Judge Holly J. Fujie, Case Number: 23STCV03575, Date: 2024-08-23 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.

This case stems from an employment relationship between the Plaintiff and the County. Plaintiff claims that she was suspended and later terminated by the County due to her non-compliance with the County's COVID-19 Vaccination Policy. She alleges that her termination was discriminatory and retaliatory. On February 17, 2023, Plaintiff filed a complaint (“Complaint”) against the County asserting the following causes of action: (1) Religious Discrimination (Gov. Code, § 12940 (a)); (2) Disability Discrimination (Gov. Code, § 12940(a)); (3) Retaliation (Gov. Code, § 12940(h)); (4) Failure to Effect Reasonable Accommodation (Gov. Code, § 12940(m)); and (5) Violation of the California Whistleblower Protection Act (Labor Code, § 1102.5(b)).

On May 6, 2024, the County filed the instant Motion for Summary Judgment, or in the Alternative, Summary Adjudication (the “Motion”). Plaintiff filed an opposition on August 9, 2024, and the County filed a reply on August 16, 2024.

1. Exhibit A: North Dakota Health, COVID-19 Vaccines & Fetal Cell Lines (Updated: 10/5/2021);

2. Exhibit B: Louisiana Department of Health, You Have Questions, We Have Answers: COVID-19 Vaccine FAQ (Updated: 12/21/2020); and

3. Exhibit C: County of Los Angeles, Los Angeles County by the numbers (Updated: June 2024).

(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonable indisputable accuracy. (Emphasis added).

Judicial notice is limited to matters which are indisputably true. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 76-761) [“judicial notice can be taken of matters not reasonably subject to dispute, but cannot be taken of matters shown to be reasonably subject to dispute.”].)

Plaintiff has neither shown that the facts contained in the documents are not reasonably subject to dispute, nor that the sources of the information are of indisputable accuracy. Thus, Plaintiff’s request for judicial notice is DENIED as to all documents.

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.) CCP Section 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

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(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 order to successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.) Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (Id. at 355.)

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.)

Finally, if the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Id.)

“When seeking summary judgment or summary adjudication in an employment discrimination case, the burdens established by the McDonnell Douglas framework are altered. The ‘employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ [Citation.]” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32.) “If the employer satisfies its initial burden, it will be entitled to summary [adjudication] unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.” (Zamora, supra, 71 Cal.App.5th at 32.) “ ‘A plaintiff's burden is ... to produce evidence that, taken as a whole, permits a rational inference that intentional discrimination was a substantial motivating factor in the employer's actions toward the plaintiff.’ [Citation.]” (Zamora, supra, 71 Cal.App.5th 1, 58.)

Here, by way of background, the County’s Board of Supervisors passed a resolution on August 10, 2021, whereby proof of vaccination against the COVID-19 virus would be required on the part of all County employees by October 1, 2021. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”] 1.) This was a County-wide policy which applied equally to every employee within the County of Los Angeles. (DSUMF 2.) The policy allowed for exemptions to the vaccination requirement based on a medical condition; or a sincerely held religious belief, practice, or observance that conflicts with receiving a COVID-19 vaccine. (DSUMF 4.) However, the policy stated, “Unvaccinated County workforce members may be required to undergo regular COVID-19 testing as a condition of continued employment.” County employees were also required to register their vaccination status in “Fulgent”. (DSUMF 5.) The policy stated that failure to comply with the policy may result in corrective action, up to and including discharge. (DSUMF 6.) There was no exemption or exception to the County’s testing and registration requirement. (DSUMF 7.)

On October 1, 2021, Plaintiff submitted a request for a religious exemption from the County’s COVID-19 vaccination policy based on her professed religious beliefs. (DSUMF 14.)

Plaintiff stated on her religious exemption request: “I have very sincere religious and moral objections to receiving any of the c shots that used aborted human fetal tissue, cell lines, genetic material in development, research, production, manufacturing, dispensing, testing, co-development, in part or in whole of unborn human children. The sin of murder (Mathew 5:21) via abortion, is a very grave mortal sin against God’s Commandment ‘Thou Shall Not Kill’ (Exodus 20:13, Deuteronomy 5:17).” (DSUMF No. 32.)

