Judge Kerry Bensinger, Case Number: 23STCV05305, Date: 2025-01-31 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

In late 2019, plaintiff Tina Marie Cooper (Cooper or Plaintiff) was hired as a patent prosecution analyst with the Technology Development Group (TDG) at the University of Los Angeles (UCLA). Charanjit Arora (Arora) was Plaintiff’s direct supervisor.

In October 2020, Arora evaluated Cooper’s performance at “exceptional” and “exceeds expectations.” In summer 2020, Cooper began experiencing symptoms of depression and anxiety. Cooper maintains having had repeated conversations with Arora regarding her anxiety. On July 13, 2021, Cooper was examined by a doctor who prescribed Plaintiff with medication to treat anxiety.

On July 15, 2021, Cooper notified human resources director Laura Van Nostrand (Van Nostrand) that she had been experiencing anxiety that interfered with work. Cooper had a therapy appointment and wished to take time off. Van Nostrand did not tell Cooper to take time off and did not refer Cooper to the Employment Disability Management Services. On the same day, Cooper notified Arora about preparing a treatment plan for her anxiety. Arora did not engage in any dialogue with Cooper regarding her anxiety, nor did he refer Cooper to the Employee Disability Management Services. On August 4, 2021, Cooper sent an e-mail to Van Nostrand seeking to engage in a dialogue about her disability. On August 10, 2021, Plaintiff was notified that her employment was going to be terminated due to concerns over her performance and behavior. Arora recommended termination and Associate Vice Chancellor of TDG, Amir Naiberg (Naiberg), approved, the termination. Naiberg was never informed of Plaintiff’s disability prior to termination. Plaintiff was not told that her work product was an issue or that her behavior in the office was being investigated.

On March 8, 2023, Plaintiff commenced this action against defendant Regents of the University of California (also erroneously sued as University of California Los Angeles). On June 1, 2023, Plaintiff filed the operative First Amended Complaint (FAC) for (1) Disability Discrimination, (2) Failure to Make Reasonable Accommodation for Disability, (3) Failure to Engage in the Interactive Process, (4) Retaliation in Violation of Fair Employment & Housing Act (FEHA), (5) Harassment in Violation of Government Code § 12940(a), (6) Failure to Take All Reasonable Steps to Prevent Discrimination, Harassment and Retaliation, (7) Breach of Contract, (8) Wrongful Termination in Violation of FEHA, (9) Discrimination in Violation of FEHA, (10) Unpaid Overtime and Wages, and (11) Intentional Infliction of Emotional Distress.

On March 1, 2024, the Regents of the University of California (Defendant) filed its motion for summary adjudication.[1] Defendant seeks summary adjudication of every cause of action except for the tenth cause of action.

When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿ A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿ (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿ A defendant seeking summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿ (Code Civ. Proc., § 437c, subd. (p)(2).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 (Gaggero).)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 (Weiss) [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

Plaintiff objects to Defendant’s Separate Statement for lack of compliance with California Rules of Court, rule 3.1350. The objection is Overruled.

Defendant seeks summary adjudication of each cause of action except for the tenth cause of action. The court addresses each challenge in turn.

Plaintiff alleges she had a mental disability. (Complaint, ¶ 26.) Plaintiff informed Defendant of her disability which required Plaintiff to request time off for medical appointments and/or medical treatment. (Complaint, ¶ 17.) However, Plaintiff’s requests for reasonable accommodations were continually ignored and rejected. (Complaint, ¶ 27.)

FEHA discrimination claims are subject to the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) burden-shifting analysis. (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560 (Bareno).) “To establish a prima facie case of mental disability discrimination under FEHA, a plaintiff must show the following elements: (1) She suffers from a mental disability; (2) she is otherwise qualified to do the job with or without reasonable accommodation; and (3) she was subjected to an adverse employment action because of the disability.” (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84.)

“ ‘While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. “Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].” [Citation.]’ ” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248 (Avila).)

