Judge: Gregory Keosian, Case: 21STCV20963, Date: 2023-10-16 Tentative Ruling

Case Number: 21STCV20963    Hearing Date: April 9, 2024    Dept: 61

Defendant County of Los Angeles’ Motion for Summary Judgment is GRANTED.

Defendant to give notice.

I.                   OBJECTIONS

Plaintiff George Castro (Plaintiff) objects to materials submitted by Defendant County of Los Angeles (Defendant) in support of its motion for summary judgment, particularly to the declarations of Toyea Sims, Shelah Panjwani, and Jennifer Kaufman, along with supporting exhibits.

Plaintiff’s objections to the declarations of Sims and Panjwani are OVERRULED. Both Sims and Panjwani present adequate foundation in personal knowledge, based on their positions and ordinary job duties, for their familiarity with the policies and practices of the Probation Department’s Disability Management and Compliance Unit (or Return-to-Work Unit). Plaintiff does offer meritorious objections to portions of these declarations, to the extent they purport to rely on records related to Plaintiff’s own medical restrictions and interactive process meetings (IPMs), which are properly regarded as hearsay unless authenticated under Evidence Code § 1271. However, except for the record of an IPM conducted on January 25, 2022, which Plaintiff did not recall, Plaintiff himself authenticated these writings during his deposition (Motion Exh. 45.) And even this writing is authenticated by Panjwani, who personally attended the meeting memorialized in the IPM report. (Panjwani Decl. ¶ 14.) These objections are therefore OVERRULED.

Plaintiff’s objections to the declaration of Jennifer Kaufman are likewise largely OVERRULED, as Kaufman too presents sufficient basis in personal knowledge, given her position as Bureau Chief of the Residential Treatment Services Bureau for the relevant period, for the duties and assignments of the Deputy Probation Officer (DPO) position. Only Objection No. 13, which concerns Kaufman’s secondhand account of Plaintiff’s return to work and his emotional state at that time, is properly SUSTAINED, as being made without foundation and on the basis of hearsay.

Defendant objects to materials submitted by Plaintiff in opposition to the motion. Objections No. 1 and 2 to the declaration of Lucas Rowe, which introduces the deposition testimony of Reginal McGowan from another case, are OVERRULED, as such evidence is relevant.

Defendant’s Objections No. 4, 5, and 7–9 are SUSTAINED, as these objections concern Plaintiff’s testimony to the availability of other light-duty positions elsewhere in the Probation Department, which is offered without factual foundation as to his personal knowledge of their existence. Objection No. 20 is SUSTAINED in part, as Plaintiff’s knowledge of the existence of other positions is based on hearsay, but OVERRULED to the extent Plaintiff reports Panjwani’s reaction to his assertion of an open position. Objection No. 21 is also SUSTAINED, as Plaintiff presents no basis in personal knowledge for his belief that other light-duty employees were not rotated out of their positions.

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.)

Defendant County of Los Angeles (Defendant) moves for summary judgment on Plaintiff George Castro’s (Plaintiff) Third Amended Complaint (TAC). Defendant argues that Plaintiff’s first cause of action for disability discrimination fails, because Plaintiff could not perform the essential functions of his position. (Motion at pp. 9–10.) Defendant also argues that the adverse actions complained of — those periods of time in which Plaintiff was put on leave, rather than assignment to a light-duty position — were justified because there were no vacant light duty positions, and Plaintiff had to be rotated out to make way for other employees requiring light-duty assignments, per Probation Department policy. (Motion at pp. 11–13.) Defendant argues that Plaintiff’s second and third causes of action for failure to accommodate and failure to engage in the interactive process also fail, because the evidence shows that Plaintiff was accommodated with temporary assignments at all times in which they were available, and had no obligation under FEHA to convert a temporary light-duty assignment into a permanent one. (Motion at pp. 13–18.)

