Superior Court of California

County of Los Angeles

Department 78

JOSE CARDENAS, et al.

LAUSD,

DEFENDANT LAUSD’S MOTIONS FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Defendant’s motion for summary judgment is GRANTED with respect to Plaintiffs (1) Jose Cardenas, (2) Angel Frias, (3) Jared Gilmore, (4) Leopoldo Gil, (5) Aaron Gray, (6) Branden Hamada, (7) Clifford Herrera, (8) Sally Moctezuma, (9)Donyann Morgan, (10) Cheron Bertee, (11) Melanie Guevara, and  (12) Timothy Chavez.

Defendant's motion for summary judgment is GRANTED with respect to Plaintiff Shaun Luciano.

Moving party to file and serve a proposed judgment against all Plaintiffs, including those against whom summary judgment was granted earlier, within 10 days after the date of this order.

The Court sets a nonappearance date for review of the proposed judgment for February 22, 2024 at 8:30 a.m.

Moving party to provide notice and to file proof of service of such notice.

FACTUAL BACKGROUND

This is an action for religious discrimination, failure to accommodate, and failure to engage in an interactive process in violation of FEHA arising from a COVID vaccination policy implemented in September 2021. Plaintiffs were all employed by the Los Angeles Unified School District (“LAUSD”) as school safety officers, school police officers, police detectives, or other school security personnel. (FAC ¶3.) 

Defendant LAUSD adopted a mandatory COVID-19 vaccination policy for all district employees, including Plaintiffs. (FAC ¶8.) Employees were required to be vaccinated by January 10, 2022. (Id.) Each Plaintiff submitted a request for an exemption and accommodation from the vaccination policy and provided the requested supporting information and documentation. (FAC ¶12.) Defendant summarily denied each request. (Id.) Defendant held meetings with each Plaintiff to discuss the requests that lasted 15 minutes. (FAC ¶15.) Some Plaintiffs received denials before having meetings. (FAC ¶16.) Defendant reiterated at meetings that it would terminate any unvaccinated employee regardless of religious or medical status. (Id.) Some Plaintiffs obtained the vaccination to avoid losing their jobs while some were terminated from employment. (FAC ¶17.) Other Plaintiffs went on medical leave but were told they would be terminated once they returned. (Id.)

OBJECTIONS

All Plaintiffs included objections in their Separate Statements in response to Defendant's UMF. The Court will not consider these objections as they do not meet the requirements set forth in CRC Rule 3.1354(b).

Defendant objects to Plaintiffs' evidence.

The objections are OVERRULED, except for No. 8, 9, 11 which are sustained.

DISCUSSION

Defendant LAUSD moves for summary judgment against the Group 3 Plaintiffs and and Plaintiff Shaun Luciano.

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 the party 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).) 

1. Group 3

LAUSD argues that that (1) the Group 3 Plaintiffs cannot demonstrate that they were able to perform the essential duties of their positions, (2) LAUSD had a legitimate, non-discriminatory reason for the institution of the vaccine mandate, (3) accommodating Plaintiffs would have posed undue hardship on LAUSD, (4) Plaintiffs’ proposed accommodations were not reasonable, and (5) there is no requirement to engage in an interactive process for religious discrimination claims.

First Cause of Action – Discrimination in Violation of FEHA

In the absence of direct evidence of discrimination, a 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.)  First, plaintiff must establish a prima facie case of discrimination by 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, such as other similarly situated employees outside of the protected class were treated more favorable or other circumstance surrounding the adverse employment action give rise to an inference of discrimination. (See 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 purported legitimate, nondiscriminatory reason is merely a 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.) 

In the context of a motion for summary judgment on a discrimination claim, "[i]f the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing."  (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344. (citation omitted) (emphasis in the original).)  

An employer may establish on 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.)

Nondiscriminatory Purpose

Defendant argues that Plaintiffs’ discrimination claims fail because Defendant's vaccination policy which resulted in Plaintiffs' termination for failure to vaccinate was based on legitimate, nondiscriminatory factors.

