Judge: H. Jay Ford, III, Case: 21SMCV01943, Date: 2024-11-07 Tentative Ruling

Case Number: 21SMCV01943    Hearing Date: November 7, 2024    Dept: O

  Case Name:  Sanchez v. City of Santa Monica, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant City of Santa Monica

RESP. PARTY:         Plaintiff Alexandra Sanchez

TENTATIVE RULING

            Defendant City of Santa Monica’s Motion for Summary Judgment is GRANTED as to the 4^th–13^th causes of action, and DENIED as to the 14^th cause of action in Plaintiff Alexandra Sanchez’s Complaint. Defendant meets their burden to show that Plaintiff cannot prove elements of the 4^th–13^th causes of action, and Plaintiff does not meet their burden to show triable issues of material facts as to the 4^th –13^th causes of action.   Defendant does not meet their burden to show that Plaintiff cannot prove any elements, or that Defendant can provide a complete defense to, the 14^th cause of action.

            Defendant City of Santa Monica’s Objection Nos 1, 2, 3, 4, 7, 8, 9, 12, 13, 14, 15, 16, 17, 19, 20, 21, 24, 25, 26, 27, 28, 29 are SUSTAINED

            Defendant City of Santa Monica’s Objections Nos. 5, 6, 10, 11, 18, 22, 23, are OVERRULED

REASONING

            Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code of Civil Procedure §437c(o)(2).) 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 plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Ibid.)

            “The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is different than the burden to show that one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense. If the defendant does not meet this burden, the motion must be denied.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467–468.)

I.                4^th cause of action— Gender Discrimination in violation of the FEHA; 6^th cause of action for Retaliation;  9^th cause of action—Disability Discrimination in Violation of FEHA—GRANTED

            In the absence of direct evidence of discrimination, courts utilize a three-pronged burden shifting analysis first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Under this analysis: “(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.” (Morgan v. Regents of Univ. of Calif. (2000) 88 Cal.App.4th 52, 68.)

            The elements required to pass summary judgment for a claim of gender and disability discrimination are essentially the same except for the first element to state a prima facie case. “A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 378.)

            To state a prima facie case for a FEHA gender or disparate treatment discrimination claim “the plaintiff must provide evidence that (1) he was a member of a protected class, [i.e. gender based in this scenario] (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.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

            If the employee establishes a prima facie case of discrimination, the employer is required to offer a legitimate, non-discriminatory reason for the adverse employment action. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806, citing Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002.) “If the employer sustains this burden, the presumption of discrimination disappears.”  (Guz, supra, 24 Cal.4th at p. 356, citing St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 510–511.)

            “[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806–807.) An employee cannot “simply show the employer's decision was wrong, mistaken, or unwise. Rather, the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer that the employer did not act for the [ ... asserted] non-discriminatory reasons.” (Id., at p. 807.)

            “[T]emporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action, does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer's articulated reason was untrue and pretextual.” (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112.) Additionally, Speculation cannot be regarded as substantial responsive evidence to raise a triable issue as to employer motivation. (See Levy v. Regents of University. of California (1988) 199 Cal.App.3d 1334, 1346 [allegations that were “purely speculative and not borne out by the evidence” are insufficient to defeat summary judgment]; lbarbia v. Regents of Univ. of Calif. (1987) 191 Cal.App.3d 1318, 1330 [affirming summary judgment where plaintiff made “highly speculative allegations without any real substantiation”])

            “To establish a prima facie case of retaliation, “the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action.” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814.)

            “[R]etaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA.” (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1230.) “[A] plaintiff seeking to avoid summary judgment under the McDonnell Douglas framework must demonstrate more than a genuine issue of material fact as to whether the employee violated workplace rules. He must show a genuine issue of fact about whether the employer acted based on an intent to retaliate rather than on a good faith belief that the employee violated a workplace rule.” (Id., at p. 1223.)

