Full opinion text
AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT FEDERAL EXPRESS’ MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION. WILSON, District Judge. I. INTRODUCTION Originally filed in California Superior Court on May 30, 2003, this action alleges wrongful termination in violation of public policy; disability discrimination in violation of Cal. Gov’t Code § 12940(a); failure to provide a reasonable accommodation for a disability in violation of Cal. Gov’t Code § 12940(m); breach of contract; breach of the implied covenant of good faith and fair dealing; deceit; and violation of Cal. Bus. & Prof.Code § 17200. Plaintiff Gilbert R. Diaz, II, (“Plaintiff’) seeks damages from Defendant Federal Express Corporation (“Defendant” or “Federal Express”) consisting of special damages for the loss of past and future income, medical expenses, and other benefits; prejudgment interest on these sums; general damages for emotional distress; punitive damages; attorneys’ fees; costs of suit; and any other relief the Court may deem appropriate. This action was removed to this Court on July 3, 2003 pursuant to 28 U.S.C. § 1441. This Court has jurisdiction over the action pursuant to 28 U.S.C. § 1332, as there is complete diversity of the parties and the amount in controversy exceeds $75,000. Now before the Court is Defendant Federal Express Corporation’s Motion for Summary Judgment or Summary Adjudication made pursuant to Fed.R.Civ.P. 56 on the ground that there is no genuine issue of material fact with respect to each of Plaintiffs causes of action in the initial complaint and that Defendant is entitled to judgment as a matter of law on such claims. In the alternative, Defendant seeks summary adjudication that the following issues are without controversy: (1) Defendant is entitled to summary judgment on Plaintiffs first cause of action for wrongful termination, and (2) Defendant is entitled to summary judgment on Plaintiffs third cause of action for failure to accommodate. Due to the legal and factual complexities of this case, the Court has held several hearings on Defendant’s Motion and has ordered multiple rounds of briefing. On August 18, 2004, the Court issued an Order directing the parties to submit further briefing on the question of whether Plaintiffs condition constitutes a “disability” for purposes of the California Fair Employment and Housing Act (“FEHA”). In the August 18 Order, the Court concluded that if Plaintiff could have a mental disability under the FEHA, Defendant’s Motion for Summary Judgment must be denied, and if Plaintiff did not have a mental disability under the FEHA, Defendant’s Motion for Summary Judgment must be granted. Having fully considered the parties’ filings, the Court issues this Order GRANTING IN PART AND DENYING IN PART Defendant’s Motion for Summary Judgment. II. FACTUAL & PROCEDURAL BACKGROUND A. Plaintiffs Employment Position Beginning on March 3, 1992, Plaintiff was employed as a customer service agent (“CSA”) for Defendant, a company engaged in the overnight shipping business. Generally, CSAs’ responsibilities are threefold, as they: (1) greet customers, assisting them in preparing goods and documents for shipment, and accepting payment for shipment services; (2) scan customers’ packages into Defendant’s computer system so that they can be traced to their ultimate destinations; and (3) sort packages into groups based on each package’s destination, which must be done correctly to ensure a package arrives at its intended destination on time. Defendant states that appropriate staffing levels are necessary for Defendant to meet its service commitments and, in turn, to maintain its competitive advantage. The parties dispute the extent to which a CSA’s absence requires a replacement CSA and the difficulty of finding a replacement CSA. However, it is clear that unfamiliarity with the sorting process can easily cause packages to be delivered to the wrong location, and, thus, it would presumably be problematic for Defendant if a replacement CSA or other knowledgeable person was not available to substitute for an absent CSA. B. Defendant’s Disciplinary Procedures Defendant maintains several procedures for disciplining employees. Defendant’s most serious form of written discipline, short of termination, for conduct issues is a warning letter. A warning letter may sometimes be accompanied by suspension without pay. Defendant’s most serious form of written discipline, short of termination, for performance related issues is a performance reminder. For conduct or performance related problems that are not deemed severe enough to justify a warning letter or a performance reminder, Federal Express managers are authorized to issue a “documented counseling.” If an employee receives a combination of three warning letters and performance reminders within a twelve month period of time, this will “normally” result in termination. Employees can appeal from a warning letter, performance reminder, and a decision to terminate employment via the Guaranteed Fair Treatment Procedure (“GFTP”). The GFTP, which is set forth in Defendant’s employee manual entitled “The People Manual,” provides for a three step appeal. The first step consists of a meeting attended by the employee, a human resources (“HR”) representative, and the employee’s operations manager, senior manager, and managing director. The managing director decides the appeal based upon both information presented by the employee before and during the meeting and information in the employee’s GFTP packet. A GFTP packet, which is submitted by the operations manager and senior manager, contains the employee’s disciplinary history and the rationale for the discipline at issue. The managing director and the HR representative then each prepare a document outlining the managing director’s rationale for the decision. If the employee is unsatisfied with the decision made at Step 1, the employee can proceed to Step 2. At Step 2, the employee completes a form in which the employee may submit additional information. The decision at Step 2 is made by the Vice President and Senior Vice President in the employee’s direct chain of command based upon the evidence presented during Step 1, the rationale for the Step 1 decision as reported by the managing director and the HR representative, and any additional information submitted by the employee. If Step 2 is decided against the employee, the employee may appeal to Step 3, at which time the employee completes another form inviting the employee to provide additional information. The decision at Step 3 is made by an Appeals Board comprised of various members of upper management. The Appeals Board considers all of the evidence presented at Steps 1 and 2, plus any additional information that the employee presents. C. Plaintiffs Performance Through February 2001 Plaintiffs performance over his first nine years with Federal Express appears to be mixed. On one hand, Plaintiff received good to excellent reviews averaging approximately six on a scale of seven during his employment. In