During the Spring of 2021, LAUSD worked in coordination with public health officials and local labor organizations to develop a plan to safely reopen its schools and facilities to full-time, in-person instruction for the 2021-22 school year.(UMF No. 7)

In the Summer 2021, COVID-19 case rates in Los Angeles County began to rise, particularly due to the rapid spread of the Delta variant. (UMF No. 8)

Prior to the adoption of the vaccine policy, LAUSD had instituted other policies to mitigate the impact of COVID, including masking and physical distancing. (UMF No. 12)

When a student or staff member tested positive for COVID, they, along with their close contacts, had to quarantine. (UMF No. 13.) This quarantine period could last up to 10 days. (UMF No. 14) The quarantine process negatively impacted the education of the students. (Id.)

As of August 2021, all notable public health agencies – CDC, CDPH, LACDPH – recommended the vaccine as appropriate for all eligible individuals, students and adults alike. (UMF No. 15)

Physicians and scientists from UCLA advised the LAUSD’s Board of Education of CDC published data regarding the benefits of the COVID-19 vaccine and these medical professionals concluded that the benefits of vaccination outweighed the risks associated with not being vaccinated.(UMF No. 16.)

After considering the information provided by public health professionals, on August 13, 2021, LAUSD adopted its COVID-19 vaccination policy for employees by resolution of the Board of Education. (UMF Nos. 17, 20)

LAUSD’s decision to issue a vaccination mandate was  based on the conclusion that it necessary to support the safety of LAUSD’s students, staff, and community and help ensure minimized risk of transmission throughout LAUSD’s schools and community. (UMF No. 18.)

In addition to decreasing the number of COVID infections, LAUSD hoped to mitigate the financial costs of its weekly testing program though the vaccine mandate. (UMF No. 49-50.) It was anticipated that a decrease in the number of COVID cases as a result of vaccination would allow for the termination of the weekly testing program. (UMF No. 21) 

Employees were informed of the vaccine mandate for all employees and other adults providing services at LAUSD facilities. (UMF Nos. 21, 22) 

Employees were also informed that they could seek an exemption from the vaccine mandate based on the need for an accommodation due to a medical condition or due to a sincerely held religious belief. (UMF No. 23)

For employees who declined to be vaccinated based upon a sincerely held religious belief, as long as an employee articulated a religious reason in support of their request , LAUSD accepted that representation at face value and went to the next step to determine whether a reasonable accommodation was available that would permit the unvaccinated employee to continue working while unvaccinated. (UMF No. 26, 30.)

Leslie Ramirez, then Chief of the Los Angeles School Police Department (“LASPD”), and her staff reviewed the job descriptions of those in the LASPD including Sergeant, Senior Police Officer, Security Officer, Police Detective, and Data Analyst, School Police and considered what employees in these positions to determine if there could be an accommodation offered. (UMF Nos. 34-36.) It was determined that all law enforcement positions required the physical presence of personnel on site. (UMF No. 36.)  

Chief Ramirez testifies that fully remote work for its officers was not possible because they regularly accessed sensitive information, such as a person’s criminal history, including juvenile records, which must be kept secure through firewalls and locks and cannot be accessed from home according to the Department of Justice’s (“DOJ”) requirements. (Ramirez Decl., ¶5.) LASPD officers were not permitted to access this information at home because the activity could not be monitored. (Id.) The DOJ conducts audits of LASPD’s practices every two years and would revoke LASPD’s access to its database if it is not compliant with its requirements. (Id.) LASPD officers must also be able to respond in “all-hands-on-deck” situations, including emergencies and critical events. (Id., ¶6.) Sergeants, Senior Police Officers, Police Officers, and Security Officers are required to respond to emergency and non-emergency events at LAUSD facilities. (Id., ¶7.) It is not possible to respond to these events remotely. (Id.) Finally, LASPD officers are required to be at LAUSD facilities to protect LAUSD assets. (Id., ¶8.)                                                           

