Judge: Gail Killefer, Case: 22STCV19546, Date: 2024-04-11 Tentative Ruling

Case Number: 22STCV19546 Hearing Date: April 11, 2024 Dept: 37

HEARING DATE: Thursday, April 11, 2024

CASE NUMBER: 22STCV19546

CASE NAME: Deborah Mak v. Los Angeles Unified School District

MOVING PARTY: Defendant Los Angeles Unified School District

OPPOSING PARTY: Plaintiff Brent Palmer

TRIAL DATE: September 24, 2024

PROOF OF SERVICE: OK

PROCEEDING: Motion for Summary Judgment or, in the alternative, Summary Adjudication

OPPOSITION: 23 February 2024

REPLY: 1 March 2024

RECOMMENDATION: Defendant LAUSD’s request for summary judgment is denied. LAUSD’s request for summary adjudication is granted as to the fourth cause of action and denied as to the first, second, and third causes of action. Defendant to give notice.

Background

This action arises from the employment of Deborah Mak (“Mak”) and Brent Palmer (“Palmer”) (collectively “Plaintiffs”) by Defendant Los Angeles Unified School District (“LAUSD” or “District”). In October 1999, Mak was employed as a Special Ed. Trainee and/or Assistant at the John F. Kennedy High School. In January 2006, Palmer was employed as an Investigator with LAUSD. In August 2021, LAUSD adopted a mandatory COVID-19 vaccination policy (“Policy”) for its employees. The Complaint alleges Plaintiffs submitted requests for exemptions from the Policy pursuant to their religious beliefs (“Requests”), and LAUSD denied the Requests. Plaintiffs contend LAUSD terminated Mak on December 8, 2021, and Palmer on March 9, 2022, both for pretextual reasons.

Plaintiffs filed their operative First Amended Complaint (“FAC”) on November 14, 2022. The FAC alleges six causes of action: (1) discrimination in violation of FEHA; (2) failure to prevent discrimination and retaliation in violation of FEHA; (3) failure to accommodate in violation of FEHA; (4) retaliation; (5) financial abuse of a dependent adult due to undue influence (Welfare and Institutions Code § 15610.30)—Mak against LAUSD; and (6)violation of PAGA, Lab. Code §§ 2698, et seq.—Mak and aggrieved employees against LAUSD.

On January 30, 2023, the court sustained the demurrer to the fifth cause of action without leave to amend.

On December 21, 2023, LAUSD filed a motion for summary judgment or, in the alternative, summary adjudication as to Palmer’s first, second, third, and fourth causes of action. Palmer opposes the Motion. The matter is now before the court.

request for JUDICIAL notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

The court may take judicial notice of factual statements made to the public on a government website but the truth of the statements. (Wood v. Superior Ct. of San Diego County (2020) 46 Cal.App.5th 562, 580, fn. 2; People v. Morales (2018) 25 Cal.App.5th 502, 512, fn. 7.) While the court may take judicial notice of the existence of a website, the court may not accept the contents of the website as true. (See Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193.)

Palmer requests judicial notice of the following:

1) The District’s official webpage for the Office of the Chief Medical Director is attached as Exhibit E to the Declaration of David Alami. Exhibit E is a true and correct copy of the District’s official webpage for the Office of the Chief Medical Director located at https://www.lausd.org/domain/1377. (Alami Decl. ¶ 6.)

2) The LAUSD’s Final 2021-22 Budget, prepared by the District’s Budget Services and Financial Planning Division, dated June 2021 (adopted on or around June 22, 2021), (attached as Exhibit F to the Declaration of David Alami) is a true and correct copy of the District’s 2021-22 Final Budget, prepared by the District’s Budget Services and Financial Planning Division, dated June 2021 (adopted on or around June 22, 2021) and is accessible at https://www.lausd.org/cms/lib/CA01000043/Centricity/Domain/123/2021-22%20Final%20Budget%20Book%20rev.1.pdf.

3) The District’s official webpage for COVID-19 Vaccination Guidance is attached as Exhibit G to the Declaration of David Alami. Exhibit G is a true and correct copy the District’s official webpage for COVID-19 Vaccination guidance located at https://www.lausd.org/vaccineguidance.

Defendant LAUSD objects to Plaintiff’s request for judicial notice.

A. RJN of Exhibit E

Defendant objects to Exhibit E on the basis that the information provided is not relevant because “the website makes no mention of Dr. Malhotra’s role with the District before the Office of the Chief Medical Director was created, and does provide any insight as to its prior iterations. As a result, it does not provide sufficient information to prove or disprove any fact of consequence here.” (Objections to Plaintiff’s RJN at p. 2:24-27.)

As the party moving for summary judgment, the burden is on the Defendant District to show that Dr. Malhotra is qualified to testify about the District’s COVID-19 response, including facts and policies that occurred before and after she was hired by LAUSD. As no information is provided in Dr. Malhotra’s declaration as to when she was hired by LAUSD and if she served the District before August 2021, the Court agrees that the Defendant has failed to show that Dr. Malhotra is qualified to testify about what policies the District implemented before August 2021 and the District’s motivation for such policies.

Based on the above, Plaintiff’s request for judicial notice of Exhibit E is granted.

B. RJN of Exhibit F

The District objects to Exhibit F on the basis that “having a budget for special education does not mean that Plaintiff could be accommodated in the manner demanded. The Budget itself provides insufficient information to prove or disprove any disputed fact, including but not limited to how the budget was contemplated to be used vis-à-vis employees who sought to work remotely, if at all.” (Objections to Plaintiff’s RJN at p. 4:13-16.)

While the court may not accept the truth of the matters stated Exhibit F, the court may take judicial notice of the existence of Exhibit F as the information was published on a government website. Therefore, Palmer’s request for judicial notice of Exhibit F is granted.

C. RJN of Exhibit G

The District objects to Exhibit G on the basis that Exhibit G is irrelevant. Exhibit G states that the policy became effective on September 26, 2023, after the events that gave rise to this action.

Palmer fails to cite case law that would permit the court to consider a policy implemented subsequently to show that a reasonable accommodation could have been made in regard to a past policy or mandate. Governmental guidance regarding the prevention of COVID-19 has shifted at various times such that the correct policy for COVID-19 is reasonably subject to dispute and depends on what governmental guidance was provided at a specific point in time. There is no “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452(h).)

The court declines to take judicial notice of Exhibit G since it is not relevant to whether the District’s COVID-19 policy was reasonable at the time the events at issue took place. (See American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7 [“Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed.”] [italics original].)

Evidentiary Objections

A. Plaintiff’s Evidentiary Objections

Plaintiff submitted evidentiary objections to the Declaration of Smita Malhotra, M.D. California Rules of Court, rule 3.1354 requires that objections be referenced by the objection number. As Plaintiff’s objections are not numbered, the objections are not in proper form and the court declines rule on them. (Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642; Demps v. San Francisco Housing Authority (2007) 149 Cal. App. 4th 564, 578.)

B. Defendant LAUSD’s Evidentiary Objections

Objection No. 1 is overruled. While Plaintiff’s inclusion of the entire transcript violates Cal. Rules of Court, rule 3.1116, the violation does not render Plaintiff’s transcript inadmissible.

Objection No. 2 is sustained. Exhibit D is a voluminous record with documents produced by Plaintiff labeled PALMER 000001-000151. Plaintiff fails to show who authored each document or that Defendant District stipulated the authenticity of said documents and that admission of each document does not violate the hearsay rule. The declaration of Plaintiff’s counsel is also conclusory as to counsel’s personal knowledge of the exhibits attached in opposition to this motion because it merely states: “I have personal knowledge of the facts set forth herein, except where noted, and, if called to testify, could and would competently testify thereto under oath.” (Alami Decl. ¶ 1.)

