Judge Colin Leis, Case Number: 21STCV28191, Date: 2025-03-13 Tentative Ruling

Defendants Transdev Services, Inc; Transdev North American, Inc.; Transdev North America, Inc.; and Timothy Grensavitch’s Motion for Summary Judgment

Plaintiff Kevin Blackman (Plaintiff) filed a complaint against defendants Transdev Services, Inc.; Transdev North America, Inc.; Timothy Grensavitch and the Estate of William Jackson. Plaintiff alleges twelve causes of action: (1) Race Discrimination, (2) Disability Discrimination, (3) Racial Harassment, (4) Disability Discrimination, (5) Retaliation, (6) Failure to Prevent Discrimination, (7) Retaliation, (8) Constructive Discharge in Violation of Public Policy, (9) Violation of Civil Code section 43, (10) Intentional Infliction of Emotional Distress, (11) Failure to Provide Reasonable Accommodation and (12) Failure to Engage in an Interactive Process.

Defendants Transdev Services, Inc.; Transdev North America, Inc. and Timothy Grensavitch (collectively Defendants) filed a Motion for Summary Judgment, or in the Alternative, Summary Adjudication.

- Sustained: 1 (authentication), 2 (authentication), 13 (no page numbers to identify declaration sections), 14 (page numbers),

Throughout the Motion for Summary Judgment, Defendants fail to cite specifically and succinctly to the appropriate undisputed material facts. Instead, Defendants cite undifferentiated chunks of purportedly undisputed material facts or direct the court to review undisputed material facts cited outside of the relevant issue subsections. (See e.g., Mot. at pp. 14:9, 15:6.) A proper separate statement directs the Court and opposing parties to the undisputed material facts. (Parkview Villas Ass’n, Inc. v. State Farm Fire & Cas. Co. (2005) 133 Cal.App.4^th 1197, 1210.) By gesturing vaguely to anywhere from 60 to over a hundred facts included in the separate statement, Defendants essentially request that the Court scavenge through scores, if not hundreds, of pages to locate the facts that support their argument. (Albrechtsen v. Bd. of Regents of Univ. of Wisconsin Sys. (2002) 309 F.3d 433, 436 (“‘Judges are not like pigs hunting for truffles buried in’ the record. [citation.]”) The Court declines Defendants’ request and, accordingly, the Court does not consider whether (1) Plaintiff exhausted his administrative remedies regarding harassment and retaliation; (2) whether Plaintiff was engaged in protected activity for retaliation under FEHA; (3) Plaintiff’s whistleblower claim; (4) Plaintiff’s action for constructive discharge; and (5) Plaintiff’s Civil Code section 43 Cause of Action.

Additionally, Defendants base the majority of their undisputed material facts on depositions filed with the Court that lack any page numbers. The Court cannot confirm the validity or authentication of the deposition or exhibits therein without proper certification and internal authentication. Therefore, the Court declines to consider any UMF based solely on the depositions attached to the Declaration of Allison M. Scott as Ex. B, C, D, L, M, N, O, P, Q and R. This includes the Exhibits that Plaintiff objects to.

Finally, Defendants state that Plaintiff conceded summary adjudication on the First, Fourth, Fifth and Seventh Causes of Action because they failed to specifically oppose Defendants’ Issues Nos. 1, 2, 3, 9, 10, 11, 12, 13, 14, 17, 18 and 19. Defendants allege in the notice and separate statement that they move for summary adjudication on 41 separate issues, but then fail to develop each issue, fail to reference each issue, and fail to properly reference their undisputed material facts within the issue. Therefore, the Court declines to summarily adjudicate any issue based on Defendants’ contentions that Plaintiff failed to respond to any particular issue. The Court evaluates below whether Defendants met their initial burden on the remaining issues.

Defendants allege that Plaintiff failed to initiate his lawsuit after receiving his right-to-sue notice. Plaintiff has one year from the issuing of a right-to-sue letter to file a complaint. (Gov’t Code § 12960(d)(2).) Plaintiff received a right-to-sue letter on December 5, 2019. (UMF No. 163.[1]) Due to Covid-19, The Judicial Council of California issued Emergency Rule 9, which tolled the statute of limitations from April 6, 2020, to October 1, 2020. The Emergency Rule extended the time to file by approximately 180 days. Given this extension, Defendants have not established as a matter of law that Plaintiff’s action was not timely filed after the right-to-sue letter was issued.

