Judge Monica Bachner, Case 20STCV37159 2023-05-09 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by Court Call for all matters.

Defendants Los Angeles Unified School District’s and Rodney Wright’s motion for summary judgment is denied.

Defendants Los Angeles Unified School District’s and Rodney Wright’s motion in the alternative for summary adjudication is denied as to the 4th [Issue 3] and 5th [Issue 4] causes of action and granted as to the 1st [Issues 1 and 2], 6th [Issue 5], and 7th [Issue 6] causes of action.

Defendants Los Angeles Unified School District (“District”) and Rodney Wright (“Wright”), a principal employed by Defendant District, (collectively, “Defendants”) move for summary judgment as to Plaintiff Edwina Jackson’s (“Jackson”) (“Plaintiff”) first amended complaint (“FAC”). (Notice of Motion, pg. 2; C.C.P. §437c.)

In the alternative, Defendants move for summary adjudication on the 1st (discrimination in violation of the California Fair Employment and Housing Act (Gov. Code §§12900, et seq.) [“FEHA”]) [disability- Issue 1] [race- Issue 2], 4th (failure to accommodate in violation of FEHA)[1] [Issue 3], 5th (failure to engage in the interactive process in violation of FEHA)[2] [Issue 4], 7th (retaliation)[3] [Issue 5], and 6th (failure to prevent discrimination under FEHA)[4] [Issue 6] causes of action. (Notice of Motion, pgs. 2-3; C.C.P. §437c(f).)

On March 26, 2021, Plaintiff filed the operative FAC against Defendants alleging seven causes of action: (1) discrimination in violation of FEHA [against Defendant District], (2) negligent supervision [against Defendant District and Defendant Wright], (3) intentional infliction of emotional distress (IIED) [against Defendant District and Defendant Wright], (4) failure to accommodate in violation of FEHA, (5) failure to engage in the interactive process in violation of FEHA, (6) failure to prevent discrimination under FEHA [against Defendant District], and (7) retaliation [against Defendant District] arising from Plaintiff’s employment by Defendant District and Defendants’ alleged illegal employment practices. On October 4, 2021, this Court sustained Defendant District’s and Defendant Wright’s demurrer to the 2nd and 3rd causes of action without leave to amend, and sustained Defendant Wright’s demurrer to the 4th and 5th causes of action without leave to amend. (10/4/21 Minute Order.)

For the purposes of this motion, the remaining causes of action are as follows, all alleged solely against Defendant District: (1) discrimination in violation of FEHA, (4) failure to accommodate in violation of FEHA, (5) failure to engage in the interactive process in violation of FEHA, (6) failure to prevent discrimination under FEHA, and (7) retaliation. On November 22, 2022, Defendants filed the instant motion. On April 25, 2023, Plaintiff filed her opposition. On May 4, 2023, Defendants filed their reply.

Defendants’ 5/4/23 evidentiary objection to the Declaration of Jackson is overruled as to No. 1.[5]

Defendants filed a separate statement in violation of C.R.C. Rule 3.1350(h) which provides the format required for separate statements in a motion for summary adjudication.

Defendants failed to provide a supporting statement listing their undisputed material facts specific to each cause of action under each issue heading and merely refers to and incorporates by reference all material facts and supporting evidence Nos. 1-45. The Court in its discretion will still consider Defendants’ supporting statement.

Plaintiff failed to provide a supporting statement in opposition listing their undisputed material facts specific to each cause of action under each issue heading and merely refers to and incorporates by reference all material facts and supporting evidence Nos. 1-44. The Court in its discretion will still consider Plaintiff’s supporting statement in opposition.

Plaintiff alleges she is an African American woman who was employed by Defendant District since February 1986 and worked for Defendant District for over 34 years and was hired pursuant to an oral implied contract as a teacher. (FAC ¶¶13-14.) Plaintiff alleges that throughout the 34 years of her employment she received ever increasing responsibilities, excellent performance reviews, praised, and commendations in recognition of her good performance. (FAC ¶14.) Plaintiff alleges while she was employed by Defendant District she was disabled and diagnosed with the following: asthma and allergies, chronic back pain due to a previous back injury causing current pain, shoulder, neck and back pain, and a previous knee injury causing current limited mobility. (FAC ¶15.)

Plaintiff alleges on or about February 2012, Plaintiff spoke to the principal regarding having difficulty breathing due to dust and debris particles due to construction at close proximity to the school site and also sustained a serious nosebleed due to these conditions and the school nurse assisted her to the emergency room. (FAC ¶16.) Plaintiff alleges upon return she gave the Principal doctor’s notes regarding the foregoing and informed the Principal as to health problems due to the construction. (FAC ¶16.) Plaintiff alleges the school nurse insisted that she went to the emergency room, and accordingly, her son came and took her to the emergency room. (FAC ¶16.)

