Judge Michael T. Smyth, Case 37-2022-00009917-CU-OE-CTL 2024-02-23 Tentative Ruling

Judge: Michael T. Smyth, Case: 37-2022-00009917-CU-OE-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Unlimited Other employment Summary Judgment / Summary Adjudication (Civil) 37-2022-00009917-CU-OE-CTL ALLOS VS POWAY UNIFIED SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 12/07/2023

Defendant Poway Unified School District's Motion for Summary Judgment is GRANTED. Plaintiff's objections are overruled. Defendant's Objection Nos. 3, 4, 5, 6, and 33 are sustained to the extent the testimony purports to conclude what is and what is not an essential job function. Defendant's Objection Nos. 14-15, 36, 40, and 41 are also granted.

1. Legal Standard The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A prima facie showing is one that is sufficient to support the position of the party in question; 'no more is called for.' (Id. at 851.) The moving party must show that the undisputed facts, when applied to the issues framed by the pleadings, entitle the moving party to judgment. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) If the moving party carries this burden, it causes a shift, and the opposing party is then subject to its own burden of production to make a prima facie showing that a triable issue of material facts exists. (Aguilar, supra, 25 Cal.4th at 850.) Courts must view the evidence and inferences 'in the light most favorable to the opposing party.' (Id. at 843.) Defendant carried its burden in demonstrating that the undisputed facts entitle it to summary judgment in this matter. Plaintiff has failed to rebut that showing. Plaintiff's claims therefore fail because (1) they are barred under Government Code section 855.4; (2) Plaintiff has not demonstrated that she has a disability; (3) 2. Government Code section 855.4 Defendant has raised Government Code section 855.4 as a complete bar to Plaintiff's action.

Government Code section 855.4 'provides one [] exception to a public entity's liability under section 835 (or any other statute). It provides in full: '(a) 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 the 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).' Calendar No.: Event ID: TENTATIVE RULINGS

3091761 1 CASE NUMBER: CASE TITLE: ALLOS VS POWAY UNIFIED SCHOOL DISTRICT [IMAGED] 37-2022-00009917-CU-OE-CTL (Greenwood v. City of Los Angeles (2023) 89 Cal.App.5th 851, 858 [emphasis added].) A public entity, such as Defendant, is not a guarantor of public health and under Government Code section 855.4 is not liable for any injury resulting from a decision to perform or not to perform any act to prevent or control disease within the community. In Greenwood v. City of Los Angeles, a city hall worker alleged that she had contracted typhus due to the dangers of public property in a parking lot managed by the city. The court found that such a claim was barred by Government Code section 855.4 even if the city had not acted with due care in managing the parking lot.

Defendant argues that because Plaintiff's primary grievance is that she could contract COVID-19 at work and, in Defendant's discretion, it chose to require her to work in person (at least partially), Government Code section 855.4 bars liability. Plaintiff did not respond to this argument in its opposition and the court finds it persuasive. Defendant is not responsible for ensuring that its employees do not contract illnesses circulating in the community. As such, because Defendant's decision is related to control or prevention of disease in the community, Plaintiff is unable to obtain relief under FEHA or the Labor Code for any of her causes of action.

Although summary judgment could be granted on these grounds alone, Plaintiff's claims also fail on their merits.

3. Disability Discrimination, Interactive Process, and Derivative Claims To establish a claim for disability discrimination, a plaintiff must show 'that she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations; and (3) was subjected to an adverse employment action because of the disability or perceived disability.' (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344-345 [cleaned up].) In sum, there is no evidence that Plaintiff has a disability or that Defendant terminated Plaintiff because of any alleged or perceived disability. Moreover, the evidence demonstrates that Defendant could not perform all of her essential job functions if she were granted her requested accommodation of fulltime remote work. Finally, there is no evidence that Defendant suffered an adverse employment action, as she continued to work until she voluntarily resigned in February 2023, effective in June of that year.

First, Plaintiff has not demonstrated she suffers from a protected disability that kept her from performing her job. 'Whether an employee is disabled is ultimately a question for the court.' (Hodges v. Cedar-Sinai Medical Center (2023) 91 Cal.App.5th 894, 912.) '[A]n employer is not bound to accept an employee's subjective belief that she is disabled[.]' (Id. at 911.) Plaintiff alleges that her disabilities are as follows: '1) a disability which results in an adverse reaction to vaccinations such that she cannot be vaccinated; (2) . . . has a comorbidity the CDC classifies as a risk for contracting severe Covid-19; 3) [t]he office environment increases Ms. Allos exposure risks to severe COVID-19.' (ROA 1, Compl., ¶ 17.) Regardless of whether Plaintiff was medically unable to get the COVID-19 vaccine, the District did not require any of its employees to get that vaccine.

Rather, Plaintiff's alleged disability are 'comorbidities' that may affect the severity of a COVID infection: high cholesterol, high blood pressure, and obesity. These conditions do not appear to have been described in any doctor's note submitted to Defendant but they have been specified in Plaintiff's papers.

