Judge Elaine Lu, Case 20STCV20014 2022-12-07 Tentative Ruling

On May 27, 2020, Plaintiff Medgar Parrish (“Plaintiff”) filed the instant employment discrimination action against Defendant City of Los Angeles (“Defendant”). On October 16, 2020, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendant alleging six causes of action for (1) Age Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”), (2) Disability Discrimination in Violation of FEHA, (3) Failure to Accommodate in Violation of FEHA, (4) Failure to Engage in the Interactive Process in Violation of FEHA, (5) Retaliation in Violation of FEHA, and (6) Failure to Prevent Discrimination in Violation of FEHA.

On January 21, 2022, Defendant filed the instant motion for summary judgment or in the alternative summary adjudication. On September 26, 2022, Plaintiff filed an opposition. On October 21, 2022, Defendant filed a reply.

“Plaintiff, who was 57 years old at the time of the filing of this complaint, began working for Defendant in the Los Angeles Department of Transportation (‘LADOT’) on or around January 18, 2000 as a Traffic Officer II. Between 2004 and 2006, Plaintiff had operations on both his left and right hips due to work-related injuries. After his surgeries, Plaintiff’s doctors gave him restrictions for his disabilities, such as limits on the length of time he could stand and walk.” (FAC ¶ 8.) In 2010, as an accommodation for Plaintiff’s disabilities, LADOT placed Plaintiff as an Assistant Clerk. (FAC ¶ 9.)

As an accommodation in 2012, LADOT transferred Plaintiff into the position of Videographer /Photographer. (FAC ¶ 9.) This position involved “cleaning up” LADOT’s negative media publicity and maintaining a positive social media presence by documenting events, such as groundbreaking for new construction, for uploading to YouTube and other social media platforms. (FAC ¶ 10.) On June 22, 2017, Plaintiff suffered a heart attack and was place[d] on leave by his doctors for three weeks to recover. (FAC ¶ 11.) “On or about July 7, 2017, while Plaintiff was still recovering, LADOT asked Plaintiff to resign his permanent position and accept a temporary position with LADOT. Plaintiff refused to resign.” (FAC ¶ 11.)

“In or around September 2018, an anonymous complaint was made to LADOT’s Human Resources Department (‘HR’) stating that Plaintiff had been sexually harassed by Plaintiff’s supervisor in the men’s bathroom. HR subsequently interviewed Plaintiff[,] and Plaintiff stated that he did not believe he had been sexually harassed and that he had not made the complaint. Nevertheless, Plaintiff’s supervisor immediately resigned.” (FAC ¶ 13.)

“Shortly thereafter, on or around November 2, 2018, LADOT told Plaintiff that his restrictions could no longer be accommodated in the position of Videographer / Photographer, despite Plaintiff having worked in this position since 2012. Shortly after removing Plaintiff from his position as Videographer / Photographer, LADOT replaced Plaintiff with a substantially younger employee who had less experience and qualifications than Plaintiff.” (FAC ¶ 14.)

“In or around October 2018, LADOT offered Plaintiff a position as a Senior Administrative Clerk. Plaintiff accepted the position. However, despite Plaintiff’s acceptance of the position, LADOT refused to allow him to begin working in the Senior Administrative Clerk position. In or around August 2019, LADOT again offered Plaintiff a position as Senior Administrative Clerk, and Plaintiff accepted the position. However, once again, LADOT refused to allow him to return to work. Since November 2018, LADOT has refused to allow Plaintiff to return to work.” (FAC ¶ 15.)

In opposition, Plaintiff objects to a declaration of Michael Rollins, Kim McNeal, and Claudette Singh. However, Defendant has never submitted any declaration by Michael Rollins, Kim McNeal, or Claudette Singh in support of the instant motion. It is quite clear that Plaintiff’s objections are directed to evidence in a different case as the objections refer to a different Plaintiff by the name of Parker and SAG-AFTRA, both of which are not involved in any manner to the instant action. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q), [italics added].) Here, Plaintiff has objected to non-existence evidence. Plaintiff’s objections are immaterial to the disposition of the instant motion. Accordingly, the Court declines to rule on Plaintiff’s irrelevant evidentiary objections.

In reply, Defendant objects to portions of the declarations of Medgar Parrish and Sheryl Marx. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q), [italics added].) The Court rules as follows as to the evidentiary objections material to the disposition of the instant motion:

“Plaintiff was hired in 2000 by the LADOT as a Traffic Officer II.” (Undisputed Material Fact “UMF” 1.) “He worked in this capacity until 2006 when he underwent his second hip surgery.” (UMF 2.) “Plaintiff was placed off work from 2006 through 2008.” (UMF 3.) “When he returned to work he was assigned a light duty position as a radio dispatcher.” (UMF 5.) “He was then given another light duty assignment in Central Parking Enforcement, where he worked as a desk clerk from 2008 to 2012.” (UMF 6.)