“An employer may meet its initial burden in moving for summary judgment by presenting evidence that one or more elements of a prima facie case are lacking, or the employer acted for a legitimate, nondiscriminatory reason. [Citations.] A legitimate, nondiscriminatory reason is one that is unrelated to unlawful bias and, if true, would preclude a discrimination finding. [Citations.] If nondiscriminatory, the employer’s true reasons need not necessarily have been wise or correct.” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 162 (quotations and citations omitted).)

If the employer shows it had a legitimate, nondiscriminatory reason for the action, the plaintiff “‘may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) “In responding to the employer’s showing of a legitimate reason for the complained-of action, the plaintiff cannot ‘simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, 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.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389-390 (cleaned up).) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 361 (Guz).)

Defendant contests the first prima facie element: whether Plaintiff suffered from a disability. At the heart of Defendant’s argument is its insistence that it did not have knowledge of Plaintiff’s disability because her claims of anxiety were general and unsupported by any evidence to establish it limited a major life activity. (See Gov. Code, § 12926, subd. (j).) Plaintiff resists the position and maintains she notified Arora and Van Nostrand many times between January 2021 and August 2021 that she suffered from anxiety.

Plaintiff wins this argument. There is no dispute Plaintiff, Arora, and Van Nostrand had conversations wherein Plaintiff spoke about anxiety.[3] Further, a review of Plaintiff’s evidence lends credence to the inference that Plaintiff’s anxiety was a disability of which Defendant had knowledge.

Much of Plaintiff’s evidence centers on July 15, 2021. First, Plaintiff offers her declaration to establish that she spoke with Van Nostrand on July 15, 2021, and “mentioned to her that my anxiety is interfering with my work. I informed her that I have spoken with my therapist about it. I told her that I may require to take some time off.” (Cooper Decl., ¶ 4.)

On the same day, Plaintiff emailed Arora and informed him “that I will have a treatment plan for my anxiety that I will share with Laura, once my Dr. has it written it up. She is out of office till end of next week. So I will send soon after.” (Cooper Decl., ¶ 5, Ex. B.) Arora responded, in pertinent part, “Thank you for the update. I realize we had a difficult conversation yesterday and am glad to hear that appropriate steps are being taken. Your wellbeing is of utmost importance.” (Id.)

Third, Plaintiff offers Van Nostrand’s notes of her meeting with Plaintiff on July 15, 2021. Some of the notes state the following:

“I think my anxiety is interfering with my processes at work. I’ve been talking with Charan a lot and I think he is fed up a bit with being my sounding board.

Something happened back in January. I am not a bad person. I have been suffering with anxiety and depression and something got triggered back in January. I mentioned by [sic] anxiety in a call.

It’s not about that. It’s about how I’m processing feelings. When I talked to my therapist yesterday I realized that what happened in January triggered when I lost my fiancé.

My family members told me what is going on. I have another therapy appointment today. I’ve gained 8 pounds. I’ve started working out and changing my diet.

Meeting with a backup therapist and being prescribed medication today. Today we are going over how to do grounding and so I can not [sic] focus on the emotions.”

Defendant takes issue with Plaintiff’s failure to state that her anxiety was a disability or to produce any medical evidence establishing her disability. Effectively, Defendant argues the cause of action fails because Plaintiff did not make an affirmative showing such that Defendant knew Plaintiff’s anxiety was a disability. That, however, is not the test. The Court of Appeal’s observation in Faust v. California Portland Cement Co. (2007) 15 Cal.App.4th 862, 887 is particularly relevant here:

“As stated in Schmidt v. Safeway Inc. (D.Or.1994) 864 F.Supp. 991, 997, an employer “knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. The employer need only know the underlying facts, not the legal significance of those facts. Accordingly, whether defendant knew alcohol abuse is considered a ‘disability’ is of no consequence here. It is sufficient that defendant knew plaintiff had an alcohol problem. [¶] A leave of absence to undergo treatment was an obvious accommodation.”

