Judge Gary I. Micon, Case Number: 22CHCV00276, Date: 2024-12-11 Tentative Ruling

RESPONDING PARTIES: Plaintiffs Iris Arnold, Setiawatin Beckman, Angela Karapetyan, Sarah Olczak and Laurie Peachey

Plaintiffs were teachers and staff members at a charter school operating under a charter granted by the Los Angeles Unified School District. The plaintiffs were fired after refusing to take the Covid-19 vaccine pursuant to a mandate imposed by the school district on all charter schools. They sued the school and its principal for failing to accommodate their religious beliefs or medical conditions in violation of the state’s workplace anti-discrimination laws. The court finds that summary judgment for defendants is proper because the charter school’s failure to comply with the district’s mandate would have subjected it to undue hardship and because the undisputed evidence shows that no reasonable accommodations were available.

Granada Hills Charter School (GHC) is an independent public charter school operating under a charter granted by the Los Angeles Unified School District (the District). GHC operates two campuses: the Zelzah Avenue campus for grades 9-12 and the Devonshire campus for grades TK-8. The Zelzah campus was owned by the district and leased to GHC, while GHC owned the Devonshire campus. Iris Arnold, Angela Karapetyan, and Setiawatan Beckman were teachers at GHC’s Zelzah campus. Sarah Olczak was a GHC student counselor at the Zelzah campus and Laurie Peachey worked there as a purchasing assistant.

In August 2021, a few months after the roll-out of the first Covid-19 vaccines, the District imposed a vaccination mandate on all employees who worked in person at District campuses, including its charter schools. Charter schools were required to certify by October 15, 2021, that they had complied with the mandate. Failure to do so, the District warned, would be a material breach of a school’s charter and could result in a variety of sanctions: revocation of the charter; removing people and personal property from the premises; termination of the charter’s right to occupy District-owned property; or other steps to mitigate the impact of the charter’s breach. Any charter school sanctioned for not complying would also be liable for any costs the District incurred as a result. (Bauer, Dec., exh. G.) Reasonable accommodations that complied with this directive were allowed by the District at District-owned sites. Charter school operations carried on at privately-owned locations could grant reasonable accommodations that allowed for in-person work. (Cite.)

Arnold, Karapetyan, Beckman, and Peachey refused to take the vaccine based on their religious beliefs. Beckman also contended she could not be vaccinated due to a medical condition – allergies that gave her hives. Olzcak declined based in part for religious reasons but primarily for personal reasons related to her previous bout with cancer. Plaintiffs asked GHC to accommodate them through a combination of masking, masking and testing, social distancing, remote work, or transfers to the Devonshire campus. Although disputed by plaintiffs, GHC Principal Brian Bauer claimed that he evaluated the requests in light of the District’s policy, the need for each plaintiff to work on campus, and the unavailability of open positions at the Devonshire campus, and concluded that plaintiffs’ essential job functions required them to be on campus, that masking, testing, and social distancing would violate the vaccination mandate, and that there were no open positions available at the GHC-owned Devonshire campus. As part of his assessment, Bauer accepted the plaintiffs’ reasons for their requested accommodations.

Plaintiffs were fired after the deadline passed and they had still not been vaccinated. They sued Bauer and GHC (collectively “Defendants”) for violating the Fair Employment and Housing Act (Gov. Code, § 12940, et seq. (FEHA))[1] as follows: The first cause of action by all plaintiffs for religious discrimination by not accommodating their religious beliefs (§ 12940, subd. (j)); the second cause of action by Olzcak and Beckman for discrimination based on their medical conditions (§ 12940, subd. (a)); and the third cause of action by Olzcak and Beckman for failing to engage in good faith in an interactive accommodation assessment process. (§ 12940, subd. (n).)

The purpose of a motion for summary judgment “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.)

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; see also CCP § 437c(c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

Sustained: 4, 8 (only the sentence that begins with “I was told…”), 10, 11, 12, 13

Defendant’s Evidentiary Objections to the Supplemental Declaration of Scott J. Street:

Under FEHA an employer may not discriminate against or terminate an employee due to their religious creed or medical condition. (Gov. Code, § 12940, subd. (a).) A plaintiff claiming her employer did not accommodate a sincerely held religious belief must make a prima facie case that her employer was aware she had such a belief, that the belief conflicted with an employment requirement, and that the employer failed to offer the employee a reasonable accommodation for her belief. If so, the burden shifts to the employer to show that no reasonable accommodations were possible or that accommodating the employee’s belief would impose an undue hardship. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4^th 345, 369-370 (Soldinger); § 12940, subd. (l)(1).) The same is true for claims of discrimination based on an employee’s medical condition. (§ 12940, subd. (n).) For employees seeking an accommodation based on a medical condition or physical disability, employers must engage in a timely, good faith interactive process to determine whether a reasonable accommodation exists. (§ 12940, subd. (n).)