With respect to the safety and health concerns that led to the vaccine mandate, Defendant provides the declaration of Chief Medical Director Smita Malhotra. Malhotra testifies that LAUSD is the second largest school district in the United States, serving more than 429,000 K-12 graded and ungraded students at approximately 784 schools with over 70,000 employees spanning approximately 710 square miles. (Malhotra Decl., ¶2.) During the COVID-19 pandemic, Defendant closed its facilities in compliance with the governor’s March 2020 mandate. (Id., ¶3.) In 2021, Defendant worked with public health officials and local labor organizations to develop a plan to safely reopen schools and facilities. (Id., ¶4.) As COVID-19 case rates improved in the spring of 2021, Defendant planned to safely reopen schools and facilities to full-time, in-person instruction. (Id., ¶5.) However, cases began rising again in the summer of 2021 with 100,000 daily new cases and between 1,000 and 2,000 daily new deaths from COVID-19. (Id., ¶6.) The CDC’s November 2021 update noted that 93.9% of adults who were hospitalized with COVID-19, who required mechanical ventilation, or who died were unvaccinated. (Id.) Vaccination appeared to lower the risk of becoming infected with COVID-19. (Id.) Defendant’s COVID-19 measures were meant to address the continuing threat COVID-19 posed to LAUSD’s students and staff as they returned to school campuses. (Id.,¶8.) The measures were aimed at increasing and promoting health and safety for students, staff, parents, volunteers, and the broader community that had already been disproportionately impacted by the pandemic compared to other communities. (Id.) Other measures included asymptomatic testing to all students and staff regardless of vaccination status, requiring masks, and social distancing. (Id., ¶9.) Despite these measures, COVID-19 continued to represent a threat to the health of students, staff, and the broader community. (Id., ¶10.) Students and staff missed in-person instruction if they tested positive for COVID-19 and could miss up to 10 days of instruction, greatly impacting students’ learning environments. (Id., ¶11.)

On June 23, 2021, the CDC concluded that the benefits of COVID-19 vaccination outweighed the risks and recommended continued use of the vaccine on persons 12 and older. (Id., ¶12.) Los Angeles County public health records indicated that infection among unvaccinated persons was 4.9 times greater than those who were vaccinated and hospitalization was 29.2 times greater in unvaccinated individuals. (Id., ¶13.) The Food and Drug Administration approved the first COVID-19 vaccine on August 12, 2021. (Id.,¶14.) Malhotra worked with physicians and scientists from UCLA and advised LAUSD’s board of education on the data regarding the benefits of the COVID-19 vaccine. (Id., ¶15.) On August 13, 2021, LAUSD implemented its vaccine mandate because it viewed the vaccine as a critical tool to better protect students and employees and maintain its business operations without disruption. (Id., ¶16.) 

Defendant’s evidence shows that it adopted the vaccine mandate to protect the health of students, staff, and the broader community and to try to ensure that students received their education. Defendant's evidence shows that the policy was applied to all LAUSD employees equally.

Here, Defendant has met its burden of demonstrating that there is no genuine issue of material fact as to whether it acted for a legitimate, non-discriminatory reason.

Preventing risk to health and safety and upholding the DOJ’s standards with respect to accessing sensitive information are both nondiscriminatory reasons for placing the affected employees on leave. Having articulated legitimate, nondiscriminatory reasons for the adverse employment action, the burden shifts to Plaintiffs. 

Plaintiffs first argue that they raised a triable issue of material fact over whether their religious beliefs conflicted with an employment requirement. Plaintiffs cite California Fair Employment and Housing Com’n v. Gemini Aluminum Corp. (App. 2 Dist. 2004) 18 Cal.Rptr.3d 906, 122 in support of this argument. However, there is no dispute that the Group 3 Plaintiffs’ religious beliefs conflicted with a requirement of employment. Plaintiffs also cite California Fair Employment and Housing Comm’n to support their argument that Defendant must accommodate their religious beliefs. However, this argument goes towards the cause of action for failure to accommodate.

Plaintiffs also argue that there is a dispute of material fact over whether the Group 3 Plaintiffs were able to perform their essential job duties, such as making arrests and taking suspects into custody, while being unvaccinated. Plaintiffs cite Cuillette v. City of Los Angeles, 194 Cal. App. 4th 757, 762 in support of this argument. However, Cuillette involved a lawsuit for discrimination based on disability, where an employee’s ability to perform essential job duties is relevant to determine whether the employe was qualified for his position. Cuillette involved an LAPD officer whose disabilities prevented him from performing more rigorous tasks, such as making arrests and taking suspects into custody. The court there determined that the relevant job description was that of a position with lighter duties, rather than the more rigorous police officer position. 