the course of his employment, he received a number of “Bravo Zulu’s” (a company commendation for extraordinary performance) and numerous compliments from customers. On the other hand, through February 2001, Plaintiff received a performance reminder (for “missed freight”) and three warning letters (two for attendance related matters and one for using inappropriate language toward a coworker). During this time period, Plaintiff also received nineteen documented counselings. The documented counselings were issued for a range of reasons, including behaving rudely, improperly processing packages, and for having a $1.00 cash shortage. D. Plaintiffs Warning Letter of April 2, 2001 for Confrontation with Coworker On February 6, 2001, Plaintiff was terminated for “lack of professionalism” as a result of a confrontation he had with a coworker. Plaintiff appealed from the termination via the GFTP, and his termination was overturned at Step 3 on March 29, 2001. However, the Appeals Board ordered local management to issue a warning letter to Plaintiff and suspend him for a week without pay. Pursuant to this directive, a warning letter was issued to Plaintiff on April 2, 2001. Upon serving his suspension, Plaintiff returned to work, but was not allowed to return to his customary work group. Rather, Plaintiffs senior manager, his second level supervisor Rosalinda Vint (“Vint”), transferred Plaintiff to another group, in which capacity Plaintiff earned less pay and worked fewer hours. Plaintiffs operations manager in the new work group was Clementine Aubrey (“Aubrey”). Plaintiff states that Aubrey relentlessly complained about Plaintiffs performance. E. Performance Reminder of June 25, 2001 for Failure to Properly Input Timecard Information On June 1, 2001, Aubrey issued a memo entitled “Performance Expectations” to all of the CSA’s under her supervision, including Plaintiff. The memo stated that CSA’s were expected to utilize Defendant’s “tracker” system to input timecard information into Defendant’s computer system. Plaintiff acknowledged reading this memo by signing it on June 12, 2001. In addition, on June 4, 2001, Aubrey performed a “ehecksit” with Plaintiff during which she observed Plaintiff perform his job. On the ehecksit form, Aubrey noted that Plaintiffs timecards were missing the “tracker” labels. Plaintiff acknowledged that he had read the ehecksit form by signing it on June 4, 2001. On June 25, 2001, Plaintiff received a performance reminder after Aubrey discovered that Plaintiff was not inputting his timecard information via the “tracker” system, but rather, was continuing to manually input his time into Defendant’s computer system. F. Plaintiffs Attendance Through December I, 2001 Under Defendant’s policy, all absences, even if the employee is disabled due to a work related injury and has filed a workers’ compensation claim, are counted against the employee with regard to discipline and termination. Indeed, Defendant’s ordinary practice is not to inquire about the reasons for an employee’s absence before issuing a performance reminder or warning letter. If an employee is absent from work on workers’ compensation for a work-related disability, Defendant counts all absences against the employee and gives the employee a warning letter because of excessive absences. In June 2001, Plaintiff missed nine full days of work and left work early on an additional day. All of Plaintiffs absences were on account of his not feeling well. Specifically, Plaintiff states that he experienced physical symptoms, including severe gastric distress requiring an emergency room visit on June 19, 2001. Additionally, Plaintiff was experiencing feelings of anxiety and depression, was fearful of dealing with his supervisors, and had difficulty concentrating. On July 17, 2001, Aubrey issued Plaintiff a documented counseling because his attendance level was unsatisfactory on account of his June absences as well as three absences he had in 2000. In the documented counseling, Aubrey warned Plaintiff that if his attendance level was again deemed unsatisfactory, he would be issued a performance reminder. From June 28, 2001 through December 4, 2001, Plaintiff did not miss any of his scheduled shifts due to illness, though he did take his ten allotted vacation days. Nonetheless, Plaintiff states that he continued to experience job stress, anxiety and depression, an assertion that is supported by the report of psychiatrist Alfred M. Bloch (discussed infra at 9-11). G. Plaintiffs Workers’ Compensation Claim and Dr. Bloch’s Report On July 31, 2001, Plaintiff filed a workers’ compensation claim for “emotional stress” suffered between February 15, 2001 and July 26, 2001. Defendant is a self-insured employer with respect to workers’ compensation claims. Sedgwick Claims Management Services, Inc. (“Sedgwick”) is the third party administrator of workers’ compensation claims brought against Defendant. When Plaintiff filed his workers’ compensation claim, Sedgwick assigned the claim to Thelma Calvo (“Calvo”), a claims administrator for Sedgwick, and hired Kathleen Brundo (“Brundo”) to defend Defendant against the claim. Sedgwick later reassigned the claim to another claims administrator, Melynda Ewald (“Ewald”), when Calvo moved to Northern California. Stephen Schempp (“Schempp”), a Claims Administrator in Defendant’s Risk Management Department, was responsible for overseeing the activities of Ewald and Brundo relative to the claim. Aubrey, Vint, and HCMP manager Nancy Hanlon (“Hanlon”) learned in August, 2001 that Defendant had filed a claim for workers’ compensation. Because Plaintiff chose to file his claim through his attorney rather than through local management and because, according to Vint, Aubrey, and Hanlon, Defendant did not report his alleged injury to them, none of Plaintiffs supervisors obtained any specific information about Plaintiffs injury at that time. On October 2, 2001, Sedgwick sent Plaintiff to Dr. Howard M. Greils for a psychiatric evaluation. Dr. Greils concluded that Plaintiff “has not experienced a psychiatric disorder or functional impairment as a result of the job events that he reports.” (Schempp Supp. Deck, Exh. A at 17). Dr. Greils further concluded that Plaintiff “may continue at his usual occupation without restrictions from a psychiatric standpoint.” (Id. at 18). On November 7, 2001, Plaintiff was examined by Dr. Bloch, a psychiatrist to whom he had been referred by his workers’ compensation attorney. In connection with that examination, Dr. Bloch prepared a medical report reflecting his medical opinion concerning Plaintiffs psychiatric condition. After detailing Plaintiffs self-reported “history of present illness,” Dr. Bloch reported the results of seven psychological tests administered by Dr. Dobbs. Among the findings garnered from these tests were: (1) a moderate level of depression; (2) moderate level of anxiety; and (3) that Plaintiff is “a naively defensive individual who is unwilling to admit to the minor faults and shortcomings which most people have.” (Bloch Deck, Exh. 213 at 9). In light