Judge: Monica Bachner, Case: 21STCV22368, Date: 2022-10-25 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.

Case Number: 21STCV22368    Hearing Date: October 25, 2022    Dept: 71

 

 

 

 

Superior Court of California

County of Los Angeles

 

DEPARTMENT 71

 

TENTATIVE RULING

 

THEODORE FAYE, 

 

         vs.

 

LOS ANGELES UNIFIED SCHOOL DISTRICT.

 Case No.:  21STCV22368

 

 

 

 Hearing Date:  October 25, 2022

 

Defendant’s motion for summary judgment is denied.  Defendant’s motion for summary adjudication is denied as to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and 11th causes of action and granted as to the 9th and 10th causes of action.

 

Defendant Los Angeles Unified School District (“LAUSD”) (“Defendant”) moves for summary judgment against Plaintiff Theodore Faye (“Faye”) (“Plaintiff”) on his complaint.  In the alternative, Defendant moves for summary adjudication on the 1st (disability discrimination), 2nd (disability harassment), 3rd (action for retaliation), 4th (failure to prevent discrimination, harassment or retaliation), 5th (failure to provide reasonable accommodations), 6th (failure to engage in the interactive process), 7th (interference with CFRA Right), 8th (retaliation under Labor Code §6310), 9th (Ralph Act), 10th (Bane Act), and 11th (retaliation under Labor Code §1102.5) causes of action. 

 

CRC Violations

 

Plaintiff filed a separate statement in opposition to the motion for summary judgment in violation of C.R.C. Rule 3.1354(b), which provides,

 

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.

 

(C.R.C., Rule 3.1354(b).)  Plaintiff’s separate statement also violates C.R.C. Rule 3.1350(h) in opposition to the motion for summary judgment because it raises objections and is replete with arguments. (C.R.C., Rule 3.1350(h).)  However, Plaintiff submitted separate evidentiary objections with its opposition in accordance with C.R.C. Rule 3.1354(a), but the objections were not filed. The Court will still rule on Plaintiff’s objections.

 

Defendant’s reply to Plaintiff’s separate statement also raises objections and is replete with arguments, in violation of C.R.C. Rules 3.1354(b) and Rule 3.1350(h).  Defendant does not have a statutory right to a separate statement in reply to Plaintiff’s opposing separate statement.  (See C.R.C., Rule 3.1350(d).) However, Defendant filed and submitted separate evidentiary objections with its reply in accordance with C.R.C. Rule 3.1354(a). The Court will rule on Defendant’s properly raised objections filed with its reply papers.

 

          Evidentiary Objections

 

Plaintiff’s 9/22/22 evidentiary objections to the declaration of Thelma Ponce (“Ponce”) are overruled as to Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, and 33, and sustained as to No. 7.

 

Plaintiff’s 9/22/22 evidentiary objections to the declaration of Mari Ann Aguilar (“Aguilar”) are overruled as to Nos. 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, and sustained as to No. 43.

 

Plaintiff’s 9/22/22 evidentiary objections to the declaration of Hahn Kim D’Aloisio (“D’Aloisio”) are overruled as to Nos. 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67.

 

Plaintiff’s 9/22/22 evidentiary objection to Separate Statement in Support of LAUSD’s Motion for Summary Judgment and/or adjudication is denied as to No. 68.

 

Defendant’s 9/30/22 evidentiary objections to the declaration of Laura L. Horton (“Horton”) are overruled as to Nos. 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17, and sustained as to Nos. 3, and 4.

 

Defendant’s 9/30/22 evidentiary objections as to the declaration of Theodore Faye (“Faye”) are overruled as to Nos. 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44.

 

Procedural Background

 

On June 15, 2021, Plaintiff filed his employment disability discrimination complaint in the instant action against Defendant alleging causes of action for (1) discrimination because of disability and/or perceived disability in violation of FEHA; (2) harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to prevent discrimination, harassment, or retaliation in violation of FEHA; (5) failure to provide reasonable accommodations in violation of FEHA; (6) failure to engage in the mandatory interactive process in violation of FEHA; (7) interference with CFRA rights; (8) retaliation in violation of Labor Code §6310; (9) violation of Civil Code §51.7; (10) violation of Civil Code §52.1; and (11) retaliation in violation of Labor Code §1102.5 based Defendant’s below standard performance evaluation of Plaintiff and Defendant’s decision to not renew Plaintiff’s employment contract in May 2020 while he was on medical leave.  (See Complaint.)  Plaintiff alleges he was subjected to hate crimes by four students in his class, including direct threats, violent, racist, Nazi, and anti-Semitic drawings of him, including violent caricatures of him being subjected to violent assault, injury, and death.  (Complaint ¶22.)  Plaintiff alleges his concerns about safety at school caused him anxiety, severe emotional distress, and mental disability requiring medical leave.  (Complaint ¶25.)  On July 20, 2022, Defendant filed the instant motion. Plaintiff filed his opposition on September 22, 2022.  Defendant filed its reply on September 30, 2022.

