Judge Michael P. Linfield, Case 21STCV30150 2023-04-28 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV30150, Date: 2023-04-28 Tentative Ruling

SUBJECT: Motion for Summary Judgment or in the Alternative for Summary Adjudication

Defendant’s Motion for Summary Judgment or in the Alternative for Summary Adjudication is DENIED.

On August 16, 2021, Plaintiff Annette Medrano filed her Complaint against Defendant California Department of Motor Vehicles on a cause of action arising from allegations about actions Defendant took (or did not take) while employing Plaintiff.

On February 14, 2023, Defendant filed its Motion for Summary Judgment or in the Alternative for Summary Adjudication. In support of its Motion, Defendant concurrently filed: (1) Memorandum of Points and Authorities; (2) Compendium of Evidence; (3) Submission of Bracketed Deposition Testimony; and (4) Separate Statement.

On April 14, 2023, Plaintiff filed her Opposition. Plaintiff concurrently filed: (1) Declaration of Alexander Zaimi; (2) Separate Statement; and (3) Proof of Service.

On April 21, 2023, Defendant filed its Reply. Defendant concurrently filed: (1) Objections to Evidence; (2) Reply Separate Statement; (3) Reply to Plaintiff’s Separate Statement; and (4) Proposed Order.

Defendant filed Objections to Plaintiff’s evidence. The following are the Court’s rulings as to the Objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED
8		OVERRULED
9		OVERRULED
10		OVERRULED
11	SUSTAINED
12	SUSTAINED
13		OVERRULED
14		OVERRULED
15		OVERRULED
16		OVERRULED
17		OVERRULED
18		OVERRULED
19	SUSTAINED
20		OVERRULED
21		OVERRULED
22		OVERRULED
23		OVERRULED
24		OVERRULED
25		OVERRULED
26		OVERRULED
27		OVERRULED
28		OVERRULED
29		OVERRULED

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850.)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Id.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)

Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Dep’t of Transp. (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Defendant moves for summary judgment, or in the alternative summary adjudication, based on the following arguments:

(1) Plaintiff cannot establish the prima facie elements of a disability discrimination claim;

(3) Plaintiff’s claim for failure to prevent discrimination and retaliation fails as a matter of law;

(4) Plaintiff’s claim for failure to engage in the interactive process fails as a matter of law; and

(5) Plaintiff’s claim for failure to accommodate a disability fails as a matter of law.

A plaintiff alleging discrimination must allege “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.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

Defendant argues that the cause of action for disability discrimination fails because: (1) Plaintiff was not qualified to do her job; (2) Plaintiff did not suffer an adverse employment action; (3) Defendant acted based on legitimate, non-discriminatory reasons; and (4) a failure to accommodate claim cannot be the basis for liability for discrimination because a discrimination claim and a failure to accommodate a disability claim are distinct causes of action. (Memorandum, pp. 22–24.)

Defendant submits evidence that indicates: (1) the job at issue required physical, in-person inspections of business locations; (2) a valid driver’s license is required for this job; (3) for most months in 2019, Plaintiff worked 11 days or less, with many of those days less than a full 8-hour day, and no work at all in October and November 2019; (4) at some point in 2021, Plaintiff did not have a valid driver’s license; (5) Plaintiff only conducted four field inspections in 2019, despite being allowed to use ride-share services, when compared with coworkers with the same position in the same office, who conducted 10 field inspections or other field work per week; and (6) Plaintiff was frequently absent from work with short or no notice to her supervisor. (Compendium of Evidence, Exh. A (Decl. Strange), ¶¶ 5–10, 15, 17–19.) This evidence is sufficient for Defendant, as the moving party, to meet its initial burden when arguing that Plaintiff was not qualified to do her job.

Defendant also submits evidence that indicates: (1) Plaintiff’s supervisor issued a corrective memorandum for dishonesty regarding the issue with the driver’s license; (2) the corrective memorandum was not punitive, did not cause Plaintiff to lose pay, did not place Plaintiff on disciplinary probation or suspension, and did not demote or terminate Plaintiff; (3) Plaintiff sent Defendant an e-mail on December 23, 2022 that Plaintiff was retiring on December 27, 2022; (4) Plaintiff’s supervisor prepared a formal Retirement Acceptance Letter for Plaintiff; and (5) Plaintiff retired in her position as an Inspector, at her same office, with Inspector-level salary and benefits. (Compendium of Evidence, Exh. A (Decl. Strange), ¶¶ 19–24.) This evidence is sufficient for Defendant, as the moving party, to meet its initial burden when arguing that Plaintiff did not suffer an adverse employment action.

