MEGAN HERTZLER VS. GENENTECH, INC., ET AL

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BACKGROUND

As alleged in the Complaint, in March 2020, Genentech hired Plaintiff Megan Hertzler, an attorney, for the position of Director, Records and Information Governance. (Compl., ¶ 5.) Plaintiff’s employment began in the early days of the COVID-19 pandemic. Shortly before she started working, Plaintiff developed a flu-like illness and took sick leave as needed due to fatigue. (Id., ¶¶ 6–7.) In July 2020, Plaintiff was diagnosed with long COVID. (Id., ¶ 8.)

Plaintiff requested accommodations, including time off and reduced hours, due to her condition. She also presented Genentech with doctors’ notes recommending that she work only from home and no more than six hours per workday. (Id., ¶¶ 10–12.) Genentech granted Plaintiff’s requested accommodations. (Id.) Plaintiff thereafter continued, well into 2022, to provide Genentech with periodic doctors’ notes requesting similar accommodations, including reduced hours. (Id., ¶ 13.)

Plaintiff alleges, and offers evidence, that during her tenure with Genentech, she completed all essential job duties while working remotely on a reduced schedule and repeatedly received praise for her performance. (Id., ¶¶ 14, 16–17.) According to Plaintiff, she was never told that she was failing to perform the essential functions of her job. (Id., ¶ 18.)

In spring 2022, Genentech began requesting that employees return to the office part-time. Plaintiff requested that any commute time be counted as part of her reduced six-hour workday. (Id., ¶¶ 19–20.)

On July 11, 2022, Plaintiff was told that Genentech would no longer accommodate her work restrictions on the ground that the restrictions imposed an undue hardship because essential work was not being completed. (Id., ¶ 23.) Plaintiff alleges she was shocked by this decision because no one at Genentech had ever told her that she was failing to complete essential duties. (Id., ¶ 24.) Plaintiff contends she thereafter inquired about potential alternative arrangements that would have allowed her to continue performing six hours of work per day, but was told that eight hours per day was essential. (Id., ¶¶ 26–27.)

As alleged, Genentech told Plaintiff that she would be given 60 days to find another position within the company or be terminated. (Id., ¶ 28.) On November 1, 2022, Genentech terminated Plaintiff’s employment, stating that it was unable to identify a reasonable accommodation that would allow Plaintiff to perform all essential functions of her role and that there were no alternative positions available for which Plaintiff was qualified. (Id., ¶ 29.)

Plaintiff’s July 14, 2023 Complaint against Genentech asserts claims for:

1. Disability discrimination under FEHA; 2. Failure to accommodate under FEHA; 3. Failure to engage in the interactive process under FEHA; 4. Retaliation under FEHA; 5. Violation of Labor Code section 1102.5; and 6. Wrongful termination in violation of public policy.

LEGAL STANDARD

A court shall grant a motion for summary judgment when the submitted papers demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant meets its burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Id., subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Ibid.) “A triable issue of material fact exists if, and only if, the evidence

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would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion, in accordance with the applicable standard of proof.” (Pasadena Metro Blue Line Construction Authority v. Pacific Bell Telephone Co. (2006) 140 Cal.App.4th 658, 663.)

Because summary judgment denies the adverse party a trial, it should be granted with caution. (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 409.) Summary judgment law turns on issue finding rather than issue determination. (Diep v. California Fair Plan Assn. (1993) 15 Cal.App.4th 1205, 1207.) The Court does not decide the merits of the issues, but determines whether there are issues to be tried. (Melamed v. City of Long Beach (1993) 15 Cal.App.4th 70, 76.) Declarations of the moving party are strictly construed, declarations of the opposing party are liberally construed, and doubts as to whether summary judgment should be granted must be resolved in favor of the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843–856.)

FIRST CAUSE OF ACTION — DISABILITY DISCRIMINATION UNDER FEHA

The MSA is DENIED as to the first cause of action for disability discrimination under FEHA.

