Judge: Jon R. Takasugi, Case: 19STCV19990, Date: 2022-09-14 Tentative Ruling

Case Number: 19STCV19990    Hearing Date: September 14, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ motion for summary judgment is GRANTED.

On 6/7/2019, Plaintiff Daryl Ellis (Plaintiff) filed suit against Alhambra Unified School District (AUSD), Christa Van Orden, Anna Kuo, and Alhambra Educational Foundation (AEF).

            On 2/17/2022, Plaintiff filed a fifth amended complaint (5AC), alleging: (1) writ of mandate; (2) racial discrimination; (3) age discrimination; (4) disability discrimination; (5) harassment; (6) failure to engage in interactive process; (7) failure to reasonably accommodate; (8) failure to prevent discrimination and harassment; (9) violation of Labor Code section 1102.5(b)(c); (10) intentional infliction of emotional distress; and (11) common law and statutory fraudulent concealment.

            Now, AUSD, Christa Van Orden, and Anna Kuo (collectively, Defendants) move for summary judgment of Plaintiff’s second, third, fourth, fifth, sixth, seventh, and eighth causes of action.

Evidentiary Objections

CCP 437c, subdivision (q) provides:

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

In light of CCP 437c, subdivision (q), the Court sustains Defendants’ Objection Nos. 2, 3, 12, 26, 42, 44, and 60.

Discussion

I.                   Race Discrimination

Defendants argue that Plaintiff’s race discrimination cause of action is barred for failure to exhaust administrative remedies, because only his non-reelection was an adverse employment action, and because Plaintiff was terminated for legitimate non-discriminatory business reasons.

A.    Time-Barred

To show that Plaintiff’s claim is time-barred, Defendants submitted a copy of Plaintiff’s EEOC claim. (See Defendants’ RJN, Exh. A.)  There, Plaintiff indicated that the dates of alleged racial discrimination (among other conduct) took place between 8/8/2017 and 5/31/2018. (Ibid.) While Plaintiff filed a separate complaint with the DFEH in May 2018, said complaint contained no claim of race discrimination. Therefore, any acts of purported race discrimination occurring after 5/31/2018 are barred for failure to exhaust administrative remedies.

Defendants’ evidence supports a reasonable inference that Plaintiff’s race discrimination claim is time-barred as to all events after 5/31/2018. Accordingly, the burden shits to Plaintiff to disclose a triable issue of material fact.

In opposition, Plaintiff argues that the his administrative complaint included the following allegations:

AUSD's multiple high ranking Supervisors and School administrators led a race, retaliation and harassment, hostile work environment and constructive discharge based illegal employment discrimination against the sole African American Mr. Ellis because Ellis did not resign from AUSD employment by the 13th of Feb., 2018. The AUSD Supervisors did not take appropriate steps to prevent and correct unlawful discrimination based on racial, disability, retaliation, harassment, and hostile work environment against their sole African American Full Time Elementary Teacher—Mr. Ellis.

            (Complaint, p 4.)

Because the Court concludes below that Plaintiff has not established any of his causes of action, the Court need not determine at this time whether or not any portion of Plaintiff’s claims would otherwise be time-barred.

B.    Adverse Employment Action

Defendants argue that Plaintiff cannot show an adverse employment action beyond non-reelection because Plaintiff was not misclassified, and the remaining alleged conduct does not rise to the level of an adverse action.

As to misclassification, Plaintiff claims that he should have been classified as a probationary employee because he was not issued a written classification letter for the period of March through May 2016. However, Defendants submitted evidence that Plaintiff voluntarily entered into a written contract on August 5, 2015 to serve as an on-call day to day substitute for the 2015/2016 school year (from August 14, 2015 to May 27, 2016). (SS ¶ 1.) While Plaintiff was an on-call day to day substitute, his time under that contract could not have counted as service toward his two-year probationary period pursuant to Education Code § 44918(d). He then received a valid written fulltime employment offer for the 2016/17 school year, which he accepted on June 10, 2016. (SS ¶ 5.) Permanent teachers are those who a school district has employed for two complete consecutive school years as probationary teachers and who have been “reelected” (retained) for the next succeeding school year. (Education Code § 44929.21(b).) Here, Plaintiff did not work two complete years as a probationary employee by the time he was non-reelected in February 2018. 

As to transfer, Defendants submitted the following evidence to show that Defendants’ decision to transfer Plaintiff to another class was not an adverse employment action:

-         Plaintiff was as a substitute teacher in the 2015-16 school year. Pursuant to Education Code § 44909, Plaintiff was offered a written contract to serve as an On-Call substitute on a day to day basis for the period of August 14, 2015 through May 27, 2016, which he accepted in writing on August 5, 2015. (SS ¶ 1.)

