Judge: Alison Mackenzie, Case: 22STCV13426, Date: 2024-08-29 Tentative Ruling
Case Number: 22STCV13426 Hearing Date: August 29, 2024 Dept: 55
NATURE OF PROCEEDINGS: Defendant ABC Unified School District’s
Motion for Summary Judgment, or in the alternative, Summary Adjudication
Defendant ABC Unified School District’s Motion for
Summary Judgment, or in the alternative, Summary Adjudication is DENIED.
Defendant’s Request for Judicial Notice is GRANTED.
Plaintiffs’ Objections—OVERRULE as to Objection Nos. 1
and 4 and SUSTAIN as to Objection Nos. 2 and 3.
Defendant’s Objections—OVERRULE as to Objection Nos. 1-4,
9, 11 and SUSTAIN as to Objection No. 5-8, 10, 12, 13.
Plaintiffs Maria Cota, Judi Dixon, Linda Harbin, and
Theresa Montenegro are or were employed as Cafeteria Manager IIs with Defendant
ABC Unified School District. After
Defendant conducted an employment evaluation in 2016, the position of Cafeteria
Manager was deemed not a supervisory position.
In 2017, Plaintiffs requested and were granted an
evaluation of their job description for purposes of obtaining a pay
increase. The evaluation found the job
duties performed by Plaintiffs were within the responsibility of the Cafeteria
Manager II position.
On June 23, 2020, Plaintiffs submitted a complaint to
Defendant asserting that their current pay range had resulted in denial of
equal pay for substantially similar work to various other classifications. Plaintiffs’ complaint was ultimately rejected
and Defendant denied that it had been paying the women working as Cafeteria
Manager IIs less than the men who performed substantially similar work in other
positions.
In addition, in January 2020, Plaintiff Montenegro
suffered a torn meniscus in her left knee.
Plaintiff Montenegro alleges Defendant discriminated against her based
on her disability and refused to reasonably accommodate her disability.
On April 22, 2022, Plaintiffs Maria Cota, Judi Dixon, Linda
Harbin, and Theresa Montenegro filed this action against Defendant ABC Unified
School District. The operative complaint
is the First Amended Complaint filed on October 28, 2022. The FAC alleges the
following causes of action: (1)
violation of the California Equal Pay Act (Labor Code §1197.5, et seq.); (2)
sex status discrimination (in violation of Government Code §§12940, et seq.);
(3) retaliation in violation of Government code §1102.5; (4) discrimination in
violation of Government Code §§12940, et seq.; (5) retaliation in violation of
Government Code §§12940, et seq.; (6)
failure to provide reasonable accommodation in violation of Government Code
§§12940, et seq.; (7) failure to engage in a good-faith interactive process in
violation of Government Code §§12940, et seq.; (8) failure to prevent
discrimination, harassment and retaliation in violation of Government Code
§12940(k); and (9) for declaratory judgment.
On January 10, 2024, the Court granted Defendant ABC’s
motion for judgment on the pleadings of the 1st cause of action for
the violation of the California Equal Pay Act (Labor Code §1197.5). On May 1, 2024, the Court granted Defendant
ABC’s motion for judgment on the pleadings of the 3rd cause of
action for retaliation in violation of Government Code §1102.5.
On May 9, 2024, Defendant ABC filed the instant Motion
for Summary Judgment, or in the alternative, Summary Adjudication. On July 9, 2024, Plaintiffs filed an
opposition to the Motion for Summary Judgment or Adjudication. On July 17, 2024, Defendant ABC filed a reply
to Plaintiffs’ opposition.
MOTION FOR SUMMARY JUDGMENT
I.
Legal Standard
A motion for summary judgment or adjudication provides
“courts with a mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) It must be granted “if all the evidence submitted,
and ‘all inferences reasonably deducible from the evidence’ and uncontradicted
by other inferences or evidence, show that there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119
[quoting Code Civ. Proc., § 437c, subd. (c)].)
Where a defendant seeks summary judgment or
adjudication, he must show that either “one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is
a complete defense to that cause of action.”
(Code of Civ. Pros., section 437c, subd. (o)(2).) A defendant may satisfy this burden by
showing that the claim “cannot be established” because of the lack of evidence
on some essential element of the claim.
(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574,
590.) Once the defendant meets this
burden, the burden shifts to plaintiff to show that a “triable issue of one or
more material facts exists as to that cause of action or defense thereto.” (Id.)
“A party is entitled to summary judgment only if it
meets its initial burden of showing there are no triable issues of fact and the
moving party is entitled to judgment as a matter of law. This is true even if
the opposing party fails to file any opposition. The court's assessment of whether the moving
party has carried its burden—and therefore caused a shift—occurs before the
court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not
initially shift as a result of what is, or is not, contained in the opposing
papers.” (Mosley v. Pacific Specialty
Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to
address issue of whether they were aware of their tenant’s marijuana growing
operation was not grounds to grant summary judgment where moving party failed
to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores,
Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary
judgment based merely on lack of opposition; court must first determine if the
moving party has satisfied its burden].)
In addition, the evidence and affidavits of the moving
party are construed strictly, while those of the opponent are liberally
read. (Government Employees Ins. Co.
v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100.)
“All doubts as to the propriety of granting the motion (whether there is
any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved
in favor of the party opposing the motion (i.e., a denial of summary
judgment).” (Hamburg v. Wal-Mart
Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)
II.