“In 2016 plaintiff applied for the position of Principal Photographer, listing his experience as a videographer/photographer with the communications office.” (UMF 8.) “Although the office received approval for the new position of Public Relations Specialist I on May 22, 2017, the position was given to another qualified employee because plaintiff did not pass the exam.” (UMF 16.)

“As an alternative, plaintiff was offered a 1014 transfer to a Senior Administrative Clerk position. He was also offered a position as project assistant, if the office was granted approval for this move.” (UMF 19.) “In October 2017 plaintiff expressed his desire to pursue the project assistant position.” (UMF 20.) “The request by the communications office for a project assistant position was ultimately denied in August 2018.” (UMF 21.)

“On September 10, 2018 Plaintiff went out on a medical leave. He was not cleared to return until March 2019.” (UMF 24.) “Plaintiff never returned this paperwork with his signature.” (UMF 26.) “When plaintiff was cleared for work in March 2019 the interactive process started anew. On May 9, 2019 an interactive process meeting was held with plaintiff and his union representative, at which time he was advised that the only option available to him at that time was a 1014 classification change to a senior administrative clerk position, due to his permanent work restrictions.” (UMF 28.) “In June 2019 plaintiff agreed to accept the transfer to Senior Administrative Clerk and the search for an open position was conducted.” (UMF 29.) “In August 2019 a Senior Administrative Clerk position was located for Plaintiff in the Valley.” (UMF 30.) “A meeting was then held with plaintiff, his union representative and the prospective supervisors at the Valley location. At the conclusion of this meeting plaintiff accepted the assignment.” (UMF 31.)

“Plaintiff was 57 years old when he filed the FAC.” (UMF 34.) “In that exchange plaintiff purportedly asks ‘So, you’re forcing everyone out of the City?’ Ow replies, ‘Not me, they are hiring young people’”. (UMF 36.) “He also believed that the City was hiring young people.” (UMF 37.) “Plaintiff was never told that he was being moved out of his videographer position because of his age.” (UMF 38.) “Miranda Ow did not tell plaintiff that he was being moved out of his position because of his age.” (UMF 39.)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Defendant moves for summary judgment or in the alternative summary adjudication of the claims alleged against it – i.e., the first through fifth causes of action.

Defendant contends that the two claims for discrimination fail because (1) Plaintiff is unable to perform the essential functions of the job and was therefore not a qualified individual, and (2) there is no evidence of a discriminatory motive.

“The express purposes of FEHA are ‘to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons.’ (§ 12920.5.) The Legislature accordingly has mandated that the provisions of the statute ‘shall be construed liberally’ to accomplish its purposes. (§ 12993(a).) As the Supreme Court has recognized, ‘[b]ecause the FEHA is remedial legislation, which declares ‘[t]he opportunity to seek, obtain and hold employment without discrimination’ to be a civil right [citation], and expresses a legislative policy that it is necessary to protect and safeguard that right [citation], the court must construe the FEHA broadly, not . . . restrictively.’ [Citation.]” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583.)

“In analyzing claims of discrimination under FEHA, California courts have long used the three-stage burden-shifting approach established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (McDonnell Douglas) for the analysis of title VII (42 U.S.C. § 2000e et seq.) employment discrimination claims. [Citations.] The McDonnell Douglas test ‘reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.’ [Citations.]” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181.)

“Under the McDonnell Douglas test a plaintiff may establish a prima facie case for unlawful discrimination by providing evidence that ‘(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some circumstance suggests discriminatory motive.’ [Citations.]” (Husman, supra, 12 Cal.App.5th at 1181.)

“The FEHA prohibits discrimination against any person with a disability but, like the ADA, provides that the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation.” (Green v. State of California (2007) 42 Cal.4th 254, 257.) A “plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.)

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) On a motion for summary judgment, or adjudication, a defendant need only “negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493.)

Here, the FAC alleges that Plaintiff was originally hired on January 18, 2000 as a Traffic Officer II. (FAC ¶ 8.) After surgery to Plaintiff’s hips for work-related injuries Plaintiff was given certain restrictions by his doctor limiting Plaintiff’s ability to stand and walk. (FAC ¶ 8.) In 2012, to accommodate his disabilities, Plaintiff was transferred to the position of Videographer/Photographer. Plaintiff performed the work of Videographer/Photographer for the next six years before being removed as a Videographer/Photographer and being prevented by Defendant from working. (FAC ¶¶ 11-15.)