of the test results and his clinical impressions, Dr. Bloch diagnosed Plaintiff as suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood and with psychological factors affecting his medical condition. Dr. Bloch found that Plaintiffs condition arose from the harassment he suffered at work. As a result of his depression, Plaintiff was limited in his life activity in that Plaintiff was sleeping poorly and suffering from fatigue, had become socially withdrawn, had suffered a loss of self-confidence and self-esteem, and was experiencing difficulty concentrating. Accordingly, Dr. Bloch found Plaintiff to be “temporarily totally disabled” and suggested that Plaintiff should be transferred away from his manager and second level supervisor. (Id. at 12). Specifically, Dr. Bloch stated: Mr. Diaz has described what I believe most observers would consider a hostile work environment. In response to this, he has developed reactive psychiatric symptomatology.... The patient is struggling to continue work, hoping to “hang on” until he can transfer elsewhere within Federal Express. It would seem [to] be in the best interest of all parties to expedite a transfer away from his current manager and second-level supervisor.... The best intervention from a psychiatric viewpoint ... would be a lateral transfer away from his current manager and second level supervisor. As long as this hostile work situation persists, the patient will remain symptomatic. (Id. at 12-13). Dr. Bloch further stated that although “[t]he overall residual disability would be ratable at this point between slight and slight to moderate, according to Workers’ Compensation guidelines,” Plaintiffs “degree of depression at present is such that it greatly limits [his] ability to engage in the goal directed activities that would be expected of any employee.” (Id. at 13). Dr. Bloch’s report was served on Sedg-wick and Brundo on December 21, 2001. In turn, on February 10, 2002, Brundo mailed Dr. Bloch’s report to Schempp and Debra Skelton (“Skelton”), a claims specialist in Defendant’s Risk Management Department assigned to California claims. Pursuant to an Addendum to Defendant’s contract with Sedgwick (“Addendum”), Schempp and Skelton were two of only sixteen Federal Express employees authorized to receive medical information concerning a workers’ compensation claim from Sedgwick or its agents. Indeed, Calvo and Ewald each state that they did not discuss any of the contents of Dr. Bloch’s report with any of Defendant’s employees besides Schempp, nor did they provide copies of Dr. Bloch’s report to anyone at Federal Express. Moreover, Brundo attests that she did not provide a copy of Dr. Bloch’s report to anyone at Federal Express other than Schempp and Skelton. According to Schempp and Skelton, they were the only Federal Express employees to receive a copy of Dr. Bloch’s report prior to Plaintiff filing this lawsuit. Schempp and Skelton each attest that neither provided a copy of either Dr. Greils’ or Dr. Bloch’s report to front line management (i.e. Vint, Aubrey, and Hanlon). Indeed, Skelton states that since Cal. Labor Code § 3762 became effective, she has not provided medical reports of any kind to Defendant’s front line management. Dale Springfield (“Springfield”), a manager in Defendant’s workers’ compensation department, summarizes Defendant’s policy with regard to its claims administrators’ conveying medical information to Defendant’s front line management, as follows: When it is necessary for a Risk Management claims administrator and/or claims specialist to provide medical information arising out of a workers’ compensation claim to front line management in order for the employee’s work duties to be modified, only the recommended job modifications and/or work .restrictions are furnished by the claims administrator and/or claims specialist assigned to the claim to front line management. Due in part to Labor Code § 3762, information concerning the employee’s diagnosis and symptoms is not provided to front line management. (Springfield Deck at ¶ 2). Similarly, in her deposition, Springfield stated that if a member of Federal Express’ workers’ compensation department had a request for an accommodation presented to him, that person may provide such a request to management with the following qualification: “If [a request for accommodation] involves job duties, modification and it’s a compensable claim, the third-party administrator would communicate that information as long as it did not violate any privacy statutes. In particular, you know, Labor Code 3762.” (Springfield Depo. at 39:24-40:3). Later, when asked what people like Schempp and Skelton are instructed to do when they come across a request for accommodation in a workers’ compensation case, Springfield stated: “They would pass that information on or ensure that the TPA had passed the information on as long as it didn’t violate any privacy regulations.” (Id. at 40:19-21). Plaintiff does not dispute Defendant’s assertions that neither Aubrey, Vint, nor Hanlon saw Dr. Bloch’s report, that Plaintiff did not furnish them with such report, and that Plaintiff did not request to them that he be transferred to another work location. Additionally, Plaintiff does not dispute Defendant’s claim that Plaintiff did not furnish his HR representative, Elizabeth Steffey, with a copy of Dr. Bloch’s report and that he did not request a transfer to another job location during his GFTP appeal. While Plaintiff does not concede that these Federal Express employees were not aware of Dr. Bloch’s report, there is nothing in the record that indicates otherwise. The workers’ compensation claim was resolved on July 1, 2003 pursuant to an Order Approving Compromise & Release. The parties settled the case for $5000 plus $750 in attorneys’ fees. The settlement agreement explicitly limits the scope of the settlement to “issues relating to workers comp, claims only. Notwithstanding any provision of this settlement which could be construed to the contrary, the parties agree this settlement applies only to rights and benefits under the Workers’ Compensation laws.” (Schempp Decl., Exh. A). Defendant emphasizes that this settlement does not constitute an admission of liability and that Plaintiffs claim was never accepted as compensable. H. Performance Reminder of January lip, 2002 for Attendance Deficiencies and Simtdtaneous Termination On December 5, 2001, Plaintiff telephoned Aubrey and informed her that he would not be able to work his scheduled shift because he was not feeling well. The following day, December 6, 2001, Plaintiff again called in sick. On that same day, having sought treatment under the Federal Express Employee Assistance Plan, Plaintiff attended an appointment with Dr. Diane Kelley (“Dr.Kelley”), a licensed clinical psychologist. As a result of this examination, Dr. Kelley sent a letter to Aubrey, dated December 7, 2001, advising her that Plaintiff should not work until December 14, 2001 because “he appears to be suffering from DSM IV Code 296.23.” (Diaz Decl, Exh. 14). Thus, in addition to