            Defendant City of Santa Monica (“The City”) provides declarations and evidence from Plaintiff Alexandra Sanchez’s (“Sanchez”) deposition to show that Sanchez cannot establish she had a disability on 9-30-18, the date of the incident at issue. The City shows that Sanchez realized she had a phobia of guns from a childhood event, Sanchez has not received treatment for this phobia, and thus cannot prove she was disabled or a member of a protected class under a disability discrimination claim. (SSUF, ¶¶ 17, 18, 19; Ex. S, Sanchez Dep., Vol. 1, 159:4-160:4; Ex. T, Sanchez Dep., Vol. 2, 269:3-271:25, 275:22-25, 276:20-277:4.) However, Sanchez provides deposition testimony stating she informed members of the department about her alleged gun phobia disability (See SSUF, ¶ 19; Sanchez Evidence Compendium, Ex. A, p. 126:10–20.). Under FEHA, an employee only needs to inform their employer of their disability for the disabled protected status to be in force. (See Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 592 [“[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. The employer need only know the underlying facts, not the legal significance of those facts.”].)

            Thus, the City does not meet their burden to prove there are no triable issues of material fact as to the existence of a disability.

            The City argues there is no evidence to suggest a discriminatory motive and thus Sanchez cannot meet the fourth element to state a prima facie case for a FEHA claim of discrimination. The City shows that Sanchez admitting to stating, and was investigated for telling, Defendant Gustavo Cortez (“Cortez”) that she would “bust a cap” in them, plus Sanchez admitted that the actions were “unprofessional and not consistent with a good working environment.” (SSUF, ¶ 2; Defendants Compendium of Evidence (“Defendants’ Evidence”) Ex. A, Notice of Decision to Suspend No. 18-025; Ex. S, Sanchez Dep., Vol. 1, 123:2–126:20; Ex. T, Sanchez Dep., Vol. 2, 333:20–336:21; Renaud Decl., ¶¶ 3, 5; Verbeck Decl., ¶ 4; Cortez Decl., ¶¶ 2–3, 6.)

            The City shows that Cortez received a lengthy suspension for his behavior on 9-30-18 of removing both his pepper spray and displaying his disarmed weapon on or near Sanchez’s lap, facing away from Sanchez. (SSUF, ¶¶ 3–4, 8–15; Defendants’ Evidence, Ex. A; Ex. S, Sanchez Dep., Vol. 1, 24:14–25:16, 142:1–14, 144:22–145:13, 144:9–15 Ex. T, Sanchez Dep., Vol. 2, 333:20–336:21; Ex. V , D. Mejia Dep., 126:6–127:1; Renaud Decl., ¶ 3–6; Heric Decl., ¶¶ 6–7; Villegas Decl., ¶¶ 6–7; Cortez Decl., ¶¶ 5, 11–12. )  

            The City shows that Sanchez also received a suspension for her conduct that was reduced to 10 hours of discipline, and when Sanchez appealed the investigation, she apologized for making the comments and that the moment where Sanchez admitted her comments were unprofessional. (SSUF, ¶¶ 12, 14; Defendants’ Evidence, Ex. A; Ex. T, Sanchez Dep., Vol. 2, 333:20–336:21; Renaud Decl., ¶¶ 3–6.) The City shows that Sanchez was placed on medical leave recommended by Sanchez’s Doctor, after the subject incident, from September 2018 through September 2019, when she was eventually cleared to return to work. (SSUF, ¶¶ 16, 21; Defendants’ Evidence, Ex. J, Work Status Report; Ex. K, Letter re: Return to Work, 9/4/19; Ex. L, Letter re: Leave of Absence, 7/10/19; Ex. U, M. Medina Dep., 114:3–117:3, 123:1–21; Ex. V, D. Mejia Dep., 138:4–10.)