The plaintiff in a disability discrimination case must show “that she “(1) suffered from a disability or was regarded as suffering from a disability, (2) could perform the essential duties of a job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Price v. Victor Valley Union High School District (2022) 85 Cal.App.5th 231, 239.)

“’Essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires. ‘Essential functions’ does not include the marginal functions of the position.” (Gov. Code § 12926, subd. (f).) A job function may be essential because “the reason the position exists is to perform that function.” (Gov. Code § 12926, subd. (f)(1)(A).) Evidentiary factors that weigh on the necessity of a job function include:

(A) The employer's judgment as to which functions are essential.

(B) Written job descriptions prepared before advertising or interviewing applicants for the job.

(C) The amount of time spent on the job performing the function.

(D) The consequences of not requiring the incumbent to perform the function.

(E) The terms of a collective bargaining agreement.

(F) The work experiences of past incumbents in the job.

(G) The current work experience of incumbents in similar jobs.

(Gov. Code § 12926, subd. (f)(2)(A)–(G).)

At issue in the present motion is whether restraining minors was an essential job function of Plaintiff’s position. It is undisputed that, from August 19, 2020, to April 11, 2022, Plaintiff’s work restrictions from his medical providers prevented him from, among other things, physically restraining minors. (PUMF No. 23.) Plaintiff alleges that he should have been offered a permanent light duty position that accommodated his restriction. (Opposition at p. 10; TAC ¶¶ 34–35, 43, 50, 54.)

Plaintiff began working at the County in 1991 as a Group Supervisor Nights (GSN) in the Probation Department, before he was promoted to the Deputy Probation Officer (DPO) I position in 2010, the position he held at all times material to this suit. (Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 5–6.)

DPOs are sworn peace officers who work with the County Probation Department’s Residential Treatment Services Bureau to supervise minors living in post-dispositional detention operations, having been court-ordered to “camp” community placement. (PUMF Nos. 7–9.)

The “examples of duties” stated on the DPO job bulletin are as follows:

Under the close supervision of a Supervising Deputy Probation Officer or Deputy Probation Officer II, provides for the care, safety and control of minors in a camp or a juvenile hall; maintains group and individual behavioral standards; performs case management and life-skills assessment activities; conducts the living group process, including the proper supervision of wards eating, showering, using restroom facilities, visiting, and performing school and recreation activities.

Develops and implements supervision programs for camp wards with the assistance of a Deputy Probation Officer II.

Confers with eh Supervising Deputy Probation Officer or Deputy Probation Officer II and evaluates and maintains records on the progress of assigned cases.

Conducts recreational activities.

Provides individual and group crisis intervention.

Ensures that minor’s health needs are met and hygiene and personal appearances are adequate.

In concert with the Supervising Deputy Probation Officer and Deputy Probation Officer II, provides casework services to camp wards and/or minors in a juvenile hall; prepare petitions and court reports; maintains case records and logbooks.

(Kaufman Decl. Exh. 4.)  This bulletin indicates that the “Physical Class” of the position is “4 – Arduous.” (Ibid.)

The DPO job description accords with the description of duties in the bulletin, while including additional information related to the physical demands of the job. (Kaufman Decl. Exh. 5.) “Hand cuffs and pepper spray” are listed among the tools and equipment to be used on the job, alongside computers, printers, and general office equipment. (Ibid.) The description includes another page explaining the “Physical Demands” of the job in some detail, generally rated to whether and with what frequency various body movements of variant force must be performed. (Ibid.) Under the section for “Carrying” is an asterisk: “On rare occasions it may be necessary to restrain or assist in restraining unruly juveniles.” (Ibid.)

Jennifer Kaufman, who was the Probation Department’s Bureau Chief of the Residential Treatment Services Bureau during the relevant period, states that the Department “required that sworn personnel who worked alongside minors, including those who monitored their movements inside juvenile institutions, were physically able to respond to emergency situations, including physical interventions with minors, if necessary, to contain the situation, reduce exposure to harm, and ultimately ensure a safe and controlled environment.” (Kaufman Decl. ¶ 6.) Because DPOs “are responsible for supervising minors, they must be physically able to respond to emergency situations, including physical intervention with minors.” (Kaufman Decl. ¶ 8.)

