Judge Holly J. Fujie, Case 19STCV07759 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.

MOVING PARTY: Defendants Pasadena Area Community College District (“PCC”) and Terry Giugni (“Giugni”) (collectively, “Moving Defendants”)

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

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.)

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.)

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.)

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.)

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.

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.

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.

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.

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.

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.