            The City shows that Sanchez returned to work on part time basis for four to five hours per day beginning in 9-4-19 to 11-4-19, and that due to Sanchez’s part time restrictions she could not be placed within her previous Crime Prevention Unit (“CPU”) position, so instead the City placed her with part-time work at the City Clerk’s Office with the same hourly rate she had previously. (SSUF, ¶¶ 22–27; Defendants’ Evidence, Ex. K, Letter Re: Return to Work, 9/4/19; Ex. J, Work Status Report; Ex. S, Sanchez Dep., Vol. 1, 16:3–17:25, 50:19–55:8, 93:9–94:6, 98:18–99:2; Ex. T, Sanchez Dep., Vol. 2, 236:21–237:5, 267:7–12; 317:9–20; Ex. U, M. Medina Dep., 34:6–18, 41:7–42:15, 42:17–44:2, 44:11–45:11, 45:1–19, 50:8–22; 64:11–66:4; 72:7–74:24; 114:3–117:3, 117:17–25; 118:2-5; 122:12–24; 123:1–21, 130:22–132:4, 145:6–13; 158:17–20, 162:10–11; Ex. V, D. Mejia Dep., 58:16–63:20, 69:11–72:16; 75:4–18; 131:6–132:21; 153:4–154:15; Heric Decl., ¶¶ 2–5; Morrison Decl., ¶ 11; Villegas Decl., ¶ 16.) The City shows that Sanchez had no complaints regarding her treatment at the City Clerk’s Office and was happy to be working there. (SSUF, ¶ 30; Defendants Evidence, Ex. S, Sanchez Dep., Vol. 1, 67:13–18; Ex. T, Sanchez Dep., Vol. 2, 255:11–14; Ex. U, M. Medina Dep., 128:24–130:20; Ex. V, D. Mejia Dep., 145:14–23.)

            The City shows that on 2-29-20 Sanchez was cleared to work without restrictions, and on 3-16-20 Sanchez was informed she would be returning to her previous CPU position. (SSUF, ¶¶ 35–36; Ex. V, D. Mejia Dep., 150:4–151:22, 160:7–164:16; 166:15–167:5.) The City shows that in October of 2019 Sanchez’s supervisor, Villegas, issued an evaluation of Sanchez “with a rating of meets overall expectations,” and with the evaluation reflecting that “Sanchez had been combative when working on some projects,” however, Villegas “recommended and approved her attendance at the highest leadership institute for civilians.” (SSUF, ¶¶ 43–46; (Ex. F, Evaluation; Ex. G, Rebuttal to Evaluation; Ex. H, Response to Rebuttal; Ex. I, Emails re: Time Of Ex. T, Sanchez Dep., Vol. 2, 251:5–18, 326:24–327:21, 332:13–333:10; Jacob Decl., ¶ 3 Villegas Decl., ¶¶ 4–6, 8–12.) The City shows that Sanchez agreed with the evaluation’s positive comments, disagreed with the negative comments in her rebuttal, however no changes were made to the evaluation, and Sanchez did not complain of harassment, discrimination or retaliation within the rebuttal. (SSUF, ¶ 47–49; Ex. F, Evaluation, 2019; Ex. G, Rebuttal to Evaluation; ; Ex. H, Response to Rebuttal; Ex. T, Sanchez Dep., Vol. 2, 327:7–328:23; Jacob Decl., ¶ 4; Villegas Decl., ¶¶ 4–6, 8–12.)

            The City shows Sanchez admitted to making unprofessional and discourteous social media posts in October and November of 2019 containing the hashtag, “#imcomingforu.” (SSUF, ¶¶ 50–51; Ex. B, Social Media Post, 10/6/19; Ex. C, Social Media Post, 11/27/19; Ex. D, Notice of Intent to Suspend No. 20-004; Ex. E, Notice of Decision Complaint No. 20-004, 6/27/21; Ex. T, Sanchez Dep., Vol. 2, 339:17–24, 340:7–341:16; Seabrooks Decl., ¶¶ 4–7; Franco Decl., ¶¶ 3–8.) The City shows that due to Sanchez’s social media posts, Sanchez’s colleagues in CPU had concerns that Sanchez could be making threats, which instigated an investigation into the social media posts resulting in 40 hours of suspension for Sanchez—Sanchez did not appeal the investigation findings. (SSUF, ¶¶ 52–58; Ex. D, Notice of Intent to Suspend No. 20- 004, 3/2/21; Ex. E, Notice of Decision Complaint No. 20-004, 6/27/21; Ex. T, Sanchez Dep., Vol. 2, 339:8–16, 340:2–6, 348:16–351:11; Seabrooks Decl., ¶¶ 5–7; Morrison Decl., ¶¶ 6–9, 12; Lashley Decl., ¶¶ 6–10; Verbeck Decl., ¶¶ 9–10; Villegas Decl., ¶¶ 6, 13; Franco Decl., ¶¶ 3–9; Seabrooks Decl., ¶¶ 3–9.)

