written defense on July 13, plaintiff addressed both the phone 

calls and e-mails. She explained that she received four phone calls at home within the 

first 24 hours after her doctor put her on medical leave, while she was still trying to 

process what he had told her. Because she was depressed, fragile, and upset, her husband 

had asked the Company to give her “some space because [she] was extremely stressed.” 

She also recapped the correspondence, including e-mails, letters, and forms, she had sent 

to the Company from April 19 through July 9, 2010.

“Here is the total of e-mails and faxes that I have sent you from the same time 

period: 10 e-mails and 4 faxes. A check in the amount of $180.00 was sent to Spare 

Time for my portion of the health premium for the months of May, June and July. I have 

also completed, signed and returned 4 forms to you: Employment Incident Report; MPN 

Form B; Worker’s Compensation Claim Form; and Leave of Absence Request Form.

“Furthermore, I have received multiple letters and forms from Dean Nguyen, the 

claims agent for Republic Indemnity, Spare Time’s worker’s compensation insurance 

carrier. For example: W-2 form; Employee Wage Schedule; Cop[y] of each month’s 

earnings statement; Forms for QME panel list; Employee’s Report of Injury; miles 

traveled for medical treatment forms; Authorization for Release of Medical Records; and 

forms for Medicaid and Medicare. All of these forms have been completed, signed and 

returned to Republic Indemnity. I have also called the QME doctors on the panel list in 

order to set up a doctor’s appointment with one of them, and kept in contact with Dean 

Nguyen.

“On top of all of this, I have stayed in contact with my doctor, Dr. Michael Lin. 

Per the advice of my doctor I have also been meeting with someone weekly in regards to 

my work situation. I have tried extremely hard to communicate on a timely basis while 

staying on top of emails, letters, reports, forms and Doctor Appointments.”
8

On July 16 Sierra notified plaintiff that the Company had designated her initial 

request for leave as a leave of absence under the FMLA/CFRA, but that 12-week leave 

had expired on July 12. She further explained: “Because you have exhausted the 

maximum leave time available under FMLA/CFRA, you are not eligible for or entitled to 

any further FMLA/CFRA leave. You may, however, be eligible for a leave of absence as 

an accommodation under the California Fair Employment and Housing Act (‘FEHA’

[Gov. Code, § 12900 et seq.]) and/or the federal Americans with Disabilities Act (‘ADA’

[42 U.S.C. § 12101 et seq.]) if you are a qualified individual with a disability. As a 

result, the Company is treating your latest doctor’s note as a request for an 

accommodation in the form of a leave of absence.” Sierra assured plaintiff the Company 

was committed to “engaging in a reasonable interactive process with all employees who 

may be eligible for reasonable accommodations in the workplace.” She enclosed a 

questionnaire to be completed by plaintiff’s doctor and returned by plaintiff within 

15 days.

Plaintiff missed the deadline. Sierra wrote to her on August 3 encouraging her to 

participate in the interactive process and extending her deadline to submit the 

questionnaire to August 11. She also offered to send the questionnaire directly to 

plaintiff’s doctor, and she invited plaintiff to call her if she wished to ask any questions. 

Throughout this letter, as in her letter initiating the interactive process, she referred to an 

additional leave of absence as a possible accommodation.

On August 9 plaintiff e-mailed Sierra, explaining that she could not get in to see 

her doctor until August 23. Sierra extended the deadline until 5:00 p.m. on August 23. 

The Company never received the completed questionnaire. Plaintiff testified she does 

not know whether her doctor completed the questionnaire or if she told him about the 

deadline. At one point she testified it was not her responsibility to make sure the 

completed questionnaire was returned, but she later testified that she did not know if it 

was her responsibility or not.
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Plaintiff was discharged on August 26, 2010. Sierra explained: “Based on your 

failure to provide any response to the questionnaire or otherwise identify what 

‘accommodations’ you need, the Company has determined that you are not willing to 

engage in the interactive process. Despite that, the Company still evaluated your 

eligibility for an accommodation. Based on all information available, we have 

determined that you are not eligible for a reasonable accommodation. First of all, the 

Company has no information to suggest that you are suffering from any type of 

‘disability’ within the meaning of the ADA and/or FEHA. Moreover, there is no 

suggestion that any type of ‘reasonable accommodation’ will enable you to return to 

work. The Company is not aware of any changes that could be made to your Marketing 

Director position that would enable you to perform the essential functions of that 

position. As for a continued leave of absence, you have already been on leave from your 

position for over 4 months. There is no indication – from either you or your medical 

provider – that you will be capable of returning to work after a reasonable extension of 

that leave.” She concluded: “If and when you are released to return to work, please let 

us know. At that time, we will evaluate what openings are available and reinstate your 

employment, if possible.”

Plaintiff admitted that she never asked the Company to separate her from Rose, to 

put her at a different club, or to provide any other kind of accommodation. She also 

admitted that Sierra was responsive to her e-mails, Sierra was staying in communication, 

and that they had a good “back and forth.” She further admitted that she could not have 

gone back to work before she was terminated, even if Rose was not present, because she 

was still emotional, stressed, and had a lot of anxiety. Indeed, even at the time of her 

deposition in July of 2012, she testified she did not know whether she could work at 

another club because she was not sure whether she was ready mentally and emotionally.

Based on her own “gut feeling,” plaintiff testified that she was fired to stop her 

from complaining, because “[t]hey wanted the situation with Joe Rose to go away,” and 
10

possibly because she had a disability. She admitted she was not terminated because she 

was a woman. She testified she had no evidence that the Company’s reasons were 

pretextual.

Plaintiff filed an administrative complaint with the Department of Fair 

Employment and Housing (DFEH) on April 19, 2011. On December 30, 2011, she filed 

a civil complaint for damages, alleging 10 causes of action: 1) wrongful termination in 

violation of public policy, 2) failure to prevent sexual harassment, 3) sexual harassment,

4) gender discrimination in violation of the California Constitution, 5) disability 

discrimination, 6) failure to accommodate, 7) failure to engage in the interactive process,

8) retaliation, 9) assault, and 10) intentional infliction of emotional distress. The trial 

court granted defendants’ motion for summary judgment. Plaintiff appeals.

DISCUSSION

I

Standard of Review

Plaintiff attempts to focus our attention on the tentative ruling, wherein the trial 

court denied summary adjudication of most of the causes of action based on the existence 

of triable issues of material fact. Unfortunately for plaintiff, the trial court changed its 

mind with little explanation and granted summary judgment. We agree with defendants 

that the tentative ruling is not binding on the trial court and can be modified and changed 

(Horning v. Shilberg (2005) 130 Cal.App.4th 197, 203); moreover, it carries no weight on 

appeal (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647). The mere fact 

that plaintiff repeats the trial court’s tentative rationale as to each cause of action does not 

make it relevant. (Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 

638, fn. 9.) We review the trial court’s final ruling de novo. (Birschtein v. New United 

Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999 (Birschtein).)

