Judge: Matthew C. Braner, Case: 37-2022-00048288-CU-WT-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2022-00048288-CU-WT-CTL SANCHEZ VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant The Regents of the University of California's motion for summary judgment, or in the alternative, summary adjudication, is GRANTED.

The parties' evidentiary objections are overruled.

Summary Judgment/Adjudication Legal Standard Summary judgment is appropriate when all the papers submitted by the parties show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code of Civ.

Proc., § 437c, subd. (c).) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant can meet that burden by showing one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ.

Proc., § 437c, subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact as to the cause of action or affirmative defense. (Code of Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-851.) If the plaintiff fails to meet that burden, the motion for summary judgment will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying facts in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850.) Summary adjudication as to one or more causes of action is appropriate if 'there is no affirmative defense to the cause of action,' and if adjudication will completely dispose of the cause of action. (Code Civ. Proc., § 437c, subd. (f)(1).) A plaintiff who moves for summary adjudication has the same burden of production as if moving for summary judgment, but the burden is applied to each cause of action individually.

Discussion Plaintiff brings five claims under the Fair Employment and Housing Act ('FEHA'): 1) disability discrimination; 2) retaliation; 3) failure to prevent discrimination/retaliation; 4) failure to engage in the interactive process; and 5) failure to accommodate. As set forth below, Plaintiff has failed to meet her burden to show that Defendant's proffered non-discriminatory reasons for her termination and for Calendar No.: Event ID:  TENTATIVE RULINGS

3015543  22 CASE NUMBER: CASE TITLE:  SANCHEZ VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA  37-2022-00048288-CU-WT-CTL refusing to allow her to work a hybrid remote-work schedule are not pretext for unlawful discrimination or retaliation. As Plaintiff has failed to meet her burden with respect to all five causes of action, summary judgment is warranted.

Disability Discrimination – First COA In a FEHA discrimination case such as this, the defendant may meet its burden of production on summary judgment by producing admissible evidence that its action was taken for a legitimate, non-discriminatory reason. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355-56.) If the defendant satisfies that burden, the burden shifts to the plaintiff to produce evidence of pretext or other evidence of discriminatory motive, and the 'ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.' (Id. at p. 356.) Here, Defendant presents evidence that Plaintiff was laid off because her position was eliminated and not because she requested an accommodation following her taking sick leave due to contracting Covid-19 in November 2021 and her ensuring breathing issues. According to Valeri Ivanov, the Director of the Transitional Case Management Program ('TCMP'), the TCMP is contracted with the California Department of Corrections and Rehabilitation ('CDCR') and positions within the TCMP are controlled by the CDCR contract, which expires every three years. As such, if a position is eliminated, that decision comes from CDCR. According to Ms. Ivanov, she was informed by CDCR in August 2021, when negotiations for the 2022 contract renewal began, that Plaintiff's position (one of two Blank Assistants) would be eliminated due to automation of the primary task for that position: information retrieval from CDCR's Strategic Offender Management Systems ('SOMS') and the Benefit Application Support System ('BASS'). Due to the CDCR's decision, Defendant notified Plaintiff on May 2, 2022 that her position had been eliminated, that no other positions for which she was qualified were available, and that she would be placed on paid administrative leave until her last day of employment on June 30, 2022.

Defendant's evidence is sufficient to meet its burden to show that it laid Plaintiff off for a nondiscriminatory reason. In opposition, Plaintiff does not dispute that CDCR eliminated her position; instead, she emphasizes that although ten total positions were eliminated, six other employees were retained by Defendant and transferred to other positions, and Plaintiff was the only person laid off.

Plaintiff argues that Defendant failed to thoroughly assess whether another position was available and implies that she could have been transferred to another position, but was laid off because of her accommodation request. However, Plaintiff's evidence in this regard is pure speculation. Ms. Ivanov explained that of the other nine positions eliminated, three were unfilled (including the other Blank Assistant position), and the remaining six positions were Benefit Worker positions, which require minimum qualifications, such as a master's degree in social work or psychology. Thus, the Benefit Worker employees were transferred to open Benefit Worker positions that were unavailable to Plaintiff because she lacked the requisite qualifications. Similarly, Plaintiff offers no evidence to show the assessment by Defendant's Human Resources Department for open positions was faulty or pretextual.

In sum, Plaintiff has failed to meet her burden to show that Defendant's proffered reason for her termination was pretext for an unlawful discriminatory animus or bias. Accordingly, Plaintiff's first cause of action cannot survive summary judgment.

Retaliation – Second COA The analysis on Plaintiff's claim for retaliation mirrors the claim for discrimination. Namely, Plaintiff has failed to meet her burden to show that Defendant's proffered reason for her termination (i.e., that the position was eliminated by CDCR) was pretext for an unlawful retaliation against her for requesting an accommodation. Accordingly, Plaintiff's second cause of action cannot survive summary judgment.

Failure to Prevent Discrimination and Retaliation – Third COA A claim for failure to prevent discrimination or retaliation cannot stand on its own without a viable Calendar No.: Event ID:  TENTATIVE RULINGS

3015543  22 CASE NUMBER: CASE TITLE:  SANCHEZ VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA  37-2022-00048288-CU-WT-CTL underlying claim for discrimination or retaliation. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) As Plaintiff's claims for discrimination and retaliation cannot survive summary judgment, her third cause of action for failure to prevent discrimination and retaliation also cannot survive summary judgment.

Failure to Engage in the Interactive Process & Failure to Accommodate – Fourth/Fifth COAs Defendant presents evidence that in response to Plaintiff's request for accommodation of her post-Covid breathing issues, it worked with Plaintiff on an ongoing basis to find workable solutions; it did not simply ignore Plaintiff's request or dismiss all potential solutions as unduly burdensome or unworkable, and it ultimately did provide reasonable accommodations.

Plaintiff does not dispute that Defendant responded to her requests and doctor's notes by first giving her a medical leave of absence until she no longer required home oxygen, then allowing her to take her oxygen concentrator to work, arranging for her to use intermittent FMLA leave for doctor's appointments while confirming she could leave work early to attend doctor's appointments, reserving a handicap parking space near her office to limit how much she needed to walk, separating her office space so that she did not need to wear a mask while working, and allowing her to take additional rest breaks. Instead of disputing these accommodations and the ongoing interactions from which they resulted, Plaintiff takes issue with Defendant's refusal to allow her to work from home on a part-time basis, which was her repeated and preferred accommodation request, and which she contends Defendant could have allowed in some capacity. However, a defendant employer in this situation 'is not required to choose the best accommodation or the specific accommodation the employee seeks.' (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1194.) Rather, the employer has 'the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.' (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.) Here, it is undisputed that an essential function of Plaintiff's job was accessing information from the CDCR databases in response to information requests, and that Plaintiff could only access these databases at her office; at no time had she ever remotely accessed, or was she ever allowed to remotely access, those databases from home. Given this restriction, and the undisputed fact that allowing or enabling remote work to any degree was not Defendant's separate obligation, it was within Defendant's discretion to provide the (still effective) accommodations it chose and deny Plaintiff's request to work remotely.

Accordingly, Plaintiff's claims for failure to engage in the interactive process and failure to accommodate cannot survive summary judgment.

In sum, Plaintiff has failed to meet her burden to show that any of her five causes of action have merit.

Consequently, Defendant's motion for summary judgment is granted.

Defendant is instructed to provide a proposed judgment for the court's signature.

The minute order is the order of the court.

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