*1 Before the Court is a Motion for Summary Judgment filed by defendant Laboratory Corporation of America (“Defendant” or “Labcorp”). (Dkt. 21.) Plaintiff Bianca Magana (“Plaintiff”) filed an Opposition, and Defendant filed a Reply. (Dkts. 24-26.) Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds this matter appropriate for decision without oral argument.

I. Background

Plaintiff brings the instant action against Defendant for wage and hour violations, unlawful discrimination, and other claims. On February 28, 2008, Defendant employed Plaintiff as a full-time Patient Service Technician in Torrance, California. (Undisputed Fact “UF” 1.) As a condition of employment, Plaintiff signed several meal and rest break obligation acknowledgments. (UF 2, 4, 5.) The acknowledgments stated that Plaintiff is required to take her 30-minute meal break and 10-minute rest break in accordance with state laws. (Id.) Defendant also has a formal policy forbidding false clock punches that do not reflect actual hours worked, prohibits employees from clocking out for lunch where they do not actually take a lunch break, and proscribes working off-the-clock. (UF 8.)

In 2013, Plaintiff transferred to Defendant's Compton facility. (UF 6.) She was the sole employee at the site for several years. (Id.) Initially, the site was not busy and Plaintiff was able to take her breaks. (Plt.'s Depo. 71:5-15 (“Q: When you first began in Compton, the PSC was not very busy, and you were able to take your lunch and breaks when you were supposed to.... A: Correct.”).) Plaintiff alleges the location later became very busy and she was unable to take her breaks due to under-staffing and a heavy workload. (Id.; UF 9.) Plaintiff did not receive authorization to skip her meal breaks. Instead, Plaintiff would clock out for lunch, work through the lunch break, and then clock back in. (Plt.'s Depo 60:15-20 (“Q: Does that mean that during the time that you worked in Compton, it was your regular practice to clock out for lunch and clock back in from lunch even if you did not take lunch? Is that correct? A: Yes.”); id. at 61:2-5 (“Q: What was the most number of times in one week that you were not able to take a lunch while you were working in Compton? A: Almost every day.”).) Plaintiff has admitted that Defendant did not instruct or encourage her to misreport her time in this manner. (Plt.'s Depo 60:11-14 (“Q: ... Did anyone ever tell you that you should — that you had to clock in or out even if you don't take a lunch? A: Nope. No.”).)

When Plaintiff reported the issue to her supervisor, he offered her a transfer, and then staffed a second employee to work with her. (UF 9, 10; Plt.'s Depo. 65:15-67:21 (“Q: ... Did you ever tell your supervisor while you were in Compton that you were clocking out for lunch but not actually stopping work? A: I did [tell] them.... He goes, ‘If you cannot handle it, I could transfer you somewhere else.’ ”); id. at 70:7-13 (“Q: When you finally spoke to somebody about it, it sounds like this person made some kind of changes.... A: Yes. Q: What were [ ] the changes? A: They brought me another phlebotomist.”).) Plaintiff has not specified when she first informed her supervisor that she was working through her breaks. After a second employee joined the Compton facility, Plaintiff stopped skipping her meal breaks, but she alleges that she continued to skip rest breaks. (UF 11; Plt.'s Depo. 70:23-71:1 (“Q: Once Savannah started, were you able then to take breaks and lunch? A: Yeah, but we don't take breaks. I'm sorry, not breaks. Just lunch.”); id. at 71:16-72:1.)

*2 In November 2018, Defendant closed the Compton site and Plaintiff transferred to Lynwood. (UF 13.) At the new site, Plaintiff was stressed and anxious due to issues with co-workers and a heavy workload. (UF 14-18.) On March 26, 2019, Plaintiff visited her healthcare provider, Kaiser Permanente (“Kaiser”), due to stress and anxiety. (Id.) Plaintiff obtained a Work Status Report, which directed that Plaintiff be excused from work for three days. (Id.) Plaintiff subsequently visited Kaiser on several occasions during April and May 2019 and obtained Work Status Reports that directed Plaintiff be excused from work. (Id.) Plaintiff was suffering from “major depressive disorder, single episode, moderate, occupational problems or work circumstances,” but the Reports stated that she would return to work in full capacity at the end of her leave. (Id.) Plaintiff was excused from work as directed. (Id.)

On June 13, 2019, Plaintiff had a verbal disagreement with a coworker at the Lynwood site. (UF 20.) Supervisor Zachary Rankin conducted an investigation of the incident by interviewing Plaintiff, her coworker, and a second employee who witnessed the disagreement. (UF 21.) The coworker and second employee both submitted written statements to Rankin, alleging that Plaintiff used profanity within earshot of patients. (UF 22.) Labcorp policy explicitly provides that “[i]nappropriate language [and] speaking in an abusive, demeaning, loud manner will not be tolerated.” (UF 23-27.) Rankin concluded that Plaintiff's actions constituted workplace misconduct in violation of Labcorp policy, and recommended her termination. (Id.) Employee Relations Specialist Claire Acevedo reviewed Rankin's recommendation and agreed with him. (Id.) Plaintiff was terminated on June 28, 2019. (Compl. ¶25.)