“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of five factors: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facilities involved in providing the accommodation, along with its effect or impact on the facility’s operations; (3) the overall financial resources of the covered facility, the size of the business with respect to the number of employees, and the number, type, and location of its facilities; (4) the type of operations, including the composition, structure, and functions of the company’s workforce; and (5) the geographic separateness or administrative or fiscal relationship of the facility or facilities. (§ 12926, subd. (u).)

Because FEHA and federal antidiscrimination statutes are so similar, our courts look to cases interpreting federal law for guidance. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5^th 918, 937.) Unpublished federal court decisions are also citable as persuasive authority. (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5^th 299, 316, fn. 8.)

There is no dispute that the District imposed the vaccination mandate, along with the sanctions it could impose on charter schools that violated the policy by allowing unvaccinated employees to work on District-owned campuses. (Pltfs. Sep. Statement Response, Nos. 13-14, 18-24; Depo. Of District Chief Human Resources Officer Francisco Serrato, pp. 40-43, 57 [confirming that the policy was mandatory and precluded any unvaccinated charter school employee from being present on District-owned campuses].)

An undue hardship is one that is, at a minimum, something hard to bear. (Groff v. DeJoy (2024) 600 U.S. 447, 468-469.) The burden must be substantial in the overall context of an employer’s business. (Id. at p. 468.) When analyzing the issues, courts must consider all relevant factors in the case and weigh any substantial increased costs in relation to the conduct of the defendant business. (Id. at p. 470.) Federal courts consider both economic and non-economic costs when making this determination. The latter includes the costs to an employer’s mission and potential safety risks. (See Lavelle-Hayden v. Legacy Health (D. Oregon 2024) ___ F.Supp.3d ___, 2024 WL 3822712, pp. 9-10 [summary judgment granted for hospital that fired employees for refusing to take the Covid-19 vaccine].)

Defendants contend that the District’s vaccination policy and its concomitant threat of sanctions – up to and including loss of GHS’s charter – posed an undue hardship and that there was no way to accommodate plaintiffs’ religious or medical issues without violating that mandate. Losing its charter or being forced to move its Zelzah campus posed a risk of great economic loss for GHC, defendants contend.

Plaintiffs do not dispute that those sanctions, if imposed, would create an undue hardship for GHC. They counter that: (1) the mere potential for loss of its charter did not create an undue hardship, especially because the relationship between the District and GHS was merely contractual; and (2) the fact that an unvaccinated employee at another District-chartered school was allowed to work on campus without incurring sanctions raises a triable issue of fact as to whether the District would have sanctioned GHC had it allowed plaintiffs to remain at the Zelzah location.

Plaintiffs cite two Ninth Circuit decisions to support their contention that the mere potential of sanctions does not establish undue hardship as a matter of law: Tooley v. Martin-Marietta Corp. (9^th Cir. 1988) 648 F.2d 1239, 1243 (Tooley) and Anderson v. General Dynamics Convair Aerospace Division (9^th Cir. 1978) 589 F.2d 397, 402 (Anderson).) Both are inapplicable.

Tooley and Anderson involved identical factual scenarios. The plaintiffs in both were employees who refused to pay union dues because doing so violated their religious beliefs. Both plaintiffs offered to pay the amount of those dues to a non-sectarian charity of their unions’ choice. In both, the courts held that the plaintiffs failed to produce evidence that the requested accommodation created an undue hardship for the unions. The Anderson Court held that the union’s alleged hardship was based on nothing more than its members’ “general sentiment” against so-called “free riders.” (Anderson, supra, 589 F.2d at p. 402.) The Tooley Court found that even after accommodating such beliefs the union was left with ample funds to support its activities. (Tooley, supra, 648 F.2d at p. 1243.) On those facts, both courts held, the claims of undue hardship were only assumptions or opinions based on hypothetical facts. (Ibid.)

When evaluating whether an employee’s requested accommodation is reasonable, an employer does not have to wait for a potential burden to materialize and may make its undue hardship determination based on the information available to it at the time. (EEOC v. Firestone Fibers & Textiles Co. (4^th Cir. 2008) 515 F.3d 307, 317; Weber v. Roadway Express, Inc. (5^th Cir. 2000) 199 F.3d 270, 275; Hailey v. Legacy Health (D. Oregon 2024) 2024 WL 4253238, p. 15; Favero v. Huntsville Independent School District (S.D. Texas 1996) 939 F.Supp. 1281, 1293 [employer’s undue hardship determination cannot be reviewed in hindsight].)