missing work on December 5 and 6, Plaintiff also was absent from work on December 7, 8,10,11,12, and 13. On December 13, 2001, Plaintiff saw Dr. Kelley again. Following this appointment, Dr. Kelley sent a letter to Aubrey, dated December 14, 2001, in which Dr. Kelley stated that Plaintiff continued to suffer from DSM IV Code 296.23 and that he should be kept off of work until December 21, 2001. (Diaz Deck, Exh. 15). Plaintiff then missed his scheduled shifts on December 14, 17, 18, 19, 20, and 21. In total, Plaintiff missed fourteen days due to illness in December 2001. According to Defendant, these absences were particularly problematic in that December is Defendant’s “peak season.” In late December, Plaintiff, believing that he could perform his duties, attempted to return to work. However, Aubrey informed Plaintiff that he could not return to work unless he had another note from Dr. Kelley. Because Dr. Kelley was on vacation, Plaintiff was not able to obtain such a letter from her until January 3, 2002. On January 3, 2002, Plaintiff, believing that he was fully capable of performing his duties and in possession of a letter from Dr. Kelley stating such, attempted to return to work. However, upon arriving at work, Plaintiff was suspended by Aubrey. Subsequently, on January 14, 2002, Plaintiff received a performance reminder for an attendance level that was well below satisfactory due to his absences in June and December. Specifically, Plaintiffs attendance rating was 95.5%, while Defendant’s corporate minimum standard for attendance was 96.9%. The performance reminder, signed by Aubrey, informed Plaintiff that his employment was terminated. In addition to citing Plaintiffs attendance deficiencies, the performance letter noted that a combination of three performance reminders and warning letters within a twelve month period “normally results in termination” and that this was the third such document issued to Plaintiff within a year. (Diaz Deck, Exh. 33). The decision to terminate Plaintiff was made by Aubrey and endorsed by Vint. I. Plaintiffs Appeals Plaintiff appealed his termination via the GFTP, submitting multiple statements in support thereof. Defendant maintains that it strictly followed the GFTP process as described above. Though Defendant understood that there were many favorable aspects of Plaintiffs performance, the decision to terminate Plaintiffs employment was upheld at all three steps of the GFTP. The GFTP appeal was ultimately decided by the highest level of Defendant’s management, including the CEO, COO, the chief human resources director, a senior vice president, and a vice president, in Defendant’s home office in Memphis, Tennessee. According to Steffey, at no point in the GFTP process did Defendant mention his workers’ compensation claim. Moreover, Plaintiff did not submit Dr. Bloch’s report at any stage of the GFTP. Plaintiff contends that the only item considered in connection with his termination was his attendance history, a charge that Defendant vigorously denies, stating that Plaintiffs entire disciplinary history was considered at all three steps of the GFTP. Following the rejection of his GFTP appeal, Plaintiff timely filed a charge of discrimination on the basis of disability concerning his termination with the California Department of Fair Employment and Housing. Plaintiff subsequently obtained a notice of the right to sue in California Superior Court, pursuant to California Government Code section 12965(b). After this action was brought in California Superior Court, Defendant removed the suit pursuant to 28 U.S.C. §§ 1332 and 1441. J. The Court’s August 18, 9,00k Order Re Further Briefing On August 18, 2004, the Court issued its Order Re Further Briefing, in which the Court ORDERED the parties to submit further briefing on the issue of whether a temporary disability can, as a matter of law, constitute a disability for purposes of the FEHA. In the August 18, 2004 Order, the Court made several rulings regarding Defendant’s Motion for Summary Judgment. First, the Court held that under relevant principles of agency law in conjunction with Cal. Labor Code § 3762, questions of fact remained with respect to whether Dr. Bloch’s report contained medical information necessary for Defendant to modify Plaintiffs work duties, and whether “in good faith and [in] the exercise of ordinary care,” Schempp and Skelton ought to have disclosed certain portions of Dr. Bloch’s report to Defendants and, if so, which portions. (See August 18, 2004 Order at 19-29). Second, the Court held, in connection with Plaintiffs FEHA claim for failure to accommodate in violation of Cal. Gov’t Code § 12940(m), that questions of fact remained as to whether any failure to accommodate on the part of Defendant was “based upon a bona fide occupational qualification,” and whether Defendant could have made a reasonable accommodation for Plaintiff. (See August 18, 2004 Order at 33-39). III. DISCUSSION A. Summary Judgment Standard Rule 56(c) requires summary judgment for the moving party when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997). “A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties’ differing versions of the truth.” SEC v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir.1982). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That burden may be met by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify specific facts that show a genuine issue for trial. See id. at 323-34, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only genuine disputes — where the evidence is such that a reasonable jury could return a verdict for the nonmoving party — • over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001) (the nonmoving party must offer specific evidence from which a reasonable jury could return a verdict in its favor). B. Whether Plaintiff’s Condition Qualifies as a “Disability” under the FEHA 1. ADA Definition of “Disability ” Defendant argues that because Plaintiffs disability, which lasted from approximately June 2001 to early January 2002, was only temporary, Plaintiff did not suffer from a disability cognizable under the FEHA. Defendant urges the Court to determine whether Plaintiff had a “disability” by looking to ADA caselaw and regulations because “[t]here are not any published cases interpreting the FEHA that address whether or not a temporary condition can constitute a disability.” (Def. Reply at 1). Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.” 