Second Cause of Action for sex status discrimination
A. Defendant fails to establish that Cota, Dixon
and Harbin’s second cause of action for sex status discrimination is
time-barred by the one-year deadline under Government code
Defendant
ABC argues Plaintiffs Cota, Dixon and Harbin’s second cause of action for sex
status discrimination is time barred.
Defendant argues a one-year deadline under Government Code §12965
applies to Plaintiffs’ sex status discrimination claims. Defendant argues Plaintiffs were required to
file a complaint for sex status discrimination within one year of their right-to-sue
notices. Defendant argues Plaintiff
Harbin filed an administrative complaint on November 15, 2019 and Plaintiffs
Cota and Dixon filed their administrative complaints on January 3, 2020. Defendant argues Plaintiffs Cota and Dixon
received their right-to-sue notices on January 16, 2020 and Plaintiff Harbin
received hers on February 24, 2020. Defendant
argues this action was not filed until April 2022, more than a year after any
of these three Plaintiffs received their right-to-sue notices.
In
response, Plaintiffs do not dispute that Cota, Dixon and Harbin’s sex status
discrimination claims were filed more than a year after they received their
right-to-sue notices. Plaintiffs instead
argue that the limitations period was equitably tolled, as there was ongoing
discrimination and they were continuing to engage with Defendant in alternative
official remedies. Plaintiffs also argue
that they obtained a right-to-sue letter on January 31, 2022 and this action
was filed in April 2022, less than a year later. Plaintiffs argue the sex status
discrimination they suffered before January 31, 2019 were part of continuing
violations that dated back to 2007.
Defendant
previously raised this exact same argument on its motion for judgment on the
pleadings heard on January 10, 2024. For
the same reasons stated therein, Defendant’s motion for summary adjudication of
Cota, Harbin and Dixon’s second cause of action based on the one year
limitations period under Government Code §12965(c)(1)(C), formerly Government
Code §12965(b), must be denied. Just as
there can be no partial demurrers or judgment on the pleadings of a part of a
cause of action, under CCP §437c(f)(1), “[a] motion for summary adjudication
shall be granted only if it completely disposes of a cause of action, an
affirmative defense, a claim for damages, or an issue of duty.”
Defendant
fails to establish based on undisputed facts that the one-year limitations
period under Government Code §12965(c)(1)(C) completely disposes of the second
cause of action. Plaintiffs obtained a
right-to-sue letter from the CRD/DFEH on January 31, 2022 and the action was
filed on April 22, 2022, less than a year later. As to those claims encompassed by the January
31, 2022 CRD/DFEH complaint and the right-to-sue letter, the action is
therefore undisputedly timely under section 12965(c)(1)(C).
Defendant
fails to establish that there were no acts of sex status discrimination that
fall within the period covered by the January 31, 2022 CRD complaint and
right-to-sue letter. Under Government
Code §12960(e), after January 1, 2020, an employee has three years to file an
administrative complaint. (Gov. C.
§12960(e).) Dixon and Cota (Defendant’s
SSUMF No. 2) are still currently employed with Defendant and Harbin only
retired on June 10, 2020 (Defendant’s SSUMF No. 3). The January 31, 2022 CRC Complaint and
right-to-sue letter would encompass any acts of discrimination against Dixon
and Cota from January 1, 2019 through January 31, 2022 and any acts of
discrimination against Harbin from January 1, 2020 through the date of her
retirement on June 10, 2020.
As explained
in the January 10, 2024 ruling, at best, Defendant has demonstrated that the
one-year limitations period covers those claims encompassed by Harbin’s November
2019 DFEH complaint and Cota and Harbin’s January 3, 2020 DFEH complaints and
the corresponding January 16, 2020 and February 24, 2020 right to sue
letters. This would still leave the claims
timely asserted in the January 31, 2022 right-to-sue letter. The Court cannot grant partial adjudication
of some of the wrongful acts alleged in the second cause of action. Summary adjudication is only proper where it
would fully adjudicate a cause of action or defense.
As to
those claims encompassed by the January 16, 2020 and February 24, 2020 right to
sue letters, the Court previously rejected Plaintiffs’ assertion that the January
31, 2022 right-to-sue letter included those lapsed and expired claims based on
the continuing violations doctrine. In
their opposition to the prior MJP, Plaintiffs failed to cite any authority
applying the continuing violations doctrine to the one-year limitations period
under section 12965 and they do not cite any such authority in their opposition
to the instant Motion for Summary Judgment.
Thus,
the claims encompassed by the January 16, 2020 and February 24, 2020
right-to-sue letters lapsed and expired when Plaintiffs failed to file a
lawsuit within a year of those letters. (Acuna
v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1413.) Section 12965 imposes a “strict one year
statute of limitations, commencing from the date of the right-to-sue notice by
the DFEH” and it is “a condition on a substantive right rather than a
procedural limitation for commencement of an action.” (Id.)
The deadline under section 12965 “causes the right which previously
arose and on which a suit could have been maintained, to expire.” (Id. (emphasis in the original).) Filing another CBD complaint on January 31,
2022 therefore did not revive those lapsed and expired claims covered by the
January 16, 2020 and February 24, 2020 right-to-sue letters. (Id. at 1417 (plaintiff could not
“revive” claims that expired due to her failure to file a complaint within a
year of receiving right-to-sue letter by filing a new DFEH complaint many years
after racial discrimination took place, nor did continuing violations doctrine
apply due to plaintiff’s failure to allege continuing racial discrimination or
harassment).)