On August 21, 2020, Plaintiff filed her Complaint in Los Angeles Superior Court, Case No. 20STCV31768. (Dkt. 1.) Defendant filed a Notice of Removal with this Court based on diversity jurisdiction. (Id. at ¶3.) Plaintiff raises claims for relief under California Labor Code, Fair Employment and Housing Act (“FEHA”), and other state laws: (1) unpaid missed rest breaks; (2) unpaid missed meal breaks; (3) failure to pay all overtime wages earned; (4) failure to pay minimum wage and pay for all wages earned; (5) failure to maintain accurate payroll records; (6) failure to pay wages upon separation; (7) wrongful termination in violation of public policy; (8) unlawful discrimination; (9) retaliatory termination; (10) failure to accommodate; (11) failure to engage in the interactive process; (12) failure to pay for sick days; (13) violation of Cal. Lab. Code § 1102.5; and (14) violation of Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq.

II. Legal Standard

Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 324. The court does “not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir 1999). A “ ‘scintilla of evidence,’ or evidence that is ‘merely colorable’ or ‘not significantly probative,’ ” does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989) (emphasis in original, citation omitted).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631-32 (9th Cir 1987). The court must view the inferences drawn from the facts “in the light most favorable to the nonmoving party.” Id. at 631 (citation omitted). Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 630-31. However, when the non-moving party's claims are factually “implausible, that party must come forward with more persuasive evidence than would otherwise be [required] ....” California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988) (citation omitted). “No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.” Id. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

III. Analysis

*3 Plaintiff retained an expert, Aaron Woolfson, to analyze Defendant's payroll documents and provide testimony in support of Plaintiff's wage and hour claims. (Mirabel Decl. ¶¶15-16.) Plaintiff's counsel declares that Woolfson prepared his report on July 19, 2021. (Id.) However, Plaintiff did not timely disclose Woolfson as an expert and “submit[ted] [Woolfson's] report in support of her opposition without prior notice or explanation.” (Reply at 5 (citing Kondon Decl. ¶2 (“[N]either I nor my colleagues ... have received any form of expert witness designations or disclosures from Plaintiff or her counsel prior to the filing of her July 19, 2021 summary judgment opposition.”).) “As a result of Plaintiff's untimely disclosure, ... [Defendant] has been unable to engage a rebuttal expert witness or meaningfully prepare a procedurally and substantively proper motion to strike and exclude the testimony of Plaintiff's expert consultant, Aaron Woolfson.” (Id.)

Under the Federal Rules of Civil Procedure, a party is required to disclose the identity of each expert it intends to use at trial well in advance of trial. See Fed. R. Civ. P. 26(a)(2). Under the Rules, “[t]hese disclosures shall be made at the times and in the sequence directed by the court.” Fed. R. Civ. P. 26(a)(2)(C). “In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial.” Id. Here, the Court issued a Civil Trial Scheduling Order on February 23, 2021, which set a trial date of October 5, 2021, and a discovery cutoff date of July 26, 2021. Pursuant to the Court's Civil Trial Scheduling Order, the discovery cutoff date is “the last date to complete discovery, including expert discovery, and the resolution of any discovery motions before the magistrate judge.” (Dkt. 16 (Scheduling Order) at 1-2.) With respect to expert witnesses, the Court further ordered:

(Id. (emphasis added).) Accordingly, the Court provided “other directions” for the deadline to designate experts, and established a deadline of May 31, 2021. Even under the Federal Rules, had the Court not set an earlier date, the last day that Plaintiff could have disclosed Woolfson as an expert was July 7, 2021. Plaintiff's disclosure of Woolfson on July 19, 2021, through the inclusion of his declaration with the Opposition, was several weeks late under both the Federal Rules and the Court's Civil Trial Scheduling Order.

Failure to comply with the Rule 26(a)(2) deadlines for disclosing an expert, or the Court's own deadlines for doing so, authorizes the Court to exclude the expert. See Fed. R. Civ. P. 37(c)(1). This is a “self-executing” and “automatic” sanction. See Fed. R. Civ. P. 37 advisory committee notes (1993 amendments). It is imposed unless (1) there is a substantial justification for the failure; or (2) the failure is harmless. See Fed. R. Civ. P. 37(c)(1). District courts have “particularly wide latitude ... to issue sanctions under Rule 37(c)(1).” Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

Here, Plaintiff has offered no justification for her failure to disclose Woolfson, and no argument as to why the late disclosure is harmless. The only way that Defendant could elicit the discovery needed to effectively oppose Woolfson's expert opinion would be for the Court to reopen discovery. “Disruption to the schedule of the court and other parties in that manner is not harmless.” Wong v. Regents of Univ. of California, 410 F.3d 1052, 1062 (9th Cir. 2005). Accordingly, the Court hereby sustains Defendant's objections to Woolfson's declaration to the extent that it contains expert testimony. See Taser Int'l, Inc. v. Bestex Co., 2007 U.S. Dist. LEXIS 80775, 2007 WL 2947564 (C.D. Cal. Feb. 9, 2007); Cont'l Lab. Prods., Inc. v. Medax Int'l, Inc., 195 F.R.D. 675, 676-77 (S.D. Cal. 2000) (striking affidavits of experts who were not disclosed until plaintiff filed its opposition to a motion for summary judgment); Quevedo v. Trans-Pac. Shipping, 1997 U.S. Dist. LEXIS 4745, at *5, 1997 WL 182293 (N.D. Cal. Apr. 7, 1997) (“Because plaintiff has failed to justify his disregard for the Court's [Pretrial Scheduling Order], the untimely report of Captain Bishop will not be considered for purposes of this motion for summary judgment”).