The counteraffidavit concludes with the allegation that the ‘facts stated herein are within the personal knowledge of the affiant, and the affiant, if sworn as a witness, can testify competently thereto.’ Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored.

(Snider v. Snider (1962) 200 Cal.App.2d 741, 754, see also Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169.)

The authentication of Exhibit D by Plaintiff’s counsel is a statement that merely states: “Attached hereto as Exhibit D is a true and correct copy of Palmer’s documents produced by Palmer in this litigation, Bates labeled PALMER 000001-000151.” (Alami Decl. ¶ 5.) Such a statement is insufficient to authenticate all the documents that compose Exhibit D as there are no statements showing who authored the documents or that the documents are admissible business records kept in the ordinary course of business. Therefore, Exhibit D is inadmissible.

Objection No. 3 to Exhibit E is overruled.

Objection No. 4 to Exhibit F is overruled.

Objection No. 5 to Paragraph 8 of the Alami Declaration is sustained.

Objection No. 6 to Exhibit G is sustained due to lack of relevance.

Objections Nos. 7 and 10 are sustained.

Objections Nos. 8, 9, 11, 12, 13, and 14 are immaterial to the disposition of this Motion on the merits and the court declines to rule on them. All objections not ruled upon are preserved for appeal. (CCP § 437c(q).)

Discussion

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(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. (CCP § 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. (CCP § 437c(p)(2);¿Aguilar,¿supra, 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.”¿(Ibid.)¿¿¿¿¿¿¿¿

¿¿¿¿

“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.)¿

II. Motion For Summary Judgment/Summary Adjudication

A. Factual Summary

The following facts are undisputed unless supported by a citation to the record. Defendant LAUSD hired Palmer in 2006 to be an investigator, first working with the Office of the Inspector General and then the Student Safety Investigation Team (“SSIT”). ( Undisputed Material Fact (“UMF”) 19, 25.) The purpose of SSIT was to investigate LAUSD employee misconduct against students. (Virgil County(“County”) Decl. ¶ 3; Brent Palmer (“Palmer”) Decl. ¶ 4.) In March 2020, LAUSD ordered the closure of District sites due to COVID-19, and SSIT investigators were allowed to work from home during the timeframe the District sites were closed. (County Decl. ¶ 7.)

On August 13, 2021, LAUSD adopted a COVID-19 vaccine mandate and informed all employees and other adults providing services to LAUSD that a COVID-19 vaccination was required. (UMF No. 14.) The vaccine mandate required all employees to be fully vaccinated against COVID-19 by October 15, 2021. (UMF 15.) The District also informed all employees that they could seek an exemption from the COVID-19 mandate either due to a documented medical disability or serious medical condition or based on an employee’s sincerely held religious beliefs. (UMF 16.)

The District asserted that being fully vaccinated was “an essential job function” for all employees and adults providing services to the District but “[w]here feasible the District will reasonably accommodate employees, who based on a documented disability or sincerely held religious belief wish to continue working without being fully vaccinated.” (Francisco Serrato (“Serrato”) Decl. ¶ 4, Ex. 2.) The District also informed employees, on September 8, 2021, as follows:

Please be aware however, the reasonable accommodations do not include permitting employees to continue working at a District facility without being fully vaccinated.

[. . . ]

Although rare, some positions in the District avail themselves to remote work as a reasonable accommodation. In making its determination concerning whether to permit remote work, the District will engage with you in the interactive process and will consider multiple factors, including the availability and feasibility of remote work. However where your essential job duties require your physical presence at a District facility, the District will be unable to offer remote work as an accommodation. Further, where a risk to the health and safety of others cannot be reduced to an acceptable level trough a workplace accommodation, the employee may be excluded from physically entering the workplace.

Should an alternative accommodation not be available, the District and employee will then determine if there are any available benefit time/leave provisions, such as use of the employee’s illness leave (if due to medical reasons), personal necessity, vacation, or unpaid leave options.

Failure to Comply

Failure to comply with the mandate to be vaccinated and/or failure to provide the appropriate qualifying accommodation documentation may result in disciplinary action, being placed on unpaid leave, and/or separation from District service.

(Serrato Decl. ¶ 4, Ex. 2 [emphasis original].)

Following the commencement of in-person education, LAUSD ordered SSIT employees to immediately resume conducting all interviews with students and staff in person, requiring all investigators to return to in-person work. (County Decl. ¶ 8.)

In compliance with District policy, Palmer submitted a reasonable accommodation application in response to the COVID-19 vaccine mandate based on his firmly held religious beliefs. (UMF 30.) Palmer does not dispute that he requested to be exempt from the COVID-19 vaccine mandate and to continue to work remotely from home. (Serrato Decl. Ex. 3; Sheryl Rosenberg (“Rosenberg”) Decl. Ex. 7 [Palmer Depo. at p. 33:7-14].) However, Palmer alleges that the District failed to offer accommodations apart from remote work and failed to consider alternative accommodations such as demoting him or placing Palmer on unpaid leave instead.

The District asserts that Palmer’s job as an SSIT investigator could not be performed remotely because it is best practices for an SSIT investigate to conduct in-person interviews of alleged victims and perpetrators, to confirm that the discussion is not being overheard by third parties and that the interviewee is not being intimidated during the process, and to assess mannerisms and surroundings of the child being interviewed. (County Decl. ¶ 5.) The District also asserts that some investigations involve physical property and confidential documents that the investigator must access on District property. (County Decl. ¶¶ 5, 6.)

Palmer asserts that 95% of his job duties could be performed remotely, as was the case when he had to work remotely due to the District closure using Insight and Zoom. (David Alami (“Alami”) Decl. Ex. A [Palmer Depo. at pp. 19:22-20:3.) Palmer further asserts that during the 1.5 years he had to work remotely he could access any information designated as confidential and if physical evidence was needed from a District site, this job was done by the SSIT Investigative Assistant “and if necessary, sent to the forensic team for inspection and/or examination.” (Palmer Decl. ¶ 8.)

On or about October 15, 2021, the District responded to Palmer’s request for religious accommodation by informing him that no remote work was available for his position and that working unvaccinated at a District facility was not an available accommodation. (Serrato Decl. Ex. 4.) Instead, the District offered Palmer the use of benefit time or remaining in unpaid status, both which Plaintiff accepted. (Serrato Decl. Ex. 4; Rosenberg Decl. Ex. 7 [Palmer Depo. at p. 47:9-22].)

On March 8, 2022, Palmer was dismissed from service as a Permanent Investigator and dismissed for cause by being charged with two counts of willful or persistent violations for his failure to comply with the COVID-19 mandate. (Serrato Decl. Ex. 5 [Statement of Charges]; Rosenberg Decl. Ex. 7 [Palmer Depo. at pp. 69-8-70:7].)

After his dismissal, Palmer filed a complaint with the Department of Fair Employment and Housing on October 3, 2022. (UMF 35.) On June 15, 2022, Palmer filed this action. Defendant LAUSD now moves for summary judgment or, in the alternative, summary adjudication as to Palmer’s first cause of action for discrimination, second cause of action for failure to prevent discrimination and retaliation, third cause of action for failure to accommodate, and fourth cause of action for retaliation.

B. First Cause of Action – Discrimination in Violation of the FEHA (Gov. Code, § 12940(a))

“To state a prima facie case for¿discrimination¿in violation of the¿FEHA, a plaintiff must establish that (1) she was a member of a protected class, (2) she was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests¿discriminatory¿motive.” (Ortiz v. Dameron Hospital Assn.¿(2019) 37 Cal.App.5th 568, 577.)