-         In January 2016, one of AUSD’s permanent elementary level music teachers went on leave, and Plaintiff began covering her classes as a longterm substitute teacher until the end of that school year. (SS ¶ 2.)

-         In May 2016, following an applicant interview with Janet Lees, on April 20, 2016, AUSD selected Plaintiff to offer a full-time position as a Temporary employee for the 2016-17 school year. (SS ¶ 4.) Plaintiff accepted this offer on June 10, 2016. (SS ¶ 5.)

-         Pursuant to AUSD’s Memorandum of Understanding (“MOU”) with the teacher union, administrators have discretion to assign teachers to different assignments. (SS ¶ 10.)

-         AUSD divides its music teachers in teams. At all relevant times, the teams were numbered A through D. (SS ¶ 11.)

-         During the 2016-17 year, Plaintiff was assigned on music Team C teaching 3^rd-8th graders. When Plaintiff was assigned to Team C, the decision was not based on his age or race. (SS ¶¶ 11, 15.)

-         In early 2017, Ms. Van Orden made the decision not to re-elect the two teachers who were serving on Team D at the time. Ms. Van Orden had to reassign teachers and adjust assignments to cover the empty spots on Team D for the next school year. (SS ¶¶ 16, 18.)

-         Team D TK-2 music instruction consisted of basic rhythm, singing, chanting, and leaning basic music foundation, and Team D instructors were assisted by the students’ regular teachers unlike Team C. (SS ¶ 21.)

-         Ms. Van Orden made the decision to reassign Plaintiff from Team C to Team D for the 2017/2018 school year. (SS ¶ 25.)

-         Based on his personality, singing talent, and Team D’s focus on basic rhythm, singing and changing, Ms. Van Orden felt Plaintiff would be better fit for the young students. (SS ¶ 26.)

-         On February 27, 2018, after Plaintiff was re-assigned to a new classroom at the Granada School, Plaintiff emailed Principal Ng requesting a classroom key and a gate key to a gate closer to the parking lot. (SS ¶ 225.)

-         Principal Ng responded that he did not have extra keys that Plaintiff could check out at the time, but issued Plaintiff the requested room key. (SS ¶ 226.)

-         Plaintiff claims that he requested a spot at the Granada School parking lot. While AUSD has no record of such a request, the parking lot at the school is small and works on first come first serve basis. The majority of the teachers had to use street parking. (SS ¶ 227.)

Finally, Defendants argue that claims that Plaintiff was denied access to a gate key or denied a parking spot do not rise to the level of an adverse employment action.

Under FEHA, an “adverse employment action” must “result in a material change in the terms of employment, impair employment in some cognizable manner, or show some other employment injury.” (Thomas v. Dept. of Corrections (2000) 77 Cal.App.4th 507, 511. Such an action “must be both detrimental and substantial.” (Id. at p. 512.) In Thomas, the Court explained"[i]f every minor change in working conditions or trivial action were a materially adverse action then any action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." (Id. at p. 511.) "Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action. [Citation.]" (Ibid.)

Here, Defendants’ evidence supports a reasonable evidence that Plaintiff was not misclassified and Plaintiff’s transfer, the denial of access to a gate key, and denial of a parking spot do not rise to the level of the an adverse employment action. Defendants’ evidence indicates that the transfer from Team C to Team D was a lateral move which did not include a demotion of any kind and which had the same hours and the same pay. Defendants’ evidence also supports a reasonable inference that the denial of a parking spot or gate key did not cause any material change in Plaintiff’s employment, and thus did not constitute an adverse employment action. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

In opposition, to show that his transfer constituted an adverse employment action, Plaintiff argued in full: “Orden was well aware of Plaintiff's physical disabilities (as addressed below) and yet described Plaintiff as a "Strong Black Male," (a clear racial stereotype) completely disregarding the needs of a 60 plus year old teacher dealing with multiple physical disabilities, who legitimately required an accommodation. A triable issue of material fact exists as to whether Van Orden's removal of Plaintiff from the Accommodated Team C, constitutes an adverse employment action.” (Opp., 14: 23-15:1.) Plaintiff then cited Plaintiff’s response to UMF Nos. 52 and 54 and his UMF No. 86. However, UMF concerns when Van Orden allegedly notified Plaintiff of the date he could voluntarily resign, and UMF No. 54, which was undisputed by Plaintiff, states” On February 20, 2018, the decision not to re-elect became final by a vote of the Board.” As such, it unclear how this evidence tends to support Plaintiff’s contention that his transfer was an adverse action. Moreover, even setting this aside, a contention that Defendants failed to accommodate him in his new position does not show that the transfer itself was an adverse employment action. Plaintiff did not submit any case law to show that an employment transfer that otherwise would not constitute an adverse employment action could become one if it could require that reasonable accommodation be provided as part of the transfer.