With
regard to those claims encompassed by the January 16, 2020 and February 24,
2020 right to sue letters, Plaintiffs argue the one-year limitations period was
equitably tolled while they pursued internal administrative remedies. “Equitable tolling allows a plaintiff who has
a choice of legal remedies to pursue one remedy without simultaneously pursuing
another remedy. The doctrine relieves
the plaintiff claiming employment discrimination from the hardship of pursuing
duplicate and possibly unnecessary procedures to enforce the same rights or
obtain the same relief. The equitable
tolling doctrine generally requires a showing that the plaintiff is seeking an
alternate remedy in an established procedural context. Informal negotiations or discussions between
an employer and employee do not toll a statute of limitations under the
equitable tolling doctrine.” (Acuna v. San Diego Gas & Electric Co. (2013)
217 Cal.App.4th 1402, 1416.)
“Moreover, the equitable tolling doctrine is inapplicable once the
employee is on notice that his or her rights had been violated and that her
alternative remedies will be unsuccessful.”
(Id.)
After
receiving their right to sue letters in January 16, 2020 and February 24, 2020,
Plaintiffs did not file a civil action and instead filed Uniform Complaints on
February 28, 2020. (Defendant’s SSUMF
No. 18.) Plaintiffs’ Uniform Complaints
were denied by the District on June 23, 2020 and Plaintiffs’ appeal of that
initial decision was denied on October 21, 2020. (Defendants’ SSUMF No. 21.) Defendant agreed to commission a study into
the pay range for the CMII position as compared to other positions identified
in the appeal, but there is no evidence that it gave any indication it was open
to reconsidering their denial of Plaintiffs’ Uniform Complaints. (Defendants’ SSUMF No. 21.) The study was performed in February 2021 and Defendant
provided notice of the results to Plaintiffs in a letter dated September 21,
2021. (Plaintiffs’ SSUMF No. 68.) Defendant acknowledged in the letter that the
CMII position had evolved overtime and would be willing to discuss a potential
change to the salary range of that position with union representatives. (Plaintiffs’ SSUMF No. 68.)
Based
on these undisputed facts, (1) Plaintiffs were engaged in a formal, alternative
procedure to attempt to resolve their dispute with Defendant from February 28,
2020 through October 21, 2020; and (2) no reasonable person could have believed
that these alternative remedies would have been successful as of October 21,
2020, when Plaintiffs’ appeal of the denial of the Uniform Complaints was
denied. The mere fact that Defendant
agreed to commission a pay study would not reasonably signal that the Uniform
Complaints procedure would have yielded any result other than another denial of
Plaintiffs’ claims. Likewise,
Defendant’s statement in the September 21, 2021 letter merely expressed a
willingness to informally discuss a potential change in the salary range. Such a statement could not reasonably be
construed to mean that the Uniform Complaints procedure would be revived or
successful. Defendant’s September 21,
2021 letter expressed a willingness to engage in informal negotiations, which
do not support equitable tolling.
At
best, Plaintiffs establish that the one-year deadline under section 12965 was
equitably tolled from February 28, 2020 through October 21, 2020, 7 months and
22 days. Applying tolling, (1) Harbin
had to file a complaint in response to the January 16, 2020 right-to-sue notice
by September 7, 2020 and (2) Cota and Dixon had to file a complaint in response
to the February 24, 2020 right-to-sue letter by October 16, 2020. Thus, even with equitable tolling to the
extent supported by Plaintiffs’ evidence, Plaintiffs failed to timely file a
complaint under section 12965 based on the January 16, 2020 and February 24,
2020 right-to-sue letters.
However,
even if Plaintiffs’ claims as encompassed by the January 16, 2020 and February
24, 2020 letters are time barred, this would not be grounds to summarily
adjudicate the entire second cause of action, which includes those claims
covered by the January 31, 2022 right-to-sue letter. Exclusion of Plaintiffs’ expired claims from
recovery may be obtained by way of a motion in limine.
Defendant’s
Motion for Summary Adjudication of Plaintiffs Cota, Dixon and Harbin’s second
cause of action for sex status discrimination is denied.
B. Defendant fails to establish that
Montenegro’s Sex Discrimination Claim is Time Barred for Failure to Comply with
Government Code §12960
“FEHA
claims are governed by two statutory deadlines: section 12960 and section
12965.” (Acuna, supra, 217
Cal.App.4th at 1413.) Prior to January
1, 2020, an employee could not file an administrative complaint more than one
year from the date upon which the alleged unlawful practice or refusal to
cooperate occurred. (Govt. Code
§12960(d) (West 2019).) After January 1, 2020, an administrative
complaint could not be filed “after expiration of three years from the date
upon which the unlawful practice or refusal to cooperate occurred.” (Gov. C. §12960(e).)
Defendant
argues Montenegro’s sex discrimination cause of action is barred by the
limitations period under the 2019 version of section 12960(d). Defendant argues Montenegro failed to file a
complaint with the CRD/DFEH within one year of Defendant’s discriminatory
conduct reaching a degree of permanence.
According to Defendant, its conduct reached a degree of permanence by November
15, 2019, when Harbin filed her first administrative complaint. Defendant argues Montenegro had until
November 14, 2020 to file her first administrative complaint but failed to do
so until January 31, 2022. Defendant
argues none of the Plaintiffs can argue the continuing violations doctrine for
these same reasons.