 

Summary of Allegations

 

In Fall 2018, Plaintiff was employed by Defendant as a video production teacher in Los Angeles County at Oliver Wendell Holmes Middle School.  (Complaint ¶21.)  Plaintiff alleges that when he was employed by Defendant, he was subjected to hate crimes by four students in his class, including direct threats, violent, racist, Nazi, and anti-Semitic drawings of Plaintiff, including violent caricatures of him being subjected to violent assault, injury, and death.  (Complaint 22.)  Plaintiff alleges he complained to Defendant that he felt the students were targeting him and planned violence against him, but nothing was done.  (Complaint ¶23.)  Defendant allegedly did not remove the students from his class and attempted to return the main offender to Plaintiff’s class.  (Id.)  All four students were permitted to remain on campus.  (Id.)  Plaintiff alleges he does not believe Defendant conducted a threat assessment.  (Complaint ¶24.)  Defendant is alleged to have created a “safety plan” that allowed the four students to remain on campus while requiring Plaintiff to “significantly alter his behavior,” and the alleged “safety plan” was never shared with Plaintiff.  (Id.)  Plaintiff’s alleged concerns about his safety at school caused him anxiety, severe emotional distress, and mental disability requiring medical leave.  (Complaint ¶25.)  Plaintiff alleges he took his first medical leave from January 13, 2020, to January 27, 2020, and immediately upon return to work, Plaintiff was retaliated against and harassed for complaining about the unsafe work environment and placed under observation in his class.  (Id.)  On January 29, 2020, Plaintiff alleges he suffered a panic attack at work.  (Complaint ¶26.)  Plaintiff alleges he could not breath and became disoriented; Plaintiff went to the emergency room and the treating physician excused Plaintiff from work for a week.  (Id.)  Plaintiff alleges his primary care physician extended Plaintiff’s medical leave from January 29, 2020, to July 29, 2020.  (Id.)  In May 2020, while on medical leave, Plaintiff was allegedly given a below standard performance evaluation and his employment contract was not renewed for the following school year.  (Complaint ¶27.)  Plaintiff’s last day of employment was June 30, 2020.  (Complaint ¶28.)

 

Disability Discrimination (1st COA)

         

          A prima facie case for discrimination “on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and (3) he was subjected to adverse employment action because of his disability. [Citations.]” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

 

“On a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination based upon physical disability, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer has done so the plaintiff must offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated. [Citation.]” (Id.)

The Court notes the pleadings frame the issues to be decided on summary judgment.  (See S.M. v. Los Angeles Unified School District (2010) 184 Cal.App.4th 712, 716-717 [“Our first task [on a motion for summary judgment] is to identify the issues framed by the pleadings. (Citation) The moving party need address only those theories actually pled and an opposition which raises new issues is no substitute for an amended pleading.”]; see also Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 [“The pleadings play a key role in a summary judgment motion and ‘set the boundaries of the issues to be resolved at summary judgment.’ . . . ‘A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings,” and “[e]vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings’]”.)

 

  1. Evidence of disability discrimination

     

    There is a vast body of case law that addresses proving discriminatory intent in cases where there was no direct evidence that the adverse employment action taken by the employer was motivated by race, religion, national origin, age, or sex. (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 122 [Wallace].)  In such cases, proof of discriminatory motive is governed by the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).  (Wallace, supra, 245 Cal.App.4th at pg. 123.)

     

    Courts and practitioners should not automatically apply principles related to the McDonnell Douglas test to disability discrimination cases.  (Wallace, supra, 245 Cal.App.4th at pg. 123.)  Rather, they should examine the critical threshold issue and determine whether there is direct evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition.  (Id.)  Direct evidence is evidence that proves a fact without inference or presumption. (Trop v. Sony Pictures Entertainment (2005) 129 Cal.App.4th 1133, 1145.)  Direct evidence includes comments that demonstrate discriminatory animus and a causal relationship between those comments and the adverse employment action. (Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1189 [Hernandez]; DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550.)