            The City shows that upon the completion of the investigation into Sanchez’s allegedly threatening social media posts the City engaged in the interactive process with Sanchez, but Sanchez’s restrictions prevented her from returning to her prior position. (SSUF, ¶¶ 59–60; Ex. O, Reasonable Accommodation Meeting Notes; Ex. T, Sanchez Dep., Vol. 2, 326:13– 23, 357:24–358:20; Ex. V, D. Mejia Dep., 178:11– 180:15, 184:1–186:10; 187:2–188:24, 191:22– 192:22.) The City shows that the City worked with Sanchez to find an alternate work position but due to Covid and prior layoffs there were fewer openings available during this process leading to Sanchez selecting a position of Administrative Staff Assistance (“ASA”) that had a lower annual salary than her CPU position, however, Sanchez had no complaints about the new position. (SSUF, ¶¶ 59–65; Ex. D, Notice of Intent to Suspend No. 20- 004, 3/2/21; Ex. E, Notice of Decision Complaint No. 20-004, 6/27/21; Ex. O, Reasonable Accommodation Meeting Notes; Ex. P, Notice of Accommodation Meeting Outcome 10/19/21; Ex. S, Sanchez Dep., Vol. 1, 34:3–9, 39:25–40:1, 47:15–48:11, 56:4–18, 66:21–67:12; Ex. T, Sanchez Dep., Vol. 2, 219:4–220:5, 326:13–23; 339:8–16, 340:2–6, 348:16–351:11, 357:24–358:20. 358:21–360:21; Ex. V, D. Mejia Dep., 178:11–18, 180:16–181:5, 184:1–186:10, 187:2–188:24, 189:1–190:1, 191:22–192:22; Seabrooks Decl., ¶¶ 4–9.)

            The City has met its burden to show shown Sanchez cannot establish a prima facie case of discrimination.  Moreover, even if Plaintiff could establish a prima facie case of discrimination, the City has articulated a legitimate, non-discriminatory purpose for the alleged adverse employment by presenting legitimate business reasons for their actions.

            Additionally, the City meets their burden to show that Sanchez cannot show the City’s alleged business actions were a pretext for discrimination.  The City shows that Sanchez does not know what motivated Cortez during the incident, and that Sanchez speculates that the City was motivated to discriminate because she complained about Cortez, however, as provided above, the City has met their burden to show that they were acting under legitimate business practices responding to both Sanchez and Cortez’s’ inappropriate behavior.  

            The burden, therefore, shifts to the Sanchez to show a triable issue of fact as to the City articulating a legitimate, non-discriminatory purpose for the alleged adverse employment, and whether this was a pretext for discrimination.

            Sanchez only submits theories, self-serving declarations, and contradictory deposition testimony alleging the City discriminated against Sanchez through alleged adverse employment actions, and that these adverse employment actions were in fact pretext for discrimination. Sanchez provides no evidence regarding the investigations against Sanchez for her undisputed inappropriate conduct in both the incident with Cortez in 2018 and the social media posts in 2019. Sanchez alleges there was a conspiracy to prevent her from reporting the 2018 incident with Cortez, however, in her Internal Affairs interview on 10-11-18, Sanchez affirmed that Verbeck “kept telling [her] that [she] had to go to the watch commander” to report the incident, but she did not to cause trouble to Cortez. (5-29-24 Plaintiffs Compendium of Evidence (“PCOE”), Ex. H (p. 414 of PCOE), Sanchez IA Trans., 178:9–179:14.) This statement, made immediately after the incident, is contradicted by Sanchez’s statement made on 5-11-23 where Sanchez states the exact opposite, that Verbeck discouraged Sanchez from making a report. (See PCOE, Ex. A, p 18:6–14.) These admissions are valuable parts of Sanchez’s conspiracy claims, thus the “contradictory affidavits may be disregarded.” (Nunez v. R'bibo (1989) 211 Cal.App.3d 559, 563.) Additionally, it follows that Sanchez’s memory of events would be best immediately after the subject incident in 2018, thus Sanchez’s statements at that time would theoretically be closer to the truth than statements made nearly five years later. Despite that fact, the Court will disregard both deposition testimonies due to their contradictory nature.