Applying that reasoning here, Defendant knew Plaintiff struggled with anxiety because Plaintiff indicated the same to Arora and Van Nostrand, indicated that her anxiety interfered with her work, and further, that time off work may be necessary. Moreover, Plaintiff stated she was seeing a therapist and would obtain a treatment plan for anxiety. Defendant may have been ignorant of the legal significance of these facts, but a reasonable inference is that Defendant knew Plaintiff had an anxiety problem. This amounts to more than “general comments” about anxiety.

Defendant cites Avila, supra, 165 Cal.App.4th 1237, Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738 (Doe), and Issaian v. J.B. Hunt Transp. Servs., Inc. (C.D. Cal. May 14, 2021) 2021 WL 2450784 (Issaian) in support of its position. These cases do not direct a different result.

In Avila, the Court of Appeal concluded that a form from a health care provider indicating an employee had been hospitalized for several days for an unspecified condition “was not sufficient to put [the employer] on notice that [the employee] was suffering from a qualifying disability.” (Avila, at pp. 1247–1250.) Unlike Avila, Plaintiff here specifically identified her disability: anxiety.

Defendant’s reliance on Doe and Issaian is misplaced. Defendant cites to portions of these cases concerning the respective plaintiffs’ interactive process and accommodation claims. In Doe, the Court of Appeal concluded that the plaintiff who suffered from asthma and dyslexia, failed to put the employer on notice of the actual limitations of his asthma and dyslexia by submitting a doctor's note indicating only that plaintiff needed a quiet place to work and a request for accommodation for an unspecified learning disorder. (Doe, at pp. 727, 739.) Accordingly, plaintiff’s interactive process and accommodation claims were subject to summary judgment. Likewise, in Issaian, when asked about his ability to work, plaintiff responded that he was still in pain and could not work. The district court found plaintiff’s vague response, coupled with the lack of any medical information detailing plaintiff’s limitations, failed to raise a triable issue of material fact as to the plaintiff’s accommodation claim. (Issaian, at *5.) These cases may be relevant to the discussion of Plaintiff’s accommodation and interactive process claims, but they do not apply here. Defendant’s challenge to the first prima facie element fails. Defendant does not dispute any remaining portion of Plaintiff’s prima facie case.

Alternatively, Defendant argues it terminated Plaintiff’s employment for a legitimate, nondiscriminatory reason: poor performance and behavioral issues. In support, Defendant furnishes evidence to show that Plaintiff scheduled meetings with colleagues and failed to attend (Cooper Depo., p. 112:21-25; Van Nostrand Decl., ¶¶ 4-5; Alcaraz Decl., ¶ 4; Newell Decl., Ex. I); when Plaintiff did attend a meeting, the meeting was unproductive and unrelated to work (Alcaraz Decl., ¶¶ 2-6; Newell Decl., Ex. I); Plaintiff did not get along with her coworkers and did not work as a team (Alcaraz Decl., ¶¶ 2-6; Van Nostrand Decl., ¶¶ 3-7; Newell Decl., Ex. I); in June 2021, Arora told Plaintiff they were spending excessive time discussing Plaintiff’s personal issues such that they were unable discuss work-related issues (Arora Decl., ¶ 10); and Plaintiff accused colleague Kiera Douglass (Douglass) of sabotage and continued to repeat the claim even after the basis for the “sabotage” was investigated and dismissed; (Arora Decl., ¶ 7; Alcaraz Decl., ¶ 3; Newell Decl., Ex. J).

Defendant meets its initial burden to show Plaintiff’s termination was motivated by a legitimate, non-discriminatory reason. The burden shifts to Plaintiff to demonstrate pretext.

Plaintiff argues her termination was discriminatory and pretextual. In support, Plaintiff attacks Defendant’s evidence by raising the following points: (1) throughout her employment with Defendant, Plaintiff missed two meetings at most (Cooper Depo., p. 112:21-25); (2) Defendant relies solely on the Declaration of Tamara Alcaraz (Alcaraz) for the proposition that Plaintiff was mean, aggressive, and unprofessional but Plaintiff testified that she had a good working relationship with Alcaraz; (3) Plaintiff testified she never made negative comments about Douglass (Cooper Depo., p. 151:2-4); and (4) at Plaintiff’s termination meeting on August 10, 2021, with Arora and Van Nostrand, Plaintiff described how her anxiety had been affecting her life and work and that she was expecting them to help Plaintiff. In response, Arora stated, “it’s just disruptive.” (Cooper Decl., ¶ 13.)