Kaufman refers to 15 CCR § 1321, which prescribes regulations related to the staffing of juvenile facilities. Among other requirements, each type of facility is prescribed minimum staff levels, including “at least two wide-awake youth supervision staff members on duty at all times, regardless of the number of youth in residence, unless arrangements have been made for backup support services which allow for immediate response to emergencies.” (15 CCR § 1321, subd. (h)(1)(C), (2)(C), (3)(C).) Kaufman also refers to Government Code § 1031, which requires that peace officers (such as DPOs) “be free from any physical, emotional, or mental condition, . . .  that might adversely affect the exercise of the powers of a peace officer.” (Gov. Code § 1031, subd. (f).)

Plaintiff in opposition contends that restraining juveniles is not an essential job function of the DPO position. (Opposition at pp. 5–7.) Plaintiff notes that FEHA defines essential job functions to not include “marginal” functions, and further that the “[t]he amount of time spent on the job performing the function” counts among the factors assessed in the “essential” inquiry. (Opposition at pp. 5–6, citing Gov. Code § 12926, subd. (f); (f)(2)(C).) Plaintiff argues that the job descriptions do not expressly mention “restraining” minors as a job requirement, and further state only that such restraint may be required on “rare” occasions, indicating the marginal nature of the function. (Opposition at pp. 5–6.) Plaintiff presents his own declaration, in which he states that he could perform all essential functions of the DPO position, despite his medical restrictions. (Castro Decl. ¶¶ 17–23.) Plaintiff states that he did not have to frequently restrain minors.(Castro Decl. ¶ 22.)

Plaintiff also presents the deposition testimony of Reginal McGowan, taken in the case Solano v. County of Los Angeles, LASC Case No. 20STCV24180, on October 29, 2021. (Rowe Decl. Exh. 2.) In this deposition, McGowan described a “movement coordinator” position, an assignment occupied by GSNs, which is the position Plaintiff occupied before becoming a DPO in 2010. (Ibid.) McGowan stated that GSNs acting as movement coordinators would “very rarely” have to physically restrain a minor “because the minors are with other officers at the time.” (Rowe Decl. Exh. 2 at p. 24.)

Defendant has met its burden to show the absence of triable issues as to whether Plaintiff was able to perform the essential functions of his position. Restraining juveniles was an essential function of the DPO position, as attested to by Kaufman and the job descriptions applicable to the position. Although Plaintiff contends that the job descriptions do not mention restraining minors, this is not accurate, as the DPO job description’s list of physical demands expressly mentions the “rare” necessity of restraint. (Kaufman Decl. Exh. 5.) Moreover, the job descriptions themselves list as their first functions the “care, safety, and control” of minors in camp settings maintaining “group and individual behavioral standards,” and the provision of “individual and group crisis intervention.” (Kaufman Decl. Exhs. 4, 5.) Defendant’s position concerning the necessity of a DPO’s ability to engage physically is in accord with these descriptions.

Indeed, it is in accord with Plaintiff’s testimony. In an earlier action, Plaintiff testified to the ordinary job duties of a DPO: “We wake [the juveniles] up.” We groom them. We feed them. We take them to school. We supervise them while they’re in school. We supervise them on the way back. We make sure that they go to their medical appointments. General living supervision and writing court reports.” (Motion Exh. 48 at p. 60.) Plaintiff acknowledged that “we deal with behavioral issues,” stating that DPOs have “to develop skills so you can assert your authority without making [the juveniles] upset.” (Id. at pp. 60–61.)

