Judge Maurice A. Leiter, Case 19STCV30493 2022-07-29 Tentative Ruling

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

On August 27, 2019, Plaintiff Kevin Valdivia sued Defendant Best Contracting Services, Inc., asserting causes of action for (1) disability discrimination; (2) failure to provide reasonable accommodation; (3) failure to engage in the interactive process; (4) retaliation in violation of FEHA; (5) failure to prevent discrimination; (6) wrongful termination in violation of Public Policy; and (7) violation of Labor Code § 1198.5.

Beginning in 2015 Plaintiff was employed as an apprentice by Defendant, a roofing and waterproofing contractor. On February 1, 2018, Plaintiff alleges he was injured in a car accident. Plaintiff continued to work until February 27, 2018, when his doctor allowed a leave of absence. Plaintiff alleges that Defendant terminated his employment while he was on leave, without notifying him.

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q).) Plaintiff’s objections to the Lambert and Bowman declarations are OVERRULED.

“The purpose of the law of summary judgment is to provide courts with 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.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) 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 that cause of action or a defense thereto.” (Id.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 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.)

Defendant asserts that Plaintiff’s FEHA causes of action are untimely. FEHA claims are governed by two statutory deadlines: Government Code sections 12960 and 12965. (See Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1411.) Section 12960[1] governs the one-year deadline for exhausting administrative remedies with the DFEH, while section 12965 governs the deadline for commencing a legal action after the plaintiff obtains a right-to-sue notice from the DFEH. (See id. at 1412-13.) Employees have one year from the date of the right-to-sue notice to commence an action. (See Govt. Code, § 12965(d); Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1422.)

Defendant asserts that Plaintiff did not timely exhaust administrative remedies. Defendant argues Plaintiff “self-terminated” on February 28, 2018, when he resigned from the worker’s union. (UMF ¶ 11.) Defendant processed Plaintiff’s purported resignation on March 7, 2018, making March 7, 2019 the deadline to file a DFEH claim. (UMF ¶ 12.) Plaintiff filed the DFEH claim on August 23, 2019. (UMF ¶ 14.)

In opposition, Plaintiff argues he did not “self-terminate” and Defendant did not notify Plaintiff that his employment status had changed. (Opp. UMF ¶¶ 11-12; Pl. UMF ¶ 124-129.) Plaintiff asserts he continued to inform Defendant of his disability status until October 2018, when he contacted Defendant to inform them that he was able to work again. (Pl. UMF ¶ 128.) Plaintiff states that he was unaware of his termination until Defendant failed to respond to Plaintiff’s attempts to contact them in October 2018. (Pl. UMF ¶ 129.)

This is sufficient to create a triable issue of fact. (See e.g. Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal. 5th 918, 946-7 [FEHA claim for failure to promote does not accrue until the employee knows or should have known the employee was not promoted.])

The Court of Appeal has discussed disability discrimination in violation of FEHA as follows:¿¿

The FEHA makes it an unlawful employment practice “[f]or an employer, because of the ... physical disability [or] mental disability, ... of any person, ... to bar or to discharge the person from employment, ... or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (§ 12940,¿subd. (a) (hereafter section 12940(a)).) “Although section 12940 proscribes discrimination on the basis of an employee's disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties: ‘This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability ... where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with¿reasonable accommodations.’ ” (Green v. California¿(2007) 42 Cal.4th 254, 262, 64¿Cal.Rptr.3d 390, 165 P.3d 118 (Green), quoting § 12940(a)(1).) Thus, “[i]n order to prevail on a discriminatory discharge claim under section 12940(a), an employee bears the burden of showing (1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without¿accommodation (in the parlance of the [ADA], that he or she is a qualified individual with a disability). [Citation.]” (Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 962, 83 Cal.Rptr.3d 190; see also Green, at p. 262, 64 Cal.Rptr.3d 390, 165 P.3d 118.)¿

(Lui v. City and County of San Francisco¿(2012) 211 Cal.App.4th 962,¿970-1.)

Defendant asserts that Plaintiff cannot establish a prima facie case of discrimination because he did not suffer adverse employment action, and because Plaintiff does not have evidence that Defendant knew of Plaintiff’s disability when they processed his termination. (UMF ¶¶ 11-13.) Alternatively, Defendant asserts they had a legitimate business reason to terminate Plaintiff. As stated above, Plaintiff has established a triable issue of fact as to whether (and when) Plaintiff resigned or was terminated. (Opp. UMF ¶¶ 11-13.)

