Judge Daniel M. Crowley, Case Number: 22STCV27620, Date: 2024-04-11 Tentative Ruling

Defendant City of Los Angeles’ motion for summary judgment of Plaintiff Robert J. Kilpatrick Jr.’s complaint is granted.

Defendant City of Los Angeles (“City”) (“Defendant”) moves for summary judgment of Plaintiff Robert J. Kilpatrick Jr.’s (“Kilpatrick”) (“Plaintiff”) operative complaint on the grounds that there are no triable issues of fact because Defendant terminated Plaintiff’s employment for a legitimate, non-discriminatory reason, i.e., Plaintiff’s failure to meet a condition of employment of Defendant and failure to appear at two separate Board of Rights hearings, and that Plaintiff cannot produce evidence of pretext and as a matter of law, lacks sufficient evidence to support a finding of discrimination, retaliation, and/or a failure to accommodate a religious belief. (Notice Motion, pg. 2; C.C.P. §437c; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 353-354.)

Defendant moves in the alternative for summary adjudication of Plaintiff’s 1st [Issue 1], 2nd [Issue 2], 3rd [Issue 2], 4th [Issue 3], and 5th [Issue 4] causes of action. (Notice Motion, pgs. 2-3; C.C.P. §437c(f)(1).) Defendant moves on the grounds the 1st cause of action for Religious Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”) fails because Plaintiff cannot establish a causal connection between his protected class (religion) and his adverse employment action (Plaintiff’s termination). (Notice Motion, pg. 2.) Defendant moves on the grounds Plaintiff’s 2nd and 3rd causes of action for Retaliation in Violation of FEHA and Labor Code §1102.5, respectively, fail because Plaintiff cannot establish that his alleged protected activity was a substantial motivating reason for Defendant’s decision to terminate Plaintiff. (Notice Motion, pg. 2.) Defendant moves on the grounds Plaintiff’s 4th cause of action for Failure to Accommodate a Religious Belief in Violation of FEHA fails because Plaintiff cannot show that Defendant knew of a conflict between Plaintiff’s religious belief and a job requirement and Plaintiff cannot show that Defendant failed to explore available reasonable alternatives of accommodating Plaintiff so as not to maintain a conflict between a job requirement and Plaintiff’s sincerely held religious belief. (Notice Motion, pg. 2.) Finally, Defendant moves on the grounds Plaintiff’s 5th cause of action for Failure to Prevent Discrimination in Violation of FEHA fails because Plaintiff cannot establish that he was subjected to unlawful discrimination in the terms, conditions, or privileges of his employment. (Notice Motion, pg. 2.)[1]

Defendant’s 1/26/24 request for judicial notice of (1) the Judgment and final ruling on Plaintiff’s Petition for Writ of Mandate dated February 16, 2023 (D-RJN, Exh. A); (2) Former Los Angeles Mayor Eric Garcetti’s official Declaration of Local Emergency pertaining to the COVID-19 Pandemic dated March 4, 2020 (D-COE, Exh. 1); (3) Los Angeles City Ordinance No. 187134 passed on August 18, 2021 (D-COE, Exh. 4); and (4) Los Angeles City Charter Section 1060 et. seq. (D-COE, Exh. 19) is granted.

Defendant’s 4/3/24 evidentiary objections to the Declaration of Robert J. Kilpatrick Jr. (“Kilpatrick”) are sustained as to Nos. 2, 3, 4, 5, 16, 17, and 20, and overruled as to Nos. 1, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, and 19.

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

Plaintiff’s objections within its separate statement in opposition are in violation of CRC, Rule 3.1345(b) because they are not served and filed separately from the other papers in support of or in opposition to the motion and in the format illustrated in CRC, Rule 3.1345(b). Therefore, the Court denies Plaintiff’s objections stated within its separate statement in opposition.

Plaintiff filed his operative Complaint on August 24, 2022, alleging ten causes of action: (1) wrongful termination in violation of public policy, (2) religious/medical discrimination in violation of Government Code §12940 et seq., (3) retaliation in violation of Government Code §12940 et seq., (4) violation of Labor Code §1102.5, (5) failure to accommodate in violation of Government Code §12940 et seq., (6) failure to investigate/prevent discrimination under Government Code §12940, et seq., (7) breach of written employer policies, (8) intentional infliction of emotional distress, (9) negligent infliction of emotional distress, and (10) injunctive/declaratory relief.

