Judge Daniel M. Crowley, Case Number: 23STCV01676, Date: 2024-04-23 Tentative Ruling

Defendant Los Angeles Unified School District’s motion for summary judgment of Plaintiff Victoria Suarez’s Complaint is denied.

Defendant Los Angeles Unified School District’s motion in the alternative for summary adjudication of Plaintiff Victoria Suarez’s Complaint is granted as to the 4th, 10th, 11th, and 13th causes of action and denied as to the 1st, 2nd, 3rd, 9th, and 12th causes of action.

Defendant Los Angeles Unified School District [erroneously sued as Los Angeles Unified School District Accounting & Disbursements Division Payroll Administration Branch] (“LAUSD”) (“Defendant”) moves for summary judgment of each cause of action alleged in Plaintiff Victoria Suarez’s (“Suarez”) (“Plaintiff”) operative complaint. (Notice Motion, pg. 2; C.C.P. §437.)

Defendant moves in the alternative for summary adjudication of Plaintiff’s 1st [Issue 1], 2nd [Issue 2], 3rd [Issue 3], 4th [Issue 4], 9th [Issue 5], 10th [Issue 6], 11th [Issue 7], 12th [Issue 8], and 13th [Issue 9] causes of action. (Notice Motion, pgs. 2-3; C.C.P. §437c et seq.)

Defendant moves on the grounds the 1st, 2nd, and 3rd causes of action for Medical Condition Discrimination, Failure to Accommodate Medical Condition, and Failure to Engage in the Interactive Process to Accommodate Medical Condition, respectively, have no merit because there is no triable issue of fact as to whether Plaintiff’s alleged discrimination was born out of her “cancer or history of cancer,” because Plaintiff did not suffer any adverse employment action, and because the District’s Covid-19 Vaccination Mandate was a legitimate business decision. (Notice Motion, pgs. 2-3.)

Defendant moves on the grounds Plaintiff’s 4th cause of action for Medical Condition Retaliation for Requesting and Using Accommodations fails because there is no triable issue of fact as to whether Plaintiff’s request for accommodation was born out of her “cancer or history of cancer,” because Plaintiff did not suffer any adverse employment action, the District’s Covid-19 Vaccination Mandate was a legitimate business decision, and because Plaintiff did not engage in any protected activity prior to her separation that could form the basis of this claim. (Notice Motion, pg. 3.)

Defendant moves on the grounds Plaintiff’s 9th and 10th causes of action for Medical Leave Retaliation and Medical Leave Discrimination, respectively, fail because Plaintiff received more than the requisite twelve-weeks of leave, no one discouraged her from taking a leave of absence, the District’s Covid-19 Vaccination Mandate was a legitimate business decision, and because her separation from the LAUSD was a ministerial act. (Notice Motion, pg. 3.)

Defendant moves on the grounds the 11th cause of action Retaliation for Opposing Violations of FEHA has no merit because Plaintiff was separated from her employment after she failed to comply with the Covid-19 Vaccination Mandate, and she exhausted her benefit time and LAUSD’s Covid-19 Vaccination Mandate was based on a legitimate, non-discriminatory reason. (Notice Motion, pg. 3.) Defendant moves on the grounds the 12th cause of action for Failure to Prevent and Stop Discrimination and Retaliation has no merit because Plaintiff cannot establish the predicate causes of action medical condition discrimination or retaliation. (Notice Motion, pg. 3.) Finally, Defendant moves on the grounds the 13th cause of action for Whistleblower Retaliation has no merit because there is no evidence that Plaintiff ever made a complaint that could be considered whistleblowing, Plaintiff was separated from her employment after she failed to comply with the Covid-19 Vaccination Mandate, and she exhausted her benefit time. (Notice Motion, pg. 3.)

Defendant’s 2/6/24 request for judicial notice of (1) Plaintiff’s complaint, and (2) the notice of ruling re Defendant’s demurrer to Plaintiff’s complaint is denied because this Court does not need to take judicial notice of filings on the instant docket.