Defendant District alleges that Palmer’s first cause of action for discrimination fails because LAUSD had a legitimate non-discriminatory reason for its vaccine mandate. The court agrees.

i. UMF Nos. 1 -13 Are Not Material

As Palmer has presented evidence that the Office of the Chief Medical Director for LAUSD was not created until August 2021, there are questions as to what capacity Dr. Malhotra served the District as well as her knowledge about the factors that shaped the District’s decision to implement a mandatory vaccine mandate.

The burden is on the District to show that Dr. Malhotra has personal knowledge about the District’s decision to implement a vaccine mandate, but Dr. Malhotra’s declaration is devoid of facts showing that before August 13, 2021, she served the District in some capacity as to allow her to speak as to the District’s motivations for implementing a mandatory vaccine policy. Dr. Malhotra stated that during the 2021 calendar year, she provided leadership to the District but she provides no dates sufficient to support the finding that she had personal knowledge about the LAUSD limiting in-person instruction in the Spring of 2020, knowledge of the Governor’s March 13, 2020 mandate and its contents, LAUSD’s coordination efforts with public health officials regarding COVID-19 prior to August 2021, or the guidance provided to LAUSD, prior to August 2021, by the United States Department of Health and Human Services Centers for Disease Control and Prevention (“CDC”), the California Department of Public Health ("CDPH"), the California Division of Occupational Safety and Health ("CalOSHA"), and the Los Angeles County Department of Public Health ("LACDPH").(Malhotra Decl. ¶¶ 3, 4, 7.)

Without a specific date as to when Dr. Malhotra began advising LAUSD about COVID-19 mitigation measures and in what capacity she served LAUSD prior to August 2021, Defendant District fails to show that Dr. Malhotra has personal knowledge of the facts she attests to and fails to show that the court can rely on her Declaration to establish UMF Nos. 1-13. Her declaration is the only source of evidence cited to support those facts.

Dr. Malhotra’s declaration asserts that “non-pharmaceutical interventions (e.g., masking and physical distancing) were insufficient” but fails to articulate facts or evidence to show why these vaccination alternatives were insufficient and why vaccination was seen as the better alternative. Dr. Malhotra states that “[o]n June 23, 2021, CDC's Advisory Committee on Immunization Practices (ACID) reviewed available data and concluded that the benefits of COVID-19 vaccination outweigh the risks and it recommended continued use of the vaccine in persons aged 12 and older.” (Malhotra Decl. ¶ 12.) Yet the June 23, 2021, CDC recommendation is not attached. Instead, Dr. Malhotra tries to prove the contents of the recommendation, in violation of the secondary evidence rule. (Evid. Code, §§ 1520, 1521.) Similarly, Dr. Malhotra asserts that “all applicable public health agencies - CDC, CDPH, LACDPH — recommended the vaccine as appropriate for all eligible individuals, students and adults alike.” (Malhotra Decl. ¶ 14.) However, the recommendations of the CDC, CDPH, and LACDPH regarding vaccination were not attached.

For the reasons outlined above, the court cannot rely on the Declaration of Dr. Malhotra to establish that the August 13, 2021, vaccine mandate was considered by LAUSD to be a necessary requirement to prevent COVID-19 because the District failed to put forth admissible evidence. Affidavits or declarations submitted in support for a motion for summary judgment “shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (CCP § 437c(d).)

However, the fact that UMF Nos. 1 to 13 are not sufficiently established does not mean that Palmer prevails in opposing the Motion because UMF Nos. 1-13 do not establish material facts. Instead, UMF Nos. 1 -13 are used to explain LAUSD’s reasoning for a vaccine mandate, with the material fact being that on August 13, 2021, LAUSD adopted a COVID-19 vaccine mandate. (UMF 14.)

Case law has long held that compulsory vaccination is permitted. (See Jacobson v. Massachusetts (1905) 197 U.S. 11, 29 (Jacobson). In Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, the Court of Appeal held that mandatory vaccination did not violate the plaintiffs’ right to privacy because “’compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases’” and society has a compelling interest in “fighting the spread of contagious diseases through mandatory vaccination of school-aged children.’ [Citations]” (Id. at pp. 933-994.) Similarly, in Jacobson the United States Supreme Court held that “vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was—perhaps, or possibly—not the best either for children or adults.” (Jacobson at p. 35.)

Based on the above, the court finds that LAUSD had a legitimate nondiscriminatory reason for implementing the COVID-19 vaccine mandate for all employees working on-stie at the District.

ii. The McDonnell-Douglas Burden Shifting Framework

“In cases alleging employment discrimination, we analyze the trial court's decision on a motion for summary judgment using a three-step process that is based on the burden-shifting test that was established by the United States Supreme Court for trials of employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860.) “The McDonnell-Douglas framework is modified in the summary judgment context. In a summary judgment motion in ‘an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ (Citation.)” (Id. at p. 861.)

“If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’” (Serri, supra, 226 Cal.App.4th at p. 861 citing Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [italics original].)

Defendant argues that there is no evidence of discriminatory animus because it had a legitimate, non-discriminatory reason for implementing a vaccine mandate and terminating Palmer’s employment for failing to comply with the mandate. (Serrato Decl. Ex. 5.) The burden shifts to Palmer to show that LAUSD’s vaccine mandate was pretextual.

Palmer’s opposition focuses on Title VII case law regarding disparate impact, despite making no such allegations in the operative complaint. Accordingly, the District is only required to negate theories of liability as alleged in the complaint, and not refute allegations not included in the pleadings. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Moreover, in disparate treatment cases, as opposed to disparate impact cases, the “plaintiff alleges that an employer has treated him or her less favorably than others due to race, color, religion, sex or national origin, and the plaintiff must prove a discriminatory intent or motive.” (Harris v. Civil Service Com. (1998) 65 Cal.App.4th 1356, 1365.) Here, Palmer fails to produce evidence that the District acted with discriminatory animus in implementing a District-wide COVID-19 vaccine mandate or that an alternative and equally effective District policy was available that did not require employees to be vaccinated.

Palmer’s declaration asserts that other SSIT team members and staff were allowed to complete their job duties remotely but fails to offer specific facts or evidence to support this contention. (Palmer Decl. ¶ 10.) Palmer fails to show that other SSIT employees who held the same position as him, that of an investigator, were permitted to work remotely, while he was not. In fact, at his deposition, Palmer stated that his supervisor told him remote work was not available because it “wouldn’t be fair to have me work at home when other people cannot.” (Alami Decl. Ex. A [Palmer Depo. at p. 33:22-25].) Accordingly, there is no evidence that after and during the time the vaccination mandate was in place, other SSIT staff were permitted to perform their jobs remotely while Palmer was not. Moreover, Palmer asserts that SSI Investigative assistants needed to be onsite to handle physical evidence. (Palmer Decl. ¶ 9.) Therefore, Palmer fails to show that LAUSD discriminated against him based on his religion by making vaccination a job requirement.

Palmer further argues that evidence of discriminatory evidence can be found in the fact he had to return his office equipment on November 9, 2021, before he was officially terminated from his employment. However, the facts establish that on October 15, 2021, Palmer’s request to work remotely was denied and he was placed on unpaid status. Palmer fails to provide substantial evidence that by requiring him to return office equipment not in use to the District, the District discriminated against Palmer based on his religious beliefs.

Lastly, Palmer argues that there is evidence of discriminatory animus because LAUSD terminated his employment and charged him with insubordination or willful disobedience and inattention to or dereliction of duty. (Serrato Decl. Ex. 5.) In alleging that LAUSD discriminated against Palmer by terminating him and charging him with insubordination and dereliction of duty, Palmer does not attack the COVID-19 vaccine mandate but LAUSD’s decision to charge him with disobedience.