On February 23, 2023, the parties stipulated to strike the 1st, 7th, 8th, 9th, and 10th causes of action and request for punitive damages.[2] For the purposes of this motion, only the 2nd, 3rd, 4th, 5th, and 6th causes of action from the original Complaint remain.

Defendant filed the instant motion on January 25, 2024. Plaintiff filed his opposition on March 20, 2024. Defendant filed its reply on April 3, 2024.

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (C.C.P. §437c(c).)

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (C.C.P. §437c(f)(2).) A party may move for summary adjudication as to one or more causes of action within an action if that party contends that the cause of action has no merit or to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Civil Code §3294, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (C.C.P. §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. (C.C.P. §437c(f)(1).)

To demonstrate a cause of action for disparate treatment, plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position sought or was performing competently in the position held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) California courts follow the three-part McDonnell Douglas burden-shifting framework for discrimination claims under the FEHA. (Id. at pg. 354.)

“At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled. While the plaintiff’s prima facie burden is ‘not onerous’, he must at least show ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were “based on a [prohibited] discriminatory criterion.”’” (Id. at pgs. 354-355.)

Defendant argues Plaintiff failed to make Defendant aware of his religious objections to the Los Angeles COVID Vaccine Mandate until long after Defendant began disciplinary proceedings against him, citing to CACI 2560 for support. (Motion Memo, pg. 13.) However, this argument goes to an element of Plaintiff’s cause of action for failure to accommodate in violation of FEHA, not Plaintiff’s cause of action for disparate treatment on the basis of religious creed. (Compare CACI 2500 with CACI 2560.) Therefore, Defendant’s argument on this basis will be reserved for the 5th cause of action.

Under FEHA, an adverse employment action is one which “materially affect[s] the terms, conditions, or privileges of employment.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1052.) The “materiality” test of adverse employment action explained in Yanowitz looks to “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace.” (Yanowitz, 36 Cal.4th at pg. 1054.) “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Id. at pg. 1055.)

Defendant argues Plaintiff failed to take advantage of the administrative remedies outlined in the City Charter before seeking judicial relief and is therefore barred from asserting this cause of action. (Coachella Valley Mosquito & Vector Control District v. California Public Employment Relations Board (2005) 35 Cal.4th 1072, 1080; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292; Ralph’s Chrysler-Plymouth v. New Car Dealers Policy & Appeals Board (1973) 8 Cal.3d 792, 794 [“[I]f an administrative remedy is provided by statute, relief must be sought from the administrative body and such remedy exhausted.”].)

Defendant argues Plaintiff and the Los Angeles Fire Department (“LAFD”) were entitled to have a Board of Rights hearing under City Charter §1060 and were entitled to present evidence on their respective behalf. Defendant argues the proper forum for Plaintiff to challenge the charge of failing to meet a condition of employment was the Board of Rights process as dictated in the City Charter. This process “establishes clearly defined machinery for the submission, evaluation, and resolution of complaints by aggrieved parties’ [Citation]” but Plaintiff failed to take advantage of his opportunity to prove his innocence in front of the Board of Rights. (Ross v. Superior Court (1977) 19 Cal.3d 899, 912.)

Defendant submitted evidence that LAFD gave Plaintiff two separate opportunities to show that he would come into compliance with the COVID Vaccine Mandate but ignored this opportunity. Specifically, Defendant submitted evidence of the transcript of Plaintiff’s first Board of Rights Hearing held on February 17, 2022, wherein Plaintiff did not appear, and the Board continued the matter and set a second hearing for March 2, 2022, at 8:00 a.m., to afford Plaintiff a second opportunity to appear and be heard. (Defendant’s Disputed Separate Statement of Fact [“D-DSSF”] 26; D-COE, Exh. 27 at 8:22-11:21; Exh. 25.) Plaintiff submitted evidence that Plaintiff and his legal counsel failed to appear at Plaintiff’s second hearing on March 2, 2022, and the Board elected to impose the penalty of removal pursuant to City Charter §1060(h) without a hearing, after giving Plaintiff time to appear. (D-DSSF 27; D-COE, Exh. 28 at 5:21-8:25; Exh. 29.) Defendant’s evidence does not negate the fact that Plaintiff suffered an adverse employment action, which is not disputed by Defendants; in fact, Defendants submitted evidence of Plaintiff’s termination. Instead, Defendants merely allege Plaintiff is not, as a matter of law, entitled to allege a cause of action for religious discrimination because he did not exhaust his administrative remedies. Further, Defendant fails to submit legal authority stating that Defendant’s failure to attend the Board meeting bars him from asserting the instant cause of action.[3]

The Court therefore finds Defendant’s argument on failure to exhaust administrative remedies to be unavailing and proceeds with its analysis using the McDonnell Douglas burden-shifting framework on the basis that the parties do not dispute Plaintiff suffered an adverse employment action.