Many of these points do not create a triable issue of fact. First, Plaintiff does not dispute having missed meetings with colleagues; she disputes only the number of meetings missed. She does not dispute being told by Arora that they were spending excessive time discussing Plaintiff’s personal issues instead of work issues. Second, Plaintiff does not point to the portion of her deposition wherein she testifies to having a good relationship with Alcaraz. And even if Plaintiff had so testified, it is unclear how Plaintiff’s belief that she had a good relationship with Alcaraz creates a triable issue as to whether Plaintiff was mean, aggressive, and unprofessional in the workplace. Third, Plaintiff’s testimony that she never made negative comments about Douglass is belied by the record. It is undisputed that Plaintiff blamed Douglass for sabotage by deleting Plaintiff’s software access and continued to press the claim despite an investigation ultimately tracing Plaintiff’s lack of software access to actions Plaintiff mistakenly undertook. Maintaining an accusation even after the accusation is proven false is a good example of mean, aggressive, and unprofessional behavior.

However, the court finds that Plaintiff’s last point creates a triable issue. At her termination meeting, Plaintiff explained to Arora and Van Nostrand that her anxiety was affecting her life and work. In response, Arora stated “it’s just disruptive.” A reasonable jury could conclude that Plaintiff’s mental disability (anxiety) was a motivating factor in Plaintiff’s termination. Indeed, from the evidence presented, Plaintiff’s anxiety appears intertwined with Plaintiff’s performance and behavioral challenges at work. The court cannot conclude as a matter of law that Plaintiff’s mental disability played no part in Defendant’s decision to terminate her.

2. Failure to Provide Reasonable Accommodation for Disability (2^nd Cause of Action)

Plaintiff alleges as follows: “Plaintiff communicated to Defendants verbally and in writing notifying Defendants of her disability. Therefore, Defendants knew or should’ve known that Plaintiff was suffering from disability.” (FAC, ¶ 42.) “Plaintiff was able to perform the essential job duties of her positions with Defendants with reasonable accommodation for her disability. At all relevant times during Plaintiffs employment with Defendants, Plaintiff was otherwise qualified to do her job. (FAC, ¶ 43.) “At all times herein, defendants unjustifiably failed and refused to make reasonable accommodations for Plaintiffs disabilities. Plaintiff’s requests for reasonable accommodations were denied without mention, or credible claim, from Defendants that such requests would constitute an undue hardship. Defendants subsequently unjustifiably terminated Plaintiff without cause.” (FAC, ¶ 44.)

There are three elements to a failure to accommodate action: ‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (CACI No. 2541; Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.) “Failure to accommodate claims are not subject to the McDonnell Douglas burden-shifting framework.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926 (Cornell).)¿

“Generally, ‘[t]he employee bears the burden of giving the employer notice of the disability .... An employer, in other words, has no affirmative duty to investigate whether an employee’s illness might qualify as a disability .... [T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167.) “A term of leave from work can be a reasonable accommodation under FEHA, and, therefore, a request for leave can be considered to be a request for accommodation under FEHA.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243 (Moore), internal citations omitted.)

“ ‘An employee cannot demand clairvoyance of his employer.’ ” (Doe, supra, 43 Cal.App.5th at p. 738.) “ ‘It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.’ ” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.)

“ ‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, ... the initial burden rests primarily upon the employee ... to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’ ” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.) “ ‘Reliance on medical opinion and an individualized assessment is especially important when the symptoms are subjective and the disease is of a type that varies widely between people.’ ” (Doe, supra, 43 Cal.App.5th at p. 739.)