*4 Defendant has a filed 57-pages of evidentiary objections to Plaintiff's Opposition. (Dkt. 26-3.) To the extent that Defendant has objected to evidence that the Court did not rely on in rendering this order, those objections are overruled as moot. See American Guard Services, Inc. v. First Mercury Insurance Co., 2017 WL 6039975, at n. 5 (C.D. Cal. Apr. 14, 2017). To the extent that Defendant has objected to the Woolfson declaration and untimely expert testimony contained therein, the Court sustains those objections as discussed in the previous section. Finally, the Court recognizes that several of Defendant's objections are based on Plaintiff's declaration submitted in support of her Opposition. Defendant raises concerns that Plaintiff declared facts that directly contradict her prior deposition testimony. In particular, Plaintiff declares that “[she] let [her supervisor Kerrigan] know about lack of rest and meal breaks” and he “still allowed [her] to work alone knowing [she] could not take [her] rest and meal breaks.” (Plt.'s Decl. ¶¶4-7.) Kerrigan “authorized [her] working through [her] breaks [and] ... asked [her] to clock out during [her] scheduled lunch break, but to continue to work off-the-clock if there were patients to attend to, then clock back in at the end of [her] scheduled lunch break. He said this is mandatory.” (Id.)

This directly contradicts Plaintiff's prior testimony that Defendant did not instruct or encourage her to inaccurately report her time, or to skip a meal break without reporting it in her time entries. (Plt.'s Depo 60:1-14 (“Q: ... Did anyone ever tell you that you should — that you had to clock in or out even if you don't take a lunch? A: Nope. No.”).) Plaintiff's declaration also contradicts her prior testimony that, when she informed her supervisor that she was skipping her breaks, her supervisor offered to transfer her to a different facility. (Plt.'s Depo. 65:15-67:21 (“Q: ... Did you ever tell your supervisor while you were in Compton that you were clocking out for lunch but not actually stopping work? A: I did [tell] them.... He goes, ‘If you cannot handle it, I could transfer you somewhere else.’ ”).) Plaintiff does not offer any other evidence, such as a declaration or deposition testimony from Kerrigan, to corroborate her declaration.

“Contradictory declaration statements are governed by the sham affidavit rule ... establishing that ‘a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.’ ” Cleveland v. Groceryworks.com, LLC, 200 F. Supp. 3d 924, 941 (N.D. Cal. 2016) (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). The Ninth Circuit has explained that “if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Kennedy, 952 F.2d at 266. The Court finds that Plaintiff's declaration constitutes a sham declaration to the extent that it directly contradicts her prior deposition testimony. Plaintiff has not provided any explanation—e.g., refreshed recollection, honest mistake—for the sudden change in her story regarding whether a supervisor instructed her to work through meal periods and falsify her time records. See Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (“[T]he nonmoving party is not precluded from elaborating on, explaining or clarifying prior testimony elicited by opposing counsel on deposition”) (citation omitted). Therefore, the Court sustains Defendant's objections to those portions of Plaintiff's declaration and will disregard those portions of Plaintiff's declaration in ruling on the Motion.

Plaintiff raises claims for (1) unpaid missed rest breaks, in violation of Cal. Lab. Code § 226.7(a), and (2) unpaid missed meal breaks, in violation of Cal. Lab. Code § 226.7(a) and § 512. Section 226.7 imposes liability “[i]f an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission.” Section 512(a) likewise states that “[a]n employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.” “The word ‘provide’ means ‘to supply or make available.’ It does not suggest any obligation to ensure that employees take advantage of what is made available to them.” Brown v. Fed. Express Corp., 249 F.R.D. 580, 585 (C.D. Cal. 2008). “[M]aking employers ensurers of meal breaks [ ] would be impossible to implement for ... large employers [who] may have hundreds or thousands of employees working multiple shifts.” White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1088 (N.D. Cal. 2007).

*5 An employer satisfies its obligations under Section 512(a) and Wage Order No. 5 “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry.” Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (2012). “Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.” Id. In addition, “an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” Id.

For rest breaks, Wage Order 4 requires employers to “authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” Wage Order 4, § 12(A). “Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.” Id. “Employers are [ ] subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.” Brinker, 53 Cal. 4th at 1031.

Plaintiff signed multiple forms regarding her right to receive meal and rest breaks. (UF 2, 4, 5.) For example, Plaintiff signed a “Meal and Rest Obligation Acknowledgment” on February 28, 2008 in which she certified her understanding that: (1) Defendant's policies and state laws require that she take a meal period of no less than 30 minutes whenever she exceeds five hours of work, and (2) Plaintiff is entitled to a rest period at the rate of 10 minutes net rest for every four hours of work or major portion of four hours. (Kondon Decl., Ex. F.) The Acknowledgment also states: “If I am denied a meal or rest period to which I am entitled, or if I fail to take a meal or rest period as required by law and employer's policies, I agree to notify my department manager within 24 hours so that the matter can be fully and carefully investigated and appropriate corrective action can be taken.” (Id.) Plaintiff signed similar acknowledgments on August 8, 2011 and April 20, 2012, shortly before transferring to the Compton facility. (Kondon Decl., Ex. I, Acevedo Decl., Ex. G.) The April 2012 acknowledgment states:

*6 (Acevedo Decl., Ex. G (emphasis in original).)