Plaintiff alleges on or about May 12, 2012, Plaintiff informed the Principal regarding lack of supervision by PE instructors which was putting students at risk, and on or about June 2012 a student was injured in PE due to lack of supervision. (FAC ¶17.) Plaintiff alleges the Principal told Plaintiff to “stop bothering her” and was loud and rude to Plaintiff. (FAC ¶17.) Plaintiff alleges on or about May 2013, Plaintiff emailed Principal about air quality, problems with construction debris and ongoing health problems, and the Principal took no action to assist Plaintiff. (FAC ¶17.) Plaintiff alleges in June 2013 she suffered a concussion after being hit in the head by a ball. (FAC ¶18.) Plaintiff alleges she was under doctor’s care and was out on medical leave for 8 months 2013-2014 school year and returned to work in or around June 2013 to fill out workers compensation report regarding the injury. (FAC ¶18.) Plaintiff alleges she returned to work August and September 2013, with temporary disabilities and restriction. (FAC ¶18.)

Plaintiff alleges from August 2013 to December 2013 the principal harassed Plaintiff. (FAC ¶18.) Plaintiff alleges the Principal demanded and told her she needs to return to work without any accommodations. (FAC ¶18.) Plaintiff alleges on December 13, 2013, she was placed on temporary disability. (FAC ¶18.) Plaintiff alleges from December 2013 through March 2014 Plaintiff received harassing emails from the Principal who was threatened to terminate her if she did not return to work. (FAC ¶18.)

Plaintiff alleges in or around June 2014, Plaintiff was moved to a different work site at a less desirable position and was informed that her recent position was not available because it had been terminated. (FAC ¶19.) Plaintiff alleges she later learned that her position was inexplicably given to a younger candidate with the same ethnicity as the principal. (FAC ¶19.) Plaintiff alleges in or around April-May 2014, she was harassed at work, and retaliated against for sending letters to human resources noting discriminatory treatment by Defendant District. (FAC ¶20.) Plaintiff alleges during this time, the Principal followed her around school, did not offer her a key to the office after she requested one and she was asked to leave work and get a doctor’s note. (FAC ¶20.) Plaintiff alleges the Principal demanded repetitious doctors’ notes, contrary to Defendant District’s policy and harassed Plaintiff. (FAC ¶20.)

Plaintiff alleges in or around June 2014, she received a call from the director of Local Unit East assigning her to Van Nuys Middle School for the 2014-2015 school year. (FAC ¶21.) Plaintiff alleges this move exacerbated her disabilities due to increased driving time due to increased commute and she asked to be assigned closer to home and informed District due to her disabilities the commute would exacerbate her condition. (FAC ¶21.) Plaintiff alleges her request to be assigned closer to home was denied. (FAC ¶21.) Plaintiff alleges in June 2014 she received four letters from the school under direction of the Principal threatened [sic] her pay and work status due to doctor’s clearance in addition to work status note. (FAC ¶21.)

Plaintiff alleges in 2015 there was an investigation regarding the principal at Van Nuys Middle School in which Plaintiff was involved. (FAC ¶22.) Plaintiff alleges on or around August 16, 2016, Plaintiff was moved to Sylmar High School which was even further from her home than Van Nuys Middle School. (FAC ¶22.) Plaintiff alleges she asked to be relocated closer to home but her request was denied. (FAC ¶22.) Plaintiff alleges she was required commute 4 hours each day over 100 miles round trip. (FAC ¶22.) Plaintiff alleges she was also discriminated against when the teachers said she was demoted in April 2018. (FAC ¶23.) Plaintiff alleges Defendant District moved Plaintiff from the administrative office into a shabby room / office with electric panels and no privacy. (FAC ¶23.) Plaintiff alleges she sought a disability accommodation and communicated each and every one of these reasonable accommodations that would be necessary to District principals including Principal Mata and Defendant Wright. (FAC ¶24.) Plaintiff alleges the reasonable accommodations that Plaintiff needed (as ordered by her health care provider) were nothing close to onerous and they consisted primarily of one thing: first, keeping her position open while she was on disability leave at that location including in the 2013-2014 school year. (FAC ¶25.) Plaintiff alleges despite uncontroverted medical evidence establishing that Plaintiff needed each of these accommodations so that her job did not make it worse, Defendants repeatedly and blatantly refused to provide any accommodations. (FAC ¶26.)

Plaintiff alleges she formally applied for reasonable accommodations twice and continually requested being moved close to home to reduce her commute. (FAC ¶27.) Plaintiff alleges in 2014 she formally requested reasonable accommodation due to back injuries, back pain and in 2014 she was moved to a school over 100 miles round trip for her residence. (FAC ¶27.) Plaintiff alleges her commute doubled and she was driving over four hours each day. (FAC ¶27.) Plaintiff alleges in 2016 and January 2020 she asked to be moved closer to home, but her requests were ignored. (FAC ¶27.) Plaintiff alleges she was continually denied reasonable accommodations and in 2014 she was placed at a school approximately 55 miles from her home in retaliation for requesting the accommodations. (FAC ¶28.) Plaintiff alleges her job was purportedly dissolved; however, the position was given to a younger woman who was the same nationality as her supervisor at the time, Eric Mata. (FAC ¶28.)

