Judge: Alison Mackenzie, Case: 23STCV03523, Date: 2025-01-22 Tentative Ruling
Case Number: 23STCV03523 Hearing Date: January 22, 2025 Dept: 55
NATURE OF PROCEEDINGS: Hearing on the City’s Motion
for Summary Judgment
BACKGROUND
Plaintiff Arkeishanae Pink (Plaintiff)
filed this action against the City of Long Beach
(the City), alleging employment discrimination and retaliation.
The causes of action are: (1) Race, Color and Ethnicity Discrimination
in Violation of Gov. Code § 12940(a); (2) Retaliation in Violation of Gov. Code
§ 12940(h); (3) Failure to Prevent Discrimination and Retaliation in Violation of
Gov. Code § 12940(k); (4) Failure to Hire, Train, and/or Promote in Violation of
Gov. Code 12940(c); (5) Religious Discrimination in Violation of Gov. Code § 12940(a);
(6) Religious Discrimination – Failure to Accommodate in Violation of Gov. Code
§ 12940(l); (7) Disability Discrimination in Violation of Gov. Code § 12940(a);
(8) Failure to Accommodate in Violation of Gov. Code § 12940(m); (9) Failure to
Engage in a Timely, Good Faith Interactive Process in Violation of Gov. Code § 12940(n);
and Retaliation in Violation of Gov. Code § 12940(m)(2).
The City filed a Motion for Summary Judgment. Plaintiff filed an
opposition.
EVIDENTIARY OBJECTIONS
The Court rules on Plaintiff’s evidentiary objections as
follows:
1. Overruled
2. Overruled
3. Overruled
4. Overruled
5. Overruled
6. Overruled
7. Overruled
8. Overruled
9. Overruled
10. Overruled
ERRATA
Plaintiff objects to the City’s notice of errata, correcting
the earlier unsigned copy of the Declaration of Branon Kraus with the signed
copy. As the contents of the document are the same, Plaintiff was not
prejudiced by the change. Accordingly, Plaintiff’s objection is denied.
LEGAL STANDARD
A party is entitled to summary judgment only if there is no triable
issue of material fact and the party is entitled to judgment as a matter of law.
§ 437c, subd. (c). A moving “defendant or cross-defendant has met his or her burden
of showing that a cause of action has no merit if the party has shown that 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 the cause of action.” Code Civ.
Proc., § 437c, subd. (p)(2). Once the defendant has satisfied that burden, the burden
shifts to the plaintiff to “show, by responsive separate statement and admissible
evidence, that triable issues of fact exist.” Ostyan v. Serrano Reconveyance
Co. (2000) 77 Cal.App.4th 1411, 1418, disapproved on other grounds by Black
Sky Cap., LLC v. Cobb (2019) 7 Cal.5th 156, 165; see also Code Civ. Proc.,
§ 437c, subd. (p)(2). Courts “liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in favor
of that party.” Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.
To meet this burden of showing a cause of action cannot be established,
a defendant must show not only “that the plaintiff does not possess needed evidence”
but also that “the plaintiff cannot reasonably obtain needed evidence.” Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) The supporting evidence
can be in the form of affidavits, declarations, admissions, depositions, answers
to interrogatories, and matters of which judicial notice may be taken. Id. at
p. 855. “Once the defendant . . . has met that burden, the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c, subd.
(p)(2). The plaintiff may not merely rely on allegations or denials of its pleadings
to show that a triable issue of material fact exists, but instead, “shall set forth
the specific facts showing that a triable issue of material fact exists as to the
cause of action.” Ibid. “If the plaintiff cannot do so, summary judgment
should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008)
159 Cal.App.4th 463, 467.
ANALYSIS
The City moves for summary judgment or in the alternative
summary adjudication of each of Plaintiff’s claims.
I. Statute of Limitations
The City first argues that Plaintiff failed to exhaust her
administrative remedies and thus the majority of her claims are time-barred.
“Under California law ‘an employee must exhaust the . . .
administrative remedy’ provided by the Fair Employment and Housing Act, by
filing an administrative complaint with the California Department of Fair
Employment and Housing (DFEH) and obtaining the DFEH’s notice of right to sue, ‘before
bringing suit on a cause of action under the act or seeking the relief provided
therein….’” Martin v. Lockheed Missiles & Space Co. (1994) 29
Cal.App.4th 1718, 1724 (citations omitted). The administrative complaint must
be filed within three years of the date the alleged unlawful practice occurred
and must set forth the specifics of the alleged wrongful conduct. Gov. Code §
12960 (e)(5). “The failure to exhaust an administrative remedy is a
jurisdictional, not a procedural, defect. Thus, … a trial court must grant
summary judgment and dismiss the suit upon a finding that a party has not
exhausted his or her administrative remedies. Miller v. United Airlines
(1985) 174 Cal.App.3d 878, 890.
