Judge: Gail Killefer, Case: 19STCV40339, Date: 2023-08-04 Tentative Ruling
Case Number: 19STCV40339 Hearing Date: August 4, 2023 Dept: 37
HEARING DATE: 4 August 2023
CASE NUMBER: 19STCV40339
CASE NAME: Desiree Mieure v. San Gabriel Unified School District
MOVING PARTY: Defendant San Gabriel Unified
School District
OPPOSING PARTY: Plaintiff Desiree Mieure
TRIAL DATE: 12 March 2024
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment or, in the alternative, Motion for Summary Adjudication
OPPOSITION: 09 June 2023
REPLY: 23
June 2023
TENTATIVE: Defendant’s Motion for Summary Judgment is
granted.
Background
This action arises out of the
employment of Desiree Mieure (“Plaintiff”) with the San Gabriel Unified School
District (“Defendant” or “District”). Plaintiff alleges that Defendant employed
her as a licensed Occupational Therapist.
The operative First Amended
Complaint alleges causes of action for Disability Discrimination and two counts
of Whistleblower Retaliation.
On October 31, 2023, Plaintiff
filed a Motion for Summary Judgment or, in the alternative, for Summary
Adjudication. Plaintiff filed opposing
papers on June 9, 2023. Defendant filed a
reply on June 23, 2023.
I. Plaintiff’s evidentiary
objections to the Declaration of Ross Perry:
Objections
Nos. 1, 2, 3 is sustained as the statement in question has not been properly
authenticated as it is unclear who prepared the statement, and it is hearsay.
Objection
No. 4 is sustained as it is hearsay as to the assertion Plaintiff received an
oral warning and violates the best evidence rule as second written warning was
not produced as evidence.
Objections
Nos. 5 to 11 are overruled as to Exhibit 17 as it is admissible under the
business record exception. All other objections to Paragraph 23 of the
Declaration of Ross Perry are immaterial to the adjudication of this Motion and
the court declines to rule on them. (CCP § 437c(q).)
II. Defendant’s
Evidentiary Objections to Plaintiff’s Statement of Additional Facts:
Objections Nos. 1, 8, 9, and 17 are overruled.
Objections
Nos. 2, 3, 4, 5, 10, 11, 12, 13, 14, 15, and 16 are immaterial or do not relate
to a material fact. Therefore, the court declines to rule on them. (CCP § 437c(q).)
I. Legal Standard
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co.
(2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (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.) Summary adjudication may be granted as to one or more
causes of action within an action, or one or more claims for damages. (Cal.
Code of Civ. Proc. §437c(f).)¿¿¿¿¿¿¿
¿¿
A defendant moving for summary judgment bears two burdens:
(1) the burden of production – presenting admissible evidence, through material
facts, sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿25
Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the
claim “cannot be established” because of the lack of evidence on some essential
element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts
to the plaintiff to show that a “triable issue of one or more material facts
exists as to that cause of action or defense thereto.”¿(Id.)¿¿¿¿¿¿
¿¿
“On ruling on a motion for summary judgment, the court is to
‘liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal
v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary
judgment motion, the court must therefore consider what inferences favoring the
opposing party a factfinder could reasonably draw from the evidence. While
viewing the evidence in this manner, the court must bear in mind that its
primary function is to identify issues rather than to determine issues.
[Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75
Cal.App.4th¿832, 839.)¿¿¿
¿¿
Defeating summary judgment requires only a single disputed
material fact. (See CCP § 437c(c) [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.”] [emphasis added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿
II. Statement of Facts
The
following facts are undisputed unless otherwise noted. Plaintiff was hired by
Defendant to work as an Occupational Therapist. (Undisputed Material Facts
“UMF” 1.) Her duties included working with Special Education students to
improve their fine motor skills. (UMF 2.) Services were to be administered
according to the student's Individualized Education Plan (“IEP”). (UMF 3, 4.)
From August 2007 to August 2018, Plaintiff was the only Occupational Therapist at
the District and she was sometimes assisted by independent Occupational
Therapist contractors brought in to assist as needed. (UMF 5.)
On
September 13, 2018, Plaintiff was injured by a student while providing
occupational therapy services. (UMF 9.) Plaintiff asserts that contrary to Education
Code § 56121.1, the student’s file did not contain a Behavioral Report, giving
notice to people interacting with the student that he had a history of violent
behavior towards authority figures and treatment providers.
