Judge Jill Feeney, Case Number: 21STCV33144, Date: 2023-12-04 Tentative Ruling

This is an action for violations of the FEHA and the Labor Code. Plaintiff alleges that he is a Communications Engineer working for the City of Los Angeles. (Compl., ¶8.) Plaintiff is white. (Compl., ¶10.) After suffering a knee injury, Plaintiff began experiencing retaliation. (Compl., ¶10d.) Defendants began restricting Plaintiff’s overtime hours, prevented him from participating in certain jobs, and telling Plaintiff he had become a liability. (Compl., ¶¶10e-10g.) After Plaintiff filed a Workers Compensation claim for exposure to a hazardous material, Plaintiff saw a rise in retaliation against him. (Compl., ¶¶10i-10j.) After being moved to the Mobile Radio Unit, Plaintiff began experiencing harassment. (Compl., ¶10k.) Defendant Xa, Plaintiff’s supervisor, pretended to stab Plaintiff in the back with a knife. (Compl., ¶10m.) Plaintiff began fearing being harmed at work after coworkers informed him that his supervisor may harm him physically. (Compl., ¶10o.) Plaintiff began being singled out for not being Asian or Hispanic and received disparaging comments about his race. (Compl., ¶¶10p-q.) Despite making Complaints to management, Plaintiff was told he needed proof. (Compl., ¶10r.) Plaintiff was the only person not recertified for tower climbing, was not offered the same materials or courtesy as other people in his department, and was given faulty equipment. (Comp., ¶¶10s-10u.)

City moves for summary judgment on the grounds that (1) Plaintiff cannot establish a prima facie case for FEHA retaliation against City, (2) City’s actions were legitimate, non-discriminatory personnel decisions, (3) Plaintiff cannot establish that City’s personnel decisions were based on race or disability, (4) Plaintiff cannot establish a prima facie case for FEHA Discrimination based on disability, and (5) Plaintiff’s failure to prevent discrimination and retaliation cause of action fails as a matter of law because the claim is derivative of his other causes of action.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) “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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

Government Code section 12940 provides that it is unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment on the basis of age. (See Govt. Code, § 12940(a).) A prima facie case of age discrimination arises when the employee shows “(1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003.)

On a motion for summary judgment, the moving party must initially show that under the undisputed material facts, (1) one or more elements of plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In other words, the initial burden on summary judgment remains with the moving party at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432.)

City first moves for summary judgment on the grounds that there is no causal link between Plaintiff’s alleged protected activity and the adverse actions against him. City argues that Plaintiff’s reduced overtime and the alleged faulty equipment could not have been motivated by retaliation because these actions took place before Plaintiff engaged in protected activity. Additionally, Plaintiff’s overtime was never reduced by 8.5 hours a week and Plaintiff was never consistently provided broken equipment. City also argues that there is no evidence that the individuals Plaintiff alleges retaliated against him were involved in the alleged adverse employment actions. Finally, Plaintiff himself stated there were other, non-retaliatory reasons for the adverse employment actions.

To establish a prima facie case of retaliation under FEHA, Government Code section 12940(h), Plaintiff must prove that “(1) [s]he 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.)¿ To establish a prima facie case of retaliation under Labor Code section 1102.5, “a plaintiff must show that (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal connection between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)¿¿

Specifically, Labor Code, section 12940(h) makes it an unlawful employment practice ‘[f]or any employer ... to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’” (Yanowitz, 36 Cal.4th at 1042 [italics original].) An employee engages in a protected activity “‘when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381.)¿

To state a claim for retaliation under Section 1102.5 Plaintiff must “demonstrate by a preponderance of the evidence that the employee’s protected whistleblowing was a contributing fact to an adverse employment action.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 [internal quotations omitted]; see also Lab. Code, section 1102.6.)

Here, Plaintiff’s Complaint alleges that Plaintiff experienced adverse employment action after he suffered a knee injury, filed a Workers Compensation claim after being exposed to hazardous materials, and complained of harassment by Defendant Xa. (Compl., ¶¶10d, 10h.) As a result of his complaints, Plaintiff alleges he had his overtime hours reduced, was the only person not recertified to climb towers, was not offered the same materials as others in his department, and was given faulty equipment. (Compl., ¶¶10g, 10s-10u.) Additionally, Plaintiff alleges he was harassed by a supervisor, Lam Xa, who regularly told Plaintiff he would stab him in the back and physically harm Plaintiff. (Compl., ¶¶10n-10m.)