To show that his misclassification constituted an adverse employment action, Plaintiff submitted evidence that at the time Plaintiff was hired for the March to May 2016/16 position, AUSD failed to provide Plaintiff with the required CA Education Code Section 44916 classification written statement. (SS ¶ 1.)

Plaintiff does not advance any argument to show that the failure to provide him a parking space or a gate key constituted an adverse employment action.

To show that these actions were the product of racial discrimination, Plaintiff argues that “AUSD hired five other race and younger similarly situated Elementary Music Teachers/VAPA members on or about 2015 and 2016 that all received significantly better terms and conditions of employment than Plaintiff, an African American male at the time 60 years of age and at least 20 years older than all of the five other younger workers.” (Opp., 16: 5-8.) However, the document submitted in support does not indicate the age or race of any of the employees. More importantly, the document in no way establishes that these individuals received “significantly better terms and conditions of employment than Plaintiff.” Indeed, the document does not provide any information about the terms and conditions of their employment, beyond the individuals name, position, work location, and effective date of work. Accordingly, Plaintiff has not submitted any admissible evidence to establish that these employees were “treated more favorably than Plaintiff in terms of hiring, pay, classification, status, age and race treatment.” (Plaintiff’s Opp., 16: 5-9.)

C.    Legitimate Non-Discriminatory Reasons for non-reelection

Defendants also argue that, even assuming Plaintiff could state a prima facie case of discrimination, Defendants had legitimate non-discriminatory reasons for deciding not to reelect Plaintiff.

Under the McDonnell Douglas framework, the employer must carry the burden of showing the employee's action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) It may do so with evidence that either: (1) indicates “that one or more of plaintiff’s prima facie elements is lacking,” or (2) shows some legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

If defendant meets its burden, the burden then shifts to the plaintiff to produce substantial evidence that the employer’s showing was untrue or pretextual by raising at least an inference of discrimination or retaliation. (Hersant v. California Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “In short, by applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’ [Citation.]” (Caldwell, supra, 41 Cal.App.4th at p. 203.)

 In support of its contention that it had legitimate non-discriminatory reasons for deciding not to reelect Plaintiff, Defendant submitted evidence that:

-         After Ms. Van Orden re-assigned Plaintiff to Team D for the next school year, she was informed by Mr. Ellis’ teammates from Team C that they had concerns about his teaching style. (SS ¶ 30.)

-         Ms. Van Orden was informed that there were complaints Plaintiff was not actually teaching students to play instruments and was letting students play video games in class; that students were not showing up for practice; and that students were holding instruments as props and not playing; and that Plaintiff was improperly giving teacher worksheets to students. (SS ¶ 31.)

-         Based on these concerns, at the beginning of the next school year, Ms. Van Orden discussed supervision of Mr. Ellis with Granada’s Principal Christopher Ng and Vice Principal Rosa Soria. (SS ¶ 32.)

-         Principal Ng was assigned as Plaintiff’s evaluator for the school year along with Ms. Soria. (SS ¶ 36.)

-         As a result of this assignment, Principal Ng personally observed Plaintiff’s work performance for purposes of evaluating him, and he also delegated observational duties to the school’s Vice Principal, Rosa Soria and instructed her to attend unscheduled visits to Plaintiff while he taught and report to Mr. Ng about his teaching. From time to time, Ms. Soria would report to Mr. Ng about her observations of Plaintiff in his classroom, and Mr. Ng would use the information Ms. Soria provided to me for his evaluation of Mr. Ellis. (SS ¶ 37.)

-         Thereafter, on multiple occasions Granada School’s vice principal, Rosa Soria, personally observed Plaintiff avoid physical demonstration of how to play musical instruments; Plaintiff instead played YouTube videos for students to teach them how to play those instruments. (SS ¶ 38.)

-         Vice Principal Soria repeatedly asked Plaintiff to discontinue using YouTube and personally demonstrate the instruments, but Plaintiff did not do so and continued to using YouTube videos instead of personal instruction. (SS ¶ 39.)

-         On multiple occasions throughout the Fall 2017 semester of the 2017-2018, Vice Principal Soria informed Principal Ng that she had personally observed Plaintiff teach his music classes at the Granada School Campus, and that on multiple occasions she had dropped into Plaintiff’s classes unannounced in order to observe him. During said visits, Ms. Soria observed Plaintiff showing his students YouTube videos to teach them how to play different musical instruments, rather than personally demonstrating how to play the instruments himself. (SS ¶ 40.)