“If . . . plaintiff establishes a prima facie case, a presumption of discrimination arises. [Citations.] This presumption, though ‘rebuttable,’ is ‘legally mandatory.’ [Citations.] Thus, in a trial, ‘[i]f the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.’ [Citations.] [¶] Accordingly, at this . . . stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise [ ] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]” (Guz, 24 Cal.4th at pgs. 355-356, internal citations omitted.)

Defendant argues it had a legitimate, non-discriminatory reason to terminate Plaintiff’s employment, namely that Defendant failed to appear at his second Board of Rights hearing on March 2, 2022. (Motion Memo, pg. 17.)

Defendant submitted evidence of its non-discriminatory reason to terminate Plaintiff’s employment. Defendant refers this Court to Los Angeles City Charter §1060(h), which provides:

If a Board of Rights has been constituted for the purpose of hearing and the accused, without reasonable excuse, fails, or refuses to appear before the Board of Rights at the time and place designated, the Fire Chief may, at his or her discretion, either direct the Board of Rights to proceed with the hearing in the absence of the accused, or the Fire Chief may, without a hearing, impose the penalty of suspension or removal as he or she deems fit and proper. The Fire Chief shall cause notice of the action to be served upon the accused and shall file a statement of the action with the Board of Fire Commissioners within five days.

(LACC §1060(h), emphasis added.) Defendant submitted evidence that Plaintiff did not appear before the Board of Rights at the time and place designated, and the Fire Chief, without a hearing, imposed the penalty of removal. (D-DSSF 27.) Accordingly, Defendant met its burden to demonstrate a non-discriminatory reason for Plaintiff’s termination, shifting the burden to Plaintiff to demonstrate Defendant’s proffered reason as pretext for discrimination.

“If the employer sustains [their] burden [to demonstrate a non-discriminatory reason for the adverse employment action], the presumption of discrimination disappears. 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, 24 Cal.4th at pgs. 355-356, internal citations omitted.)

Plaintiff argues Defendant’s proffered reason is pretext for discrimination because he submitted a religious exemption request in February 2022, along with 476 other individuals, and there is no way Defendant could legally justify terminating Defendant’s, or the other 476 applicants’, application for a religious/medical exemption without having first considered the exemption request. (Opposition, pg. 14.) Plaintiff further argues he complied with the letter of vaccine ordinance by actually filing the requests for exemption, which were ignored because Defendant had no process for evaluating or honoring the requests for exemption prior to his termination. (Opposition, pg. 15.)

Defendant failed to meet his burden to demonstrate Defendant’s proffered non-discriminatory reason for Plaintiff’s termination is a pretext for discrimination. First, based on emails received by Deputy Chief Graham Everett regarding LAFD COVID-19 vaccination statistics in Defendant’s compendium of evidence, Plaintiff fails to demonstrate the other applicants who submitted religious exemption requests faced adverse employment because of their religious beliefs and not for an alternative reason, such as failure to adhere to Defendant’s deadline for submission of a religious exemption request. (Plaintiff’s Disputed Separate Statement of Fact [“P-DSSF”] 26; D-COE Exh. 31.) Second, Fire Chief Ralph Terrazas’ deposition testimony does demonstrate Terrazas perjured himself when he initially stated the reason for Plaintiff’s termination. (P-DSSF 28; D-COE, Exh. 6 at 89:10-90:13.) Therefore, Plaintiff failed to meet his burden to demonstrate Defendant’s proffered non-discriminatory reason for Plaintiff’s termination is a pretext for discrimination.

Accordingly, Defendant’s motion for summary judgment is granted as to the 2nd cause of action.