Here, the Group 3 Plaintiffs’ claims are based on their religious beliefs, not any disability. Additionally, there is no dispute over whether the Group 3 Plaintiffs were qualified to perform their jobs before the vaccine mandate. Rather, Defendant provided evidence that it had nondiscriminatory reasons for taking the adverse employment actions against the Group 3 Plaintiffs, including that preventing risks to health and safety on its premises and complying with DOJ requirements for giving officers access to sensitive information.

Plaintiffs also argue that they felt they were treated differently because of their religious beliefs. Plaintiffs cite Rehmani v. Superior Court (App. 6 Dist. 2012) 139 Cal.Rptr.3d 464 in support of this argument. Rehmani involved a lawsuit for discrimination based on religion and national origin where a Muslim, non-Indian employee was taunted and intimidated by non-Muslim, Indian coworkers and was ignored when he approached supervisors about his concerns. The court there ruled that the employee could demonstrate that his non-Indian status and religion were major bases of the antagonism he experienced. 

Here, it is undisputed that the Group 3 Plaintiffs’ religious beliefs conflicted with an employment requirement, to be vaccinated. Unlike Rehmani, Defendant here provided evidence of nondiscriminatory reasons for the vaccine requirement. Because Defendant met its burden of showing there was a nondiscriminatory reason for the adverse employment action it took against the Group 3, Plaintiffs, it is now Plaintiffs' burden to show that the reason was untrue or pretextual. 

Plaintiffs also argue that there is a dispute over whether Defendant’s actions constituted adverse employment actions. However, Defendants do not dispute that each of the Group 3 Plaintiffs were terminated or retired as a result of the vaccine mandate and that these actions constitute adverse employment actions.

Plaintiffs also provided evidence that Frias became vaccinated in January 2022. (Plaintiffs’ Exh. B, Frias Depo., 70:3-24.) However, Frias had already been dismissed in December 2021. (Sanchez Decl., Exh. P-4.) Because the termination took place before Frias became vaccinated, there is no evidence to suggest Defendant’s stated reason was pretextual. Plaintiffs make no other argument about Frias.

Plaintiffs provide no evidence that Defendant’s articulated reason for the adverse actions was untrue or pretextual.  Plaintiffs therefore fail to meet their burden of showing triable issues of material fact remain over whether Defendant had a nondiscriminatory reason for the adverse employment actions taken against the Group 3 Plaintiffs. 

Summary judgment is granted as to this cause of action.

Second Cause of Action – Failure to Accommodate in Violation of FEHA

Defendant next argues that the cause of action for failure to accommodate fails as a matter of law because it would have suffered undue hardship if it accommodated the Group 3 Plaintiffs’ religious beliefs.

Government Code section 12940(l) provides that it is an unlawful employment practice “[f]or an employer . . . to refuse to hire or employ a person or to refuse to select a person for at training program leading to employment or to bar or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that is has explored any available reasonable alternative means of accommodating religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the person's religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. (Govt. Code, § 12940(l)(1).) 

The elements of a failure to accommodate a claim are the employee sincerely held a religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement. (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011.) Once the employee establishes a prima facie case with sufficient evidence of the three elements, the burden shifts to the employer to establish that it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. (Id.)

Here, there is no dispute that Plaintiffs have established a prima facie case with respect to the three elements set forth above. So, the burden shifts to Defendant to establish either that it initiated good faith efforts to accommodate or that no accommodation short of vaccination was possible without producing undue hardship. 

“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors:

(1) The nature and cost of the accommodation needed.

(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.

(3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.

(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.

(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.

(Gov. Code, section 12926(u).)

Here, Defendant’s evidence shows that employees had the opportunity to request reasonable accommodations by submitting an application. (UMF No. 29.) Employees requesting reasonable accommodations based on religious belief were allowed to articulate a religious reason for their exemption request and Defendant accepted the employee’s stated belief as sincerely held. (UMF No. 26.) An LAUSD employee examined each application immediately and determined whether an employee could work remotely, to what degree, and if doing so would be best practice. (UMF Nos. 34-48.) LAUSD ultimately determined that the Group 3 Plaintiffs could not work remotely because their essential job duties could not be performed remotely. (UMF Nos. 34-48, 51-52, 55-56, 60-61, 64-65, 68-69, 71-73, 76-77, 80-81, 84-85, 88-89, 93-94, 97-98, 101-102.)