The potential for liability – civil or criminal – is sufficient to create an undue hardship. (Berry v. Dept. of Social Services (9^th Cir. 2006) 447 F.3d 642, 655 [state agency not required to allow employee to violate the constitution by discussing his religious beliefs with clients or displaying religious symbols at his work station]; Bathia v. Chevron U.S.A., Inc. (9^th Cir. 1984) 734 F.2d 1382, 1384 [employer not required to risk liability for violating state safety regulations]; Creger v. United Launch Alliance LLC (N.D. Alabama 2021) 571 F.Supp.3d 1256, 1264-1265, italics added [federal contractor operating under a contract that required Covid-19 vaccination of all employees faced undue hardship from “potential loss of government contracts,” among other factors].)

The undisputed facts of this case fall squarely within the holdings of these decisions and outside those of Tooley and Anderson. In the latter, the hardship evidence was either pure guesswork as in Tooley or showed that no hardship existed as in Anderson. Unlike those cases, it is undisputed that the District issued its vaccination mandate and required all charter schools to comply or face sanctions that could shut them down. That GHS operated under a contract with the District is irrelevant to the potential harm that could ensue should it breach that contract by failing to comply with the District’s mandate. (See Creger v. United Launch Alliance LLC, supra, 571 F.Supp.3d 1256 at pp. 1264-1265.)[2]

Carmen Velasquez was a counselor at the Vaughn charter school who was granted a religious exemption from taking the Covid-19 vaccine and allowed to remain on campus so long as she wore a mask and tested weekly. Velasquez worked in person at Vaughn’s MIT campus until May 2022, when the District learned about the accommodation and complained to Vaughn, which responded by moving Velasquez to another campus. (Depo. of Vaughn CEO Fidel Ramirez, 42: 5-16, 46:1-17.) Because there is no evidence that the District imposed any sanctions on Vaughn or even considered doing so, plaintiffs contend a triable issue of fact exists as to whether the District would have sanctioned GHC had it granted them in-person accommodations.

Plaintiffs’ contention is flawed. As Defendants point out, and as previously discussed, whether an undue hardship existed is measured by the facts known to them at the time. Vaughn granted Velazquez’s exemption in 2021 but the District did not learn of it until May 2022, at which time, according to Ramirez, the District pressured Vaughn to move Velasquez elsewhere. There is no evidence that Defendants knew what Vaughn had done before they fired Plaintiffs and there was surely no way that Defendants could have known about the District’s May 2022 response when they enforced the District’s vaccination mandate and fired plaintiffs in late 2021. Applying Plaintiffs’ reasoning here would be little different than holding Defendants liable because 18 months after the fact the District announced a change in its policy and removed sanctions from its vaccination mandate. Either scenario requires an exercise in hindsight, which the law does not require.

Alternatively, the evidence shows that Vaughn did not violate the District’s policy at all. Velasquez worked as a counselor at a Vaughn-owned site named MIT that was across the street from a District-owned site named Mainland. According to Vaughn CEO Ramirez, Velasquez worked exclusively at the MIT site and was not allowed to enter the Mainland campus. Ramirez testified that any contention that unvaccinated employees were allowed onto the Mainland campus was false. In short, Velasquez was allowed to be on campus without vaccinating (but with masking and testing) at Vaughn’s privately-owned MIT campus, which did not violate the District’s policy.

In response, Plaintiffs contend that both Vaughn and the District considered the MIT and Mainland locations to be one campus, meaning that Velasquez was allowed to work at a District-owned site. The evidence relied on does not support that contention. The first is from the deposition testimony of former Vaughn human resources official Cynthia Avina, who was asked whether Vaughn employees at campuses other than Mainland (which would have to mean Vaughn’s three privately-owned sites) were granted vaccine accommodations. Avina testified: “One that was not – that shared space with Mainland is the middle school. And there was one in particular who was going to be shifted to the high school as a counselor. But I know there was hesitation when I was there. And during that time, I was also shifted back to my regular duties and the HR director took over.” Asked if the MIT middle school shared classrooms with Mainland, Avina answered “Correct,” and confirmed that the Mainland campus included students in grades four through eight.” (Avina Depo., 25:14-24; 27:19-28:6.)

At best this testimony is ambiguous as to how the Vaughn-owned MIT location where Velasquez worked was viewed for purposes of the District’s Covid-19 vaccination policy. At most it provides insufficient clarity to raise an inference either way, especially when it fails to acknowledge that the MIT campus was physically separate from the Mainland campus and was located across the street. Moreover, it sheds no light on how the Defendants viewed the situation.