Plaintiff sought treatment through workers' compensation and received work
restrictions. (UMF 13.)
On
October 3, 2018, in lieu of being taken off work or reassessed by her Doctor,
Plaintiff requested an interactive meeting. (Plaintiff’s Compendium of Evidence
“PCOE” Ex. 11.) The meeting was held on November 27, 2018, which extended
Plaintiff’s leave. (PCOE Ex. 10.) Defendant District provided Plaintiff with
the accommodations she requested including not having to work with aggressive special
education students and not having to carry five pounds or more. (UMF 15, 16,
57.) Plaintiff did not request any other accommodation after November 27, 2018.
(UMF 16.)
On
September 17, 2018, Plaintiff requested to meet with Brian Murray (“Murray”),
Director of Special Education, to discuss her assault by a student that
occurred on September 13, 2018. (PCOE Ex. 2 [Dragoo Depo. at 55:1-190]; 4
[Murray Depo. at 43:15-46:17]; 8.) Plaintiff asserts the meeting with Murray
and other colleagues touched on the Education Code violations and lack of
notice of behavioral problems. (PCOE Ex. 4 [Perry Depo. at 19:23-20:9]; 9.)
In
April 2019, Ross Perry of Human Resources informed Plaintiff that she was being
accused of falsifying records in the performance of her job; specifically, that
Plaintiff was untruthful about how much time she spent providing occupational
therapy to a special education student. (UMF 17.) Plaintiff does not dispute
that the accusation was made but asserts it was done in retaliation for
reporting violations of the Education Code.
The alleged incidents of forgery are stated to have occurred on
September 20, 2018, and September 27, 2018, shortly after she made the
complaint about the Education Code violations. (PCOE Ex. 7, 8.)
On
May 20, 2019, Plaintiff’s hours were reduced. (UMF 18, 60.) Plaintiff asserts
that the reduction was in retaliation for reporting violations of the Education
Code on September 2018 (PCOE Ex. 9.) Plaintiff’s hours were reduced despite the
increase in the number of students needing occupational therapy, which resulted
in the District hiring outside agencies to provide services. (PCOE Ex. 4
[Murray Depo. 86:2-14].) Defendant asserts that Plaintiff’s work hours were
reduced because certain families did not want to work with Plaintiff. (PCOE Ex.
3 [Perry Depo. at 64:16-65:15; 66:10-67:2].) On May 28, 2019, Plaintiff
received her first negative performance evaluation. (UMF 19, 30, 61, 63.)
Plaintiff disputes that her performance was deficient. On June 18, 2019, Defendant
suspended Plaintiff for 10 days without pay in relation to the allegations that
she falsified records. (UMF 21 -25.) On August 16, 2019, Plaintiff waived her
right to appeal the decision. (UMF 26.)
Defendant
asserts that Plaintiff continued to have job performance issues, which
Plaintiff denies. On February 11, 2021, the Governing Board of the School
District issued a Notice of Intent to Recommend Dismissal and Immediate
Suspension and Statement of Charges. (UMF 28.) On April 19, 2021, the Governing
Board of the School District issued a Notice of Dismissal to Plaintiff. (UMF
36.) On November 8, 2019, Plaintiff filed an administrative complaint with the
Department of Fair Employment and Housing (“DFEH”). (UMF 37.) Plaintiff also
filed the Complaint for this action on the same day as the DFEH complaint. (UMF
38.)
Defendant
now moves for summary judgment, or summary adjudication in the alternative.
A. First
Cause of Action – Failure to Provide Reasonable Accommodation
The elements of a claim
for failure to provide reasonable accommodation of a disability are (1) the
plaintiff had a disability within the meaning of the Fair Employment and
Housing Act (FEHA), (2) the plaintiff is qualified to perform the
essential functions of the positions, and (3) the employer failed to reasonably
accommodate the plaintiff’s disability.¿(Hernandez v. Rancho Santiago Community
College District (2018) 22 Cal.App.5th 1187, 1193-1194; see also Gov. Code,
§ 12940(m)(1).) 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.” (Gov. Code, § 12940(n).)
