Judge: Armen Tamzarian, Case: 22STCV35717, Date: 2024-03-26 Tentative Ruling
Case Number: 22STCV35717 Hearing Date: March 26, 2024 Dept: 52
Defendant County of Los Angeles’s Motion
for Summary Judgment or in the Alternative, Summary Adjudication
Defendant County of Los Angeles moves
for summary judgment or, in the alternative, summary adjudication of both of
plaintiff David Smith’s causes of action.
Evidentiary
Objections
Plaintiff makes 36 objections to
defendant’s evidence. Objection Nos.
1-13 are sustained. Objection
Nos. 14-36 are overruled.
Legal
Standard
Summary judgment
should be granted where no triable issues of fact exist and the moving party is
entitled to judgment as a matter of law.
(CCP § 437c(c); Villa v. McFerren
(1995) 35 Cal.App.4th 733, 741.) Courts
use a three-step analysis: “(1) identify the issues framed by the pleadings;
(2) determine whether the moving party has negated the opponent’s claims; and
(3) determine whether the opposition has demonstrated the existence of a
triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294.)
1st Cause of Action:
Failure to Engage in Interactive Process
Triable issues preclude summary
adjudication of this cause of action.
The essential elements of a cause of action for failure to engage in an
interactive process are: (1) the plaintiff has a disability that was known to
his employer; (2) the plaintiff requested that his employer make a reasonable
accommodation for that disability so he 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. (Gov. Code, § 12940, subd. (n); CACI No.
2546.)
Defendant’s motion partially
relies on the premise that it had no duty to engage in the interactive process
until late 2021. “Once an employer is
aware of a disability, it has an ‘affirmative duty’ to make reasonable
accommodations for the employee.” (Soria
v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570,
598.) “Generally, the employee bears the
burden of giving the employer notice of the disability.” (Ibid., internal quotes and
alterations omitted.) “An employee is
not required to specifically invoke the protections of FEHA or speak any ‘magic
words’ in order to effectively request an accommodation under the statute.” (Ibid.) But “ ‘[a]n employee cannot demand
clairvoyance of his employer.’ ” (Doe v. Department of Corrections &
Rehabilitation (2019) 43 Cal.App.5th 721, 738.)
Plaintiff’s evidence shows triable issues that preclude summary adjudication. His declaration states, “Between January and the spring of 2020, I told Captain Tauscher on
multiple occasions that the Watch Commander assignment was extremely stressful
and was ‘killing’ me. Each time, I asked
her if I could ‘come off the desk,’ meaning that I was asking not to work the Watch
Commander’s desk as my primary and full-time Lieutenant assignment. I explained to her that the stress of the
Watch Commander assignment was exacerbating my medical conditions and making me
sicker. I complained to Captain Tauscher
about the stress associated with the Watch Commander assignment specifically,
and not the demands of the supervisory Lieutenant position generally.” (Smith Decl., ¶ 17.) A reasonable factfinder could conclude
plaintiff’s complaints to Tauscher between January and spring 2020 gave defendant
adequate notice of his disability and need for accommodation.
Defendant’s reply argues, “There is
no credible evidence that Smith told Capt. Tauscher that the stress of
the Work Commander assignment was exacerbating his medical condition prior to
late 2021.” (Reply, p. 4, italics added.) But “[a] judge’s function
at summary judgment is only to decide if disputed issues of
material fact make trial necessary; the judge neither weighs evidence
nor assesses credibility.” (Schmidt
v. Superior Court (2020) 44 Cal.App.5th 570, 583.) Plaintiff’s evidence may not persuade a jury,
but it suffices to withstand summary judgment.
Defendant also
asserts it engaged in the interactive process when Captain Tauscher “responded
to Smith’s concerns about workplace stress with counseling.” (Reply, p. 7.) Assuming that may satisfy the employer’s duty
to engage in the interactive process, the court cannot make that finding as a
matter of law. Generally, whether the
employer satisfied its duty to “engage[] in an interactive process is a
question of fact.” (Salgado v. Iqvia,
Inc. (S.D. Cal. 2020) 459 F.Supp.3d 1318, 1333, citing Wilson v. County
of Orange (2009) 169 Cal.App.4th 1185, 1193.) A reasonable trier of fact could find that
Tauscher’s counseling fell short of satisfying that duty.