-         Ms. Soria informed Principal Ng that she had verbally counseled Mr. Ellis that he should switch from You Tube to personal demonstrations. (SS ¶ 41.)

-         Granada School Principal Ng also dropped into Plaintiff’s classes on several occasions during the Fall 2017 semester. These visits were also unscheduled. On these occasions, he observed Mr. Ellis to be disorganized and felt he had inadequately prepared for the class. During these drop-in visits, he also spoke with various students of Plaintiff’s about their music classes, and the students told Mr. Ng, Plaintiff was using YouTube videos to instruct the students on how to play their instruments. The information Mr. Ng received from the students was consistent with the information he received from Ms. Soria following her own visits to observe Plaintiff. Mr. Ng’s personal observations of Plaintiff’s teaching was consistent with the information he had received from Ms. Soria following her visits to Plaintiff. Principal Ng took all of the information he personally observed as well as the information he received from the students and used that information in his formal evaluation of Plaintiff’s job performance for the 2017/2018 school year. (SS ¶ 42.)

-         During a performance development day with all music teachers, Ms. Van Orden personally observed Plaintiff play the violin and she concluded he was struggling playing the instrument. Ms. Van Orden became concerned that Plaintiff did not know how to play any instruments other than keyboards, and that singing was his primary musical talent. (SS ¶ 44.)

-         Based on the observations of the Granada School administrators Ng and Soria, her own observations, and the ongoing concern about Plaintiff’s ability as a music teacher, Ms. Van Orden determined Plaintiff was not a good fit to become a permanent music teacher for AUSD. (SS ¶ 46.)

-         The concerns around Plaintiff’s ability to provide instrumental musical instruction was important to the decision not to re-elect Plaintiff because AUSD’s music program was performance –based in terms of students learning specific instruments and being able to perform specific songs at the end of the year. (SS ¶ 47.)

-         Plaintiff was not re-elected because he was seen too many times teaching students how to play instruments by using YouTube instead of personal demonstration as is the AUSD policy, despite being counseled to personally demonstrate, and given his continued failure to give personal instruction, Ms. Van Orden found him not to be a good fit for AUSD, and if she re-elected him for the next school year, he would have automatically become a permanent employee the following school year. (SS ¶ 47.)

Taken together, Defendants’ evidence supports a reasonable inference that Plaintiff was not re-elected because there were serious concerns as to whether or not he was able to play the instruments he was responsible for teaching, and because he was seen too many times teaching students how to play instruments by using YouTube instead of personal demonstration as he was counseled to do so, and as is required by AUSD policy. Accordingly, the burden shifts to Plaintiff to show evidence of pretext.

Plaintiffs may demonstrate pretext by “demonstrat[ing] such weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ . . .  and hence infer ‘that the employer did not act for the [asserted] non-discriminatory reasons.’ [Citation.]” (Moore, supra, 248 Cal.App.4th at pp. 235-236.) Plaintiffs may also show pretext by making their own evidentiary showing that Defendant had a retaliatory motive in terminating their employment. “The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. . . . The employer [is entitled] to summary judgment only when the employee’s showing . . . is too weak to sustain a reasoned inference in the employee’s favor.” (Light v. Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 94.)

In his opposition, Plaintiff argues: “Rather than address Plaintiff in a respectful manner (i.e. teacher Mr. Ellis), Van Orden racially categorized Plaintiff by calling him a "Strong Black Man," and used such racial pretext as a justification for eliminating Plaintiffs Team C accommodation. [] It is clear that Van Orden was determined to drive Plaintiff from the AUSD school district as she used Principal Ng and Vice Principal Soria as pawns in her plan to get rid of Plaintiff. (Opp., 20: 26-21:2.)

In support, Plaintiff relies on evidence including that he received a bachelor’s degree in Music Education, and that he received highly positive performance reviews and “glowing” letters of recommendation. Plaintiff also relies on his own declaration to argue that he never used YouTube to instruct his students, nor did he allow his students to use the computer. However, every letter of recommendation and all but one performance review is from the time before Plaintiff was transferred to Team D. Here, there is no dispute about his performance prior to his transfer. Rather, Defendants contend that after his transfer to Team D, which required a different type of musical instruction than Team C, Plaintiff failed to adequately perform and thus was not reelected. As such, Plaintiff’s performance reviews and recommendations prior to transfer do not establish inconsistencies in Defendants’ explanation for Plaintiff’s non-reelection after the 2017/2018 school year. Moreover, contrary to Plaintiff’s contention, the performance review from the 2017/2018 does make a number of recommendations, including to “Model by playing the instrument that students are playing (strings).” As such, this evidence fails to demonstrate any weaknesses or inconsistencies in Defendants’ proffered reason for not reelecting Plaintiff.