Plaintiff alleges on or about January 17, 2019, Plaintiff was disrespected in the classroom by a non-[public] [Behavior Intervention Implementation (“BII”)]. (FAC ¶29.) Plaintiff alleges Principal Wright was made aware of the incident, but he refused to assist her, nor did he attempt to rectify the situation. (FAC ¶29.) Plaintiff alleges he insulted Plaintiff further and humiliated her by asking if she had taken her earrings off insinuating that she was going to fist fight. (FAC ¶29.) Plaintiff alleges on or about February 24, 2019, she went to Principal Wright’s office about a rumor re Dr. Arivallaga, when Principal Wright asked Plaintiff, who is a senior, “what are you pregnant”? (FAC ¶30.) Plaintiff alleges in or around May 2019, Plaintiff received a negative evaluation from Principal Wright even though up until that time he had never evaluated her. (FAC ¶31.) Plaintiff alleges Principal Wright falsified dates on the evaluation that never happened. (FAC ¶31.) Plaintiff alleges during that time, Principal Wright came into Plaintiff’s office and said the Plaintiff’s brochure for parent conferencing was too dark and looked “ghetto,” which humiliated and demeaned Plaintiff. (FAC ¶31.) Plaintiff alleges she sent several letters to the former director Ms. Barker and the AALA union regarding harassment from Defendant Wright. (FAC ¶32.) Plaintiff alleges Ms. Barker told Plaintiff to fill out discrimination/harassment paperwork against Defendant Wright. (FAC ¶32.) Plaintiff alleges in or around June 2019, Plaintiff requested an investigation regarding harassment and retaliation in the workplace. (FAC ¶33.) Plaintiff alleges she informed Defendant District and the investigatory team that Defendant Wright made racist and sexist comments towards her in the presence of other employees and Plaintiff noted that Defendant Wright told her he “could see her (in jail) in an orange(prison)jumpsuit.” (FAC ¶33.)

Plaintiff alleges on or about December 20, 2019, Plaintiff had a conference with Arivallaga, an intervention coordinator, and during this conference Plaintiff followed district guidelines. (FAC ¶34.) Plaintiff alleges she was advised of multiple complaints and concerns expressed by other school personnel regarding the intervention coordinator. (FAC ¶34.) Plaintiff alleges on or about January 8, 2020, Plaintiff issued a conference memo to the coordinator. (FAC ¶34.) Plaintiff alleges several days later Defendant Wright acted against Plaintiff in retaliation for the December 20, 2019, conference with the coordinator. (FAC ¶34.) Plaintiff alleges Defendant Wright issued Plaintiff a letter of reprimand re this concern on January 21, 2020. (FAC ¶34.) Plaintiff alleges on or about January 9, 2020, Plaintiff’s request for a harassment and retaliation investigation was closed without aid to Plaintiff. (FAC ¶35.) Plaintiff alleges she subsequently appealed that decision. (FAC ¶35.)

Plaintiff alleges from August 2019 through October 2019, due to Defendant Wright’s continued harassment and retaliation, Plaintiff went on medical leave for stress and heart palpitations. (FAC ¶36.) Plaintiff alleges she again went on a medical leave on February 2020 through March 2020 due to stress, the unbearable commute, and retaliation caused by Defendant Wright. (FAC ¶36.) Plaintiff alleges during the medical leaves she was under doctor’s care and provided all applicable medical information to Defendant District and the Principal thereby putting Defendant District and its agents on notice as to the severity of her health status and her disabilities. (FAC ¶36.) Plaintiff alleges on or about January 14, 2020, Latrice Cole approached Plaintiff regarding inappropriate racist comments made by Dr. Arivallaga. (FAC ¶37.) Plaintiff alleges Dr. Arivallaga insensitively pointed out that a special education student [likes] her because she was black and the student was black as could be noted by her hair and her name. (FAC ¶37.) Plaintiff alleges on or about January 15, 2020, Plaintiff met with Dr. Arivallaga, and during the meeting, Dr. Arivallaga stated that Ms. Cole is ashamed of being black and rudely and insensitively asked Plaintiff if she did not like being black. (FAC ¶37.) Plaintiff alleges these questions and comments humiliated her. (FAC ¶37.) Plaintiff alleges on or about January 20, 2020, Plaintiff filed a workplace violence complaint form. (FAC ¶38.) Plaintiff alleges that in the complaint, she noted that Arivallaga, the intervention coordinator, working in coordination with Defendant Wright, harassed demeaned her and made false allegations against her. (FAC ¶38.) Plaintiff alleges she asked Defendant Wright to investigate and remedy the situation on her behalf, [and] he refused. (FAC ¶38.) Plaintiff alleges on or about January 31, 2020, Plaintiff again applied for reasonable accommodations. (FAC ¶39.) Plaintiff alleges she informed Defendant District she suffered from chronic pain, requested an ergonomic chair and a position closer to home to reduce driving time. (FAC ¶39.)