     

    Defendant submitted evidence suggesting Plaintiff cannot establish direct evidence that the motive for Defendant’s conduct was related to Plaintiff’s physical or mental condition. Specifically, Defendant submitted evidence Plaintiff was subject to performance evaluations prior to his medical leave that demonstrated consistently poor performance, including a two-day suspension on September 5, 2019, for pushing a student, throwing a chair to the ground, and grabbing another student’s arm, and a six-day suspension on November 22, 2019, for scratching a student’s hand.  (Disputed Separate Statement of Facts [“DSSF”] 3, 4, 5, 6, 7, 8, 9, 10, 15, 17, 18, 19, 20, 25; Decl. of Aguilar ¶¶3, 4; Decl. of Hill ¶4; Decl. of D’Aloisio ¶¶4, 5; Decl. of Ponce ¶¶5, 10, 12, 15, 21, 23; D-COE Exhs. 4, 6, 11, 13, 15, 37, 104, 105, 106, 107, 110, 139, 140, C at 110:16-112:16, 232:20-235:5, 438:8-440:18.)  Plaintiff’s evidence does not include statements by anyone at LAUSD or document evidence showing Plaintiff’s employment contract was not renewed because of his disability.  Accordingly, Defendant met its burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact.  As discussed below, Plaintiff did not meet his burden.

     

    Plaintiff failed to submit evidence creating a triable issue of material fact as to whether he can establish direct evidence that the motive for Defendant’s conduct was related to Plaintiff’s physical or mental condition.  (Plaintiff’s Additional Material Facts [“PAMF”] 228; P-COE Exh. DD at 39:23-40:1, 51:9-52:3, 107:13-108:1.)  Plaintiff only demonstrates that D’Aloisio was aware of Plaintiff’s disability, which calls into question D’Aloisio’s motivation because there was no completed final evaluation of Plaintiff’s work performance.  Plaintiff further provides circumstantial evidence regarding the date D’Aloisio submitted the form to not renew Plaintiff’s contract, which occurred when he was on CFRA leave.

     

  2. Prima facie case of discrimination

 

“[T]he plaintiff initially has the burden to establish a prima facie case of

discrimination. The plaintiff can meet this burden by presenting evidence that

demonstrates, even circumstantially or by inference, that he or 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. [Citation.] To establish a prima facie case, a plaintiff must show ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion.’ [Citation.]”  (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.) 

 

The plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination.  If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action.  (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355-356.)  The defendant only has the burden of production of stating the reason for the action, and not the burden of persuasion.  (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 142.)  Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by

the defendant were not its true reasons but a pretext for discrimination.  (McDonnell Douglas, 411 U.S. at pg. 802.)

 

Defendant argues summary adjudication of this cause of action is warranted because Plaintiff cannot establish a prima facie case for disability discrimination for the following reasons: (1) Plaintiff could not perform the essential functions of a teacher; (2) Plaintiff’s contract was not renewed for a legitimate non-discriminatory reason; and (3) Plaintiff cannot provide any evidence of pretexts for discrimination or any other evidence of discriminatory motive.  (Motion, pgs. 12-15.)

 

          Plaintiff alleges he was a qualified individual with a physical disability and/or was perceived disabled and was able to perform the essential functions of his position with or without a reasonable accommodation.  (Complaint ¶30.)  Plaintiff alleges Defendant was aware of Plaintiff’s disability and/or knew that despite Plaintiff’s disability or perceived disability Plaintiff was a qualified individual capable of performing his job duties and was successfully performing them.  (Complaint ¶32.)  Plaintiff alleges his protected status was a substantial motivating reason for Defendant’s treatment of Plaintiff and why his contract was not renewed.  (Complaint ¶33.)

 

 

  1. Performing the essential functions of a teacher with or without an accommodation

     

    “Essential functions” means the fundamental job duties of the employment position the individual with the disability holds. Government Code §12926(f) provides, in part, “A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: [¶] The function may be essential because the reason the position exists is to perform that function.”  (Gov. Code §12926(f)(1)(A).)  “In disability discrimination actions, the plaintiff has not shown the defendant has done anything wrong until the plaintiff can show he or she was able to do the job with or without reasonable accommodation.”  (Green v. State of California (2007) 42 Cal.4th 254, 265.)