42 U.S.C. § 12102(2)(A) (emphasis added). The applicable federal regulations list three factors to be considered in determining whether an individual is substantially limited in a major life activity: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2) (emphasis added). The Ninth Circuit has relied on this language in finding that an employee’s cancer-related psychological impairment that lasted for a period of approximately three and a half months was not of sufficient duration to qualify as a “disability” under the ADA. See Sanders v. Arneson Prods., Inc., 91 F.3d 1351 (9th Cir.1996). In the Sanders court’s view, a three and a half month “psychological impairment ... with no residual effects” was not of sufficient duration to substantially limit one or more of the plaintiffs major life activities. It is unclear that temporary disabilities are categorically excluded even under the federal ADA standard. Defendant relies on Wilmarth v. City of Santa Rosa, 945 F.Supp. 1271 (N.D.Cal.1996), and Sanders for this proposition. However, Defendant’s interpretation of these cases is flawed. In both Wilmarth and Sanders, the Ninth Circuit held that the temporary disability at issue did not constitute a disability for purposes of the ADA. In both cases, the fact that the disability was temporary was not dispositive. Rather, the court in both cases analyzed the statutory definition of “disability” under the ADA and concluded that the impairments did not satisfy the statutory definition. In conducting their analysis, both courts considered “the duration or expected duration of the impairment” as but one of three factors outlined in the statute. After analyzing all three factors, both courts held that the alleged disabilities did not “substantially limit” the plaintiffs from performing a major life activity and therefore did not constitute “disabilities” under the ADA. Thus, the Ninth Circuit has not categorically excluded temporary disabilities from coverage under the ADA. Looking to other circuits reveals that there is some uncertainty with respect to whether a temporary disability, as a matter of law, cannot constitute a disability under the ADA. In Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir.1998), the Tenth Circuit emphasized the importance of engaging in a case-by-case analysis of each impairment: Whether an impairment “substantially limits” a major life activity depends on the individual and the impairment. Such determinations are not susceptible to per se rules; they must be made on a case-by-case basis. See 29 C.F.R. pt. 1630 app., § 1630.2(j) (“The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual”). The regulations and the EEOC’s interpretive guidelines clearly state that an impairment need not be permanent in order to rise to the level of a disability. See 29 C.F.R. § 16S0.2(j)(2)(iii) (sic); EEOC Compliance Manual § 902.4(d), at 902-30. Id. at 1270. Moreover, in Adams v. Citizens Advice Bureau, 187 F.3d 315 (2d Cir.1999), the Second Circuit left open the question of whether temporary injuries are per se unprotected under the ADA: The Magistrate Judge’s report and recommendation, adopted by the district court, engages in a case-specific analysis to determine whether this plaintiff was substantially limited in a major life activity by his temporary injury. As a result, we have no occasion to consider whether temporary injuries are per se unprotected under the ADA. Compare Graaf v. North Shore Univ. Hosp., 1 F.Supp.2d 318, 321 (S.D.N.Y.1998) (sic) and Davis v. Bowes, 1997 U.S.Dist. LEXIS 16258, No. 95 Civ. 4765, 1997 WL 655935, at *15 (S.D.N.Y. Oct.20, 1997) (sic), with Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir.1998) (sic), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999) (sic) (“An impairment need not be permanent in order to rise to the level of a disability”). The question is open in this circuit and we intimate no opinion on it. Id. at 317. Thus, it appears that even under the ADA, it is not completely clear that Plaintiffs condition could not constitute a disability as a matter of law. 2. Poppink Act In addition, the Court must acknowledge that the FEHA explicitly differentiates its definition of disability from that of the ADA. On January 1, 2001, the Prudence Kay Poppink Act (the “Poppink Act”) took effect. Via the Poppink Act, the definition of mental disability in California Government Code section 12926 was amended to read: “Mental disability” includes, but is not limited to, all of the following: “(1) Having any mental or psychological disorder or condition, such as ... emotional or mental illness ... that limits a major life activity.” Cal Gov’t Code § 12926(i)(l) (emphasis added). In turn, “[a] mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.” Cal. Gov’t Code § 12926(i)(1)(B) (emphasis added). The FEHA states that “ ‘[mjajor life activities’ shall be broadly construed and shall include physical, mental, and social activities and working.” Cal. Gov’t Code § 12926(i)(l)(C). Defendant argues that because Plaintiffs condition, which lasted from approximately June 2001 to early January 2002, was only temporary, Plaintiff did not suffer from a disability cognizable under the FEHA. Defendant urges this Court to hold, as a matter of law, that a temporary disability cannot constitute a “disability” for purposes of the FEHA. Such a proposition effectively ignores the factual analysis required by Cal. Gov’t Code § 12926, and is inconsistent with the definition of “mental disability” set forth in the FEHA. The FEHA articulates five non-exclusive definitions of “mental disability:” (1) Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. (2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services. (3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult. (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2). Cal. Gov’t Code § 12926© (emphasis added). On its face, it appears as though a simple appeal to the text of the statute answers the question of whether, as a matter of law, a temporary disability could constitute a disability for purposes of the FEHA. Definitions (4) and (5) define a disabled person as one regarded as having, or having had, a mental condition or disorder that makes achievement of a major life activity difficult or that has no present disabling effect, but that may become a mental disability. Based on a simple reading of the statute, it appears that the California Legislature did not categorically exclude temporary disabilities, as Defendant would have the Court conclude. To the contrary, the Legislature appears to have included temporary disabilities within its broad definitions of “disability.” The Poppink Act also includes legislative findings and declarations, codified in California Government Code section 12926.1. Section 12926.1 begins by stating that the FEHA “provides protections independent from those in the [ADA]” and “afford[s] additional protections” than the ADA. Cal. Gov’t Code § 12926.1(a). Section 12926.1 then specifically addresses the FEHA’s expansive definition of disability: The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. Cal. Gov’t Code § 12926.1(b). After stating that “mental disabilities” under the FEHA “include but are not limited to, chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease,” § 12926.1 distinguishes the FEHA’s definition of “physical disability” and “mental disability” from the definition of “disability” in the ADA: [T]he legislature has determined that the definitions of “physical disability” and “mental disability” under the law of this state require a “limitation” upon a major life activity, but do not require, as does the [ADA], a “substantial