Plaintiff’s 4/9/24 evidentiary objections to the Declaration of Smita Malhotra (“Malhotra”) are sustained as to Nos. 1, 7, 8, 9, 14, 15, 16, 17, 18, 19, 24, 25, 29, 30, 31, 32, and 33, and overruled as to Nos. 2, 3, 4, 5, 6, 10, 11, 12, 13, 20, 21, 22, 23, 26, 27, and 28.

Plaintiff’s 4/9/24 evidentiary objections to the Declaration of Francisco Serrato (“Serrato”) are overruled as to Nos. 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, and 45.

Defendant’s 4/18/24 evidentiary objection to the Declaration of Geoffrey C. Lyon (“Lyon”) is sustained as to No. 1.

Defendant’s 4/18/24 evidentiary objection to the Declaration of Victoria Suarez (“Suarez”) is overruled as to Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, and 46.

Defendant’s 4/18/24 evidentiary objection to Plaintiff’s Separate Statement of Additional Material Facts is overruled as to Nos. 47 and 48.

Plaintiff filed her operative Complaint on January 26, 2023, alleging thirteen causes of action: (1) medical condition discrimination (Govt. Code §§12926(i), (m), 12940(a)); (2) failure to accommodate medical condition (Govt. Code §§12926(i), (m)(1), 12940(m)); (3) failure to engage in the interactive process to accommodate medical condition (Govt. Code §§12926(i), (m), 12940(n)); (4) medical condition retaliation for requesting and using accommodations (Govt. Code §§12926(i), (m), 12940(m)(2)); (5) retaliation for requesting and using accommodations for disabilities (Govt. Code §12940(m)); (6) failure to engage in a timely, good faith, interactive process to determine reasonable accommodation for disability (Govt. Code §12940(n)); (7) failure to reasonably accommodate disabilities (Govt. Code §12940(m); (8) disability discrimination (Govt. Code §12940(a)); (9) medical leave retaliation (Govt. Code §12945.2, CFRA); (10) medical leave discrimination (Govt. Code §12945.2, CFRA); (11) retaliation for opposing violations of FEHA (Govt. Code §12940(h)); (12) failure to prevent and stop discrimination and retaliation (Govt. Code §§12940(j), (k)); and (13) whistleblower retaliation (Labor Code §§1102.5, 1102.6).

On July 7, 2023, this Court sustained Defendant’s demurrer to Plaintiff’s 5th, 6th, 7th, and 8th causes of action with 20 days leave to amend. (7/7/23 Minute Order.) Plaintiff did not amend the causes of action to which this Court sustained Defendant’s demurrer. Therefore, for the purposes of this motion, only the 1st, 2nd, 3rd, 4th, 9th, 10th, 11th, 12th, and 13th causes of action from the original Complaint remain.

Defendant filed the instant motion on February 6, 2024. Plaintiff filed her opposition on April 9, 2024. Defendant filed its reply on April 18, 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) she was a member of a protected class, (2) she was qualified for the position sought or was performing competently in the position held, (3) she 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 was separated from her employment based on a legitimate, non-discriminatory reason. (Motion Memo, pg. 18.) Defendant argues Plaintiff cannot prevail under this cause of action because, at the time she sought accommodation from the Covid-19 Vaccination Mandate, she no longer suffered from cancer, and her history of cancer was not the basis for her request for accommodation. (Motion Memo, pg. 19.) Finally, Defendant argues Plaintiff cannot prevail on this cause of action because she cannot prove she suffered an actionable adverse employment action. (Motion Memo, pg. 19.)

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 was not subject to an adverse employment action, but rather she received a letter informing her of her separation from employment, which, as a matter of law, does not constitute an adverse employment action. (Ed. Code §45192(g) [“When all available leaves of absence, paid or unpaid, have been exhausted and if the employee is not medically able to assume the duties of his or her position, the employee shall, if not placed in another position, be placed on a reemployment list for a period of 39 months.”], emphasis added; Trotter v. Los Angeles County Board Of Education (1985) 167 Cal.App.3d 891, 898 [stating purpose of Education Code §45192 is to allow the employment agency to fill the position while at the same time providing the separated employee with “preferential treatment in terms of reemployment”].)