Plaintiff alleges while on medical leave in February 2020 and March 2020, and during her previous medical leave, Plaintiff was given an unsatisfactory performance evaluation [sic] and punished for being on medical leave. (FAC ¶40.) Plaintiff alleges false and negative documentation was added to her employment file. (FAC ¶40.) Plaintiff alleges Defendant Wright did not follow district protocol and procedures for issuing a letter of reprimand in which Plaintiff was unjustly criticized for doing her job. (FAC ¶40.) Plaintiff alleges Defendant [Wright] sent certified letters demanding the Plaintiff complete work while on medical leave and discussing her evaluation and he then gave Plaintiff an unsatisfactory performance evaluation that included biased documentation. (FAC ¶40.) Plaintiff alleges in anticipation of a conference meeting, Defendant Wright demanded Plaintiff to upload evidence on the evaluation platform. (FAC ¶41.) Plaintiff alleges she could not get into the platform until Saturday, May 9, 2020. (FAC ¶41.) Plaintiff’s status was initially “on leave.” (FAC ¶41.) Plaintiff alleges on or about May 4, 2020, Plaintiff sent an email asking to postpone the conference due to extenuating circumstances because of her medical leave due to her disabilities (approximately 2/3 of the school year) and her mother’s passing. (FAC ¶42.) Plaintiff alleges Defendant Wright denied the request. (FAC ¶42.) Plaintiff alleges Defendant Wright also knew at that time it would be difficult to complete the task because many of Plaintiff’s documents (including agendas, sign-in sheets, etc.) were left in her office and could not be retrieved. (FAC ¶43.) Plaintiff alleges on or about Friday May 8, 2020, Defendant Wright unilaterally changed that status to “required evaluation.” (FAC ¶44.) Plaintiff alleges during the conference meeting, Defendant Wright stated that it was Plaintiff’s job to change the status, which was not true. (FAC ¶44.) Plaintiff alleges her conference meeting was pre-scheduled for Tuesday May 12, 2020. (FAC ¶45.) Plaintiff alleges Defendant Wright refused to provide an extension after discovering that there was a problem, and instead, he reprimanded Plaintiff because she was out due to illness. (FAC ¶45.) Plaintiff alleges that nevertheless, she proceeded to use her written notes to the best of her ability, which Plaintiff alleges was another form of continuous retaliation. (FAC ¶46.) Plaintiff alleges Defendant Wright then gave Plaintiff an unsatisfactory evaluation that included biased and false documentation and he uploaded negative documentation even when plaintiff was out on medical leave. (FAC ¶46.)

Plaintiff alleges neither Defendant Wright nor the third person informed Plaintiff or asked if another person could be part of the meeting. (FAC ¶47.) Plaintiff alleges the conference was also supposed to be confidential and private, however, Defendants facilitated a third person in the conference, unbeknownst to Plaintiff. (FAC ¶47.) Plaintiff alleges she did not discover this until Plaintiff ended the meeting. (FAC ¶47.) Plaintiff alleges after the conference she had to take medication due to suffering headaches, stomach aches, and elevated blood pressure as a result of the conference. (FAC ¶47.) Plaintiff alleges Defendant Wright added a summary conference to Plaintiff’s employee file without following established district protocol. (FAC ¶48.) Plaintiff alleges Defendant Wright surreptitiously came into Plaintiff’s office to ask general questions and, a few days later, he issued a summary conference in the form of a reprimand letter to her file in blatant violation of LAUSD policies. (FAC ¶48.) Plaintiff alleges Defendant Wright did not tell Plaintiff this was a conference, nor did he disclose that the conversation would go in Plaintiff’s file. (FAC ¶48.) Plaintiff alleges Defendant Wright reprimanded Plaintiff for doing what had been asked of her as an administrator. (FAC ¶48.)

Plaintiff alleges she was denied promotions even though she was qualified for them, and as the Assistant Principal, Secondary Counseling Services (“APSCS”), Plaintiff was denied specific work task which entitled extra compensation. (FAC ¶49.) Plaintiff alleges that programming and scheduling are included in her job responsibilities, however, Defendant Wright gave those tasks to a counselor instead. (FAC ¶49.) Plaintiff alleges she was denied additional pay for master scheduling duties and upper mobility ceased to exist after she was blackballed. (FAC ¶49.)