Defendant contends that Plaintiff could not perform all the essential functions of a traffic officer and therefore was not a qualified individual. Relying on Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, Defendant further contends that the Videographer/Photographer was temporary, and Defendant did not have any duty to convert the temporary position to a permanent assignment. However, Defendant’s reliance on Raine is misplaced.

In Raine, a police officer sued the City of Burbank under FEHA for refusing to convert his temporary light-duty assignment that the police officer had performed for six years into a permanent assignment when his temporary disability became permanent. (Raine, supra, 135 Cal.App.4th at pp.1218-1221.) The trial court granted summary judgment for the city. (Id. at p.1221.) The Court of Appeal affirmed and held that “an employer has no duty (absent perhaps workplace precedent suggesting its reasonableness) to accommodate a disabled employee by making a temporary accommodation permanent if doing so would require the employer to create a new position just for the employee.” (Id. at p.1227.)

In the instant action, the FAC does not allege that the Videographer/Photographer was temporary but rather that Plaintiff was transferred into the position of Videographer/Photographer. (FAC ¶ 9.) Nor does Defendant provide sufficient evidence in the memorandum or separate statement showing that Plaintiff’s position as a Videographer/Photographer was temporary. (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, Fn. 4, [“ ‘[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’ ”]; Cal. Rules of Court, Rule 3.1113(b).)^{^[1]}

Here, the only evidence cited in the memorandum and in the separate statement is that during a November 16, 2017 workers compensation deposition, Plaintiff testified that he was first hired as a Traffic Officer II, Plaintiff was at the time of the deposition working as a Videographer/Photographer which he obtained as a light duty assignment after hip replacement surgeries, Plaintiff was “unable to perform any duties as a traffic officer”, and the Videographer/Photographer position had at the time of the deposition not yet been made permanent but the decision was pending. (Defendant’s Compendium of Evid. “DCE” Exh. G [Parrish 11/16/17 Work Comp Depo. at pp.12:11-13:18].) Notably, the deposition on which Defendant relies occurred more than a year before Plaintiff’s removal from the position on November 2, 2018. (See FAC ¶ 14.) Plaintiff’s testimony that the position was on November 16, 2017 under review to become permanent does not establish that the position was temporary when Plaintiff was removed from the position on November 2, 2018

Further, Defendant overlooks that Raine merely stands for the proposition that Defendant was not required to create a new position for Plaintiff. There is no evidence that the Videographer/Photographer position was created specifically to accommodate Plaintiff. Nor is there any evidence that Plaintiff was unqualified to be a Videographer/Photographer despite having held that position for multiple years. (See e.g., DCE Exh. G [Parrish 11/16/17 Work Comp Depo. at pp.12:11-13:18].)

In sum, Defendant fails to show that Plaintiff was not a Videographer/Photographer for Defendant as alleged, and Defendant fails to show that Plaintiff could not perform the essential duties of the Videographer/Photographer position. Accordingly, Defendant fails to meet its moving burden in showing that Plaintiff was not a qualified individual.

Defendant further contends that the first and second causes of action fail because there is no evidence of any discriminatory motive and thus no causation.

A defendant moving for summary judgment must show either that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) This means that if the plaintiff bears the burden of preponderance of the evidence at trial, then the defendant in a summary adjudication motion “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, [the defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 (Aguilar).) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Id. at p.854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p.855.)

As to disability discrimination no evidence is cited in the memorandum or separate statement to support the contention that Plaintiff has no evidence of a discriminatory motive or cannot obtain such evidence. (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, Fn. 4, [“ ‘[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’ ”]; Cal. Rules of Court, Rule 3.1113(b).) As to age discrimination the only evidence cited is Plaintiff’s deposition in which Defendant claims that Plaintiff concedes that his claim for age discrimination is only based on Plaintiff’s social media exchange with Miranda Ow who worked for Defendant. (See UMF 35.) However, the cited evidence does not support this conclusion. The cited deposition portion provides that:

Q So you believe that you were being discriminated against based on your age because of what Amanda said in either her text or e-mail or social media response to you?

A No. I believe -- yes, that was evidence, but I also just realized that they were hiring a lot of young people, and -- and the reason why I know that, I was tasked with taking their picture.· I -- you know, I was taking all these pictures. They were all, you know -- that was one of my job functions, was to take pictures of incoming employees and -- and at some point, when Bruce left, it was like this -- you know, my work diminished. They stopped, you know, giving me video work, and next thing you know, I was -- I was out, and somebody else was doing the work I was doing, and I was –

At most the cited deposition portion merely notes that the social media response is merely some pf the evidence. Plaintiff quite literally stated that he did not believe that he was being discriminated based on his age due to the social media response but that the social media response was evidence of such conduct. This is not evidence that Plaintiff’s sole evidence is a social media response nor is this response indicative that Plaintiff cannot obtain evidence showing a discriminatory motive by Defendant. Thus, Defendant fails to meet its moving burden in showing that Plaintiff does not have evidence of any discriminatory motive and thereby lacks evidence of causation.