     

    Defendant submitted evidence suggesting Plaintiff could not perform the essential functions of his position as teacher with or without reasonable accommodations, from the time he went off work on January 30, 2020, until the end of the school year when the term of his contract ended, and he was not renewed.  (Undisputed Statement of Separate Facts [“USSF”] 27, 29, 30; Decl. of Hill ¶4; D-COE Exhs. 125, 131, 132, C at 390:12-393:10, 416:19-424:20.)   Defendant further submitted evidence that it accommodated Plaintiff by granting him an extensive leave of absence: Plaintiff was on an approved leave of absence from January 30, 2020, through the end of the 2019-2020 school year. (USSF 29, 30; Decl. of Hill ¶4; D-COE Exhs. 130, 131, 132, C at 416:19-424:20.)  Accordingly, Defendants met their burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff met his burden.

     

    Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish he could perform the essential functions of his position as teacher with or without reasonable accommodations.  Specifically, Plaintiff submitted evidence that he requested a reasonable, effective accommodation for the administration to “perform another evaluation after [he has been] able to achieve normalcy in [his] emotional state and [to have the January 29, 2020] evaluation removed from [his] file.”  (DSSF 25, 33, 35; P-COE Exhs. C at 66:18-67:6, 122:23-123:23, 124:18-124:25, E, M, DD at 135:21-136:8, JJ at 399:10-400:2.)  Because Plaintiff’s contract was not renewed, Plaintiff was unable to demonstrate that he was able to perform the essential functions of a teacher with a reasonable accommodation after he took medical leave.

     

  2. Contract renewal for a legitimate non-discriminatory reason

     

    Defendant submitted evidence establishing a legitimate non-discriminatory reason for issuing the Below Standard Performance Evaluation and not renewing Plaintiff’s contract was that Plaintiff’s performance was not up to Defendant’s standards. (DSSF 33, 34, 35, 41; D-COE Decl. of D’Aloisio ¶14, Decl. of Ponce ¶¶17, 20, Exh. 147.)  Plaintiff violated various LAUSD polices, i.e., he treated various students with disrespect, bumped a student physically, failed to follow directives from administration, failed to deliver proper instruction, failed to properly manage his classroom, and failed to use instruction time effectively. (DSSF 3, 4, 5, 6, 7, 8, 9, 10, 15, 17, 18, 19, 20, 25; D-COE Decl. of ¶¶3, 4; Decl. of D’Aloisio ¶¶4, 5; Decl. of Ponce ¶¶4, 5, 10, 12, 15, 21, 22, 23; Exhs. 6, 15, 11, 13, 37, 104, 105, 106, 107, 110, 116, 139, 140, C at 110:16-112:16, 232:20-235:5, 438:8-440:18.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact.

     

    Plaintiff submitted evidence creating a triable issue as to whether he can establish Defendant did not renew Plaintiff’s contract because of an illegitimate discriminatory reason based on his protected status.  Specifically, Plaintiff submitted evidence that D’Aloisio based her decision to terminate Plaintiff only on Plaintiff’s performance during the 2019 fall semester and did not consider Plaintiff’s performance during the 2018-2019 school year, and Plaintiff was “meeting standard performance” on his 2018-2019 teacher evaluation. (DSSF 15; P-COE Exhs. C at 54:22-55:9, D, DD at 36:17-36:22, 37:21-38:24, 54:9-55:9.)  Plaintiff submitted evidence that D’Aloisio admits her observation of Plaintiff on August 28, 2019, was not enough to judge Plaintiff as being below standard.  (DSSF 33; P-COE Exh. DD at 135:21-136:8.)  Plaintiff submitted evidence that as of Plaintiff’s September 3, 2019 informal observation, Ponce believed Plaintiff was meeting standards.  (DSSF 33; P-COE Exh. C at 66:18-67:6.)  Plaintiff’s evidence creates a triable issue of material fact as to whether his contract was not renewed for a legitimate non-discriminatory reason.

     

  3. Evidence of pretext

     

    Plaintiff has the opportunity “to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.”  (Moore v. Regents of University of California (2016) 24 Cal.App.4th 216, 235.)  Plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but a pretext for discrimination.  (McDonnell Douglas, 411 U.S. at pg. 802.)  Plaintiff’s burden is significant as even a personal grudge can constitute a legitimate, non-discriminatory reason for an adverse employment action.  (Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1157.)  Plaintiff must produce specific, substantial evidence of pretext, and a triable issue of fact can be created only by a conflict of evidence, not by speculation or conjecture.  (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)  “The employee’s evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, ‘an actual causal link between prohibited motivation and termination.’” (Foroudi v. Aerospace Corp. (2020) 57 Cal.App.5th 992, 1007-1008.)