Plaintiff alleges Defendant Wright constantly harassed and retaliated against plaintiff. (FAC ¶50.) Plaintiff alleges the environment she was forced to work in was constantly racially toxic. (FAC ¶50.) Plaintiff alleges students were permitted to say the n-word constantly with no repercussions. (FAC ¶50.) Plaintiff alleges African Americans such as Plaintiff had to endure this behavior of student’s directly insulting them. (FAC ¶50.) Plaintiff alleges even the intervention coordinator made racial comments without any recourse. (FAC ¶50.) Plaintiff alleges she held a conference with the coordinator; however, she was not given a written conference memo because Plaintiff was fearful of being reprimanded again by Defendant Wright. (FAC ¶50.) Plaintiff alleges she asked to be placed in the main office with other administrators and was only placed there after 3 years when the other African American administrators were displaced. (FAC ¶50.) Plaintiff alleges she had more seniority than all the administrators. (FAC ¶50.)

Plaintiff alleges on May 21, 2020, she filed charges with the DFEH regarding Defendants’ continual pattern of discriminatory conduct towards her. (FAC ¶51, Exh. A.) Plaintiff alleges on May 21, 2020, the DFEH sent a “Notice of Right to Sue.” (FAC ¶51, Exh. B.) Plaintiff alleges on April 21, 2020, Plaintiff filed a California Tort Claims act claim for damages to person or property with the Los Angeles School District. (FAC ¶52, Exh. C.) Plaintiff alleges on May 20, 2020, the LAUSD rejected said claim. (FAC ¶52, Exh. D.)

A cause of action for discrimination based on disability requires a showing of the following elements: (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; (3) plaintiff was subjected to defendant’s adverse employment decision; and (4) the adverse employment decision was because of plaintiff’s actual or perceived disability or medical condition. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

Under the McDonnell Douglas process for allocating burdens of proof and producing evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination. (Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 234, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action. (Moore, 248 Cal.App.4th at pg. 235, citing Guz, 24 Cal.4th at pgs. 355-356.) At that point, the burden shifts back to the employee to show that the employer’s stated reason was in fact a pretext for a discriminatory act. (Id., citing Guz, 24 Cal.4th at pg. 356.)

To make out a prima facie case of disability discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) suffered from a disability or was perceived as suffering from a disability, (2) could perform the essential duties of the job with or without accommodation, and (3) was subjected to an adverse employment action because of disability or perceived disability. (Moore, 248 Cal.App.4th at 234-235.)

Defendants argue summary adjudication of this cause of action is warranted because Plaintiff cannot establish a prima facie case for disability discrimination. (Motion, pgs. 14-16.) Defendants argue Plaintiff cannot establish an adverse employment action or other circumstances suggesting discriminatory motive based on her disability. (Motion, pgs. 14-15.)

Defendants argument that Plaintiff’s allegations prior to her time at Sylmar Charter High School are time-barred is unavailing. Defendants argues Plaintiff’s allegations expired as of December 31, 2019, based on the former one-year statute of limitation for FEHA causes of action, are time-barred, and all claims prior to Plaintiff’s time at Sylmar Charter High School are not related to the allegations she made in her initial DFEH/EEOC Complaint because they involve different employees and school sites. (Reply, pg. 2; Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823; Gov. Code §12960(e); 2019 CA A.B. 9, California 2019-2020 Regular Session.) “The function of an administrative complaint is to provide the basis for an investigation into an employee’s claim of discrimination against an employer, and not to limit access to the courts.” (Martin v. Fisher (1992) 11 Cal.App.4th 118, 122.) Plaintiff’s allegations of discrimination under FEHA against Defendant District are subject to the continuing violation doctrine, an equitable exception to the one-year statute of limitations. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349.) Therefore, Plaintiff’s allegations in her FAC are not time-barred.

However, Plaintiff is limited to the allegations in her FAC and cannot allege actions that occurred after the filing of her FAC without first moving to amend her pleading. (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637 n.3 [“A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings. [Citation.] Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings. [Citation.]”].) Plaintiff’s reference to allegations in August 2021 when she began working at the City of Angels and the 2022-2023 academic year at Byrd Middle School are not part of the FAC and therefore irrelevant to the instant motion and improper for this Court to consider. (See Opposition, pgs. 4:13-6:13, 15:23-25, 17:6-8, 18:7-16.)

Plaintiff’s opposition does not argue the issue of disability discrimination and thereby concedes this issue. (See Opposition and Plaintiff’s Separate Statement.) Plaintiff fails to meet her burden to establish a prima facie case of disability discrimination and therefore does not shift the burden to Defendants to produce evidence of a nondiscriminatory reason for the alleged adverse employment action.

Based on the foregoing, Defendants’ motion for summary adjudication as to the Issue 1 of the 1st cause of action for disability discrimination is granted.

To demonstrate a cause of action for disparate treatment, plaintiff must provide evidence that (1) she was a member of a protected class, (2) she was qualified for the position sought or was performing competently in the position held, (3) she suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Guz, 24 Cal.4th at pg. 355.) California courts follow the three-part McDonnell Douglas burden-shifting framework for discrimination claims under the FEHA. (Id. at pg. 354.)