Defendant
fails to establish that Plaintiff Montenegro’s second cause of action is fully
and completely barred by the one-year limitations period under the 2019 version
of section 12960(d). Defendant admits
that Montenegro filed an administrative complaint on January 31, 2022. Even without the continuing violations
doctrine, Montenegro’s January 31, 2022 CBD complaint was sufficient to
encompass conduct that fell within the limitations period. After January 1, 2020, an administrative
complaint had to be brought within three years from the date on which the
unlawful practice or refusal to cooperate occurred. Any claims that had lapsed as of January 1,
2020 would not be revived by the new three-year limitations period. (AB No. 9, §3 (published 10/11/2019.) Any claims based on conduct that occurred
from January 1, 2019 onward would be subject to the three-year limitations
period.
Thus,
at the very least, Montenegro’s second cause of action is based in part on
conduct that falls within the limitations period based on her January 31, 2022
CBD complaint, i.e. conduct from January 1, 2019 onward. For this reason, even if Montenegro’s claims
based on conduct prior to January 1, 2019 were time barred, it would not be
grounds for summary adjudication.
Summary adjudication must fully dispose of a cause of action. (CCP
§437c(f)(1).) To the extent Defendant
seeks to bar recovery based on conduct outside the limitations period based on Montenegro’s
January 31, 2022 CRD complaint, a motion in limine would be the more
appropriate procedure vehicle.
Defendant
argues Plaintiff Montenegro cannot rely on the continuing violations doctrine
to include conduct prior to January 1, 2019, because the conditions had reached
a degree of permanence. “Essentially,
the continuing violation doctrine comes into play when an employee raises a
claim based on conduct that occurred in part outside the limitations period.” (Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798, 812.) For
purposes of this motion, whether the continuing violations doctrine applies to
include conduct outside the limitations period is immaterial, as it would not
fully dispose of the second cause of action.
Moreover,
Defendant fails to establish as an issue of law that the continuing violations
doctrine does not apply to Defendant’s conduct before January 1, 2019. A violation is “a continuing violation if the
employer's unlawful actions are (1) sufficiently similar in kind—recognizing,
as this case illustrates, that similar kinds of unlawful employer conduct, such
as acts of harassment or failures to reasonably accommodate disability, may
take a number of different forms; (3) and have not acquired a degree of
permanence.” (Richards v. CH2M Hill,
Inc. (2001) 26 Cal.4th 798, 823.) “Permanence…should properly be understood to
mean the following: that an employer's statements and actions make clear to a
reasonable employee that any further efforts at informal conciliation to obtain
reasonable accommodation or end harassment will be futile.” (Id.)
Defendant
claims the condition reached a degree of permanence as of November 2019, when
Harbin filed her first administrative complaint. Defendant also relies on Plaintiffs’
deposition testimony indicating their belief that any informal efforts to
resolve the discrimination were futile. (Defendant’s
UMF No. 13.)
However,
deposition excerpts of Plaintiffs’ subjective impressions and feelings
regarding the futility of the situation do not establish as an issue of law
that the Defendant’s statements and actions made clear to “reasonable employee”
that any further efforts at informal conciliation were futile. Plaintiffs also submit declarations stating
that they only believed that Defendant would not rectify the issue internally
after the pay study was conducted, and Defendant refused to negotiate a pay
increase for CMII during a November 15, 2021 meeting, despite having stated in
its September 2021 letter that it was willing to do so. (Plaintiffs’
Additional Material Facts (“AMF”) Nos. 68, 69 and
Moreover,
reasonable minds could differ based on the evidence presented as to whether the
alleged sex status discrimination had risen to the level of permanence, i.e. employer’s
statements and actions “make clear” any further efforts at informal
conciliation would be futile. As
discussed above, Defendant made statements and engaged in conduct indicative of
a willingness to adjust the CMII pay range until September 21, 2021. At the very least, Defendant was giving
Plaintiffs mixed messages. A triable
issue of fact exists as to whether Defenedant’s conduct had reached a degree of
permanence based on (1) Defendant’s willingness to conduct another pay study
and (2) its September 2021 letter stating that the position had changed and
expressing its willingness to negotiate a pay raise for Plaintiffs’ positions.
Defendant’s
motion for summary adjudication of Montenegro’s second cause of action is
denied.
III.
Montenegro’s fourth cause of action for disability discrimination
A
prima face case of disability discrimination under Government Code §12940(a)
requires the plaintiff to establish (1) that she has a disability; (2) that she
could perform the essential duties of the job with or without reasonable
accommodations; and (3) she was subject to an adverse employment action because
of the disability. (Sandell v. Taylor
(2010) 188 Cal.App.4th 297, 310.)
Where
a defendant employer moves for summary judgment on a discrimination claim, the
initial burden rests with the employer to show that no unlawful discrimination
occurred. (Guz v. Bechtel Nat’l, Inc.
(2000) 24 Cal.4th 317, 354-355; see Jones v. R.J. Donovan Correctional
Facility (2007) 152 Cal.App.4th 1367, 1379.
“The burdens and order of proof therefore shift under the McDonnell
Douglas test when an employer defendant seeks summary judgment. An employer defendant may meet its initial
burden on summary judgment, and require the employee plaintiff to present
evidence establishing a triable issue of material fact, by presenting evidence
that either negates an element of the employee's prima facie case, or
establishes a legitimate nondiscriminatory reason for taking the adverse
employment action against the employee.”
(Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th
954, 966.)