Plaintiffs contend that an email chain attached as an exhibit to the deposition of Serrato also shows that the District considered MIT and Mainland to be one campus for purposes of the District’s vaccination policy which, if true, would show that Vaughn violated the policy but incurred no sanctions for accommodating Velasquez’s request to work at MIT. The May 10, 2022, email is from District Employee Christian Mendez to Vaughn CEO Ramirez in response to complaints that Vaughn was allowing unvaccinated employees to work onsite. Mendez wrote that “Vaughn occupies three private sites and one District site as a sole occupant,” which plaintiffs contend shows that the District also considered Mainland and MIT to be one location for purposes of its vaccination policy.

Mendez’s email goes on to remind Ramirez that the District had separate vaccination policies for District-owned and privately-owned charter school sites. As to the first, no access was allowed without proof of vaccination. As to the latter, qualified unvaccinated employees could remain on site if they received a reasonable accommodation and were not permitted to access District-owned sites. (Serrato Depo, Exh. A., p. 4.) In response, Ramirez assured Mendez that unvaccinated employees had been allowed to work at only privately-owned sites.

This evidence does not raise a triable issue of fact that Vaughn was not sanctioned by the District after the District learned that Velasquez had been allowed to work on a District-owned site. If anything, it confirms the distinction between the two types of sites, demonstrates the District’s concern that Vaughn might have violated the District’s policy, and confirms that Vaughn had not violated the vaccination policy by allowing Velasquez to work at the privately-owned MIT location. (Serrato depo, etc.)

In short, plaintiffs have failed to raise a triable issue of fact concerning whether the available sanctions for violating the District’s Covid-19 vaccination policy created an undue hardship for defendants. As a result, plaintiffs’ contention that GHC should have accommodated them by allowing them to work on campus through testing, masking, social distancing, or some combination of all three options, necessarily fails.

Defendants’ motion included several statements of supposedly undisputed fact to support their contention that Plaintiffs could not have been accommodated by being allowed to work remotely. Plaintiffs did not dispute three of these (facts 91-93). Their lone evidentiary support to counter several others (facts 94-103) came from the declaration of former GHC board member Maribel Campos. However, the court sustained Defendants’ objections to the entire Campos declaration, leaving the following as undisputed facts.

Facts 91-93: GHC’s remote learning program was taught by teachers who were employed by an outside contractor. Although GHC employees served as advisors and administrators for the remote learning program, no such positions were available in Fall 2021. Those positions are classified, not certificated, and under GHC’s collective bargaining agreement certificated teachers could not be transferred to classified positions.

Facts 94-103: Those three plaintiffs could not work remotely because their essential job functions – teaching and maintaining discipline – could not be performed from a remote location while students were in a classroom. The teachers could not interact effectively with their students, motivate their students, or intervene when needed to impose discipline. Remote work would prevent them from formulating lesson plans based on one-to-one interactions with students, or from properly assessing their work. Remote work would also prevent in person, on campus meetings with students, parents, or staff. Nor could they cover for other teachers when needed. Finally, it would unfairly disadvantage their students as opposed to others whose teachers had complied with the vaccination mandate and were therefore teaching on campus.

Fact 87: Defendants’ undisputed fact no. 87 stated that plaintiffs could not have been transferred to the GHC-owned Devonshire campus because there were no available teaching or counseling positions for them there. Although plaintiffs dispute this as to Olczak and Peachey, they did not dispute it as to the three teacher plaintiffs. As Defendants point out, they were not required to create new positions to accommodate Plaintiffs. (Scotch v. Art Institute of California (2009) 173 Cal.App.4^th 986, 1011-1012.)

Based on these now undisputed facts, the court finds that remote teaching was not a possible accommodation because it would prevent the teacher plaintiffs from performing their essential job functions and that relocation to another campus was also not an available option.

Facts 104-107: She was responsible for coordinating with a particular group of students and their teachers to make sure the students’ plan recommendations were being implemented. This included counseling those students, meeting with them and making counseling assessments, monitoring their behavior, academic progress and attendance, monitoring students’ behavior, and having conferences with parents and teachers. She was required to perform lunch and nutritional supervision for at least two weeks each semester and was responsible for administering certain standardized tests on campus.