This evidence is also sufficient for Defendant, as the moving party, to meet its initial burden when arguing that Defendant acted based on legitimate, non-discriminatory reasons.

However, the Court disagrees with Defendant’s argument that a failure to accommodate claim cannot be the basis for liability for discrimination because a discrimination claim and a failure to accommodate a disability claim are distinct causes of action. This argument is misleading. The issue is not that one legal claim directly creates liability for another legal claim. The issue is that evidence that supports liability under a failure to accommodate claim could also support a discrimination claim — and vice versa. For example, it is possible for a trier of fact to find that an act of failing to accommodate could constitute the elements of claims for both failure to accommodate and discrimination. (See Zamora v. Sec. Indus. Specialists, Inc. (2021) 71 Cal.App.5th 1, 51–54, fn. 5.)

Defendant, as the moving party, does not meet its initial burden on this argument.

Plaintiff disagrees with Defendant, arguing among other things: (1) that Plaintiff was qualified to do her job; (2) that Defendant subjected Plaintiff to adverse employment actions by failing to accommodate her injuries, by failing to offer reasonable accommodations, and by creating a hostile work environment; and (3) that Defendant did not act based on legitimate, non-discriminatory reasons. (Opposition, pp. 7–9.)

Plaintiff submits evidence that indicates: (1) Plaintiff was injured in or around December 2009 in an automobile accident, causing Plaintiff significant physical injuries; (2) Plaintiff’s job often did not require on-location inspections because inspections could be conducted by reviewing photographs; (3) all essential functions of Plaintiff’s job could be performed inside the office without having to travel to locations outside of Plaintiff’s office; (4) Plaintiff was willing and able to do her duties at her office, as well as those outside the office when provided accommodations; (5) Plaintiff discharged her job duties despite her injuries; and (6) Plaintiff had temporary driver’s licenses. (Appendix of Exhibits, Exh. A (Decl. Medrano), ¶¶ 4, 7–8.) This evidence is sufficient for Plaintiff, as the nonmoving party, to meet her subsequent burden to show that there are triable issues of material fact regarding whether Plaintiff was qualified to do her job.

Plaintiff also submits evidence that indicates: (1) Plaintiff was treated discourteously and with disdain because she requested reasonable accommodations for her disabilities; (2) Defendant did not make serious efforts to find Plaintiff an alternative position as a reasonable accommodation; (3) Plaintiff’s supervisor issued a corrective memorandum against Defendant, which was added to Plaintiff’s personnel file and punitive in nature, even though Plaintiff had a temporary driver’s license because she was unable to get eye surgery; and (4) Plaintiff was constructively discharged because of the hostile and harassing work environment. (Appendix of Exhibits, Exh. A (Decl. Medrano), ¶¶ 9, 12–15, 22.) This evidence is sufficient for Plaintiff, as the nonmoving party, to meet her subsequent burden to show that there are triable issues of material fact regarding whether Defendant subjected Plaintiff to adverse employment actions.

This evidence is also sufficient for Plaintiff, as the nonmoving party, to meet her subsequent burden to show that there are triable issues of material fact regarding whether Defendant acted based on legitimate, non-discriminatory reasons.

The Court DENIES summary adjudication to the first cause of action for disability-based discrimination.

“To establish a prima facie case of retaliation under the [Fair Employment and Housing Act] FEHA, a plaintiff must show (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.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878–79, brackets omitted.) “An ‘adverse employment action,’ which is a critical component of a retaliation claim, requires a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Dev. Co., LLC (2011) 191 Cal.App.4th 1047, 1063, quotation marks omitted.)

Defendant argues that “[f]or the same reasons Plaintiff cannot establish a claim for disability discrimination, Plaintiff’s claim for retaliation fails as a matter of law.” (Memorandum, p. 24:8–15.) Plaintiff opposes the Motion, arguing that she was retaliated against for requesting reasonable accommodations, including by issuing the corrective memorandum. (Opposition, p. 13–15.)

The Court considers the same evidence it considered for the cause of action for disability-based discrimination.

Defendant has sufficiently met its initial burden, and Plaintiff has sufficient met her subsequent burden. Specifically, Defendant’s evidence indicates that there was no adverse action taken, while Plaintiff’s evidence indicates that Plaintiff engaged in a protected activity (requesting accommodations), was subjected to an adverse employment action (receiving a corrective memorandum and being constructively discharged), and that those two items are causally linked. Whether the elements of a cause of action for retaliation are actually present are thus triable issues of material fact.

The Court DENIES summary adjudication to the fourth cause of action for retaliation.