LAUSD fails to offer a legitimate non-discriminatory reason for charging Palmer with disobedience for not complying with the vaccine mandate, despite having already placed him on unpaid status. (Serrato Decl. Ex. 5.) While LAUSD could have terminated Palmer, LAUSD also chose to charge him with disobedience for not complying with the vaccination mandate due to his religious preferences. LAUSD fails to articulate a reason for its decision to charge Palmer with disobedience rather than just terminating his employment. In mixed-motive cases, when an employer’s actions are motivated by both discriminatory and non-discriminatory reasons, the McDonnell Douglas burden-shifting framework does not apply. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 241.)

To prevail in a mixed-motive case, Palmer need only show that the decision to charge him with insubordination and dereliction of duty for not complying with the vaccine mandate was substantially motivated by the District’s religious animosity. (Lin v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 712, 722 (“Lin”.) The burden is on the District to produce evidence to show that it would have made the same decision to charge Palmer with disobedience regardless of his religious beliefs. (Ibid.)

There is no evidence before the court to show that the District’s decision charging Palmer with disobedience based on his failure to comply with the COVID-19 Vaccine Mandate was based on a legitimate non-discriminatory reason. The District fails to explain why Palmer’s termination needed to be with cause and why Palmer could not remain on the unpaid status list. The District fails to show that all employees who failed to comply with the COVID-19 mandate, not just those who had religious reservations, were also terminated and charged with disobedience and that the decision was made for a legitimate business reason. Accordingly, Palmer has presented a triable issue of fact regarding the District’s decision to terminate him and charge him with disobedience.

Thus, “[i]f triable issues of material fact exist [as to] whether discrimination was a substantial motivating reason for the employer's adverse employment action, even if the employer's professed legitimate reason has not been disputed, the FEHA claim is not properly resolved on summary judgment.’ [Citation.]” (Lin, supra, 88 Cal.App.5th at p. 722.)

Based on the above, the court denies summary adjudication as to the first cause of action for discrimination based on religion.

The court notes that to the extent Palmer argues that LAUSD failed to propose alternative accommodations and that this is evidence of discrimination, those allegations are analyzed under Government Code § 12940(l). Otherwise, the first cause of action for discrimination and the third cause of action for failure to accommodate based on religious creed would be subsumed into the third cause of action because the allegations would be premised on the same operative facts. (See Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 296, fn. 9.)

C. Third Cause of Action – Failure to Accommodate Religious Beliefs/Practices in Violation of the FEHA (Gov. Code, § 12940(l))

The FEHA imposes upon employers a comparable obligation to accommodate a person's sincerely held religious beliefs, and to refrain from retaliating or otherwise discriminating against a person for requesting accommodation. (Gov. Code, § 12940(l)(4).) “There are three elements to a prima facie case under section 12940, subdivision (l): the employee sincerely held a religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement. [Citation.] Once the employee establishes a prima facie case with sufficient evidence of the three elements, the burden shifts to the employer to establish that ‘it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations.]’ [Citation.]” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011.)

Recently, in Groff v. DeJoy (2023) 600 U.S. 447 [143 S.Ct. 2279, 2281, 216 L.Ed.2d 1041], the United States Supreme Court confirmed that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in undue hardship, meaning a substantial increased costs in relation to the conduct of its particular business. Nothing in Groff suggests that the McDonnell-Douglas burden-shifting framework no longer applies to cases premised on the failure to accommodate based on religious creed.

Defendant argues that Palmer’s third cause of action fails because Palmer could not be accommodated because he worked as an SSIT investigator and working on site was required to interview alleged victims and perpetrators as well as access confidential documents. (County Decl. ¶¶ 5, 6, 8.)

The District also points out that finite leave can be a reasonable accommodation under FEHA, “provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) But indefinite leave is not a reasonable accommodation where there is no possibility that the employee will be able to perform his essential job duties. (Ibid; referencing Gantt v. Wilson Sporting Goods Co. (6th Cir. 1998) 143 F.3d 1042, 1047 [“Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected.”) In light of the ruling in Groff, the burden remains on the District to show that providing indefinite unpaid leave presented an undue hardship to the District. LAUSD fails to meet this burden.

“The obligation to search for an acceptable solution is bilateral. Employees also have the obligation to make a good faith effort to explore alternatives.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) Palmer argues that the District failed to consider other accommodations for him, such as a demotion. But Palmer fails to provide evidence that he requested a demotion as an accommodation and that such a job existed that permitted him to work remotely. “ ‘[T]he employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.’ ” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)¿“An employee cannot demand clairvoyance of his employer.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.) The evidence before the court establishes that the District did offer Palmer alternative accommodations such as the use of benefit time and being placed on unpaid status. (Serrato Decl. Ex. 4; Rosenberg Decl. Ex. 7 Palmer Depo. at p. 47:9-22].)

While Palmer fails to show that he requested other accommodations apart from working remotely, the burden remains on LAUSD to show it “initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship.” (Soldinger, supra, v. 51 Cal.App.4th at p. 370.) Here, the evidence shows that in October 2021, after denying Palmer’s requested accommodation of working remotely, the District did offer him two other accommodations -- the use of any benefit time and unpaid status -- both of which he accepted. (Serrato Decl. Ex. 4; Rosenberg Decl. Ex. 7 Palmer Depo. at p. 47:9-22].) In March 2022, the District proceeded to dismiss Palmer and charge him with disobedience, thus removing his accommodations.

The District fails to meet its initial burden of showing of showing no triable issues of material fact exist. The evidence shows that the District was well aware that unpaid leave was a possible reasonable accommodation because, in its September 8, 2021, communication to employees, it identified unpaid leave as an option. (Serrato Decl. ¶ 4, Ex. 2.) Despite placing Palmer on unpaid status, on March 8, 2022, the District proceeded to terminate his employment and charge him with insubordination and dereliction of duty for not complying with the COVID-19 mandate. (Serrato Decl. Ex. 5.) The District fails to articulate why keeping Palmer on unpaid status or placing him on unpaid leave was an undue hardship.] Specifically, the District fails to identify what administrative or financial burden the District faced if it continued to keep Palmer on unpaid status or placed him on indefinite unpaid leave.

Based on the above, the court denies summary adjudication as to the third cause of action.

D. Fourth Cause of Action – Retaliation in Violation of the FEHA (Gov. Code § 12940(h))

Government Code § 12940(h) “prohibits an employer from retaliating against a person because the person has opposed any practices forbidden under [Goverment Code sections 12900 through 12966] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” (Gov. Code, § 12940(h) “Thus, protected activity takes the form of opposing any practices forbidden by FEHA or participating in any proceeding conducted by the DFEH or the Fair Employment and Housing Council (FEHC).” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380.)

To establish a prima facie case of retaliation under FEHA, Palmer must prove that “(1) he 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The McDonnell Douglas three-stage framework applies to a FEHA retaliation cause of action.” (Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 55.)

The District argues that Palmer’s fourth cause of action fails because Palmer cannot show he engaged in a protected activity: he did not participate in a FEHA proceeding or oppose any acts made unlawful by FEHA before his termination. (Gov. Code, § 12940(h).) Palmer did not file a complaint with the Department of Fair Employment and Housing until about October 3, 2022, some seven months after his March 8, 2022, termination. (UMF 35.)

Moreover, Palmer’s request for a religious accommodation is not a protected activity. “But protected activity does not include a mere request for reasonable accommodation. [Citation.] Without more, exercising one's rights under FEHA to request reasonable accommodation or engage in the interactive process does not demonstrate some degree of opposition to or protest of unlawful conduct by the employer.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 381 (Nealy).) In Nealy, the appellate court found that merely seeking a reasonable accommodation and initiating the interactive process, were insufficient to amount to a protected activity because “[t]hese acts alone do not amount to ‘oppos[ing] any practices forbidden under’ FEHA or participating in DFEH or FEHC proceedings. [Citations.] If they did, this interpretation of protected activity ‘would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation.’ ” (Nealy at p. 381 [internal quotation marks omitted].) At his deposition, Palmer testified that he believed he was retaliated because he “filed for a reasonable accommodation.” (Alami Decl. Ex. A [Palmer Depo. at pp. 66:25-67:2].)