It is true, however, as plaintiff urges with equal vigor, that we must liberally 

construe her declarations to determine the existence of triable issues of fact and draw all 
11

inferences and resolve all doubts in her favor. (Dominguez v. Washington Mutual Bank

(2008) 168 Cal.App.4th 714, 720 (Dominguez).) A moving defendant has the burden to 

demonstrate that the undisputed facts establish an affirmative defense, such as a statute of 

limitations, as a matter of law. (Trovato v. Beckman Coulter, Inc. (2011) 

192 Cal.App.4th 319, 322 (Trovato).) “ ‘While resolution of the statute of limitations is 

normally a question of fact, where the uncontradicted facts established through discovery 

are susceptible of only one legitimate inference, summary judgment is proper.

[Citation.]’ ” (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054-

1055.)

II

Plaintiff’s Causes of Action for Sexual Harassment and

Failure to Prevent Sexual Harassment Were Barred by the Statute of Limitations and 

Were Not Saved by the Continuing Violation Doctrine or Equitable Tolling

Before filing a lawsuit for sexual harassment or any of its derivatives, a plaintiff 

must file an administrative complaint with the DFEH within one year of the date on 

which the harassment occurred. (Gov. Code, § 12960, subd. (d); Trovato, supra,

192 Cal.App.4th at p. 323.) The Company alleged that the last potential incident of 

harassment occurred on plaintiff’s last day of work, April 16, 2010. Since she did not file 

her administrative complaint until April 19, 2011, the Company maintains that she 

missed the one-year deadline and consequently failed to exhaust her administrative 

remedy, a “ ‘jurisdictional prerequisite to resort to the courts.’ [Citation.]” (Johnson v. 

City of Loma Linda (2000) 24 Cal.4th 61, 70.)

Plaintiff urges us not only to give her every benefit of the doubt in determining 

whether a triable issue of fact exists but also to liberally construe the FEHA statute of 

limitations. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 819 (Richards).) “In 

order to carry out the purpose of the FEHA to safeguard the employee’s right to hold 

employment without experiencing discrimination, the limitations period set out in the 
12

FEHA should be interpreted so as to promote the resolution of potentially meritorious 

claims on the merits.” (Romano v. Rockwell Internat., Inc., (1996) 14 Cal.4th 479, 493-

494.) Plaintiff insists that the continuing violation doctrine, liberally applied, saves her 

lawsuit.

The continuing violation doctrine “ ‘allows liability for unlawful employer 

conduct occurring outside the statute of limitations if it is sufficiently connected to 

unlawful conduct within the limitations period.’ [Citation.]” (Trovato, supra, 

192 Cal.App.4th at pp. 325-326.) The employer’s unlawful actions are “sufficiently 

connected” if they satisfy three criteria: 1) the unlawful conduct occurring outside the 

statute of limitations is “sufficiently similar in kind” to the unlawful conduct within the 

limitations period, 2) the unlawful actions have occurred with “reasonable frequency,” 

and 3) they have not “acquired a degree of permanence.” (Richards, supra, 26 Cal.4th at 

p. 823.)

In the context of a motion for summary judgment, plaintiff contends she need only 

raise a reasonable inference that Rose’s phone call to her at home on April 20, leaving the

message, “call me when you can,” was a continuation of the sexual harassment she had 

endured for nearly two years. It is certainly true that what might appear to be an isolated 

act must be viewed in the context of all the circumstances. (Dominguez, supra,

168 Cal.App.4th at pp. 722-723.) “Discriminatory behavior comes in all shapes and 

sizes, and what might be an innocuous occurrence in some circumstances may, in the 

context of a pattern of discriminatory harassment, take on an altogether different 

character, causing a worker to feel demeaned, humiliated, or intimidated on account of 

her gender.” (Draper v. Coeur Rochester, Inc. (9th Cir. 1998) 147 F.3d 1104, 1109.)

There is no evidence that either the substance or the tone of the phone message 

was inappropriate in any way. Rose simply asked plaintiff to call him when she could. 

Plaintiff does not suggest otherwise. The leap she asks us to make is based on the simple 

facts that Rose called her at home, which he had never done before, and that the call was 
13

made just a few days after Rose’s outburst at the team meeting in which he angrily told 

her to “shut the fuck up.” Plaintiff argues these circumstances give rise to a reasonable 

inference that the call was meant to her harass her. That is the leap we are unable to 

make.

To constitute a continuing violation, the unlawful act must be “ ‘similar in kind’ ” 

to the harassment that occurred outside the statute of limitations. (Trovato, supra,

192 Cal.App.4th at p. 326; see id. at p. 327.) There is simply no evidence that the phone 

call was similar to the profanities, sexually inappropriate references, stories, and 

innuendos, or to the violent outbursts, that had characterized Rose’s behavior at the 

office. To the contrary, the message was entirely appropriate. Rose was the general 

manager of the club, and plaintiff, the marketing director, had just gone out on an 

unexpected medical leave. He might have wanted to discuss projects she had underway 

and to solicit her advice on how they should be handled in her absence. He might have 

wanted to apologize for his quick-tempered remarks at the meeting or, because they had 

worked closely together for an extended period of time, to check on her health and wellbeing. The record is silent as to his motivation. But because Rose was the general 

manager of the club and plaintiff’s immediate supervisor, his call to her at home does not 

give rise to an inference that he was continuing a pattern of harassment. Indeed, the 

message he left was the polar opposite of his alleged abusive pattern in that he simply 

asked her to call him.

We must reiterate that we are acutely sensitive to the principles plaintiff 

advocates; that is, that we must construe the evidence in her favor and liberally construe 

the application of the statute of limitations to assure that meritorious claims are not 

forsaken prematurely. But the facts of the cases upon which plaintiff relies bear no 

resemblance to the innocuous phone message she received from her alleged harasser. For 

example, in Birschtein, supra, 92 Cal.App.4th 994, the plaintiff’s coworker stopped 

harassing her with sexual come-ons and crude remarks following the plaintiff’s complaint 
14

to management, but he continued to pass by her workstation several times a day and stare 

at her. The continuing violation doctrine applied, the court concluded, because the 

staring was sufficiently related to the overt acts of harassment that had come earlier. (Id.

at pp. 1003, 1005-1006.)

Birschtein states in a slightly different way what the Supreme Court articulated in 

Richards, supra, 26 Cal.4th 798. The conduct must be “sufficiently related” to the 

conduct that preceded it, as Birchstein characterizes it (Birschtein, supra, 92 Cal.App.4th 

at pp. 1005-1006), and it must be “similar in kind” as the Supreme Court characterizes it

(Richards, at p. 823). Similarly, in Dominguez, the plaintiff’s harasser constantly 

blocked her access to her workstation with heavy boxes and jammed the wheels of her 

pallet jack several times, in plaintiff’s estimation, to make her life impossible at work. 