“While resolution of the statute of limitations issue is
normally a question of fact, where the uncontradicted facts established through
discovery are susceptible of only one legitimate inference, summary judgment is
proper.” Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.
Here, Plaintiff filed her complaint with EEOC and DFEH on
February 19, 2022, and an amended charge of discrimination on February 23,
2022. UMF 76. Therefore, under the three-year limitations period, all claims
prior to February 19, 2019, are precluded. Plaintiff contends that the
continuing violation doctrine applies and extends the period for her to bring
an administrative complaint to include conduct prior to 2019. The Court
disagrees.
A. Disability-related claims
The continuing violations doctrine provides that “an
employer’s persistent failure to reasonably accommodate a disability, or to
eliminate a hostile work environment targeting a disabled employee, 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; (2) have occurred
with reasonable frequency; (3) and have not acquired a degree of permanence.” Richards v. CH2M
Hill, Inc. (2001) 26 Cal.4th 798, 823 (Richards) (citations
omitted). “‘[P]ermanence’ in the context of an ongoing process of accommodation
of disability, or ongoing disability harassment, 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.” Ibid.
Therefore, “when an employer engages in a continuing course
of unlawful conduct under the FEHA by refusing reasonable accommodation of a
disabled employee or engaging in disability harassment, and this course of
conduct does not constitute a constructive discharge, the statute of
limitations begins to run, not necessarily when the employee first believes
that his or her rights may have been violated, but rather, either when
the course of conduct is brought to an end, as by the employer’s cessation of
such conduct or by the employee’s resignation, or when the employee is
on notice that further efforts to end the unlawful conduct will be in vain.” Ibid.
“[W]hen defendant has asserted the statute of limitation
defense, the plaintiff has the burden of proof to show his or her claims are
timely under the continuing violation doctrine.” Jumaane v. City of Los
Angeles (2015) 241 Cal.App.4th 1390, 1402.
Here, the City denied Plaintiff’s requested accommodation to
park in the manager’s lot in September 2017. DMF 23. Additionally, on September
18, 2017, the City placed Plaintiff in the City’s Housing Authority, further
indicating the denial of Plaintiff’s requested accommodation. DMF 29-30. On
December 18, 2017, the City refused to grant Plaintiff’s requested
accommodation when it assigned her to work in the Keystone building. DMF 37. Therefore,
Plaintiff was on notice by December 18, 2017, that any further efforts at
informal conciliation to obtain reasonable accommodation would be futile.
Accordingly, the continuing violations doctrine does not apply to her disability-related
claims.
B. Race-related Claims
Likewise, the Court finds that the continuing violation
doctrine does not apply to Plaintiff’s racial discrimination claims. As with
disability claims, a continuing violation of racial discrimination exists if “(1)
the defendant’s actions inside and outside the limitations period are
sufficiently similar in kind; (2) those actions occurred with sufficient
frequency; and (3) those actions have not acquired a degree of permanence. Wassmann
v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825,
851 (citing Richards, supra, 26 Cal.4th at p. 823). In January 2018, Plaintiff
complained to multiple airport employees that she felt she was being
discriminated against based on her race. Pink Decl. ¶ 4. Despite voicing these
complaints, Plaintiff testified that no one at the City ever investigated the
complaint regarding racial discrimination, and she was never interviewed by
anyone at the City regarding the reasons she believed she was being
discriminated against. Ibid. Because Plaintiff voiced her racial
discrimination claim to multiple employees and received no indication from the
City that her concerns would be addressed, by February 19, 2019, Plaintiff was
on notice that further efforts to end the alleged racial discrimination would
be futile.
II. Failure to Accommodate and Accommodation Request
Retaliation
The essential elements of a failure to accommodate claim
are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff
is a qualified individual (i.e., he or she can perform the essential functions
of the position); and 3) the employer failed to reasonably accommodate the
plaintiff’s disability. Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th
245, 256. “[T]he employer cannot prevail on summary judgment on a claim of
failure to reasonably accommodate unless it establishes through undisputed
facts that (1) reasonable accommodation was offered and refused; (2) there
simply was no vacant position within the employer's organization for which the
disabled employee was qualified and which the disabled employee was capable of
performing with or without accommodation; or (3) the employer did everything in
its power to find a reasonable accommodation, but the informal interactive
process broke down because the employee failed to engage in discussions in good
faith.” Id. at p. 263.
As discussed above, only claims regarding events occurring
after February 19, 2019, are not barred. The most recent disability accommodation
request the City denied was Plaintiff’s 2017 request to use the manager's
parking lot. DMF 23. Because Plaintiff’s failure to accommodate claim contains
only time-barred allegations, the Court grants the City’s motion for summary
adjudication as to the eighth cause of action for failure to accommodate.