Defendant contends that the fourth cause of action for failure to engage in the interactive process fails because Plaintiff was accommodated since his 2008 injury and refused to accept reasonable accommodations in 2018 and 2019.

“The FEHA makes it unlawful ‘[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability or known medical condition.’ (§ 12940, subd. (n).)” (Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1196–1197.)

The elements of a claim for failure to engage in the interactive process include the following: “1. That [Defendant] was [an employer]; 2. That [Plaintiff] [was an employee of Defendant] …; 3. That [Plaintiff] had a [limiting condition] that was known to [Defendant]; 4. That [Plaintiff] requested that [Defendant] make reasonable accommodation for [his] [condition] so that [he] would be able to perform the essential job requirements; 5. That [Plaintiff] was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that [he] would be able to perform the essential job requirements; 6. That [Defendant] failed to participate in a timely goodfaith interactive process with [Plaintiff] to determine whether reasonable accommodation could be made; 7. That [Plaintiff] was harmed; and 8. That [Defendant]’s failure to engage in a good-faith interactive process was a substantial factor in causing [Plaintiff]’s harm.” (CACI jury instruction 2546.)

To initiate the interactive process, an employee need not use specific words and need not mention FEHA or even the term “accommodation.” (Prilliman v. United Air Lines, Inc. (1977) 53 Cal.App.4th 935, 954; see also, Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62 n. 22, [“Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation”].) “‘The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not required.’ [Citation.]” (Id. at 1197.)

“Once the interactive process is initiated, the employer’s obligation to engage in the process in good faith is continuous.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.) “[T]he employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the [Americans with Disabilities Act], by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.” (Humphrey v. Memorial Hospitals Assn. (9th Cir.2001) 239 F.3d 1128, 1138 [interpreting similar provisions of Americans with Disabilities Act].) “‘[T]he fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability.... If the employer is responsible for a later breakdown in the process, it may be held liable.’” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 972.)

Defendant contends that the cited evidence clearly shows that Defendant’s engaged in the interactive process and Plaintiff refused accommodation in 2018 and 2019.

As noted above, Plaintiff was a hired in 2000 as a Traffic Officer II. (UMF 1; DCE Exh. B [Parrish Depo. at pp.37:22- 38:1].) Plaintiff worked as a Traffic Officer II until his second hip surgery in 2006. (UMF 2; DCE Exh. B [Parrish Depo. at pp.38:14-39:7, 43:17-44].) From 2006 to 2008, Plaintiff was placed off work due to restrictions. (UMF 3, DCE Exh. B [Parrish Depo. at p.43:17-19].) Upon returning, Plaintiff was assigned a light duty position as a radio dispatcher. (UMF 5; DCE Exh. B [Parrish Depo. at p.43:20-25].) Plaintiff was then later assigned a light duty assignment in Central Parking Enforcement as a desk clerk from 2008 to 2012. (UMF 6; DCE Exh. B [Parrish Depo. at p.44:3-15].) In 2012, Plaintiff was then assigned as a Videographer/Photographer in LADOT’s Communication Office. (FAC ¶ 9; DCE Exh. G [Parrish 11/16/17 Work Comp Depo. at pp.12:11-13:18].)

In 2016, Plaintiff applied to be a Principal Photographer listing his experience as a Videographer/Photographer with the communications office. (UMF 8; DCE Exh. B [Parrish Depo. at pp.121:23-122:15].) However, the application was denied on the basis that Plaintiff did not have the minimum experience required despite having had produced 500 videos and doing that work as a Videographer/Photographer. (DCE Exh. B [Parrish Depo. at pp.121:23-122:15]; DCE Exh. D [Application Denial Email].) As noted by Defendant’s person most knowledgeable, the Personnel Department Division flagged Plaintiff’s application and informed “the Department of Transportation personnel section that he was working as a traffic officer, performing photographer duties, they flagged that as him working out of class; and they requested that the Department of Transportation correct that out of class issue.” (DCE Exh. C [Cruz Depo. at pp.21:14-22:1].) “[I]t was at that point when the Department of Transportation attempted to accommodate [Plaintiff]'s restrictions in other positions that would not affect his status of working out of class. They didn't want him to continue working out of class, at that point.” (DCE Exh. C [Cruz Depo. at p.22:2-6].)