Defendant
moves for adjudication of Montenegro’s fourth cause of action for disability
discrimination by negating (1) the element of her ability to perform the
essential duties of the job with or without reasonable accommodations and (2)
the element of an adverse employment action.
Defendant argues Montenegro could not safely perform the essential job
duties of her position and placement on the rehire list is not an adverse job
action. Defendant also moves for adjudication
based on a legitimate, nondiscriminatory reason for placing Montenegro on the rehire
list.
Essential job functions. “‘Essential functions’ means the fundamental
job duties of the employment position the individual with a disability holds or
desires. ‘Essential functions’ does not include the marginal functions of the
position.” (Gov. C. §12926(f).)
“A
job function may be considered essential for any of several reasons, including,
but not limited to, any one or more of the following: (A) The function may be
essential because the reason the position exists is to perform that function. (B)
The function may be essential because of the limited number of employees
available among whom the performance of that job function can be distributed. (C)
The function may be highly specialized, so that the incumbent in the position
is hired based on expertise or the ability to perform a particular function.” (Gov. C. §12926(f)(1).
“Evidence
of whether a particular function is essential includes, but is not limited to,
the following: (A) The employer's judgment as to which functions are essential.
(B) Written job descriptions prepared before advertising or interviewing
applicants for the job. (C) The amount of time spent on the job performing the
function. (D) The consequences of not requiring the incumbent to perform the
function. (E) The terms of a collective bargaining agreement. (F) The work
experiences of past incumbents in the job. (G) The current work experience of
incumbents in similar jobs.” (Gov. C.
§12926(f)(2).) “Usually no one listed
factor will be dispositive.” (Lui v.
City and County of San Francisco (2012) 211 Cal.App.4th 962,
971)
What
qualifies as an essential job function is a question of fact. (Hastings v. Department of Corrections
(2003) 110 Cal.App.4th 963, 967, fn 6.) “The identification of essential job
functions is a highly fact-specific inquiry.”
(Lui, supra, 211 Cal.App.4th at 971.)
Defendant
submits evidence that Montenegro’s essential job duties included lifting from
25 pounds up to 50 pounds, with occasional lifting of up to 75 pounds with
assistance, maneuvering up to 140-pound food carts with assistance and frequent
standing or walking much of the time with twisting, bending, stopping and squatting. (Defendant’s SSUMF No. 27.) Defendant relies on written job descriptions
of Montenegro’s position, as well as Montenegro’s deposition testimony, in
which she confirmed the details of the written job description but dispute that
the more physically demanding job duties were performed by her on a regular
basis.
In
response, Plaintiff Montenegro disputes that these were her essential job
functions. According to Montenegro, she
rarely maneuvered food carts and if she did they were usually empty. (Plaintiff’s Response to Defendant’s SSUMF
No. 27.) The more physical aspects of
the job that required squatting, lifting heavy loads and bending were assigned
to Montenegro’s student employees. (Id.) Montenegro testified that twisting, bending,
stooping and squatting was “maybe one to two percent” of a manager’s job. (Plaintiff’s Compendium of Evidence, Ex. A,
58:15-17.) Plaintiff Montenegro’s
essential job functions were primarily management of her staff, four adult
staff members and 15-18 students to perform the physical tasks. (Id. at Ex. 4, ¶23.) Plaintiff Montenegro also counted money out
of the register and would clean counters.
(Id.) Plaintiff Montenegro
kept track of workers’ hours on spreadsheets.
(Id. at ¶24.) Plaintiff
testifies that she never moved anything more than 30 pounds and at most she
would move 10-15 pounds and there was almost no twisting, bending, stooping or
squatting required. (Id.)
According
to Defendant, Plaintiff could not safely perform her essential job duties based
on her medical work restrictions, which were limited overhead/reaching work, no
lifting or pulling over 20 pounds, limited stooping and bending, and no lifting
over 20 pounds. (Defendant’s SSUMF No.
32.) However, triable issues of fact
remain as to what Plaintiff’s essential job duties were and whether they
included tasks that would violate her work restrictions. Because Montenegro’s essential job duties are
the cornerstone of whether she could perform them with or without reasonable
accommodation, triable issues of fact remain as to that element.
Adverse
employment action. Defendant argues
its placement of Plaintiff on the rehire list was not an adverse employment
action. Defendant argues it placed
Plaintiff on the rehire list in accordance with Education Code section 45192,
which requires placement of an employee who is medically unable to perform his
or her duties on the 39-month reemployment list once all leave time has
expired. Defendant argues such an action
therefore could not be an adverse employment action per Jones v. Los Angeles
County Office of Education (2005) 134 Cal.App.4th 983.
Jones
is distinguishable. Jones
involved a petition for writ of mandate, not a civil complaint. The court in Jones
determined that respondent’s findings regarding the petitioner’s medical
inability to perform her job functions were supported by substantial evidence
and her placement on the rehire list pursuant to Education Code section 45192
did not violate the law.
Plaintiff
is suing Defendant in a civil action. Jones
is procedurally and factually inapposite.
Here, there is a triable issue of fact as to whether Plaintiff was
unable to perform her essential job functions and therefore whether she was
properly placed on the 39-month rehire list.
The issue must be litigated before a jury based on a preponderance of
the evidence, unlike a writ of administrative mandate, which must be denied if the
respondents’ findings are supported by substantial evidence, regardless of the
strength of the petitioner’s evidence at the administrative hearing.