An employer is not prohibited from taking an adverse employment action if the employee’s disability rendered the employee unable to perform the essential functions of the job. (Miller v. Department of Corrections & Rehabilitation(2024) 105 Cal.App.5th 261, 275.) Genentech argues that Plaintiff’s discrimination claim fails as a matter of law because: (1) working eight hours per day and 40 hours per week was an essential function of Plaintiff’s job; and (2) Plaintiff was unable to work full time, even with reasonable accommodation.

The Court finds that the evidence raises a triable issue as to whether working eight hours per day and 40 hours per week was an essential function of Plaintiff’s position. “‘Essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires.” (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971–972.) “Essential functions” do not include marginal functions. (Gov. Code, § 12926, subd. (f).) The identification of essential job functions is a “highly fact-specific inquiry.” (Lui, supra, 211 Cal.App.4th at p. 971.)

Government Code section 12926, subdivision (f)(1), provides that a job function may be essential for several reasons, including that the reason the position exists is to perform that function, there are a limited number of employees available to perform the function, or the function is highly specialized. Government Code section 12926, subdivision (f)(2), identifies evidence relevant to whether a function is essential, including the employer’s judgment, written job descriptions, the amount of time spent performing the function, the consequences of not requiring the function, the terms of any collective bargaining agreement, the work experiences of past incumbents, and the current work experiences of incumbents in similar jobs. “Usually no one listed factor will be dispositive.” (Lui, supra, 211 Cal.App.4th at p. 977; see also CACI No. 2543.)

Although Genentech may ultimately have the stronger argument, a reasonable fact finder could conclude that working eight hours per day and 40 hours per week was not essential for Plaintiff’s position. (See disputed Fact Nos. 2, 17.) Genentech’s own job description for Plaintiff’s position did not state that an eight-hour day or 40-hour week was required. (Hertzler Decl., Ex. 2.) Plaintiff states that, at the time of hire, an eight-hour day and 40-hour week were never mentioned. (Hertzler Decl., ¶ 7.)

Plaintiff offers evidence that she held the position for nearly two years while receiving praise for her work performance. (Hertzler Decl., ¶¶ 25–26, 30–32; Purswani Decl., ¶¶ 4–18; Smallets Decl., Ex. B.) In March 2021, after Plaintiff had been working six hours per day for nearly a year, Ms. Mendelsohn stated that Plaintiff’s accommodation was working well. (Hertzler Decl., Ex. 14; Mendelsohn Tr. at 115–116.)

During her nearly two-year tenure, Plaintiff apparently was never told that her performance was deficient, that her reduced schedule created a burden on the company, that tasks were not being completed, or that other employees

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were being forced to take on additional work because Plaintiff was not completing required tasks. (Hertzler Decl., ¶¶ 26, 64–65.)

Genentech offers evidence that Plaintiff’s reduced work schedule created a burden and required others to perform work that Plaintiff might have performed had she worked a fuller schedule. (Mendelsohn Decl., ¶¶ 7–8; DiLella Decl., ¶ 7.) However, Genentech appears to rely primarily on after-the-fact evidence created during litigation. It also appears that these asserted burdens were not communicated to Plaintiff during her employment. (Hertzler Decl., ¶¶ 26, 64–65.)

The fact that Genentech accommodated Plaintiff’s reduced six-hour-per-day schedule for nearly two years, while praising her work and stating that the accommodation was working well, could reasonably be viewed as undermining Genentech’s contention that an eight-hour workday was essential. A reasonable jury might conclude that if working eight hours per day were truly essential, Genentech would not have permitted Plaintiff to work six hours per day for nearly two years.

Genentech argues that it would be unfair to treat its lengthy accommodation of Plaintiff’s reduced schedule as evidence that an eight-hour workday was not essential. That may be a persuasive argument, but it is one for the trier of fact.

Genentech also offers evidence that, given Plaintiff’s high-level position, eight hours per day was essential. Genentech cites evidence that Plaintiff’s reduced hours caused operational problems and required other employees to take on additional work, such as early-morning meetings. (Mendelsohn Decl., ¶¶ 7–8.) Genentech also argues that high-level, high-compensation positions inherently require full-time availability. In addition, Genentech argues that, by mid-2022, there was no clear end in sight to Plaintiff’s reduced work schedule because her most recent doctor’s note requested continuation of the six-hour-per-day schedule at least until November 2022. (Hertzler Decl., ¶ 54.)