City’s evidence shows that in June 2015, Plaintiff was transferred to the Information Technology Agency (“ITA”) department, where he continued to work as a communications electrician. (UMF No.4.) Plaintiff was originally assigned to work as a Communications Electrician at the Piper Tech location in downtown Los Angeles working the afternoon shift between 2pm to 11pm with Gregory May as his supervisor. (UMF No. 5.) On December 13, 2015, Plaintiff began receiving an 8.25% tower climbing bonus. (UMF No. 7). On December 13, 2015, Plaintiff was transferred to the Valley Shop location working the afternoon shift from 2:30pm-11:30pm with Peter Benjamins as his supervisor. (UMF No. 8.) Plaintiff was assigned to work on repair calls for the Los Angeles Fire Department (“LAFD”), Los Angeles Police Department (“LAPD”), Bureau of Sanitation, and Department of Transit (“DOT”). (UMF No. 9.)

On August 8, 2018, Plaintiff met with ITA Human Resources (“HR”) Services staff to file a Complaint against Xa and Benjamins. (Motion, Exh. 15.) HR found that there was insufficient evidence to support Plaintiff’s allegations of physical threats, bullying, and harassment. HR reminded Plaintiff that Xa is not in a position to affect employment decisions of another employee. The statements made by other employees recorded in this report are hearsay because they are compilations of statements made by various employees recorded by another HR employee.

City provides evidence that each Communications Electrician (“CE”) was responsible for picking up their equipment from inventory controls. Other employees testify that each CE would begin each shift as needed by driving as needed to the Piper Tech location to pick up equipment from the Inventory Control department or ask a supervisor to specially order any otherwise unavailable equipment. (Sanchez Decl., ¶3; Le Decl., ¶¶4-5, Cisneros Decl., ¶7; Khaw Decl., ¶¶4-5.) It has always been the CEs’ responsibility to ensure they had the equipment they needed to complete their job and to obtain their own equipment from Piper Tech. (Steinmehl Decl., ¶11.) A CE Supervisor, Greg May, testifies that another CE, Rudy Isaad, previously volunteered to pick up broken equipment from the Valley Shop and drop it off at Piper Tech. (May Decl., ¶3.) At the end of his shift, he would pick up new equipment and drop it off at the Valley Shop. (Id.) However, in July 2018, Isaad stopped volunteering to pick up equipment for the Valley Shop. (Id.) May sent an email to all Valley Shop CE explaining that Isaad would no longer pick up equipment and stating the CEs were responsible for their own equipment. (Id., ¶4; Motion, Exhs. 12, 29.)

City’s evidence shows that Plaintiff was responsible for procuring his own equipment from another department at the Piper Tech location. Even if another employee had volunteered to pick up equipment for him, this stopped in July 2018, before Plaintiff filed his workers’ compensation claims and complained of harassment. Because Plaintiff was responsible for picking up his own equipment and makes no allegations that anyone from Piper Tech supplied him with faulty equipment, no triable issue of material fact remains over whether Plaintiff was given faulty equipment in retaliation for his workers’ compensation claims and complaints of harassment.

The burden shifts to Plaintiff. Plaintiff provides excerpts from his deposition testimony, where he states the division refused to provide safety equipment for his work in the sanitation department for a year. (Hoffman Depo., 74:1-22.) Although he was eventually given a pair of overalls, they did not fit and he suffered burns in his clothes from working in refuse. (Id.)

City does not address the protective equipment in its reply. Plaintiff was assigned to replace the trash truck radios in late 2018, after he filed his workers’ compensation claims. Thus, a triable issue of material fact remains over whether the department withheld protective equipment from Plaintiff in retaliation for his workers’ compensation claims.

City provides evidence that Plaintiff’s overtime hours were never reduced by 8.5 hours and that any reduction was not retaliatory. CE Supervisor Greg May testifies that Plaintiff’s overtime hours regularly fluctuated based on the needs of the department like any other employee. (May Decl., ¶10.) May and other employees testify that overtime for all ITA employees was limited to only emergency issues in 2020 because of a budget shortfall caused by COVID-19. (May Decl., ¶11, Ito Decl., ¶8, Ross Decl., ¶5.) Tita Zara, Assistant General Manager of the ITA testifies that in Plaintiff averaged 5 hours of overtime per week in 2016, 5.68 in 2017, 3.32 hours in 2018, 1.9 hours in 2019, 0.46 hours in 2020, 3.07 hours in 2021, and 4.21 in 2022. (Zara Decl., ¶¶2-10.) Plaintiff’s second-line supervisor, Rito Cisneros, testifies that he never reduced Plaintiff’s overtime hours and that they fluctuated regularly based on the needs of the department. (Cisneros Decl., ¶6.)