(Dominguez, supra, 168 Cal.App.4th at pp. 723-724.) In Birschtein and Dominguez, the 

Courts of Appeal found that the harassing conduct that occurred outside the statute of 

limitations was a continuation of the same type of harassing conduct that occurred within 

the statute, and because the conduct was similar and sufficiently related, the one-year 

statute of limitations for filing a FEHA complaint did not bar a subsequent civil lawsuit.

Our case is much different. The isolated phone call was not similar in kind or 

substantially related to the type of harassment plaintiff’s supervisor had engaged in at the 

office. Whereas the plaintiffs in Birschtein and Dominguez remained at work and the 

harassment was ongoing, plaintiff in the case before us never returned to work and had no 

further contact with the alleged harasser. We cannot say that the mere existence of the 

message, devoid as it was of any crude or inappropriate language, was similar or 

substantially related to the kind of harassment plaintiff alleged occurred at the office. 

Nor are we willing to say that any contact, even for work related and totally legitimate 

business purposes by plaintiff’s supervisor once she was on leave, constituted harassment 

based solely on the history of sporadic inappropriate behavior. In other words, mere 

contact alone, devoid of any harassment, does not delay the running of the statute of 
15

limitations. Because plaintiff did not file her FEHA complaint within one year of the last 

incident of alleged harassment, her administrative complaint for sexual harassment was 

barred and she failed to timely exhaust her administrative remedies. (Okoli v. Lockheed 

Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1612-1613.)

But plaintiff contends that the cause of action for failing to prevent sexual 

harassment equitably tolled the statute of limitations. She relies on the internal complaint 

she made about the harassment and analogizes to cases in which a plaintiff pursues a 

formal alternative legal remedy to resolve the dispute. She cites no case, and we cannot 

find any, in which a plaintiff forestalled the running of the statute merely by lodging an 

internal complaint about harassment.

Pursuant to the doctrine of equitable tolling, “the running of a limitations period is 

equitably tolled when an injured person has several formal legal remedies and reasonably 

and in good faith pursues one.” (Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 108.) 

Equitable tolling “allows a plaintiff who has a choice of legal remedies to pursue one 

remedy without simultaneously pursuing another remedy” and “generally requires a 

showing that the plaintiff is seeking an alternate remedy in an established procedural 

context.” (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416.) 

In answer to plaintiff’s argument, Acuna squarely holds that “[i]nformal negotiations or 

discussions between an employer and employee do not toll a statute of limitations under 

the equitable tolling doctrine.” (Id. at p. 416.) As in Acuna, plaintiff does not allege any 

facts showing she was pursuing an alternate remedy that excused her from filing her 

administrative claim on time. In the absence of any authority, we reject the notion that an 

employee can forestall the running of the statute indefinitely by simply lodging an 

internal complaint with a human relations department.
16

III

Plaintiff’s Admissions Are Fatal to Her Causes of Action

for Gender and Disability Discrimination

To establish a prima facie claim for discrimination, plaintiff must establish that 

she was fired because of her gender or her disability. (Brundage v. Hahn (1997) 

57 Cal.App.4th 228, 235-236.) At her deposition she testified that gender was not a 

reason considered by the Company in terminating her. She also testified that although 

the Company had approved her request to extend her return-to-work date four separate 

times for a total of 18 weeks’ leave, she remained unable to return to work. She stated 

that she could not have gone back to work at another club, even without Rose, prior to 

her termination on August 26, 2010. Even as late as July 13, 2012, two years after her 

termination, she testified she did not know if she could return to her position, even if 

separated from Rose, because she was not ready mentally or emotionally.

Plaintiff’s unvarnished admission that gender was not a motivating factor in 

terminating her is fatal to her gender discrimination cause of action. Any later 

prevaricating in declarations or arguments cannot undo the damage. Since she was not 

fired because of her gender, she has no gender discrimination case, and mere suspicions 

of improper motives based on conjecture and speculation are insufficient as a matter of 

law to create a triable issue of fact. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1563-

1564, superseded by statute on other grounds as explained in Union Bank v. Superior 

Court (1995) 31 Cal.App.4th 573, 583.)

Plaintiff’s admission that she could not return to work with or without 

accommodation is also fatal to her disability discrimination cause of action. An 

employee bears the burden of proving she is able to do the job with reasonable 

accommodation. (Green v. State of California (2007) 42 Cal.4th 254, 262.) An 

employer can lawfully terminate an employee who, with reasonable accommodation, is 

unable to perform the essential duties of the job. (Gov. Code, § 12940, subd. (a)(1).) An 
17

indefinite leave of absence is not a reasonable accommodation. (Hanson v. Lucky Stores, 

Inc. (1999) 74 Cal.App.4th 215, 226-227.)

Plaintiff raises a number of arguments to save her disability discrimination claim. 

She insists she was not required to ask for an accommodation that, given the nature of her 

complaint, was perfectly obvious. That is, she informed the Company that Rose was 

responsible for her stress and anxiety, and thus the Company should have known that 

separating her from her harasser was a simple and reasonable accommodation. The 

Company insists that an “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.” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.) Here neither 

plaintiff nor her doctor ever informed the Company that separating her from Rose would

allow her to return to work. We need not determine whether an express request for 

separation under these circumstances was necessary given plaintiff’s admissions that she 

was not able to return to work because she remained unable to perform her job.

Plaintiff relies on her declaration that her doctor released her to work based on his 

September 2010 evaluation. This declaration, however, was filed long after her 

deposition testimony and is the only evidence that she had been cleared to work if she 

was separated from Rose. She cannot defeat a summary judgment by contradicting her 

sworn deposition testimony. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 

1, 21-22.) The declaration contradicts her admission that she did not begin to feel better 

until October or November 2010. And it is undisputed that plaintiff never told the 

Company she was ready to return to work, despite an open invitation to do so. In short, 

plaintiff’s admissions that she was unable to perform her job with or without a reasonable 

accommodation support the trial court’s ruling granting summary adjudication of the 

disability discrimination cause of action. (Lawler v. Montblanc North America (9th Cir. 

2013) 704 F.3d 1235, 1242-1243.)
18

IV

There Are Triable Issues of Fact Involving Other FEHA Causes of Action

At its essence, plaintiff alleges that she became severely depressed and suffered 

anxiety attacks as a result of Rose’s violent behavior and sexual harassment. In other 

words, her ensuing mental health condition rendered her disabled within the meaning of

the FEHA. In three separate causes of action, she alleges the Company engaged in 

different employment practices outlawed by the FEHA: the failure to engage in a good 

faith interactive process to find a reasonable accommodation for a known condition or 

disability (Gov. Code, § 12940, subd. (n)), the failure to provide a reasonable 

accommodation (Gov. Code, § 12940, subd. (m)), and retaliation (Gov. Code, § 12940, 

subd. (h)). Her first cause of action, for wrongful termination in violation of public 

policy, rests on the viability of her FEHA claims. As the party moving for summary 

judgment, the Company bears the initial burden to demonstrate there is no factual basis 

for relief on any theory reasonably contemplated by the opponent’s pleading or to 

establish a complete defense. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848.)