Defendant argues the accommodation fails because Plaintiff has not provided evidence she requested an accommodation, or that Defendant even had knowledge of her disability. The argument lacks merit. First, there is no element of an accommodation claim that requires the plaintiff to specifically request accommodation. (See CACI No. 2541, Directions for Use [“No element has been included that requires the plaintiff to specifically request reasonable accommodation.”].) An accommodation claim requires only that the employer know of the disability. (See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950-51.) Second, the court has considered and rejected Defendant’s argument that it had no knowledge of Plaintiff’s disability.

Plaintiff alleges that Defendant failed to engage in a timely, good faith, interactive process with Plaintiff to determine effective reasonable accommodations for Plaintiff’s disability. Time after time, Plaintiff attempted to discuss her conditions with Defendant and to explain how Plaintiff’s disabilities could be easily accommodated. Plaintiff’s efforts were

FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .” (Gov. Code, § 12940, subd. (n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) To establish a claim for failure to engage in the interactive process, a plaintiff must show: (1) defendant was an employer; (2) plaintiff was defendant’s employee; (3) plaintiff was disabled; (4) plaintiff requested reasonable accommodation; (5) plaintiff was willing to participate in a timely good faith interactive process with plaintiff to determine whether a reasonable accommodation could be made; (6) defendant failed to participate in this process; (7) plaintiff was harmed; and (8) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm. (CACI No. 2546.)¿ There are no published decisions which apply the McDonnell Douglas burden-shifting framework to an interactive process claim.

Defendant argues the interactive process claim fails for three reasons: (1) Defendant did not have knowledge of Plaintiff’s disability; (2) Plaintiff did not request a reasonable accommodation; and (3) Plaintiff was responsible for the breakdown in the interactive process. The court has already considered and rejected the first argument. That leaves whether Plaintiff failed to request an accommodation and whether Plaintiff is to blame for the breakdown in the interactive process. In support of these points, Defendant offers the declarations of Arora and Van Nostrand who each attest that Plaintiff never asked for an accommodation for a disability (Arora Decl., ¶ 17; Van Nostrand Decl., ¶ 9). Defendant points to the absence of Plaintiff’s evidence that she provided recommendations from her healthcare provider, or specified what accommodations she was seeking regarding the nature and extent of her disability.

It is insufficient for a defendant to merely point out the absence of evidence. (See Gaggero, supra, 108 Cal.App.4th at p. 891.) Nevertheless, the court finds that Defendant offers sufficient evidence by way of the declarations of Arora and Van Nostrand to establish Plaintiff did not request an accommodation. Defendant meets its initial burden to show no triable issue of fact on element 4 of Plaintiff’s interactive process claim.

The burden shifts. Plaintiff offers evidence that on July 15, 2021, she spoke with Van Nostrand and “mentioned to her that my anxiety is interfering with my work. I informed her that I have spoken with my therapist about it. I told her that I may require to take some time off.” (Cooper Decl., ¶ 4.) Plaintiff also offers evidence that she emailed Arora on July 15, 2021, and informed him “that I will have a treatment plan for my anxiety that I will share with Laura, once my Dr. has it written it up. She is out of office till end of next week. So I will send soon after.” (Cooper Decl., ¶ 5, Ex. B.) Arora responded, in pertinent part, “Thank you for the update. I realize we had a difficult conversation yesterday and am glad to hear that appropriate steps are being taken. Your wellbeing is of utmost importance.” (Id.) In short, Plaintiff indicated that she may need to take time off work. “A term of leave from work can be a reasonable accommodation under FEHA, and, therefore, a request for leave can be considered to be a request for accommodation under FEHA.” (Moore, supra, 248 Cal.App.4th at p. 243, internal citations omitted.) Plaintiff establishes there are triable issues as to whether she requested time off work for anxiety.

4. Retaliation in Violation of the FEHA and Labor Code section 1102.5 (4^th Cause of Action)

Plaintiff bases her retaliation claim on a number of allegations. (See FAC, ¶ 56.) The court also notes that the fourth cause of action advances two distinct retaliation claims. One arises under FEHA and the other under Labor Code section 1102.5 (whistleblower retaliation). However, in her opposition, Plaintiff whittles the claim down as follows: Defendant retaliated against Plaintiff by terminating her employment shortly after Plaintiff requested accommodations. (Opp., pp. 18:28-19:1.) Accordingly, Plaintiff abandons all other alleged bases for her FEHA retaliation claim and abandons her whistleblower retaliation claim. For this reason, the court considers Plaintiff’s FEHA retaliation claim only.