Ultimately, however, viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in her favor, the Court declines to decide the disability-discrimination claim as a matter of law. A reasonable jury could find in Plaintiff’s favor on this claim.

The Court finds that the evidence raises triable issues as to whether: (1) an eight-hour-per-day and 40-hour-per-week schedule was essential to Plaintiff’s position; and (2) Plaintiff’s reduced schedule imposed an undue hardship on Genentech.

SECOND CAUSE OF ACTION — FAILURE TO ACCOMMODATE UNDER FEHA

The MSA is DENIED as to the second cause of action for failure to accommodate under FEHA.

Much of the same evidence discussed above raises triable issues as to the failure-to-accommodate claim. To establish a claim for failure to accommodate under FEHA, Plaintiff must show that she was a qualified individual, meaning she could perform the essential functions of the position with reasonable accommodation. (CACI No. 2541; Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193–1194.)

Genentech again argues that Plaintiff could not perform the essential job function of working eight hours per day and 40 hours per week, even with accommodation. As explained above, it is for the trier of fact to determine whether working eight hours per day and 40 hours per week was actually essential for Plaintiff’s position, or whether Genentech later decided it no longer wished to continue the existing accommodation.

Genentech understandably argues that this claim lacks merit because it provided accommodations to Plaintiff for nearly two years. That may be true, but it is not dispositive. The evidence raises a triable issue as to whether Genentech, in mid-2022, should have continued the existing accommodations or proposed alternative accommodations instead of removing Plaintiff from her position and later terminating her employment.

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THIRD CAUSE OF ACTION — FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS UNDER FEHA

The MSA is DENIED as to the third cause of action for failure to engage in the interactive process under FEHA.

FEHA imposes an independent duty to engage in a timely, good-faith interactive process. (CACI No. 2546.) Based on the evidence presented, a reasonable jury could conclude that: (1) before the July 2022 meeting at which Plaintiff was told her six-hour-per-day accommodation was no longer workable, Plaintiff had no prior warning that her accommodation was failing or unworkable; and (2) before that point, Genentech had not indicated to Plaintiff that her reduced schedule created an undue hardship or negatively affected other employees. (Hertzler Decl., ¶¶ 58, 64–65.)

A reasonable jury could also conclude that, after Plaintiff provided the most recent doctor’s note requesting that the sixhour-per-day schedule continue until at least November 2022, Genentech decided to remove Plaintiff from her position and give her 60 days to find another job without sufficiently exploring alternatives, such as having Plaintiff refrain from performing marginal duties or delegating nonessential tasks. (Hertzler Decl., ¶ 58.)

Genentech makes a legitimate argument that it accommodated Plaintiff for almost two years before removing her from her position, which Genentech contends demonstrates ongoing participation in the interactive process. However, before removing Plaintiff from her position, FEHA required good-faith participation in the interactive process. A reasonable jury could view the evidence as demonstrating an abrupt shift from “everything appears fine” to “you cannot remain in this role,” without sufficient discussion of potential alternatives.

Plaintiff offers evidence that, when she was removed from her position and told that tasks were not being completed due to her reduced schedule, she repeatedly asked which tasks were not being completed but was given no answer. (Hertzler Decl., ¶¶ 58, 64–65.) A reasonable jury could question whether Genentech actually considered which tasks were not being completed, whether some of Plaintiff’s marginal duties could have been redistributed, whether a fully remote schedule was feasible, and whether Genentech’s undue-hardship claim was genuine or post hoc.

Genentech may have strong arguments on these points, but the Court declines to decide them on summary adjudication. They are more appropriately decided by the trier of fact.

FOURTH CAUSE OF ACTION — RETALIATION UNDER FEHA

The MSA is DENIED as to the fourth cause of action for retaliation under FEHA.

Under FEHA, protected activity includes requesting accommodation and asserting disability-related rights. Plaintiff’s complaints to company representatives that Genentech was not properly accommodating her or properly engaging in the interactive process constitute protected conduct under FEHA.