Defendants argue summary adjudication of this cause of action is warranted because Plaintiff cannot establish a prima facie case of race discrimination because she did not experience an adverse employment action since there were no material or substantial changes to her employment: her position as APSCS remained the same, her hours remained the same, she suffered no termination, demotion, or denial of an available job, and all changes to Plaintiff’s job location were either reasonable accommodations requested by Plaintiff or based on the recommendations and needs of the Local District according to District policies and procedures. (Motion, pgs. 14-15.) Defendants further argue Plaintiff cannot rebut Defendant District’s conduct. (Motion, pg. 18.) Defendants argue Plaintiff cannot demonstrate a discriminatory motive for any personnel management decisions made. (Motion, pg. 18.)

Plaintiff argues she can establish a prima facie case for race discrimination. Plaintiff argues it is undisputed that she is black and a woman and there is abundant evidence that she performed her job satisfactorily. (Opposition, pg. 12.) Plaintiff argues in the 35 years of working for Defendant District, she never received a negative or evolving evaluation before Defendant Wright, and the evaluations were unjust and without merit which is why Defendant Wright was directed to remove each evaluation from Plaintiff’s personnel file. (Opposition, pg. 12.) Plaintiff further argues direct evidence shows Defendant District’s discriminatory motive for the adverse action and circumstantial evidence shows the pretextual nature of the adverse action. (Opposition, pg. 13.)

Under FEHA, an adverse employment action is one which “materially affect[s] the terms, conditions, or privileges of employment.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1052.) The “materiality” test of adverse employment action explained in Yanowitz looks to “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace.” (Yanowitz, 36 Cal.4th at pg. 1054.) “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Id. at pg. 1055.)

Plaintiff failed to meet her burden on demonstrate she suffered an adverse employment action. Specifically, Plaintiff submitted evidence that her performance reviews were unjustly negative because a score of “evolving” to her was the same as below standard because in the 35 years of working for Defendant District, she had never received a negative or evolving evaluation before Defendant Wright’s evaluation. (Plaintiff’s Disputed Separate Statement of Fact [“P-DSSF”] 41; Decl. of Jackson ¶19.) Plaintiff submitted evidence that Defendant Wright was directed to remove each evaluation from her personnel file because they were unjust and without merit. (P-DSSF 41; Decl. of Wilson [hereinafter Plaintiff’s Compendium of Evidence (“P-COE”)] Exh. A at 226:19-228:25, 238:3-241:12, 251:15-18.) Plaintiff failed to submit admissible evidence of employment actions that are reasonably likely to adversely and materially affect Plaintiff’s job performance or opportunity for advancement in her career. Plaintiff failed to meet her burden to establish she suffered an adverse employment action and does not shift the burden to Defendants to produce evidence of a nondiscriminatory reason for the alleged adverse action.

“If . . . plaintiff establishes a prima facie case, a presumption of discrimination arises. [Citations.] This presumption, though ‘rebuttable,’ is ‘legally mandatory.’ [Citations.] Thus, in a trial, ‘[i]f the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.’ [Citations.] [¶] Accordingly, at this . . . stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise [ ] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]” (Guz, 24 Cal.4th at pgs. 355-356, internal citations omitted.)

Assuming, arguendo, Plaintiff shifted her burden to Defendants, Defendants submitted evidence that Defendant District’s reasons for transferring Plaintiff are legitimate and non-discriminatory because they are based on Plaintiff’s own requests for accommodation and for the needs of the Local District to which she was assigned. Specifically, Defendant District submitted evidence that Plaintiff requested an accommodation from Defendant Wright on or about June 30, 2021, to continue working remotely after all on-site school staff were required to work in-person on campus. (Defendants’ Disputed Separate Statement of Fact [“D-DSSF”] 11; Defendant’s Compendium of Evidence [“D-COE”] Exh. 1 at Vol. I 103:2-105:21, Exh. 9; Exh. 2 at ¶5, Exhs. A, B.) Defendants submitted evidence that shortly after Plaintiff made her request, the COVID-19 pandemic began and Defendant District began remote learning for all campuses in March 2020, which satisfied Plaintiff’s request for accommodation at that time and she did not follow up with the Reasonable Accommodation Committee (“RAC”). (D-DSSF 13; D-COE Exh. 1 at Vol. I 111:3-112:1; Exh. 2 at ¶5.) Defendants submitted evidence that Defendant Wright did not have the power to transfer Plaintiff and the transfers were done at the district level. (D-DSSF 14; D-COE Exh. 1 at Vol. I 113:24-116:5, 116:9-118:23, Exh. 10; Exh. 2 at ¶6, Exhs. C, D.)

Based on the foregoing, Defendants’ motion for summary adjudication as to the Issue 2 of the 1st cause of action for race discrimination is granted.

Accordingly, Defendants’ motion for summary adjudication is granted as to the 1st cause of action.

