Judge: Gregory Keosian, Case: 19STCV12005, Date: 2022-12-15 Tentative Ruling

Case Number: 19STCV12005    Hearing Date: December 15, 2022    Dept: 61

Defendants City of Beverly Hills and Nancy Hunt-Coffey’s Motion for Summary Judgment or Adjudication is DENIED

I.       OBJECTIONS

Plaintiff Cynthia Brynan (Plaintiff) objects to certain evidence submitted by Defendants City of Beverly Hills and Nancy Hunt-Coffey’s in support of their motion for summary judgment or adjudication. Plaintiff’s objections concern testimony by Hunt-Coffey and Kristin Buhagiar (Buhagiar) concerning the solvency of the Concours d’Elegance program overseen by Plaintiff in her time with the City, and Plaintiff’s objections sound in foundation and hearsay as to the sources of their opinions. These objections are OVERRULED, as Hunt-Coffey and Buhagiar’s testimony concerning the reasons behind their official actions is admissible to explain why they acted, even if the truth of matters relied upon is not admissible.

Plaintiff’s objections are SUSTAINED, however, to motion exhibits 33 and 34, which consist of an audit report prepared by a third-party and a newspaper report relating to same, both of which postdate any of the actions at issue in this case.

Defendants in turn object to a several pieces of evidence offered in Plaintiff’s opposition. As to Plaintiff’s own declaration, Defendants’ Objections No. 6 and 13 are SUSTAINED, as Plaintiff’s testimony in the former contains an error as to the time between her surgery and a scheduled interview, and the latter concerns hearsay testimony from Buhagiar concerning her qualifications.

Defendants object at numerous points to testimony that they claim contradicts prior deposition testimony or discovery responses. (See Objections No. 9, 10, 14, 18; See See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) These objections are OVERRULED, as Defendants cite no instance in which Plaintiff’s declaration actually contradicts her deposition testimony, and instead cite only instances in which she supplies additional details not previously disclosed in discovery. While incomplete discovery responses might satisfy a party’s burden in moving for summary judgment, they do not necessarily foreclose the other party from opposing the motion with additional evidence. (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1329.) Defendants’ other objections to Plaintiff’s declaration are OVERRULED.

Defendants also object to the testimony of Jeffrey Brynan, Plaintiff’s husband. Objection No. 31 is SUSTAINED on relevance and foundation grounds, as Jeffrey states that he “recanted” a prior statement made to the City that he would not participate in a certain project, without offering any indication that this recanting was communicated to the City within the relevant time.

Defendants also object to Jeffrey’s testimony concerning out-of-court conversations had with Kathi Rothner, one of the panelists who interviewed Plaintiff for the promotion at issue in this case. (See Objections No. 26–30.) Jeffrey states that during these conversations, Rothner disclosed to him that City officials, in briefing the panelists for the interviews, indicated that they wanted “young blood” for the position, and that Plaintiff was not genuinely being considered. Defendants object to these statements on the grounds of hearsay.

These objections are OVERRULED, as Rothner’s prior statements to Jeffrey Bryner are admissible under Evidence Code § 1235, which allows for admission of a witness’s prior inconsistent statements, even if made out of court:

Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.

(Evid. Code § 1235.) Rothner has testified at deposition in this action, and has denied making these statements, or hearing any age-related comments by the City. (Motion Exh. 38 at pp. 59–61.) The out-of-court statements of Rothner, attested to by Jeffrey, are inconsistent with this testimony. And the statements purportedly made by City employees to Rothner are non-hearsay, as they consist of instructions, rather than assertions of fact being considered for their truth. (Evid. Code § 1200.) The parties offer no reason to believe that Rothner will be unable to testify at trial concerning these statements under Evidence Code § 770. Thus the statements relayed by Jeffrey may be considered in determining whether issues of fact suitable for trial exist. (See Mao’s Kitchen, Inc. v. Mundy (2012) 209 Cal.App.4^th 132, 154 fn. 8 [holding prior interrogatory responses admissible under Evid. Code § 1235 for summary judgment motion]; Caliber Paving Company, Inc. v. Rexford Industrial Realty and Management, Inc. (2020) 54 Cal.App.5th 175, 189 [holding witness prior inconsistent hearsay statement admissible under Evid. Code § 1235 at summary judgment].)[1]

Defendants’ remaining objections to the declaration of Greta Dunlap and the deposition excerpts of Hunt-Coffey, Cienna Leung, Armando Abrego, Jesse Bobbett, and Marisa Garcia are OVERRULED.