The evidence suggests that Plaintiff was performing her job well and receiving positive feedback without criticisms or voiced concerns. Then, in fall 2022, shortly after Plaintiff renewed her request that the six-hour-per-day schedule continue for several more months, Genentech removed Plaintiff from her position and terminated her approximately 70 days later. Based on this timeline, Genentech’s adverse employment actions could be viewed as retaliatory.

The timing is significant. The evidence suggests that, in mid-2022, Plaintiff presented Genentech with another doctor’s note recommending that Plaintiff’s six-hour-per-day work schedule, with no work before 8:00 a.m., continue for several more months, at least until November 2022, when the doctor would revisit the issue. (Hertzler Decl., ¶ 43.) Shortly thereafter, Genentech removed Plaintiff from her Director position and, after an approximately 70-day internal job search, terminated her employment.

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As Genentech notes, temporal proximity alone does not establish retaliation. Genentech also offers legitimate and potentially credible explanations for removing Plaintiff and terminating her employment. But, as explained above, a reasonable jury could resolve these issues either way. The factual dispute regarding whether Plaintiff was able to perform her essential job functions with the existing accommodation prevents the Court from granting summary adjudication of the FEHA retaliation claim.

For purposes of summary adjudication, the Court disagrees with Genentech’s argument that the FEHA retaliation claim is barred because “the pleadings delimit the issues to be considered on a motion for summary judgment.” (Reply at p. 8.) Genentech argues that the Complaint alleges retaliation based on Plaintiff having “sought reasonable accommodation for her disability” (Reply at p. 8, citing Compl., ¶ 60), whereas Plaintiff now claims that Genentech retaliated after she reported concerns regarding Genentech’s denial of her accommodation requests. (Opp. at p. 24:4–8; SSF No. 38.) Genentech contends this is a new liability theory and that it was required to respond only to the issues raised by the Complaint.

The Court is not persuaded that the distinction between requesting an accommodation and expressing concern about the denial of an accommodation warrants summary adjudication. Under FEHA, both requesting accommodation and complaining about the denial of accommodation are protected acts. They are closely related forms of protected conduct. (See Hertzler Decl., ¶¶ 46–56.) The Court views these acts as variations of the same retaliation theory involving the same actors and decision-makers, not as entirely separate claims or issues.

FIFTH CAUSE OF ACTION — LABOR CODE SECTION 1102.5

The MSA is GRANTED as to the fifth cause of action for violation of Labor Code section 1102.5.

Labor Code section 1102.5 protects employees from retaliation for disclosing information that they reasonably believe reveals unlawful conduct or for refusing to participate in activity that would violate a statute, rule, or regulation. (Lab. Code, § 1102.5; CACI No. 4603.)

Plaintiff contends she engaged in protected conduct by: (1) telling Genentech personnel that the company was not properly accommodating her or engaging in the interactive process; and (2) refusing a Genentech employee’s suggestion that Plaintiff report working eight hours per day while actually working only six hours per day. Plaintiff contends she declined this suggestion because doing so would be dishonest.

Plaintiff’s declaration states, in part:

“[On June 15, 2022] ... Ms. Talakai told me on a call that I was ‘pushing too hard’ and asking too many questions. ... She then suggested that I simply report working eight-hour days while taking longer or more frequent breaks, so that my actual work time remained the same as it had been. I objected and made clear that I was not willing to misrepresent my hours, as that would be dishonest ....” (Hertzler Decl., ¶¶ 50, 66.)

First, Plaintiff’s alleged statements to Genentech personnel that the company was not, in her view, properly accommodating her COVID condition or properly engaging in the interactive process do not constitute protected conduct under Labor Code section 1102.5. FEHA already contains an anti-retaliation provision specifically covering accommodation requests and interactive-process complaints. Treating Plaintiff’s accommodation demands, or her complaints that Genentech was not complying with its accommodation obligations, as whistleblower activity under section 1102.5 would risk transforming ordinary FEHA retaliation claims into whistleblower claims. Plaintiff may pursue her FEHA retaliation theory, but the same facts do not establish a distinct whistleblower claim on this record.