Although reasonable minds might differ as to whether Plaintiff’s objection to getting vaccinated was based on a sincerely held religious belief, Plaintiff cannot show that she was compelled or required to get vaccinated. To the contrary, the County’s policy allowed for exemptions to the vaccination requirement based on a medical condition or a sincerely held religious belief, practice or observance that conflicts with receiving a COVID-19 vaccine. (DSUMF No. 4.)

Moreover, Plaintiff cannot show that her objection to testing and registration requirements was similarly anchored on her religious belief. She stated she could not undergo a COVID-19 test because she did not have “symptoms of any kind,” “there was no need,” and she did not want to go “along with this idea that everybody is sick or everybody needs to worry about fear of death and dying,” because in her religion it is a “blessing to die in a state of grace with God,” and “nobody is going to live forever.” (DSUMF 37.) Thus, her statements demonstrate a purely secular reasoning for refusing to test; namely, she did not believe it was necessary.

Plaintiff also stated that registering in the Fulgent system violates her religious beliefs because registering in a “genetic testing tracking database” would “offend God.” (DSUMF 43.) She stated, “I’m not a slave to any company or any organization or any government . . . . [and] there was no purpose, no reason,” for having to register in Fulgent. (DSUMF 44.) She further stated, “there's no reason for the County or the government to force any person or a population of people into a system where they can track our medical health information or a genetic lineage that could be used.” (DSUMF 45.) These are purely secular reasons and Plaintiff cannot show that her objection was based on a sincerely held religious belief.

The County contends that Plaintiff’s termination was for a legitimate business reason independent of Plaintiff’s religious beliefs or disabilities. More specifically, Plaintiff was not terminated for failure to receive a COVID-19 vaccination; rather, she was terminated for failure to comply with the County’s requirements regarding COVID-19 testing and registration in the Fulgent system. (Motion, p. 20; DSUMF 28.)

The County has clearly stated legitimate reasons for its COVID-19 policy. Following the onset of the COVID-19 pandemic in March of 2020, the County’s Board of Supervisors passed a resolution on August 10, 2021, whereby proof of vaccination against the COVID-19 virus would be required on the part of all County employees by October 1, 2021. (DSUMF 1.) The policy stated: “It is the obligation of the County of Los Angeles (County) to provide a safe and secure workplace. Guidance provided by the federal Centers for Disease Control and Prevention (CDC), the California Department of Public Health (CDPH), the Los Angeles County Department of Public Health (DPH), and other local health authorities related to the SARS-CoV-2 virus (COVID-19) uniformly cite vaccination as the most effective way to prevent transmission and limit COVID-19 hospitalizations and deaths. Unvaccinated County workforce members are at greater risk of contracting and spreading COVID-19 within the workplace, at County facilities, and to/from the public that depends on County services. To best protect its workforce members and others in County facilities from the spread of COVID-19, and fulfill its obligations to the public, the County is adopting a COVID-19 Vaccination Policy (Policy).” (DSUMF 3.)

Plaintiff does not dispute that she was aware that her suspension and termination were due to her failure to comply with testing and registration requirements rather than her failure to vaccinate. (Plaintiff’s Statement in Response to DSUMF [“PSR”] No. 28).) In fact, Plaintiff asserts that the reason for her termination was her refusal to register in the Fulgent System or participate in mandatory testing for the COVID-19 virus. (Opposition, p.1.) As noted above, Plaintiff cannot show that her objections to the testing and registration requirement were based on a sincerely held religious belief.

Since the County showed that it had legitimate business reasons for requiring all County employees to vaccinate and for requiring employees who had religious exemption requests pending to undergo COVID-19 testing and registration in the Fulgent system, the burden is shifted to Plaintiff to show that the proferred reason for termination was a mere pretext.

It is undisputed that Plaintiff is not personally familiar with the individuals involved in her suspension and termination, and she does not have reason to believe those individuals had any motivation to discriminate against her. (DSUMF 27.)