Defendant argues the act of separating a classified employee who is on medical leave because she cannot medically perform the duties of his or her existing position and who has exhausted his or her benefits, is a ministerial, non-discretionary mandatory act by a school district. (Trotter, 167 Cal.App.3d at pg. 896 [“[where] a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion.”].) Defendant argues unlike a termination, employees placed on the 39-month re-employment list are placed in the preferential position of enjoying a right to reinstatement. (Id. at pg. 898.) Defendant argues an employee who has been separated pursuant to Education Code §45192 has a right to reinstatement when she is medically able to return to work, that is, if during the 39-month period an employee is able to resume the duties of their position, they are re-employed in that position, the break in service is disregarded, and the employee is fully restored as a permanent employee. (Davis v. Los Angeles Unified School District Personnel Commission (2007) 152 Cal.App.4th 1122, 1128.)

The Court is not convinced by Defendant’s argument that Plaintiff was not subject to an adverse employment action because there is a distinction between “the act of separating a classified employee who is on medical leave because she cannot medically perform the duties of his or her existing position and who has exhausted his or her benefits, is a ministerial, non-discretionary mandatory act by a school district” and a termination of employment. (Trotter, 167 Cal.App.3d at pg. 896.) It is undisputed by both parties in their separate statement of facts that Plaintiff was separated from her employment after she used up all her benefit time while she was on a leave of absence. (Defendant’s Undisputed Separate Statement of Fact [“D-USSF”] 45.) Under the materiality test articulated in Yanowitz, an employee’s separation from employment after she used up all of her benefit time while she was on a leave of absence is “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.)

Plaintiff submitted evidence that on or about October 21, 2022, she received her termination letter, and that despite the prior confirmation, the letter claimed Plaintiff had been “separated” from Defendant “effective August 2, 2022.” The letter further claimed that Plaintiff had exhausted all available medical leave. (Plaintiff’s Disputed Additional Material Facts [“P-DAMF”] 176; P-COE, Decl. of Suarez ¶60, Exh. 26.) Plaintiff met her burden to demonstrate the existence of an adverse employment action—the separation of her employment from Defendant—that materially affected her opportunity for advancement in her career. Therefore, Plaintiff shifts the burden to Defendant to demonstrate a non-discriminatory reason for the 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 Plaintiff’s separation from LAUSD was because Plaintiff exhausted her leave of absence-related benefits with Defendant, and not because of her history of cancer. (Motion Memo, pg. 22.) Defendant further argues that Plaintiff’s separation and placement on the 39-month reemployment list was a mandatory, nondiscretionary, automatic, and ministerial act. (Motion Memo, pg. 21.)

Defendant submitted evidence of its non-discriminatory reason to terminate Plaintiff’s employment. Defendant refers this Court to Education Code §45192(g), which provides:

When all available leaves of absence, paid or unpaid, have been exhausted and if the employee is not medically able to assume the duties of his or her position, the employee shall, if not placed in another position, be placed on a reemployment list for a period of 39 months.

(Ed. Code §45192(g), emphasis added.) Defendant submitted evidence that Plaintiff was separated from her employment after she used up all her benefit time while she was on a leave of absence. (D-USSF 45.) Defendant met its burden to demonstrate a non-discriminatory reason for the adverse employment action, shifting the burden back to Plaintiff to demonstrate the reason provided was a 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 Defendant failed to follow its own exemption policy, failed to allow Plaintiff to telecommute despite her position not requiring in person contact with students, failed to investigate other possible accommodations that Plaintiff proposed, failed to respond to Plaintiff’s requests to be accommodated, failed to allow Plaintiff to remain on unpaid leave at no cost to Defendant, and failed to allow Plaintiff to transfer to another accountant position (or any other position) where they would allow her to telecommute. (Opposition, pg. 16.)

