Judge: Kevin C. Brazile, Case: 21STCV35025, Date: 2023-08-16 Tentative Ruling

Hearing Date: February 6, 2024

Case Name: Marler v. Los Angeles Unified School District, et al.

Case No.: 20STCV15107

Matter: Motion for Summary Judgment/Adjudication

Moving Party: Defendants LAUSD and Michelle Brownridge Keller

Responding Party: Plaintiff Danise Marler

Notice: OK

Ruling: The Motion for Summary Adjudication is granted as to the claim for 

punitive damages against LAUSD, but is otherwise denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is an employment action.  On June 21, 2021, Plaintiff Danise Marler filed the operative Third Amended Complaint (“TAC”) for (1) FEHA discrimination, (2) FEHA harassment, (3) FEHA retaliation, (4) FEHA failure to accommodate, (5) FEHA failure to engage in the interactive process, and (6)-(8) FEHA failure to prevent harassment, retaliation, and discrimination. 

Defendants LAUSD and Michelle Brownridge Keller now seek summary judgment or, alternatively, summary adjudication of all causes of action as well as Plaintiff’s claim for punitive damages.

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ 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.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

1. Discrimination

Defendants first argue that Plaintiff’s disability discrimination claim fails because (a) there was no adverse action and (b) there was no discriminatory motive or pretext.  

To analyze claims of discrimination under the FEHA based on a theory of disparate treatment, courts employ a three-step, burden-shifting test.  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355 (“Guz”).)  Because evidence of intentional discrimination is rare, the law permits the inference of discrimination based on facts that create “a reasonable likelihood of bias and are not satisfactorily explained.”  (Id. at p. 354.)  The tiered approach assists the Court in identifying such facts.  The approach proceeds as follows:  Once the plaintiff establishes a prima facie case of discrimination, a presumption of discrimination arises.  The burden then shifts to the employer to dispel the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason.  Finally, the burden shifts back to the plaintiff, who then has the opportunity to attack the employer’s proffered reason as pretext for discrimination, or to offer other evidence of discriminatory motive.  (Id. at pp. 355-356.)

Under the FEHA, a prima facie case of discrimination generally consists of the following elements: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position he or she held, (3) the plaintiff suffered an adverse employment action, and (4) some other circumstance suggesting discriminatory motive.  (Guz, supra, 24 Cal.4th at p. 355.)

With respect to motions for summary judgment, “ ‘the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ”  (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.)  “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ”  (Ibid.)

The argument that there was no adverse action because Plaintiff resigned lacks merit.  Under Plaintiff’s rendition of the facts, Plaintiff was improperly forced to resign, which is certainly an adverse employment action akin to a constructive discharge.  

As mentioned, Defendants argue there were legitimate reasons for Plaintiff’s termination.  Defendants only explain this contention in their section relating to the failure to accommodate claim: “Following her April 10, 2018 incident, Plaintiff's permanent work restrictions include ‘No direct supervision of students.’ [SSUMF 21.] Supervision of students is an essential job function of the Special Education Teacher position with LAUSD. [SSUMF 45.] Accordingly, Plaintiff was not qualified to perform the essential functions of the position. As a further good faith attempt to provide reasonable accommodation to Plaintiff, LAUSD gave Plaintiff the opportunity to apply for available non-classroom positions with LAUSD for which she qualified. [SSUMF 29.] Instead, Plaintiff applied to positions for which she did not meet the minimum qualifications. [SSUMF 46.]”

However, there is evidence of discriminatory motive and pretext to the extent that Plaintiff’s testimony establishes that she was injured by prior student attacks; she frequently requested a second aide as an accommodation to help in preventing the exacerbation of her injuries and the possibility of future attacks; Defendants never provided an additional aide; and Plaintiff was in fact subject to further attacks, which ultimately led to the restriction that she not supervise.  That is, viewing the evidence in the light most favorable to Plaintiff, it was Defendants’ failure to act that resulted in the injuries that Defendants claim required her termination.  Further, according to Plaintiff in her verified TAC, her restriction that she not “supervise” was more flexible in definition than what appeared on paper; that is, Plaintiff’s restriction was really that she could not be subject to further risk of attacks.  The Court will not accept the argument that Defendants had no obligation to prevent Plaintiff from further attack.  It is not within any teacher’s job description to survive physical assaults.  In all, viewing the evidence in the light most favorable to Plaintiff, the facts might indicate that Defendants did not want to prevent attacks on an already injured Plaintiff and used that as a reason to pressure Plaintiff into resignation.  The Motion is denied as to the discrimination claim.

2. Accommodation; Interactive Process

The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability.  (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)  

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.”  (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.)

The Motion is denied as to the accommodation and interactive process claims because, as discussed, it could be said that Defendants failed to provide further aides so that Plaintiff could continue to work despite her injuries.  

3. Harassment

To establish a prima facie case of harassment under the FEHA, the plaintiff must show that (1) she was a member of a protected class, (2) she was subjected to unwelcome harassment based on her protected status, and (3) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment.  (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)  “ ‘Harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’ ”  (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.)  In other words, the harassment must be “sufficiently severe or pervasive to alter the condition of the victim’s employment and create an abusive environment,” as judged by the reasonable person belonging to the plaintiff’s protected class.  (Thompson, at p. 877.)

Defendants have failed to carry their burden on this claim as they point to Keller’s statements that: “maybe this job isn't for you"; Plaintiff "was not suited to teach;" that Plaintiff "needed a different job"; and that Plaintiff "was out of line to come into her office whining before school has started.”  A jury could find these statements to constitute unnecessary bullying in relation to Plaintiff informing Keller of her injuries and resulting needs.  

4. Retaliation

The Motion is denied as to the retaliation claim because this claim is not addressed by Defendants’ memorandum of points and authorities.

5. Failure to Prevent Misconduct 

The Motion is denied as to the claims for failure to prevent misconduct because the underlying substantive claims have survived.

6. Punitive Damages

The Motion for Summary Adjudication is granted as to punitive damages against LAUSD because these damages cannot be obtained against a public entity.  (Gov. Code § 818.)

7. Summary 

In sum, the Motion for Summary Adjudication is granted as to the claim for punitive damages against LAUSD; the Motion is otherwise denied.  The objections are overruled.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.