Despite Defendant's formal policy, Plaintiff claims to have regularly misreported her time by clocking out for lunch, working through her lunch break, and then clocking back in. “When the defendant's off-the-clock policy disavows such work, as consistent with state law, the employees clocking out creates a presumption they are doing no work.” Amiri v. Cox Communs. Cal., LLC, 272 F. Supp. 3d 1187, 1197 (C.D. Cal. Sept. 27, 2017). Defendant “is not obligated to police meal breaks and ensure no work thereafter is performed.” Brinker, 53 Cal. 4th at 1040. “Requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who, as with Plaintiffs, do not appear to remain in contact with the employer during the day.” Brown, 249 F.R.D. at 585 (citing White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1088-89 (N.D. Cal. 2007)). Moreover, Plaintiff has admitted that Defendant did not instruct or encourage her to misreport her time in this manner. Compare Manigo v. Time Warner Cable, Inc., 2017 U.S. Dist. LEXIS 184046, at *13-14, 2017 WL 5054368 (C.D. Cal. Oct. 17, 2017) (granting summary judgment to employer where “Plaintiffs uniformly testified that supervisors told them they must comply with their break schedules even if they were busy ... [and they] admitted at their depositions that supervisors never specifically instructed them to skip breaks”).

Plaintiff alleges that she worked through her breaks due to under-staffing and a heavy workload at the Compton location. (Opp. at 12-13.) However, “courts have not hesitated to grant summary judgment where plaintiffs have skipped breaks of their own accord due to pressure they feel to complete their job in a given amount of time, absent evidence that their employer took action to prevent or impede employees from taking their meal or rest breaks.” Cleveland v. Groceryworks.com, LLC, 200 F. Supp. 3d 924, 946 (N.D. Cal. Aug. 4, 2016) (collecting cases); see also Yates v. Health Servs. Advisory Grp., 2017 U.S. Dist. LEXIS 118178, at *30-32, 2017 WL 3197228 (C.D. Cal. July 24, 2017) (collecting cases). For example, in Plaisted v. Dress Barn, Inc., the district court granted summary judgment to Dress Barn because Plaisted chose to work through breaks because of her heavy workload. 2013 U.S. Dist. LEXIS 10501, 2013 WL 300913 (C.D. Cal. Jan. 25, 2013). Similar to this action, Dress Barn had a policy prohibiting off-the-clock work, employees were required to accurately report all hours work, and Plaisted signed an acknowledgment of Dress Barn's meal and rest break policies. Id. at *7-8. No one in Dress Barn's management ever told Plaisted to work without recording her time. Id. Like Plaintiff in this action, “Plaisted argue[d] [ ] that she essentially had too much work to do in too little time, and that pressure somehow necessitated her to work through her rest or meal breaks, or both.” Id. at *9. However, the district court rejected this argument, and granted summary judgment to Dress Barn. The district court reasoned that Dress Barn's formal policy conformed to California law and “[w]hile [Plaisted] might have felt overwhelmed by running a store and managing employees, Dress Barn did not have a legal obligation to ‘ensure that [Plaisted] [did] no work’ during her breaks.... The choice, as the evidence shows, was all hers.” Id. at *11-12 (citing Brinker). This Court finds that the same analysis applies here.

*7 The Court is unpersuaded by Plaintiff's conclusory allegations that Defendant's formal policies regarding breaks were undercut by a widespread informal practice of employees foregoing their breaks. (Opp. at 12.) Plaintiff has not provided sufficient evidence to support this position. See Luna et al. v. Chanel, Inc., 2016 U.S. Dist. LEXIS 187653, at *9-10, 2016 WL 7637657 (C.D. Cal. Apr. 20, 2016) (“Beyond their own unique experience, Plaintiff fails to show a common policy of failing to pay overtime wages due to employees' working off the clock.”). Once Plaintiff put Defendant on notice about her inability to take breaks, Defendant staffed a second employee at the Compton facility. Plaintiff concedes that, after the second employee joined her, she no longer missed her meal breaks. Although Plaintiff alleges that she continued to skip her rest breaks, she has not presented evidence that she made those choices because of Defendant's conduct.

Even construing all of the evidence presented in the light most favorable to Plaintiff, the Court finds that there is no genuine issue of material fact regarding Defendant's meal and rest break policies, or any pressure by Defendant to work off-the-clock. Therefore, the Court grants Defendant summary judgment on these claims. See Manigo, 2017 U.S. Dist. LEXIS 184046, at *13-14, 2017 WL 5054368 (granting summary judgment to employer where “Defendants' official policies clearly required dispatchers to inform management if they could not adhere to their schedules—including breaks—[and] the evidence demonstrates that Plaintiffs did not comply with this directive.”); Reece v. Unitrin Auto and Home Insurance Company, 2013 U.S. Dist. LEXIS 9311, at *15-16, 2013 WL 245452 (N.D. Cal. Jan. 22, 2013) (granting summary judgment to employer where “Plaintiff contend[ed] that he was unable to take meal and rest breaks due to his demanding schedule ... [and] the sheer volume of plaintiff's work” in part because “Defendant has presented the Court with a wealth of evidence that Defendant, through its policies and actions, allowed—and in fact required—Plaintiff to take the meal and rest break”).

