Judge: Kevin C. Brazile, Case: 21STCV47352, Date: 2023-02-09 Tentative Ruling

Hearing Date: February 9, 2023

Case Name: Bramham v. Los Angeles Unified School District

Case No.: 20STCV49464 

Matter: Motion for Summary Judgment/Adjudication

Moving Party: Defendant LAUSD

Responding Party: Plaintiff Griselda Bramham

Notice: OK

Ruling: The Motion for Summary Adjudication is granted as to Count III, but 

is otherwise denied. 

Moving party 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 action in which Plaintiff Griselda Bramham alleges that Defendant Los Angeles Unified School District’s failure to maintain her on a reemployment list and rehire her after military service was a violation of law.

Defendant now moves for summary judgment or, alternatively, summary adjudication of all causes of action, based on the following issues. 

ISSUE ONE: Plaintiff cannot establish the District failed to reemploy her to the position of substitute teacher at the conclusion of her military service or failed to reemploy her as a full-time permanent teacher in September 2012 as alleged in Count I because she was re-employed as a substitute teacher. (UMF 1 - 21) 

ISSUE TWO: Plaintiff cannot establish the District denied her a benefit of employment when she was removed from the 39-month Re-employment List as alleged in Count III because there are no provisions to extend the running of the 39-month Re-employment List. (UMF 4-7, 9-11, 21, 22-26) 

ISSUE THREE: Plaintiff cannot establish a prima facie claim for failure to reemploy her to the position of substitute teacher in November 2019 as alleged in Count V because she failed to give proper advanced notice of orders and failed to submit an application for reemployment. (UMF 27 - 44) 

ISSUE FOUR: Plaintiff cannot establish the District discriminated against her in November 2019 because of her military status as alleged in Count VII because she cannot establish hostility, proximity or inconsistencies. (UMF 45-59) 

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. Count I

Defendant first argues that “to the extent plaintiff contends the District failed to reemploy her as a substitute teacher at the conclusion of her military service in September 2012, the Court should grant the motion for summary adjudication as to Count I. Further, as plaintiff was never a full-time permanent teacher, the court should grant the motion for summary adjudication as to Count I for failure to reemploy plaintiff as a full-time teacher in September 2012 under USERRA, 38 U.S.C. §§ 4312 and 4313.”

This argument is rejected because “Section 4316(a) of USERRA entitles a returning service member who has served for at least 90 days to ‘the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.’ This ‘escalator position’ provision (as it has come to be known) may require that the returning service member be promoted as part of his reemployment.”  (22 No. 3 Cal. Emp. L. Letter 9.)  Therefore, there is a triable issue as to whether Plaintiff should have been re-hired as a full-time teacher.  The only evidence presented to the contrary is that Plaintiff was never a full-time teacher, but this is not dispositive as to whether Plaintiff was entitled to such a position in October 2012 with the benefit of the experience she had accumulated during service.  

2. Count III

Defendant next argues that “Plaintiff was not removed from the 39-month Re-employment List until the 39 months expired. [UMF No. 22 and 25]. As such, the District did not violate her rights under 38 U.S.C. § 4312 when her time on the 39-month Re-employment List was not extended and she was removed from the 39-month re-employment list after September 30, 2012 in accordance with the UTLA Agreement. Based upon the facts set forth above, plaintiff cannot establish a cause of action for denial of a benefit of employment under USERRA, 38 U.S.C. § 4312.”

Plaintiff argues that the reemployment rights of § 4312 relate to “service in the uniformed services [that] does not exceed five years . . . .”; USERRA “supersedes any State law [ ], contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit”  (38 U.S.C. § 4302); and, therefore, the UTLA agreement cannot diminish Plaintiff’s rights to only 39 months, when the USERRA promises 5 years of protection.   

Plaintiff’s arguments lack merit and seem to conflate the 39-month reemployment list with the rights set out under USERRA.   The 39-month reemployment list relates specifically to Plaintiff’s rights after she lost her job as a probationary teacher in March 2009.  Plaintiff subsequently took a substitute teaching position in June 2009, but the goal of the reemployment list was seemingly to return Plaintiff to her former position.  Plaintiff’s name was never reached on the 39-month list, so she did not return to her former position.  

