Judge: Holly J. Fujie, Case: 19STCV07759, Date: 2023-03-29 Tentative Ruling
DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.
Case Number: 19STCV07759 Hearing Date: March 29, 2023 Dept: 56
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR
THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
Plaintiff, vs. PASADENA AREA COMMUNITY COLLEGE
DISTRICT, et al.,
Defendants. |
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[TENTATIVE] ORDER RE: MOTION FOR SUMMARY
JUDGMENT AND/OR ADJUDICATION Date:
March 29, 2023 Time: 8:30 a.m. Dept. 56 Jury Trial: May 23, 2022 |
MOVING
PARTY: Defendants Pasadena Area Community College District (“PCC”) and Terry
Giugni (“Giugni”) (collectively, “Moving Defendants”)
RESPONDING
PARTY: Plaintiff
The
Court has considered the moving, opposition and reply papers.
BACKGROUND
This
action arises out of an employment relationship. Plaintiff’s complaint (the “Complaint”)
alleges: (1) disability discrimination in violation of the Fair Employment and
Housing Act (“FEHA”); (2) failure to accommodate in violation of FEHA; (3)
failure to engage in the interactive process; (4) harassment in violation of
FEHA; (5) retaliation in violation of FEHA; (6) failure to prevent
discrimination; and (7) intentional infliction of emotional distress.
In
relevant part, the Complaint alleges: Plaintiff worked for PCC for
approximately seven years. (Complaint ¶
14.) Plaintiff’s supervisors began
mistreating her after she reported what she believed were violations of the
Family Educational Rights and Privacy Act (“FERPA”) in 2015. (Complaint ¶ 15.) For example, in 2016 and 2017, Plaintiff
received poor reviews and was transferred to a new assignment. (Complaint ¶ 16.) In early 2018, Plaintiff needed to undergo
surgery for complications from a previous hernia repair. (Complaint ¶ 17.) Moving Defendants denied Plaintiff the
accommodations she requested and terminated her on March 10, 2018, less than
one month after she initially requested the accommodations. (Complaint ¶ 20.)
Moving
Defendants filed a motion for summary judgment and/or adjudication (the
“Motion”) on the grounds that Plaintiff is unable to establish any of the
claims alleged in the Complaint
EVIDENTIARY OBJECTIONS
Moving Defendants’
evidentiary objections are OVERRULED.
DISCUSSION
The function of a motion for summary judgment or
adjudication is to allow a determination as to whether an opposing party cannot
show evidentiary support for a pleading or claim and to enable an order of
summary dismissal without the need for trial. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) California Code of Civil Procedure
(“CCP”) section 437c, subdivision (c) requires the trial judge to grant summary
judgment if all the evidence submitted, and all inferences reasonably deducible
from the evidence and uncontradicted by other inferences or evidence, show that
there is no triable issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.
(Adler v. Manor Healthcare Corp.
(1992) 7 Cal.App.4th 1110, 1119.)
As to each claim as framed by the complaint, the
defendant moving for summary judgment must satisfy the initial burden of proof
by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520.) Courts
liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that
party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
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. 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.)
Summary
Judgment Standard in Employment Discrimination Claims
In analyzing an employee’s claim for unlawful
discrimination under FEHA, California courts have adopted the three-stage,
burden-shifting test the U.S. Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Swanson
v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964.) The McDonnell
Douglas test reflects the principle that direct evidence of intentional
discrimination is rare, and that such claims must usually be proved
circumstantially. (Id.) Thus, by successive steps of increasingly
narrow focus, the test allows discrimination to be inferred from facts that
create a reasonable likelihood of bias and are not satisfactorily
explained. (Id.)
California courts have recognized that the McDonnell Douglas test was originally
developed for use at trial, not in summary judgment proceedings. (Id. at 965.) California summary judgment law places the
initial burden on a moving party defendant to either negate an element of the
plaintiff’s claim or establish a complete defense to the claim. (Id.
at 965-66.) The burdens and order of
proof therefore shift under the McDonnell
Douglas test when an employer defendant seeks summary judgment. (Id. at 966.) An employer defendant may meet its initial
burden on summary judgment and require the employee plaintiff to present
evidence establishing a triable issue of material fact, by presenting evidence
that either negates an element of the employee's prima facie case or
establishes a legitimate nondiscriminatory reason for taking the adverse
employment action against the employee.