Moreover, Plaintiff has not submitted any evidence which could support a reasonable inference that race played any role in the decision not to reelect Plaintiff.  Evidence that on a single occasion, at the time of the initial transfer, Van Orden said that she had chosen Plaintiff for Team D because he was strong Black man, cannot support a reasonable inference that the later decision to not reelect him was based on race. The only other evidence that Plaintiff relies on to show any comments about race was made is a contention that “[d]uring a school lunchroom break at Baldwin Element, a white male teacher hollered GET OUT, which was currently then the title of a widely advertised, racially discriminatory motion picture.” (SS ¶ 64.) Setting aside the fact that Get Out is a film by a black filmmaker critiquing racism in America, evidence that an unidentified teacher with no decisionmaker power here shouted on a single unspecified occasion “GET OUT”  without context at no one in particular is insufficient to support a reasonable inference that race played a role in Defendants’ decision not to reelect Plaintiff. 

“The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus….” (Light, supra, 14 Cal.App.5th at p. 94.)

Here, Plaintiff has not submitted any evidence which could support a reasonable inference that Defendants’ proffered reason for his termination was pretextual and was actually the product of discriminatory animus.

II.               Age Discrimination

Defendants argue that Plaintiff cannot establish this claim because he cannot show that age played a role in the decision not to reelect him, and that this decision was made based on legitimate non-discriminatory reasons.

In support, Defendants relied on the same evidence set forth above, as well as evidence that the teacher assigned to replace Plaintiff was around 64 years old the time, and retired at the end of the 2017/2018 year. (SS ¶ 106.) As such, Plaintiff was replaced by another teacher over the age of 60.

Defendants’ evidence supports a reasonable inference that Plaintiff cannot show that he was not reelected because of his age. Moreover, as set forth above, Defendants’ evidence supports a reasonable inference that it decided not to reelect Plaintiff based on nondiscriminatory reasons.  Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

Here, the only evidence relied upon by Plaintiff to show age discrimination is that “Plaintiff was subjected to disparate treatment as contrasted with much younger new hires in several critical ways, most notably in terms of hiring, pay, classification status, age and race treatments.” (Opp., 18: 1-3.)

However, as set forth above, Plaintiff did not submit admissible evidence to support this contention. Moreover, the only evidence Plaintiff submitted to dispute that Plaintiff’s Team D colleague, who was significantly younger than Plaintiff and her 40s was also not reelected, was Plaintiff’s own declaration stating that “There is no public AUSD Board Record of any teacher in the entire AUSD being presented for Board vote of non-reelection via HR for over 10 straight years the February 20, 4 2018, Board vote to not reelect me.” (Plaintiff Decl., ¶ 89.) This falls short of indicating that Plaintiff’s colleague was also not reelected.

Taken together, Plaintiff’s evidence fails to support a reasonable inference of pretext or any discriminatory animus based on age.

III.            Disability Discrimination

Defendants argue that Plaintiff cannot establish this claim because he cannot show that his disability played a role in the decision not to reelect him, and that this decision was made based on legitimate non-discriminatory reasons.

            In support, Defendants relied on the same evidence set forth above, as well as evidence that:

-         Defendants Van Order and Kuo did not know Plaintiff had any disabilities or medical conditions (SS ¶ 239)

-         Plaintiff had a hearing operation in 2017. He was fully recovered and had regained his hearing by summer 2017. (SS ¶ 244.)

-         Plaintiff’s medical records regarding his hearing operation in 2017 contained no restrictions. (SS ¶ 245.)

-         Plaintiff has no doctor’s note stating that he has any restrictions as a result of his diabetes. He only took some time off work to obtain maintenance medicines and then returned to work. (SS ¶ 245.)

-         Plaintiff filed a workers compensation claim for a back injury in March 2015, for which he briefly held doctor-ordered medical restrictions of no lifting/pulling/pushing greater than 25 lbs. In April 2015, his doctor then cleared him to return to work without any further restrictions. (SS ¶ 247.)

-         Plaintiff admitted he did not have any back issues in 2016 and 2017 for which he needed to see a doctor. Plaintiff only saw a doctor for back pain on February 14, 2018, and recalled no other back pain issues for the remainder of 2018. (SS ¶ 249.)

-         Plaintiff did not tell anyone at AUSD that he could not do any portion of his job duties because of back problems during the 2016/2017 school year. (SS ¶ 250.)