If in
fact Plaintiff was wrongly placed on the 39-month rehire list despite being
able to perform her essential job functions, this would qualify as an adverse
employment action. “There is an adverse
employment action if [defendant] has taken an action or engaged in a course or
pattern that, taken as a whole, materially and adversely affected the terms,
conditions, or privileges of [plaintiff's] employment.” (CACI 2509.)
In
addition, Plaintiff has alleged more than just placement on the rehire list as
an adverse employment action. Plaintiff
alleges adverse employment actions against her based on “denial of
accommodation, refusal to engage in the interactive process, failure to prevent
discrimination and retaliation, forced leave of absence, refusal to permit
Plaintiff to work, and termination.”
(FAC, ¶57.) Thus, even if placement
on the rehire list were not an adverse employment action, Defendant has not
have fully negated Plaintiff’s allegation of adverse employment action.
Legitimate
non-discriminatory reason. Defendant
also argues it had a legitimate non-discriminatory reason for placing Plaintiff
on the 39-month rehire list. Defendant
argues it placed Plaintiff on the list, because Plaintiff could not perform her
essential job functions with or without reasonable accommodation. Defendant’s assertion that Plaintiff could
not perform essential job functions is supported by admissible evidence,
including the written job description for Plaintiff’s position, as well as
Plaintiff’s acknowledgment of that written description and her deposition
testimony regarding her job duties
(Defendant’s SSUMF Nos. 27 and 28.)
Defendant also submits the doctor’s note restricting Plaintiff’s ability
to perform some of those job functions included in the written job
description. (Defendant’s SSUMF No. 32.) Defendant submits Montenegro’s deposition
testimony admitting that there was at least 20% of her job she could not
do. (Defendant’s SSUMF No. 35.) Defendant submits evidence that it met with
Plaintiff regarding reasonable accommodations in December 2020 but determined
that there was no way to reasonably accommodate her restrictions. (Defendant’s SSUMF No. 36.) Defendant thereafter had eight interactive
process meetings with Montenegro and her attorney. (Defendant’s SSUMF No. 40.)
The
qualified medical examiner agreed upon by both Plaintiff and Defendant found
she could not kneel, squat or bend more than 110 degrees, and no weigh limit
restrictions. (Defendant’s SSUMF No.
45.) The examiner also found that
Plaintiff could not stand more than six hours per day with two 15-minute
sitting breaks per two hours of standing, no repetitive squatting, kneeling,
crouching and no lifting over 20 pounds.
(Id.) The examiner also
indicated that Plaintiff’s knee condition would progressively deteriorate and
she would be a threat to herself and others if she returned to work full
duty. (Id. at No. 46.)
Defendant
satisfies its burden on summary judgment of establishing a legitimate,
non-discriminatory reason for placing Plaintiff on the 39-month rehire
list. The burden then shifts to
Plaintiff Montenegro to present substantial responsive evidence that Defendant’s
reason for placing her on the 39-month rehire list was pretextual.
“To
avoid summary judgment on the second of these two grounds [legitimate
nondiscriminatory reason for adverse action], an employee claiming
discrimination must offer substantial evidence that the employer's stated
nondiscriminatory reason for the adverse action was untrue or pretextual, or
evidence the employer acted with a discriminatory animus, or a combination of
the two, such that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination.”
(Swanson,
supra, 232
Cal.App.4th at 966.)
“The
plaintiff must then have the opportunity to attack the employer's proffered
reasons as pretexts for discrimination, or to offer any other evidence of
discriminatory motive. In an appropriate
case, evidence of dishonest reasons, considered together with the elements of
the prima facie case, may permit a finding of prohibited bias. The ultimate burden of persuasion on the
issue of actual discrimination remains with the plaintiff.” (Guz, supra, 24 Cal.4th at 354-355.)
“[T]he
employee must produce substantial responsive evidence that the employer’s
showing was untrue or pretextual thereby raising at least an inference of
discrimination. (Hersant v. Ca. Dept.
of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) The employee “must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer's proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence and hence infer that
the employer did not act for the asserted non-discriminatory reasons.” (Horn v. Cushman & Wakefield Western,
Inc. (1999) 72 Cal.App.4th 798, 807.)
Plaintiff
fails to submit any evidence from which a jury could find Defendant’s stated
reason for placing her on the 39-month rehire list pretextual. Plaintiff fails to submit any evidence
refuting that she was in fact injured and was subject to work restrictions that
prevented her from doing 20 percent of her job, although it is unclear how
“job” was defined in the context of her deposition or the doctor’s note. Instead, Plaintiff argues Defendant did not
genuinely consider her description of her essential job duties. (Plaintiff’s
Response to Defendant’s SSUMF No. 41.) Plaintiff
also disagrees with the medical examiner’s conclusions but fails to identify
any dishonesty or discriminatory motive in placing her on the 39-month rehire
list. (Plaintiff’s Response to SSUMF No.
46.)
Plaintiff
also submits evidence that she was no longer subject to restrictions on her
knee and shoulder approximately one year after she was initially examined. (Plaintiffs’
Response to SSUMF No. 46.) The fact that
Plaintiff’s condition may have improved a year after being placed on the rehire
list does not establish dishonesty or discriminatory animus when she was placed
on the list.
Defendant
therefore establishes as a matter of law that its placement of Plaintiff on the
rehire list was the result of a legitimate, nondiscriminatory motive. However, as stated above, this does not fully
negate the adverse employment action element, because Plaintiff alleges adverse
employment actions beyond merely placing her on the 39-month rehire list and
unequal pay. To the extent Defendant
seeks to preclude any recovery based on Plaintiff’s allegation that its
placement of her on the 39-month rehire list was discriminatory, such a request
would be more appropriately raised on a motion in limine.