Failure to Engage in a Good Faith Interactive Process

The FEHA not only forbids discrimination based on disability, it also imposes 

affirmative obligations on employers to ensure that they do not discriminate. Thus, an 

employer must take reasonable steps to accommodate employees with disabilities. In 

determining an appropriate reasonable accommodation, the employer is required to 

consult with the employee. The FEHA makes it “an unlawful employment practice . . . 

[¶] . . . [¶] [f]or 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.” (Gov. Code, § 12940, subd. (n).) The interactive process 

burdens both the employer and the employee. Both have the continuous obligation to 
19

keep communication open and not to obstruct the process. (Scotch, supra,

173 Cal.App.4th at pp. 1013-1014.) “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.” 

(Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62, fn. 22.)

The trial court’s ultimate obligation is to determine the cause of any breakdown in 

the interactive process and then assign responsibility so that liability ensues only where 

the employer bears responsibility. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 

166 Cal.App.4th 952, 985 (Nadaf-Rahrov).) The employer cannot prevail on summary 

judgment if there is a genuine dispute whether the employer engaged in good faith in the 

interactive process. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261

(Jensen).) “Although the interactive process is an informal process designed to identify a 

reasonable accommodation that will enable the employee to perform his or her job 

effectively [citation], an employer’s failure to properly engage in the process is separate 

from the failure to reasonably accommodate an employee’s disability and gives rise to an 

independent cause of action [citation].” (Swanson v. Morongo Unified School Dist.

(2014) 232 Cal.App.4th 954, 971 (Swanson).)

The Company asserts that there are no genuine issues of material fact because 

plaintiff failed to submit the questionnaire completed by her doctor, failed to request a 

reasonable accommodation, and failed to openly communicate with the responsible 

human relations personnel. A close examination of the materials submitted in opposition 

to the summary judgment motion presents a much murkier and nuanced story. Neither 

side appears blameless; indeed, both have admitted their shortcomings. The question is, 

of course, whether there remain factual disputes over how the interactive process broke 

down. Context and timing prove to be enlightening.
20

The context, from plaintiff’s point of view, includes the two-year period of 

harassment that preceded her forced medical leave. She alleges she was subjected to 

verbal abuse, violent outbursts, and sexually inappropriate language culminating in the 

April 16, 2010, meeting during which Rose shouted profanities at her. Feeling 

humiliated and physically threatened, plaintiff suffered a panic attack requiring medical 

intervention. On April 19 her doctor put her on a two-and-a-half-week medical leave. A 

week later she filed an incident report in which she attributed her leave to work-related 

stress due to Rose’s sexual harassment.

As the Company recounts, Sierra informed plaintiff that, in addition to filing a 

workers’ compensation claim, she was entitled to a 12-week leave of absence under the 

FMLA. During this time period, plaintiff filed all the necessary paperwork to obtain 

workers’ compensation, scheduled appointments with the workers’ compensation 

doctors, and continued treatment with her private physician. She wrote to Sierra that she 

had not been told she needed to apply for family leave and objected to Sierra’s 

designation of her medical leave of absence that began April 19 as family leave. She did 

not apply for family leave until July 12, 2010. Her physician, Dr. Lin, extended her 

medical leave several times.

But neither side focused on plaintiff’s disability or the need to fashion a 

reasonable accommodation until she exhausted her family leave in July 2010. By then 

her sexual harassment complaint had been dismissed by the Company. According to 

plaintiff, in April, Sierra had assured her the Company was conducting a thorough 

investigation of her charges. Tappan, who alone conducted the limited investigation, 

interviewed only 2 of the 12 witnesses plaintiff identified on her incident report. He did 

not discuss the allegations with plaintiff. And before he issued a report, Sierra wrote to 

plaintiff, informed her that the investigation was complete, her charges were not 

substantiated, and she was expected to return to work with Rose. She further admonished 

her to find a way to work with the man she perceived to be her harasser, and she 
21

threatened plaintiff with disciplinary action if she spoke about what she deemed to be a 

confidential sexual harassment complaint. Tappan and Sierra would both later admit that 

all of the witnesses should have been interviewed and that the rejection of plaintiff’s

charges was reached prematurely. Nevertheless, on July 7, 2010, plaintiff was 

definitively told her sexual harassment complaint was without merit and she was 

expected to work with Joe Rose.

Sierra accused plaintiff of failing to return calls and e-mails. In an e-mail on 

July 13, plaintiff rebutted those accusations in a detailed description of all the 

correspondence between them. Yet that damning accusation persisted. The management 

personnel who ultimately decided to fire plaintiff all testified they relied on Sierra’s 

representation that plaintiff had failed to communicate with her.

To recap, when Sierra initiated the FEHA-required interactive process on July 16, 

2010, the Company already had rejected plaintiff’s sexual harassment complaint and had 

instructed her to continue to work with Rose. Forty-one days later, the Company fired 

her. Given this context and the abbreviated timeline, are there genuine issues of fact 

whether the Company engaged in a good faith interactive process during those 41 days?

The law is clear that both the employer and the employee share the responsibility 

to engage in open and ongoing conversations as they seek to find a reasonable 

accommodation for the employee’s disability. (Swanson, supra, 232 Cal.App.4th at 

pp. 971-972.) The facts are not so clear. It is true that plaintiff had not returned the 

questionnaire Sierra had requested by August 26, when she was fired. It is also true that 

she had not explicitly told Sierra she could return to work if she was separated from Joe 

Rose. And finally, it is true that her leave had been extended multiple times, she had 

been off work for four months, and she had not given the Company a date certain when 

she could return.

But there are many inferences a jury might draw from the Company’s handling of 

her grievance and its participation in the interactive process. A jury might excuse 
22

plaintiff’s failure to expressly ask to be separated from Rose since the Company had 

rejected her claims and ordered her to work with him. Not only is separation of a victim 

from her harasser an obvious accommodation requiring no clairvoyance on the part of the 

employer, but a jury might find that the Company, which failed to conduct a thorough 

investigation of an employee’s allegations and ordered plaintiff to continue to work for 

the very man who had allegedly harassed her for two years, did not exhibit the requisite 

good faith essential to the interactive process. That is not to conclude that the Company 

acted in bad faith, only that plaintiff has raised a reasonable inference that the Company 

neither initiated nor continued to engage with plaintiff in the interactive process in good 

faith.