In an email between Plaintiff and another employee, Mehrdad Larijaniha, dated December 1, 2020, Plaintiff states Lam Xa threatened that Plaintiff would never get overtime again. (Motion, Exh. 33.) Other employees testify that they never observed Xa threatening Plaintiff. (Khaw Decl., ¶¶7-13, Le Decl., ¶¶7-13.)

City’s evidence shows that Plaintiff’s overtime hours fell gradually between 2016 and 2020 before rising again in 2021 and 2022. The hours fell around 2-3 hours each year, but there was no reduction of 8.5 hours as alleged in Plaintiff’s Complaint. The lowest balance from 2020 may be explained by the budgetary shortfall caused by the COVID-19 pandemic. Plaintiff’s supervisor testified that he never reduced Plaintiff’s overtime hours and that the overtime hours fluctuated regularly based on the needs of the department. However, even if Plaintiff’s hours were not reduced to the extent alleged in the Complaint, the evidence shows that Plaintiff’s hours on average decreased between 2016 and 2020. Plaintiff’s email with Larijaniha also shows that Lam Xa, the employee Plaintiff alleges harassed him and the subject of his complaints, threatened to ensure Plaintiff would never have overtime again. Although HR represented to Plaintiff that Xa was not in a position to affect employment decisions, it is reasonable to infer that since Xa was Plaintiff’s supervisor, he would have had the power to at least influence the decision to lower Plaintiff’s overtime. Although other employees testified they never saw Xa threaten Plaintiff and Xa himself testifies he did not threaten Plaintiff, the contradictory information in the December 1, 2020 email shows there is a factual dispute over whether Xa actually threatened Plaintiff.

City provides evidence that Plaintiff’s Tower Climbing Bonus was removed because he was no longer climbing towers and would have required overtime hours to climb towers during the day because he worked a later shift and tower climbing only took place during the day. ITA’s Director of Finance and Administrative Services, Laura Ito, testifies that she, Greg Steinmehl, Anthony Moore, Regina Hernandez, and Pauline Loo discussed removing the bonus from Plaintiff because he had not done any tower climbing in 12 months before the bonus was removed. (Ito Decl., ¶¶2-4.) Email communications from February 2018 show that Ito was attempting to decrease the number of CEs receiving a bonus to the minimum number of 6. (Motion, Exh. 9.) Greg Steinmehl stated Plaintiff was not assigned to tower climbing work because of the shift he is assigned to. (Id.) Steinmehl also stated the department performed 60 tower climbing jobs and that at least one CE certified to climb towers avoided tower climbing. (Id.) However, Steinmehl did not state Plaintiff did not participate in any tower climbing in the last year and did not name the CE who avoided tower climbing. Steinmehl testifies in his declaration that the group ultimately decided to remove Plaintiff’s bonus because he had not been assigned to any tower climbing and because climbing only takes place during the day and Plaintiff, who worked the afternoon shift, would have had to work overtime to climb towers. (Steinmehl Decl., ¶¶5-6.)

Rito Cisneros and other employees testify that Cisneros never instructed employees to withhold the date and location of the tower climbing recertification class from Plaintiff. (Cisneros Decl., ¶5; Christensen Decl., ¶6.) Cisneros also testifies that he did not make the decision to remove the tower climbing bonus. (Cisneros Decl., ¶4.)

City’s evidence shows that Plaintiff’s tower climbing bonus was removed because he had not been assigned to tower climbing because of his late shift. Additionally, although Plaintiff alleges he could not complete tower climbing recertification because Cisneros deliberately withheld the date and location of the training, Cisneros testifies he did not conceal details about this training from Plaintiff. Based on this evidence, no triable issue of material fact remains over whether Plaintiff’s tower climbing bonus was removed in retaliation for his worker’s compensation claims or his claims of harassment.

Plaintiff points to his responses to Special Interrogatories, arguing that another employee, Sanchez, refused to tell him about the tower certification class in October 2019 and threatened to destroy Plaintiff unless he left him alone. (Motion, Exh. 37, pp.9, 13.) Additionally, Plaintiff provides his deposition testimony, where he states that Xa told him he would take away his tower climbing certification because he and Rito Cisneros were close. (Xa Depo., 41:5-9.) Plaintiff discussed this incident in an email with Mehrdad Larijaniha in December 2020. (Motion, Exh. 33.) Plaintiff testifies in both recountings of the incident that Xa stated he “got rid of [Plaintiff’s] papa” and that there was no one to protect him. Plaintiff claims that Xa referred to Peter Benjamins as Plaintiff’s “papa.” (Motion, Exh. 37, p.6.) Benjamins retired and was replaced by Cisneros as Plaintiff’s second-line supervisor in late 2019. (Cisneros Decl., ¶2.) Thus, it appears Xa made his threat to take away Plaintiff’s tower climbing certification sometime in 2019 or 2020 after Cisneros replaced Benjamins and well after ITA’s management removed Plaintiff’s tower climbing bonus. Additionally, Plaintiff did not make a complaint about Xa until August 2018. Because Cisneros had not taken over as Plaintiff’s supervisor and Plaintiff had not made his complaint about Xa in February 2018 when the bonus was removed, Plaintiff’s complaint about Xa could not have motivated the decision to remove Plaintiff’s tower climbing bonus.