FEHA retaliation claims are subject to the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) burden-shifting analysis. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Accordingly, the court begins by considering whether Plaintiff states a prima facie case for retaliation. To establish a prima facie case of retaliation, a plaintiff must show that: (1) plaintiff engaged in protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer’s action were causally connected. (Id.)

Here, Plaintiff offers evidence which shows Plaintiff indicated to Van Nostrand she needed to take leave, and that approximately three weeks later, Plaintiff was terminated.[4] Though Plaintiff’s briefing on this point is sparse, Plaintiff establishes the first and second elements of her prima facie case. Plaintiff requested an accommodation (protected activity) and Defendant terminated her employment (adverse employment action).

The fight lies with the third element. Plaintiff argues in conclusory fashion that Defendant’s discriminatory intent and pretext can support the causal link. She alludes to her discussion on the first cause of action for disability discrimination. However, that discussion does not fit here. Plaintiff must establish a causal link between a protected activity and her termination, not Plaintiff’s disability (or perceived disability) and her termination. Here, Plaintiff does not proffer any evidence to show her request for accommodation was causally connected to her termination. Indeed, there is no evidence showing Plaintiff took leave from work or that she made numerous requests for accommodation. Plaintiff does not meet her initial burden to state a prima facie claim for retaliation.

5. Harassment in Violation of Government Code 12940(a) et seq. (5^th Cause of Action)

Plaintiff advances several allegations in support of her harassment claim. They include: (a) During Plaintiff’s employment, Defendants’…employees harassed Plaintiff by assigning tasks that would worsen Plaintiff’s medical and/or mental condition despite Plaintiff's complaint that such tasks would worsen her condition; (b) Defendants harassed Plaintiff by wrongfully terminating her position after reassuring her that Plaintiff’s well-being is of utmost importance to UCLA; (c) Defendants harassed Plaintiff by falsely accusing her of tampering with work data; (d) During Plaintiff’s employment, Defendants’ …employees harassed Plaintiff by falsely accusing her of missing multiple work meetings. (FAC, ¶ 62-65.) In her opposition, Plaintiff discusses very briefly the last allegation. Accordingly, the court addresses only whether Defendant harassed Plaintiff by falsely accusing her of missing multiple work meetings.

The FEHA states: “It is an unlawful employment practice. . . .[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or person providing services pursuant to a contract.” (Gov. Code, § 12940, subd. (j)(1).) “To constitute harassment, the conduct must be so objectively severe or pervasive as to create a hostile or abusive working environment. Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance. (Doe, supra, 43 Cal.App.5th at p. 736.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (Id.) The McDonnell Douglas burden-shifting framework does not apply to harassment claims. (Cornell, supra, 18 Cal.App.5th at p. 927 [“Since ‘there is no possible justification for harassment in the workplace,’ an employer cannot offer a legitimate nondiscriminatory reason for it.”].)

Defendant argues that Plaintiff was not falsely accused of missing multiple work meetings. In support, Defendant offers Plaintiff’s deposition wherein Plaintiff admits to missing no more than two meetings with colleagues. (Cooper Depo., p. 112:21-25.) Defendant also argues that this does not rise to the level of severe or pervasive conduct. The court agrees on both counts. Cooper’s testimony establishes she did in fact miss multiple work meetings. Further, the court cannot locate a case, and Plaintiff does not offer any, to show that one accusation (truthful or otherwise) could constitute severe or pervasive conduct. Defendant meets its initial burden.

The burden shifts. Plaintiff does not meet her burden. Plaintiff’s briefing on the fifth cause of action never takes off. It is vague and conflated with discussion on the sixth cause of action. As mentioned above, Plaintiff identifies in passing only one of the alleged grounds for her harassment claim. Indeed, Plaintiff barely discusses this cause of action at all and importantly, does not present any evidence to raise a triable issue of fact.

