Judge Holly J. Fujie, Case Number: 21STCV09480, Date: 2025-04-23 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: Defendant County of Los Angeles (“County of LA” or “the County”)

This action arises out of an employment relationship. On March 10, 2021, Plaintiff initiated this action against County of LA, Kenneth Mitchell (“Mitchell”), Clemmie Murdock and Does 1 through 30 (collectively, “Defendants”). The operative Second Amended Complaint (“SAC”) alleges causes of action for: (1) Discrimination on the Basis of Disability; (2) Discrimination on the Basis of Race; (3) Work Environment Harassment; (4) Retaliation [Gov. Code, § 12940]; (5) Failure to Prevent Discrimination, Harassment and Retaliation; (6) Retaliation [Labor Code, § 1102.5]; (7) Failure to Engage in Good Faith Interactive Process; and (8) Failure to Provide Reasonable Accommodation.

On November 3, 2023, County of LA filed the instant motion for summary judgment, or in the alternative, summary adjudication (the “Motion”). On April 9, 2025, Plaintiff filed an opposition (the “Opposition”). No reply has been filed.

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure (“CCP”), § 437c, subd. (c).)

The moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Id.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“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 the cause of action or a defense thereto.” (CCP § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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 the cause of action.”¿(Id.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

First Cause of Action, Discrimination on the Basis of Disability and Second Cause of Action, Discrimination on the Basis of Race

Under Gov. Code, section 12940 subdivision (a), it is generally an unlawful employment practice for an employer to bar or discharge a person from employment, or to discriminate against a person in compensation, terms, conditions, or privileges of employment, on the basis of the person’s race, color or national origin, or because of the person’s physical or mental disability or medical condition.

Under California law, a plaintiff in a Fair Employment and Housing Act (“FEHA”) discrimination case initially raises a presumption of discrimination by presenting a prima facie case. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111–112.) The prima facie case requires evidence that “(1) [the plaintiff] was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355 [internal citation omitted].)

Once a plaintiff demonstrates their prima facie case, they set off “a unique burden-shifting inquiry” first articulated in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, which the California Supreme Court has incorporated into our state’s law. (Guz, supra, (2000) 24 Cal.4th at p. 355)

The McDonnell-Douglas test proceeds in three steps. (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 31.) The first is the prima facie case noted above. (Id.)

“Under the second [step], ‘the employer may dispel the presumption [of discrimination] merely by articulating a legitimate, nondiscriminatory reason for the challenged action. At that point [plaintiff’s] presumption disappears.’” (Zamora, supra, 71 Cal.App.5th at p. 32. [citations omitted].)

“Under the third step of the test, the ‘plaintiff must ... have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.’” (Id. [internal citation omitted].)

The County of LA argues that Plaintiff cannot establish her prima facie case because Plaintiff was not performing competently in her position, did not suffer an adverse employment action and because Plaintiff cannot show that the employment actions were based upon Plaintiff’s disability or race.

The County carries its initial burden to negate Plaintiff’s claim. The County presents evidence that Plaintiff’s position required her to remain on duty as a holdover when necessary, and that she was reprimanded because of violating direct orders to do so. (Mot., Ex. B, Murdock Decl., p. 5:7-21; Ex. D, Atkins Decl., p. 3:3-9.) The County presents evidence that employees of other races and ethnicities in the same position as Plaintiff received the same reprimand when they refused to remain as holdovers. (Mot., Ex. B, Murdock Decl., p. 5:22-25; Ex. D, Atkins Decl., p. 3:10-13.) The County also presents evidence of complaints from Plaintiff’s coworkers, including African-American coworkers, about the treatment by supervisors and the holdovers. (Mot., Ex. 20, Vasquez Depo., p. 131:16-18; Ex. 21 [text messages between Plaintiff and co-workers].) Plaintiff asserts that she was repeatedly assigned to Unit Q, a more difficult assignment, because she was Hispanic; however, the County presents evidence that employees of other races and ethnicities were also assigned to Unit Q. (Mot., Ex. B, Murdock Decl. p. 24:18-20.) The County further argues that the other alleged adverse employment actions—being a ‘floater,’ not being assigned to a building and not receiving a medal—are general managerial decisions and do not rise to the level of actionable adverse employment actions. (Mot., pp. 14:23-15:4.)