Asked, “What if there’s a fight?” Plaintiff responded, “Then you have to get in and restrain. And I have quite a few battle scars for that.” (Id. at p. 61.) Plaintiff testified to the use of verbal de-escalation techniques, and said: “The only manner that we can intervene is if he [the juvenile] becomes physical or has body language that he’s going to become physical, such as clenching the fists and moving towards you.” (Id. at p. 62.) Plaintiff elsewhere testified that prior to his employment he received training in the use of force and when, how, and when not to deploy it, including how to use his own body “to control the minor’s body and hold him down or still until more backup comes in” or handcuffs can be applied. (Id. at pp. 47–48.) Plaintiff’s testimony is consistent with Defendant’s argument concerning the necessity of DPOs who are able to use physical force to restrain minors in emergency situations.

The contrary testimony in Plaintiff’s present declaration is conclusory, subjective, and self-serving. Plaintiff states that he could perform according to his DPO job description, but provides no elaboration save check marks next to those functions he says he could perform, i.e. all of them. (Castro Decl. ¶¶ 17–19.) Given that these functions include ensuring the “safety and control of minors,” “maintaining group and individual behavioral standards,” and providing “individual and group crisis intervention” — and further given Plaintiff’s undisputed inability to physically restrain minors during the relevant period — this check-the-boxes response is too conclusory to be responsive. Indeed, it is not even clear whether Plaintiff is testifying to his ability to perform the DPO position as stated, or whether he refers to the light-duty positions he occupied from 2015 onward, which involved no interactions with minors at all. (Castro Decl. ¶ 23; Motion Exh. 47 at p. 148.) “[P]laintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) This is the evidence that Plaintiff has submitted here.

Plaintiff’s testimony concerning the rarity of the use of restraint is not much better. Plaintiff states, “In my experience working for the County, I did not have to restrain a minor for more than 18 years, which is [a] period going back far earlier than when my restrictions began.” (Castro Decl. ¶ 22.) It is unclear which 18-year period Plaintiff is referring to. From 1991 to 2010, Plaintiff worked the night-shift as a GSN, while the minors supervised were “supposed to be sleeping.” (Motion Exh. 48 at pp. 48–49.) And from 2015 to 2022, his position involved no contact with minors. (Id. at p. 148.) Plaintiff was promoted to DPO in 2010. (PUMF No. 121.) In 2013, he suffered the injuries that form the basis for this suit — while restraining “combative minors.” (TAC ¶¶ 17–18.)

Even if physical intervention against a minor were deemed a rare occurrence, this would not render it an inessential job function. “Where other considerations support a finding that a function is essential, the function need not encompass the majority of an employee's time, or even a significant quantity of time, to be essential.” (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 978, internal quotation marks omitted.) The control of minors in County custody and the response to emergency situations is a core function of the DPO position, attested to both in the job description itself and the regulations governing it. (See 15 CCR § 1321.) That such emergencies are rare does not make responding to them inessential.

Plaintiff relies on the case Price v. Victor Valley Union High School District (2022) 85 Cal.App.5^th 231, in which a special needs instructor brought claims for disability discrimination based on a purportedly essential qualification that she could not meet: “running after students.” (Price, supra, 85 Cal.App.4^th at p. 242.) The appellate court held that the plaintiff had created triable issues of fact as to whether “running” was an essential function of the job, based on (1) the plaintiff’s successful performance of the same job on a part-time basis with a “runner” student; (2) the plaintiff’s ability to “keep up with the student enough so that [she] could keep an eye on her and ensure that she was not harming anyone”; (3) the existence of “other District employees” who could run after students if needed; and (4) the existence of other teaching assignments geared to students who were especially unlikely to run. (Id. at pp. 242–243.)