     

    Furthermore, to avoid summary judgment, Plaintiff cannot simply show that the employer’s decision was wrong, mistaken, or unwise. Instead, Plaintiff must show such weakness, implausibility, inconsistency, or contradiction in the employer’s explanation for its actions that a reasonable fact finder could rationally find those explanations unworthy of credence and thus infer that the employer did not act for those reasons.  (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 75; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)  “Evidence that an employer’s proffered reasons were pretextual does not necessarily establish that the employer intentionally discriminated: “[I]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.” (Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 350-351, [internal citations omitted].)

     

    Defendant submitted evidence suggesting Plaintiff cannot establish Defendant’s proffered reasons as pretexts for discrimination.  Specifically, Defendant submitted evidence that Plaintiff’s doctors never released him to return to work before the end of the 2019-2020 school year.  He was off work from January 30, 2020 to July 29, 2020.  (USSF 27, 29, 30; D-COE Decl. of Hill ¶4, Exhs. 125, 130, 131, 132, C at 390:12-393:10, 416:19-422:11, 422:12-424:20) (DSSF 31; D-COE Decl. of D’Aloisio ¶¶11, 12.)  Defendant also submitted evidence that neither Ponce nor D’Aloisio considered Plaintiff’s disability when issuing the Below Standard Evaluation or making the decision not to renew his contract.  (DSSF 35, 41; D-COE Decl. of Ponce ¶20, Decl. of D’Aloisio ¶14.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff met his burden.

     

    Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish Defendant’s proffered reasons as pretexts for discrimination.  Specifically, Plaintiff submitted evidence that the extended leave granted as a reasonable accommodation led directly to his contract non-renewal. (DSSF 31; P-COE Exhs. GG, PP, QQ.)  Plaintiff also submitted evidence that D’Aloisio claims she decided to terminate Plaintiff after January 27 but before January 31, 2020, but the documents produced by Defendant demonstrate D’Aloisio made the decision to terminate Plaintiff on April 14, 2020.  (DSSF 32; D-COE Exhs. DD at 32:19-33:10, 34:24-35:5, 39:23-40:1, 51:9-52:3, 107:13-108:1, EE.)

     

    Based on the foregoing, Defendant’s motion for summary adjudication as to the first cause of action for disability discrimination is denied.  Accordingly, Defendant’s motion for summary judgment is also denied. 

     

    Harassment based on disability (2nd COA)

     

    To establish a prima facie claim of harassment, plaintiff must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his protected status; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.  (Ortiz v. Dameron Hospital Association (2019) 37 Cal.App.5th 568, 581.)

     

    A “claim of disability harassment requires a showing ‘that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [disability].’”  (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927.)  In determining whether conduct was “severe enough or sufficiently pervasive to alter the condition of employment and create a work environment that qualifies as hostile or abusive,” the Court must look at the totality of the circumstances, including, “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”  (Miller v. Department of Corrections (2005) 36 Cal.4th 466, 462.)

     

    Plaintiff asserts the District harassed him by (1) targeting him by overly scrutinizing him by evaluating him on the first day he returned to work; (2) giving him a below standard performance evaluation while he was on medical leave; (3) threatening him with discipline after taking medical leave; (4) refusing to prepare an adequate safety plan or threat assessment; (5) allowing at least one of the students who threatened him and involved in the hate crime to return to his class; and (6) refusing to reinstate plaintiff even though his doctor had cleared him to return to work.  (Complaint ¶48.)

     

    Defendant argues Plaintiff cannot establish the necessary elements for a prima facie case of harassment that (1) he was subjected to harassment based upon his disability or (2) that harassment based upon his disability unreasonably interfered with his work performance by creating an intimidating, hostile of offensive work environment.  (Motion pg. 16.)

     

    Defendant submitted evidence suggesting Plaintiff cannot establish he was subjected to harassment based on his disability. Specifically, Defendant submitted evidence that Plaintiff does not dispute he has not been advised there are any limits as to when or how many times administration can observe his classroom.  (USSF 44; D-COE Decl. of Hill ¶4, Exh. C at 147:12-22.)  Defendant also submitted evidence that Plaintiff admitted he did not participate in preparing a safety plan and a threat assessment was completed prior to plaintiff returning to campus in January 2020.  (DSSF 45; D-COE Decl. of Hill ¶4, Decl. of Aguilar ¶9, Exh. C at 373:23-377:4.)  Plaintiff was only on campus for three days after his return on January 27, 2020, and was sent only a few emails advising of a meeting to discuss the classroom observation and the Final Evaluation.  (DSSF 46; D-COE Decl. of Ponce ¶¶14, 19.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact.