As noted by the then Deputy Director or the Communications Office with the Los Angeles Department of Transportation, “[i]n an effort to keep plaintiff in the communications office, the communications office requested that a new position of Public Relations Specialist I be assigned to communications.” (DCE Exh. E [Restrepo Decl. ¶ 3].) However, she was informed that “[P]laintiff did not score high enough on the exam to qualify for the public relations specialist position.” (DCE Exh. E [Restrepo Decl. ¶ 4].) Accordingly, the position was given to another employee on May 22, 2017. (UMF 16; DCE Exh. E [Restrepo Decl. ¶ 5].) Plaintiff was then offered “a transitional worker alternative, where he would remain with the communications office for five years and work on qualifying for a graphic design position.” (DCE Exh. E [Restrepo Decl. ¶ 6].) Plaintiff declined the transitional worker alternative. (DCE Exh. B [Parrish Depo. at pp. 134:5-135:1, 201:10-15].)

“As an alternative, plaintiff was offered a 1014 transfer to a Senior Administrative Clerk position. He was also offered a position as project assistant, if the office was granted approval for this move.” (DCE Exh. E [Restrepo Decl. ¶ 7].) Plaintiff accepted the project assistant position. (DCE Exh. B [Parrish Depo. at p.201:16-25]; DCE Exh. E [Restrepo Decl. ¶ 8].) However, the request for the project assistant position was denied in August 2018. (UMF 21; DCE Exh. E [Restrepo Decl. ¶ 9].) Thus, the then Deputy Director or the Communications Office with the Los Angeles Department of Transportation claims that the only option was the 1014 transfer to Senior Administrative clerk. (DCE Exh. E [Restrepo Decl. ¶ 10].) “Interactive meetings were held on August 30, 2018 and September 6, 2018. Plaintiff was advised on September 6, 2018 that he would be reclassified as a Senior Administrative Clerk. Plaintiff was given the option between two positions and refused to pick, stating ‘put me wherever you’re going to put me.’” (DCE Exh. E [Restrepo Decl. ¶ 11].)

From September 2018 through March of 2019, Plaintiff was out on medical leave. (UMF 24; DCE Exh. B [Parrish Depo. at pp. 620:22-623:19]; DCE Exh. H [Emails regarding September 2018-March 2019 Medical Leave].) While on leave, on October 5, 2018 Plaintiff was sent a letter to effectuate Plaintiff’s transfer to a Senior Administrative Clerk demanding a response by October 12, 2018. (DCE Exh. B [Parrish Depo. at pp. 359:24-361:18]; DCE Exh. I [October 5, 2018 Letter].) However, Plaintiff did not return the signed paperwork in time. (UMF 26; DCE Exh. E [Restrepo Decl. ¶ 13].) On November 27, 2018, Plaintiff was emailed and notified that he was being sent to Western Parking Enforcement. (DCE Exh. J [November 27, 2018 Email].)

After Plaintiff returned in March 2019, during a meeting, Plaintiff’s person most knowledgeable states that he informed Plaintiff and a union representative that the “only option available to him at that time was to 1014 classification change to a senior administrative clerk position, because of his permanent work restrictions.” (UMF 28; DCE Exh. C [Cruz Depo. at p.14:16-20].) In June 2019, Plaintiff accepted the offer. (UMF 29; DCE Exh. C [Cruz Depo. at pp.15:3-16:10].) After searching for an open Senior Administrative Clerk position for Plaintiff, in August 2019 an open Senior Administrative Clerk position was located for Plaintiff in the valley. (UMF 30; DCE Exh. C [Cruz Depo. at pp.17:22-18:1].) In August 2019, Defendant and Plaintiff had another meeting with the Supervisor of the proposed position and Plaintiff’s union representative in which Plaintiff accepted the Senior Administrative Clerk position in the valley. (UMF 31; DCE Exh. C [Cruz Depo. at pp. 16:11-18:24].)

On September 13, 2019, Cruz received an email from Plaintiff’s union representative declining the position. (DCE Exh. C [Cruz Depo. at pp. 18:25-19:17].) The email stated that Plaintiff was rejecting the Senior Administrative Clerk position on the grounds of the excessive commute and requested to explore another 1014 possibility. (DCE Exh. K [Union Representative September 13, 2019 Email].) After this email was received, Defendant took no further action. (DCE Exh. C [Cruz Depo. at p.19:22-24].)