Defendant’s evidence shows that it meets some factors enumerated under Gov. Code, section 12926(u), the statute defining undue hardship:

1. Nature and cost of the accommodation needed: 

Defendant’s evidence shows that each of the Group 3 Plaintiffs requested accommodations including remote work, masking, social distancing, and regular testing. Remote work for LASPD officers is not possible because they must be able to access sensitive information through the DOJ’s databases that cannot be accessed at home according to the DOJ’s policies. (Ramirez Decl., ¶5.) Additionally, all LASPD personnel regardless of rank must be available to respond in person to certain situations. (Id., ¶¶6-7.) The Group 3 Plaintiffs consist of a detective, two security officers, a sergeant, an analyst, and seven police officers. The police officer Plaintiffs (Cardenas, Frias, Gilmore, Gil, Moctezuma, Morgan, and Chavez), the Security Officer Plaintiffs (Hamada and Herrera), and the sergeant Plaintiff (Bartee) cannot work remotely because their duties require them to be at LAUSD facilities in person. (Ramirez Decl., Exhs. H-K.)

The detective, Plaintiff Gray, would not have been able to access the sensitive information necessary for him to complete his duties because he is not permitted to do so under DOJ regulations. (Ramirez Decl., ¶5, Exh. L.) Moreover, Gray would not have been able to perform other essential functions of his job, such as responding to emergencies, responding to crime scenes and conducting in-person interviews. (Id.)

As for the data analyst, Plaintiff Guevarra, Leslie Ramirez testified that data analysts worked closely with DOJ database data and other sensitive data, meaning Guevarra was also required to work at LAUSD facilities to meet DOJ requirements. (Ramirez Decl., ¶ 5.) 

With respect to the masking, testing, and social distancing accommodations, LAUSD’s Chief Medical Officer, Malhotra, testified that despite LAUSD taking these measures in early 2021, COVID-19 cases and deaths continued to rise and COVID-19 continued to pose a threat to the health and safety of LAUSD students and staff. (Malhotra Decl., ¶¶9-11.) Additionally, COVID-19 disrupted the learning environment because students and staff could miss up to 10 days of instruction if infected. (Id.) Malhotra’s declaration thus shows that the alternative accommodations would have been ineffective to protect the health and safety of LAUSD students and staff. 

Defendant provides evidence to support this factor.

2. The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility: 

LAUSD has a large reach because it served hundreds of thousands of students, hundreds of schools, and tens of thousands of employees. However, Defendant fails to provide evidence of the impact of the expenses and resources of the Group 3 Plaintiffs’ requested accommodations on its facilities’ operations. 

3. The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities:

As discussed above, LAUSD has a large reach with over 70,000 employees and 784 schools. (Malhotra Decl., ¶2.) Malhotra testifies that because LAUSD is so large, LAUSD was concerned about protecting the health of the broader community, which had already been disproportionately impacted by the pandemic. (Id., ¶8.) Additionally, COVID-19 infection could disrupt learning environments by forcing students and staff to miss up to 10 days of instruction. (Id., ¶11.) Across 784 schools, it is reasonable to infer the impact of continued infection caused by unvaccinated employees would have been significant. 

Defendant provides evidence to support this factor.

4. The type of operations, including the composition, structure, and functions of the workforce of the entity:

As the former chief of LASPD testifies, LASPD officers must be physically present at LAUSD facilities to respond to certain emergency situations and all-hands-on-deck situations. (Ramirez decl., ¶¶5-8.) Additionally, LASPD presence at certain facilities is necessary to deter theft of LAUSD assets. (Id.) Because physical presence is so important to the functions of LASPD, the accommodation would have caused a significant negative impact on the work of the LASPD.

Defendant provides evidence to support this factor.

5. The geographic separateness or administrative or fiscal relationship of the facility or facilities:

Defendant does not provide evidence to support this factor.

Because Defendant provides evidence to support a number of these factors, Defendant meets its burden of showing no triable issues of material fact exist over whether supplying the Group 3 Plaintiffs’ requested accommodations would have constituted undue hardship.