(Id. at 966.) To avoid summary judgment on the second of
these two grounds, 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. (Id.)
Moving
Defendant’s Evidence
PCC hired Plaintiff on November 8, 2012. (Separate Statement of Undisputed Material
Facts (“UMF”) 1.) Plaintiff’s initial
supervisor was Dr. Leslie Tirapelle (“Tirapelle”), who Plaintiff believed was
improperly seeking information about Plaintiff’s employment contract behind her
back. (See UMF 9.) In 2015, Plaintiff’s supervisor became Susan
Roig (“Roig”). (UMF 14.) Plaintiff and Roig had a combative
relationship, and on March 15, 2016, Roig gave Plaintiff evaluation with an overall
score of “needs improvement.” (See UMF
15-22.) Although Plaintiff complained
about Roig, she did not contend that Roig’s alleged harassment was based on a
protected category. (See UMF
20-21.) On around June 20, 2016,
Plaintiff was placed on an improvement plan.
(UMF 31.)
On December 18, 2016, Plaintiff filed a formal
discrimination and harassment complaint (the “2016 Complaint”) against Roig and
Tirapelle. (UMF 37, Declaration of
Robert Blizinski (“Blizinski Decl.”) Exhibit 11.) In the 2016 Complaint, Plaintiff alleged that
she was being retaliated against but did not allege that the retaliation was
based on a protected category. (See
id.) The 2016 Complaint alleged that
the pain and suffering Plaintiff experienced as a result of the retaliation
caused medical issues, but did not state that she required accommodations or
was otherwise disabled. (See id.) PCC notified Plaintiff on February 24, 2017
that the 2016 Complaint was unsubstantiated.
(UMF 44, Blizinski Decl. Exhibit 12.)
On March 7, 2017, Plaintiff received another
evaluation with a score of “unsatisfactory.”
(UMF 48.) The March 2017
Evaluation noted that Plaintiff had not followed the goals set forward in her
2016 improvement plan. (See UMF
50.)
At the end of the 2016-2017 school year, Plaintiff
requested that Giugni transfer her to another department. (UMF 53.)
On August 8, 2017, Giugni transferred Plaintiff to a faculty teaching
position in the English as a Second Language (“ESP”) Department. (UMF 54.)
The transfer did not affect Plaintiff’s tenure-track timeline. (UMF 55.)
When Plaintiff transferred to the ESL department, Dean Natalie Russell
(“Russell”) became her supervisor. (UMF
56.) Plaintiff refused Russell’s request
to implement a modified improvement plan.
(UMF 58-59.) In February 2018, Russell
gave Plaintiff an unsatisfactory evaluation (the “February 2018 Evaluation”)
for the Fall 2017 semester. (UMF 60; Blizinski
Decl.Exhibit 15.)
The February 2018 Evaluation is dated February
2018, but because Plaintiff underwent surgery on or about February 12, 2018, Russell
was unable to provide Plaintiff with the document until March 8, 2018. (UMF 66.)
On January 18, 2018, Plaintiff provided a note from
her nurse practitioner Ann Margaret Asher (“Asher”) stating that she could not
work until January 19, 2018, and listing work restrictions. (UMF 72; Blizinski Decl., Exhibit 16.) Asher’s note detailed the following
restrictions: no prolonged standing for over two hours at a time and no
lifting, no pushing, pulling, or lifting over ten pounds. (UMF 74.)
Plaintiff had not previously notified PCC that she had a disability or
any disability-related work restrictions.
(UMF 75.) On January 23, 2018,
Plaintiff submitted an accommodation request form. (UMF 82.)
In the request form, Plaintiff requested additional accommodations, such
as a maximum of 2.5 hours of consecutive teaching. (See UMF 83.) PCC did not receive medical verification that
Plaintiff required time off between teaching classes or the other
accommodations she requested in the form.
(UMF 86-87.) On February 6, 2018,
PCC notified Plaintiff that the accommodations that were not included in her
medical note would not be granted. (UMF
93; Blizinski Decl., Exhibit 19.)
In late January/early February 2018, Plaintiff
notified PCC that she would need to go on leave for a surgery to repair her
hernia. (UMF 100.) On February 13, 2018, PCC granted Plaintiff
FMLA leave through February 28, 2018.