The elements of Race Discrimination under FEHA are (1) Plaintiff belongs to a protected class; (2) Plaintiff was performing competently in the position held; (3) Plaintiff suffered an adverse employment action; and (4) Some other circumstance suggesting discriminatory motive. (McCaskey v. California State Auto. Assn. (2010) 189 Cal.App.4th 947, 979.) In applying the McDonnell Douglas burden shifting, “the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue.” (Moore v. Regents of Univ. of Cal. (2016) 248 Cal.App.4th 216, 236 [citing Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344].) Parties dispute whether Plaintiff’s performance was satisfactory, whether Plaintiff suffered an adverse employment action and whether other circumstances suggest a discriminatory motive.

In support of their motion, Defendants assert the following. Plaintiff received a warning in 2019 stating that his investigation of an accident (Perez Accident) did not meet Transdev’s standards which was reduced from a verbal to written warning. (UMF Nos. 18, 20.) Later in 2019, Defendants received a customer complaint about Plaintiff. (UMF No. 21.) Plaintiff was not formally disciplined for the complaint. (UMF No. 22.) Given the above, Defendants allege that Plaintiff cannot establish his prima facia case that his performance was satisfactory. The Court does not find that two incidents in 2019 create a presumption that Plaintiff was not performing competently in his position. Defendants do not provide a performance review or statement from a supervisor that Plaintiff was not performing competently. The Court finds that the Defendants did not meet their initial burden in establishing that Plaintiff was not competent or that Plaintiff cannot establish that he was competent.

Defendants next argue that Plaintiff cannot establish that Defendants subjected him to an adverse employment action. Adverse employment actions affect the terms, conditions or privileges of employment. (Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1052-54.) Plaintiff alleges that the employment actions were the extension of his Last Chance Agreement, improper punishment relating to the Perez Accident, and termination. Defendants submit evidence that Plaintiff’s written warning in 2019 was downgraded to a verbal warning and did not suffer discipline from the customer complaint. (UMF Nos. 18, 20, 21, 22.) Plaintiff took a leave of absence and attempted to return to work on October 4, 2019. (UMF Nos. 31, 32.) Plaintiff was denied the ability to return to work unless he provided a physician’s release to return to work. (UMF Nos. 33.) Defendants do not address the extending of his Last Chance Agreement. A Last Chance Agreement between the Plaintiff and the Defendants allows the Defendants to fire the Plaintiff for any “unsafe act” which materially changes the conditions of employment. The Court finds that Defendants have not met their initial burden in establishing that no material conditions of Plaintiff’s work changed.

Defendants state with no supporting evidence that there are no circumstances suggesting a discriminatory motive. The Court finds that Defendants have not met their initial burden in establishing that there are no circumstances suggesting a discriminatory motive.

Defendants argue that they have a legitimate reason for their conduct. Defendants do not address the extension of Plaintiff’s Last Chance Agreement in explaining the legitimate reasons for their conduct. Therefore, Defendants have not met their initial burden in establishing that they had a legitimate reason for their conduct. Without meeting any of the previous burdens, Plaintiff does not have to show pretext.

Therefore, the Court denies summary adjudication of the First Cause of Action for Race Discrimination.

Defendants cite only to excluded deposition testimony. Therefore, the Court denies summary adjudication of the Third Cause of Action for Racial Harassment.

The elements of Disability Discrimination under FEHA are (1) Plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) Plaintiff could perform the essential duties of the job with or without reasonable accommodations; and (3) Defendant’s adverse employment decision was (4) because of Plaintiff’s actual or perceived disability or medical condition. (Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) Defendants state that Plaintiff’s anxiety was a symptom of working for Defendants, rather than a qualified disability.

To support their argument, Defendants submit that Plaintiff was working for other employers while on his leave of absence. Whether Plaintiff suffered from a FEHA-qualifying disability is not the test for disability discrimination, rather, the Court considers whether a plaintiff has a disability or was regarded as suffering from a disability. Plaintiff notified Defendants of his anxiety which required him to take a leave of absence. Thus, Defendants could have regarded Plaintiff as suffering from a disability, regardless of his actual status.

Defendants allege that Plaintiff cannot establish that he could perform his job with reasonable accommodations because he was not released to return to work. (UMF No. 37.) Defendants have met their initial burden in establishing that Plaintiff could not perform his job with or without accommodation.

In response, Plaintiff provides evidence that he still cannot work in a supervisory role. (PSSUMF No. 128, 134.) Plaintiff can work in non-supervisory roles, which he was ready and willing to do. (PSSUMF No. 142.) Defendants were hiring bus operators. (PSSUMF No. 144.) Defendants never attempted to work with Plaintiff to provide accommodations. (PSSUMF Nos. 136-141.) An employer must initiate the interactive process when it becomes aware of the need for accommodation through a third party or by observation. (Cal. Code Regs., Tit. 2, § 11069.) Defendants failed to start an interactive process when Defendants were made aware of the need for accommodation when Plaintiff filed a workers compensation claim and placed on two weeks of medical leave. (PSSUMF No. 129-131.) Reasonable accommodation may include reassigning the employee to another job opportunity within the company. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-951.) Plaintiff has met his burden in establishing that a triable issue of material fact exists as to whether reassignment would have been a reasonable accommodation.