Plaintiff submitted evidence that Defendant terminated her without advising her that she could request unpaid personal leave. Specifically, Plaintiff submitted her declaration stating no one from LAUSD ever suggested an alternative accommodation, nor did anyone suggest that she may be able to obtain additional leave as an accommodation. (P-DAMF 182; P-COE, Decl. of Suarez ¶51.) Plaintiff submitted evidence that during the time she was on leave, Defendant never tried to fill her position. (Plaintiff’s Undisputed Additional Material Facts [“P-UAMF”] 184.)

Plaintiff met her burden to demonstrate Defendant’s proffered reason is pretext for discrimination because it never advised Plaintiff that she could have taken a different form of personal leave that would have obviated her separation under Education Code §45192(g).

Accordingly, Defendant’s motion for summary adjudication is denied as to the 1st cause of action.

“There are three elements to a failure to accommodate action: ‘(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. [Citation.]’” (Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193-1194.)

“Under the FEHA, ‘reasonable accommodation’ means ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.)

“The examples of reasonable accommodations in the relevant statutes and regulations include reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether. FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375.)

“A term of leave from work can be a reasonable accommodation under FEHA, and, therefore, a request for leave can be considered to be a request for accommodation under FEHA.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243, internal citation omitted.)

Defendant argues Plaintiff’s allegation regarding LAUSD’s refusal to grant her illness leave is false, and that Plaintiff was not able to perform the essential functions of her job with an accommodation because her daily interactions with students at the school bookstore could not be done remotely. (Motion Memo, pgs. 23-24.)

Defendant submitted evidence that it did not refuse Plaintiff’s request for illness leave. Specifically, Defendant submitted evidence that from July 2020 to March 29, 2022, Plaintiff requested and was granted a paid leave of absence from her employment with LAUSD due to her cancer. (Defendant’s Disputed Separate Statement of Fact [“D-DSSF”] 28; D-COE, Decl. of Rosenberg ¶3, Exh. 10 at 54:9-55:13; Decl. of Serrato ¶8, Exh. 4.) Defendant submitted evidence that Plaintiff was not able to perform the essential functions of her job with an accommodation, which included working in the student bookstore and being present at the school site to assist students with the purchase of items. (D-DSSF 23; D-COE, Decl. of Rosenberg ¶¶4-6, Exh. 11 at 19:1-17, 24:17-23, 27:5-16; Exh. 12 at 7:17-8:2; Exh. 13 at 33:15-34:14, 37:14-24; Decl. of Serrato ¶7, Exh. 3.) Defendant met its burden to demonstrate it did not refuse Plaintiff’s request for illness leave, and Plaintiff was not able to perform the essential functions of her job with an accommodation, shifting the burden to Plaintiff to raise a triable issue of material fact.

Plaintiff met her burden to raise a triable issue of material fact as to whether she could complete the essential functions of her job with an accommodation. Plaintiff submitted evidence that her job description does not include helping at the bookstore window or interacting in person with students as part of her duties. (P-DAMF 101; P-COE, Decl. of Suarez ¶5, Exh. 1.) Plaintiff submitted evidence that her job duties were to keep spreadsheets keeping track of deliveries to the school bookstore, purchasing, accounts payable, and accounts receivable, all of which Plaintiff would do at a computer, and all of which could be done remotely. Plaintiff would help in the window if the bookstore was busy, approximately 10 percent of the day, but this task was usually handled by assistants. (P-DAMF 100; P-COE, Decl. of Suarez ¶4.) Plaintiff demonstrated a triable issue of material fact exists as to whether she could have could complete the essential functions of her job with an accommodation.

Accordingly, Defendant’s motion for summary adjudication of the 2nd cause of action is denied.

The essential elements of a cause of action for failure to engage in an interactive process are: (1) defendant was an employer; (2) plaintiff was an employee of defendant; (3) plaintiff has a disability or medical condition that was known to defendant; (4) plaintiff requested that defendant make a reasonable accommodation for that disability/medical condition so she would be able to perform the essential job requirements; (5) plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made; (6) defendant failed to participate in a timely, good-faith interactive process with the plaintiff to determine whether reasonable accommodation could be made; (7) plaintiff was harmed; and (8) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm. (See CACI No. 2546.)