(UMF 102.) On February 27, 2018,
Plaintiff’s surgeon provided a note extending Plaintiff’s leave until March 15,
2018. (UMF 104.) The surgeon’s note stated that Plaintiff
would not have any restrictions when she returned to work. UMF 105.) Plaintiff’s leave was later extended to March
23, 2018. (UMF 107.)
On March 8, 2018, the President of PCC, Rajen
Vurdien, sent a letter to the Board of Trustees (the “Board”) recommending that
Plaintiff not be offered tenure based on her below satisfactory ratings. (UMF 110, Exhibit 25.) Also on March 8, 2018, Plaintiff was provided
a letter that informed her of the recommendation that the Board decline to
renew her employment.
Plaintiff filed a complaint with the DFEH on March
7, 2018. (UMF 20.) Moving Defendants were unaware of Plaintiff’s
DFEH Complaint when the decision to deny Plaintiff tenure and reemployment was
made. (UMF 129.)
First
Cause of Action: Discrimination in Violation of FEHA
To
establish a claim for discrimination in violation of FEHA, the plaintiff must
generally prove that: (1) he or she was a member of a protected class; (2) he
or she was qualified for the position he or she sought or was performing
competently in the position he or she held; (3) he or she suffered an adverse
employment action, such as termination, demotion, or denial of an available
job; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 355.)
It
is undisputed that Plaintiff was denied tenure/re-employment while on FMLA
leave. Moving Defendants, however, have
met their burden to provide a legitimate, non-discriminatory reasons for the
adverse employment action—i.e., Plaintiff’s record of conflict with her
supervisors as reflected in her performance evaluations and her failure to
improve. The Opposition largely does not
dispute Moving Defendants’ evidence; rather, Plaintiff argues that Moving
Defendants’ actions after Plaintiff notified them of her disability are part of
a larger context of their retaliation against her for complaints she submitted
years earlier. [1] The Court notes that the Complaint only
alleges FEHA violations, and neither the allegations in the Complaint nor
Plaintiff’s evidence indicate that Plaintiff experienced harassment or
retaliation based on her membership in a protected class. The remainder of the wrongful actions
Plaintiff contends she experienced are not rooted in the allegations of the
Complaint and are insufficient to establish factual conflicts. (See Shugart v. Regents of University of
California (2011) 199 Cal.App.4th 499, 508.) Plaintiff’s subjective beliefs about Moving
Defendants’ motivations are likewise insufficient to raise factual
disputes. (See King v. United Parcel
Service, Inc. (2007) 152 Cal.App.4th 426, 433.)
Plaintiff’s
suggestion that the temporal proximity between her disclosing her disability
and her termination allows an inference of pretext is also insufficient to
raise triable issues of fact. Temporal
proximity alone is not sufficient to raise a triable issue as to pretext once
the employer has offered evidence of a legitimate, nondiscriminatory reason for
an adverse employment action. (Arteaga
v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353.) This is especially so where the employer
raised questions about the employee's performance before he disclosed
his symptoms, and the subsequent termination was based on those performance
issues. (Id.)
The
Court therefore GRANTS the Motion to the first cause of action.
Second
and Third Causes of Action: Reasonable Accommodation/Interactive Process
FEHA
prohibits an employer from failing to make reasonable accommodations for the
known physical and mental disability of an employee. (Gov. Code § 12940, subd. (m).) The elements of a failure to accommodate
claim are: (1) the plaintiff has a disability under 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. (Lui v. City and County of San Francisco
(2012) 211 Cal.App.4th 962, 971.) A “reasonable
accommodation” means a modification or adjustment to the workplace that enables
the employee to perform the essential functions of the job held or
desired. (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1010.) Two principles underlie a cause of action for
failure to provide a reasonable accommodation: (1) first, the employee must
request an accommodation; and (2) second, the parties must engage in an
interactive process regarding the requested accommodation and, if the process
fails, responsibility for the failure rests with the party who failed to
participate in good faith. (Gelfo v.
Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)
FEHA
imposes an additional duty on the employer to engage in a timely, good faith,
interactive process with the employee to determine effective reasonable
accommodations. (Wilson v. County of
Orange (2009) 169 Cal.App.4th 1185, 1193.)