The burden shifts to Plaintiffs.

According to Plaintiffs, there was a reasonable accommodation of masking, social distancing and regular testing. (Opposition at pg. 8.) 

Plaintiffs argue that since they have offered another accommodation that was reasonable, there is a genuine issue of material fact as to whether Defendant has met its statutory burden to initiate good faith efforts to accommodate Plaintiffs’ religious beliefs. (Opposition at pgs. 8 to 9.)

However, a defendant need not initiate good faith efforts to accommodate a plaintiff if a defendant establishes that the accommodation requested would have created an undue hardship.

Plaintiffs argue that the “alleged undue hardship” associated with granting Plaintiffs’ requested accommodation and exemption from the vaccine mandate merits closer scrutiny from the fact finder. (Opposition at pg. 9.) 

In terms of evidence showing the existence of a genuine issue of material fact as to the existence of an undue hardship, Plaintiffs do not produce any. (See Plaintiffs’ Separate Statement, Plaintiffs’ Response and Supporting Evidence, Paragraphs 8 through 20.) All of these paragraphs of Defendant’s separate statement are either undisputed or contain objections that have not been sustained.  Significantly, Plaintiffs do not dispute that the educational process was being negatively impacted by COVID to a significant degree despite the existence of the protocols Plaintiffs sought as an accommodation, testing, masking, etc. (Plaintiffs’ Separate Statement, Plaintiffs’ Response and Supporting Evidence, Paragraph 14.) Plaintiffs also do not dispute that the recommendation at the time was that the vaccine was the best strategy for fighting COVID. (Plaintiffs’ Separate Statement, Plaintiffs’ Response and Supporting Evidence, Paragraph 17.) Although Plaintiffs argue in their opposition brief that the medical consensus was that being vaccinated does not preclude one from acquiring COVID-19 and only lessens the symptoms, Plaintiffs produce no evidence to support this assertion. (Opp. at p.2.) Plaintiffs produce no evidence to counter the evidence showing that Defendant’s decision to issue a vaccine mandate was necessary to support the safety of students, staff and the community by minimizing the risk of transmission of COVID and to ensure that Defendant could continue to provide vital educational services. (Plaintiffs’ Separate Statement, Plaintiffs’ Response and Supporting Evidence, Paragraphs 18, 19.)

Plaintiffs point to deposition excerpts and argue that some of their positions could have been performed remotely or that other accommodations were available. 

Cardenas testified that he believed there were other accommodations available, such as social distancing, masking, testing, or remote work. (Cardenas Depo., 88:12-24; 96:24-97:3.) Additionally, prior to the vaccine mandate, these accommodations were available. (Id., 106:9-12.) After participating in meetings over these proposed accommodations, Cardenas’s requested accommodations were denied, though the possibility of remote work was not discussed. (Id., 107:5-12; 108:13-17.)

As discussed above, Defendant provided sufficient evidence that masking, social distancing, and testing would have posed undue hardship on Defendant because deaths due to COVID-19 had continued to rise despite these measures at the time Cardenas requested these accommodations. Thus, allowing Cardenas and the other officers in similar positions to continue working at LAUSD sites would have been a risk to health and safety and posed undue hardship on Defendant. 

With respect to remote work, Cardenas and all other Plaintiffs do not dispute the conclusions of then Chief Ramirez that remote work was not possible for their positions. (Plaintiffs’ Separate Statement, Plaintiffs’ Response and Supporting Evidence, Paragraphs 34-46.)

Gilmore, Herrerra, Moctezuma, Morgan, and Chaves all testified that they requested the same accommodations as Cardenas and that they could not be accommodated. (Gilmore Depo., 57:3-13; 56:16-23; 86:8-25; Herrera Depo., 30:6-12; 34:6-24; Moctezuma Depo., 34:21-35:6; Morgan Depo., 45:21 46:2; Chavez Depo., 32:3-17.) Bartee also testifies that she was not provided any accommodation. (Bartee Depo., 49:25-50:4.) These Plaintiffs’ testimony is insufficient to show a triable issue of material fact remains over whether the requested accommodations posed undue hardship for the same reasons as for Cardenas.