Defendants’ undisputed fact no. 108 asserted that Olczak could not effectively perform these tasks unless she was on campus in person. Olczak countered this in part with the Campos declaration, which the court found inadmissible. She also relied on her own declaration, where she stated that she too worked remotely when GHC went to remote learning during the 2020-2021 school year and that she was willing to do so again. (Olczak Dec., ¶¶3-4, 12.) That Olczak worked remotely while the school was shut down for on-campus learning and was willing to do so again does not raise a triable issue of fact concerning whether remote work was an available accommodation after on-campus learning resumed and the District’s Covid-19 vaccination mandate went into effect.

Although Olczak disputes Fact No. 87 concerning the availability of work at the Devonshire campus, the only evidence to the contrary raised by her comes from her declaration at paragraphs 12 and 17-18. Those paragraphs state only that she proposed that accommodation, but it was rejected by Bauer. She also cites to portions of Bauer’s deposition testimony at page 205 through 206, but they do not address this issue. As with the teacher plaintiffs, Defendants were not required to create a new position elsewhere to accommodate Olzcak.

Facts 109-113: As purchasing assistant, she was the only person responsible for being the first point of contact for the “steady stream” of vendors and school staff members coming into the business office each day. She was the main point of contact for all school purchase orders at both GHC campuses, which included handling hard copy requisition requests and handling on-site questions dealing with purchase orders, deliveries, and returns. Peachey was responsible for directing phone calls from the school’s general phone line and troubleshooting supply and delivery issues. Peachey also had other assigned duties, including ordering Covid-19 protection supplies and delivering them to classrooms and helping relocate GHC’s business office to the District-owned Zelzah campus.

Defendants’ undisputed fact 114 asserted that Peachey could not effectively perform these tasks unless she was on campus in person. As with Olczak, Peachey relied in part on the Campos declaration, along with her own declaration, where she stated that too worked remotely when GHC was shut down for on-campus learning and was operating remotely and was willing to do so again. (Peachey Dec., ¶¶ 3-4, 11.) As with Olczak, these assertions are irrelevant to the availability of remote work once GHC resumed on-campus instruction and the District had implemented its vaccination mandate.

Peachey also contends that she could have worked at the Devonshire campus, but this contention is overcome by the undisputed fact that her job duties required her to be at the District-owned Zelzah campus.

Plaintiffs also contend they should have been granted indefinite leaves of absence while the vaccination mandate was in place. First, GHC’s collective bargaining agreement does not provide for such leaves. (Fact Nos. 115, 116.) Plaintiffs’ opposition evidence to these facts has either been stricken or does not rebut them. Second, FEHA does not require indefinite leaves as a possible accommodation. (See Atkins v. City of Los Angeles (2017) 8 Cal.App.5^th 695, 721-722 and cases cited therein.)

As discussed above, the District’s Covid-19 vaccination mandate imposed an undue hardship on Defendants that could not be accommodated by allowing Plaintiffs to work in person at the Zelzah campus even if they masked, tested, or practiced social distancing. Nor were indefinite leaves of absence a required accommodation. The undisputed evidence showed that Plaintiffs essential job duties required them to work in person, not remotely, and positions were not available for them at GHC’s other campus. Because no reasonable accommodations were possible, summary judgment is proper as to Plaintiffs’ first and second causes of action for workplace religious and medical condition discrimination. ((Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4^th 345, 369-370 (Soldinger); § 12940, subd. (l)(1).) Because plaintiffs Olczak and Peachey are unable to identify any reasonable accommodations that would have been available had the parties engaged in the interactive accommodation process, summary judgment is also proper as to the third cause of action for failing to do so. (§ `1940, subd. (n); Miller v. California Dept. of Corrections & Rehabilitation (2024) 105 Cal.App.5^th 261, 282-283.)

For the reasons set forth above the court grants summary judgment for Defendants on all causes of action. The trial date and all other scheduled hearing dates in this matter are vacated.

[1] Unless otherwise indicated, all future section references are to the Government Code.

[2] Plaintiffs cite Knapp v. Palisades Charter High School (2007) 146 Cal.App.4^th 708, 714 for the proposition that a charter school’s relationship to the chartering district is contractual. At issue in Knapp was whether charter schools were exempt from the claim presentation requirements of the government tort claims acts. Although the relationship is to some extent contractual, it is also in large measure statutory. (Wells v. One2One Learning Foundation (2006) 39 Cal.4^th 1164, 1186 [for some purposes charter schools are deemed to be part of the public school system that falls under the jurisdiction and exclusive control of public school officers; charter schools must therefore comply with the terms of their charter and other specified laws]; Wilson v. State Board of Education (1999) 75 Cal.App.4^th 1125, 1139-1140 [school districts have continuing oversight and monitoring powers over charter schools and can revoke a charter for material violations of the charter or any law].)