An employer's failure to engage in this process is a separate FEHA
violation. (Id.)
The
evidence establishes that Moving Defendants granted Plaintiff the
accommodations that were supported by medical documentation and that
Plaintiff’s requests for extended leave to recover from surgery were
granted. Moving Defendants provided
evidence that they explained to Plaintiff why they denied the accommodation
requests that were not supported by medical documentation; Plaintiff does not
provide evidence that these accommodations were actually necessary or that a
medical provider corroborated her need for the accommodations. The Court therefore GRANTS the Motion to the
second and third causes of action.
Fourth
Cause of Action: Harassment in Violation of FEHA
Under
FEHA, it is unlawful for an employer to harass an employee because of their physical
disability. (Gov. Code § 12940, subd. (j)(1).) A harassment claim requires the following
elements: (1) the plaintiff belongs to a protected group; (2) plaintiff was
subjected to unwelcome harassment; (3) the harassment complained of was based
on protected status; (4) the harassment complained of was sufficiently
pervasive to alter the conditions of employment and create an intimidating,
hostile or offensive work environment; and (5) defendants are liable for the
harassment. (Thompson v. City of Monrovia
(2010) 186 Cal.App.4th 860, 876.)
In
determining what constitutes sufficiently pervasive harassment, courts have
held that acts of harassment cannot be occasionally, isolated, sporadic, or
trivial, rather the plaintiff must show a concerted pattern of harassment of a
repeated, routine or a generalized nature.
(Hope v. California Youth
Authority (2005) 134 Cal.App.4th 577, 588.)
The 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 the plaintiff was offended. (Id.)
To determine harassment, a court looks at factors such as: (1) the
frequency of the discriminatory conduct; (2) its severity; (3) whether it is
physically threatening or humiliating, or a mere offensive utterance; and (4)
whether it unreasonably interferes with an employee’s work performance. (Harris
v. Forklift Systems, Inc. (1993) 510 U.S. 17, 23.)
The
Court finds that Moving Defendants have met their burden to show that they did
not harass Plaintiff based on her disability.
As noted above, the Opposition largely argues that Plaintiff experienced
harassment based on her earlier complaints that are not based on alleged FEHA
violations, which are not relevant to her FEHA harassment claim. The Court therefore GRANTS the Motion to the
fourth cause of action.
Fifth
Cause of Action: Retaliation
FEHA
makes it unlawful for an employer to retaliate against an employee who has
opposed any discriminatory action or¿who has filed a complaint, testified, or
assisted in a FEHA proceeding. (George
v. California Unemployment Ins. Appeals Bd.¿(2009) 179 Cal.App.4th 1475,
1489.) As a general rule, close temporal
proximity is sufficient to establish a prima facie¿causal¿connection¿between
protected activity and adverse employment action. (Arteaga v. Brink's, Inc.¿(2008)
163¿Cal.App.4th¿327, 334-35.) It is
difficult to resolve claims of retaliation on summary judgment, where the court
draws all reasonable inferences in favor of the party opposing such a
motion. (Nazir v. United Airlines,
Inc.¿(2009) 178 Cal.App.4th 243, 286.)
In
order to establish a prima facie case of retaliation under FEHA, a plaintiff
must show that: (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. (Yanowitz¿v.¿L'Oreal¿USA, Inc.¿(2005)
36 Cal.4th 1028, 1042.)¿ Once an employee establishes a prima facie case,
the employer is required to offer a legitimate, nonretaliatory reason for the
adverse employment action. (Id.) If the employer produces a legitimate reason
for the adverse employment action, the presumption of retaliation drops out of
the picture, and the burden shifts back to the employee to prove intentional
retaliation.
Moving
Defendants have met their burden to show that they did not retaliate against
Plaintiff for engaging in protected activities under FEHA. Plaintiff’s arguments largely concern
purported violations of other statutes.
The Court therefore GRANTS the Motion to the fifth cause of action.
Sixth
Cause of Action: Failure to Prevent Discrimination and Harassment under FEHA
It is an unlawful employment
practice for 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. (Gov. Code § 12940, subd.