Plaintiff raises claims for (1) failure to pay all overtime wages earned, in violation of Cal. Lab. Code § 510, § 1194, and § 1194.2, and (2) failure to pay minimum wage and pay for all wages earned, in violation of Cal. Lab. Code § 204, § 1194, and § 1197. Plaintiff argues: “[g]iven her working hours exceeded eight hours per day, those uncompensated statutory breaks added to Plaintiff's overtime hours which need to be counted for.” (Opp. at 14-15.) The Court has concluded that there is no genuine issue of material fact regarding her meal and rest break claims. Therefore, her claims for unpaid overtime and/or minimum wages fail on these grounds. Plaintiff also argues that her “bonuses were not taken into consideration for overtime calculation.” (Opp. at 14-15.) However, this was not specifically alleged in the Complaint. (Compl. ¶¶53, 57 (solely alleging that “Plaintiff worked more than 8 hours a day and more than 40 hours a week and was not paid all the overtime wages she was entitled to.”).) Plaintiff did not pursue this theory in discovery. (Reply at 10.) “On a motion for summary judgment, [Plaintiff's] allegations and theories of liability are confined to those found in the operative complaint.” Besser v. Chapple, 2011 U.S. Dist. LEXIS 13146, at *15, 2011 WL 346506 (C.D. Cal. Jan. 26, 2011). “[T]he complaint gave [Defendant] no notice of the specific factual allegations presented for the first time in [Plaintiff's] opposition to summary judgment.” Pickern v. Pier 1 Imps. (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006). And Plaintiff did not amend the complaint to give Defendant adequate notice. Therefore, the Court declines to consider Plaintiff's new theory of liability. Without more, Plaintiff has failed to present sufficient evidence in support of her claims for unpaid overtime and unpaid minimum wages. Accordingly, the Court grants summary judgment to Defendant on these claims.

*8 Plaintiff raises claims for (1) failure to maintain accurate payroll records, in violation of Cal. Lab. Code § 226(a), § 1174, and § 1198.5, (2) failure to pay wages upon separation, in violation of Cal. Lab. Code §§ 201–203, and (3) violation of California UCL, Cal. Bus. & Prof. Code § 17200, et seq. Because these claims are derivative of the wage and hour claims discussed above, (see Opp. 15-16), the Court finds that they fail as well. See Porch v. Masterfoods USA, Inc., 685 F. Supp. 2d 1058, 1075 (C.D. Cal. Sept. 22, 2008) (“[W]hen a record keeping claim depends upon overtime and break claims that were denied, the record keeping claim should also be denied.”); Falk v. Children's Hosp. L.A., 237 Cal. App. 4th 1454, 1468 (2015) (“[W]aiting time penalty claims are derivative of the unpaid wages/overtime and meal and rest period claims.”); Hamilton v. Wal-Mart Stores, Inc., 2019 U.S. Dist. LEXIS 77699, at n.11, 2019 WL 1949457 (C.D. Cal. Mar. 4, 2019) (“Plaintiffs' unfair competition claim is derivative of Plaintiffs' meal period and overtime claims”); Batres v. HMS Host USA, Inc., 2012 U.S. Dist. LEXIS 200261, at *, 2012 WL 13049884 (C.D. Cal. Sept. 25, 2012) (UCL claims were “derivative of [ ] claims for failure to pay wages, failure to timely pay wages due at termination, and failure to provide properly itemized waged statements.”). Accordingly, the Court grants Defendant summary judgment on these claims.

Plaintiff raises a claim for unlawful discrimination under California's FEHA based on disability and age. Under FEHA, it is unlawful “[f]or an employer, because of ... mental disability [or] age ... of any person ... to discharge the person from employment.” Cal. Gov't Code § 12940(a). “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment.” Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

In applying the McDonnell Douglas burden-shifting framework, first, the plaintiff must demonstrate a prima facie case of discrimination; second, if the plaintiff succeeds, the defendant must “articulate some legitimate, nondiscriminatory reason” for its actions; finally, if the defendant meets its burden, the plaintiff must demonstrate “that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” See Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 802; Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). “Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253). The degree of proof to demonstrate a prima facie case is minimal. Coghlan v. Am. Seafoods Co., LLC., 413 F.3d 1090, 1094 (9th Cir. 2005).

As a preliminary matter, the Court finds that Plaintiff has not demonstrated a prima facie case of age discrimination. To establish a prima facie case of age discrimination under FEHA, “a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” Sandell v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 321 (2010). Plaintiff was 49 at the time she was terminated, and she argues in a conclusory fashion that her employer had expressed bias against “older workers.” (Opp. at 19.) But Plaintiff has not presented any evidence to support this claim. Moreover, there is no evidence to establish that Plaintiff was ultimately replaced by a younger employee, or that she was terminated based on her age. (Acevedo Decl. 14:7-9 (“Q: Do you know how old Magana was when she got fired? A: No.”).) Without more, Plaintiff has not carried her burden in establishing a prima facie case of age discrimination.