As the Supreme Court explained in Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4^th 317, Defendants may alter the burden shifting procedure if they present admissible evidence that the adverse employment action was taken for legitimate business reasons. “‘[L]egitimate’ reasons [citation] … are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]” (Id. at 358 (italics in original and footnote omitted).) If the employer meets its burden, the burden then shifts to the employee to show that the defendant’s legitimate reason is merely pretext. (Id. at 356.)

Defendant argues they processed Plaintiff’s resignation because Plaintiff left the union. Defendant says they are a “closed shop” that only hires union workers and were unaware of Plaintiff’s disability. (UMF ¶¶ 1-5, 10.) In opposition, Plaintiff asserts Defendant hired both union and non-union employees and were aware of his disability. (Opp. UMF ¶ 4, 10.) In support, Plaintiff cites to an internal document filed the day Plaintiff was terminated, which states “He got hurt from his car accident. Per his medical doctor recommendation, no to work….He might come back to blame Best. But he got hurt from his accident (personal related not work).” (Opp. UMF ¶ 12.) Plaintiff also declares that he informed his supervisor of his injuries on February 28, 2021. (Opp. UMF ¶ 10.) This is sufficient to create a triable issue of fact as to pretext.

Defendant’s motion for summary judgment is DENIED. Defendant’s motion for summary adjudication of the first cause of action is DENIED.

C. Second Cause of Action for Failure to Accommodate and Third Cause of Action for Failure to Engage in the Interactive Process

“The elements of a failure to accommodate a claim are ‘(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.’” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969 (quoting Scotch, supra, 173 Cal.App.4th at 1010).)

Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code, § 12940(n).)

Defendant argues Plaintiff’s claims for failure to accommodate and failure to engage in the interactive process have no merit because Plaintiff did not request accommodation and Defendant was unaware of his disability. (UMF ¶¶ 25-28.) As discussed, Plaintiff disputes that Defendant was unaware of his disability. Plaintiff also asserts Defendant received a letter from his chiropractor on February 28, 2018 requesting four weeks off from work. (Opp. UMF ¶¶ 28.) This is sufficient to create a triable issue of fact as to the second and third causes of action.

Defendant’s motion for summary adjudication of the second and third causes of action is DENIED.

To establish retaliation under FEHA, a plaintiff must show that “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043; see also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.)

Defendant asserts it is entitled to judgment on the cause of action for retaliation because Plaintiff did not engage in protected activity, Plaintiff did not suffer adverse employment action, and Defendant’s conduct was for legitimate business reasons. Defendant argues Plaintiff’s alleged request for accommodation does not constitute protected activity under FEHA. That is not the law. Gov. Code § 12940(m)(2) prohibits retaliation for requesting an accommodation. As explained above, Plaintiff has established a triable issue of fact as to adverse employment action and pretext.

Defendant’s motion for summary adjudication of the fourth cause of action is DENIED.

E. Fifth Cause of Action for Failure to Prevent Discrimination and Sixth Cause of Action for Wrongful Termination

Defendant contends Plaintiff’s fifth and sixth causes of action fail because they are derivative of Plaintiff’s FEHA claims. Plaintiff has established a triable issue of fact as to the FEHA causes of action.

Defendant’s motion for summary adjudication of the fifth and sixth causes of action is DENIED.

Labor Code § 1198.5(a) provides, “[e]very current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee.”

Defendant asserts this claim fails because Plaintiff did not request an inspection of his personnel records, and if he did, the request was made to the wrong person. (UMF ¶¶ 92-94.) In opposition, Plaintiff contends he made a written request to Defendant for his records on June 25, 2019, and Defendant did not properly designate a person to whom requests must be made. (Opp. UMF ¶¶ 92-94.) This is sufficient to create a triable issue of fact.

Defendant’s motion for summary adjudication of the seventh cause of action is DENIED.

Defendant argues that Plaintiff is not entitled to punitive damages because Plaintiff’s claims do not have merit. For the reasons stated, this argument fails.

Defendant’s motion for summary adjudication of the claim for punitive damages is DENIED.

Defendant asserts Plaintiff is not entitled to back pay damages. A party cannot move for summary adjudication of a claim for damages, other than punitive damages, without consent from the other party and a request to the Court. (CCP § 437c(t).) Defendant did not do so here.

[1] This provision now obligates a plaintiff to file an administrative complaint with the DFEH within three years from the date of the alleged unlawful practice or refusal to cooperate. (Gov. Code, § 12960(e)