     

    Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish a prima facie claim of harassment. Specifically, Plaintiff submitted evidence that on January 30, 2020, Plaintiff saw the January 29, 2020 email from Ponce when he arrived at school and asked Ponce if the meeting was disciplinary, and Ponce told him it could be.  (DSSF 46; P-COE JJ at 364:12-365:2, 387:12-388:12, MM) (PAMF 216; P-COE Exh. C. at 122:23-123:23, M, JJ at 399:10-400:2.)

     

    Accordingly, Defendant’s motion for summary adjudication as to the second cause of action for disability harassment is denied.

     

    Retaliation (3rd COA)

     

    “Section 12940, subdivision (h) makes it unlawful for an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ To establish a prima facie case of retaliation, ‘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. If the employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas framework to

    analyze the employee’s claim.’”  (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 63.)

     

    Plaintiff alleges Defendant subjected him to retaliation by discharging, expelling or otherwise discriminating against him because he complained about unlawful business practices, including discrimination and harassment, and his complaints of an unsafe workplace. (Complaint ¶57.)

     

              Defendant argues Plaintiff cannot make a prima facie cause of action for retaliation because cannot establish that the non-renewal of his contract was based upon any complaints he made, and because plaintiff was terminated based upon his job performance, which is a legitimate, non-discriminatory reason.  (Motion, pg. 17.)

     

               Defendant submitted evidence suggesting that Plaintiff was fired for a legitimate non-discriminatory reason because Plaintiff was terminated based upon his job performance.  (DSSF 50, 51, 52; D-COE Decl. of Hill ¶3; Decl. of D’Aloisio ¶14.)  Defendant submitted evidence there is no evidence of pretext because D’Aloisio did not consider any of Plaintiff’s complaints when she made the decision to not renew plaintiff’s contract for the 2020-2021 school year.  (DSSF 52; Decl. of D’Aloisio ¶14.)  Accordingly, Defendant met its burden on summary judgment and shifts the burden to Plaintiff to create a triable issue of material fact.

     

              Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish a cause of action for disability retaliation.  Plaintiff submitted evidence that he engaged in protected activity by complaining about harassment, and requesting reasonable accommodations for his disability.  (PAMF 216; Exh. C at 122:23-123:23, M, JJ at 399:10-400:2.)  Plaintiff submitted evidence that he was terminated because he did not meet the minimum number of attendance days required of teachers because of his CFRA leave.  (PAMF 210; Exh. C at 119:23-120:22, 129:5-130:16, L, N.)  Further, Plaintiff submitted evidence suggesting Aguilar did not perceive Plaintiff had a disability due to the January 30, 2020 panic attack.  (PAMF 189; Exhs. Q at 176:18-178:12, W.)  After Plaintiff saw Ponce’s January 29, 2020 email, he asked Ponce if the meeting was disciplinary, and Ponce told him it could be.  (PAMF 200, Exhs. JJ at 387:12-388:12, MM.)

     

    Defendant’s motion for summary adjudication as to the third cause of action for disability retaliation is denied.

     

              Failure to Prevent Discrimination, Harassment, or Retaliation (4th COA)

     

    The elements of a cause of action for failure to prevent discrimination, harassment, or retaliation are: (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. No. County Transit Dist. (1998) 63 Cal.App.4th 280, 287, 289.)  Under the FEHA, it is also prohibited for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace.”  (Gov. Code §12940(k).)  “Courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940,

    subdivision (k).” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)

     

              Defendant argues that because Plaintiff’s causes of action for discrimination, harassment, and retaliation fail, so must this derivative cause of action. (Motion pg. 18.)  Accordingly, Defendant has not met its burden for summary adjudication on the fourth cause of action.