“FEHA’s reference to a ‘known’ disability is read to mean a disability of which the employer has become aware, whether because it is obvious, the employee has brought it to the employer’s attention, it is based on the employer’s own perception—mistaken or not—of the existence of a disabling condition or, perhaps as here, the employer has come upon information indicating the presence of a disability.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61 n.21.)

“To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because ‘[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have . . . ..’ However, as the Nadaf-Rahrov [v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952] court explained, once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced: ‘Section 12940[, subdivision](n), which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.’” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018-1019.)

Defendant argues Plaintiff’s requests for leave were always granted, and during the relevant timeframe, Plaintiff no longer suffered from cancer. (Motion Memo, pg. 25.) Defendant argues Plaintiff admits hiding from Defendant that the only medical condition she suffered from was rheumatoid arthritis, and her oncologist testified that Plaintiff’s desire to avoid a second COVID-19 vaccination was unrelated to her cancer or history of cancer. (Motion Memo, pg. 25.) Defendant argues Plaintiff admits no one discouraged her from taking any medical leave. (Motion Memo, pg. 25.) Finally, Defendant argues it engaged in the interactive process with Plaintiff on April 6, 2022, and determined that the essential job duties of Plaintiff’s position required that employee to be present in person at the job site and that there were no remote jobs for her position available. (Motion Memo, pg. 26.)

Defendant’s argument that “that the only medical condition [Plaintiff] suffered from was rheumatoid arthritis, and her oncologist testified that Plaintiff’s desire to avoid a second COVID-19 vaccination was unrelated to her cancer or history of cancer,” is specious and unavailing. That Plaintiff only identified “cancer” as her medical condition and did not specify that rheumatoid arthritis caused the severe side effects she experienced after taking the first dose of the COVID-19 vaccine is immaterial. Defendant acknowledges Plaintiff communicated to LAUSD her need for additional accommodations based on a medical condition; under California law, Defendant “[came] upon information indicating the presence of a disability,” sufficient for Defendant to have had notice of Plaintiff’s medical condition. (Gelfo, 140 Cal.App.4th at pg. 61 n.21.)

Defendant submitted evidence that it engaged in the interactive process with Plaintiff on April 6, 2022, and determined that the essential job duties of Plaintiff’s position required that employee to be present in person at the job site and that there were no remote jobs for her position available. (D-DSSF 36-37; D-COE, Decl. of Serrano ¶9, Exh. 5; Decl. of Rosenberg ¶3, Exh. 10 at 74:24-75:18.) Defendant submitted evidence that on the basis that Plaintiff’s job could not be performed purely remotely, and because alternative positions were not available, it denied Plaintiff’s request to work remotely. (D-DSSF 42; Decl. of Serrano ¶12, Exh. 8.) Defendant submitted evidence that at the time Plaintiff sought to work remotely, there were no Accounting Tech II jobs that could be performed remotely because all vacancies required interaction at a LAUSD facility. (D-DSSF 43; Decl. of Rosenberg ¶8, Exh. 15 at 22:2-16, 38:6-39:3.) Defendant met its burden to demonstrate it participated in a timely, good-faith interactive process with the Plaintiff to determine whether reasonable accommodation could be made, shifting the burden to Plaintiff to raise a triable issue of material fact.

Plaintiff met her burden to raise a triable issue of material fact as to whether an available accommodation the interactive process should have been produced at the time of the interactive process meeting. Specifically, Plaintiff submitted evidence in her declaration that Defendant terminated her without advising her that she could request an unpaid personal leave. (P-DAMF 182.) Plaintiff submitted evidence in the form of her own declaration, deposition testimony, and an email to Defendant that she requested to work remotely, or alternatively, to work in a separate room. (P-UAMF 158.)

Accordingly, Defendant’s motion for summary adjudication of the 3rd cause of action is denied.

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.)

“‘Standing alone, an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination.’ ‘[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.’ [¶] But employees need not explicitly and directly inform their employer that they believe the employer’s conduct was discriminatory or otherwise forbidden by FEHA.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046, internal citation omitted.)