Defendant asserts that
Plaintiff failed to timely file an administrative complaint with DFEH within
the one-year statute of limitations applicable to Plaintiff’s first cause of
action. Prior to 2020, the applicable limitation period to file a DFEH
complaint was one year. (See former Gov.Code § 12960(d); Romano
v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479 [DFEH complaint must be
filed one year after the alleged unlawful practice or refusal to cooperate
occurred].) Effective January 1, 2020, the Legislature “enlarge[d] the time for
filing a [FEHA] claim [from one] to three years from the date of the challenged
conduct.” (Brome v. Dept. of the California Highway Patrol (2020) 44
Cal.App.5th 786, 793, fn. 2.) Therefore, the burden shifts to Plaintiff to show
that she timely filed a complaint with DFEH.
Plaintiff admits that
she made no request for accommodations after November 27, 2018. (UMF 16.)
Plaintiff fails to provide evidence that she timely filed a FEHA complaint. “The
timely filing of an administrative complaint is a prerequisite to the bringing
of a civil action for damages under FEHA.” (Romano, 14 Cal.4th 479,
492.) Accordingly, Plaintiff has failed to show she can meet this essential
element to prevail on a cause of action under the FEHA.
It is also undisputed that an
interactive meeting took place on November 27, 2018, and at that meeting, Defendant
granted Plaintiff’s requested accommodations. (UMF 15.) The burden is on
Plaintiff to show the delay in holding the meeting was unreasonable and that
constituted a failure to accommodate. “[T]he burden of
proving the availability of a reasonable accommodation rests on the employee.” (Nadaf-Rahrov
v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 983.) Plaintiff
has failed to do so.
Therefore, summary adjudication
is granted as to the first cause of action.
B. Plaintiff’s Compliance with the Claim Presentation Requirement of
the Tort Claims Act
Although FEHA claims
are exempt from the claim presentation requirements of the Tort Claim Act,
Labor Code violations are not. (See Garcia v. Los Angeles U.S.D., 173 Cal.App.3d
701, 711-712.) Plaintiff is required to comply with the claim presentation
requirements of the Tort Claims Act before bringing a suit against Defendant, a
public entity. (Gov’t
Code §945.4; Munoz v. State of California (1995) 33 Cal.App.4th 1767,
1777.) A claim relating to a cause of action for injury to person or personal
property must be presented to the public entity not later than six months after
the accrual of the cause of action. (Gov’t Code § 911.2; Munoz, 33
Cal.App.4th at 1777.)
Defendant
asserts that Plaintiff’s second and third causes of action are barred because
Plaintiff cannot show that she complied with the claim presentation
requirement. “[T]he timely filing of a written claim with the
proper officer or body is an element of a valid cause of action against a
public entity.” (Gong v. City of Rosemead
(2014) 226 Cal.App.4th 363, 374; Gov’t Code §§ 900.4, 905.) Therefore, the
burden shifts to Plaintiff to show that she complied with the claim
presentation requirement of the Tort Claims Act.
Plaintiff’s second
and third causes of action are premised on whistleblower retaliation in
violation of Lab. Code § 1102.5. The first retaliation claim relates to
Plaintiff’s September 20, 2018, report about Educational Code violations to
Murray and others. (PCOE Ex. 8, 9.) The second retaliation claim relates to the
fact that on or about August
20, 2019, and November 8, 2019, Plaintiff filed a Government Tort Claim and
then a Civil Lawsuit. (FAC ¶ 34.) Defense counsel states that she has been
unable to locate a government tort claim for damages that was presented to the
governing school board or was acted upon by the governing school board. (Perry
¶ 26.)
i. Plaintiff’s
First Claim Presentation is Timely
Plaintiff submitted
the first claim presentation on August 20, 2019, to the District and
asserted that the claim arose “[o]n or about September 13, 2018, and continuing
thereafter to and including April 10, 2019” and Plaintiff experienced
“retaliation” in the form of lost salary, other benefits, and violations of
Lab. Code §§ 1102.5 and 1102.6. (PCOE Ex. 19.) Plaintiff submits proof that the
first claim was sent by certified mail, as permitted by Gov’t Code § 915.2,
with a copy of the signed return receipt. (PCOE Ex. 19.) A claim for personal
injury must be presented no later than six months after the accrual of the
cause of action or it is barred. (Gov’t Code § 911.2(a); Willis v. City of
Carlsbad (2020) 48 Cal.App.5th 1104, 1118.) To determine if Plaintiff’s
first claim presentation is timely, the court must first ascertain when
Plaintiff’s first claim for retaliation accrued.