Unlike Price, Plaintiff here has not attested to any alternative methods or means he could use to accomplish the essential functions of the job with the medical limitations he reported. Plaintiff does not contend that other employees could be called upon to respond to situations requiring physical intervention, and he identifies no alternative job assignments save temporary light-duty assignments like the front desk assignment he occupied on a rotational basis, or the “movement coordinator” position offered to GSNs that was at issue in the Solano case. (Rowe Decl. Exh. 2 ) “FEHA does not require the employer to create a new position to accommodate an employee, at least when the employer does not regularly offer such assistance to disabled employees.” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1226.) Defendant’s evidence shows that such assignments were offered on temporary 90-day terms, made rotational due to the limited number of spots in relation to the larger number of employees in need of accommodation. (Sims Decl. ¶¶ 4; Panjwani Decl. ¶ 4; Exh. 6.) Plaintiff presents no competent contradictory evidence on this point.

Indeed, the limited number of such positions and the rotational nature of their apportionment provides a further basis to grant dispositive relief on Defendant’s first cause of action. A defendant in a disability discrimination case may rebut a plaintiff’s prima facie showing by presenting a “legitimate nondiscriminatory reason for its employment decision.” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343.) Here, Defendant has presented evidence that Plaintiff was rotated out of his light-duty assignment on 90-day intervals per County policy, based on the lack of available modified-duty assignments in relation to the number of sworn employees requiring accommodations. Plaintiff contends that other open assignments existed but were not presented to him. (Castro Decl. ¶ 26.) However, he provides no basis in personal knowledge to support this conclusion. Plaintiff identifies an instance prior to his first March 2021 front-desk assignment at Camp Kilpatrick in which Panjwani, after initially telling Plaintiff that no assignments were available, offered Plaintiff the Kilpatrick position when he told her that he had learned of its existence through a supervisor at the camp. (Castro Decl. ¶ 26; Motion Exh. 47 at pp. 120–121.)[1] This is only to say, however, that Plaintiff was offered all assignments he has reason to believe were available.

The motion is therefore GRANTED as to the first cause of action.

The same evidence requires adjudication of Plaintiff’s second and third causes of action for failure to accommodate and to engage in the 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.)

As noted above, Defendant provided Plaintiff with all temporary light-duty assignments available. When such assignments were not available, he was “accommodated at home,” i.e. put on unpaid leave. (PUMF No. 25.) These leave periods were from August 19 to September 20, 2020; form June 4 to August 31, 2021; and from December 2, 2021, to April 18, 2022. (PUMF No. 25.)

Plaintiff attempts to argue that such leaves of absence are unlawful, citing 2 CCR § 11068, subd. (c). (Opposition at p. 11.) This provision, however, describes the circumstances in which they are lawful:

When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence . . .  may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.

(2 CCR § 11068, subd. (c).) Defendant’s argument depends on the assertion that Plaintiff could “work with a reasonable accommodation other than a leave of absence,” such as through assignment in other positions or even via demotion. (Opposition at pp. 11–12.) But once again, the only competent evidence shows that no such positions were available.

Plaintiff argues that policies requiring an employee to be 100% healed before returning to work are “per se violations of the FEHA.” (Opposition at p. 11, citing Gelfo v. Lockheed Martin Corp. (140 Cal.App.4^th 34, 50 fn. 11.) But there is no indication that Defendant implemented a “100% healed” policy; only that Plaintiff could not perform an essential function of his position, and was placed on temporary light-duty assignments while this circumstance persisted. (See Lui, supra, 211 Cal.App.4^th at p. 984, quoting Martin v. Kansas (10^th Cir. 1999) 190 F.3d 1120, 1135 [“[T]he State's light duty policy is not tantamount to a ‘100 [percent] healed’ policy or a refusal to accommodate permanent disabilities. [Citation.] As we have acknowledged previously, the ADA does not require an employer to provide permanent light duty assignments for disabled employees. At best, Martin shows only that the State's policy required him to be able to perform the essential job functions of a corrections officer, with or without accommodation.”].) There are no triable issues of fact as to whether Plaintiff was reasonably accommodated, or engaged in a good faith interactive process.

The motion is therefore GRANTED.