Moreover, plaintiff raises a number of other inferences a trier of fact might draw 

from the evidence she presents. She notes that the letter dated July 16 was not 

postmarked until 3 days later, a fact of some significance when she was given only 

15 days to return the questionnaire. She also points out that she was unable to schedule 

an appointment with her doctor within the allotted time frame and notified Sierra that she 

could not be seen until August 23. Sierra agreed to extend the deadline until August 11, a 

date that provided no assistance to plaintiff since she could not see her doctor until 

August 23. It was not until plaintiff informed her a second time that she could not meet 

the August 11 deadline that Sierra agreed to extend the deadline to 5:00 p.m. on 

August 23.

A jury might reasonably infer that Sierra’s rigidity evidenced bad faith. Her 

superiors testified that there was no reason they knew of for the self-imposed August 23 

deadline. And, without any further inquiry or communication, plaintiff was fired three 

days later. Why was it necessary to receive the questionnaire by the end of the very day 

plaintiff had been scheduled to be seen? A trier of fact might conclude that the Company 

was anxious for plaintiff to fail; that is, the failure to turn in the questionnaire provided 

the justification for getting rid of an employee whose disability had become inconvenient 
23

and irksome. We emphasize that the Company has a sound countervailing argument to 

make to the jury that it provided plaintiff with multiple extensions of time to return the 

questionnaire as a first step in ascertaining the scope of her disability and the possible 

accommodations it might provide and that, in the absence of the questionnaire, the entire 

process was stymied. Yet we must conclude that there remain layers of possible 

inferences to draw from the evidence, and although we must leave factual determinations 

to the jury to decide, those inferences are hotly disputed, genuine issues of fact.

The Company, however, expands the time horizon, insisting that plaintiff was to 

blame for a persistent failure to communicate from the time she went out on leave midApril 2010 until she was fired four months later. The Company reminds us that it was 

not obligated to hold her job open indefinitely, particularly in light of her refusal to 

cooperate. These are arguments the Company certainly can make to the jury at trial, but 

they do not meet the Company’s initial burden to demonstrate that plaintiff alone was the 

cause of the breakdown as a matter of law. There are a number of genuine, triable issues 

of material fact as to who was responsible for the breakdown. Thus, we must reverse the 

summary adjudication of the seventh cause of action for failure to engage in the 

interactive process.

Failure to Provide a Reasonable Accommodation

Under the FEHA, an employer’s “fail[ure] to make reasonable accommodation for 

the known physical or mental disability of an applicant or employee” is an unlawful 

employment practice. (Gov. Code, § 12940, subd. (m).) “The elements of a failure to 

accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff 

is qualified to perform the essential functions of the position, and (3) the employer failed 

to reasonably accommodate the plaintiff’s disability.” (Scotch, supra, 173 Cal.App.4th at 

pp. 1009-1010.)

Reasonable accommodation means “a modification or adjustment to the workplace 

that enables an employee to perform the essential functions of the position held or 
24

desired.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 983.) Because an employer has a 

continuing affirmative duty to reasonably accommodate a disabled employee, a single 

failure to accommodate may give rise to liability despite other attempts to do so. 

(Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 

1653.) “[T]he employer cannot prevail on summary judgment on a claim of failure to 

reasonably accommodate unless it establishes through undisputed facts that (1) 

reasonable accommodation was offered and refused; (2) there simply was no vacant 

position within the employer’s organization for which the disabled employee was 

qualified and which the disabled employee was capable of performing with or without 

accommodation; or (3) 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.” (Jensen, supra, 85 Cal.App.4th at p. 263.)

An employer’s duty to provide a reasonable accommodation is separate from its 

duty to engage in an interactive process and gives rise to an independent cause of action. 

(Swanson, supra, 232 Cal.App.4th at p. 971.) And although the elements of a failure to 

accommodate are similar to the element of disability discrimination, there are important 

distinctions. “The plaintiff must, in both cases, establish that he or she suffers from a 

disability covered by FEHA and that he or she is a qualified individual. For purposes of a 

[Government Code] section 12940, subdivision (k) claim, the plaintiff proves he or she is 

a qualified individual by establishing that he or she can perform the essential functions of 

the position to which reassignment is sought, rather than the essential functions of the 

existing position.” (Jensen, supra, 85 Cal.App.4th at p. 256.) The employee need not 

prove that the failure to accommodate was caused by the employee’s disability because 

the failure to reasonably accommodate a disabled individual is a violation of the statute in 

and of itself. (Ibid.)

First, we must scrutinize plaintiff’s deposition testimony to determine whether she 

made admissions that were fatal to her reasonable accommodation claim. The Company 
25

argues that her admission she was unable to return to work at all constitutes an admission 

that she was not qualified to perform the essential functions of the job. In other words, 

there remained no triable issue of fact for the jury to decide. We disagree. The Company 

relies on isolated excerpts from her testimony that distort their meaning or, at a minimum, 

eliminate all ambiguity. When her testimony is read in context, we conclude there 

remain triable issues of material fact.

Plaintiff appears to have been overwhelmed by the paperwork required by the 

Company as well as processing her workers’ compensation claim and obtaining the 

medical services she needed to treat her ongoing anxiety and depression. She provided 

her doctor the questionnaire the Company required and she relied on him to meet the 

August 23 deadline the Company imposed. She was unsure whether he actually sent in 

the documentation by that date. She was discharged a mere three days later.

In the next-to-last paragraph of the written letter of termination, the Company 

invited plaintiff, “[i]f and when you are released to return to work, please let us know. At 

that time, we will evaluate what openings are available and reinstate your employment, if 

possible.” When asked at her deposition whether she ever notified the Company she was 

prepared to return to work, plaintiff responded, “[W]orkman’s comp sent them a letter 

saying that I could return as long as Mr. Rose did not -- as long as I didn’t work under 

Mr. Rose.” She further testified that the reason she did not personally notify the 

Company she could return to work was because she was on disability and she knew 

Mr. Rose was still there. After all, the Company previously had sent her a letter 

informing her she was required to work with Rose.

When asked what reasonable accommodation is, plaintiff testified: “In my 

circumstance, the only reasonable accommodation that I would be aware of would be if 

Mr. Rose was -- if I was not working with Mr. Rose. And they were very clear, Spare 

Time, that said for me to hush, come back to work and work under Mr. Rose.” She 

testified she did not recall telling a Dr. Harbison that she could not return to work at 
26

Natomas Racquet Club even without Joe Rose. She did concede that if she had seen 

another opening for a marketing director at another club before she was terminated she 

probably would not have applied for it because at that time she was very depressed and 

was under medical supervision. She stated she was “still pretty emotional and stressed 

and having a lot of anxiety.” Indeed, she had told the Company from the outset that “Joe 

Rose’s consistent verbal aggression, intimidation, severe abusive and offensive action 

causes a sense of dread and fear.”