II.   SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (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 that cause of action or a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  (Ibid.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendants City of Beverly Hills and Nancy Hunt-Coffey (Defendants) move for summary judgment on Plaintiff Cynthia Brynan’s claims for retaliation, age and disability discrimination, harassment, failure to accommodate, failure to engage in an interactive process, and and the failure to prevent the foregoing under the Fair Employment and Housing Act (FEHA).

A.    FEHA DISCRIMINATION

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.) If the employer offers evidence of a legitimate, nondiscriminatory reason for the action, “the plaintiff bears the burden of proving the employer's proffered reason was pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4^th 228, 236.)

1.      Defendants’ Evidence

Defendants argue that Plaintiff was passed up for promotion for legitimate, neutral reasons, and that her program was subsequently cut for financial irregularities. Plaintiff’s position during the relevant time was Senior Recreation Supervisor at the City of Beverly Hills. (Hunt-Coffey Decl. ¶ 7.) Defendant Nancy Hunt-Coffey was, during the relevant period, the City’s Director of Community Services, overseeing the entire Community Services Department. (Hunt-Coffey Decl. ¶¶ 2–3.)

In December 2016, Plaintiff’s supervisor, Brad Meyerowitz, retired, and his position — Recreation Services Manager — was left vacant. (Hunt-Coffey Decl. ¶ 10.) During this time, Plaintiff assumed some of Meyerowitz’s event-planning duties. (Hunt-Coffey Decl. ¶ 11.) Recruitment for the position opened up in May 2017, and Plaintiff applied on May 29, 2017. (Hunt-Coffey Decl. ¶ 12; Leung Decl. ¶ 9.) Plaintiff was informed that interviews would take place before an outside panel on June 22, 2017, in an email dated June 13. (Leung Decl. ¶ 11.) Cienna Leung, an HR Supervisor with the City, states that on June 19, 2022, Plaintiff informed her that she was scheduled to be off-work on the date of the interview because of a recent surgery, and that she could not attend in person. (Leung Decl. ¶ 12.) She asked to change the date of the interview, and Leung told her that it could not be changed. (Leung Decl. ¶ 12.) Leung offered to hold the interview remotely, via Skype, and Plaintiff accepted. (Leung Decl. ¶ 12.)

The interviews went forward on June 22, 2017, before five outside panelists, with eight candidates. (Leung Decl. ¶ 13; Hunt-Coffey Decl. ¶ 13.) Plaintiff was not ranked in the top half by any of the interviewers, and was therefore not invited back for a second-round interview. (Hunt-Coffey Decl. ¶ 13.)  The position went to Kristin Buhagiar, who was then 34 years old. (Buhagiar Decl. ¶ 8; Hunt-Coffey Decl. ¶ 14.) Plaintiff was born in 1952. (Brynan Decl. ¶ 2.)

Thus Defendants argue that Plaintiff was passed over the promotion because she was ranked low in the interview process by impartial, outside panelists. The disability that she presented —knee surgery — was, they argue, reasonably accommodated by allowing her to appear remotely.

Events post-dating Behagiar’s hire are also at issue in this case. In November 2017, Plaintiff requested a meeting with Hunt-Coffey. (Hunt-Coffey Decl. ¶ 16.) Hunt-Coffey states that Plaintiff told her during this meeting that her knee-surgery prevented her from doing well in the interview, but did not tell her that she thought age played a role in the hiring process. (Hunt-Coffey Decl. ¶ 17.) Plaintiff also told Hunt-Coffey that she believed she was entitled to “Filling Position Out of Class” (FPOC) pay for performing the duties of a Recreation Services Manager after the former manager retired, up to the point of her medical leave in June 2017. (Hunt-Coffey Decl. ¶ 17.) Finally, Plaintiff asked Hunt-Coffey to approve her special-assignment pay for an upcoming Concours d’Elegance (Concours) event, which Plaintiff had long managed, and for which she had previously had similar pay approved in the preceding years. (Hunt-Coffey Decl. ¶ 18.) In December 2017, Hunt-Coffey informed Plaintiff that she would not authorize FPOC pay because Plaintiff had not fulfilled many of the functions ordinarily undertaken by a Recreation Services Manager. (Hunt-Coffey Decl. ¶¶ 21–22, 25.) She also informed Plaintiff that special-assignment pay for the Concours would not be approved, as more employees were available to assist in the management of the event, and Hunt-Coffey wanted such events to be handled by a special events team, rather than one person. (Hunt-Coffey Decl. ¶¶ 23–25.)