However, a triable issue of material fact remains over whether Cisneros withheld information about tower climbing recertification training to prevent Plaintiff from recertifying as a tower climber. Plaintiff’s responses to special interrogatories contradict Cisneros’s contention that he did not instruct employees to withhold information about the tower climbing training from Plaintiff. Thus, triable issues of material fact remain over whether Plaintiff’s tower climbing certification was taken away in retaliation for Plaintiff’s complaints about Xa.

Plaintiff also asserts that he was transferred to Mt. Lee in retaliation for his harassment complaints. City provides the declaration of Anthony Christansen, the senior CE supervisor and Plaintiff’s supervisor. Christansen testifies that he transferred Plaintiff to Mt. Lee because the location was understaffed after many CEs retired under a new incentive program. (Christansen Decl., ¶¶7-8.) In another email between Plaintiff and Larijaniha, Plaintiff speculated that he was being transferred to Mt. Lee in retaliation for his work volunteering for a Baker to Vegas relay race and the fact that he was hired by Peter Benjamins. (Motion, Exh. 22.) In the same email, Plaintiff stated that Lam Xa threatened to take away his tower certification and overtime and made comments that he was trying to get rid of Plaintiff. Larijaniha replied that there was a dire need to staff Mt. Lee after other CEs had retired and did not address Plaintiff’s fears of retaliation. For the same reasons as above, because there is a factual dispute over whether Xa made these threats, because Plaintiff’s harassment complaint concerned Xa, and because Xa is Plaintiff’s supervisor who reasonably had the power to influence personnel decisions with respect to Plaintiff, a triable issue remains over whether Plaintiff’s transfer to Mt. Lee was in retaliation for the harassment complaint against Xa.

To successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See 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) plaintiff was qualified for the position plaintiff sought or was performing competently in the position plaintiff 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.) On a motion for summary judgment, the moving party must initially show that under the undisputed material facts, (1) one or more elements of plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In other words, the initial burden on summary judgment remains with the moving party at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432.)

“Discriminatory intent is a necessary element of a discrimination claim. [Citations.] In addition, ‘there must be a causal link between the employer’s consideration of a protected characteristic and the action taken by the employer.’ To ‘more effectively ensure…that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision,’ a plaintiff must demonstrate ‘discrimination was a substantial motivating factor, rather than simply a motivating factor.’” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 590.) A “substantial motivating reason” is “a reason that actually contributed to the [adverse employment action]. It must be more than a remote or trivial reason.” (CACI 2507.)

An employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) If the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098.)

An employer may establish on summary judgment a legitimate, nondiscriminatory reason for the adverse employment action. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) To avoid summary judgment, 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 substantial discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.) The employee cannot simply show that the employer’s decision was wrong or mistaken. (Id.)

A comment made by a person who ultimately decides to terminate an employee’s employment is as close to direct evidence of termination based on disability as one might find in a case of alleged discrimination. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 517.) Comments made by someone who could influence a decision maker are also relevant to whether termination was based on discrimination. (Id at p.542.)

As discussed above, Plaintiff testified during his deposition that Xa was close to Plaintiff’s supervisor, Cisneros, and became Plaintiff’s supervisor. In his responses to special interrogatories, Plaintiff stated employees Xa and Rodrigues made comments that no one wanted a white guy in the department and that he would never be a good CE because Plaintiff did not have the right skin color or eye shape. (Motion, Exh. 36, p.15-16.) Although Xa testified that he never made these comments and other employees never witnessed Xa making these comments, there is a factual dispute here over whether Xa made these comments. Thus, a triable issue of material fact remains over whether Xa, a supervisor who reasonably had power to influence a personnel decision with respect to Plaintiff, made racist comments to Plaintiff that would show City’s nondiscriminatory reasons for the alleged adverse employment actions were pretextual.

