Judge Lee W. Tsao, Case Number: 23NWCV03949, Date: 2024-08-22 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV03949, Date: 2024-08-22 Tentative Ruling

Case Number: 23NWCV03949 Hearing Date: August 22, 2024 Dept: SEC

JOHNSON v. LOS ANGELES COUNTY OFFICE OF EDUCATION

CASE NO.: 23NWCV03949

HEARING: 08/22/24

Defendant LOS ANGELES COUNTY OFFICE OF EDUCATION’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.

Moving Party to Give notice.

Defendant’s Request for Judicial Notice is GRANTED. (Cal. Ev. Code §452.)

This employment action was filed by Plaintiff TEDRIC JOHNSON (“Plaintiff”) against Defendant LOS ANGELES COUNTY OFFICE OF EDUCATION (“Defendant”) on December 6, 2023.

Plaintiff alleges that he began his employment with Defendant in January 1993, and performed his job without incident for nearly thirty years. (Complaint ¶16.) “On or about September 10, 2021, Superintendent Debra Duardo issued a COVID-19 vaccine mandate…. [¶] In the Mandate, Defendant made clear that employees who refused to comply would be subject to discipline and/or termination.” (Complaint ¶¶23-24.) “On or about September 23, 2021, Plaintiff submitted a request for religious accommodation to address the conflict between Plaintiff’s sincerely held religious beliefs and the Mandate.” (Complaint ¶25.) “On October 29, 2021, Defendant denied Plaintiff’s request for religious accommodation.” (Complaint ¶29.) “Defendant’s failure to take the unique circumstances of Plaintiff’s situation into account, when determining his accommodation request was an undue burden, represents a failure to engage in the interactive process, as well as a failure to provide reasonable accommodation.” (Complaint ¶33.) “Between November 1, 2021, and November 15, 2021, Plaintiff was prohibited from performing his day-to-day responsibilities as a teacher. [¶] Between November 1, 2021 and November 15, 2021, Plaintiff was forced to remain home and use his accrued sick and vacation time.” (Complaint ¶¶34-35.) “On November 12, 2021, despite his sincerely held religious objections to receiving the vaccine, Plaintiff received the COVID-19 vaccine.” (Complaint ¶37.) “On March 28, 2022, Defendant began approving religious exemption requests.” (Complaint ¶39.)

Plaintiff asserts the following causes of action:

(1) Harassment – Gov. Code §12940(j)(1);

(2) Religious Discrimination – Gov. Code §12940(a);

(3) Retaliation – Gov. Code §12940(h);

(4) Failure to Accommodate – Gov. Code §12940(l)(1); and

(5) Violation of FEHA – Failure to Take all Reasonable Steps Necessary to Prevent Discrimination from Occurring

Defendant argues that Plaintiff’s claims must fail because Plaintiff does not identify their religion so that it can be determined whether the religion qualifies for constitutional or statutory protection, and that Plaintiff’s objection to the COVID-19 vaccine is a personal belief not subject to constitutional or statutory protections. Defendant further argues that it is immune from damages under Gov. Code §855.4 and/or the PREP act; and that Plaintiff fails to state sufficient facts to support each cause of action.

Plaintiff is not required to identify their religion in order to state a viable claim, and the Demurrer is not sustained on this basis. “Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) There is no requirement for a plaintiff to expressly identify their religion to seek protection under FEHA.

Defendant next argues that it is immune to Plaintiff’s claims pursuant to Gov. Code §855.4 because the decision to enact a vaccine mandate was a discretionary act taken for the prevention or control of disease. Gov. Code §855.4 states: “(1) Neither a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or public employee, whether or not such discretion be abused. [¶] (b) Neither a public entity nor a public employee is liable for an injury caused by an act or omission in carrying out with due care a decision described in subdivision (a).” (Gov. Code §855.4.) “To determine whether an ‘exercise of discretion’ took place for the purpose of granting a public entity immunity under section 855.4, subdivision (a), we should consider whether the challenged decision was one ‘expressly entrusted to a coordinate branch of government [Citation], rather than the courts, in an ‘area[] of quasi-legislative policy-making which [is] sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to that governmental decision. [Citation.] One factor to consider in assessing this is whether the entity made the challenged decision based on a specific legal duty, in which case it is far less likely the entity will be acting pursuant to an ‘exercise of discretion.’ [Citations].” (Greenwood v. City of Los Angeles (2023) 89 Cal.App.5th 851 864-865.)

In Opposition, Plaintiff argues that Defendant made a ministerial—not discretionary—decision in enacting the COVID-19 Mandate, and thus, not subject to immunity.

In the case, Greenwood v. City of Los Angeles (2023) 89 Cal.App.5th 851 (“Greenwood”), the City’s alleged decision not to take action against the spread of typhus that arose from an accumulation of trash and other items on the public property adjacent city employee’s place of work, despite being on notice of the dangerous condition, was found to be an exercise of discretion under Gov. Code §855.4—the statute immunizing discretionary decisions on how to protect the public health of the community of prevent disease or control the communication of disease, and thus, the City had immunity from the employee’s claim because the employee made no allegation of a ministerial performance of a mandatory duty.

The Court finds that the facts alleged in this case are analogous to Greenwood. Here, Plaintiff alleges that Defendant adopted a mandatory vaccination policy that required all employees to be vaccinated, and which denied all religious exemption requests from the Mandate. (See Complaint ¶¶30-31.) The decision to issue or deny religious exemptions, which is based on a decision on how to “protect the ‘public health of the community’ or ‘prevent[] disease or control the communication of disease within the community” requires the exercise of discretion and therefore falls within section 855.4. Plaintiff does not identify or allege any ministerial duties taken by Defendant. Plaintiff does not allege that Defendant acted in accordance with a non-discretionary duty to act. (City of Los Angeles v. Sup. Ct. (2021) 62 Cal.App.5th 129, 149 [sustaining demurrer where plaintiff did not allege public entity’s failure to comply with nondiscretionary ministerial duty].)

As alleged, Defendant is immune from Plaintiff’s claims under Gov. Code §855.4. On this basis, the Demurrer is SUSTAINED with 30 days leave to amend.