Contrary to Defendant’s contention, this evidence does not show that Plaintiff was fully accommodated from 2008 onward and that Plaintiff denied reasonable accommodations in 2018 and 2019. First, the issue of whether Defendant was providing reasonable accommodations is a question of fact under which summary disposition is inappropriate unless “the undisputed evidence leads to only one conclusion as to the reasonableness of the accommodation sought …” (Raine, supra, 135 Cal.App.4th at p.1227, Fn. 11; see also Bell v. Wells Fargo Bank, N.A. (1998) 62 Cal.App.4th 1382, 1389, Fn. 6 [“The issue of whether plaintiff was requesting a reasonable accommodation is one of fact.”].) Here, the undisputed evidence does not lead to only one conclusion. A jury could conclude that removing Plaintiff from the Videographer/Photographer position disturbed a reasonable accommodation. A jury could also conclude that Defendant was merely replacing one accommodation with another that was equally reasonable. (See Bell, supra, 62 Cal.App.4th at p.1389, Fn. 6.) “The fact that [P]laintiff refused a[] [transfer to a Senior Administrative Clerk position], a circumstance [Defendant] deems significant, does not answer the question whether either party's action was reasonable for purposes of the FEHA.” (Ibid.)

Second, Defendant’s evidence shows a clear triable issue as to whether Plaintiff did actually deny the 2018 and 2019 transfer to a Senior Administrative Clerk position. In 2018, Plaintiff was offered a Senior Administrative Clerk position which Plaintiff did not respond to while on medical leave from September 2018 to March 2019. (UMF 24; DCE Exh. B [Parrish Depo. at pp. 620:22-623:19]; DCE Exh. H [Emails regarding September 2018-March 2019 Medical Leave]; DCE Exh. B [Parrish Depo. at pp. 359:24-361:18]; DCE Exh. I [October 5, 2018 Letter].) Given that the offer wasn’t until Plaintiff was on medical leave, Plaintiff’s lack of response especially given that the letter indicated that Plaintiff could reengage in the interactive process when he returned is not as clear unequivocal denial as a reasonable jury could conclude that Plaintiff merely wanted to continue the interactive process after returning from medical leave as his disability may have changed necessitating different accommodations. As to the September 13, 2019 letter from Plaintiff’s union representative, while the letter does refuse the proposed accommodation to be assigned as a Senior Administrative Clerk in the valley the letter requests further interactive process as to other possible transfers. (DCE Exh. K [Union Representative September 13, 2019 Email].)[2] Given that Defendant failed to take any actions after, (DCE Exh. C [Cruz Depo. at p.19:22-24]), reasonable jury could conclude that while Defendant did engage in the interactive process, Defendant’s failure to take any action after the September 13, 2019 email from Plaintiff’s union representative was the cause of the breakdown in the interactive process. (Swanson, supra, 232 Cal.App.4th at p.972, [“‘[T]he fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability.... If the employer is responsible for a later breakdown in the process, it may be held liable.’”].)

Accordingly, Defendant fails to meet its moving burden in showing that Plaintiff refused to accept reasonable accommodations and caused the breakdown in the interactive process. Therefore, Defendant’s motion for summary adjudication of the fourth cause of action is DENIED.

Defendant contends that the third cause of action for failure to accommodate fails because (1) Plaintiff is not a qualified individual and (2) Plaintiff refused to accept reasonable accommodations.

“Under the FEHA, an employer’s ‘fail[ure] to make reasonable accommodation for the known physical or mental disability of an applicant or employee’ is an unlawful employment practice. (§ 12940, subd. (m).) A reasonable accommodation is any ‘ “modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” ’ [Citation.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 968–969.) For example, “ ‘Reasonable accommodation’ may include either of the following: [¶] (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” (Gov. Code, § 12926(p).)

“An employer has an ‘affirmative duty’ to reasonably accommodate a disabled employee [Citations], and that duty is a ‘ “ ‘continuing’ ” ’ one that is ‘ “ ‘not exhausted by one effort.’ ” [Citation.] A single failure to reasonably accommodate an employee may give rise to liability, despite other efforts at accommodation. [Citation.] The FEHA, however, does not require an employer to make an accommodation ‘that is demonstrated by the employer or other covered entity to produce undue hardship ... to its operations.’ [Citations.] (Swanson, supra, 232 Cal.App.4th at p.969.)

“The elements of a failure to accommodate claim are ‘(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.’ [Citation.]” (Ibid.)

As discussed in detail with the first and second causes of action, Defendant fails to meet its moving burden in showing that Plaintiff was not a qualified individual. With regard to Defendant’s second contention – i.e., that Plaintiff refused to accept reasonable accommodations – Defendant similarly fails to meet its moving burden. As discussed with the fourth cause of action above, the issue of whether Defendant was providing reasonable accommodations is a question of fact under which summary disposition is inappropriate unless “the undisputed evidence leads to only one conclusion as to the reasonableness of the accommodation sought …” (Raine, supra, 135 Cal.App.4th at p.1227, Fn. 11; see also Bell, supra, 62 Cal.App.4th 1382, 1389, Fn. 6 [“The issue of whether plaintiff was requesting a reasonable accommodation is one of fact.”].) Here, the undisputed evidence – discussed in detail above – does not lead to only one conclusion. A jury could conclude that removing Plaintiff from the Videographer/Photographer position disturbed a reasonable accommodation. A jury could also conclude that Defendant was merely replacing one accommodation with another that was equally reasonable. (See Bell, supra, 62 Cal.App.4th at p.1389, Fn. 6.) “The fact that [P]laintiff refused a[] [transfer to a Senior Administrative Clerk position], a circumstance [Defendant] deems significant, does not answer the question whether either party's action was reasonable for purposes of the FEHA.” (Ibid.)