            Sanchez does not meet her burden to show a triable issue of fact as to the City’s legitimate business operations in acting upon allegations of Sanchez’s inappropriate behavior and the ensuing alleged adverse employment activity. Temporal proximity of alleged adverse employment activity alone, without more concrete evidence of discrimination, does not establish pretext. Sanchez only provides unsubstantiated conjecture and subjective opinions which is not enough to establish pretext. (See Schuler v. Chronicle Broadcasting Co. Inc. (9th Cir. 1986) 793 F.2d 1010, 1011 [“subjective personal judgments do not raise a genuine issue of material fact”]; see also Gonzales v. Metpath, Inc. (1989) 214 Cal.App.3d 422, 427 [“Employers must be given wide latitude to make independent, good-faith personnel decisions without the threat of a jury second-guessing their business judgments.”].)

            Thus, the City’s Motion for Summary Judgement as to the 4^th, 6^th and 9^th causes of action is GRANTED.

II.             5th cause of action—Harassment—GRANTED

            Plaintiff’s 5th cause of action for harassment is based on Government Code §12940(j)(1) and (j)(3). “Harassment of an employee…by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” (Gov. Code §12940, subd. (j)(1).) Pursuant to Government Code §12940(j)(1), “It is an unlawful employment practice…For an employer…or any other person, because of…mental disability, medical condition…sex, gender…to harass an employee….” Pursuant to Government Code §12940(j)(3), “[a]n employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

            “[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) “[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.” (Reno v. Baird (1998) 18 Cal.4th 640, 645–646.)

            “Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment. Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc. in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.” (Id. at p. 646.)

            The elements of a prima facie case of hostile work environment claim are as follows: The elements of a claim of harassment under FFHA are: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subject to unwelcome harassment because of being a member of that group; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 886 (citing Barrett v. Whirlpool Corp. (6th Cir. 2009) 556 F.3d 502, 515 (“Barrett”) [Title VII claim]; see Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [FEHA environmental sexual harassment claim]

            “Acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or generalized nature.’ ” (Hope v. Calif. Youth Authority, (2005) 134 Cal.App.4th 577, 588, quoting Fisher, supra, at p. 610).) “[T]he plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he] was actually offended.’ ” (Id., at 588.) In fact, “not every utterance of a racial slur in the workplace violates the FEHA or Title VII.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130.)

            “The working environment must be evaluated in light of the totality of the circumstances: [W]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.)

            “A person who brings a cause of action for sexual discrimination, under the provisions of the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), must first file a claim with the DFEH. The administrative complaint must be filed within one year of the date upon which the alleged act of discrimination occurred.” (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349, as modified on denial of reh'g (Aug. 20, 1993), citing Gov. Code, § 12960.) “[N]ot every utterance of a racial slur in the workplace violates the FEHA or Title VII.”(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129.)

            The City essentially provides the same arguments as in Section I above regarding Sanchez’s cause of action for harassment with the additional argument that personnel actions cannot form the basis of harassment claims, the City did not ratify Cortez’s actions since the City suspended Cortez for his actions, and Sanchez had no further interaction with Cortez after the incident and did not return to Community Affairs. (SSUF, ¶¶ 8–12, 66; Defendants’ Evidence, Ex. S, Sanchez Dep., Vol. 1, 158:1-8; Cortez Decl., ¶ 9.) Thus, the City has met their burden to show that Sanchez cannot establish elements of the harassment claim. The burden now shifts to Sanchez to show a triable issue of material fact.

            Sanchez does not provide any arguments or new/different evidence that was not already provided for the previous causes of action in the section above, thus Sanchez does not meet her burden to show a triable issue of material fact as to her harassment claims.

            The City’s Motion for Summary Judgment as to the 5^th cause of action is GRANTED.

III.            7^th coa— Failure to Accommodate Disability in Violation of the FEHA; and 8^th coa­­—Failure to Engage in the Interactive Process - GRANTED

            “There are three elements to a failure to accommodate action: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified 1194 individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193–1194.)

            “Reasonable accommodation may include either of the following: [¶] (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010.) “FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks.” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)

            “To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch, supra, 173 Cal.App.4th at p. 1018.) “The employee must initiate the process unless the disability and resulting limitations are obvious.” (Id., at p. 1013.) “The interactive process required by the FEHA is an informal process . . . . [and] [r]itualized discussions are not necessarily required.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.)