Defendant’s
motion for summary adjudication of the fourth cause of action for disability
discrimination in violation of FEHA is denied.
IV.
Plaintiff Montenegro’s fifth cause of action for retaliation
To
establish a prima facie case of retaliation, the plaintiff must prove: (1) that
she engaged in protected activity, (2) that the employer thereafter subjected
her to an adverse employment action, and that (3) a causal connection exists
between the protected activity and the adverse employment action. (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
Defendant
moves for summary adjudication of the retaliation claim on grounds that placement
of Plaintiff on the 39-month rehire list does not qualify as an adverse
employment action, nor does any alleged unequal pay, which predated her
protected activities. For the same
reasons stated in connection with the fourth cause of action, Defendant’s
placement of Plaintiff on the 39-month rehire list was not retaliatory based on
the undisputed evidence of a legitimate, nonretaliatory reason for doing
so.
However,
as stated in connection with the fourth cause of action for discrimination,
Plaintiff alleges more than just placement on the rehire list and unequal pay
as adverse employment actions. Plaintiff
Montenegro allegedly suffered the adverse employment actions of denial of
accommodation, refusal to engage in the interactive process, failure to prevent
discrimination and retaliation, forced leave of absence and refusal to permit
Plaintiff to work. Thus, although Defendant has provided a legitimate, nonretaliatory
reason for placing Plaintiff on the 39-month rehire list and the unequal pay
predated the alleged protected conduct, triable issues of fact remain as to the
fifth cause of action for retaliation.
V.
Plaintiff’s sixth cause of action for failure to provide reasonable
accommodations
“The
FEHA imposes on employers the duty reasonably to accommodate their employees’ physical
disabilities.” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th
757, 766; Gov’t Code §12940(m).) The elements to a failure to accommodate claim
are: (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is
qualified (can perform the essential functions with accommodation), and (3) the
employer failed to reasonably accommodate the plaintiff’s disability. (Hernandez
v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187,
1193-1194.)
Defendant
moves for adjudication of the sixth cause of action for failure to accommodate
on grounds that Plaintiff Montenegro could not perform the essential functions
of her position with accommodations. As
discussed in connection with Montenegro’s fourth cause of action for disability
discrimination, triable issues of fact exist as to whether she was able to
perform the essential functions of her job with or without accommodations. For the same reasons, triable issues of fact
exist as to whether Plaintiff was a qualified person for purposes of her
failure to accommodate claim.
Defendant
also argues it reasonably accommodated Plaintiff by putting her on a leave of
absence. (Defendant’s UMF No. 43.) However, as Plaintiff points out, this
assumes that she was unable to perform her essential job duties, which is
disputed. “Under California law, ‘[w]hen
an employee can work with a reasonable accommodation other than a leave of
absence, an employer may not require that the employee take a leave of absence.’
(Cal.Code Regs., tit. 2, § 11068, subd. (c).)”
(Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 134.)
V. Plaintiff’s
seventh cause of action for failure to engage in good-faith interactive process
Government
Code section 12940(n) deals with an employer’s duty to engage in a good faith interactive
process with a disabled employee, and unequivocally mandates that employers
“engage in a timely, good faith, interactive process with the employee or
applicant to determine effective reasonable accommodations, if any.” The essential elements of a cause of action
for failure to engage in an interactive process are: (1) the plaintiff has a
disability or medical condition that was known to the employer, (2) the
plaintiff requested that her employer make a reasonable accommodation for that disability/medical
condition so she would be able to perform the essential job requirements, (3)
the plaintiff was willing to participate in an interactive process to determine
whether a reasonable accommodation could be made, (4) the employer failed to
participate in a timely, good faith interactive process with the plaintiff, (5)
the plaintiff was harmed, and (6) the employer's failure to engage in a good
faith interactive process was a substantial factor in causing the plaintiff's
harm.” (CACI No. 2546; Gelfo v.
Lockheed (2006) 140 Cal.App.4th 34, 61-62.)
Defendant
argues that based on the undisputed evidence, it engaged in a good faith
interactive process to with Plaintiff to determine whether a reasonable
accommodation could be made, because (1) it held nine meetings with Plaintiff
over a year; (2) Montenegro agreed that she was engaged in the interactive
process while it was happening; and (3) the purpose of these meetings was to
determine if she could return to work to perform her essential job functions
with reasonable accommodation.
(Defendant’s UMF Nos. 34, 40-42.)
Defendant argues it is Plaintiff who has failed to continue to engage in
the good faith, interactive process, because she has not made any effort to
return to Defendant or requested further meetings and has expressed that she
does not want to return to work for Defendant.
(Defendant’s UMF Nos. 50-55.)
Defendant’s
evidence negates Plaintiff’s allegation that Defendant refused to engage in a
good-faith interactive process to determine whether Plaintiff could perform her
essential job functions with accommodations.
The number of meetings held, as well as the extensive examination of
Plaintiff’s medical records, such as the doctor’s note and the examiner’s
medical report on Plaintiff’s condition, indicate a good faith attempt to
understand Plaintiff’s condition and what her limitations were.
However,
Plaintiff raises a triable issue of fact as to Defendant’s good faith based on
its refusal to consider her actual job duties.