Defendant further contends plaintiff
bears the blame for the breakdown of the interactive process based on his
actions in 2021 and later. As discussed
above, plaintiff presents a triable issue on whether defendant was required to
engage in the interactive process in 2020.
His purported failure to engage in the interactive process later
therefore does not defeat this cause of action.
2nd Cause of Action:
Failure to Provide Reasonable Accommodation
Triable
issues of fact preclude summary adjudication of this cause of action. “ ‘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.’ ”
(Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757,
766.)
Defendant contends it is
entitled to summary adjudication of this cause of action for several of the
same reasons as plaintiff’s first cause of action, which the court rejected
above.
Defendant also argues the
accommodation plaintiff requested was unreasonable because he sought to
eliminate essential functions of his job.
“The reasonableness of an accommodation generally is a question of
fact.” (Nealy v. City of Santa Monica
(2015) 234 Cal.App.4th 359, 374 (Nealy).) But “FEHA does
not obligate the employer to accommodate the employee by excusing him or her
from the performance of essential functions.”
(Id. at p. 375.)
Plaintiff
presents sufficient evidence on whether his requested accommodation meant
eliminating essential job functions. Generally,
“the essential functions of a job are a question of fact.” (Hastings v. Department of Corrections
(2003) 110 Cal.App.4th 963, 968, fn. 6.)
He was assigned to work as a “Watch
Commander.” (Smith Decl., ¶ 12.) He states he sought “a different Lieutenant
assignment.” (Ibid.) Defendant presents evidence that
“[p]eriodically serving as a Watch Commander coverage is an essential job
function of Lieutenants with the position” plaintiff held. (UMF No. 9.)
But being a Watch Commander was plaintiff’s “full-time assignment.” (Smith Decl., ¶ 6.)
Plaintiff’s
declaration states that reassignment to one of the other Lieutenant assignments
“would have significantly reduced the amount of time that [he] had to work the
Watch Commander’s desk” (Smith Decl., ¶ 24) or “would have required [him] to
work the Watch Commander desk substantially less than during [his] full-time
Watch Commander assignment” (id., ¶ 25).
In other assignments as a Lieutenant, he “only worked the Watch
Commander’s desk once a week to provide ‘gap’ coverage” (id., ¶ 38.) or
“once per month” (id., ¶ 39). Plaintiff
further states, “I was not asking to be relieved from having to occasionally work
or provide ‘gap’ coverage for the Watch Commander’s desk.” (Id., ¶ 31.) Based on this evidence, a reasonable trier of
fact could find serving as a full-time Watch Commander was not an essential
function and plaintiff was qualified to periodically cover that assignment.
Plaintiff also demonstrates
triable issues of material fact on this cause of action for another
reason. “Reasonable accommodation may
also include ‘reassignment to a vacant position’ if the employee cannot perform
the essential functions of his or her position even with accommodation.” (Nealy, supra, 234 Cal.App.4th at p.
377.) “[W]hen reassignment
of an existing employee is the issue, the disabled employee is entitled to
preferential consideration.” (Jensen
v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 265.)
Plaintiff presents evidence of
vacant positions within his Lieutenant classification in 2020. On March 5, 2020, Captain Tauscher sent an
email stating, “Chief Elias and I will evaluate proposals and determine new
Watch Commander and administrative lieutenant assignments in light of Lt. Dietz’s
imminent retirement and filling the full time SORT lieutenant vacancy. I have attached a brief framework with desired
qualities and anticipated tasks for each of the lieutenant assignments.” (Smith Decl., ¶ 19, Ex. 5.) In May 2020, a different Lieutenant was given
the “Identifications and Notifications” assignment. (Id., ¶ 22, Ex. 7.) Even if plaintiff could not perform the
essential functions of his assignment as Watch Commander, a reasonable trier of
fact could conclude defendant should have given him preference in assigning him
to a vacant position in 2020.
Disposition
Defendant County of Los Angeles’s
motion for summary judgment or summary adjudication is denied.