Retaliation in Violation of FEHA and Whistleblower Retaliation (Labor Code §1102.5) (3rd & 4th COAs)

A cause of action for retaliation in violation of FEHA requires the following elements: (1) plaintiff engaged in a protected activity as employee; (2) employer subjected Plaintiff to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. (Yanowitz, 36 Cal.4th at pg. 1042.) If an employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas burden shifting analysis discussed above to the employee’s claim. (Id.)

“[W]e now clarify that section 1102.6, and not McDonnell Douglas, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims. [¶] By its terms, section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case: First, it must be ‘demonstrated by a preponderance of the evidence’ that the employee’s protected whistleblowing was a ‘contributing factor’ to an adverse employment action. (§1102.6.) Then, once the employee has made that necessary threshold showing, the employer bears ‘the burden of proof to demonstrate by clear and convincing evidence’ that the alleged adverse employment action would have occurred ‘for legitimate, independent reasons’ even if the employee had not engaged in protected whistleblowing activities.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712.)

Defendant argues Plaintiff cannot demonstrate a causal nexus between his alleged protected activity and his termination. (Motion Memo, pg. 15.)

Defendant submitted evidence that Plaintiff’s complaints, made through his counsel, about his disciplinary proceedings, were based solely on Plaintiff’s belief that he was deprived of due process, and made no mention of any religious discrimination or retaliation. Rather, it was not until February 28, 2022, that Plaintiff reported his sincerely held religious belief against the COVID vaccine in the form of his religious exemption request. (D-DSSF 10; D-COE Exh. 7 at 55:4-8; Exh. 8; Exh. 34 at 184:7-10, 193:11-12.) Defendant submitted evidence that by this point, Plaintiff had already failed to appear at a Board of Rights proceeding on February 17, 2022. (D-DSSF 26.) Defendant met its burden to demonstrate Plaintiff cannot establish a causal nexus between his alleged protected activity and his termination. Defendant shifts the burden to Plaintiff to demonstrate a triable issue of material fact as to the two causes of action for retaliation.

Plaintiff failed to meet his burden to demonstrate a triable issue of material fact as to the causes of action for retaliation. Specifically, Plaintiff submitted his declaration stating that in late 2021, he “had numerous conversations with Dep. Chief Richmond and others that [he] felt disclosing private medical/religious information was a violation of privacy. [He] was vocal in trying to guide other firefighters through this process publishing my opinions on the mandating of vaccination or requiring members to expose private information. [His] Religious convictions and Church service were well know at the LAFD throughout my employment.” (P-DSSF 10; Decl. of Kilpatrick ¶8.) Plaintiff submitted his declaration stating,

On October 29, 2021, I received an mail from LAFD Personnel Department indicating - “DUE MONDAY, NOV 1ST: Notice of Mandatory COVID-19 Vaccination Policy Requirements...” On November 9, 2021, Assistant Chief Surgey (Guy) Tomlinson served a 48 hour Order to comply with COLA COVID requirement/mandate for Employees. This occurred in the Battalion 10 office within Fire Station 39 in Van Nuys. On December 15, 2021 at 1540 hours I was a served a so called “SKELLY PACKET.” PSD Captain’s Mullen and Leach showed up at his home indicating they had papers for him to sign. I explained that I had legal counsel, everything must go through my counsel.

(P-DSSF 10; Decl. of Kilpatrick ¶9.) Plaintiff submitted his declaration that on December 21, 2021,

[L]ess than six days after the service of notice of the hearing hours the so called Board of Rights/Skelly “HEARING” was convened on a Google virtual meeting/hearing” those online included; me, Attorney John Howard, and a stenographer hired by Mr. Howard. For the LAFD was Battalion Chief Amir Caspian, Deputy Chief Kristin Crowley. After I indicated to Chief Caspian that Mr. Howard would be representing him during this hearing, Mr. Howard had requested a continuance of the hearing as he was just retained a few days prior. He advised he was entitled pursuant to the CA Supreme Court “Skelly” case additional time conduct investigations and discovery into the complaint prior to the actual Skelly hearing. Chief Caspian asked Chief Crowley for a ruling for the request. Chief Crowley then improperly and in violation of actual law/precedence denied the request. It is noted that neither LAFD Chiefs are lawyers/have any legal training. Mr. Howard then properly stated “they would not participate in an a procedurally improper/illegal hearing . . . we would be exiting the meeting,” and they both properly exited the improper BOR meeting/Skelly hearing.