*9 The parties dispute whether Plaintiff has demonstrated a prima facie case of disability discrimination. On this claim, Plaintiff must show she (1) suffered from, or was regarded as suffering from, a disability; (2) could perform the essential duties of the job with or without reasonable accommodations; and (3) was subjected to an adverse employment action because of the disability or perceived disability. Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 797 (N.D. Cal. 2015) (citing Wills v. Super. Ct., 194 Cal. App. 4th 312, 328-29 (2011)). Under FEHA, a “mental disability” includes “any mental or psychological disorder or condition, such as ... emotional or mental illness ... that limits a major life activity.” Jadwin v. County of Kern, 610 F. Supp. 2d 1129, 1176 (E.D. Cal. 2009) (citing Cal. Gov. Code § 12926(j)(1)). This includes “chronic or episodic conditions” such as clinical depression. Id. (citing Cal. Gov. Code § 12926.1(c)); see also Auburn Woods I Homeowners Ass'n v. Fair Employment Hous. Comm'n, 121 Cal. App. 4th 1578, 1592-93 (2004) (“Numerous cases under state and federal law have held that depression and its related manifestations can meet the definition of disability under anti-discrimination laws.”) (collecting cases).

Plaintiff has presented evidence that she was experiencing stress and anxiety, visited her healthcare provider, and was diagnosed with “major depressive disorder, single episode, moderate, occupational problems or work circumstances.” (UF 14-18.) She received several Work Status Reports that directed Defendant to excuse her from work in April and May 2019, and she was fired shortly thereafter in June 2019. Plaintiff contends that this evidence is sufficient to establish a prima facie case of disability discrimination. Defendant counters that “[a]n employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a disability under FEHA.” Striplin, 2016 U.S. Dist. LEXIS 39680, at *15, 2016 WL 1165873 (citing Higgins-Williams v. Sutter Med. Found., 237 Cal. App. 4th 78, 84 (2015)) (collecting cases). Defendant relies in part on Plaintiff's medical records, which state that she “ha[d] experienced increased stress at work since transfer[ ] [ ] to Lynwood location” and her “primary stress [was] due to supervisor's style.” See Acevedo Decl., Ex. 1 (Kaiser Medical Records).

The parties also dispute whether Defendant had knowledge of Plaintiff's alleged disability at the time she was terminated. (Compare Opp. at 18-19 with Reply at 11-12.) “An adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer.” Striplin v. Shamrock Foods Co., 2016 U.S. Dist. LEXIS 39680, at *15, 2016 WL 1165873 (C.D. Cal. Mar. 24, 2016) (collecting cases). Plaintiff maintains that she submitted her Kaiser paperwork to Defendant, and that her colleagues were aware of her disability. (Opp. at 9, 18-19; Plt.'s Depo. 105:21-25, 110:5-111:24.) Defendant counters that Plaintiff's Work Status Reports “do not appear in Labcorp's files” and “[t]he Labcorp employees who played a role in the termination of Plaintiff's employment did not know or regard Plaintiff as disabled.” (Mot. at 21; see also Acevedo Depo. 14:10-16:5.)

Even if Plaintiff were able to establish a prima facie case of age or disability discrimination, the Court still finds that Defendant had a legitimate, non-discriminatory basis for terminating her employment. The evidence in the record indicates that Defendant terminated Plaintiff because she used profanity during a verbal disagreement with a coworker. Supervisor Rankin conducted an investigation of the incident and obtained written statements from two employees that “confirm[ed] [Plaintiff's] use of vulgar language in front of patients and threatening behavior.” (UF 22-27; Rankin Decl., Ex. A.) Rankin drafted a Corrective Action Assessment that stated: “I asked [Plaintiff] if there was any profanity used at any point. She stated that she did not want to lie and admitted that she told Naomi ‘If I get fired, f**k it. You're going down with me.’ ” (Id.) Plaintiff knew her employment was conditioned upon compliance with Labcorp policy, including that “[i]nappropriate language [and] speaking in an abusive, demeaning, loud manner will not be tolerated.” (Id.) Rankin also noted that Plaintiff was already under review for a verbal warning regarding a HIPPA violation in December 2018. (Id.)

*10 Ultimately, Rankin determined that Plaintiff had violated Labcorp policy by using profanity and recommended her termination. (Id.) Employee Relations Specialist Claire Acevedo reviewed Rankin's findings and agreed that Plaintiff should be terminated for using profanity. (Id.; see also Acevedo Depo. 10:8-11, 11:6-12:14 (“Q: Why did you decide not to talk to Bianca Magana to hear her side? A: Because Zach said he did that already. Q: Did you completely rely on Zach Rankin findings? A: Yes .... Q: Isn't it part of your job also to investigate the contents of the report, to check the accuracy of the statements? A: No. Zach does that.”), 35:25-37:5, 41:12-22.) The decision to terminate Plaintiff was consistent with another prior disciplinary action in which Defendant terminated an employee at a different facility for using profanity in front of patients. (Rankin Decl., Ex. A.) For these reasons, Defendant has presented a legitimate, non-discriminatory reason for terminating Plaintiff.