Gray testified that he offered to work remotely and that he could have worked out of police stations and that he regularly knocked on doors to perform his job. (Gray Depo., 42:11-43:2.) However, Gray also admits that police stations are still considered district grounds. (Id., 43:3-22.) Additionally, Gray’s work involved making contact with students and teachers, meaning he would still have posed a risk to the health and safety of students and other employees even if he made the visits alone and the work was not performed at an LAUSD site. (Id., 43:23-44:22.) Gray’s arguments thus fail for the same reasons as Cardenas'. Moreover, Gray does not dispute that he required access to sensitive information and would have had to work at an LAUSD site to access the information according to DOJ requirements. 

Finally, Guevara testified that she could have worked in any “safe” building that offered sufficient protection for the confidential information she accessed to perform her work. (Guevara Depo., 69:4-21.) Guevara testified that working from her own home would not have compromised data because Defendant set up a firewall that would have prevented others from accessing information she would have had access to from her home. (Id., 69:22-70:9.)

Defendant also provided emails to and from Guevara regarding her accommodation requests. In one dated October 12, 2021, Guevara states she has an LASPD issued laptop with access to all the information needed to complete her work from home and remote access to her work computer which was established at the beginning of the pandemic. (Sanchez Decl., Exh. Y-3.) However, in Defendant’s response to Guevara’s letter, Defendant’s Committee on Reasonable Accommodations Based on Sincerely Held Religious Beliefs stated that although Guevara was allowed to work remotely during quarantine, that was a temporary accommodation in an emergency situation. (Id., Exh. Y-4.) 

Defendant’s response to Guevara and the declaration of Leslie Ramirez show that the DOJ prohibits remote access to these files. Moreover, as noted above, Plaintiffs do not dispute the conclusions of then Chief Ramirez that remote work was not possible for their positions. (Plaintiffs’ Separate Statement, Plaintiffs’ Response and Supporting Evidence, Paragraphs 34-46.)

Therefore, Guevara does not show that there is a genuine issue of material fact as to the issue of undue hardship.

Plaintiffs did not include any additional specific evidence with respect to Plaintiffs Gil and Hamada.

Plaintiffs fail to meet their burden of demonstrating a triable issue of material fact remains over whether their requested accommodations would have constituted an undue hardship. The motion is granted as to this cause of action.

Third Cause of Action – Failure to Engage in a Thorough Interactive Process 

Finally, Defendant argues that the third cause of action for failure to engage in a thorough process to determine whether the Group 3 Plaintiffs could work vaccine free falters because it did engage in such a process.

Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code, § 12940(n).) 

Here, Defendants’ evidence shows the Group 3 Plaintiffs’ accommodation requests were based on religious conflict with a requirement of employment, not a physical or mental disability or known medical condition. Therefore, the provisions of Gov. Code, section 12940(n) do not apply to the Group 3 Plaintiffs. Defendants thus meet their burden of showing no triable issue of material fact remains over whether they are liable under Gov. Code, section 12940(n) as to the Group 3 Plaintiffs. 

The burden shifts to Plaintiffs. Plaintiffs do not dispute that their accommodation requests were based on religious beliefs, not a physical disability, mental disability, or medical condition. Therefore, Plaintiffs fail to meet their burden of proving that Defendant is liable for violations of the FEHA under Gov. Code, Section 12940(n) as to the Group 3 Plaintiffs. The motion is granted on this ground.

2. Luciano

Defendant moves for summary judgment against Plaintiff Shaun Luciano. Defendant argues that that (1) Luciano did not suffer an adverse employment action, (2) Luciano cannot show that he was able to perform the essential duties of his position, (3) Defendant had a legitimate, non-discriminatory reason for the vaccine mandate and there is no evidence of pretext, (4) Luciano’s claims are not ripe as they require the Court to speculate what actions Defendant will take, (5) Luciano’s requested exemption would have caused Defendant undue hardship, (6) Luciano’s proposed accommodation was not reasonable, (7) Defendant engaged in a thorough process to determine whether Luciano could work without a vaccine, and (8) Luciano cannot identify a reasonable accommodation that was available. 

Defendant’s Exhibits A-M are the same as for the Group 3 Plaintiffs.