limitation.” That distinction is intended to result in broader coverage under the law of this state than under that federal act. Cal Gov’t Code § 12926.1(c). Noticeably absent from the FEHA’s definition of physical and mental disability and from its legislative findings about such definitions is language regarding the weight to be given to the duration of a condition in concluding whether a person is disabled due to such condition. The discussion above provides guidance to the Court, but it does not resolve the issue of whether Plaintiff was mentally disabled. In fact, further questions are presented. In particular, the Court must consider how much broader the FEHA’s “limitation” standard is than the ADA’s “substantial limitation” standard, particularly with regard to a condition that is temporary or of a short duration. This question, in turn, necessitates an examination of when a condition makes a major life activity “difficult;” that is, the Court must determine the criteria by which to measure at what point an impairment impacts a person so as to make a major life activity difficult. Again, given the facts of this case, the Court’s focus must be more heavily on how a condition’s duration, as opposed to its severity, affects reaching this “difficulty” threshold. 3. Cases Applying the FEHA As noted, the FEHA contains a broader disability standard than does the ADA. Not only does the statutory language of the FEHA make this clear, but, in addition, courts have repeatedly so stated. See, e.g., Cripe v. City of San Jose, 261 F.3d 877, 895 (9th Cir.2001); Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 257-58, 102 Cal.Rptr.2d 55 (2000); Bryan, 307 F.Supp.2d at 1112; Colmenares, 29 Cal.4th at 1022-23, 130 Cal.Rptr.2d 662, 63 P.3d 220. Unfortunately, there is a dearth of easelaw exploring the contours of the FEHA’s “limitation” standard for disability. Moreover, most of the cases that do examine whether a plaintiff is disabled under the FEHA deal with whether various physical conditions qualify as physical disabilities. See, e.g., Am. Nat’l Ins. Co. v. Fair Employment and Housing Comm’n, 32 Cal.3d 603, 186 Cal.Rptr. 345, 651 P.2d 1151 (1982) (although high blood pressure did not currently impair employee’s ability to work, the employee’s condition brought him within coverage of the FEHA); Deschene v. Pinole Point Steel Co., 76 Cal.App.4th 33, 90 Cal.Rptr.2d 15 (1999) (plaintiff was disabled under the FEHA on account of heart condition and diabetes); Angell v. Peterson Tractor, Inc., 21 Cal.App.4th 981, 26 Cal.Rptr.2d 541 (1994), abrogated on other grounds by City of Moorpark v. Superior Court, 18 Cal.4th 1143, 77 Cal.Rptr.2d 445, 959 P.2d 752 (1998) (although the employee had a full release to return to work after his last heart attack and was fully able to perform his employment duties, his heart condition fell within coverage of the FEHA); County of Fresno v. Fair Employment and Housing Comm’n, 226 Cal.App.3d 1541, 1549-50, 277 Cal.Rptr. 557 (1991) (holding that hypersensitivity to tobacco smoke arising from respiratory disorders such as asthma and scarcoidosis is a covered disability under the FEHA); Raytheon Co. v. Fair Employment & Housing Comm’n, 212 Cal.App.3d 1242, 1252, 261 Cal.Rptr. 197 (1989) (holding that having AIDS or being HIV-positive was a physical disability under the FEHA even prior to the amendment expressly stating such). In turn, the cases uncovered by the Court that address physical conditions all analyze the question of “limitation” by looking to the severity of the condition; no case found by the Court deals with a temporary condition (as Sanders did with regard to the ADA). The Court has found only one published case in which a court has offered a reasoned analysis of whether a plaintiff had a mental disability under the FEHA. In Jensen, the California Court of Appeal held that a bank manager who suffered from posttraumatic stress disorder after she was the victim of an attempted bank robbery was “mentally disabled” under the FEHA. 85 Cal.App.4th at 257-59, 102 Cal.Rptr.2d 55. On account of her condition, the plaintiff suffered from anxiety, nervousness, depression, lack of confidence, a helpless feeling, a feeling of humiliation, headaches, teeth grinding, nightmares, sleeplessness, and panic attacks and stated that she could not work at any job in a bank branch location or a job that involved working with the public or with cash. Id. at 254, 102 Cal.Rptr.2d 55. Notably, the plaintiffs opposition to the defendant’s summary judgment motion was primarily supported by her own declaration, and there is no indication that a medical professional of any sort had treated and/or diagnosed the plaintiff. After holding that the plaintiff need only show that her condition limited, rather than substantially limited, a major life activity, the Jensen court held that the plaintiffs condition could, as a matter of law, meet the definition of mental disability even under the “substantial limitation” standard. As such, Jensen supports Plaintiffs position to some degree in that it holds a self-diagnosed mental condition that interfered with the plaintiffs ability to work easily met the “limitation” standard. However, the Jensen court did not discuss how long the plaintiff expected to suffer from posttraumatic stress disorder. From this Court’s reading of the facts in Jensen, it does not seem that the plaintiffs condition was temporary, but, rather it appears that the plaintiff would continue to be adversely affected by the bank robbery for an extended period. Thus, while Jensen indicates that a defendant faces a difficult task in seeking a determination that, as a matter of law, a condition is not severe enough to be a mental disability, Jensen does not speak to the key issue of the weight to be given to a condition’s temporary duration. ]*. Legislative Intent As a result of the dearth of published case law specifying how the duration of a plaintiffs condition should apply to a determination of whether the condition is a “disability” under the FEHA, the parties’ arguments in response to the Court’s Order for further briefing rely largely on the parties’ interpretations of the legislative history of the Poppink Act. Defendant asserts that the purpose of the Poppink Act was to provide that the definition of “limitation” under the FEHA was to be determined without regard to mitigating measures by employees, citing an April 10, 2000 letter from the Fair Employment and Housing Commission (“FEHC”) to Assembly Member Sheila J. Kuehl, which states that “[the Poppink Act] would send a clear message that California law is not in accord with the recent trilogy of United States Supreme Court decisions in Sutton v. United Air Lines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), Murphy v. United Parcel Service (1999) 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484, and Albertson’s Inc. v. Kirkingburg (1999) 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 that found that, in determining whether a person has a disability under the ADA, consideration must be given to