After being informed of this decision, Plaintiff emailed Defendant indicating that she would no longer volunteer to work on the Concours project, but that she would work on it if directed to do so, and would concurrently initiate a formal grievance process for the lack of special assignment pay. (Hunt-Coffey Decl. Exh. 27.) Another meeting was held in February 2018, between Plaintiff, Hunt-Coffey, and Plaintiff’s union representative, but no different result was reached. (Hunt-Coffey Decl. ¶ 27.)

At some point after Behagiar’s hiring, Hunt-Coffey asked Behagiar to review the budgets for a variety of department programs, and also for the finances of the Concours specifically. (Behagiar ¶ 14; Hunt-Coffey Decl. ¶¶ 30–31.) Hunt-Coffey canceled the Concours in February 2018, based in part on concerns related to the costs and finances of the program, Plaintiff’s statement that she would not work on the project unless directed,  and her husband’s email correspondence of February 5, 2018, in which he indicated that he was dissatisfied with the City’s treatment of Plaintiff and would no longer assist on the project. (Hunt-Coffey Decl. ¶ 32, Exh. 30.)

Based on the above, Defendants argue that the denial of Plaintiff’s special assignment pay and the cancellation of the 2018 Concours were not retaliatory or discriminatory acts directed toward Plaintiff’s protected characteristics or activity, but were the products of neutral consideration of the City’s public needs. (Motion at pp. 22–24.)

2.      Plaintiff’s Evidence

In opposition to the above account, Plaintiff presents the following evidence. Following the retirement of her supervisor Meyerowitz, Plaintiff in February or March 2017 informed Hunt-Coffey that she would be applying to the newly vacant position. (Brynan Decl. ¶ 9.) Hunt-Coffey’s reaction was “visibly angry”; she discouraged Plaintiff from applying, stating that the position would not be the same as when Meyerowitz ran it. (Ibid.)

In December 2016, Plaintiff learned she would be having knee surgery on June 16, 2017, and shortly after informed Hunt-Coffey of the date. (Brynan Decl. ¶ 10.) Plaintiff also informed Pamela Shinault, the department’s assistant director, of the same, shortly after Shinault’s appointment to the position in April 2017, informing her that she would be on leave for her June 16 surgery. (Ibid.)

Plaintiff learned that the City was recruiting for the manager position on May 9, 2017, and accordingly submitted her application on May 29, 2017. (Brynan Decl. ¶ 11.)  Plaintiff learned on June 15, 2017, the day before her surgery was to take place, that her interview would be on June 22, 2017. (Brynan Decl. ¶ 12.)

Plaintiff left her surgery “violently ill,” with headaches, dizziness, and difficulty focusing or concentrating, because of an allergic reaction to medication she was given. (Brynen Decl. ¶ 13.) She informed Hunt-Coffey of the problem on Monday, June 19, 2017, and was directed to HR. (Brynan Decl. ¶ 13.) When Plaintiff contacted Cienna Leung, she told Leung of her reaction to the medication — not a mobility issue — and asked if her interview could be postponed. (Brynen Decl. ¶ 14.) Leung told her that she could not change the date and that “my only options were to have the interview remotely by Skype or drop out.” (Brynan Decl. ¶ 14.) Plaintiff agreed to the remote interview, at which she had difficulty focusing and responding to questions, owing to the consequences of the surgery, which persisted for two weeks. (Brynan Decl. ¶¶ 14–15.) One panelist who witnessed Plaintiff’s interview has testified that Plaintiff’s speech was “very slow” during the interview, and that she was “difficult to understand.” (Opposition Exh. G at p. 75.)

In February 2018, Plaintiff’s husband Jeffrey Brynan (Jeffrey) spoke to this panelist, Kathleen Rothner. (Jeffrey Brynan (Jeffrey) Decl. ¶ 5.) Jeffrey states as follows:

In response to my comments [about the cancellation of a program managed by Plaintiff] and completely unsolicited by me, Ms. Rothner said: "I really shouldn't share this with you because I am under a confidentiality agreement with the City, but in conducting the interviews involving Cindy for the manager job at Greystone, we were instructed to select 'young blood' and that Cindy had no chance for the job."