Plaintiff insisted that the Company’s justification for terminating her because, 

among other things, she did not participate in the interactive process was a lie. She 

explained the basis of her belief as follows: “Interactive process is from beginning to 

end. I didn’t -- one paper they were frustrated with. I sent them back forth, back forth. 

That to me -- to be terminated on one thing, when I tried and I told them over and over, to 

me it looks like an interactive process is just that one thing.

“And interactive process is the whole thing. How is my behavior throughout the 

whole process? Was excellent. Everything I did, everything workman’s comp told me to 

do, everything they told me to do, I did.

“And so that is false. It’s not right. And regarding the disability or being off, I 

never had any paperwork that said, I was going to be forever disabled.”

Plaintiff does not believe she had a fair opportunity to request an accommodation 

that would have allowed her to return to work. She repeated the same allegation that the 

Company had rejected her request to work for someone besides Joe Rose. “I was 

working with -- I was told prior to this, that I was to come back and to do -- keep my 

mouth quiet and work with Joe Rose, and that was prior.

“So by the time this came, which was only probably a few weeks later, I did the 

best I could. I was seeing workman’s comp to find out what was exactly, I need to do 

with my life because I was on disability. So at that point, I wasn’t thinking about going 

to work. I was on disability.” She stressed again, “At this point right here, I was on 
27

stress leave disability.” As of the date she was terminated, she “was very stressed and 

overwhelmed, and I don’t think I was ready to go back to work.” This was late August 

2010.

Plaintiff began to feel ready to go back to work soon thereafter, although it was a 

painful and bumpy process. She explained, “I started feeling better, I mean, probably 

after I saw the QME doctor in late September, October, I mean I could -- I was on 

medication, and I was doing better. So I don’t know October, November. There was up 

and down time.”

When asked why she had not requested yet another leave of absence, she again 

had relied on the worker’s compensation system. She testified, “Workman’s comp was 

doing all that to find out. I got terminated on -- in August. A week or so later, 

workman’s comp had all of that. So no, I wouldn’t. I was figuring that’s what that was 

all about. I did lots of paperwork, so they would have those answers.”

Finally, plaintiff stated she would return to work because she did not have a 

choice. Financially, she could not afford not to work, whatever her mental state. She 

lamented, “I ran out of disability money, and I had no choice but to go on unemployment. 

Otherwise, I don’t know if mentally, emotionally, I am actually ready. But I have to do 

what I have to do because I have -- I need to make money.” In this vein, she is applying 

for any kind of employment. Having been off work for over two years, however, she 

expressed her insecurity and ambivalence about her ability to work for the Company. On 

the one hand she testified, “I could do any job in that company.” On the other hand, 

however, she expressed her reservations and fears. “I want to say that I would [be able to 

do the job] -- I want to believe that I could do it. I mean I have a hard time during the 

day. I’m sad. I just -- I would do the best. I don’t know. I mean -- I wouldn’t know. I 

haven’t been working for two years. I want to say I could do it.”
28

She also expressed her resolve. “If I was presented the opportunity, I would do 

my best. I would go in there, and I would try to be the Kelly that I was. And I would try. 

And if it didn’t work, it doesn’t work, but I would try.”

To say, therefore, that plaintiff unambiguously testified that she could not return to 

work whether Rose was there or not is to unfairly sanitize the record. From plaintiff’s 

point of view, she had notified the Company that Rose had harassed her and created a 

hostile work environment with his violent outbursts, and despite her allegations, the 

Company had conducted a cursory investigation and ordered her to return to work for her 

abuser. Through the worker’s compensation proceedings, the Company was also 

informed that plaintiff could return to work if she was separated from Rose. Thus, a jury 

could conclude that separation from Rose was the reasonable accommodation plaintiff 

sought.

Plaintiff’s mental health, however, plummeted as a result of Rose’s inappropriate 

behavior. Suffering from anxiety and depression, plaintiff did admit that she was not 

ready to return to work at that time. We believe that a jury could find her testimony was 

not a fatal admission that she was no longer permanently qualified to perform her job, but 

a recognition that while she was on disability she was temporarily too anxious and 

depressed to resume her responsibilities. Throughout her testimony, she conflated the 

worker’s compensation proceedings with the interactive process she was engaged in with 

the Company. Her termination had come as a shock, she believed she had a temporary 

financial reprieve while she received disability benefits, and she was prepared to return to 

work as soon as her mental health allowed.

The jury, of course, may reject plaintiff’s explanations and find she no longer 

remained qualified to perform the position, and therefore her accommodation claim may

ultimately fail. But we conclude her testimony raises triable issues of material fact and 

entitles her to a jury assessment of the conflicting evidence.
29

The Company correctly points out that an indefinite leave of absence does not 

constitute a reasonable accommodation. In the Company’s view, it had been flexible and 

generous in providing four months of leave, and in the absence of the questionnaire 

outlining the restrictions and limitations plaintiff required, it had no duty to hold the 

marketing position open indefinitely. The Company misunderstands plaintiff’s argument 

and its initial burden in moving for summary judgment.

Plaintiff did not ask for an indefinite leave, nor does she argue on appeal that an 

indefinite leave would provide the accommodation she needs. Rather, her position 

throughout the litigation has been that she cannot return to work for the man who bullied 

and sexually harassed her for two years and who was responsible, to some degree, for her 

disability. The Company responds that neither plaintiff nor her doctor requested 

separation from Rose as a reasonable accommodation and it was her burden to do so.

But the Company forgets that as the moving party for summary judgment it bears 

the initial burden of proof and cannot prevail, as we explained above, unless it establishes 

through undisputed facts that it offered a reasonable accommodation; there was no 

position available at any of the Company’s clubs for which plaintiff was qualified with an 

accommodation; or that it did everything it could to reasonably accommodate plaintiff 

but she failed to engage in discussions in good faith, and as a result, the informal 

interactive process broke down. (Jensen, supra, 85 Cal.App.4th at p. 263.) Having 

reviewed the evidence presented to us in support of and in opposition to the motion for 

summary judgment, we conclude there is an abundance of factual disputes whether the 

Company did, or should have, offered plaintiff a marketing position where she was not 

required to report to her alleged harasser; whether there was a suitable vacant position for 

her within the Company; or whether she was responsible for the breakdown in the 

informal interactive process.