(P-DSSF 10; Decl. of Kilpatrick ¶10.) Defendant failed to demonstrate a causal nexus between his sincerely held religious belief against the COVID vaccine in the form of his religious exemption request; further, Plaintiff’s Complaint does not allege retaliation from his violations of due process in his Skelly Hearings, but rather his complaints about discrimination based on his medical condition/religious beliefs. (See Complaint ¶¶70, 78.)

Accordingly, Defendant’s motion for summary judgment is granted as to the 3rd and 4th causes of action.

“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.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370, internal citation omitted.)

“Any reasonable accommodation is sufficient to meet an employer’s obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee. The reasonableness of the employer’s efforts to accommodate is determined on a case by case basis . . .. ‘[O]nce it is determined that the employer has offered a reasonable accommodation, the employer need not show that each of the employee’s proposed accommodations would result in undue hardship.’ ‘[W]here the employer has already reasonably accommodated the employee’s religious needs, the . . . inquiry [ends].’” (Id., internal citations omitted.)

“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time, . . . proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)

Defendant submitted evidence that it was not until February 28, 2022, that Plaintiff reported his sincerely held religious belief against the COVID vaccine in the form of his religious exemption request. (D-DSSF 10.) Defendant met its burden to demonstrate Plaintiff failed to make Defendant aware that he had a bona fide religious belief that conflicted with an employment requirement, shifting the burden to Plaintiff to raise a triable issue of material fact.

Plaintiff failed to meet his burden to demonstrate he made Defendant aware that he had a bona fide religious belief that conflicted with the Los Angeles COVID Vaccine Mandate. The evidence Plaintiff submitted of his declaration that he had “numerous conversations with Dep. Chief Richmond and others that [he] felt disclosing private medical/religious information was a violation of privacy” and that he “was vocal in trying to guide other firefighters through this process publishing [his] opinions on the mandating of vaccination or requiring members to expose private information,” and that his “[r]eligious convictions and Church service were well know at the LAFD throughout [his] employment” is not sufficient to demonstrate that he put Defendant on notice that the COVID Vaccine Mandate conflicted with his bona fide religious belief prior to the initiation of his disciplinary proceedings. (P-DSSF 10.)

Accordingly, Defendant’s motion for summary judgment of the 5th cause of action is granted.

A cause of action for failure to prevent discrimination includes the following elements: (1) actionable discrimination or harassment by employees or non-employees; (2) defendant’s legal duty of care toward plaintiff (defendant is plaintiff’s employer); (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289.)

In light of the fact that the 6th cause of action is derivative of Plaintiff’s 2nd cause of action, and this Court has granted summary judgment of the 2nd cause of action, it follows that Defendant’s motion for summary judgment is granted as to the 6th cause of action. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021 [“An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination”]; Dickson v. Burke Williams (2015) 234 Cal.App.4th 1307, 1317 [stating there cannot be a valid claim for failure to take reasonable steps necessary to prevent discrimination if the necessary elements of a discrimination claim are not present].)

Accordingly, Defendant’s motion for summary judgment of the 6th cause of action is granted.

[1] The Court notes the causes of action as numbered in Defendant’s notice of motion do not correspond to the causes of action numbered in Plaintiff’s Complaint. Plaintiff’s cause of action for religious discrimination in violation of FEHA is the 2nd cause of action (not the 1st cause of action). Plaintiff’s cause of action for retaliation in violation of FEHA is the 3rd cause of action, and Plaintiff’s cause of action for violation of the Labor Code is the 4th cause of action (not the 2nd and 3rd causes of action, respectively). Plaintiff’s cause of action for failure to accommodate in violation of FEHA is the 5th cause of action (not the 4th cause of action). Finally, Plaintiff’s cause of action for failure to prevent discrimination in violation of FEHA is the 6th cause of action (not the 5th cause of action).

[2] Counsel for Plaintiff and Defendant are admonished for not including the procedural history of the causes of action and the effect of the stipulation on the remaining causes of action in the Complaint. This omission from counsels’ papers wasted judicial resources, particularly in light of the fact this matter was reassigned to a new judicial officer after the stipulation was granted.

[3] The Court notes the case cited in Defendant’s reply, Jackson v. City of Los Angeles (1999) 69 Cal.App.4th 769, involves a similar disciplinary proceeding and provision of the City of Los Angeles Charter, but does not address the issue presented here of whether Plaintiff’s failure to appear at the Board hearing precludes him from asserting the instant cause of action.