Plaintiff states her
retaliation claim accrued when she received notice of her 10-day suspension on
June 18, 2019, which was subsequently amended on August 16, 2019. (UMF 22, 24.)
“‘Although state law determines the
length of the limitations period, federal law determines when a civil rights
claim accrues.’ ... Under federal law, ‘a claim accrues when the plaintiff
knows or has reason to know of the injury which is the basis of the action.’
[Citation].” (Javor v. Taggart (2002) 98 Cal.App.4th 795, 802 disproved
on other grounds by Leon v. County of Riverside (Cal. 2023) 309
Cal.Rptr.3d 682.) “[A] plaintiff's claim accrues when the plaintiff learns of
the ‘actual injury,’ i.e., an adverse employment action, and not when the
plaintiff suspects a ‘legal wrong,’ i.e., that the employer acted with a
discriminatory intent.” (Coppinger-Martin v. Solis (9th Cir. 2010) 627
F.3d 745, 749.)
The burden shifts to
Defendant to show that Plaintiff’s claim presentation was untimely. Defendant
points out that FEHA’s continuing violation doctrine does not apply to
Plaintiff’s claims under the California Labor Code, and therefore Plaintiff’s
retaliation claim could not have arisen “on September 13, 2018, and continuing
thereafter.” While the court agrees that the continuing violation doctrine does
not apply, this does not mean that Plaintiff’s retaliation claim accrued in
September 2018 when she engaged in a protected activity and made her complaints
about violations of the Education Code. Plaintiff did not learn that she was
being investigated for falsifying records until April 2019, that her hours
would be reduced until May 20, 2019, and that she faced suspension until June
18, 2019. (UMF 17, 18, 21.) This is when Plaintiff knew she had suffered an
adverse employment action. Plaintiff
presented her claim within six months on August 20, 2019, within six months of
learning she had suffered an adverse employment action.. Defendant fails to
show that Plaintiff’s first retaliation claim accrued at an earlier date.
Defendant points out
that Plaintiff gave the date of “[o]n or about September 13, 2018” in her claim
presentation and that six months from this date is when Plaintiff was required
to present her claim. Gov’t Code § 910(c) requires the claimant to state the
“date, place, and other circumstances of the occurrence or transaction which
gave rise to the claim asserted.” The date in Plaintiff’s claim pertains to the
facts underlying the cause of action and not the date Plaintiff asserts her
claim accrued. Moreover, the burden is on Defendant to show that Plaintiff’s
August 20, 2019, claim was rejected as untimely. Defendant fails to do so.
Therefore, the court
finds that Plaintiff has met her burden of showing that her first claim was
timely presented.
ii. Plaintiff’s
Second Claim Presentation is Untimely
On
April 20, 2021, Plaintiff presented a second claim for retaliation and the
first government claim for events that occurred on or about November 8, 2019,
and including April 19, 2021. (PCOE Ex. 21.) On April 20, 2021, Plaintiff’s
claim was rejected because it was untimely and not presented within six months
from the date of accrual. (PCOE Ex. 22.) The claims’ administrator instructed
Plaintiff to seek leave to file a late claim. (Id.) Plaintiff produced
no evidence that she did so.
If an injured party who
has failed to timely file a claim has submitted a written application to the
public entity for leave to present such claim and the application has been
denied, the injured party may petition the court for relief from the claim
requirements.¿(Munoz, 33 Cal.App.4th at 1777.) A petition pursuant to
Gov. Code S 946.6 must be “filed within six months after the application to the
board is denied or deemed to be denied pursuant to section 911.6.”¿(Cal. Gov.
Code §946.6(b); see also City of Los Angeles v. Superior Court (1993) 14
Cal.App.4th 621, 627.) This requirement is mandatory. (Lineaweaver v. S.
Cal. Rapid Transit Dist. (1983) 139 Cal.App.3d 738, 741; see also D.C.
v. Oakdale Joint Unified School Dist. (2012) 203 Cal.App.4th 1572,
1582 (“This section 946.6, subdivision (b) language operates as a statute of
limitations. It is mandatory, not discretionary.”].)
Since
the District determined that Plaintiff’s second claim was untimely, Plaintiff
was required to request leave from the District to present a late claim. If the
District denied the claim, then Plaintiff could seek leave of court for relief.