The elements of a cause of action for failure to accommodate are: (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of a sought reassigned job with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193 [reasonable accommodations include job restructuring, modified work schedules, reassignments, providing readers or interpreters, and paid or unpaid leave].)

Defendants argue Plaintiff’s claim fails because she was provided multiple reasonable accommodations throughout her employment with Defendant District. (Motion, pg. 4.) Defendants argue an employer is not required to promote or create a new position to accommodate a disabled employee. (Nadof-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 965-966.) A reassignment is also not required if “there is no vacant position for which the employee is qualified.” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766-767.)

Defendants submitted evidence that Defendant District reasonably accommodated Plaintiff throughout her time with the district. Specifically, Defendants submitted evidence that Plaintiff has never been denied medical leave during her career with Defendant District. (D-DSSF 10; D-COE Exh. 1 at Vol. I 46:17-22, 57:17-24, 109:4-6, 111:3-10, 126:18-127:8; Exh. 2 at Vol. II 198:19-199:25, 200:7-18, 210:24-211:13, 213:22-214:2, 225:25-226:8, 270:7-21, 275:21-25, 287:15-19, Exhs. 22, 24; Exh. 2 at ¶3.) Defendants submitted evidence that shortly after Plaintiff made her request to be assigned school closer to home, the COVID-19 pandemic began and Defendant District began remote learning for all campuses in March 2020, which satisfied Plaintiff’s request for accommodation at that time and she did not follow up with the RAC. (D-DSSF 11; D-COE Exh. 1 at Vol. I 111:3-112:1; Exh. 2 at ¶5.) Defendants met their burden to demonstrate Plaintiff was reasonably accommodated, shifting the burden to Plaintiff to demonstrate a triable issue of material fact as to whether she was reasonably accommodated.

Plaintiff met her burden to demonstrate a triable issue of material fact as to whether she was reasonably accommodated. Specifically, Plaintiff submitted evidence that her medical restrictions were not being accommodated, including her request for an ergonomic workstation and a position closer to home to reduce driving time, and demands were being made on her to return to work without any accommodations when she was on medical leave. (P-DSSF 10, 11; P-COE Exh. A at 78:3-15, 80:20-81:4, 91:15-97:1, 201:16-25, 225:7-23, 229:2-12; Decl. of Jackson ¶8.) Plaintiff met her burden to demonstrate a triable issue of material fact.

Based on the foregoing, Defendants’ motion for summary adjudication as to Issue 3 of the 4th cause of action is denied.

Failure to Engage in the Interactive Process in Violation of FEHA (5th COA) [Issue 4]

Government Code §12940(n) provides as follows: “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(n).)

“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

There is a split of authority as to whether the employee must also prove that a reasonable accommodation was available. (Compare Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, 87 [“the availability of a reasonable accommodation is an essential element of an interactive process claim”] and Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980-985 [employee who brings a section 12940(n) claim bears the burden of proving a reasonable accommodation was available before the employer can be held liable under the statute] with Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425 [jury’s finding that no reasonable accommodation was possible is not inconsistent with its finding of liability for refusing to engage in interactive process] and Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 243 [if the employer’s failure to participate in good faith causes a breakdown in the interactive process, liability follows]; see Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018-1019 [attempting to reconcile conflict].)

The Court agrees with Defendants’ argument that it should follow Scotch v. Art Institute of California, requiring an employee to “identify a reasonable accommodation that would have been available at the time the interactive process should have occurred,” because in the course of discovery, the employee can identify an available accommodation the interactive process should have produced. (173 Cal.App.4th at pg. 1018, emphasis added.) Defendants further argue Plaintiff cannot satisfy her burden on this cause of action because Plaintiff’s request to be located within 35 miles of her home fails to identify a reasonable accommodation that was available at the time of the interactive process, and Plaintiff’s own actions caused the interactive process to break down when she did not submit the proper paperwork as to her request for driving restrictions. (Motion, pgs. 23-24; Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 971-972 [“Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.”].)

Plaintiff argues Defendant District failed to identify the four steps outlined by the E.E.O.C. that an employer should take once they begin to engage in the interactive process: “(1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position and; (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.” (Opposition, pgs. 16-17; 29 C.F.R. Pt. 1630, App. §1630.9 [Process of Determining the Appropriate Reasonable Accommodation].)

Defendants submitted evidence that Defendant Wright participated in the interactive process with Plaintiff on multiple occasions and granted all reasonable accommodations in his power. (D-DSSF 7, 9, 10, 11, 12, 13; D-COE Exh. 1 at Vol. I 32:6-12, 46:17-22, 57:17-24, 103:2-106:14, 109:4-6, 110:5-112:1, 133:13-134:10 Exh. 9; Exh. 1 at Vol. II 198:19-199:25, 210:24-212:7, 225:25-226:3, 229:2-8, Exh. 22; Exh. 2 at ¶¶3-5, Exhs. A, B.) Defendants submitted evidence that Plaintiff stopped pursuing certain accommodations after the first time she requested accommodations from Defendant Wright after the pandemic hit and Plaintiff was allowed to work from home. (D-DSSF 13.) Defendants submitted evidence that once school staff had to report back to campus in 2021, Plaintiff was granted her requested accommodation, including the ability to work remotely. (D-DSSF 14; D-COE Exh. 1 at Vol. I 113:24-116:5, 116:9-118:23, Exh. 10; Exh. 2 at ¶6, Exhs. C, D.) Defendants met their burden to demonstrate Defendant District provided Plaintiff with a reasonable accommodation and Defendant engaged in the interactive process in good faith, shifting the burden to Plaintiff to demonstrate a triable issue of material fact.