(k).) To establish this claim, a
plaintiff must establish the defendant’s legal duty of care, breach of duty,
legal causation, and damages to the plaintiff. (See Trujillo v. North County
Transit District (1998) 63 Cal.App.4th 280, 286-87.)
Because Moving Defendants have met
their burden to show that they did not discriminate against Plaintiff in
violation of FEHA and Plaintiff has not presented evidence to raise factual
disputes, the Court GRANTS the Motion to the sixth cause of action.
Seventh
Cause of Action: Intentional Infliction of Emotional Distress
To
state a claim for intentional infliction of emotional distress, a plaintiff
must allege: (1) the defendant’s extreme and outrageous behavior with the
intention of causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff suffered severe emotional distress; and
(3) the defendant’s extreme and outrageous conduct was the actual and proximate
cause of the severe emotional distress.
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Conduct is considered extreme and outrageous
when it is so extreme as to exceed all bounds of that usually tolerated in a
civilized community. (Id.) A claim for emotional distress arising out of
employment is not barred where the distress is engendered by an employer’s
illegal discrimination practices. (Nazir
v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 288.)
The
Tort Claims Act immunizes public entities from tort liability unless liability
is authorized by statute. (See
Gov. Code § 815, subds. (a)-(b); K.M. Grossmont Union High School District (2022)
84 Cal.App.5th 717, 756.) Where a public
entity is under a mandatory duty imposed by an enactment that is designed to
protect against the risk of a particular kind of injury, the public entity is
liable for an injury of that kind proximately caused by its failure to
discharge the duty unless the public entity establishes that it exercised
reasonable diligence to discharge the duty. (Gov. Code § 815.6.) A public entity is liable for injury
proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from
this section, have given rise to a cause of action against that employee or his
personal representative. (Gov. Code §
815.2, subd. (a).)
Under
Government Code section 950.2, except as provided in Section 950.4, a plaintiff
alleging a cause of action against a public employee or former public employee
for injury resulting from an act or omission in the scope of his employment as
a public employee must comply with the Government Claims Act as a prerequisite
for maintaining the action against the employee. (Gov. Code § 950.2.) This section is applicable even though the
public entity is immune from liability for the injury. (Id.)
An employee acts within “the scope of his employment” when he is engaged
in work he was employed to perform or when an act is incident to his duty and
was performed for the benefit of his employer and not to serve his own
purpose. (Fowler v. Howell (1996)
42 Cal.App.4th 1746, 1750-51.) The
proper inquiry is not whether the wrongful act itself was authorized but
whether it was committed in the course of a series of acts of the employee
which were authorized by the employer. (Id.
at 1751.) Courts view “scope of employment” broadly to
include willful and malicious torts as well as negligence. (Id.)
The
intentional infliction of emotional distress claim is rooted in the alleged
FEHA violations. (See Complaint ¶
67.) Based on the foregoing, Plaintiff
has not raised any triable issues of fact as to whether Moving Defendants
violated FEHA. Moreover, the Complaint
does not allege an alternative basis for tort liability of a public entity or
public employee. The Court therefore
GRANTS the Motion to the seventh cause of action.
Moving party is ordered to give notice of this ruling.
In consideration
of the current COVID-19 pandemic situation, the Court strongly encourages
that appearances on all proceedings, including this one, be made by
LACourtConnect if the parties do not submit on the tentative. If
you instead intend to make an appearance in person at Court on this matter, you
must send an email by 2 p.m. on the last Court day before the scheduled date of
the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in
person. The Court will then inform you by close of business that day
of the time your hearing will be held. The time set for the hearing may be at
any time during that scheduled hearing day, or it may be necessary to schedule
the hearing for another date if the Court is unable to accommodate all personal
appearances set on that date. This rule is necessary to ensure that
adequate precautions can be taken for proper social distancing.
Parties
who intend to submit on this tentative must send an email to the Court at
SMC_DEPT56@lacourt.org as directed by the instructions provided on the court
website at www.lacourt.org. If the
department does not receive an email and there are no appearances at the
hearing, the motion will be placed off calendar.
Dated this 29th day of March 2023
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Hon. Holly J.
Fujie Judge of the
Superior Court |
[1] The Court additionally notes that
the Opposition does not argue that Plaintiff’s negative evaluations were
motivated by an improper motive based on Plaintiff’s disability.