6. Failure to Prevent Discrimination, Harassment, and Retaliation (6^th Cause of Action)

This claim is based upon Plaintiff’s allegations of discrimination, harassment, and retaliation. (See FAC, ¶¶ 77-85.)

Failure to prevent retaliation or discrimination in violation of FEHA requires that (1) plaintiff was an employee of defendant, (2) plaintiff was subjected to discrimination or retaliation in the course of employment, (3) defendant failed to take all reasonable steps to prevent the discrimination or retaliation, (4) plaintiff was harmed, and (5) defendant’s failure to take all reasonable steps to prevent discrimination and/or retaliation was a substantial factor in causing plaintiff’s harm. (CACI No. 2527.)

Given the court’s ruling on Plaintiff’s first cause of action for disability discrimination, the court finds there are triable issues as to Plaintiff’s sixth cause of action for failure to prevent discrimination.

Plaintiff alleges as follows: “[I] November of 2019, Plaintiff entered into an Employment

Agreement with the Defendants, which provided terms and conditions of the employment with

Defendants.” (FAC, ¶ 88.) “Defendants breached the terms of the Agreement, a signed contract governing Plaintiffs employment. Defendants wrongfully terminated Plaintiff which was a breach of the contract between Plaintiff and Defendants.” (FAC, ¶ 89.) “The Agreement provides that Plaintiffs employment to continue until November 11, 2022.” (FAC, ¶ 90.) “Plaintiff substantially performed all of her obligations under the Agreement and/or

was ready, willing and able to perform each of her obligations under the Agreement when such

obligations became due and to the extent that she was prevented from doing so based on

The elements of a breach of contract cause of action are: (1) the existence of a valid contract between the plaintiff and the defendant, (2) the plaintiff’s performance, (3) the defendant’s unjustified failure to perform, and (4) damages to the plaintiff caused by the defendant’s breach. (CACI No. 303; Careau & Co. v. Security Pacific Business, Inc. (1990) 222 Cal.App.3d 1371, 1388 (Careau); Otworth v. Southern Pac. Transportation (1985) 166 Cal.App.3d 452, 458.)

Defendant argues this cause of action fails because Plaintiff was an at-will employee. “An at-will employment may be ended by either party ‘at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.” (Guz, supra, 24 Cal.4th at p. 335.) An arbitrary discharge of an employee at will is not a breach of contract. (Foley v. Interactive Data Corp. (1998) 47 Cal. 3d 654, 710.) As such, Plaintiff’s alleged wrongful termination cannot form the basis of a breach of contract claim. In support, Defendant offers the undisputed fact that Plaintiff signed an at-will employment application. (Defendant’s Undisputed Material Facts (UMF) Nos. 3, 4.) Defendant meets its initial burden.

The burden shifts. Plaintiff does not dispute she was employed at-will. Instead, Plaintiff argues that Defendant breached an implied-in-fact term of the employment contract—namely, PPSM-81: Reasonable Accommodation. PPSM-81 sets forth the Defendant’s policy regarding reasonable accommodations for qualified employees who have a disability. (See Youmtobian Dec., Ex. N.) As Plaintiff’s argument goes, PPSM-81 is a term of the employment contract. Defendant’s failure to engage in the interactive process and provide Plaintiff with a reasonable accommodation violated PPSM-81 which constitutes a breach of the contract. Defendant disputes whether a breach of PPSM-81 constitutes a breach of contract when there is no evidence Plaintiff read or relied on PPSM-81 when she was hired or at any time during her employment.

Ultimately, the court need not wade into these waters. This is so because the FAC is silent on PPSM-81. (See FAC, ¶¶ 86-92.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. [Citation.]” (FPI Dev., Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 380.) Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.” (California Bank & Trust v. Lawlor¿(2013) 222 Cal.App.4th 625, 637, fn. 3.)

Here, Plaintiff premises her breach of contract claim on her termination. (FAC, ¶¶ 89.) Failure to accommodate or engage in the interactive process are distinct from termination. Plaintiff fails to raise a triable issue of material fact.