Thus, the County of LA has articulated a legitimate, nondiscriminatory reason for the challenged actions and the burden now shifts to Plaintiff to show that the proffered reason is merely pretext for discrimination, or to offer other evidence of discriminatory motive.

In the Opposition, Plaintiff presents evidence that she suffered a workplace injury on July 29, 2019 and was given work restrictions, but on August 2, 2019 and on March 16, 2020 she was assigned holdover shifts that violated her work restrictions. (AUMF, Nos. 6-14, 51-52.) Plaintiff presents evidence that she was given a Letter of Warning for not completing the March 16, 2020 holdover shift (AUMF, Nos. 51-52.) Plaintiff presents evidence that she was assigned as a ‘floater’ rather than given an assigned building, was not given proper COVID-19 equipment and was made to work in hazardous buildings. (AUMF Nos. 78-81, 88) Plaintiff asserts that these actions demonstrate “differential treatment due to her restrictions and race, since all staff were given assigned buildings.” (Mot., p. 17:18-20.) Plaintiff testifies that African-American employees rarely received holdover shifts or write-ups and received easier assignments. (AUMF, Nos. 28-29.)

Plaintiff has not met her burden to rebut the County’s proffered legitimate non-discriminatory reasons for the employment actions. Plaintiff contends that she suffered adverse employment actions by being reprimanded for refusing holdover shifts, being assigned as a floater without an assigned building and being overlooked for a medal of valor. She asserts that the reprimands and alternate assignments are circumstances that suggest discriminatory motive. Plaintiff’s circular reasoning is not sufficient to create a triable issue of fact.

To the extent Plaintiff has offered evidence of an adverse employment action and discriminatory motive, her claims remain deficient because she has not presented any evidence indicating a causal connection. Plaintiff asserts that being reprimanded for refusing holdover shifts which violated her medical restrictions constitutes an adverse employment action based on her disability. Separately, she contends that Hispanic employees, including herself, were given less desirable assignments, suggesting a racially discriminatory motive. However, a racially discriminatory motive cannot support a claim for an adverse employment action based on physical disability and vice versa. The law requires a causal connection between the alleged discriminatory motive and the specific adverse action claimed.

Thus, Plaintiff fails to create a triable issue of material fact regarding her first or second causes of action for discrimination.

Employers may not harass an employee because of race, religious creed, color, national origin, ancestry, physical¿disability, mental¿disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Gov. Code § 12940,¿subd. (j)(1).)

To establish a prima facie case for¿harassment, a plaintiff must show that (1) he was a member of a protected class; (2) he was subjected to unwelcome¿harassment; (3) the¿harassment¿was based on¿a protected characteristic; and (4) the¿harassment¿unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment. (Thompson v. City of Monrovia¿(2010) 186 Cal.App.4th 860, 876.)¿¿“The law prohibiting harassment is violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the¿conditions of the victim’s employment and create an abusive working environment.” (Nazir v. United Airlines, Inc.¿(2009) 178 Cal.App.4th 243, 263 [internal quotations¿and brackets¿omitted].)

A single incident of harassment may be enough to constitute a hostile work environment if it “unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”¿ (Gov. Code, § 12923, subd. (b).)¿ The court shall use the totality of the circumstances to determine whether there exists a hostile work environment.¿ (Gov. Code, § 12923, subd. (c).)¿ Where the evidence establishes that Plaintiff did not endure conduct "so severe and pervasive as to alter the conditions of his employment," summary judgement is appropriate. (McCoy v. Pacific Maritime Association (2013) 216 Cal. App. 4th 283, 294.)

The County argues that Plaintiff’s single alleged incident of harassment is not sufficient to constitute a hostile work environment. Plaintiff testifies about an incident with Mitchell, a supervisor, from September 25, 2020: “For instance, that day, he would tell me, I didn't fucking tell you to go to Unit C; I told you to go to PV. Like, that. But in a real harsh tone. And just curse at me. Like, I'm a grown woman. You don't talk to me -- especially being peace officers, and you're supposed to be my superior and talking to me like that when, you know, he doesn't speak to people right. He mumbles under his breath. But even that, when you check in, he's always like, ah, go. Like, since Day One, he's always dismissed me.” (Mot., Ex. 20, Vasquez Depo., pp. 172:5-13, 173:3-13.) Plaintiff testifies that Mitchell was generally disrespectful, rude, unprofessional and belittling. (AUMF, Nos. 82, 84-85.)