The court finds that the District has met its initial burden of showing that no triable issues of fact exist regarding the fourth cause of action and that it is entitled to judgment as a matter of law. The burden shifts to Palmer to show that triable issues of fact exist precluding summary adjudication. Palmer’s opposition fails to show that apart from seeking a religious accommodation, he engaged in other conduct that qualified as a protected activity such as participating in a FEHA proceeding or opposing a practice forbidden under the FEHA. (Opposition at p. 14:7-13.)

Therefore, the court grants summary adjudication as to the fourth cause of action.

E. Second Cause of Action - Failure to Prevent Discrimination and Retaliation in Violation of the FEHA (Gov. Code § 12940(k))

FEHA makes it unlawful employment practice “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code § 12940(k), see Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [noting that retaliation is a form of discrimination and is actional under Gov. Code section 12940(k)].) Section 12940(k) “creates a separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages.” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.)

The District argues that because Palmer has failed to establish that he was subject to unlawful discrimination, the second cause of action fails. As established above, the District has failed to show that Palmer has no viable claim for discrimination under section 12940(a) because LAUSD dismissed him and charged him with disobedience but failed to articulate a legitimate, nondiscriminatory reason for this decision. Palmer also has a viable claim for discrimination under section 12940(l) for failure to accommodate based on religious creed as he was placed on unpaid status but then the accommodation was removed without the District showing why maintaining such an accommodation was an undue hardship for the District.

Accordingly, the court denies summary adjudication as to the second cause of action.

Conclusion

Defendant LAUSD’s request for summary judgment is denied. LAUSD’s request for summary adjudication is granted as to the fourth cause of action and denied as to the first, second, and third causes of action. Defendant to give notice.

HEARING DATE: Thursday, March 11, 2024

CASE NUMBER: 22STCV19546

CASE NAME: Deborah Mak v. Los Angeles Unified School District

MOVING PARTY: Defendant Los Angeles Unified School District

OPPOSING PARTY: Plaintiff Deborah Mak

TRIAL DATE: 24 September 2024

PROOF OF SERVICE: OK

PROCEEDING: Motion for Summary Judgment or, in the Alternative, Summary Adjudication

OPPOSITION: 22 February 2024

REPLY: 1 March 2024

TENTATIVE: Defendant LAUSD’s request for summary judgment is denied. LAUSD’s request for summary adjudication is granted as to the first, fourth, and sixth causes of action and denied as to the second and third causes of action. Defendant to give notice.

Background

On January 30, 2023, the court sustained the demurrer to the fifth cause of action without leave to amend.

On December 21, 2023, LAUSD filed a motion for summary judgment or, in the alternative, summary adjudication as to Mak’s first, second, third, fourth, and sixth causes of action. Mak opposes the Motion. The matter is now before the court.

request for JUDICIAL notice

The court may take judicial notice of factual statements made to the public on a government website but their truth. (Wood v. Superior Ct. of San Diego County (2020) 46 Cal.App.5th 562, 580, fn. 2; People v. Morales (2018) 25 Cal.App.5th 502, 512, fn. 7.) While the court may take judicial notice of the existence of a website, the court may not accept its contents as true. (See Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193.)

Plaintiff Mak requests judicial notice of the following:

1) The District’s October 14, 2021, job posting on edjoin.org for Special Education Trainees, attached as Exhibit E to the Declaration of Shaheen Anthony Etemadi. Exhibit E is a true and correct copy of the District’s October 14, 2021, job posting on edjoin.org for Special Education Trainees produced by Mak in this litigation, Bates labeled MAK 000037-000039, located at https://www.edjoin.org/Home/JobPosting/1492362.

2) The District’s official webpage for the Office of the Chief Medical Director, attached as Exhibit F to the Declaration of Shaheen Anthony Etemadi. A true and correct copy of the District’s official webpage for the Office of the Chief Medical Director located at https://www.lausd.org/domain/1377.

3) LAUSD’s Final 2021-22 Budget, prepared by the District’s Budget Services and Financial Planning Division, dated June 2021 (adopted on or around June 22, 2021), attached as Exhibit G to the Declaration of Shaheen Anthony Etemadi. A true and correct et Services and Financial Planning Division, dated June 2021 (adopted on or around June 22, 2021) is available on the District’s official website: https://www.lausd.org/cms/lib/CA01000043/Centricity/Domain/123/2021- 22%20Final%20Budget%20Book%20rev.1.pdf.

4) The letter from the United States Department of Education, Office for Civil Rights, to the District’s Superintendent Alberto M. Carvalho dated April 28, 2022, attached as Exhibit H to the Declaration of Shaheen A. Etemadi. A true and correct copy of the letter from the United States Department of Education, Office for Civil Rights (“OCR”).

5) The April 28, 2022, press release entitled “Office for Civil Rights Reaches Resolution Agreement with Nation’s Second Largest School District, Los Angeles Unified, to Meet Needs of Students with Disabilities during COVID-19 Pandemic” posted on the U.S. Department of Education’s official website, attached as Exhibit J to the Declaration of Shaheen A. Etemadi.

6) The District’s official webpage for COVID-19 Vaccination Guidance, attached as Exhibit K to the Declaration of Shaheen A.

Plaintiff’s request for judicial notice of Exhibit E is denied as Plaintiff fails to show how Exhibit E is relevant. Exhibit E includes the job duties of a Special Education Trainee including providing physical care and helping students with classroom equipment. Plaintiff fails to show how Exhibit E is relevant to show that Plaintiff could perform the duties of a Special Education Trainee while working remotely.

Plaintiff’s request for judicial notice of Exhibit F is granted. Defendant District objects to Exhibit F on the basis that the information provided is not relevant because “the website makes no mention of Dr. Malhotra’s role with the District before the Office of the Chief Medical Director was created, and does provide any insight as to its prior iterations. As a result, it does not provide sufficient information to prove or disprove any fact of consequence here.” (Objections to Plaintiff’s RJN at p. 4:13-16.)

The LAUSD website states: “The Office of the Chief Medical Director was established in August 2021 and provides health policy direction for the entire school district.” Plaintiff argues that Dr. Malhotra cannot testify about District matters that occurred before she became the Chief Medical Director in August 2021. (See Plaintiff’s evidentiary objections to the Declaration of Smita Malhotra). As the party moving for summary judgment, the burden is on the Defendant District to show that Dr. Malhotra is qualified to testify about the District’s COVID-19 response, including facts and policies that occurred before and after she was hired by LAUSD. As no information is provided in Dr. Malhotra’s declaration as to when she was hired by LAUSD and if she served the District before August 2021, the Court agrees that the District has failed to show that Dr. Malhotra is qualified to testify about what policies the District implemented before August 2021 and the District’s motivation for such policies. Judicial Notice of Exhibit F is granted because the information was published on the District’s website and establishes a fact that is not disputed, that the position of the Chief Medical Director was not established until August 2021.

Plaintiff’s request for judicial notice of Exhibit H is also denied as Plaintiff fails to show how Exhibit H is relevant. According to Plaintiff, Exhibit H is offered to show that the District failed to provide adequate services during remote learning to students on Individualized Education Programs remotely during the pandemic. (Etemadi Decl. ¶ 11.) Plaintiff fails to show how the OCR letter shows that Plaintiff could perform her job remotely or supports the finding that she experienced discrimination and retaliation due to her religion. Additionally, the website link to the OCR letter is no longer accessible.