such mitigating measures.” (Letter from FEHC to Kuehl of 4/10/00 at 1.) Defendant argues that since these three opinions did not consider the extent to which temporary or minimal psychological conditions limit major life activities, the Legislature did not intend for the FEHA to deviate from the ADA on the issue of duration, which the federal regulations state should be taken into account in determining whether a plaintiff is disabled for purposes of the ADA. Although the clarification regarding mitigating measures was undoubtedly one purpose of the Pop-pink Act, the letter to Assembly Member Kuehl also states that the bill “would amend the Fair Employment and Housing Act to clarify that California state disability law is independent of and broader than the federal Americans with Disability Act of 1990(ADA).” (Letter from FEHC to Kuehl of 4/10/00 at 1.) Defendant argues that since the Poppink Act expressly stated that it was parting ways with federal law on the issue of mitigating measures, the Legislature knew how to eliminate the effects of federal law when it so chose. Since the Poppink Act did not address the issue of the durational element of “disability,” the argument runs, the Legislature must not have intended to break with the federal regulation’s use of duration as a factor for determining whether a plaintiff is disabled. However, Plaintiff argues that the Legislature’s failure to address the durational issue indicates that the Legislature did not intend for duration to be a factor in determining whether a plaintiff is disabled. Plaintiff reasons that since the Legislature had the federal model before it, which takes duration into account in determining whether an employee is substantially limited in a major life activity, the Legislature could have chosen to follow the federal model and include duration as a factor in determining whether an employee is limited in a major life activity for purposes of the FEHA. Since the Legislature did not choose to include duration as a factor, and since the FEHA definition of “disability” is intended to be broader than the ADA definition, the Legislature did not intend for duration to be a factor in determining whether a plaintiff is disabled for purposes of the FEHA. Given that the California Supreme Court has held that the ADA’s “substantial limitation” test does not apply to the FEHA, Plaintiff has the better of this argument, and Defendant has certainly not put forth sufficient evidence to establish that the Legislature intended to institute a durational requirement in establishing that a defendant is disabled under the FEHA. In addition, Defendant asserts that the Poppink Act actually added a limitation to the requirements for a mental condition to be considered a “disability.” In order to be considered a disability, a mental condition must “limit” participation in a major life activity. Prior to the Poppink Act, the FEHA did not contain this requirement. (State Personnel Board Enrolled Bill Report, AB 2222 at 3.) The State Personnel Board cited Swenson v. County of Los Angeles, 75 Cal.App.4th 889, 89 Cal.Rptr.2d 572 (1999), a case applying the old FEHA standard, for the proposition that application of the old standard “may very well lead to a finding that just about everyone in the work place is mentally disabled, as most employees experience some degree of stress, depression, etc.” (State Personnel Board Enrolled Bill Report, AB 2222 at 3.) The State Personnel Board asserted that the Poppink Act would “clear up this ambiguity.” However, it appears that the addition of this requirement that the mental condition “limit” participation in a major life activity was intended simply to require that the same standard of “limitation” of a major life activity that applies to physical disabilities would apply to mental disabilities. The State Personnel Board did not state that no temporary mental conditions would constitute “disabilities” under the Poppink Act, and stressed the fact that the FEHA was intended to provide broader protection than the ADA. (State Personnel Board Enrolled Bill Report, AB 2222 at 4.) (pointing out that the FEHA requires that “the condition need only make achievement ‘difficult,’ ” unlike the ADA, which requires that a condition “substantially limits” a major life activity). Ultimately, the State Personnel Board avoided taking a position on the precise limits of what types of conditions make major life activities “difficult,” stating that “[t]he courts will ultimately have to determine just how much lower a standard the ‘difficult’ language creates, however, there is little doubt that the FEHA will provide coverage to significantly more individuals than it previously has.” (State Personnel Board Enrolled Bill Report, AB 2222 at 4.) Defendant’s argument boils down to an assertion that the Legislature could not possibly have intended for temporary ailments to constitute “disabilities” under the FEHA, because this would mean that every citizen in California who suffered from a cold, the flu, or the degree of stress or depression that most employees in the workplace experience would be “disabled” under the FEHA, and this would be “an absurd result.” However, the mere fact that a statute is “absurd” does not preclude a finding that it is what the Legislature intended, especially since Defendant does not seem to have a textual foothold for the proposition that the Legislature intended to include a durational requirement in its definition of “disability.” The Court declines to draw such a conclusion based on the Legislature’s silence, especially in light of the Legislature’s specific instructions in section 12926.1 that the FEHA definition of “disability” is to be construed more broadly than the definition of “disability” under the ADA. In addition, Plaintiff argues that the conditions listed in Defendant’s parade of horribles might be so minor as to not constitute a limitation on a major life activity, but that Plaintiffs condition, consisting of an adjustment disorder with mixed anxiety and a depressed mood with psychological factors affecting his medical condition including aggravating headaches and gastrointestinal distress, did constitute a limitation on a major life activity by making working difficult. Plaintiff points to Dr. Bloch’s statements that Plaintiff was “significantly depressed” and that the “degree of depression at present [was] such that it greatly limit[ed] this man’s ability to engage in the goal directed activities that would be expected of any employee.” (Decl. of Bloch at ¶¶ 3-4, 8). The Court finds that a reasonable jury could be persuaded to find that Plaintiffs condition constituted a limitation on a major life activity. Thus, the Court cannot hold, as a matter of law, that Plaintiff cannot establish that he is “disabled” for purposes of FEHA, and the trier of fact will need to determine whether Plaintiffs condition, although temporary, constituted a disability. C. Failure to Provide a Reasonable Accommodation for a Disability in Violation of Cal. Gov’t Code § imo(m) 1. The FEHA’s Relationship to