This does not arise to the level of actionable harassment. Plaintiff has not shown that Mitchell’s alleged harassment was based on Plaintiff’s race or disability. Further, Plaintiff presents no evidence or description of any allegedly harassing conduct beyond the single incident described above. (AUMF, Nos. 84-85, Ex. K.) Plaintiff must show harassment of a repeated, routine or generalized nature, especially when harassing conduct is not severe. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.)

Thus, Plaintiff fails to create a triable issue of material fact regarding her third cause of action.

Under FEHA, it is unlawful “[f]or any employer... to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] ... .” (Gov. Code § 12940 subd. (h).)

Similarly to a FEHA discrimination claim, to survive summary judgment on a FEHA retaliation claim a plaintiff must show (1) they engaged in protected activity under the FEHA, (2) defendant subjected them to an adverse employment action, and (3) there is a causal link between the two. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If a plaintiff can establish a prima facie case, the burden will shift to the defendant to articulate a legitimate, nondiscriminatory reason for its actions, after which the plaintiff must raise a triable issue of pretext. (Id.)

The only substantive distinction between a FEHA discrimination and a FEHA retaliation cause of action is the first element. Whereas discrimination requires membership in a protected class, retaliation requires a person to “oppose[ ] any practices forbidden [by the FEHA].” (Gov. Code, § 12940 subd. (h).) The same facts often implicate both claims. (See e.g. Yanowitz, supra, 36 Cal.4th at pp. 1042-1051.)

Plaintiff presents evidence that she requested accommodation for her injury on August 1, 2019, and filed a grievance on August 4, 2019, after being given a holdover assignment that violated her 8-hour work accommodation. (AUMF, No. 24 [Ex. B.]) Plaintiff presents evidence that, on June 23, 2020, and on July 17, 2020, she filed additional grievances concerning two shift assignments that violated her accommodation. (AUMF, Nos. 56-60, 72-76 [Exs., H, J].) Lastly, Plaintiff presents evidence that she filed a grievance against Mitchell on September 27, 2020, regarding the incident on September 25, 2020. (AUMF, Nos. 83-84 [Ex. K.].)

Plaintiff asserts that there is a causal link between the protected activity because she “experienced differential treatment based on her race” and because she “experienced retaliatory animus for her injury.” (Opp., pp. 21:6-10.) Plaintiff presents evidence that she “was not accommodated for about a week in the beginning of August [2019] and that she was placed off work for 20 days in January 2020 due to the unavailability of assignments within the scope of her accommodation. (AUMF, Nos. 26, 41.) Plaintiff fails to present evidence, even circumstantially, of a causal link between filing the grievances and the alleged retaliatory employment decisions. Plaintiff submitted a complaint on August 4 that her accommodation was not being honored and was then placed on modified work duty to accommodate her on August 8. (AUMF, No. 26.) Further, Plaintiff presents no evidence that her January 2020 assignment was retaliatory, as the related grievances were not filed until June, July and September of 2020.

Thus, Plaintiff fails to create a triable issue of material fact regarding her fourth cause of action.

Fifth Cause of Action, Failure to Prevent Discrimination, Harassment and Retaliation

Gov. Code section 12940 subdivision (k) provides that it is an unlawful employment practice “[f]or 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.” (Govt. Code, § 12940(k).) Section 12940(k) has been extended to include a failure to prevent retaliation. (See CACI, No. 2527; see also Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.)

As Plaintiff failed to create a triable issue of material fact regarding her discrimination, harassment or retaliation claims, her derivative claim for failure to prevent fails as well.

As relevant, Labor Code section 1102.5 subdivision (b) states: “An employer ... shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, ... to a person with authority over the employee ... , if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute ... .”

The elements of a prima facie case for whistleblower retaliation are identical to the elements of a FEHA claim: “[t]o establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer's action.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453 [observing the similarity between Labor Code and FEHA retaliation elements].)