     

              Assuming, arguendo, that Defendant submitted evidence suggesting Plaintiff cannot establish a cause of action for failure to prevent discrimination, harassment, or retaliation, Plaintiff submitted evidence creating a triable issue of material fact.  Specifically, Plaintiff submitted evidence that D’Aloisio claims she decided to terminate Plaintiff after January 27 but before January 31, 2020, but Defendant’s documents indicate D’Aloisio made the decision to terminate Plaintiff on April 14, 2020.  (DSSF 53; P-COE Exh. DD at 32:19-33:10, 34:24-35:5, 39:23-40:1, 51:9-52:3, 51:13, 107:13-108:1.)  Plaintiff also submitted evidence that on February 25, 2020, he replied to Ponce and Aguilar via email denying that he was “below standards” and “out of school due to High Emotional Distress and Anxiety” created by “the direct threat to [Plaintiff] at school,” which “precludes [him] from performing normally in the workplace.”  (DSSF 53; P-COE Exhs. C at 122:23-123:33, M, JJ at 399:10-400:2.)

     

              Based on the foregoing, Defendant’s motion for summary adjudication as to the fourth cause of action for failure to prevent discrimination, harassment, or retaliation is denied.

     

    Failure to Provide Reasonable Accommodations (5th COA)

     

    A “reasonable accommodation” means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.”  (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1107.)  “Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears that the employee will be able to return to an existing position at some point in time in the foreseeable future.”  (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 [Jensen].) 

     

    Plaintiff’s allegation is that he requested an accommodation in the form of a leave, the District initially accommodated plaintiff but later refused accommodations, told him he could not return to work, and terminated him. (Complaint ¶73.).

     

    As stated in the first cause of action, Defendant submitted evidence that it accommodated Plaintiff by granting him an extensive leave of absence. (USSF 56; D-COE Decl. of Hill ¶4, Exh. C at 363:2-12.)  Plaintiff went on a second leave from January 29, 2020, through July 29, 2020.  (DSSF 60; D-COE Decl. of Hill ¶4, Exhs. 130, 131, 132, C at 416:19-424:20.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact.

     

    Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish he was provided a reasonable accommodation. Specifically, Plaintiff submitted evidence that a threat assessment was only conducted on one student, (“OS”), OS never had any type of mental health evaluation, and there was no threat assessment on the other three students.  (DSSF 54, 58; P-COE Exh. Q at 91:13-92:12, 125:23-126:6, 137:15-138:2, 179:2-179:6, X at 285:18-285:24.)  Plaintiff further submitted evidence that his observation on August 28, 2019 was not enough to judge Plaintiff’s classroom performance was “below standard.” (PAMF 204; P-COE Exh. DD at 135:21-136:8.)  On May 12, 2020, Ponce emailed Plaintiff his final evaluation while Plaintiff was still on medical leave, and Plaintiff’s below standard evaluation was because the January 29, 2020, classroom observation and because he did not meet the minimum number of attendance days required of teachers due to Plaintiff’s medical leave.  (PAMF 210, 211; P-COE Exhs. C at 119:23-120:22, 129:5-130:16, L, N, P, DD at 198:2-198:18.)

     

    Based on the foregoing, Defendant’s motion for summary adjudication as to the fifth cause of action for failure to provide reasonable accommodations is denied.

     

    Failure to engage in the interactive process (6th COA)

     

    Employers and employees are required to engage in communications in good faith towards exploring reasonable accommodations as to a known disability, unless futile. (Claudio v. Regents of Univ. of Cal. (2005) 134 Cal.App.4th 224, 249 [“Summary judgment must be reversed because a triable issue exists as to whether the Regents could be liable based on the employer’s failure to engage in good faith in the interactive process.”].)

     

    As to claims of failure to engage in the interactive process, employees “must identify a reasonable accommodation that was available at the time the interactive process should have occurred.”  (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 994-95.)

     

    “‘[T]he plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.’”  (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 976.)

     

    Defendant submitted evidence suggesting Plaintiff cannot establish a claim for failure to engage in the interactive process. Specifically, Defendant submitted evidence Plaintiff requested a supplemental evaluation. (USSF 65; Decl. of Hill ¶4, P-COE Exhs. 129, C at 400:3-401:23, 414:9-415:10.)  Defendant submitted evidence that Plaintiff could not perform the essential functions of his job because his doctor’s notes indicated he was unable to work from January 29, 2020, through July 29, 2020.  (DSSF 66; D-COE Decl. of Hill ¶4, Exhs. 130, 131, 132, C at 416:19-424:20.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact.