the ADA Though the FEHA predates the Americans with Disabilities Act of 1990 (the “ADA”), the California Legislature significantly amended the FEHA in 1992, modeling it after the ADA. See Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, 1025, 130 Cal.Rptr.2d 662, 63 P.3d 220 (2003). Accordingly, where “the particular provision in question in the FEHA is similar to the one in the ADA, the courts have looked to decisions and regulations interpreting the ADA to guide construction and application of the FEHA.” Hastings v. Dep’t of Corrections, 110 Cal.App.4th 963, 973, 2 Cal.Rptr.3d 329 (2003). Accord Allen v. Pac. Bell, 348 F.3d 1113, 1114 n. 1 (9th Cir.2003); Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128, 1133 n. 6 (9th Cir.2001); Finegan v. County of Los Angeles, 91 Cal.App.4th, 1, 7, 109 Cal.Rptr.2d 762 (2001). However, “in a number of instances FEHA’s anti-discrimination provisions provide even greater protection to employees” than does the ADA. Cripe, 261 F.3d at 896; see, e.g., Cal Gov’t Code § 12926.1 (explicitly stating that the FEHA defines “disability” more broadly than does the ADA). 2. Section 129J/.0(m) Generally In turning to Plaintiffs causes of action, the Court first examines Plaintiffs FEHA claim for failure to accommodate in violation of California Government Code section 12940(m). The Court does so because this claim implicates many of the issues presented in Plaintiffs FEHA claim for discriminatory termination in violation of California Government Code section 12940(a) and Plaintiffs other claims. Section 12940(m) states in relevant part: It shall be an unlawful employment practice, unless based on a bona fide occupational qualification ... (m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision ... shall be construed to require an accommodation that is demonstrated by the employer ... to produce undue hardship to its operation. Cal. Gov’t Code § 12940(m). Section 12940(m) gives rise to a separate cause of action from the FEHA’s employment discrimination provision Section 12940(a). “Under the express provisions of the FEHA, the employer’s failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself.” Jensen, 85 Cal.App.4th at 256, 102 Cal.Rptr.2d 55. See also Perez v. Proctor & Gamble Mfg. Co., 161 F.Supp.2d 1110, 1119 (2001) (quoting Jensen); Bagatti v. Dep’t of Rehabilitation, 97 Cal.App.4th 344, 362, 118 Cal.Rptr.2d 443 (“Subdivision (m) ... defines a separate and distinct unfair employment practice independent of subdivision (a)”). In order to succeed on a FEHA claim for failure to accommodate, a plaintiff must show that he (1) has a disability of which the employer is aware, and (2) is a qualified individual. Cal. Gov’t Code § 12940(m). See Bryan, 307 F.Supp.2d at 1111; Perez, 161 F.Supp.2d at 1119; Jensen, 85 Cal.App.4th at 256, 102 Cal.Rptr.2d 55. Unlike for a claim for employment discrimination, a plaintiff need not establish that an adverse employment action was caused by the plaintiffs disability because, as stated, a FEHA claim for failure to accommodate is an independent cause of action. See Perez, 161 F.Supp.2d at 1119; Bagatti, 97 Cal.App.4th at 360-61, 118 Cal.Rptr.2d at 454-55; Jensen, 85 Cal.App.4th at 256, 102 Cal.Rptr.2d 55. If a plaintiff has a known disability and is a qualified individual, an employer cannot prevail on summary judgment “unless it establishes through undisputed facts that ... reasonable accommodation was offered and refused” or that it “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, 85 Cal.App.4th at 263, 102 Cal.Rptr.2d 55; see also Perez, 161 F.Supp.2d at 1122. Except in limited circumstances, an employee must initiate the interactive process. See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir.2001). As discussed above, a material issue of fact exists as to whether Plaintiff was disabled for purposes of FEHA. This means that, viewing the facts in the light most favorable to Plaintiff, the Court presumes that Plaintiff was disabled for purposes of Defendant’s Motion for Summary Judgment. 8. Whether Defendant Was Aware of Plaintiffs “Disability” Is a Question of Fact The Court first addresses the question of whether Defendant was on notice of the contents of Dr. Bloch’s report by virtue of the fact that it had been submitted to two claims administrators (Schempp and Skelton)in Defendant’s Risk Management Department. Because the agents that received Dr. Bloch’s report were involved with administering Defendant’s workers’ compensation claims, the relevant inquiry here requires more than just ascertaining whether the knowledge of Dr. Bloch’s report possessed by Defendant’s agents can be imputed to Defendant. Indeed, Defendant argues that it did not have knowledge of Dr. Bloch’s report because its agents (Sedgwick, Brundo, Schempp, and Skelton) were not obligated to disclose Dr. Bloch’s report or its contents to Defendant’s non-Risk Management employees and, moreover, were precluded contractually and by California Labor Code section 3762, as it existed prior to January 1, 2003, from doing so. California Labor Code section 3762 addresses disclosure of documents submitted in connection with workers’ compensation claims. Prior to January 1, 2003, § 3762 stated, in relevant part: (c) An insurer, third-party administrator retained by a self-insured employer pursuant to Section 3702.1 to administer the employer’s workers’ compensation claims, and those employees and agents specified by a self-insured employer to administer the employer’s workers’ compensation claims, are prohibited from disclosing or causing to be disclosed to an employer, any medical information, as defined in Section 56.05 of the Civil Code, about an employee who has filed a workers’ compensation claim, except as follows: (2) Medical information regarding the injury for which workers’ compensation is claimed that is necessary for the employer to have in order for the employer to modify the employee’s work duties. Cal. Labor Code § 3762(c)(2) (West 2002) (emphases added)-. This statute is applicable to the agents in question in that: (1) Sedgwick is a third-party administrator retained by a self-insured employer (Defendant) to administer Defendant’s workers’ compensation claims, and (2) Schempp and Skelton are employees specified by Defendant to administer Defendant’s workers’ compensation claims. Because neither Schempp nor Skelton disclosed information from Dr. Bloch’s report to anyone at Federal Express, Defendant would be deemed to have notice of the contents of the Bloch report only if: (1) Cal. Labor Code § 3762(c) did not prohibit Schempp and Skelton from disclosing Dr. Bloch’s recommendation to Defendant (i.e., Dr. Bloch’s recommendation was necessary for Defendant to have in order for Defendant to modify Plaintiffs work duties); and (2) principles of agency law dictate that, even though Plaintiff had not requested a modification of his work duties, Schempp’s and Skelton’s knowledge of Dr. Bloch’s recommendation is imputed to Defendant, or that Schempp and Skel-ton should have passed on the relevant information. In other wor