At the heart of this case is the troublesome tension between the Company’s duty to 

offer plaintiff a reasonable accommodation to work separate and apart from Rose, and 
30

plaintiff’s duty to specifically request such a separation and identify the job she could 

perform with such an accommodation. Since the interactive process broke down in a 

little more than one month it is impossible to determine what job plaintiff might have 

performed for the Company in the absence of her alleged tormenter. But it is the jury’s 

prerogative, not ours, to resolve each of the factual disputes that remain. That is, a trier 

of fact must decide whether there was a suitable position available to her at the time the 

interactive process broke down and who was responsible for the breakdown. On these 

conflicting and equivocal facts, and the inferences a jury might reasonably draw from 

them, it cannot be said that the Company met its burden of establishing the absence of a 

triable issue of fact with respect to reasonable accommodation or that plaintiff was 

responsible for the breakdown in the informal, interactive process.

We believe there is no incongruity in reversing the trial court’s summary 

adjudication of the failure to reasonably accommodate plaintiff’s disability and in 

affirming the summary judgment as to her disability discrimination claim. As pointed out 

above, the two unlawful practices under the FEHA give rise to distinct causes of action 

and there are important differences between the two. Those differences are pertinent 

here.

To establish her claim that she was discriminated against because of her disability,

plaintiff must present evidence that she was qualified for the job. Her admissions that she 

did not know whether she was able to return to work mean that she cannot meet her 

burden to prove she is a qualified individual for the position she left. In other words, 

using the appropriate jargon for resolving a summary judgment, the Company did satisfy 

its initial burden that her admissions precluded recovery for disability discrimination as a 

matter of law. But to prevail on her failure to offer a reasonable accommodation cause of 

action, plaintiff need only establish that she could perform the essential functions of the 

position she sought rather than the essential functions of the position she already had. 

She seeks to be separated from Rose. Because the interactive process was aborted so 
31

quickly, the parties never explored the wide range of options that might have been 

possible. The Company asserts there were no marketing director vacancies at the other 

clubs. But that is not to say there were no other jobs for which she was qualified or that 

Rose himself could not have been transferred to another club or position within the 

company. Thus, although she admitted she was not able to return as the marketing 

director at the Natomas facility where she had been ordered to work for Rose, and 

therefore she was not qualified for that position, those admissions do not preclude her 

from establishing that she was qualified to perform the essential functions of any number 

of jobs as long as she did not have to work for Rose.

Retaliation

Retaliation for seeking a reasonable accommodation constitutes yet another 

unlawful employment practice under the FEHA. (Gov. Code, § 12940, subd. (h).) 

Plaintiff relies on indirect evidence of retaliatory intent to establish her retaliation claim 

against the Company. To establish her prima facie case under the FEHA, she must show 

she engaged in a protected activity, the Company subjected her to an adverse 

employment action, and a causal link existed between the protected activity and the 

adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 

1042.) It is only the causal connection between her complaint of sexual harassment and 

her termination that is at issue.

The Company argues vehemently that there is no evidence of retaliatory animus 

contained in Sierra’s letter of July 7, 2010, in which Sierra informed plaintiff that the 

investigation found no merit to her sexual harassment claim, she was expected to return 

to work for Rose, and she was prohibited from discussing her allegations. Nor was there 

any evidence, according to the Company, that either Russo or Anderson, who testified 

they saw no reason for the abbreviated deadline for returning the questionnaire, was

involved in the decision to terminate her. The Company insists that plaintiff ignores her 

own responsibility to return the questionnaire to facilitate the interactive process and the 
32

fact it had already provided her with two extensions of time to do so. The Company 

asserts that the decision to terminate her was based on legitimate business reasons, most 

prominently that sales had plummeted in the absence of a marketing director for four 

months, and plaintiff remained uncooperative and uncommunicative. Unsure when she 

was going to return, if ever, and unable to obtain the questionnaire or otherwise 

determine what her limitations and restrictions were, the Company was left with no 

choice but to fire her.

Plaintiff contends the Company has not established the lack of retaliatory animus 

as a matter of law. To the contrary, she asserts that the temporal proximity between 

making the accusations and her termination is sufficient evidence to show a causal link. 

“Close proximity in time of an adverse action to an employee’s resistance or opposition 

to unlawful conduct is often strong evidence of a retaliatory motive.” (Taylor v. City of 

Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1235, overruled on 

other grounds in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 

1162-1163.) But she does not rely on temporal proximity alone. She argues that the 

July 7 letter threatening her with discipline if she discussed the investigation of her sexual 

harassment claim is yet another fact from which the jury could find a retaliatory animus. 

When coupled with a woefully inadequate investigation and Sierra’s repeated lies that 

plaintiff had refused to communicate with them, plaintiff insists there are triable issues of 

fact and urges us to reverse the trial court’s final ruling to the contrary.

We find that plaintiff’s evidence establishes a prima facie case of retaliation and 

thereby shifts the burden to the Company to show a legitimate, nonretaliatory reason for 

the termination. (Scotch, supra, 173 Cal.App.4th at p. 1020.) For the reasons we have 

explained, the Company met this burden. The burden therefore shifts back to plaintiff to

prove intentional retaliation.

Plaintiff need not present direct evidence of retaliatory animus but can rely on 

circumstantial evidence to raise a reasonable inference the employer intended to retaliate 
33

against the employee. (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 

1219-1220.) We must liberally construe the evidence in favor of the opposing party. 

(Hughes v. Pair (2009) 46 Cal.4th 1035, 1039 (Hughes).) Subservient to the rules of 

summary judgment review, including the stacked deck in favor of a party seeking 

resolution by a trier of fact, we conclude plaintiff has presented sufficient circumstantial 

evidence to raise a reasonable inference and thus a triable issue of fact that the decision

makers were motivated by retaliatory animus. That evidence includes the perfunctory 

investigation of her complaint, the notice to her that the complaint was without merit 

before the report was prepared, the threat to her not to discuss the investigation, the 

imposition of an artificial deadline for submitting the questionnaire, and, most 

importantly, the insistence that plaintiff refused to communicate or to respond to calls, 

letters, and e-mails when she produced substantial evidence to the contrary. We 

acknowledge the evidence is far from compelling and a jury may well reject the 

inferences plaintiff urges us to draw. We conclude only that the evidence is sufficient 

enough to create a triable issue and therefore satisfy plaintiff’s burden in opposing the 

summary judgment.

Wrongful Termination in Violation of Public Policy

“ ‘The tort cause of action for wrongful termination in violation of public policy 

provides a vehicle for recourse that otherwise would be unavailable under general rules 

of the at-will employment doctrine.’ [Citation.] ‘[T]his public policy exception allows 

an employee to bring a tort cause of action against an employer who terminates an at-will 

employment on a ground that violates fundamental public policy.’ [Citation.] ‘FEHA’s 

provisions prohibiting discrimination may provide the policy basis for a claim for 

wrongful discharge in violation of public policy.’ [Citation.]” (Diaz v. Federal Express 

Corp. (C.D.Cal. 2005) 373 F.Supp.2d 1034, 1065.)