Accordingly, as Defendant fails to meet its moving burden, Defendant’s motion for summary adjudication of the third cause of action is DENIED.

Defendant contends that the fifth cause of action for retaliation fails because Plaintiff did not engage in protected activity and there is no casual link.

“‘[I]n order to establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.’ [Citation.] The requisite ‘causal link’ may be shown by the temporal relationship between the protected activity and the adverse employment action. [Citations.]” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 90–91.) “If any employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas burden-shifting analysis to the employee’s claim. [Citation.]” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244.)

Government Code “section 12940, subdivision (h) encompasses a broad range of protected activity. An employee need not use specific legal terms or buzzwords in opposing discrimination. [Citation.] Nor is it necessary for an employee to file a formal charge. [Citation.] The protected activity element may be established by evidence that the plaintiff threatened to file a discrimination charge [Citation], by a showing that the plaintiff mistakenly, but reasonably and sincerely believed he was opposing discrimination [Citation], or by evidence, an employer believed the plaintiff was a potential witness in another employee’s FEHA action. [Citation.] The determination as to what constitutes a protected activity is inherently fact-driven.” (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652, superseded by statute on other grounds as discussed in Moore v. Regents of the Univ. of California (2016) 248 Cal.App.4th 216, 245 (‘Moore’).) “[C]ase law and FEHA’s implementing regulations are uniformly premised on the principle that the nature of activities protected by section 12940, subdivision (h) demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful.” (Moore, supra, 248 Cal.App.4th at p.245.)

“[P]rotected activity identified in subdivision (h) of section 12940 … constitute[s] engaging in opposition to any practices forbidden under FEHA or the filing of a complaint, testifying, or assisting in any proceeding under FEHA.” (Id. at p.247.)

As noted above, “the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto, supra, 181 Cal.App.4th at p.74.) Here, the FAC alleges in relevant part that “Defendants’ agents and supervisors retaliated against Plaintiff because of his requests for reasonable accommodations and because of his complaints of illegal conduct.” (FAC ¶ 49.) The FAC further alleges that “Plaintiff is informed and believes that LADOT discriminated against him on the basis of his age and disabilities and retaliated against him based on his requests for accommodation and engagement in protected activities.” (FAC ¶ 16.) Thus, the FAC while somewhat vague does allege that Plaintiff engaged in protected activities – i.e., through complaints – that Defendant retaliated against Plaintiff for.

Defendant in memorandum claims that “[Plaintiff] can point to no protected activity in opposition to any violation of FEHA or that he filed a complaint or testified as required by Gov. Code § 12940(h). [¶] The reason [Plaintiff] thinks the [Defendant] is retaliating against him is because it won’t continue to accommodate him as a videographer after doing so for four years.” (Memorandum at p.12:22-26.) However, no evidence is cited in the memorandum or in the separate statement in support of this contention. (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, Fn. 4, [“ ‘[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’ ”]; Cal. Rules of Court, Rule 3.1113(b).)

As noted above, a defendant moving for summary judgment must show either that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) This means that if the plaintiff bears the burden of preponderance of the evidence at trial, then the defendant in a summary adjudication motion “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, [the defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 (Aguilar).) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Id. at p.854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p.855.)

Given the absence of evidence – i.e., such as a request for admission conceding the lack of evidence – Defendant fails to show that Plaintiff does not have any evidence of protected activity or causation and cannot reasonably obtain such evidence. Accordingly, Defendant fails to meet its moving burden.

Defendant contends that there is a legitimate business reason in Defendant’s actions.

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at pp.355-356.) As the Supreme Court explained in Guz v. Bechtel, “‘legitimate’ reasons [citation] … are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]” (See id. at 358 [italics in original and footnote omitted].) “While the objective soundness of an employer’s proffered reasons supports their credibility . . . the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.” (Guz, supra, 24 Cal.4th at p.358.) The employer’s “reasons need not necessarily have been wise or correct.” (Id.) In other words, as long as the employer honestly believed in the facially unrelated reason, it is irrelevant whether the employer’s reason is trivial, (See Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147, 1157 [professor’s tenure denied based on “academic politics”]), or even completely untrue (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [driver accused of falsifying timecard]).