According to Plaintiff, despite holding eight separate interactive
meetings with her for the purpose of determining her essential job duties, her
medical restrictions and whether reasonable accommodations for those
restrictions could be provided, Defendant only considered the listed job duties
in the written description of the position.
(Plaintiff’s Compendium of Evidence, Ex. 4, ¶28.) Plaintiff testifies that Defendant did not
listen to her version of what her job duties actually were and whether she could
perform them without restrictions. (Id.
at ¶29.) The good faith interactive
process is intended to allow a “particular employee with a disability to
perform the essential functions of a job that employee holds or desires.” (Nadaf-Raharov v. Neiman Marcus Group,
Inc. (2008) 166 Cal.App.4th 952, 973, fn 9 (citing 29 C.F.R. Pt.
1630, App., §1630.9 and acknowledging that FEHA’s reasonable accommodation
requirement based on American with Disabilities Act (“ADA”).) “With regard to assessment of the job,
individual assessment means analyzing the actual job duties and determining the
true purpose or object of the job.” (Id.
(quoting 29 C.F.R. Pt. 1630, App. §1630.9’s guidance on interactive process
under ADA).) Plaintiff’s testimony
raises a triable issue of fact as to whether Defendant engaged in the
interactive process in good faith.
Defendant’s
motion for summary adjudication of the seventh cause of action for failure to
engage in good faith, interactive process is denied. Triable issues of fact remain as to whether
Defendant participated in good faith.
VI.
Plaintiffs’ eighth cause of action for failure to prevent discrimination
and retaliation in violation of Government Code §12940(k)
Defendant
brief on this issue is limited to a single sentence: “For the same reasons set forth in Issue No.
1, Plaintiffs’ failure to prevent claim is time-barred.” The Court denies Defendants’ request for
adjudication of the second cause of action for sex status discrimination based
on statute of limitations, labeled by Defendant as Issue No. 1. For these same reasons, the Court denies the
request to adjudicate the eighth cause of action for failure to prevent
discrimination and retaliation.
VII.
Plaintiffs’ ninth cause of action for declaratory judgment
“Any
person…who desires a declaration of his or her rights or duties with respect to
another…may, in cases of actual controversy relating to the legal rights and
duties of the respective parties, bring an original action or cross-complaint
in the superior court for a declaration of his or her rights and duties in the
premises….” (CCP §1060.)
Declaratory
relief is improper where “the rights of the complaining party have crystallized
into a cause of action for past wrongs, all relationship between the parties
has ceased to exist and there is no conduct of the parties subject to
regulation by the court.” (Osseous
Technologies of America, Inc. v. DiscoveryOrtho Partners, LLC (2010) 191
Cal.App.4th 357, 376.)
However, as explained in Osseous, this does not meant that
declaratory relief is improper in every case where a breach of contract
alleged. The Court of Appeals created a
conceptual framework classifying declaratory relief into three types for the
purpose of determining whether the trial court erred by dismissing a
declaratory relief cause of action. In a “ ‘Type 1’ declaratory relief cause of
action, the complaint alleges only a past breach of contract, a breach of
contract remedy is available, and declaratory relief is unnecessary to guide
future conduct. (Id. at pp. 365,
366–368.) The court must dismiss the
Type 1 type of declaratory relief claims.
(Id.) A “Type 2”
declaratory relief cause of action alleges an actual and ongoing controversy,
such as a continuing contractual relationship, and future consequences that
depend on the court's interpretation of the contract. (Id. at pp. 369–371.) A trial court must not dismiss a Type 2
declaratory relief cause of action. (Id. at p. 365.) A “Type 3” declaratory relief cause of action
alleges a current controversy over a past breach of contract and the potential
a declaration of the parties' rights under a contract might be necessary to
guide the parties' future conduct in a continuing contractual
relationship. (Id. at pp.
374–376.) A trial court has discretion
to dismiss a Type 3 declaratory relief cause of action. (Id. at p. 365.)
Defendant
fails to cite any authority holding that declaratory relief may not be sought
in a FEHA action or for disputes over parties’ rights and obligations with
respect to one another under FEHA. For
example, declaratory relief may be appropriate in FEHA cases where there is
proof of an employment decision substantially motivated by discrimination. (Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 234.) Plaintiffs’
also cite to Harris v. City of Santa Monica in their declaratory relief
claim as grounds for the requested relief.
(FAC, ¶100.)
Defendant
argues the complaint also alleges an accrued wrong, with no threat of any
future invasion of rights or violations.
Defendant argues Plaintiffs’ declaratory relief claim is directed solely
to actions taken by Defendant in the past. However, Plaintiffs’ declaratory
relief claim seeks declaratory relief for the purpose of prospective
discriminatory polices and practices and to make Defendant aware of its
obligation not to engage in discriminatory practices and legal violations in
the future. (FAC, ¶100-101.) Defendant fails to establish grounds to
adjudicate the declaratory relief claim.
Defendant’s request to adjudicate the declaratory relief claim is
denied.
VII.
Defendant’s improper causation arguments on reply
On
reply, Defendant argues for the first time that Plaintiffs cannot establish
causation as to the fourth and fifth causes of action. Defendant’s causation arguments are
disregarded. Defendant may not raise new
arguments or submit new evidence for the first time on reply. (San Diego Watercrafts, Inc. v. Wells Fargo
Bank, N.A. (2002)
102 Cal.App.4th 308, 316.)
VIII. Conclusion
Defendant’s Motion for Summary Judgment, or in
the alternative, Summary Adjudication is DENIED.