Plaintiff’s request for judicial notice of Exhibit G is granted. The District objects to Exhibit G on the basis that “having a budget for special education does not mean that Plaintiff could be accommodated in the manner demanded. The Budget itself provides insufficient information to prove or disprove any disputed fact, including but not limited to how the budget was contemplated to be used vis-à-vis employees who sought to work remotely, if at all.” (Objections to Plaintiff’s RJN at p. 6:1-5.) While the court may not accept the truth of the matters stated in Exhibit G, the court may take judicial notice of the existence of Exhibit G as the information was published on a government website. Therefore, Plaintiff’s request for judicial notice of Exhibit G is granted.

Plaintiff’s request for judicial notice of Exhibit J is also denied because a press release is not appropriate subject for judicial notice as the contents of the press release are reasonably subject to dispute. (See People v. Garcia (2002) 28 Cal.4th 1166, 1175, fn. 5, [denying notice of “authoring legislator's press releases and letters”]; Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1065, [court could not take judicial notice of truth of conclusions in a Surgeon General report about the health effects of smoking or of matters reported in a newspaper article].)

Plaintiff’s request for judicial notice of Exhibit K is denied as irrelevant. Exhibit K states that the policy became effective on September 26, 2023, after the events that gave rise to this action. Plaintiff fails to state case law that would permit the court to consider a policy implemented subsequently to show that a reasonable accommodation could have been made regarding a past policy or mandate. Governmental guidance regarding the prevention of COVID-19 has shifted at various times such that the correct policy for COVID-19 is reasonably subject to dispute and depends on what governmental guidance was provided at a specific point in time. Therefore, Exhibit K is not “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452(h).)

Therefore, the court declines to take judicial notice of Exhibit K since it is not relevant to whether the District’s COVID-19 policy was reasonable at the time the events at issue took place. (See American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7 [“Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed.”] [italics original].)

Evidentiary Objections

A. Plaintiff’s Evidentiary Objections

Plaintiff Mak submitted evidentiary objections to the Declaration of Smita Malhotra, M.D. California Rules of Court, rule 3.1354 requires that objections be referenced by the objection number. As Mak’s objections are not numbered, the objections are not in proper form and the court declines rule on them. (Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642; Demps v. San Francisco Housing Authority (2007) 149 Cal. App. 4th 564, 578.)

B. Defendant LAUSD’s Evidentiary Objections

Objection No. 1 is overruled. While Plaintiff’s inclusion of the entire transcript violates Cal. Rules of Court, rule 3.1116, the violation does not render Plaintiff’s transcript inadmissible.

Objection No. 2 is sustained. Exhibit D is a letter by the Plaintiff’s prior counsel. Plaintiff fails to authenticate the letter and show that it is admissible and not hearsay.

Objection No. 3 is overruled. Exhibit F is not hearsay as it is offered to prove an independent fact or event. (See Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 42–43.)

Objection No. 4 is sustained. Exhibit E is not relevant and is hearsay.

Objection No. 5 is overruled. Exhibit G is not subject to the hearsay rule if offered to show the existence of a record rather than its contents, here that the District had a budget.

Objection Nos. 6 and 8 are sustained. Paragraph 9 and Paragraph 11 of the Etemadi declaration attempts to prove the contents of a writing in violation of the secondary evidence rule.

Objection No. 10 is sustained. Exhibit J is a press release and inadmissible due to hearsay.

Objections Nos. 7, 9, 11, 12 to 21 are immaterial to the disposition of this Motion on the merits and the court declines to rule on them. All objections not ruled upon are preserved for appeal. (CCP, § 437c(q).)

MOTION FOR SUMMARY JUDGMENT

I. Legal Standard

¿¿¿¿

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. (CCP, § 437c(p)(2);¿Aguilar,¿supra, 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.”¿(Ibid.)¿¿¿¿¿¿¿¿

¿¿¿¿

II. Discussion

A. Factual Summary

The following facts are undisputed unless supported by a citation to the record. The District provides Special Education services to students with disabilities and related services such as transportation, developmental, corrective, and other supportive services that are needed to assist a child in benefiting from special education services. (Yolanda Gonzalez (“Gonzalez”) Decl. ¶ 5.) A Special Education Trainee assists teachers with caring for students’ physical needs and presenting educational material and development exercises. (Gonzalez Decl. ¶ 10.) A Special Education Trainee may be assigned to a specific classroom or school or reassigned as needed. (Gonzalez Decl. ¶ 10.) Accordingly, a Special Education Trainee must, as an essential job duty, be present at a school site in person to help present lesson plans, assist students with work, transfer students in and out of adaptive equipment, and supervise students during passing periods. (Gonzalez Decl. ¶ 10.) In 1999, LAUSD hired Mak as a Special Education Assistant. (Undisputed Material Fact (“UMF”) 26.)

On August 13, 2021, LAUSD adopted a COVID-19 vaccine mandate and informed all employees and other adults providing services to LAUSD that a COVID-19 vaccination was required. (Francisco Serrato (“Serrato”) Decl. Ex. 1.) The COVID-19 vaccine mandate required all District employees to be fully vaccinated against COVID-19 by October 15, 2021, later extended to November 15, 2021. (UMF 15.) The District also informed all employees that they could seek an exemption from the COVID-19 mandate either due to a documented medical disability or serious medical condition or based on an employee’s sincerely held religious beliefs. (UMF 16.)

The District also informed employees, on September 8, 2021, as follows:

Please be aware however, the reasonable accommodations do not include permitting employees to continue working at a District facility without being fully vaccinated.

[. . . ]

Failure to Comply

(Serrato Decl. ¶ 4, Ex. 2 [emphasis original].)

Mak submitted a request to be exempt from the vaccine mandate based on her religion/religious creed. (UMF 27; Etemadi Decl. Ex. A. [Mak Depo. at p. 35:5-6].) She requested authorization to work remotely as a reasonable accommodation. (Sheryl Rosenberg (“Rosenberg”) Decl. Ex. 8 [Mak Depo. at p. 39:10-14]; Etemadi Decl. ¶ 3, Ex. B at pp. LAUSD 000001-LAUSD 000002.)

On November 24, 2021, the Committee on Reasonable Accommodations Based on Sincerely Held Religious Beliefs (“Committee”) engaged in an interactive meeting to consider if Mak could work remotely. (Etemadi Decl. ¶ 3, Ex B at p. LAUSD 000001.) The District stated that there were no vacant positions for a Special Education Assistant at the City of Los Angeles on-line academy and that if Mak were to work remotely “[Plaintiff] would not be able to perform the full complement of essential functions of [her] job as a Special Education Assistant, i.e. CPR, responding to emergency and exigent circumstances, first aid, lifting requirements, diapering, toileting, escorting students and pushing wheelchairs.” (Etemadi Decl. ¶ 3, Ex B at pp. LAUSD 000001-000002.)

The Committee went on to note that “[w]hile some of duties may be performed remotely, most cannot. Furthermore, offering remote services where in-person services are more effective is not a ‘best practice’ since remote services are not in the best interest of the student we serve” and “[w]ere the District to offer remote services when in-persona services are otherwise available would pose significant health and safety risks as well as increase the risk of falling out of compliance.” (Etemadi Decl. ¶ 3, Ex B at pp. LAUSD 000001-000002 [emphasis original].)

Mak believed her termination was unlawful because she was not given the opportunity to work remotely despite previously doing so during COVID-19. (Etemadi Decl. ¶ 2, Ex. A [Mak Depo. at p. 30:3-21].) Moreover, Mak asserts that because she worked with students with learning disabilities as opposed to physical disabilities, she could perform her job duties remotely. (Etemadi Decl. ¶ 2, Ex. A [Mak Depo. at pp. 24:21-25:9].)