“If the public entity denies an application for leave to file a late claim, the
claimant must obtain a court order for relief from the requirements of
the claims act before filing suit. (City of Los Angeles, 14 Cal.App.4th 621, 627 [italics added].) “The intent of
the Tort Claims Act ‘is not to expand the rights of plaintiffs in suits against
governmental entities, but to confine potential governmental liability to
rigidly delineated circumstances....’ [Citation.]” (Id.) Therefore,
“[t]he failure to timely comply with the Government Code requirements
concerning claims bars a subsequent suit.” (Id.)
Plaintiff
fails to show that her second claim was timely presented. Accordingly, summary
adjudication is granted as to the third cause of action for retaliation.
C. Second Cause of
Action – Retaliation in Violation of Lab. Code § 1102.5
As explained by the California
Supreme Court, Labor Code § 1102.5 “prohibits an employer
from retaliating against an employee for sharing information the
employee ‘has reasonable cause to believe ... discloses a violation of state or
federal statute’ or of ‘a local, state, or federal rule or regulation’ with a
government agency, with a person with authority over the employee, or with
another employee who has authority to investigate or correct the violation.”
(Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703,
709.)
The McDonnell
Douglass burden-shifting framework does not apply to section 1102.5;
instead an employee-whistleblower must establish “by a preponderance of the
evidence that retaliation was a contributing factor in the employee's
termination, demotion, or other adverse action, the employer then bears the
burden of demonstrating by clear and convincing evidence that it would have
taken the same action ‘for legitimate, independent reasons.’” (Id. at
707.)
“Section 1102.6 requires whistleblower plaintiffs
to show that retaliation was a ‘contributing factor’ in their
termination, demotion, or other adverse action. This means plaintiffs may
satisfy their burden of proving unlawful retaliation even when other,
legitimate factors also contributed to the adverse action.’ (Id. at
7130714.)
i. Plaintiff’s
Engaged in a Whistleblowing Activity Under Lab. Code § 1102.5
Defendant contends
that Plaintiff did not engage in a whistleblowing activity because she never
reported that a student was not getting the right services in special
education. (UMF 8.) Plaintiff did, however, report a violation of Ed. Code §
56521.1. (PCOE Ex. 19.)
Ed. Code § 56521.1(e)
states in relevant part:
A
behavioral emergency report shall immediately be completed and maintained in
the file of the individual with exceptional needs.
When
Plaintiff was attacked by the student and then subsequently learned that a
behavioral emergency report was not in the student’s file, Plaintiff reasonably
believed that Defendant was not in compliance with Ed. Code § 56521.1(e).
“Unlike retaliation under subdivision (b) of section 1102.5, in which the
employee must show only that he or she reasonably believed
that there was a violation of a statute, rule, or regulation, section 1102.5(c)
requires a showing that the activity in question actually would
result in a violation or noncompliance with a statute, rule, or regulation.” (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th
703, 719 [italics original].) Defendant also fails to show that Plaintiff did
not report this violation to Murray and other employees with the power to
correct the violation. (PCOE Ex. 2 [Drogoo Depo. at 55:1-19], 8, 9.)
Defendant’s reliance
on Conn v. Western Placer Unified School Dist. (2010) 186
Cal.App.4th 1163 is misplaced. In that
case the plaintiff sued for purported violations under Ed. Code § 44112 and not
Lab. Code § 1102.5. Similarly, in Patten v. Grant Joint Union High School
District (2005) 134 Cal.App.4th 1378, the disclosures did not relate to a
violation of law but conduct and remarks made to the principal about other personnel
at the school. (Id. 1384-1385 [“The disclosures involving the two
teachers do not amount to whistleblowing as a matter of law because, although
the disclosures were made by a government employee (Patten) to a government
agency (Grant), the disclosures indisputably encompassed only the context of internal personnel matters involving a supervisor and
her employee, rather than the disclosure of a legal violation.”] [italics
original].) Here, Defendant has failed to show that Plaintiff did not disclose
violations of law she reasonably believed were unlawful under Ed. Code §
56521.1 and did not engage in a whistleblowing activity.
ii. Causal
Link between Disclosure of Violation and Adverse Employment Action.
Section
1102.6 provides the governing framework for the presentation and evaluation of
whistleblower retaliation claims brought under section 1102.5. First, it places
the burden on the plaintiff to establish, by a preponderance of the evidence,
that retaliation for an employee's protected activities was a contributing
factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden.