            The City shows that they fulfilled their statutory duty to provide reasonable accommodations to Sanchez which were analyzed above in Section I when Sanchez took leave from 2018 to 2019, returned to part time work with the City as a clerk with the same hourly rate, and at all times the City worked with Sanchez to provide accommodations within her restrictions. (SSUF, ¶¶ 22–27, 36–36, 59–65.)  Additionally, the City shows they stayed in constant communication with Sanchez during the interactive process thus properly engaging in the interactive process. (SSUF, ¶¶ 16–23, 59–65.)

            Thus, the City has met their burden to show that Sanchez cannot meet the elements of both the Failure to Accommodate Disability in Violation of the FEHA and Failure to Engage in the Interactive Process claims. The burden now shifts to Sanchez to show a triable issue of material fact as the elements of the claims.

            Sanchez argues that the City should have accommodated her at the front desk, which the City did with Officer Lashley prior to Lashley being an officer more than 20 years prior to incident at issue. (9-30-24 Plaintiffs Supplemental SSUF, ¶ 190; 10-2-24 Exhibit List, Ex. T (at p. 320) Lashley Depo., p. 33:7–24.)  Sanchez has not presented any evidence that in 2019, the year when Sanchez required temporary accommodation, that the City permitted civilians, like Sanchez to work at the front desk. Sanchez is not entitled to her preferred accommodation or a newly created position. (See Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223 [“The employer is not required to create new positions or ‘bump’ other employees to accommodate the disabled employee . . . . What is required is the ‘duty to reassign a disabled employee if an already funded, vacant position at the same level exists.”].) Further Sanchez does not provide any evidence that the City placed Sanchez in a temporary position due to any unlawful motive, nor that the City failed to engage in the interactive process.

            Sanchez does not meet her burden to show a triable issue of material fact as to the Failure to Accommodate Disability in Violation of the FEHA and Failure to Engage in the Interactive Process causes of action. Thus, the City’s Motion for Summary Judgment as to the 7^th and 8^th causes of action is GRANTED.

IV.           11^th coa—Failure to Prevent Discrimination in Violation of the FEHA; and 12^th coa—Failure to Prevent Harassment in Violation of the FEHA

The 12^th coa for failure to prevent Harassment in violation of FEHA is based on Government Code §12940(k). Pursuant to Government Code §12940(k), “It is an unlawful employment practice…tor an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” “One such reasonable step, and one that is required in order to ensure a discrimination-free work environment, is a prompt investigation of the discrimination claim.” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024 [employer violated GC §12940(k) when it failed to institute investigation of employee’s complaint of religious discrimination and instead retaliated].) A claim for failure to prevent harassment cannot be stated where there has been a specific factual finding by a trier of fact that no harassment occurred. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 [affirming JNOV in favor of employer defendant; defendant employer could not be found liable for failure to prevent discrimination where jury found no such discrimination occurred].) A reasonable step to prevent discrimination “is a prompt investigation of the discrimination claim.” (California Fair Employment & Housing Com., supra, 122 Cal.App.4th at p. 1024.)

The City shows that they have policies preventing harassment, discrimination, and retaliation, and City employees undergo training at least every two years. (SSUF, ¶¶ 68–69; Defendants Evidence, Ex. V, D. Mejia Dep., 29:9–33:16, 44:14–55:23, 103:10–104:13, 108:14–109:15, 109:16–112:23, 118:23–119:22, 125:18–126:5; Ex. R, Various City Policies; Chung Decl., ¶ 6.) As analyzed above in Section I, the City has shown there is no evidence that Cortez’s actions or any business decisions, including accommodations, investigations, and her performance evaluation by the City were motivated by Sanchez’s gender, sex, or disability. (SSUF, ¶¶ 2–69.) The City shows that Sanchez did not complain that she had experienced discrimination, harassment, or retaliation on any protected basis, even in the rebuttal to her performance evaluation. (SSUF, ¶ 6, 47; Defendants Evidence, Ex. A, Notice of Decision to Suspend No. 18-025; Ex. G, Rebuttal to Evaluation; Ex. T, Sanchez Dep., Vol. 2, 327:7–328:23; Jacob Decl., ¶ 4. Renaud Decl., ¶ 4.) Moreover, since this claim is connected to the underlying FEHA claims which failed, the City argues these claims fail as well.