Due to Mak’s failure to comply with the vaccine mandate, LAUSD charged her with insubordination or willful disobedience and inattention to or dereliction of duty and terminated her employment on December 7, 2021. (Etemadi Decl. ¶ 3, Ex. B at pp. LAUSD 000407-LAUSD 000409; Serrato Decl. Ex. 4.) Mak was one of several employees who were terminated for failing to comply with the vaccine mandate. (UMF 19.)

B. The McDonnell-Douglas Burden Shifting Framework

C. First Cause of Action – Discrimination in Violation of the FEHA (Gov. Code, § 12940(a))

The District alleges that Mak’s first cause of action for discrimination fails because LAUSD had a legitimate non-discriminatory reason for its vaccine mandate. Case law has long held that compulsory vaccination is permitted. (See Jacobson v. Massachusetts (1905) 197 U.S. 11, 29 (Jacobson). In Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, the Court of Appeal held that mandatory vaccination did not violate the plaintiffs’ right to privacy because “’compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases’” and society has a compelling interest in “fighting the spread of contagious diseases through mandatory vaccination of school-aged children.’ [Citations]” (Id. at pp. 933-994.) Similarly, in Jacobson the United States Supreme Court held that “vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was—perhaps, or possibly—not the best either for children or adults.” (Jacobson at p. 35.) Based on the above, the court finds that LAUSD had a legitimate nondiscriminatory reason for implementing the COVID-19 vaccine mandate for all employees working on-stie at the District.

The burden shifts to Mak to produce substantial evidence that the vaccine mandate was pretextual or that LAUSD acted with discriminatory animus. (Serri, supra, 226 Cal.App.4th at p. 861.) Mak argues that a week before her dismissal, the District published a job posting seeking ten new Special Education Assistants. (Plaintiff’s RJN Ex. E.) However, Exhibit E is not properly authenticated and is inadmissible due to hearsay. Mak argues that Exhibit E shows that the District intended to terminate her without considering possible ways to accommodate her. To the extent that Exhibit E goes to the issue of accommodation, the claim goes to discrimination based on a claim of religious accommodation under Government Code § 12940(l), instead of Government Code § 12940(a). If Plaintiff’s allegations of discrimination under section 12940(a). are premised on the same operative facts, then the first cause of action is subsumed under the third cause of action. (See Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 296, fn. 9.)

Mak states the District’s chose to terminate her by charging her with insubordination and dereliction of duty so that she could not collect unemployment benefits, yet Mak offers no evidence in support of this contention. Moreover, such an argument fails to show that the District’s Covid-19 vaccination mandate was pretextual or that the decision to terminate Mak so that she could not collect unemployment was causally connected to Mak’s religious beliefs. In other words, Mak fails to show that the decision to terminate her for cause was substantially motivated by the District’s religious animosity towards her rather than the desire to avoid paying unemployment. Even if Mak could prove that the District terminated her with cause so that it would not have to pay unemployment, such reason is not evidence of religious animosity.

Based on the above, the court grants summary adjudication as to the first cause of action.

D. Third Cause of Action – Failure to Accommodate Religious Beliefs/Practices in Violation of the FEHA (Gov. Code, § 12940(l))

The FEHA imposes upon employers a comparable obligation to accommodate a person’s sincerely held religious beliefs, and to refrain from retaliating or otherwise discriminating against a person for requesting accommodation. (Gov. Code, § 12940(l)(4).) “There are three elements to a prima facie case under section 12940, subdivision (l): the employee sincerely held a religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement. [Citation.] Once the employee establishes a prima facie case with sufficient evidence of the three elements, the burden shifts to the employer to establish that ‘it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations.]’ [Citation.]” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011.)

Recently, in Groff v. DeJoy (2023) 600 U.S. 447 [143 S.Ct. 2279, 2281, 216 L.Ed.2d 1041], the United States Supreme Court confirmed that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in undue hardship, meaning a substantial increased costs in relation to the conduct of its business. Nothing in Groff suggests that the McDonnell-Douglas burden-shifting framework no longer applies to cases premised on the failure to accommodate based on religious creed.

The District argues that Mak’s third cause of action fails because Mak could not be accommodated as remote work was not available to Special Education Trainees. Sufficient evidence exists to support the finding that working on-site was an essential job function of Special Education Trainees because they were needed to provide CPR, first aid, and respond to emergency and exigent circumstances in the classroom. (Gonzalez Decl. ¶¶ 5, 10; Etemadi Decl. ¶ 3, Ex B at pp. LAUSD 000001-000002.)

The burden shifts to Mak to show that her essential job duties could be performed remotely. Mak testified that in helping students with learning disabilities she would help them copy things and make copies, and occasionally go on field trips. (Etemadi Decl. Ex. A [Mak Depo. at pp. 26:2-4, 27:11-17].) Mak fails to explain how such duties could still be accomplished by working remotely. Her deposition testimony reveals that to assist students as needed remotely, she and the students would have to be constantly online on platforms like Zoom and Schoology, even school instruction was now being provided on-site and in person on District property. (Etemadi Decl. Ex. A [Mak Depo. at pp. 29:5-12, 30:14-22].)

“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 (Nealy).) The evidence before the court shows that essential other duties of a Special Education Trainee included CPR, providing first aid, and responding to emergency and exigent circumstances, duties that apply to all students, not just students with physical disabilities. (Etemadi Decl. ¶ 3, Ex B at pp. LAUSD 000001-000002.) Even if the District had an unlimited budget, Mak fails to identify what specific technologies or tools would have permitted her to perform these essential job duties remotely. Mak asserts that she could perform other job duties, such as correcting papers and entering grades remotely, but the fact that she could perform some of her job functions remotely does not mean that all of her duties could be performed remotely. To eliminate the requirement that Mak work onsite would include eliminating from her job functions the requirement that she be available to respond to emergency and exigent circumstances such as providing CPR and First Aid, something that is “not a reasonable accommodation.” (Nealy, at p. 377.)

The evidence before the court shows that while Mak was previously assigned to a single classroom with students who had learning disabilities rather than physical disabilities, she could be reassigned as a Special Education Trainee to a classroom that required her to assist students with physical disabilities. (Gonzalez Decl. ¶ 10.) The District is not required to relocate Mak to the City of Los Angeles online academy because there were no vacancies at the time and “FEHA does not require a reassignment [where] there is no vacant position for which the employee is qualified.” (Nealy, supra, 234 Cal.App.4th at p. 377.) Likewise, the District is not required to promote Mak or create a new position that would have allowed her to work remotely even if it had the budget to do so. (Id. at p. 377.)

Moreover, the FEHA does not require that Mak be permitted to work remotely or be placed on unpaid leave indefinitely where the employee “is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (Green v. State of California (2007) 42 Cal.4th 254, 262.)

Based on the above, Mak fails to show that triable issues of fact exist regarding her ability to perform the essential job functions of a Special Education Trainee remotely.

Mak argues that other reasonable accommodations were available that the District failed to consider, such as a demotion or unpaid leave. “The obligation to search for an acceptable solution is bilateral. Employees also have the obligation to make a good faith effort to explore alternatives.” Mak fails to provide evidence that a demotion or unpaid leave were accommodations that she sought and were denied by the District. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) “‘[T]he employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.’ ” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)¿“An employee cannot demand clairvoyance of his employer.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.)

The District presents evidence that it offered Mak the option to seek other positions that were not in the classroom and did not require her to be on-site. (Rosenberg Decl. Ex. 8 [Mak Depo. at p. 40:5-18].) Mak fails to show that a position within the District existed that would have permitted her to work remotely, even if it was a demotion.