Meanwhile, the USERRA requires that employers place service members on leave for up to 5 years and then promptly return them to an appropriate position upon an application for reemployment.  When Plaintiff sought reemployment in September/October 2012, Defendant returned Plaintiff to a substitute teaching position.  Whether that was the wrong position is the subject of Count I, as discussed above.  But, there was no impropriety as it relates to not extending the 39-month reemployment list for Plaintiff, as that list relates to the factual circumstance of a layoff unrelated to Plaintiff’s service.   Therefore, the Motion for Summary Adjudication is granted as to Count III.

3. Count V

Defendant contends that “Count V of the Complaint alleges the District’s failure to reemploy plaintiff at the conclusion of her 2019 period of military service violated USERRA, 38 U.S.C. § 4312. . . . Since plaintiff cannot establish proper notice, she cannot establish a prima facie case. In addition, she cannot establish she properly submitted an application for reemployment as required.”

38 U.S.C. § 4312(a) states, “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if— (1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person’s employer; (2) the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years; and (3) except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accordance with the provisions of subsection (e).”

There are triable issues to the extent that there is evidence that Plaintiff gave oral notice to Defendant of her service in September/October 2019.  (Braham Depo. pp. 218-219.)  Notably, “[t]he employee's notice to the employer [ ] may be verbal or written, and need not follow any particular format. [38 USC § 4312(a)(1); 20 CFR § 1002.85(c)] . . . No specific amount of notice is prescribed. Although the Department of Defense strongly recommends 30 days' advance notice when feasible, the employee is required to provide notice only ‘as far in advance as is reasonable under the circumstances.’ [20 CFR § 1002.85(d)]  Indeed, no advance notice need be given if ‘prevented by military necessity, or is otherwise impossible or unreasonable under all the circumstances.’ [38 USC § 4312(b); 20 CFR § 1002.86]”  (Cal. Prac. Guide Employment Litigation Ch. 12-I.)  Here, there is also evidence that Plaintiff may not have been able to give advance notice to the extent her service was under exigent circumstances.  (See Braham Depo. p. 222, 224 [“It was kind of like emergency situation. . . .  Q . . .  So I think you testified that you got a phone call. Is that correct? A  Yes.  Q And then you were deployed a few hours later? Is that accurate?  A Yes. Yes.”].)

Moreover, there is evidence that Plaintiff could not submit an application for re-employment because she was terminated before her service was even over.  (See Braham Depo. p. 225 [“So when I knew and I was trying to get in contact, they had already terminated me.”].) 

4. Count VII

Defendant lastly argues that Plaintiff cannot establish a prima facie case of discrimination and that Defendant can establish the “same action” defense in that Defendant terminated Plaintiff because she did not respond to hundreds of calls for substitute teaching assignments.  

“The USERRA prohibits discrimination based on military service. It also prohibits retaliation for taking advantage of USERRA rights or for participating in an investigation or other proceeding regarding an alleged violation of the USERRA. [38 USC § 4311; 20 CFR § 1002.19] . . . The employee first has the burden of proving by a preponderance of the evidence that his or her protected status under USERRA was a motivating factor in the adverse employment action against him or her. The employer then has the burden to prove, as an affirmative defense, that it would have taken the action even absent the USERRA activity or status.”  (Cal. Prac. Guide Employment Litigation Ch. 12-I.)

“Under USERRA, discriminatory motivation of the employer may be reasonably inferred from a variety of factors, including proximity in time between the employee's military activity and the adverse employment action, inconsistencies between proffered reason and other actions of the employer, an employer's expressed hostility towards members protected by the statute together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.”  (Leisek v. Brightwood Corp. (9th Cir. 2002) 278 F.3d 895, 900.)

Given the totality of the evidence, the Court believes the issue of discrimination is best tendered to a jury.  (Cal. Prac. Guide Employment Litigation Ch. 12-I [“Whether plaintiff employee suffered an adverse employment action attributable to USERRA-protected military service is a factual issue for the jury to determine (unless the facts permit only one conclusion as a matter of law).”].)

In sum, the Motion for Summary Adjudication is granted as to Count III, but is otherwise denied.  The objections are overruled.  

Moving party 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.