Plaintiff met her burden to demonstrate a triable issue of material fact as to whether Defendant District engaged in the interactive process in good faith and whether she caused the interactive process to break down. Specifically, Plaintiff submitted evidence that Defendant District did not provide Plaintiff with an ergonomic workstation, which she requested as a reasonable accommodation, and did not provide Plaintiff with an approved accommodation to work from home. (P-DSSF 12; P-COE Exh. A at 78:3-15, 80:20-81:4, 91:15-97:1, 201:16-25, 225:7-23[6], 226:6-24, 229:2-12; Exh. B at 21:12-24, 137:11-24, 164:2-16; Decl. of Jackson ¶8.) Plaintiff submitted evidence that when she asked for the specific accommodation of working remotely, she was denied by Defendant District, and Defendant Wright did not approve her reasonable accommodation request to work remotely. (P-DSSF 13; P-COE Exh. A at 115:11-116:15; Exh. B at 137:11-24, 164:2-16.) Plaintiff met her burden to demonstrate a triable issue of material fact as to whether Defendant District engaged in the interactive process in good faith and whether she caused the interactive process to break down.

Accordingly, Defendants’ motion for summary adjudication as to Issue 4 of the 5th cause of action is denied.

A cause of action for failure to prevent discrimination includes the following elements: (1) actionable discrimination or harassment by employees or non-employees; (2) defendant’s legal duty of care toward plaintiff (defendant is plaintiff’s employer); (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289.)

Plaintiff cannot establish a cause of action for failure to prevent discrimination and retaliation because she did not prevail on her underlying claims for discrimination or retaliation. (Id. at pg. 284 [“There is no logic that says an employee who has not been discriminated against [or retaliated against] can sue an employer for not preventing discrimination [or retaliation] that didn’t happen . . . when no discrimination [or retaliation] occurred.”].)

Accordingly, Defendants’ motion for summary adjudication as to Issue 5 of the 6th cause of action is granted.

A cause of action for retaliation in violation of FEHA requires the following elements: (1) plaintiff engaged in a protected activity as employee; (2) employer subjected Plaintiff to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. (Yanowitz, 36 Cal.4th at pg. 1042.) If an employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas burden shifting analysis discussed above to the employee’s claim. (Id.)

Defendants repeat their arguments from the 1st cause of action that Plaintiff was not subjected to an adverse employment action and therefore cannot prevail on her cause of action for retaliation and further support their argument with evidence that they had legitimate, nondiscriminatory business reasons for all actions taken as to Plaintiff. (Motion, pg. 26.)

Based on the same evidence presented in the 1st cause of action, Plaintiff fails to meet her burden to demonstrate an adverse employment action.

Accordingly, Defendants’ motion for summary adjudication as to Issue 6 of the 7th cause of action is granted.

Defendants’ motion in the alternative for summary adjudication is denied as to the 4th [Issue 3] and 5th [Issue 4] causes of action and granted as to the 1st [Issues 1 and 2], 6th [Issue 5], and 7th [Issue 6] causes of action.

[1] Defendants identify Plaintiff’s cause of action for failure to accommodate in violation of FEHA as the 2nd cause of action. The Court refers to this cause of action as the 4th cause of action per Plaintiff’s FAC.

[2] Defendants identify Plaintiff’s cause of action for failure to engage in the interactive process in violation of FEHA as the 3rd cause of action. The Court refers to this cause of action as the 5th cause of action per Plaintiff’s FAC.

[3] Defendants identify Plaintiff’s cause of action for retaliation as the 5th cause of action. The Court refers to this cause of action as the 7th cause of action per Plaintiff’s FAC.

[4] Defendants identify Plaintiff’s cause of action for failure to prevent discrimination under FEHA as the 4th cause of action. The Court refers to this cause of action as the 6th cause of action per Plaintiff’s FAC.

[5] Defendants’ objection refers to Exhibit 1 to the Declaration of Jorge Reyes, Plaintiff’s Counsel. Such declaration and exhibit do not exist in the instant matter. Plaintiff’s Counsel is Dennis P. Wilson, and his declaration does not include an “Exhibit 1.”

[6] Pages 225-229 of the Deposition of Jackson in Plaintiff’s compendium of evidence appear out of numerical order with the rest of the deposition.