There is no allegation that any three of these conditions themselves limited Plaintiff's ability to perform her work. And although Plaintiff has submitted some evidence that comorbidities such as age may cause COVID infection to be riskier (e.g., ROA 49, Brady Decl., Ex. 9), Plaintiff has not provided any expert testimony that this potential risk amounts to or would amount to a disability in Plaintiff's case. The closest evidence appears to come from Defendant's own expert, who stated in his deposition testimony that such comorbidities may put someone at a higher risk for severe COVID but did not go so far as to say how substantial this greater risk was or whether it constituted a disability. (See, e.g., ROA 49, Ex. 16, Dr. Schneider Depo., pp. 19:17-20:9.) Calendar No.: Event ID: TENTATIVE RULINGS

3091761 1 CASE NUMBER: CASE TITLE: ALLOS VS POWAY UNIFIED SCHOOL DISTRICT [IMAGED] 37-2022-00009917-CU-OE-CTL Alternatively, Plaintiff argues that 'the District regarded her as having a disability' because Defendant engaged in interactive process meetings. (Opp. at 6:3-4.) This is insufficient to demonstrate that Defendant either perceived her as having a genuine disability or that she had a genuine disability.

Under Plaintiff's theory, employers would be incentivized to be less flexible with employees regarding their requests for accommodations. Even if Defendant in fact believed Plaintiff to have a disability, which there is no evidence of, that belief would not prevent the court from determining whether Plaintiff actually has a disability under the law. The court finds that Plaintiff has not met her burden in demonstrating she had or has a disability.

Second, Plaintiff could not perform all of her essential job functions remotely. One of Plaintiff's essential job functions was to create photo ID badges. For example, describing her performance of essential job functions, Plaintiff's evaluation form states that '[Plaintiff] assisted in the conversion from 'ID Card' to BadgePass. She collaborated with the IT department and BadgePass project team . . . . [Plaintiff] was the lead with the ID card design and was instrumental in creating a new photo station at the District Office.' (ROA 43, Ex. W [Evaluation Form]; see also id.; Ex I [2/15/21 Interactive Meeting Record] [discussing staff ID badge creation as an essential job function].) It is undisputed that Plaintiff could not perform her photo ID functions from home. Plaintiff has responded that such tasks could be delegated to other employees. However, Defendant is not obligated to shift Plaintiff's essential job functions to other employees. Moreover, the interactive process meeting notes indicate that almost all of Plaintiff's essential job functions would be more effectively accomplished, at least occasionally, in person. (Id., Ex. H [10/15/20 Interactive Meeting Record].) Plaintiff has not demonstrated that she could perform all essential job functions under her requested accommodation of working remote fulltime.

Third, Plaintiff did not experience an adverse employment action. Plaintiff voluntarily resigned in February 2023, effective June 2023, months after her last interactive meeting took place and after working 'under protest' without any alleged limitation. Plaintiff claims that this was constructive termination as a result of her disability, but it is undisputed that the District never threatened to terminate Plaintiffs employment, and she was never fired, demoted, or disciplined. Even assuming there was constructive termination, there is no evidence that it was a result of her alleged disability.

Hodges v. Cedar-Sinai Medical Center is instructive. There, the defendant hospital had a requirement that employees take the flu vaccine. The plaintiff in that case refused to take the vaccine due to alleged contraindications (neuropathy and cancer history) that would be made worse by taking the flu vaccine.

The defendant did not believe this amounted to a disability and fired plaintiff for failure to get the vaccine-not any alleged disability. The court explained: 'Plaintiff says she was terminated because she was 'unable to get the vaccine.' But this was her claimed motive in refusing to get the flu vaccine, not Cedars's stated reason for terminating her. There are no statements by Cedars or documentary evidence that Cedars terminated plaintiff because she was 'unable' to get the vaccine, or due to any claimed disability. . . . Cedars terminated plaintiff when she refused the flu vaccine because she failed to provide evidence of a medically recognized contraindication. In fact, the direct evidence is that Cedars viewed plaintiff as not disabled in any way and fully capable of receiving the flu vaccine[.]' (Hodges v. Cedar-Sinai Medical Center (2023) 91 Cal.App.5th 894, 905 [cleaned up] [emphasis in original].) Here, Defendant required Plaintiff to work at least some portion of the week in person because it was Defendant's policy not to allow any employee to work remote fulltime. Plaintiff later voluntarily resigned.

Even construing Plaintiff's voluntarily resignation as an adverse employment action, it occurred because of Defendant's in person work requirement not because of Plaintiff's alleged disability. Defendant viewed plaintiff as fully capable of performing her work in person. Indeed, despite any alleged disability, Plaintiff continued to work in person for months after the last interactive process meeting. For the above reasons, Plaintiff's disability discrimination and derivative claims fail.

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3091761 1 CASE NUMBER: CASE TITLE: ALLOS VS POWAY UNIFIED SCHOOL DISTRICT [IMAGED] 37-2022-00009917-CU-OE-CTL Additionally, although Defendant was not required to go through an interactive process with Plaintiff or provide her accommodations, there were six interactive meetings wherein Plaintiff was offered a variety of accommodations to lessen any risk of contracting COVID-19. Accordingly, there is no merit to her second or third causes of action alleging failure to provide a reasonable accommodation and failure to engage in the interactive process.

Finally, Plaintiff's claim that there is associational discrimination based on Plaintiff's need to care for her disabled mother is unfounded. The elements mirror those for a discrimination claim and this claim fails for the same reasons. Additionally, there is no evidence in the record that Defendant took any action with respect to information regarding Plaintiff's mother other than to offer reasonable accommodations and FMLA leave.

The motion is granted.

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