“Notifying one’s employer of one’s medical status, even if such medical status constitutes a ‘disability’ under FEHA, does not fall within the protected activity identified in subdivision (h) of section 12940—i.e., it does not constitute engaging in opposition to any practices forbidden under FEHA or the filing of a complaint, testifying, or assisting in any proceeding under FEHA.” (Moore, 248 Cal.App.4th at pg. 247.)

Defendant argues Plaintiff cannot prevail on her cause of action for retaliation in violation of FEHA because there is no evidence Plaintiff ever engaged in a protected activity that she can recover from in this lawsuit. (Motion Memo, pg. 27.)

Defendant submitted evidence that Plaintiff failed to engage in any protected activity that would allow her to claim retaliation in the relevant time frame. Specifically, Defendant submitted undisputed evidence that Plaintiff was separated from employment after she used up all of her benefit time while she was on a leave of absence. (D-USSF 45.) Defendant submitted evidence that Plaintiff admitted she never told anyone at LAUSD or reported to any governmental entity that she thought LAUSD did anything wrong before she was separated from her employment with LAUSD. (D-DSSF 46; D-COE, Decl. of Rosenberg ¶3, Exh. 10 at 98:1-99:6.) Defendant submitted undisputed evidence that Plaintiff filed her FEHA complaint after she was terminated on January 25, 2023, when she was no longer Defendant’s employee. (D-USSF 47.) Defendant met its burden to demonstrate Plaintiff did not engage in a protected activity as employee, shifting the burden to Plaintiff to demonstrate a triable issue of material fact as to whether she engaged in a protected activity as Defendant’s employee.

Plaintiff failed to meet her burden to demonstrate a triable issue of material fact as to the cause of action for retaliation in violation of FEHA. Plaintiff failed to submit admissible evidence raising a triable issue of material fact demonstrating she engaged in protected activity as an employee that meets the requirements for protected activity under Government Code §12940(h).

Accordingly, Defendant’s motion for summary adjudication is granted as to the 4th cause of action.

“The elements of a cause of action for retaliation in violation of [the California Family Rights Act (“CFRA”)] are ‘(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].’” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 604, internal citations omitted, emphasis added.)

“Similar to causes of action under FEHA, the McDonnell Douglas burden shifting analysis applies to retaliation claims under CFRA.” (Moore, 248 Cal.App.4th at pg. 248, emphasis added.)

“When an adverse employment action ‘follows hard on the heels of protected activity, the timing often is strongly suggestive of retaliation.’” (Bareno v. San Diego Community College District (2017) 7 Cal.App.5th 546, 571, internal citations omitted, emphasis added.)

“An interference claim under CFRA does not invoke the burden shifting analysis of the McDonnell Douglas test. Rather, such a claim requires only that the employer deny the employee’s entitlement to CFRA-qualifying leave. A CFRA interference claim ‘consists of the following elements: (1) the employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those rights.’” (Moore, 248 Cal.App.4th 216, 250, internal citations omitted, emphasis added.)[1]

“An employee who takes CFRA leave is guaranteed that taking such leave will not result in a loss of job security or other adverse employment actions. Upon an employee’s timely return from CFRA leave, an employer must generally restore the employee to the same or a comparable position. An employer is not required to reinstate an employee who cannot perform her job duties after the expiration of a protected medical leave.” (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487, footnote and internal citations omitted, superseded on other grounds by statute.)

Defendant argues Plaintiff’s claims for CFRA retaliation and discrimination fail because all of Plaintiff’s requests for leave granted, and Plaintiff was granted many more weeks than the twelve weeks required by statute. (Motion Memo, pgs. 27-28.) Defendant further argues Plaintiff admits no one discouraged her from taking a leave of absence, and finally her separation from LAUSD was due to her exhaustion of benefit time. (Motion Memo, pg. 28.)