Finally, if the defendant meets its burden, “the presumption of discrimination disappears.” (Guz, supra, 24 Cal.4th at p.356.) The plaintiff must then show that the defendant’s legitimate reason is merely a pretext. (Ibid.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee’s job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Id.)

On a motion for summary judgment, the employer must present admissible evidence that under the undisputed material facts, (1) one or more elements of the plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In other words, the initial burden on summary judgment remains with the moving party at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432; Arteaga v. Brink’s, Inc., 163 Cal.App.4th at 344 [“in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue... In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.”].)

“The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. The employer's mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor. Thus, citing a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employee's showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employee's favor.” (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226 Fn. 5.)

“Accordingly, courts have balanced the state interest in protecting the right to complain against discrimination while at the same time protecting employers from meritless discrimination claims by requiring a causal link between what the labor lawyers call the ‘protected activity’ (e.g., filing a complaint) and the adverse action (e.g., not getting a promotion).” (Chen v. County of Orange (2002) 96 Cal.App.4th 926, 948–949.)

Here, Defendant claims that “[t]he efforts to change plaintiff’s position within LADOT were made to rectify the fact that he was operating out of class as a videographer in the communications office and because other similarly situated employees were complaining about plaintiff’s accommodation as a videographer.” (Memorandum at p.18:10-12.) However, the cited evidence in the memorandum and separate statement do not support this conclusion.

First, Defendant fails to present evidence that Plaintiff was operating out of class as a Videographer/Photographer in the communications department. The sole evidence cited for the proposition that Plaintiff was operating out of class as a Videographer/Photographer is Defendant’s person most knowledgeable, Joe Cruz, stating that after Plaintiff applied for a promotion to be Principle Photographer the Personnel Department Division flagged Plaintiff’s application and informed “the Department of Transportation personnel section that he was working as a traffic officer, performing photographer duties, they flagged that as him working out of class; and they requested that the Department of Transportation correct that out of class issue.” (DCE Exh. C [Cruz Depo. at pp.21:14-22:1].) “[I]t was at that point when the Department of Transportation attempted to accommodate [Plaintiff]'s restrictions in other positions that would not affect his status of working out of class. They didn't want him to continue working out of class, at that point.” (DCE Exh. C [Cruz Depo. at p.22:2-6].) No explanation or other evidence is provided to describe what Plaintiff’s class even was and how Plaintiff is out of class.

Presumably, Defendant is implying – without providing evidence in support – that working as a Videographer/Photographer is outside the unspecified job function of a Traffic Officer II. However, as alleged in the FAC – which Defendant fails to rebut – Plaintiff was transferred into the position Videographer/Photographer in 2012. (FAC ¶ 9.) Thus, Plaintiff would clearly be working in class as a Videographer/Photographer as that was his job after 2012. Regardless, even assuming that Plaintiff’s classification was a Traffic Officer II and that the Videographer/Photographer position was outside of the unspecified classification, Defendant presents no evidence that any of the proposed transfers – such as to Senior Administrative Clerk – were within the Traffic Officer II classification. Absent such evidence, there is no evidence of a reason – let alone a legitimate reason – for the proposed transfers. Accordingly, Defendant fails to meet its moving burden in showing that there was a legitimate reason for Defendant’s action in transferring and removing Defendant from the Videographer/Photographer position.

Therefore, Defendant’s motion for summary adjudication of the first, second, and fifth causes of action is DENIED.

“The FEHA makes it a separate unlawful employment practice for an employer to ‘fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.’ (§ 12940, subd. (k).)” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040, italics added.) “But courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k). [Citation.]” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)

Here, Defendant argues that Plaintiff cannot prove any discrimination or retaliation by Defendant and therefore, this derivative claim fails. However, as discussed above, Defendant fails to meet its moving burden in showing that Plaintiff’s claims for discrimination and retaliation fail. Accordingly, Defendant’s motion for summary adjudication of the sixth cause of action is DENIED.

Based on the foregoing, Defendant City of Los Angeles’ motion for summary judgment or in the alternative summary adjudication is DENIED.

[1] California Rules of Court, rule 3.1113(b) provides that “[t]he memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” The Court has “no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case.” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934; see also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [where appellant's motion was supported by deficient memorandum, trial court was justified in denying the motion on procedural grounds].)

[2] In addition, the Court notes that there is a triable fact as to whether Plaintiff even authorized the union representative to send such an email. (Parrish Decl. ¶¶ 11-13.) Further, Plaintiff claims to have called Joe Cruz about the job and when he could start on September 13, 2019 and was not told about the rejection by the union representative. (Parrish Decl. ¶ 14.)

Superior Court of California

County of Los Angeles

Department 26