Judge Holly J. Fujie, Case Number: 21STCV11819, Date: 2024-02-06 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 City of Los Angeles, acting by and through its Department of Water and Power (“LADWP”) and Kevin Rodriguez (“Rodriguez”) (collectively, “Moving Defendants”)

On March 29, 2021, Plaintiff filed a complaint (the “Complaint”) alleging: (1) unlawful harassment under the Fair Employment and Housing Act (“FEHA”); (2) FEHA race discrimination; (3) FEHA disability/medical condition discrimination; (4) FEHA age discrimination; and (5) unlawful retaliation in violation of FEHA.

In relevant part, the Complaint alleges: Plaintiff, a 59-year-old African American, began working for Moving Defendants in 2003. (Complaint ¶ 1.)

After Plaintiff complained about being singled out for hazardous duty and denied protective equipment in 2017, Rodriguez, who worked as Plaintiff’s supervisor, engaged in behavior that negatively impacted Plaintiff’s employment. (See Complaint ¶¶ 3, 5.) After Plaintiff made his complaint in 2017, Rodriguez issued Plaintiff an official reprimand and instructed his assistant Richard Gonzalez (“Gonzalez”) to harass Plaintiff. (Complaint ¶ 6.)^{^[1]}

At some point in late June or early July of 2017, Plaintiff was approved for sick leave through July 18, 2017 by his physician. (Complaint ¶ 6.) Plaintiff’s inquiries about how July 4, 2017 would be classified for payroll purposes were ignored. (See Complaint ¶ 6.) Rodriguez prevented Plaintiff’s absence from being properly classified by barring Gonzalez from approving a Time Roll Correction Authority (“TRCA”) form to reclassify Plaintiff’s time off work. (See Complaint ¶¶ 6-7.)

In August 2017, Plaintiff was placed on extended medical leave due to a stomach cancer diagnosis, and he did not return to work until March 25, 2019. (Complaint ¶¶ 7-8.) During Plaintiff’s medical leave, Rodriguez and Gonzalez continued to refuse approving a TRCA form, which delayed Plaintiff’s receipt of disability benefits and shorted his pay upon his 2019 return to work. (See Complaint ¶ 9.)

Rodriguez again refused to approve Plaintiff’s TRCA Form in 2019. (See Complaint ¶¶ 10-11.) In 2019, Plaintiff learned that his pay was being docked $150 per paycheck due to the misclassification of his July 2017 leave and that he was being denied a longevity premium of 2.5 percent. (Complaint ¶ 11.)

When Plaintiff resumed working, Rodriguez continued to belittle him and refused to issue Plaintiff a truck with crane capabilities, which aggravated Plaintiff’s work conditions. (Complaint ¶ 13.) Rodriguez finally assigned Plaintiff with a truck with a crane on March 17, 2020, after Plaintiff complained to the offices of the Equal Opportunities Commission. (Complaint ¶ 14.) Around this time, Rodriguez removed Plaintiff from LADWP’s call out list, which limited Plaintiff’s ability to perform extra work that would entitle him to overtime pay. (See id.) During the COVID-19 pandemic, Rodriguez also targeted Plaintiff on the basis of his race by soliciting information about Plaintiff’s medical history. (See Complaint ¶ 15.)

Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) on March 29, 2020. (Complaint ¶ 17.)

On November 7, 2023, Moving Defendants filed a motion for summary judgment/adjudication to the claims alleged in the Complaint on the grounds that Plaintiff cannot establish a prima facie case, LADWP had legitimate, non-discriminatory justifications for its actions, and the first, second, third, and fifth causes of action are based on time-barred conduct that occurred before January 1, 2019.

Moving Defendants’ Request for Judicial Notice is GRANTED as to the truth of the documents and their legal effect, but not to the truth of the matters stated therein. (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

Moving Defendants’ objections to the Declaration of Gabriel Doyle (“Doyle Decl.”) are SUSTAINED in their entirety.

Moving Defendants’ objections to the Declaration of Anthony Johnson (“Johnson Decl.”) numbers 1, 3, 4, 6, 8-12, 15, 22, 24, 30-31, 34, 36-38, 47-51, 66-67, 77081, 85, 89-90, 103-106, and 108-109 are SUSTAINED. Moving Defendants’ objections to the Johnson Declaration numbers 2, 5, 7, 13, 14, 16, 17-23, 25-29, 32-33, 35, 39-46, 52-65, 68-76, 82-84, 86088, 91-102, and 107 are OVERRULED.

Moving Defendants’ objections to the Declaration of Robert Marin (“Marin Decl.”) numbers 2-9, 11-23, 35-33, 36-39, 41-47, 49, and 52-54 are SUSTAINED. Moving Defendants’ objections to the Marin Declaration numbers 1, 10, 24, 34-35, 48, and 50-51 are OVERRULED.

Moving Defendants’ objections to the Declaration of Matthew Montgomery (“Montgomery Decl.”) numbers 7, 10-14, 17-18, 20, 23-30, and 33 are SUSTAINED. Moving Defendants’ objections to the Montgomery Declaration numbers 1-6, 8-9, 15-16, 19, 21-22, and 31-32 are OVERRULED.