An adverse employment action is generally an action that materially affects the terms, conditions, or privileges of employment. (See Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161.) “The protections against discrimination in the workplace . . . are ‘not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee.’” (Id. at 1162 (quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052).) “FEHA ‘protects an employee against unlawful discrimination with respect . . . to . . . the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.’” (Id. (quoting Yanowitz, supra, 36 Cal.4th at 1053-54).)

(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).

Here, City provides Plaintiff’s August 21, 2018 workers’ compensation claim, investigation report, injury status report, and work status report showing that he suffered a contusion to his right knee. (Motion, Exh. 14.) Plaintiff was released to work without restrictions. (Id.) The evidence shows that Plaintiff was not disabled after his knee injury because the injury did not limit his ability to work.

City also provides Plaintiff’s October 10, 2019 workers’ compensation claim and a letter from Plaintiff’s attorney dated October 14, 2019 about the claim. (Motion, Exh. 20.) The claim states Plaintiff experienced stress and strain of employment, exposure to chemicals, and respiratory and internal injuries. However, there is no other evidence showing whether Plaintiff was limited at work or another major life activity. City makes a conclusory argument that Plaintiff cannot provide evidence that he suffered a limitation of a major life activity. There being no evidence of whether Plaintiff’s alleged injuries limited a major life activity, City fails to meet its burden of proof of proving no triable issue of material fact remains over whether Plaintiff was disabled.

City also argues there is no causal link between Plaintiff’s alleged disability and the removal of his tower climbing bonus. City alleges that the decision was not made by Cisneros, Sanchez, or Benjamins as Plaintiff alleges. (Motion, Exhs. 36, 37.) Additionally, as discussed above, City provides evidence that Plaintiff’s tower climbing bonus was taken away because he was no longer being assigned to tower climbing due to his late shift. Although there is a triable issue of material fact over whether Plaintiff’s supervisor Cisneros withheld information about tower climbing certification training because of Plaintiff’s complaint about Xa, there is no evidence that the decision was motivated by any disability. Plaintiff does not address the cause of action for disability discrimination in his opposition.

However, City does not address the causal link between Plaintiff’s disability and any of the other alleged adverse employment actions alleged in the Complaint. The Complaint does not limit Plaintiff’s disability discrimination claim to the tower climbing bonus but alleges that his disability was a motivating factor in City’s retaliation and discrimination against him. (Compl., ¶74.) Because City does not address the link between Plaintiff’s disability and any of the other adverse employment actions, the motion is denied on this ground.

City next argues that Plaintiff’s overtime hours were not reduced by 8.5 hours a week. However, as discussed above, there is a triable issue of material fact over whether Plaintiff’s overtime was reduced due to his complaint against Xa. Although Plaintiff’s overtime hours were not reduced by 8.5 hours, the evidence shows Plaintiff’s overtime did actually decrease between 2016 and 2020. Thus a triable issue of material fact remains over whether Plaintiff’s overtime hours were reduced.

City also alleges that there were legitimate, non-discriminatory reasons for Plaintiff’s receipt of broken equipment. City argues that another employee, Isaad, used to pick up equipment for the Valley Shop location and accidently picked up broken equipment for Plaintiff. As discussed above, Plaintiff and other employees were responsible for their getting their own equipment from the Piper Tower location. However, a triable issue of material fact remained over whether ITA withheld protective gear from Plaintiff in retaliation for his filing a workers’ compensation claim around the time he was assigned to work in the sanitation department’s trucks. Because the equipment was allegedly withheld close in time to when Plaintiff made his claims, a triable issue remains over whether City withheld protective equipment from Plaintiff for a non-retaliatory reason.

City also argues that the assignment to replace radios for the bureau of sanitation and Plaintiff’s transfer to Mt. Lee was due to a staffing shortage. As discussed above, there is a triable issue of fact over whether Plaintiff’s transfer to Mt. Lee was motivated by Plaintiff’s complaint about Xa. However, there is no evidence that the transfer was motivated by any disability. City also argues that it had legitimate, non-discriminatory reasons for removing Plaintiff’s tower climbing bonus. As discussed above, there is no evidence that the removal of the tower climbing bonus was motivated by Plaintiff’s alleged disability. Nevertheless, the motion is still denied on this ground because triable issues of material fact remain over whether Plaintiff’s overtime hours were reduced and whether Plaintiff was received broken equipment as a result of his disability.

The fifth cause of action is for failure to provide an environment free from discrimination and retaliation under Government Code section 12940. (Gov’t Code, § 12940, subd. (k).) “An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’” (Scotch v. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)

A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter. . ., or because the employee . . . made a written or oral complaint that he or she is owed unpaid wages, . . . or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.