In addition, the Court finds that Plaintiff has not presented sufficient evidence to rebut Defendant's non-discriminatory basis for terminating her. Plaintiff may demonstrate pretext either directly, by persuading the Court that discrimination most likely motivated the defendant, or indirectly, by showing that the defendant's proffered explanation is unworthy of credence. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). An explanation is considered unworthy of credence if it is internally inconsistent or otherwise not believable. See Chuang v. Univ. of Cal. Davis, Bd. of Tr., 225 F.3d 1115, 1127 (9th Cir. 2000). Bare assertions of “discriminatory motivation and intent ... are inadequate, without substantial factual evidence, to raise an issue precluding summary judgment.” Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983); see also Reeves, 530 U.S. at 148.

Here, Employee Relations Specialist Acevedo testified that she was not concerned about the credibility of the witness statements that Supervisor Rankin relied on to make his termination recommendation. (Acevedo Depo. 38:9-20 (“Q: Didn't it become a red flag for you that maybe you should talk to Naomi Sanchez, make sure she's telling the truth in this statement? A: No.”).) Plaintiff's criticisms of Defendant's termination decision are “unavailing” because, in judging whether an employer's “proffered justification was ‘false,’ it is not important whether they were objectively false .... Rather, courts ‘only require that an employer honestly believed its reasons for its actions, even if its reason is ‘foolish or trivial or even baseless.’ ” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (quoting Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001)). Without more, Plaintiff has failed to present sufficient evidence that Defendant's termination decision is unworthy of credence or otherwise pretextual. For these reasons, the Court grants summary judgment to Defendant on the unlawful discrimination claim.

Plaintiff raises claims for failure to accommodate and failure to engage in the interactive process. “Under the express provisions of FEHA, the employer's failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself. Similar reasoning applies to ... an employer's failure to engage in a good faith interactive process to determine an effective accommodation, once one is requested.” Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 54 (2006) (citing Cal. Gov't. Code § 12940 (m), (n)). “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” Id. (citations omitted). “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” Id.

*11 Importantly, “[t]he interactive process of fashioning an appropriate accommodation lies primarily with the employee. An employee cannot demand clairvoyance of his employer.” King v. United Parcel Service, Inc., 152 Cal. App. 4th 426, 442-43 (2007) (quotations and citations omitted). “It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee. Plaintiff therefore [is] obliged to tender a specific request for a necessary accommodation.” Id. (quotations and citations omitted).

Here, there is no factual evidence in the record that Plaintiff requested a disability accommodation from Defendant, or that Defendant denied her a reasonable accommodation, or that Defendant failed to engage in the interactive process. Plaintiff's generalized grievances about her workplace—e.g., her heavy workload, conflicts with co-workers, or other work-related stresses—all fall short of constituting a request for a disability accommodation. (See Opp. at 20 (“[Plaintiff] needed her supervisors to take her complaint about work stress more seriously and accommodate her.... they ignored her complaint”).) Moreover, Plaintiff has acknowledged that she “was able to still carry out her duties,” and her Work Status Reports all consistently stated that she would return to work in full capacity at the end of her leave. (Id.; UF 17, 18.) Without more, Plaintiff has failed to establish a genuine issue of material fact regarding these claims. Therefore, the Court finds that Defendant is entitled to summary judgment on these claims. See King, 152 Cal. App. 4th at 443 (holding employer had no duty to accommodate employee who returned to work with a doctor's note releasing him back to “regular duties and hours” and who admitted he was able to “get the job done”); ; Brown v. Constellation Brands, Inc., 2018 U.S. Dist. LEXIS 172084, at *34-35, 2018 WL 4849656 (E.D. Cal. Oct. 4, 2018) (“As Plaintiff did not request any accommodations for his abscess surgery, communicate any limitations, or even appear to have any limitations after he returned from surgery, CBI had no duty under FEHA to provide him an accommodation.”).

Plaintiff raises a claim for retaliatory termination under California's FEHA. To support this claim, Plaintiff must show that (1) she engaged in a “protected activity,” (2) that Labcorp subjected her to an adverse employment action, and (3) there was a causal link between the “protected activity” and Labcorp's action. See McRae v. Department of Corrections and Rehabilitation, 142 Cal. App. 4th 377, 386 (2006). “Plaintiff's claims for disability discrimination and retaliation under FEHA require application of the three-stage burden-shifting test established in McDonnell Douglas.” Elzeftawy v. Michael Baker Int'l, Inc., 2020 U.S. Dist. LEXIS 104457, at *9, 2020 WL 5802410 (C.D. Cal. June 15, 2020) (collecting cases); see also Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (same). Plaintiff argues: “Defendant clearly retaliated by terminating Plaintiff's employment after Plaintiff [took] a two month long leave. She was terminated due to her medical condition and her age.” (Opp. at 21.) Even assuming that Plaintiff could establish a prima facie case for FEHA retaliation, her claim would still fail because, as discussed above, Defendant had a legitimate, non-discriminatory reason for terminating Plaintiff. Moreover, Plaintiff has not presented sufficient evidence to rebut Defendant's stated basis as pretextual. Plaintiff's retaliation claim therefore fails under the \McDonnell-Douglas burden shifting analysis. The Court grants summary judgment to Defendant on this claim.