-         Plaintiff did not tell anyone at AUSD that he could not any portion of his job duties because of back problems during the 2017/2018 school year. (SS ¶ 251.)

-         In 2017-2018, Plaintiff was under the care of a cardiologist but did not recall giving any notes to the school to let them know Team D was aggravating his condition. In fact, Plaintiff could not even remember the name of his doctor. SS ¶ 253.)

Defendants’ evidence supports a reasonable inference that Defendants did not have notice of Plaintiff’s disability. Moreover, as set forth above, Defendants’ evidence supports a reasonable inference that it decided not to reelect Plaintiff based on nondiscriminatory reasons. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

In opposition, Plaintiff submits evidence to show that Defendants had actual or constructive knowledge of his disability. However, Plaintiff does not submit any evidence which could show that disability played any role in the decision not to reelect him. Rather, Plaintiff himself argues that “[r]ather than address Plaintiff in a respectful manner (i.e. teacher Mr. Ellis), Van Orden racially categorized Plaintiff by calling him a "Strong Black Man and used such racial pretext as a justification for eliminating Plaintiffs Team C accommodation.” (Opp., 20:26-21:1.) This evidence does not speak to disability discrimination.

IV.            Harassment

Defendants argue that Plaintiff has not produced any evidence that could show harassment on any basis.

A prima facie case for harassment in violation of FEHA requires the following elements: (1) plaintiff belongs to a protected group; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment complained of was based on protected status; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) Whether the conduct complained of is sufficiently pervasive must be determined “from the totality of the circumstances.”  (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 609.) “The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Id. at pp. 609-610.)

Harassment typically does not include conduct necessary for management of the employer’s business or performance of the supervisory employee’s job. (Reno v. Baird (1998) 18 Cal.4th 640, 647.) Rather, “harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification for meanness or bigotry, or for other personal motives.” (Ibid.)  However, “[s]ome official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias.” (Roby v. McKesson, supra, 47 Cal.4th at p. 709.) Accordingly, commonly necessary personnel management actions can support a harassment action, “so long as that evidence [of biased personnel management actions] is relevant to prove the communication of a hostile message.”  (Ibid.) To determine whether a work environment is sufficiently hostile, the court looks at all the circumstances including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (Harris v. Forklift Systems, Inc. (1993) 114 S.Ct. 367, 369.)

In Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145, the Court found that Plaintiff had failed to establish a hostile work environment claim, writing:

Following established precedent, we conclude these acts of harassment fall short of establishing “a pattern of continuous, pervasive harassment” (Fisher, supra, 214 Cal.App.3d at p. 611, 262 Cal.Rptr. 842), necessary to show a hostile working environment under FEHA. Norby did not supervise Mokler or work in the same building with her. The first incident involved no touching or sexual remarks; rather, Norby uttered an isolated but boorish comment on Mokler's marital status. The second incident did not occur at work, and involved a minor suggestive remark and nonsexual touching. The third incident involved touching when Norby placed his arm around Mokler and rubbed his arm against her breast in the process. The touching, however, was brief and did not constitute an extreme act of harassment. Norby's request for Mokler's home address was brazen, but this conduct falls short of what the law requires to establish a hostile work environment. Norby's derogatory statement regarding Mexicans was unmistakably foul and offensive, but not sexual.

In opposition, Plaintiff argues that the following acts constituted harassment: (1) Van Orden referred to Plaintiff as a “strong black man”; (2) Van Orden directly enlisted and instructed the 2017/18 Team D Grenada School Principals Ng and Soria to repeatedly intrude into Plaintiffs classrooms with unannounced visits designed solely to harass, interfere and intimidate Plaintiff while Plaintiff was teaching class; and (3) Ng and Soria repeatedly denied Plaintiff’s right to have union representation during adverse employment setting meetings.

Tellingly, Plaintiff does not cite a single case to show that any of these actions could constitute harassment as a matter of law. Plaintiff does not provide any supporting evidence to show that Van Orden directed employees to make unannounced visits out of animus or that these visits rose to the level of harassment. If anything, this claim contradicts Plaintiff’s own contention that he never received anything but positive reviews. Similarly, Plaintiff does not cite any authority to show that Ng’s or Sonia’s denial of union representation was engaged in “for personal gratification for meanness or bigotry, or for other personal motives.” (Reno, supra, 18 Cal.4^th at p. 647.) Finally, Plaintiff’s evidence that Van Orden called Plaintiff a “a strong black man” on a single occasion in response to a question of why he was transferred to Team D fails as a matter of law to rise to severe and pervasive harassment. (Fisher, supra, 214 Cal.App.3d at p. 608.)