Defendant submitted evidence that all of Plaintiff’s requests for leave were granted, and Plaintiff was granted more than the twelve weeks of leave required by C.C.P. §12945.2. Specifically, Defendant submitted evidence in the form of Plaintiff’s leave of absence requests and Plaintiff’s deposition testimony stating that from July 2020 to March 29, 2022, she requested and was granted paid leave of absence from her employment with LAUSD due to her cancer treatment. (D-DSSF 28, 30; D-COE, Decl. of Rosenberg ¶3, Exh. 10 at 54:9-55:13; Decl. of Serrato ¶8, Exh. 4.) Defendant met its burden to demonstrate it granted Plaintiff’s requests for leave were granted, and Plaintiff’s requests were for more than the twelve weeks of leave required by statute, which goes to the second element of the 10th cause of action for CFRA interference, but not the 9th cause of action for CFRA retaliation. Therefore, Defendant only shifts the burden to Plaintiff to raise a triable issue of material fact as to the 10th cause of action for CFRA interference. Defendant fails to shift the burden to Plaintiff to raise a triable issue of material fact as to the 9th cause of action for CFRA retaliation.

Plaintiff failed to meet her burden to raise a triable issue of material fact on the 10th cause of action for CFRA interference to demonstrate Defendant interfered with or denied Plaintiff’s CFRA rights. Plaintiff does not dispute that she was separated from her employment after she used up all of her benefit time while she was on a leave of absence. (P-DSSF 45.)

Accordingly, Defendant’s motion for summary adjudication is denied as to the 9th cause of action and is granted as to the 10th cause of action.

For the same reasons stated with regard to Plaintiff’s 4th cause of action for retaliation in violation of FEHA, Defendant sufficiently met its burden to demonstrate Plaintiff cannot prevail on her cause of action for retaliation in violation of FEHA because there is no evidence Plaintiff ever engaged in a protected activity that she can recover from in this lawsuit. (Motion Memo, pg. 27.)

Accordingly, Defendant’s motion for summary adjudication is granted as to the 11th cause of action.

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.)

Defendant argues Plaintiff’s cause of action for failure to prevent discrimination or retaliation fails because Plaintiff cannot establish liability under her foundational theories of liability. (Motion Memo, pg. 28.) However, this Court determined that Plaintiff sufficiently made a prima facie showing of discrimination in her 1st cause of action for medical condition discrimination. Therefore, Defendant failed to meet its burden to demonstrate it is entitled to judgment as a matter of law on the 12th cause of action and does not shift the burden to Plaintiff to demonstrate a triable issue of material fact.

Accordingly, Defendant’s motion for summary judgment of the 12th cause of action is denied.

“[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’s cause of action fails because Plaintiff never disclosed any relevant information to LAUSD or suffered an adverse employment action, so she cannot establish a prima facie case of whistleblower retaliation. (Motion Memo, pg. 29.)

Defendant submitted evidence that Plaintiff admitted she never told anyone at LAUSD or reported to any governmental entity that she thought LAUSD did anything wrong before she was separated from her employment with LAUSD. (D-DSSF 46.) Defendant submitted evidence that Plaintiff filed her FEHA complaint after she was terminated. (D-USSF 47.) Defendant met its burden to demonstrate Plaintiff never disclosed to a person with authority over her, or an employee with authority to investigate, discover, or correct legal violations about a violation of a state/federal statute or a violation of/noncompliance with a local/state/federal rule or regulation, shifting the burden to Plaintiff to raise a triable issue of material fact.

Plaintiff failed to meet her burden to raise a triable issue of material fact as to whether she disclosed to an authority at LAUSD about a violation of or noncompliance with a state or federal statute.

Accordingly, Defendant’s motion for summary adjudication of the 13th cause of action is granted.

Defendant’s motion in the alternative for summary adjudication is granted as to the 4th, 10th, 11th, and 13th causes of action and denied as to the 1st, 2nd, 3rd, 9th, and 12th causes of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Plaintiff’s 10th cause of action is alleged as CFRA discrimination. However, Courts have interpreted CFRA discrimination causes of action to be CFRA interference causes of action. (See Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 878-885.)