Moving Defendants’ objections to the Declaration of Helena S. Wise (“Wise Decl.”) are OVERRULED.

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.)

In support of the Motion, Moving Defendants present evidence that Plaintiff was born in 1961 and was appointed to his current position as a plumber on September 23, 2013. (See Separate Statement of Undisputed Material Facts (“UMF”) 2-3.)

In June 2017, at a safety meeting, Plaintiff stated that he would contact CalOSHA about personal protective equipment for himself and colleagues assigned to work with hazardous materials. (UMF 28.) Plaintiff has never been suspended, received a Notice to Correct Deficiencies, or received an oral warning that has been documented in his personnel file. (See UMF 31.) On September 15, 2017 and October 10, 2017, Plaintiff filed complaints with CalOSHA and the Department of Industrial Relations regarding safety conditions at work sites and alleging that he was retaliated against for raising concerns about unsafe work conditions. (See UMF 32-33.)

From July 3, 2017 through July 17, 2017, Plaintiff was not at work pursuant to a doctor’s note. (See UMF 35.) Plaintiff intended to utilize LADWP’s “2 for 10” policy during his time off work, but his supervisors did not respond to his inquiries about the impact the July 4th holiday would have on his leave. (See UMF 36-41.) After Plaintiff returned to work on July 18, 2017, Plaintiff spoke to his supervisor Michael Nering (“Nering”) and requested approval for a TRCA to convert one of his days off from a sick day to a vacation day. (See UMF 44-45.) From July through September 2017, LADWP sent Plaintiff four letters to inform him that his disability claim could not be processed until he provided certain documentation. (UMF 47.)

Plaintiff began a second disability leave due to stomach cancer on August 9, 2017, and he did not return to work until March 25, 2019. (UMF 48.) Plaintiff’s absences between August 9, 2017 through August 17, 2017 were incorrectly recorded as sick time. (UMF 50.) On October 19, 2017, Plaintiff was notified that his disability claim for July 17, 2017 was closed due to his failure to provide proper medical certification, and that he did not qualify for disability benefits between August 9, 2017 through August 22, 2017. (UMF 51.) A TRCA was processed on September 13, 2017 to convert Plaintiff’s absences between August 8, 2017 and August 17, 2017 from sick to disability leave; as result, Plaintiff was required to reimburse LADWP for salary overpayment. (See UMF 52.) Pay deductions were authorized for the pay periods spanning from March 31, 2019 through December 9, 2019. (UMF 53.)

When Plaintiff returned to work on light duty in 2019, Plaintiff was assigned a truck that did not have crane capabilities. (UMF 81.) The tasks Plaintiff was assigned to perform did not require a crane. (Id.) A younger employee was assigned a truck with a crane. (UMF 78.) Plaintiff never asked for a newer truck, and other coworkers likewise worked with trucks that lacked crane capabilities. (See UMF 79-80.)

Beginning on March 25, 2020, Plaintiff has worked remotely due to his immunocompromised status. (UMF 83.) Plaintiff filed a complaint with the DFEH on March 29, 2020. (UMF 90.) LADWP’s Equal Employment Opportunity Services has no record of internal complaints of discrimination, harassment, or retaliation filed by Plaintiff. (UMF 109.)

As of 2020, the period to file an administrative charge that is the prerequisite for a civil lawsuit for FEHA violations is three years. (A.B. 9, 2019 Cal Stats. Ch. 709, Sec. 3; Pollock v. Tri-Modal Distribution Servs., Inc., (2021) 11 Cal.5th 918, 931.) The three-year limitations period does not apply to claims that lapsed under the previous one-year limitations period. (See A.B.9, 2019 Cal Stats. Ch. 709, Sec. 3.)

A DFEH complaint is timely under the continuing violations exception to the deadline for filing an administrative complaint if discriminatory practices occurring outside the limitations period continued into that period. (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 720-21.) Continuing violations, which toll the statute of limitations, exist where the employer’s acts: (1) were similar; (2) occurred with reasonable frequency; and (3) have not become permanent, such that it would be clear to a reasonable employee that further efforts at informal conciliation to obtain reasonable accommodation or end harassment, would be futile. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

Under FEHA, it is unlawful for an employer to harass an employee because of their race, age, or 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.)

Harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee. (Roby v. McKesson (2009) 47 Cal.4th 686, 706.) Moreover, harassing conduct takes place outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869.)

Harassment is distinguishable from discrimination under FEHA. (Id.) Discrimination 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. (Id.) Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. (Id.) Making personnel decisions is an inherent and unavoidable part of the supervisory function. (Id.) Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties. (Id. at 860-70.)

The Complaint’s harassment claim is based on an amalgamation of the allegations underpinning the discrimination and retaliation claims spanning from 2017 through 2020. (See Complaint ¶ 19.)