Likewise, the Court grants the City’s motion or summary adjudication as to the
tenth cause of action for retaliation for making an accommodation request.
III. Failure to Engage in an Interactive Process
“The FEHA makes it unlawful for an employer ‘to fail to
engage in a timely, good faith, interactive process with the employee or
applicant to determine effective reasonable accommodations, if any, in response
to a request for reasonable accommodation by an employee or applicant with a
known physical or mental disability or known medical condition.’” Scotch v.
Art Institute of California (2009) 173 Cal.App.4th 986, 1003 (quoting Gov.
Code, § 12940, subd. (n)). “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.” Gelfo v. Lockheed Martin Corp. (2006)
140 Cal.App.4th 34, 54.
Here, Plaintiff's failure to engage in the interactive
process cause of action is premised on the same conduct as her failure to accommodate
cause of action. For the reasons discussed above, the Court finds that the
ninth cause of action for failure to engage in a good faith interactive process
is time-barred. Accordingly, the Court grants the City’s motion for summary
adjudication as to the ninth cause of action.
IV. Religious Discrimination
and Religious Accommodation
Plaintiff's fifth cause of action alleges that the City
discriminated against her on the basis of religion in violation of FEHA. “The
elements of a religious creed discrimination claim are that: the plaintiff had
a bona fide religious belief; the employer was aware of that belief; and the
belief conflicted with an employment requirement. Friedman v. Southern
California Permanente Medical Group (2002) 102 Cal.App.4th 39, 45 (citing Soldinger
v. Northwest Airlines, Inc. (1996) 51 Cal. App. 4th 345, 370.
“Pursuant to California Government Code section 12940, it is
an unlawful employment practice to fail to reasonably accommodate a person's
religious practices….” Soldinger, supra, 51 Cal.App.4th at p. 369.
“In evaluating an argument the employer failed to accommodate an employee's
religious beliefs, the employee must establish a prima facie case that he or
she had a bona fide religious belief, of which the employer was aware, that
conflicts with an employment requirement….Once the employee establishes a prima
facie case, then the employer must establish it initiated good faith efforts to
accommodate or no accommodation was possible without producing undue hardship.”
Id. at p. 370
Here, Plaintiff alleges that she has a religious objection
to both vaccinations and testing, based on her belief that her “body is [her] temple”
and that “[she] didn’t want anything inserted into [her] body.” PDMF 96; Masero
Decl. Ex. 1, 233: 21, 237:23-24. Plaintiff has met her burden of showing her
prima facia case of a bone fide religious belief of which the City was aware
and that this belief conflicted with a job requirement, namely getting vaccinated
or regularly tested for Covid. Accordingly, the burden turns to the City to
show that it initiated good faith efforts to accommodate or no accommodation
was possible. The City makes no such showing and instead argues only that Plaintiff
cannot establish a cause of action for religious discrimination - failure to
accommodate. Mot. at pp. 12-13. Accordingly, the City’s motion for summary
adjudication is denied as to the fifth and sixth causes of action.
V. Discrimination Claims
In analyzing employment discrimination cases, California
courts apply the McDonnell-Douglas test, a “three-stage burden-shifting
test established by the United States Supreme Court for trying claims of
discrimination….” Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
354. “In the first stage, the plaintiff bears the burden to establish a prima
facie case of discrimination. Wills v. Superior Court (2011) 195
Cal.App.4th 143, 159. If plaintiff meets this burden, “the burden shifts to the
defendant to [articulate a] legitimate nondiscriminatory reason for its
employment decision….” Ibid (citations omitted). “Finally, if the
defendant presents evidence showing a legitimate, nondiscriminatory reason, the
burden again shifts to the plaintiff to establish the defendant intentionally
discriminated against him or her. The plaintiff may satisfy this burden by
proving the legitimate reasons offered by the defendant were false, creating an
inference that those reasons served as a pretext for discrimination.” Ibid
(citations omitted).
“A defendant employer's motion for summary judgment slightly
modifies the order of these showings.” Kelly v. Stamps.com Inc. (2005)
135 Cal.App.4th 1088, 1097. “If, as here, the motion for summary judgment
relies in whole or in part on a showing of nondiscriminatory reasons for the
discharge, the employer satisfies its burden as moving party if it presents
evidence of such nondiscriminatory reasons that would permit a trier of fact to
find, more likely than not, that they were the basis for the termination. Id.
at pp. 1097-98 (citations omitted). “To defeat the motion, the employee
then must adduce or point to evidence raising a triable issue, that would
permit a trier of fact to find by a preponderance that intentional
discrimination occurred.” Ibid.