In a Labor Code claim, however, the employee’s prima facie case shifts a much heavier burden to the employer than in a FEHA claim. The McDonnell Douglas test for FEHA discrimination and retaliation claims has been preempted by Labor Code section 1102.6, which reads: “In a civil action ... brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”

As summarized by our Supreme Court: “Section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case: First, it must be ‘demonstrated by a preponderance of the evidence’ that the employee's protected whistleblowing was a ‘contributing factor’ to an adverse employment action. [Citation.] Then, once the employee has made that necessary threshold showing, the employer bears ‘the burden of proof to demonstrate by clear and convincing evidence’ that the alleged adverse employment action would have occurred ‘for legitimate, independent reasons’ even if the employee had not engaged in protected whistleblowing activities.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 713.)

For the same reasons as discussed above in relation to Plaintiff’s FEHA retaliation claim, Plaintiff’s Labor Code retaliation claim does not survive summary adjudication.

Seventh and Eighth Causes of Action, Failure to Engage in Good Faith Interactive Process and Failure to Provide Reasonable Accommodation

Gov. Code section 12940, subdivision (m) makes it unlawful for “an employer . . . to fail to make reasonable accommodation for the known . . . disability of an . . . employee.” In addition, FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .” (Gov. Code § 12940, subd. (n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)

“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. (Scotch v. Art Inst. of Calif.-Orange County, Inc.¿(2009) 173 Cal.App.4th 986, 1009-1010.)

“[T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that “1) reasonable accommodation was offered and refused, 2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which disabled employee was capable of performing with or without accommodation, or 3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith. [Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442.)

The County argues that there is no evidence that it failed to properly interact with Plaintiff to determine reasonable accommodation or that it failed to provide her with said accommodation. The County presents evidence that it engaged in at least 15 interactive process meetings with Plaintiff. (Mot., Ex. A, Sims Decl., p. 7:27-28.) The County presents evidence of multiple interactive process meetings and evidence that Plaintiff was repeatedly accommodated with light duty positions and home accommodation. (Mot., Ex. A, Sims Decl., pp. 4:15-9:8; Exs. 2-4, 6-7, 10, 12, 14-15.) The County argues that the two incidents in which Plaintiff alleges she was not properly accommodated were because Plaintiff had not properly engaged in the process.

In February 2020 during an interactive process meeting, Plaintiff was informed that further clarification of her accommodation was needed and that she may be held over until the clarification forms were completed. (Mot., Ex. A, Sims Decl., pp. 5:20-6:4; Exs. 6, 7 [2/02/2020 and 2/07/2020 IPMs].) In March 2020, the need arose to hold her over, Plaintiff refused and was issued a Letter of Warning. (Mot., Ex. B, Murdock Decl., p. 6:8-19.) After receiving the warning, Plaintiff obtained a clarified note and was immediately accommodated. (Mot., Ex. B, Murdock Decl., p. 6:8-19.) The County also argues that Plaintiff was not immediately accommodated when she was first injured in July 2019 because she initially presented her medical note to supervisors who were not authorized to accept it. (Mot., Ex. 20, Vasquez Depo., pp. 35:5-18, 37:13-24.) The County asserts that once the note was given to the correct party, Plaintiff was accommodated. (Mot., Ex. A, Sims Decl., p. 5:2-3.)

In the Opposition, Plaintiff argues that the County failed to interact when it disregarded Plaintiff’s work restrictions, called her injury ‘irrelevant,’ ignored her request for a transfer and “held an ‘interactive process meeting where no discussion occurred explaining what Plaintiff needed to do to be accommodated.” (Opp., p. 23:17-23.) Plaintiff does not cite any evidence in support of this argument. Plaintiff further argues that the County failed to accommodate her because the County never offered her modified work, was only placed on leave after filing a grievance and her work restrictions were disregarded. (Opp., p. 24:10-14.) Again, Plaintiff does not cite any evidence in support of these arguments. Further, the County has presented ample evidence that directly contradicts these assertions.

Thus, Plaintiff fails to create a triable issue of material fact regarding her seventh or eighth causes of action.

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