As a preliminary matter, the Court notes that the allegations both in the Complaint and the DFEH state that Rodriguez’s harassment campaign was affecting Plaintiff physically and psychologically before he took medical leave in July 2017. (See Complaint ¶ 8; RJN, Exhibit 1.) Without deciding the issue of whether Plaintiff’s pre-2019 allegations may be considered as part of a continuing violation, the Court finds that there no triable issues of material fact regarding the harassment claim. The vast majority of the evidence regarding Rodriguez’s alleged harassment relates to personnel decisions. Plaintiff has not provided evidence to provide a factual dispute over whether any of Moving Defendants’ actions vis a vis the conditions of Plaintiff’s employment constitute severe and pervasive harassment based on his membership in a protected class. Plaintiff’s frustration about his disability payroll classification, the personnel decisions that were made once he returned from disability, and the current regulations governing his current remote work performance are insufficient to raise a triable issue of material fact. (See Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 737-38.)[2] The Court therefore GRANTS the Motion with respect to the first cause of action.

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.)

Although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) Thus, in determining whether there was an adverse employment action to show discrimination or retaliation, courts look at the totality of circumstances and not just at each isolated act. (Id. at 1055.) Adverse employment actions can include demotions, reassignments, refusals to promote, unwarranted evaluations, tolerating harassment by coworkers, reprimands and suspensions. (Id. at 1061.) Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of FEHA. (Id. at 1054-55.)

A legitimate nondiscriminatory justification for an adverse employment action is one that is facially unrelated to prohibited bias and which, if true, would preclude a finding of discrimination. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358.) Once a defendant employer articulates such a reason, the burden shifts to the plaintiff employee to establish that the defendant intentionally discriminated against her. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.) The plaintiff must offer substantial evidence that the employer’s stated non-discriminatory 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. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) A plaintiff’s suspicions of improper motives primarily based on conjecture and speculation are insufficient to raise a triable issue of fact on this issue. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.)

The second cause of action is based on Moving Defendants’ failure to properly remit Plaintiff’s disability payments and the denial of overtime opportunities. (See Complaint ¶¶ 29-30.)

Moving Defendants have met their burden to show nondiscriminatory justifications for the alleged adverse employment actions: (1) official internal policy regarding reclassifying sick leave; and (2) the distance between Plaintiff’s residence compared to his coworkers which affects his suitability for being selected to perform emergency plumbing jobs. (See UMF 54, 74-75.)

Plaintiff presents speculative anecdotal evidence of a white colleague who was allowed to reclassify his sick time by filling out a TRCA form before he retired in 2018. (See UMF 56.) This speculative evidence is insufficient to raise a question of fact about the legitimacy of LADWP’s internal policy. (See Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009.) Nor does this evidence raise a factual dispute that Moving Defendants were motivated by racial bias. Plaintiff’s evidence regarding overtime opportunities similarly fails to raise factual issues.

In addition, Plaintiff argues that he has suffered adverse employment actions since he began telecommuting—by limiting his opportunities to be promoted, for example. (See Additional Material Fact “AMF”) 7-8.) The evidence and arguments about conduct that occurred after Plaintiff filed the DFEH complaint are outside the scope of the pleadings and are therefore not relevant to the Motion. (See Vulk v. State Farm General Insurance Company (2021) 69 Cal.App.5th 243, 255.)

The Court therefore GRANTS the Motion with respect to the second cause of action.

As with the racial discrimination claim, Plaintiff has not provided evidence to raise a factual dispute about Moving Defendants’ proffered nondiscriminatory justifications for processing of Plaintiff’s disability and sick leave, or for the accommodations that they made when Plaintiff returned to work. Plaintiff’s anecdotal evidence about younger colleagues, without anything further, is insufficient to indicate that LADWP’s nondiscriminatory justifications are pretext for discriminatory animus. As to the sufficiency of the truck he was equipped with upon his return to work in 2019, the Court notes that Plaintiff’s arguments seem to relate more to the sufficiency of his accommodations. Failure to provide reasonable accommodations is a distinct claim from disability discrimination that is not alleged in the Complaint. (See Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 970.)

The Court therefore GRANTS the Motion with respect to the third and fourth causes 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. (Id.)

Plaintiff has not presented evidence to raise a factual dispute over Moving Defendants’ knowledge of Plaintiff’s protected activity. Plaintiff presents evidence of a 2017 complaint he made regarding workplace safety; however, Plaintiff’s whistleblower complaints do not include facts that implicate the anti-discrimination provisions of FEHA. (See UMF 109 and response.) The Court therefore GRANTS the Motion with respect to the fifth cause of action.

As summary adjudication is granted as to each of Plaintiff’s five causes of action, the Court GRANTS Summary Judgment as to the entire 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 Complaint also alleges that Rodriguez’s discriminatory and retaliatory campaign was triggered in part by Plaintiff participating in coworkers’ complaints about sexual harassment perpetrated by Gonzalez. (See Complaint ¶ 5.)

[2] It appears undisputed that LADWP made errors calculating Plaintiff’s proper pay during his leave and the proper accounting of Plaintiff’s past wages remains ongoing.