Mak also argues that LAUSD fails to show that giving the Plaintiff unpaid leave was an unreasonable accommodation because it posed a substantial hardship to LAUSD.

On reply, the District argues that finite leave can be a reasonable accommodation under FEHA, “provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) But indefinite leave is not a reasonable accommodation where there is no possibility that the employee will be able to perform his essential job duties. (Ibid; referencing Gantt v. Wilson Sporting Goods Co. (6th Cir. 1998) 143 F.3d 1042, 1047 [“Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected.”) The District argues that it was not foreseeable when health officials would deem vaccination as no longer being a best practice in preventing the spread COVID-19, such that it was not obligated to give Plaintiff indefinite unpaid leave for an event that was not foreseeable at the time of her termination. In light of the United States Supreme Court’s ruling in Groff, the burden remains on the District to show that providing indefinite unpaid leave presented an undue hardship to the District. LAUSD fails to meet this burden.

Accordingly, Plaintiff has shown that triable issues of fact exist regarding the third cause of action, and summary adjudication is denied as the third cause of action.

E. Fourth Cause of Action – Retaliation in Violation of the FEHA (Gov. Code § 12940(h))

To establish a prima facie case of retaliation under FEHA, Plaintiff must prove that “(1) he 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The McDonnell Douglas three-stage framework applies to a FEHA retaliation cause of action.” (Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 55.)

The District argues that Mak’s fourth cause of action fails because she cannot show she engaged in a protected activity: Mak did not participate in a FEHA proceeding or oppose any acts made unlawful by FEHA before her termination. (Gov. Code, § 12940(h).) Moreover, requesting a religious accommodation is not in itself a protected activity. “But protected activity does not include a mere request for reasonable accommodation. [Citation.] Without more, exercising one's rights under FEHA to request reasonable accommodation or engage in the interactive process does not demonstrate some degree of opposition to or protest of unlawful conduct by the employer.” (Nealy, supra, 234 Cal.App.4th at p. 381.) In Nealy, the appellate court found that merely seeking a reasonable accommodation and initiating the interactive process, were insufficient to amount to a protected activity because “[t]hese acts alone do not amount to ‘oppos[ing] any practices forbidden under’ FEHA or participating in DFEH or FEHC proceedings. [Citations.] If they did, this interpretation of protected activity ‘would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation.’ ” (Nealy at p. 381 [internal quotation marks omitted].)

The court finds that the District met its initial burden of showing that no triable issues of fact exist regarding the fourth cause of action. The burden shifts to the Mak to show that triable issues of fact exist precluding summary adjudication.

Mak’s opposition fails to show that apart from seeking a religious accommodation, Mak engaged in other conduct that qualified as a protected activity, such as participating in a FEHA proceeding or opposing a practice forbidden under the FEHA. (Opposition at p. 14:7-13.) Mak’s demand letter sent by her prior counsel asking that the District rescind the recommendation for discipline is not admissible. (See Plaintiff’s Exhibit D.) Mak also cites her own discovery responses, something that is impermissible in opposing a motion for summary judgment. (Great Am. Insur. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 450 [party cannot use his own discovery responses to oppose summary judgment].)

In sum, Mak’s fourth cause of action is premised entirely on the fact that she requested religious accommodation. As Mak fails to show that she engaged in a protected activity, no triable issues of fact exist regarding the fourth cause of action, and the court grants summary adjudication in favor of Defendant LAUSD on this cause of action.

F. Second Cause of Action - Failure to Prevent Discrimination and Retaliation in Violation of the FEHA (Gov. Code § 12940(k))

LAUSD argues that because Mak has failed to establish that she was subject to unlawful discrimination, the second cause of action fails. However, as established above, LAUSD has failed to show that Mak has no viable claim for discrimination under section 12940(l) for failure to accommodate based on religious creed.

Accordingly, the court denies summary adjudication as to the second cause of action

G. Sixth Cause of Action – PAGA Penalties (Lab. Code, § 96(k))

Labor Code § 96(k) provides:

The Labor Commissioner and the deputies and representatives authorized by the commissioner in writing shall, upon the filing of a claim therefor by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of:

[ . . . ]

(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises.

(Lab. Code, § 96.)

Labor Code § 98.6(b)(3) states:

In addition to other remedies available, an employer who violates this section is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section, to be awarded to the employee or employees who suffered the violation.

LAUSD requests summary adjudication on the basis that PAGA penalties cannot be maintained against it as a public entity because Mak’s claims for violation of section 96(k) fail: she was not discharged for unlawful conduct occurring during non-working hours. Rather, LAUSD fired her because she failed to comply with the vaccine mandate.

Viable PAGA claims can be maintained against public entity employers, including CSU, but only when the laws upon which the claims are premised themselves provide for penalties. PAGA claims cannot be maintained against public entities when the laws upon which the claims are premised do not themselves provide for penalties. This is because public entities are not “persons” under PAGA allowed to bring such claims.

(Sargent v. Board of Trustees of California State University (2021) 61 Cal.App.5th 658, 669.)

“By its plain language, this provision of 98.6, subdivision (a) limits the rights of employers to discharge at-will employees for section 96, subdivision (k) conduct.” (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 86.)

Mak’s First Amendment claim alleges that she and other aggrieved employees “engaged in lawful activity during nonworking hours away from Defendant’s premises by, among other things, choosing not to receive a COVID-19 vaccination due to their sincerely held religious beliefs and/or other lawful exemptions.” (FAC ¶ 32.) “Specifically, Plaintiff MAK and other aggrieved employee refused to take the COVID-19 vaccine and requested an exemption and specifically offered to accept any reasonable accommodations, including testing, masking and distancing, as well as any other reasonable alternatives to taking the COVID-19 vaccine.” (FAC ¶ 32.)

“[T]he scope of section 96, subdivision (k) [is] limited to ‘lawful conduct occurring during nonworking hours away from the employer's premises’ asserting “recognized constitutional rights.’ (Italics added.) Therefore, to successfully establish a tortious discharge claim under this provision of section 98.6, [plaintiff] must allege her discharge occurred because she asserted a recognized constitutional right.” (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 86 (Grinzi).)

LAUSD states that Mak was terminated because she could not perform the essential job functions of a Special Education Trainee. There is no recognized constitutional right to be exempt from a vaccine mandate. (See Jacobson v. Massachusetts (1905) 197 U.S. 11; Love v. State Dept. of Education (2018) 29 Cal.App.5th 980.) Section 98.6 also protects any rights “ ‘otherwise protected by the Labor Code.’ ” (Grinzi, supra, 120 Cal.App.4th at p. 87.)

Therefore, the burden shifts to Mak to show that noncompliance with a vaccine mandate is a recognized constitutional right or a right protected by the Labor Code.

Mak’s opposition fails to raise triable issues of fact regarding the sixth cause of action. While Plaintiff has a constitutional right to religious freedom, she is not immune from the consequences of following her religious practices when such practices render her unable to perform the essential functions of her job. (See Green, supra, 42 Cal.4th at p. 262.) The ruling in Groff v. DeJoy (2023) 600 U.S. 447 reflects the fact that when a request for reasonable accommodation based on religious beliefs is denied, the employer bears the burden of showing undue hardship in granting the accommodation. In no way can Groff stand for the proposition that religious accommodations must always be granted and trump any job requirements that conflict with an employee's sincerely held religious beliefs.

For the reasons set forth above, the court grants summary adjudication as to the sixth cause of action.

Conclusion

Defendant LAUSD’s request for summary judgment is denied. LAUSD’s request for summary adjudication is granted as to the first, fourth, and sixth causes of action and denied as to the second and third causes of action. Defendant to give notice.