(Jeffrey Decl. ¶ 6.) Jeffrey states that he spoke to Rothner again in December 2018, and when he told her that Plaintiff had been transferred to a different post, she responded, “I guess the young blood has taken over.” (Jeffrey Decl. ¶ 7.) Rothner denies making these statements to Jeffrey or being directed to consider age during the interviews, but acknowledges that City employees briefed the panelists beforehand. (Motion Exh. 38 at pp. 54, 59, 61.) Cienna Leung and Pam Shenault, the assistant director of community services, participated in this briefing. (Leung Decl. ¶ 14; Jesse Bobbett Decl. ¶ 7.)

In November 2017, after returning from medical leave, Plaintiff met with Hunt-Coffey to state her concerns about the promotion process and the person who had ultimately been hired, whom Plaintiff claimed required much training. (Brynan Decl. ¶ 17.) Plaintiff also raised the issue of FPOC pay from the prior year, and upcoming special assignment pay for the Concours. (Ibid.) Hunt-Coffey appeared upset, but said she would get back to Plaintiff on these issues. (Ibid.)

Plaintiff discovered that she would not be receiving special assignment pay when it did not appear in her December pay. (Brynan Decl. ¶ 19.) At a meeting on December 19, 2017, with Hunt-Coffey and Shinault, Plaintiff was informed that the Concours would henceforth be managed by a team, rather than Plaintiff specifically. (Ibid.) In a later email, Plaintiff stated that she would no longer volunteer to work on the Concours as a special assignment, but would work on it if directed to do so. (Brynan Decl. ¶ 20, Exh. 26.) However, Plaintiff maintains that she continued working on the Concours as normal, until Hunt-Coffey told her that the event was cancelled on February 7, 2018. (Brynan Decl. ¶ 21.)

Plaintiff also claims that she was treated differently after complaining to Hunt-Coffey in November 2017. She states as follows:

I was treated differently and in a harsher, demeaning and abusive fashion by Ms. Hunt-Coffey, Ms. Shinault and Ms. Buhagiar after my November meeting with Ms. Hunt-Coffey. Among other things, I had special assignment pay denied for the 2018 Concours though my work was the same as in the previous eight years; I was excluded from lunch meetings with Ms. Hunt-Coffey and denied places on sub-committees while younger employees were not so excluded; I had assignments systematically taken away from me and given no new assignments; I was forced

to do mundane tasks not commensurate with my experience; I was subjected to excessive scrutiny, including being required to ask permission to go on breaks or go to lunch and constantly harassed and questioned by Ms. Buhagiar as to the tirne I was taking for the same; I was spoken to in a condescending and demeaning manner by Ms. Buhagiar; I was singled out and given a Staff Development Plan by Ms. Shinault, a document that she gave no one else and one that was designed to demean my ability and knowledge of the job; I had overtime cancelled by Ms. Hunt-Coffey; and I was required by Ms. Buhagiar to change evaluations I had prepared for my part-time employees to what she wanted, not what I believed was appropriate, and then forced me to sign them.

(Brynan Decl. ¶ 22.) Behagiar acknowledges preparing a staff development plan for Plaintiff in April 2018, based on her belief that Plaintiff “had challenges adapting to change and fostering a collaborative environment with her staff.” (Behagiar Decl. ¶ 12, Exh. 39.)

Plaintiff was transferred to another park in mid-2018, pursuant to a request she entered on February 5, 2018. (Brynan Decl. ¶ 23.)

3.      Analysis

Plaintiff has presented evidence showing the existence of triable issues of fact as to her FEHA discrimination claims. Plaintiff, born in 1954, was passed over for promotion in favor of a candidate several years her junior. Plaintiff presents evidence that when she informed Hunt-Coffey — the person ultimately charged with selecting who would fill the position — of her plan to apply for promotion, Hunt-Coffey became upset with her, and tried to discourage her from applying. Plaintiff has presented evidence that the panelists were instructed to select “young blood” and that Plaintiff was not genuinely under consideration. Such statements are admissible under Evidence Code § 1235, as explained above, and are corroborated by that same panelist’s notes, taken during the interview, which noted that the winning candidate was “young.” (Opposition Exh. H.) This evidence of discriminatory motive creates a triable issue of fact against Defendants’ evidence, which is that Plaintiff was passed over because she performed poorly during her interview.