Once the plaintiff has made the required showing, the burden shifts to the
employer to demonstrate, by clear and convincing evidence, that it would have
taken the action in question for legitimate, independent reasons even had the
plaintiff not engaged in protected activity.
(Lawson, 12 Cal.5th at 718.)
Plaintiff has the burden to show that
reporting violations of Ed. Code § 56521.1 resulted in her June 18, 2019,
suspension that was related to the allegation that she falsified records. (UMF
21.)
Plaintiff provides evidence that Ross
Perry (“Perry”) contacted Deena Dragoo about the allegation that Plaintiff had
falsified her time records shortly after she made the complaint. (PCOE Ex. 2
[Dragoo Depo. at 14:13-20; 52:18-23; 53:3-8].) Plaintiff also provides evidence
that Perry knew Plaintiff had made complaints about the special education
program. (PCOE Ex. 3 (Perry Depo. 17-16-22-13].) Plaintiff does not show,
however, that Perry knew Plaintiff had complained about a specific violation of
the Educational Code. (See PCOE Ex. 2 [Drago Depo. at 55:9-19].)
Plaintiff provides evidence to raise an
inference that the allegations that she falsified records has a temporal
connection to her complaint about a violation of the Educational Code. A temporal
proximity may raise an inference of a causal connection but it “does not,
without more, suffice also to satisfy the secondary burden borne by the
employee to show a triable issue of fact on whether the employer's articulated
reason was untrue and pretextual.” (Loggins v. Kaiser Permanente
Internat. (2007) 151 Cal.App.4th 1102,
1112.) Plaintiff fails to produce
evidence that the subsequent investigation into the allegation that she
falsified time records was without merit or that Defendant failed to conduct an
adequate investigation into claims before issuing the suspension on June 18,
2018. (Defendant’s Compendium of Evidence “DCOE” Ex. 17.)
A Skelly Hearing was held, and the Skelly
Hearing Officer concluded that the suspension was warranted. (DCOE Ex. 17.)
While Plaintiff’s opposing papers challenge Defendant’s motive and decision to investigate
Plaintiff’s timekeeping of services, Plaintiff fails to produce sufficient
evidence challenging the results of the investigation, her Skelly hearing, and
the decision to suspend Plaintiff.
Plaintiff also fails to show that
Defendant’s decision to reduce Plaintiff’s hours was in connection with her
complaint regarding an Educational Code violation. Plaintiff was initially
informed that the decision to reduce her hours were due to a lack of work
and/or funds. After demand for services increased, Plaintiff’s hours were not
restored and instead Defendant hired outside contractors. Plaintiff fails to produce
evidence that District’s Governing Board's decision to not restore Plaintiff’s
hours was in some way connected to Plaintiff making a complaint about the
Education Code violation. (UMF 18.) Plaintiff submitted evidence that there
were three parent complaints made against Plaintiff related to her performance
and that this was a contributing factor in Defendant’s decision to not increase
Plaintiff’s hours, despite the demand for occupational therapy services
increasing. (PCOE Ex. 3 [Perry Depo. 64:16-65]; Ex. 5 [Ruswok Depo. 78:10-18].)
The decision to reduce Plaintiff’s hours
also coincided with Plaintiff’s first negative performance evaluation and the
decision to place Plaintiff on a performance improvement plan on May 19, 2019.
(UMF 19.) Plaintiff’s only evidence that the negative performance evaluation
was made in retaliation to the reporting a violation of the Education Code in
September 2018 was that Plaintiff had not previously received a negative
performance evaluation and the evaluation was given by Murray, who knew about
Plaintiff’s report. (DCOE Ex. 9.)
Plaintiff fails, however, to challenge
the offending conduct alleged in the performance evaluations, which included
her failure to attend IEP meetings and other absences and scheduling changes
made without notice. (Id.) Accordingly, Plaintiff has failed to show
that the negative performance evaluation is casually connected to making a
report about an Educational Code violation.
The court finds that Plaintiff has failed
to show “by a
preponderance of the evidence” that her complaint about a violation of Ed. Code § 56521.1 “was a contributing
factor” in her suspension. (Lab. Code, § 1102.6.)
Therefore, summary adjudication is
granted as to the third cause of action.
Conclusion
Defendant’s Motion for Summary Judgment is granted.