*12 Plaintiffs raises claims for (1) wrongful termination in violation of public policy, and (2) violation of Cal. Lab. Code § 1102.5, which “is a whistleblower statute... [intended] to encourage workplace whistle-blowers to report unlawful facts without fear of retaliation.” Thibodeau v. ADT Sec. Servs., 2018 U.S. Dist. LEXIS 16094, at *8, 2018 WL 637947 (S.D. Cal. Jan. 31, 2018). Both claims are analyzed under the McDonnell Douglas burden-shifting framework. See id.; see also Sako v. Wells Fargo Bank, N.A., 2015 U.S. Dist. LEXIS 111176, at *5, 2015 WL 5022307 (S.D. Cal. Aug. 21, 2015).

Plaintiff argues that “Defendant violated FEHA which is the basis for violating the public policy.... Plaintiff's complaints about her medical condition, along with her age, were the causes of the Defendant's discrimination against her.” (Opp. 21-22.) However, Plaintiff has not established that Defendant violated FEHA or any other constitutional or statutory provisions. For Plaintiff's Section 1102.5 whistleblower claim, she contends that “[s]he had complained about Labcorp being understaffed and there was too much work to be done and she had complained about another employee. Defendant terminated her because it believed Plaintiff would be complaining to authorities.” (Id. at 23.) However, Plaintiff fails to cite any specific evidence in support of this conclusory allegation. Even if Plaintiff were able to establish a prima facie case for whistleblower discrimination or wrongful termination in violation of public policy, her claims cannot survive the McDonnell Douglas burden-shifting analysis. As discussed above, Defendant had a legitimate, non-discriminatory reason for terminating Plaintiff, and Plaintiff fails to present sufficient evidence that Defendant's stated reason was pretextual. Therefore, the Court grants Defendant summary judgment on both of these claims.

Finally, Plaintiff claims that Defendant violated Cal. Lab. Code § 246(a) by not paying her for certain sick days. Specifically, Plaintiff's Opposition states: “Plaintiff claims she was not paid for her sick days. She was sick on March 28 and 29, 2019, but she was not paid for sick days for those two days.” The Opposition cites to Plaintiff's Declaration to support this assertion, but Plaintiff's Declaration states only that “I was not paid for several sick days.” (Magana Decl. ¶ 13.) Because the Declaration does not state the days for which Plaintiff did not receive sick pay, the evidence cited in the Opposition does not support a claim for unpaid sick days on March 28 and 29, 2019. Plaintiff has cited to no evidence in support of her contention that she was not paid sick pay on any particular day, and certainly not for the two days identified in her Opposition. Instead, the only evidence concerning those particular days is Defendant's timekeeping records, which state that Plaintiff was paid in full for those days. (Reply at 15 (citing Dkt. 21-5, DE308, DE374 (wage statement records reflect that Plaintiff was paid on these days via “Unscheduled PLB [Paid Leave Bank]”).) Plaintiff's Declaration, which does not provide specific days on which she was not provided sick pay, does not create a disputed issue of fact concerning the evidence submitted by Defendant that she was paid for the only sick days for which the Opposition claims she was not paid. “To survive summary judgment, a plaintiff must set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.” Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1061 (9th Cir. 2011). Having failed to provide any evidence of particular days that she was not provided with sick pay, Plaintiff has not created a triable issue of fact in support of her claim that she was not paid for sick days or carried her burden to establish a viable claim for relief on these grounds. The Court therefore grants summary judgment to defendant on this claim.

*13 Under Rule 56(d), the Court has discretion to extend a response deadline where the “nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” The non-moving party must show: “(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) that the facts sought exist; and (3) that the sought-after facts are essential to oppose summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008) (citation omitted). An extension is not justified merely because discovery is incomplete or desired facts are unavailable. See Jensen v. Redev. Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir. 1993). Rather, “the party filing the affidavit must show how additional time will enable him to rebut [the] movant's allegations of no genuine issue of fact.” Id. (citation omitted). The party seeking a continuance bears the burden of showing what specific facts they hope to discover, that the evidence sought actually exists, and that it will raise an issue of material fact. See Chance v. Pac-Tel. Teletrac, Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001); Continental Maritime v. Pacific Coast Metal Trades, 817 F.2d 1391, 1395 (9th Cir. 1987).

Plaintiff “requests the Court to continue the hearing date for this motion since there are facts which need to be discovered by deposing Naomi Sanchez, Melissa Michaelson and Zack Rankin which will require a fact finder to determine the credibility of each witness in order to determine liability.” (Opp. at 26; Mirabel Decl. ¶14.) Plaintiff identifies the individuals she intends to depose, but does not indicate what facts she hopes to elicit, that those facts exist, and that those facts are essential to oppose the Motion. It also appears that Plaintiff “has failed diligently to pursue discovery in the past” because Plaintiff's counsel decided to wait to depose witnesses until after the mediation on June 21, 2021. Chance, 242 F.3d at n.6; see also Mirabel Decl. ¶3. For these reasons, the Court concludes that Plaintiff has not met her burden to justify a continuance to conduct discovery, and therefore denies the request.

For the reasons discussed above, the Court grants Defendant's Motion for Summary Judgment. The Court will issue a separate judgment consistent with this order.

IT IS SO ORDERED.