First Cause of Action – Discrimination in Violation of FEHA

Adverse Employment Action

Defendant first argues that there was no adverse employment action against Luciano because he was never suspended or terminated. Defendant also argues that Luciano’s claims are not ripe because he merely alleges that he may suffer injury at some point, which would require the Court to speculate as to what actions Defendant will take in the future. Defendant submitted substantially similar evidence for Luciano as for the Group 3 Plaintiffs. 

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).) 

“[A]lthough 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, supra, 36 Cal.4th at 1052.)

Here, Defendant provides evidence that the Luciano suffered no adverse employment action as a result of its COVID vaccine requirement.

Luciano, a sergeant, was on approved worker’s compensation leave for an elbow injury at the time the vaccine mandate took effect. (UMF No. 52; Luciano Depo., 32:6-15.) Luciano was injured in May 2021when he broke an elbow, developed a bone spur, and sustained damage to his tendons. (Id., 27:18-28:11.) He was categorized as temporarily totally disabled through the remainder of 2021 and was scheduled to undergo surgery in March 2022, but the procedure was cancelled. (Id., 30:12-31:17.) Luciano’s doctor would not clear him for work with the injury after the surgery was cancelled. (Id., 32:6-15.) By August 2022, the surgery had not been rescheduled. (Id.) Even if he had been vaccinated, Luciano could not have returned to work because of his injury. (Id., 67:23-68:8.) Luciano returned to active status from worker's compensation leave on March 3, 2023. (Garza Decl., ¶11.)

On September 16, 2021, while out on workers’ compensation leave, Luciano submitted a reasonable accommodation application based on a sincerely held religious belief. (Luciano Depo., 53:16-54:4, 63:10-14; Motino, Exh. O-2.) Luciano met with LASPD heads to discuss accommodations. (Id., 56:19-57:10, 58:1-14.) Luciano suggested that he could be tested weekly, practice social distancing, wear a mask, or change duties instead of being vaccinated. (Id.) Luciano received monthly requests to attend a pre-disciplinary meeting because he had not been vaccinated, but responded to each request by informing LAUSD that he was on leave. (Id., 79:1-80:9.)

Defendant’s evidence shows that Luciano has not suffered an adverse employment action because he was not required to miss work as a result of being unvaccinated and no other conduct from LAUSD affected the terms, conditions, or benefits of his employment.

The burden shifts to Luciano. Luciano argues that he felt that he was treated differently based on his religious beliefs and that he was forced to be vaccinated to return to work. However, Luciano submits no evidence in support of this argument showing he was treated differently or forced to be vaccinated in order to return to work. He returned to work after being on worker's compensation leave due to an injury and does not provide evidence that he had to be vaccinated to return to work when he was physically able to do so. 

Luciano also argues that the pre-disciplinary hearings would have led to discipline, including termination. However, Luciano never attended these meetings because they were repeatedly delayed due to his unrelated elbow injury. Additionally, Luciano was never disciplined as a result of these meetings. 

Summary judgment is granted with respect to the cause of action for discrimination because Luciano suffered no adverse employment.

Second Cause of Action – Failure to Accommodate in Violation of FEHA

Defendant next argues that the cause of action for failure to accommodate fails as a matter of law because it would have suffered undue hardship if it accommodated Luciano’s religious beliefs and because the claim is not ripe. 

The Court does not believe that a failure to accommodate claim may lie here because Luciano never needed an actual accommodation as he was physically unable to return to work due to an elbow injury until March 2023 and did not request any religious accommodation upon his return. Plaintiff does not and cannot establish any harm caused by the alleged failure to accommodate, a required element of the cause of action, since Luciano was on paid worker's compensation leave for the entire time period at issue and the leave had nothing to do with COVID or the failure to take a vaccine for COVID. (CACI No. 2560).  

The burden shifts to Luciano.

Luciano cannot and does meet his burden. 

Summary judgment is granted as to this cause of action.

Third Cause of Action – Failure to Engage in a Thorough Interactive Process in Violation of FEHA

Finally, the motion is granted with respect to the cause of action for failure to engage in a thorough interactive process for the same reasons as the Group 3 Plaintiffs.

DATED:  February 7, 2024

______________________________

                                                                      Hon. Jill Feeney

                                                                      Judge of the Superior Court