Triable issues also remain as to Plaintiff’s disability discrimination claim, specifically as to whether she was denied promotion because of her disability, i.e. her recovery from surgery. This is based on Plaintiff’s testimony that she performed poorly on the interviews based on her continuing reaction to surgery medication, which left her dizzy and unfocused. Plaintiff claims that she informed both Hunt-Coffey and Cienna Leung of her condition prior to the interview, and they were thus aware of same. Rothner, a panelist on the interview team, corroborates Plaintiff’s testimony, stating that Plaintiff’s speech during the interview was slow and hard to understand. Other panelist comments noted that Plaintiff’s interview performance was “unfocused,” “long-winded,” and “rambl[ing].” (Motion Exh. 20.) Plaintiff has thus presented evidence that a key factor in the denial of her promotion was observation of her difficulty focusing or concentrating brought upon by an allergic reaction to a medication associated with her recent surgery — i.e., her disability. (See Wills v. Superior Court (2011) 195 Cal.App.4th 143, 165 [discussing when  conduct resulting from a disability is treated the same as the disability itself].) Although the parties dispute whether Plaintiff’s discrimination claim rests upon merely a denial of Plaintiff’s request for a postponement accommodation, Plaintiff’s claim does not rest solely upon the denial of an accommodation, but upon evidence that, in the absence of such an accommodation, she was denied promotion based on the visible manifestations of her temporary disability. (Opposition at p. 16; Reply at pp. 10–11.) This evidence suggests discriminatory motive.

The motion is therefore DENIED as to the second and third causes of action for FEHA discrimination.

B.     FEHA HARASSMENT

The elements of a claim for FEHA harassment are (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome harassment; (3) the harassment complained of was based on plaintiff’s membership in the protected group; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.” (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1122.)

“Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's7 work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609–10, citations omitted.)

Defendants argue that Plaintiff cannot prevail on her FEHA harassment claim because she does not allege any acts beyond personnel management actions to support her claim, and because there is no evidence that the harassing conduct complained of was rooted in animus based on age or disability. (Motion at pp. 24–25.)

This court addressed the first argument in overruling Defendants’ demurrer to the same cause of action. Although discrimination and harassment are mostly distinct legal theories, discriminatory actions can contribute to a hostile work environment. (See Roby v. McKesson Corp. (2009) 47 Cal.4^th 686, 710 [“[T]he FEHA treats discrimination and harassment as distinct categories, but nothing in the FEHA requires that the evidence in a case be dedicated to one or the other claim but never to both.”].)

Here, Plaintiff testifies to a mixture of personnel-management actions and interpersonal harassment, both of which contributed to a hostile work environment. The conduct complained of consists of the denial of Plaintiff’s special assignment pay, denial of sub-committee placements, cancellation of the Concours, cancelled overtime, changed employee evaluations, and the imposition of a staff development plan on Plaintiff, despite the absence of any performance issues. The conduct constituting interpersonal harassment consists of Plaintiff being spoken to in a condescending and demeaning way by Hunt-Coffey, Shinault, and Buhagiar, as well as micro-management by Buhagiar, including being required to ask permission to go on breaks, and being excluded from management meetings. (Brynan Decl. ¶ 22.) These circumstances prompted Plaintiff to seek and be granted a transfer to another park. (Brynan Decl. ¶ 

Triable issues exist as to whether the above conduct may constitute severe or pervasive harassment. Such a determination is a factual question, depending on “the totality of the circumstances.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870.) Here, a trier of fact could conclude that the above facts constitute severe and pervasive harassment sufficient to alter Plaintiff’s conditions of employment, much as the plaintiff in Roby v. McKesson Corp. showed harassment by “the shunning of [plaintiff] during weekly staff meetings,” the “belittling of [plaintiff’s] job,” and public reprimands directed against the plaintiff, in addition to demeaning comments, or comments made with a demeaning tone,  made by the plaintiff’s supervisor. (Roby, supra, 47 Cal.4^th at p. 709–710.)