Plaintiff cannot demonstrate that the County’s mandatory testing and registration requirements were not applicable to all similarly situated employees. Within the Department of Mental Health, six employees, including Plaintiff, failed to comply with the testing and/or registration requirements. (DSUMF 29.) All six employees were terminated from their County employment for failure to comply with the COVID-19 policy. (DSUMF 30.) Other Department of Mental Health employees who applied for a religious exemption and complied with the testing and registration requirements were not terminated. (DSUMF 31.)

Thus, Plaintiff cannot prevail on this cause of action because (1) Plaintiff cannot present evidence suggesting discriminatory motive, and (2) Defendant had a legitimate non-discriminatory reason for its conduct.

The analysis under the first cause of action similarly applies here. In short, her termination was for legitimate independent business reasons, and as such Plaintiff cannot demonstrate a nexus between her disability and her termination. Accordingly, Plaintiff’s second cause of action similarly fails.

"[I]n order to establish a prima facie case of retaliation under the FEHA, a 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 existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] 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." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Here, as discussed above, the County has established and Plaintiff cannot dispute, that Plaintiff’s termination was for legitimate independent business reasons.

In addition, Plaintiff cannot prove intentional retaliation as the basis for Plaintiff’s termination pre-dates Plaintiff’s complaints. The County passed a resolution on August 10, 2021, requiring all County employees to provide proof of vaccination against COVID-19. (DSUMF 1; 5.) It is undisputed the policy warned that failure to comply may result in corrective action, up to and including discharge. (DSUMF 6.) It is further undisputed this policy pre-dates Plaintiff’s September 29, 2021 request for telework accommodation, her October 1, 2021 request for a religious exemption, and her December 13, 2021 EEOC complaint. (DSUMF 1; 12; 14; 24.) Therefore, Plaintiff could not have been terminated in retaliation for submitting her telework or religious exemption requests or for submitting an EEOC complaint, as Plaintiff was previously on notice that non-compliance with the County’s COVID-19 policy would lead to disciplinary action before submitting her requests/complaint. (DSUMF 5; 6; 15; 18; 20; 21; 23.)

Fourth Cause of Action: Failure to Provide Reasonable Accommodations (Govt. Code, § 12940(m))

Government Code section 12940(m) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Govt. Code, § 12940(m)(1).)

“The elements of a failure to accommodate a 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.’” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.)

Plaintiff’s Complaint asserts this cause of action not on the basis of disability, but on the ground that the County failed to accommodate her religious beliefs. (Complaint, p. 11, ¶¶ 38-42.) Plaintiff’s religious beliefs, however, were accommodated as the County’s COVID-19 policy allowed for exemptions to the vaccination requirement based on a sincerely held religious belief. (DSUMF 4.) Plaintiff was neither required to vaccinate, nor terminated for her failure to do so. (DSUMF 7.) As discussed above, Plaintiff did not have a sincerely held religious belief which prevented her from complying with the County’s testing and registration requirements.

Fifth Cause of Action: Whistleblower Retaliation in Violation of Labor Code, § 1102.5(b)

Labor Code section 1102.5(b) provides that “[a]n employer, or any person acting on behalf of the 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 government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” (Lab. Code, § 1102.5(b).)

The Court notes that Plaintiff does not address this cause of action in her opposition. Moreover, Plaintiff states in her opposition that the Fifth Cause of Action for Violation of Labor Code, § 1102.5(b) has been dismissed. (Opposition, p. 1, fn. 1.)

Nonetheless, the Court’s analysis under the third cause of action similarly applies here. Plaintiff’s termination was for legitimate independent business reasons. Additionally, Plaintiff cannot prove retaliation since the basis for Plaintiff’s termination pre-dates Plaintiff’s complaints. Thus, the Court finds that the County has carried its burden on summary judgment or adjudication to demonstrate that Plaintiff cannot prevail, and Plaintiff has not established a triable issue of material fact.

In sum, the Court finds there is no triable issue of material fact and the County is entitled to judgment as a matter of law.

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