The elements of a cause of action for failure to prevent discrimination or retaliation are: (1) actionable discrimination or harassment by employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff (i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e., failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. N. County Transit Dist. (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Dep’t of Corr. & Rehab. (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)

Defendant argues that Plaintiff’s claim for failure to prevent discrimination and retaliation fail as a matter of law because Defendant did not discriminate or retaliate against Plaintiff. (Memorandum, p. 24:16–20.) Plaintiff disagrees, arguing that there had been discrimination and retaliation, and that Defendant failed to take all reasonable steps to prevent the discrimination and retaliation. (Opposition, p. 16:13–27.)

The Court considers the same evidence it considered for the causes of action for disability-based discrimination and retaliation.

Defendant has sufficiently met its initial burden, and Plaintiff has sufficient met her subsequent burden. Whether the elements for causes of action of discrimination and retaliation are met are triable issues of material fact, which means that it is a further triable issue of material fact whether Defendant failed to prevent such discrimination and retaliation.

The Court DENIES summary adjudication to the fifth cause of action for failure to prevent discrimination and retaliation.

“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (n) For an employer or other entity covered by this part 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.” (Gov. Code, § 12940, subd. (n).)

Defendant argues the cause of action for failure to engage in the interactive process fails because: (1) Defendant engaged in good faith in the interactive process; and (2) any breakdown in the interactive process was caused by Plaintiff. (Memorandum, p. 22:4–17.)

Among other evidence, Defendant submits evidence that indicates: (1) Defendant has a reasonable accommodation program; (2) Plaintiff provided Defendant with various notes signed by Plaintiff’s doctor regarding Plaintiff’s disability status; and (3) staff at Defendant’s reasonable accommodation program worked with Plaintiff to find reasonable accommodations that would assist her in performing the essential functions of her position, including repeated contacts with Plaintiff throughout 2021 and 2022. (Compendium of Evidence, Exh. C (Decl. Walters), ¶¶ 2–16.)

This evidence is sufficient for Defendant, as the moving party, to meet its initial burden when arguing that it engaged in good faith in the interactive process.

Plaintiff disagrees, arguing: (1) Plaintiff requested reasonable accommodations; (2) Defendant failed to engage in a meaningful interactive process with Plaintiff; and (3) Defendant failed to provide Plaintiff with the necessary accommodations, including for her work vehicle or finding alternative positions with Defendant.

Among other evidence, Plaintiff discusses how the interactive process did not work regarding Plaintiff’s work vehicle and the other positions with Defendant that were discussed. (Appendix of Exhibits, Exh. A (Decl. Medrano), ¶¶ 11–14, 20.) This evidence is sufficient for Plaintiff, as the nonmoving party, to meet her subsequent burden to show that there are triable issues of material fact regarding whether Defendant engaged in good faith in the interactive process.

The Court DENIES summary adjudication to the second cause of action for failure to engage in the interactive process.

“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (m) (1) “For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.” (Gov. Code, § 12940, subd. (m)(1).)

“The elements of a failure to accommodate 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.” (Scotch v. Art Inst. of Cal. (2009) 173 Cal.App.4th 986, 1009–10, citation omitted.)

Defendant argues that Plaintiff fails to meet the elements of a failure to accommodate claim because: (1) Plaintiff was not a qualified individual as she could not perform the essential functions of an inspector; (2) Plaintiff refused Defendant’s offers of reasonable accommodation; and (3) it was unreasonable to allow Plaintiff to indefinitely continue on light duty or to eliminate the essential functions of her position. (Memorandum, pp. 17:4–6, 17:15–16, 19:10, 20:22–23.)

Plaintiff disagrees, arguing: (1) Plaintiff had a physical disability in that she had severe injuries to her back, neck, and bilateral shoulders; (2) driving is not an essential part of Plaintiff’s position; (3) Plaintiff was a qualified individual because she was a disabled person who could perform the essential functions of her job with or without reasonable accommodations; (4) Defendant failed to accommodate Plaintiff’s disability, persisting in attempts to force Plaintiff to engage in driving and field inspections even though Plaintiff’s treating physicians had expressly prohibited this; and (5) Defendant failed to accommodate Plaintiff’s disability because Defendant failed to make a diligent effort at locating alternate positions for Plaintiff that were within reasonable distance of Plaintiff’s residence and which would not have involved a substantial reduction in pay and/or benefits. (Opposition, pp. 9:21–27, 10:1–12.)

The Court considers the same evidence it considered for the prior causes of action.

Defendant has sufficiently met its initial burden, and Plaintiff has sufficient met her subsequent burden. Whether the elements of a cause of action for failure to accommodate are actually present are thus triable issues of material fact.

The Court DENIES summary adjudication to the third cause of action for failure to accommodate disability.

Defendant’s Motion for Summary Judgment or in the Alternative for Summary Adjudication is DENIED.