Defendants additionally contend that nothing changed from Plaintiff’s initial 2019 Charge where Plaintiff stated the Defendants engaged in the interactive process and approved medical leave. (UMF No. 44.) Although this indicates the Defendants engaged in the process when allowing medical leave, it does not indicate that they continued to engage in that process to allow Plaintiff to return to work. Similarly, Defendants contend that they did not take an adverse employment action, but refusal to allow Plaintiff to return to work with an accommodation would have a material effect on Plaintiff’s employment status. (Yanowitz, supra, 36 Cal.4th at pp. 1052-54.) Therefore, the Court denies summary adjudication of the Second Cause of Action for Disability Discrimination.

Defendants submit no evidence regarding their contention that Plaintiff did not suffer any harassing conduct based on his disability. Defendants state that “there is no evidence” but fail to met their burden of establishing a lack of evidence from declarations or discovery responses. (See Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) Therefore, the Court denies summary adjudication of the Fourth Cause of Action for Disability Harassment.

As discussed above, a triable issue of material fact remains as to whether Defendants were on notice of Plaintiff’s disability and whether Defendants engaged in the interactive process when Plaintiff attempted to return to work.

Plaintiff’s failure to prevent claim does not fail because the Court denies summary adjudication of Plaintiff’s underlying causes of action for discrimination.

The elements of Intentional Infliction of Emotional Distress (IIED) are (1) outrageous conduct by defendant; (2) intentional or reckless causing of emotional distress; (3) severe emotional distress; and (3) causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) Parties dispute whether workers’ compensation exclusivity covers Plaintiff’s IIED claim, whether the alleged conduct was extreme or outrageous and whether Plaintiff suffered severe emotional distress.

Workers’ compensation exclusivity requires a compensable injury that (1) arises out of and in the course of employment and (2) the injury must cause a disability or need for medical treatment. (Vacanti v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 814.) This includes infliction of emotional distress that does not cause physical injury or disability. (Id. at 715 [citing Semore v. Pool (1990) 217 Cal.App.3d 1087, 1104-05.) The injury must also arise out of the normal work environment. (Semore, 217 Cal.App.3d at 1104.) Here, Plaintiff’s claim of racial discrimination is outside of the type of injury that would rise out of the course of employment. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492.) Therefore, workers’ compensation exclusively does not apply.

Defendants challenge whether Plaintiff suffered from harassing conduct or extreme distress, but do not submit evidence outside of the excluded depositions to support these contentions.

Therefore, the Court denies summary adjudication of the Tenth Cause of Action for Intentional Infliction of Emotional Distress.

The court does not decide this issue (Issue Nos. 35-39) for purposes of summary adjudication because it is a sub-issue, not a cause of action, affirmative defense, issue of duty, or category of damages. The court additionally does not decide this issue for purposes of summary judgment because it does not dispose of the entire case because plaintiff alleges causes of action that do not require that the defendant be the plaintiff’s employer.

Defendants argue that defendant Timothy Grensavitch (Grensavitch) cannot be liable for discrimination, retaliation, wrongful termination, failure to accommodate or engage in the interactive process, failure to prevent discrimination, harassment or retaliation. An employee may be liable for any harassment perpetrated by the employee. (Cal. Gov. Code § 12940(j)(3).) Similarly, the person who made “outrageous” statements can be liable for an IIED claim or Violation for Civil Code section 43. Defendants fail to identify the relevant undisputed material facts in the moving papers to establish that Grensavitch did not make harassing comments or statements to Plaintiff. Therefore, the Court denies summary adjudication for Grensavitch on the Third, Fourth, Ninth and Tenth Causes of Action. The Court grants summary adjudication for Grensavitch on the First, Second, Fifth, Sixth, Seventh, Eighth, Eleventh and Twelfth Causes of Action.

The Court grants in part and denies in part Defendants’ Motion for Summary Judgment, or in the alternative, summary adjudication.

The Court denies in their entirety Transdev Services Inc. and Transdev North America, Inc.’s Motions for Summary Adjudication.

The Court grants summary adjudication for defendant Timothy Grensavitch on the First, Second, Fifth, Sixth, Seventh, Eighth, Eleventh and Twelfth Causes of Action.

The Court denies summary adjudication for Grensavitch on the Third, Fourth, Ninth and Tenth Causes of Action.

[1] Plaintiff’s Separate Statement and Defendants’ Separate Statement are slightly differently numbered, the Court relies on Defendants’ initial numbering when referring to UMF Nos.