V.                Failure to Engage in the Interactive Process

Defendants argue that Plaintiff cannot establish this claim because they had no notice of Plaintiff’s disability, and Plaintiff did not request any accommodations.

In support, Defendants submitted evidence that:

-         Plaintiff has diabetes as well as spinal and cardiac conditions. (SS ¶ 243.)

-         Defendants Van Order and Kuo did know Plaintiff had any disabilities or medical conditions (SS ¶ 239)

-         Plaintiff also had a hearing operation in 2017. He was fully recovered and had regained his hearing by summer 2017. (SS ¶ 244.)

-         Plaintiff’s medical records regarding his hearing operation in 2017 contained no restrictions. (SS ¶ 245.)

-         Plaintiff has no doctor’s note stating that he has any restrictions as a result of his diabetes. He only took some time off work to obtain maintenance medicines and then returned to work. (SS ¶ 245.)

-         Plaintiff filed a workers compensation claim for a back injury in March 2015, for which he briefly held doctor-ordered medical restrictions of no lifting/pulling/pushing greater than 25 lbs. In April 2015, his doctor then cleared him to return to work without any further restrictions. (SS ¶ 247.)

-         Plaintiff admitted he did not have any back issues in 2016 and 2017 for which he needed to see a doctor. Plaintiff only saw a doctor for back pain on February 14, 2018, and recalled no other back pain issues for the remainder of 2018. (SS ¶ 249.)

-         Plaintiff did not tell anyone at AUSD that he could not do any portion of his job duties because of back problems during the 2016/2017 school year. (SS ¶ 250.)

-         Plaintiff did not tell anyone at AUSD that he could not any portion of his job duties because of back problems during the 2017/2018 school year. (SS ¶ 251.)

-         In 2017-2018, Plaintiff was under the care of a cardiologist but did not recall giving any notes to the school to let them know Team D was aggravating his condition. In fact, Plaintiff could not even remember the name of his doctor. SS ¶ 253.)

-         At no point, plaintiff presented a note to AUSD that he needs accommodation because of a disability or a medication condition. (SS ¶ 256.)

-         AUSD did not initiate interactive process with Plaintiff because he did not present a doctor’s note stating he had physical limitations. (SS ¶ 257.)

Taken together, Defendants’ evidence supports a reasonable inference that they did not have notice of Plaintiff’s disability, and that they did not initiate the interactive process because Plaintiff did not ever indicate the need for any accommodation. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

In opposition, to show Defendants had notice of his disability, Plaintiff submitted the following evidence:

-         A document of unclear origin which lists the daily medicines listed by Plaintiff for “active disabilities.” (COE, Exh. 44.) Given that the document references Defendant’s MSJ, this document appears to have been compiled by council. There is no indication that this document was submitted to AUSD.

-         A Workers Compensation Follow Up Report from 4/23/2015 which lists Plaintiff’s “active problems” as:

1. Benign essential hypertension

2.  Cervical disc disease

3. Degenerative Cervical Disc

4. Hyperlipidemia

5. Low back pain

6. Thoracic degenerative disc disease

7. Type 2 diabetes

-         A note from the Harbor-UCLA Medical Center Outpatient Clinical report date 10/7/2002 that states “Mr. Daryl-Ellis under my care at Harbor-UCLA Med Center. He has degenerative joint disease of his spine which makes it difficult to sit for prolonged periods. He requires periodic standing to prevent his back pain symptoms.” (Exh. 26.)

-         A 2/27/2003 MRI Report reporting technical medical findings. (Exh. 26.)

-         A 7/16/2003 report from Sobol Orthopedic Medical Group  recommending aquatic therapy for spine pain. (Exh. 26.)

However, these documents, on their own, do not establish Defendants had notice of Plaintiff’s disability. As a preliminary matter, Plaintiff did not submit any evidence to show that either Van Ordon or Kuo ever viewed these documents. Moreover, even assuming they had, the documents submitted show he got ear surgery in connection to a flu illness, and do not indicate any restrictions. As such, there was nothing in the documents that would indicate that this injury was an ongoing disability, rather than a one-off illness. This conclusion is reinforced by the fact that no ear injury or limitation is referenced in subsequent medical records listing Plaintiff’s “active problems.” (COE, Exh. 2.)

While Plaintiff’s worker’s compensation follow-up report from 4/23/2015 lists active problems as including hypertension, diabetes, and spinal issues. (COE, Exh. 2.)