Plaintiff’s ability to recover for the wrongful termination tort rests on the viability 

of her FEHA claims for failure to engage in an interactive process, failure to provide a 
34

reasonable accommodation, and for retaliation. Since we have found material issues of 

fact with respect to each of these alleged FEHA unlawful employment practices, we must 

reverse the summary adjudication of the wrongful termination against public policy cause 

of action as well.

V

Plaintiff Cannot Prevail on the Assault or

the Intentional Infliction of Emotional Distress Causes of Action

Assault

Plaintiff asserts that Rose’s history of violent outbursts, including throwing 

objects, shouting obscenities, and manhandling a patron, creates triable issues of material 

fact to support her cause of action for assault. “The essential elements of a cause of 

action for assault are: (1) defendant acted with intent to cause harmful or offensive 

contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff 

reasonably believed she was about to be touched in a harmful or offensive manner or it 

reasonably appeared to plaintiff that defendant was about to carry out the threat; 

(3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and 

(5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin

(2013) 212 Cal.App.4th 652, 668-669.) Defendants contend plaintiff’s assault claim fails 

as a matter of law because 1) she cannot establish that Rose intended to cause harmful or 

offensive contact and 2) “ ‘[m]ere words, however threatening, will not amount to an 

assault.’ [Citation.]” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604 (Plotnik).)

“ ‘ “Generally speaking, an assault is a demonstration of an unlawful intent by one 

person to inflict immediate injury on the person of another then present.” [Citation.]’

(Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6-7.) . . . ‘A civil action for assault 

is based upon an invasion of the right of a person to live without being put in fear of 

personal harm. Every person has “the right of protection from bodily restraint or harm.”

[Citation.] . . .’ (Id. at p. 7 . . . .) [¶] . . . [¶] . . . [A]ssault ‘requires an intentional act and 
35

actual knowledge of those facts sufficient to establish that the act by its nature will 

probably and directly result in the application of physical force against another.’

(People v. Williams (2001) 26 Cal.4th 779, 790; see People v. Chance (2008) 44 Cal.4th 

1164, 1169 [assault ‘ “established upon proof the defendant willfully committed an act 

that by its nature will probably and directly result in injury to another, i.e., a battery” ’].)” 

(Plotnik, supra, 208 Cal.App.4th at pp. 1603-1604.) 

The facts of Plotnik provide an instructive template. In Plotnik, the alleged 

assailants, the Meihaus brothers, aggressively approached the victim, shortly after their 

father allegedly beat the victim’s dog with a bat, and threatened to beat and kill both the 

victim and his dog. But because neither brother displayed a weapon, took a swing at him, 

or otherwise attempted to touch him, the court found that neither committed an act that 

could or was intended to inflict immediate injury on the victim. As a result, the court 

reversed a jury verdict for the plaintiff. (Plotnik, supra, 208 Cal.App.4th at p. 1604.)

Like that of the Meihaus brothers, Rose’s alleged behavior, including his directive 

to plaintiff to “shut the fuck up,” was threatening and intimidating. And we do not doubt 

plaintiff’s assertion that she was frightened, given the additional fact that Rose stood in 

close proximity to her. But, as in Plotnik, there are no facts that Rose took any action to 

evidence an intent to inflict immediate injury on her. Thus, the Company’s evidence was 

sufficient to shift the burden to plaintiff to create a triable issue of material fact.

This she failed to do. She relies exclusively on Rose’s past behavior, and while 

deplorable, his history of violent outbursts did not give rise to a reasonable inference that 

he was about to strike her. He had never assaulted her in the past. Rather, the examples 

she recites of his throwing reams of paper and breaking a chair were not directed at her 

and did not constitute assaults. Even the incident she recounted in which he was forceful 

with a young man at the club was far different from striking his marketing director in 

front of an entire team. We conclude, as the Company urges, that the summary 

adjudication of the assault cause of action was properly granted because Rose’s 
36

obscenities, though offensive and possibly threatening, did not give rise to a reasonable 

inference that he was about to publicly batter plaintiff. (Carlsen v. Koivumaki (2014) 

227 Cal.App.4th 879, 892.)

Intentional Infliction of Emotional Distress

A prima facie case of intentional infliction of emotional distress requires: 

“ ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of 

causing, or reckless disregard of the probability of causing, emotional distress; (2) the 

plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate 

causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ ” 

(Hughes, supra, 46 Cal.4th at pp. 1050-1051.) Plaintiff has not raised a triable issue of 

fact on these elements.

Summary judgment is proper if a claim cannot “ ‘reasonably be regarded as so 

extreme and outrageous as to permit recovery.’ [Citation.] ‘Conduct, to be “outrageous,”

must be so extreme as to exceed all bounds of that usually tolerated in a civilized 

society.’ [Citation.] ‘Severe emotional distress means . . . emotional distress of such 

substantial quantity or enduring quality that no reasonable man in a civilized society 

should be expected to endure it.’ [Citation.]. ‘Ordinarily mere insulting language, 

without more, does not constitute outrageous conduct.’ [Citation.]” (Schneider v. TRW, 

Inc. (9th Cir. 1991) 938 F.2d 986, 992.)

Plaintiff rejects the notion that Rose was merely insulting. She emphasizes the 

number of times he threw objects, broke a chair, and became physically intimidating 

while shouting obscenities. She distinguishes, therefore, those sexual harassment cases 

wherein the defendant used sexually inappropriate language and verbally berated the 

victim from her case, in which Rose had a demonstrated pattern of explosive behavior.

Defining where deplorable, heartless, and insensitive remarks, coupled with 

disgusting behavior, deserve opprobrium and where they become the type of extreme and 

outrageous conduct a civilized society cannot tolerate is a difficult task, particularly in the 
37

sexual harassment arena. (See Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67-

68 & fn. 21.) We certainly do not condone the type of behavior plaintiff alleges. 

Nevertheless, plaintiff alleges only one incident in which Rose’s profanity was directed at 

her, and that was when he told her to “shut the fuck up.” She does not allege any other 

occasion when he threatened her physically or directed his profanities at her. He never 

threw objects at her or directly at anyone else.

A trier of fact therefore could not reasonably find in her favor on this evidence. 

Outrageous conduct must ordinarily be directed at the plaintiff. (Christensen v. Superior 

Court (1991) 54 Cal.3d 868, 905-906.) Here, most of Rose’s venom was directed at 

others, not at plaintiff. While a manager certainly should refrain from humiliating and 

threatening an employee with the use of profanity, we cannot say his outburst qualifies as 

the type of extreme and outrageous conduct the tort was designed to curb. (Haberman v. 

Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 389.) The summary judgment was 

properly granted as to plaintiff’s cause of action for the intentional infliction of emotional 

distress.

DISPOSITION

The judgment is affirmed in part and reversed in part as explained herein. The 

parties shall bear their own costs on appeal.

 RAYE , P. J.

We concur:

 BUTZ , J.

 RENNER , J.