Plaintiff alleges she was wrongfully terminated in retaliation for reporting illegal conduct and complaining to Defendant about its illegal business practices, because of her age, race, gender, disclosure of disability, and after requesting reasonable accommodations for her disability. (FAC, ¶¶ 99-98.)

To state a claim for wrongful termination in violation of public policy, a plaintiff must be able to show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) the violation of public policy was a substantial motivating reason for the plaintiff’s discharge, and (4) the discharge caused the plaintiff harm. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641; CACI No. 2430.) There are four requirements that a policy must meet in order to support a wrongful discharge claim: (1) the policy is supported by either constitutional or statutory provisions; (2) the policy is “public” in that it “inures to the benefit of the public” and not merely the interests of the individual; (3) the policy was articulated at the time of the discharge; and (4) the policy is “fundamental” and “substantial.” (Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252, 258.)

Given that the court has found triable issues as to Plaintiff’s first cause of action for disability discrimination, the court further finds there are triable issues as to Plaintiff’s wrongful termination claim.

9. Harassment and Wrongful Termination—Discrimination in Violation of FEHA (9^th Cause of Action)

Defendant argues the ninth cause of action is duplicative of the fifth cause of action for harassment and eighth cause of action for wrongful termination. The court agrees. The same allegations form the basis of the claim. (See FAC, ¶¶ 102-120.) The ninth cause of action is duplicative. Summary adjudication is therefore warranted. Plaintiff, having failed to address this argument, does not offer any argument directing a different result.

Plaintiff alleges that “Defendants, and each of them, intentionally inflicted emotional distress on Plaintiff by wrongfully termination him, by failing to accommodate her condition, creating a pretext to terminate her, misstating the reasons for her termination, and not providing her with support or respect. Such conduct is considered intentional and outrageous.” (FAC, ¶ 127.)

The elements of an intentional infliction of emotional distress (IIED) cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Id.)

Here, Defendant argues that Plaintiff’s IIED claim fails because the complained-of conduct does not amount to extreme and outrageous conduct. The court agrees. A personnel management decision does not constitute extreme and outrageous conduct even if it were improperly motivated by discrimination and retaliation. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80; see also Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 101-102.)¿

Here, Plaintiff’s alleges conduct which occurred at the worksite in the normal course of the employment relationship. This is not extreme or outrageous conduct. Further, workers’ compensation is the exclusive remedy for any emotional distress Plaintiff may have suffered in this context. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902.) Summary adjudication is therefore warranted. Plaintiff, having failed to address this argument, does not offer any argument directing a different result.

Defendant Regents of the University of California’s Motion for Summary Adjudication is Granted in Part and Denied in Part. Summary adjudication of the Fourth, Fifth, Seventh, Ninth, Eleventh Causes of Action is Granted. Summary adjudication of the First, Second, Third, and Sixth Causes of Action is Denied.

Kerry Bensinger

Judge of the Superior Court

[1] The motion was titled, “Motion for Summary Judgment or, In the Alternative, Summary Adjudication.”

[2] The court’s task in ruling on the first cause of action is complicated by the parties’ briefing. The parties improperly jumble together the law on failure to accommodate and disability discrimination. Failure to accommodate is a distinct cause of action. The court reaches its ruling despite the parties’ confusing briefing.

[3] Plaintiff also maintains she told Van Nostrand that she suffered from post-traumatic stress disorder. However, Plaintiff’s evidence shows only that she communicated experiencing anxiety and depression. (See Plaintiff’s Response to Defendant’s Separate Statement, No. 28.)

[4] Plaintiff also offered evidence showing that she asked Van Nostrand whether “if there were any considerations in place for people who have illnesses.” (Cooper Decl., ¶ 2, Ex. A.) This evidence, however, does not satisfy any element. Plaintiff generally and vaguely asked Van Nostrand “if there were any considerations in place for people who have illnesses.” At no point did Plaintiff state in this exchange that Plaintiff was a person who had an illness.