“An employer moving for summary judgment on a FEHA cause of
action may satisfy its initial burden of proving a cause of action has no merit
by showing either that one or more elements of the prima facie case ‘is
lacking, or that the adverse employment action was based on legitimate,
nondiscriminatory factors.’” Soria v. Univision Radio Los Angeles, Inc.
(2016) 5 Cal.App.5th 570, 591 (citations omitted).
Plaintiff alleges that she was discriminated against when
she was not selected as an Airport Operations Specialist I. Defendants argue
that there was a legitimate, non-pretextual basis for their decision not to
hire Plaintiff in that role. Plaintiff was nervous during her interview, and in
her own estimation, she only did “okay” in the interview. UMF 59-60. The City
provides the declaration of Brandon Kraus stating that no consideration was
given to plaintiff’s race, color, ethnicity, disability, religion, or
engagement with protected activity” during the candidate rating process. Kraus
Decl. ¶ 12. Kraus further testifies that Plaintiff’s past performance at the
Airport was not considered, only her performance during the interview was
considered, and she was not selected for the position because other candidates
performed better during the interview. Id. ¶¶13-15. Accordingly, the
City has met its initial burden of showing a non-discriminatory basis for its
decision not to hire Plaintiff in that role.
Next, the burden shifts to Plaintiff to produce evidence of
discrimination or that the legitimate reasons offered by the City were false,
creating an inference that those reasons served as a pretext for discrimination.
Plaintiff argues Kraus’s admission that he felt hurt and upset that Plaintiff
blamed him for not getting a permanent job as a badging supervisor constitutes
“strong evidence of a discriminatory motive.” Opp. at p. 2. Because her
complaints included an allegation of racial discrimination, Plaintiff argues
this shows that Kraus had a racially discriminatory motive. However, there is
no basis for this assumption. The record contains no facts supporting those
underlying claims of discrimination against Kraus. That he was upset by the
allegations does not create an inference of racial discrimination. At most, it
may support an inference of retaliation. Nor does the fact that, at one time,
Kraus had a photo of an American Fighter plane featuring a swastika on its
canopy hanging in his office support an inference that he discriminated against
Plaintiff based on race. Plaintiff offers no evidence supporting her allegation
that the decision was based on disability discrimination.
Moreover, Plaintiff fails to offer evidence showing that the
legitimate reasons offered in support of the City’s hiring decision were false.
Plaintiff argues that the City claims she was not hired because she did not
have Airport Operations Experience when she did. However, the deposition of Kraus
shows that she had much less Airport Operations experience and training than
the chosen three candidates, not that she had none. Petronelli Decl. Ex. 2 at
pp. 196, 201. As explained in Kraus’s deposition, the candidates' relative
experience was reflected in their responses to interview questions. Id. at
p. 197-199.
Accordingly, the Court grants Plaintiff’s motion for summary
adjudication as to the first and seventh causes of action.
V. Retaliation
To show retaliation under the FEHA, a plaintiff must show
the following elements: (1) plaintiff engaged in protected activity, (2)
adverse employment action, (3) retaliatory intent, and (4) a causal link
between the protected activity and the adverse employment action. Yanowitz
v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. “Adverse employment
action” must be substantial and detrimental and can include refusal to promote,
transfer of job duties, and reducing employee's authority if the terms and
conditions of employment are materially affected. Id. at pp. 1060-1061.
Like discrimination claims, courts analyze retaliation
claims under the McDonnell-Douglas burden-shifting framework. Choochagi
v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 457. A court’s
decision to grant summary adjudication as to discrimination or retaliation is
not conclusive as to the other claim. Id. at p. 459 (“We see no
contradiction in the trial court's decision to grant summary adjudication on
the CFRA claim but deny summary adjudication on the FEHA disability
discrimination claim.”)
As with the discrimination claim, the City has met its
initial burden of showing that there is legitimate reason for its decision not
to hire Plaintiff as an Airport Operations Specialist. However, unlike the
discrimination claim, Plaintiff offers evidence showing a discriminatory
motive. Plaintiff had previously made complaints alleging gender, racial, and disability
discrimination by Kraus. Masero Decl. Ex. 1 at pp. 178-79. Kraus testified that
he was “hurt and upset” by these allegations. Petronelli Decl. Ex. 2 at p. 167.
Kraus further testified that he was “relieved” that he was not her supervisor
at the time she made the allegations against him. Id. at p. 168. Considering
these circumstances, the Court finds there is a triable issue of material fact
as to whether the City’s decision not to hire Plaintiff as an Airport
Specialist was retaliation for her earlier complaint. Accordingly, the City’s
motion for summary adjudication of the second, third, and fourth causes of
action are denied.
CONCLUSION
The City’s Motion for Summary Judgment is denied. The
City’s motion for summary adjudication is granted as to causes of action 1,
7-10 and denied as to causes of action 2-6.