This single reference to “spinal issues” as an active problem, unaccompanied by any restrictions, and the fact that Plaintiff never requested an accommodation from either Kuo or Van Ordon in connection to this problem, is insufficient to put either on notice of his disability.  While Plaintiff submitted a single email to Chris Ng on 10/16/2017 referring to “spinal disabilities” in a request for continued gate access (a request which was promptly granted), this single email to Mr. Ng is insufficient to show that either Kuo or Van Ordon was on notice that Plaintiff was suffering from active back-related disabilities such that they should have initiated the interactive process with Plaintiff (COE, Exh. 30.) 

However, even setting aside the issue of notice, Plaintiff’s evidence still fails to disclose a triable fact as to whether or not Defendants should have known accommodation was needed, Plaintiff ever indicated the need for accommodation, or any requested accommodation was ever denied.

For example, Plaintiff stated in his declaration that on May 16, 2016, Plaintiff emailed Janet Lees explaining that he could not work with the K-2 children in Team D because of his age, and that during the 2015-2016 school year, Janet Lees actively worked with Plaintiff to accommodate his disabilities.  However, as noted by Defendant in reply, this email does not include any request for accommodation, and makes no mention of any physical disabilities. Thus, at best, the evidence cited to by Plaintiff does not support his claim. At worst, Plaintiff is intentionally mischaracterizing evidence in an attempt to mislead the Court. 

Similarly, Plaintiff stated in his declaration that Janet Lees and Christa Van Orden had previously accommodated him. (“Janet Lees rearranged the teams to assign me to Team C and communicated my request for accommodation to Christa Van Orden, who also accommodated my request.”) However, the emails cited in support of this—Exhibits 13 and 14—do not provide any support for this contention. As such, Plaintiff has not submitted any evidence that Janet Lees assigned plaintiff to Team C as an accommodation or that she told Christa Van Orden that the assignment to Team C was an accommodation. For that same reason, there is no evidence, as contended by Plaintiff, that these individuals communicated his need for accommodation to Anna Kuo.

            In deposition, Plaintiff admitted he did not have any back issues in 2016 and 2017 for which he needed to see a doctor. Moreover, Plaintiff did not tell anyone at AUSD that he could not do any portion of his job duties because of back problems during the 2016/2017 school year. Indeed, the only evidence at all that Plaintiff has submitted to show he ever requested any sort of accommodation is the 10/16/2107 email referenced above where Plaintiff requested the right to continue entering through the staffed entry gate closest to the “cafetorium.” Mr. Ng responded by indicating that he had been informed of the miscommunication, that it had been addressed, that as long as Plaintiff had his school ID and indicated the NDA that he worked on side, “it should not be a problem.” Mr. Ng further offered that Plaintiff should contact him if he had any future difficulty entering the school. In response, Plaintiff wrote: “Thanks for the clarification. I lugged everything through the office until I heard from you. You are always an amazing and caring Principal. You are appreciated.” (COE Exh. 30.) Thus, at most, this email exchanges indicates that Plaintiff was satisfied with Mr. Ng’s response, and in no way Plaintiff in no way suggested that he required any additional accommodation to perform his job duties.

            In sum, Plaintiff’s evidence fails to disclose a triable issue of material fact as to whether Defendants should have known any job accommodation was needed, Plaintiff ever indicated the need for any accommodation, or any requested accommodation was ever denied.

VI.            Failure to Reasonably Accommodate

Defendants argue that this claim fails for the same reason that Plaintiff’s failure to engage in the interactive process claim fails, i.e., Defendants were not on notice of Plaintiff’s disability, and Plaintiff never requested any accommodation. Moreover, Defendants argue that Plaintiff was not entitled to an accommodation to be placed on Team C because there was no vacancy.

As set forth above, Defendants’ evidence supports a reasonable inference that it did not have notice of Plaintiff’s disability, and that Plaintiff never requested an accommodation. (Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4^th 1376, 1384) (“[I]f the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one, and thus, an employee whose disability is not apparent is obliged to tender a specific request for a necessary accommodation.”) Defendant’s evidence also supports a reasonable inference that Defendant was not obligated to place Plaintiff on Team C because there was no vacancy. (SS 279.) See Nealy v. City of Santa Monica (2015) 234 Cal. App. 4th 359, 377)

Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

As set for above, the Court concludes Plaintiff has failed to disclose a triable issue of material fact as to whether or not Defendants failed to engage in the interactive process. For the same reason, Plaintiff’s failure to accommodate cause of action must also fail.  

VII.         Failure to Prevent Discrimination and Harassment

As set forth above, the Court concludes that Plaintiff’s evidence failed to disclose a triable issue of material fact as to whether or not Defendants discriminated against or harassed Plaintiff. Accordingly, this derivative claim must also fail.

Based on the foregoing, Defendants’ motion for summary judgment is granted.

It is so ordered.

Dated:  September    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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