Plaintiff also presents evidence that her age was a substantial motivating reason for this harassment. This evidence consists of the evidence of discriminatory motive at play in Plaintiff’s discrimination claim, as well as the declaration of Greta Dunlap, a former Farmers Market Manager for the City (age 67 in 2018), also overseen by Buhagiar, during which time she shared an office with Plaintiff. (Dunlap Decl. ¶¶ 2, 10.) Dunlap testifies to experiences similar to those attested to by Plaintiff, such as being forbidden from contacting personnel in other city departments — a task which she claims was assigned to younger workers — and constant unwarranted scrutiny from Buhagiar. (Dunlap Decl. ¶¶ 5–6.) When Dunlap retired, she was replaced by her assistant (then in her 30s), without a posting for the job to recruit different candidates. (Dunlap Decl. ¶ 9.) This evidence raises a triable issue of fact concerning animus underlying a hostile work environment.

Accordingly, the motion is DENIED as to the fourth cause of action for FEHA harassment.

C.    FEHA RETALIATION

“In order to establish a prima facie case of retaliation under this section, a plaintiff must show (1) he or she engaged in a ‘protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244, internal quotation marks omitted.)

Defendants argue that Plaintiff cannot establish a claim for FEHA retaliation because she did not engage in protected activity, and because the actions taken with respect to the Concours project were supported by legitimate concerns for the project’s cost and budget. (Motion at pp. 26–27.)

Both of these arguments are contested by admissible evidence, and triable issues of fact remain. Plaintiff states that in November 2017, she complained to Hunt-Coffey about the denial of her promotion and the failure to obtain accommodation for same. (Brynen Decl. ¶ 17.) This complaint regarding the denial of a promotion earlier in the year was protected activity under Government Code § 12940, subd. (h).

Based on the evidence presented here, a trier of fact  need not heed Defendants’ explanations for the actions that later followed — namely the denial of Plaintiff’s request for special assignment pay, the cancellation of the Concours, and subsequent “micromanagement” by Buhagiar. Before Plaintiff’s complaint, she had been given special assignment pay for the Concours every year since 2012. (Brynan Decl. ¶ 12.) Hunt-Coffey states that the reason for denying the pay in 2017 was because of a wish to coordinate management of the event with a team, rather than through one person. (Hunt-Coffey Decl. ¶ 24.) But Plaintiff testifies that, prior to the event’s cancellation, preparation for the 2018 Concours proceeded as it had in the previous years. (Brynan Decl. ¶ 21.) Hunt-Coffey also acknowledges that, despite the team-building rationale offered in her declaration, Plaintiff’s role in the Concours was so central that the event could not effectively proceed without her involvement. (Hunt-Coffey Decl. ¶ 32.) Although Defendants refer to various irregularities in the event’s finances as justifying its cancellation, Hunt-Coffey testified at deposition that the event likely would not have been cancelled had either Plaintiff or her husband not indicated their reluctance to participate in the absence of special assignment pay. (Opposition Exh. C at p. 127.) Thus triable issues exist as to whether Plaintiff’s special assignment pay, or the assignment itself, was justified by a legitimate reason.

Accordingly, the motion is DENIED as to the first cause of action for FEHA retaliation.

D.    FAILURE TO ACCOMMODATE / INTERACTIVE PROCESS

“The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969, internal quotation marks omitted.)

“Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379.) “To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred. (Ibid.)

Defendants argue that Plaintiff’s claims for failure to accommodate and to engage in the interactive process fail because Plaintiff merely requested that her interview not be done in person, which Defendants readily accommodated by allowing her to participate via Skype. (Motion at pp. 27–28.)

Plaintiff disputes this, testifying that she had requested her interview be rescheduled to accommodate her illness, and that the Skype accommodation was reached only after a flat refusal to delay her interview. (Brynen Decl. ¶ 14.) Contra Defendants’ arguments in reply, this framing of the issue is in accord with Plaintiff’s deposition testimony, in which she stated that she asked the date of her interview to be changed because she was “really sick,” and was told it could not be done. (Motion Exh. 1 at p. 213; Reply at p. 14.) When told that Skype was an alternative, she states that she asked for another alternative, because she was “not in any condition to set up Skype,” at which point Leung told her that one of her children could help her set it up. (Motion Exh. 1 at pp. 213–214, 221.) Triable issues of fact exist as to whether Plaintiff informed Defendants that she was too sick to be interviewed on the date in question.

The motion is DENIED as to the sixth and seventh causes of action. Defendants’ motion is also DENIED as to the fifth casue of action for failure to prevent FEHA violations, which rests on arguments derivative of those discussed above.