            Thus, the City has met their burden to show that the Sanchez cannot prove multiple elements of the 11^th and 12^th causes of action. The burden now shifts to Sanchez to show a triable issue of material fact as to the causes of action, however, due to the Motion for summary judgment being granted on the underlying FEHA claims it follows that these claims also fail.

            The City’s Motion for Summary Judgment as to the 11^th and 12^th causes of action is GRANTED.

V.              10^th coa—Violation of Labor Code § 1102.5; 13^th coa—Failure to Provide Complete Access to Employee Personnel File and Payroll Records in Violation of Labor Code §§ 226, 432, and 1198.5; and 14^th coa—Wrongful Termination in Violation of the FEHA

            “The Government Claims Act (§ 810 et seq.) ‘establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity.” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118.) “[T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action .... The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity.” (Ibid.) “Claims for personal injury must be presented not later than six months after the accrual of the cause of action, and claims relating to any other cause of action must be filed within one year of the accrual of the cause of action.” (Ibid.)

a.     10^th and 13^th causes of action -  GRANTED

            The City shows that the City is a public entity and Sanchez did not file a government tort claim directly with the City, and thus argues the 10^th and 13^th causes of action brought under the Labor Code are barred as a matter of law. (See SSUF ¶¶ 70, 71; Mack Decl., ¶ 3 [liability claims adjuster for the city declaring that no record a Government Tort Claim was ever submitted on behalf of Sanchez.].)

            Sanchez filed a claim with the Department of Fair Employment & Housing (“DFEH”) as a prerequisite for the FEHA claims and received a right to sue letter from the DFEH, but this is a separate procedural matter than filing a claim directly with the City for claims separate from the FEHA claims. Sanchez does not provide any evidence that she filed a Government Tort Claim with the City, nor does the DFEH claim mention the claims under Labor Code §§ 226, 432, 1102.5, and 1198.5. Thus, the claims brought under the labor code fail as a matter of law for not filing a Government Tort Claim within the statutory time frame, and prior to filing this lawsuit.

            The City’s Motion for Summary Judgment/Adjudication as to the 10^th and 13^th causes of Action is GRANTED.

b.     14^th Cause of Action -Wrongful Termination - DENIED

            The City argues the 14^th cause of action for wrongful termination in violation of FEHA is barred by Government Code § 815. (See Gov. Code § 815; see Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“The Legislative Committee Comment to section 815 states: “This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation....”].) The City argues that even though Sanchez used FEHA as a way to claim a wrongful termination claim, the claim is still a common law Tameny claim which is barred by the government claims act. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.)

            The Court disagrees.  Government Code § 815 legislative committee comments includes the following: “[i]n the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable. (Gov. Code, § 815, legislative committee comments.) FEHA, codified under the Gov. Code 12940, et seq, statutes, defines an “employer” to include “any person acting as acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities" (Gov. Code, § 12926.) The City thus qualifies as an employer under the FEHA statues, which would fall under an exemption to the government claims act.

            The City does not provide any direct authority to show that a wrongful termination claim brought under FEHA is preempted by the government claims act, other than citing to a distinguishable case in Miklosy which specifically dealt with a University of California employee and the associated statues for that specific type of employee (See Miklosy, supra, 44 Cal.4th at p. 899 [“Accordingly, a university employee who believes she is the victim of retaliation is limited to a statutory claim for damages under section 8547.10.”]; see also Gov. Code § 8547.10.) Thus, The City did not meet their burden to show a triable issue of material fact, or that the cause of action is barred as a matter of law, as to the 14^th cause of action.

            The City also argues that the 14^th cause of action is barred by the lack of filing a Government Tort Claim prior to filing the lawsuit. Sanchez filed the DFEH claim within the statutorily mandated time period, received a right to sue letter and thus could file the lawsuit for all FEHA related claims including the 14^th cause of action. (SSUF, ¶ 67; Chung Decl., ¶ 8; RJN, Ex. A.)