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Second, Plaintiff’s claimed refusal to follow Ms. Talakai’s alleged suggestion that Plaintiff report eight hours per day while actually working only six hours per day does not support a viable section 1102.5 claim on this record. Section 1102.5 can encompass refusals to participate in unlawful acts. However, Plaintiff’s theory lacks sufficient evidence of causation. Even assuming Plaintiff’s refusal to misstate her hours could constitute protected conduct under section 1102.5, Plaintiff offers no evidence that Ms. Talakai had input into, or involvement in, the later adverse employment decisions. Nor is there evidence that Ms. Talakai communicated Plaintiff’s alleged refusal to any Genentech decisionmaker involved in the subsequent adverse actions.

In addition to the lack of causation evidence, Plaintiff’s theory is speculative. If Ms. Talakai herself suggested the alleged dishonest act, it is unlikely she would have reported the conversation to decision-makers in a manner that reflected negatively on herself. Further, even if Ms. Talakai had conveyed Plaintiff’s refusal to decision-makers, it is speculative to conclude that Plaintiff’s refusal to misstate hours motivated her termination.

To prevail on a section 1102.5 claim, Plaintiff would need to prove that her alleged refusal to misrepresent her hours was a causal factor in the decision to terminate her. The evidence of causation is lacking, and the suggestion that this refusal contributed to Plaintiff’s termination is speculative.

For these reasons, the MSA is GRANTED as to the Labor Code section 1102.5 claim.

SIXTH CAUSE OF ACTION — WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

The MSA is DENIED as to the sixth cause of action for wrongful termination in violation of public policy.

The parties agree that Plaintiff’s wrongful-termination claim is derivative of her FEHA claims. (Arteaga v. Brink’s, Inc.(2008) 163 Cal.App.4th 327, 355; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229.) Because the Court denies summary adjudication as to the FEHA claims, the derivative wrongful-termination claim also survives summary adjudication.

PUNITIVE DAMAGES

The MSA is GRANTED as to the Complaint’s request for punitive damages.

To obtain punitive damages, Plaintiff must do more than prove a FEHA violation. The Court takes no position on whether Plaintiff is likely to prove any FEHA violation. To obtain punitive damages, Plaintiff must prove by clear and convincing evidence that Genentech is guilty of malice, fraud, or oppression. (Civ. Code, § 3294.)

To establish malice or oppression, Plaintiff must present clear and convincing evidence of despicable conduct. (Civ. Code, § 3294, subds. (c)(1), (c)(2).) “Despicable conduct” is conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)

Here, even viewing the evidence in the light most favorable to Plaintiff, the Court finds that no reasonable jury could find clear and convincing evidence of malice, fraud, or oppression. Genentech accommodated Plaintiff’s long-COVID condition for nearly two years by permitting a significantly reduced workday of six hours rather than eight hours, allowing a 30-hour workweek, and permitting Plaintiff not to start work before 8:30 a.m. After removing Plaintiff from her Director position, Genentech engaged in an internal job search for approximately 70 days before terminating her employment.

The evidence suggests that the dispute centers largely on whether, after nearly two years of accommodating Plaintiff’s reduced schedule, continued accommodation remained reasonable and feasible. Plaintiff offers no evidence of overt

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hostility toward her disability. The evidence does not support a reasonable inference of malicious intent, conscious disregard of Plaintiff’s rights, or conduct that can fairly be characterized as despicable. At most, the evidence suggests a good-faith disagreement about whether working eight hours per day was essential to Plaintiff’s position, whether Plaintiff’s reduced schedule imposed an undue hardship, and whether Genentech properly understood and applied its FEHA obligations.

Triable issues exist as to Plaintiff’s FEHA claims, but the request for punitive damages is not supported by clear and convincing evidence. Accordingly, the MSA is GRANTED as to punitive damages.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with this ruling for the Court’s signature, pursuant to California Rules of Court, rule 3.1312, and provide notice of the ruling to all appearing parties as required by law. The Court further directs the parties’ attention to revised Local Rule 3.403(b)(iv) (eff. Jan. 1, 2024) regarding the form of proposed orders.