     

    Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish he can establish a claim for failure to engage in the interactive process.  Plaintiff submitted evidence that he was entitled to a supplemental formal evaluation, which he requested.  (PAMF 183, 184, 239, 261; P-COE Exhs. C at 22:5-23:17, 125:1-125:23, M, DD 69:7-69:21, 95:23-96:14, 102:22-103:5, FF, JJ at 441:10-441:19.)  When Defendant started teaching students remotely in March 2020 due to the COVID pandemic, Defendant could have attempted to accommodate Plaintiff by allowing him to work from home by teaching remotely.  (PAMF 185; P-COE Decl. of Faye ¶22, 26, Exhs. PP, QQ.)

     

    Based on the foregoing, Defendant’s motion for summary adjudication of the sixth cause of action for failure to engage in the interactive process is denied.

     

    Interference with CFRA rights (7th COA)

     

    “A [California Family Rights Act (“CFRA”)] interference claim consists of the following elements: (1) the employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those rights.”  (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 454 [Choochagi].) 

     

    Plaintiff’s basis for his claim of interference with his rights CFRA is that Defendant (1) held disciplinary meetings requiring his attendance while he was on CFRA leave; (2) punished Plaintiff by giving him a below standard performance review while he was on CFRA leave; (3) required Plaintiff to respond to disciplinary action while on CFRA leave; (4) otherwise discriminated against Plaintiff because he exercised his right to CFRA leave; and (5) terminated him.  (Complaint ¶¶88-89.)

     

    Defendant argues plaintiff cannot establish that his contract was not renewed because he took CFRA leave, and Plaintiff’s contract was not renewed based upon his performance issues.  (Motion, pg. 21.)

     

    Defendant submitted evidence suggesting Plaintiff cannot establish a prima facie case for interference with CFRA rights.  Specifically, Defendant submitted evidence that Ponce observed Plaintiff’s class on January 29, 2020, and issued a memo to Plaintiff indicating she needed to meet with him to discuss her observation.  (DSSF 70; D-COE Decl. of Ponce ¶14.)  Ponce sent Plaintiff multiple emails to schedule a meeting to discuss the observation.  (DSSF 70; D-COE Decl. of Ponce ¶14.)  Plaintiff was not required to personally attend the meeting, and had the option of having a representative appear without him either in person or via Zoom.  (DSSF 72; D-COE Decl. of Ponce ¶14.)  Plaintiff voluntarily attended a meeting with Ponce via Zoom on February 19, 2020, to discuss the January 29, 2020, observation.  (DSSF 72; Decl. of Ponce ¶15.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact.

     

    Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish a cause of action for interference with CFRA Rights.  Plaintiff submitted evidence that Defendant’s negative evaluations of Plaintiff considered that Plaintiff did not meet the minimum number of attendance days required of teachers, although his absences were during his medical leave.  (PAMF 177, 210; P-COE Exhs. C at 119:23-120:22, 129:5-130:16, N pg. 9, JJ at 416:20-417:6, PP, QQ, RR at 60:16-24.)  Plaintiff submitted evidence that Defendant received his FMLA/CFRA paperwork, and Plaintiff’s medical leave was not classified as FMLA leave until May 13, 2020.  (PAMF 181, 182; P-COE Exhs. QQ, RR 63:25-64:18, 91:23-92:19, TT.)

     

    Defendant’s motion for summary adjudication as to the seventh cause of action for interference with CFRA Rights is denied.

     

    Retaliation Under Labor Code §6310 (8th COA)

     

    A cause of action for Labor Code §6310 whistleblower protection (health or safety complaint), in which a plaintiff alleges a defendant engaged in an adverse employment action against plaintiff in retaliation for plaintiff’s safety complaint, requires establishing the following: (1) plaintiff was an employee of defendant; (2) plaintiff, on his own behalf or on behalf of others, made an oral or written complaint to an entity regarding unsafe/unhealthy working conditions or initiated a proceeding relating to his or another’s rights to workplace health or safety; (3) defendant engaged in adverse employment action against plaintiff; (4) plaintiff’s complaint was a substantial motivating reason for defendant’s adverse employment action; (5) plaintiff was harmed; and (6) defendant’s conduct was a substantial factor in causing plaintiff’s harm.  (CACI 4605; See Labor Code §6310(a), (c).)

     

    Plaintiff alleges he was terminated because he communicated what he reasonably believed to be an unsafe workplace. (Complaint ¶95.)

     

    Defendant argues Plaintiff cannot establish he was terminated because he made complaints about the students’ conduct or an unsafe work environment because Plaintiff continued to work until he went on medical leave and never returned.  (Motion pg. 22.)  Defendant argues Plaintiff cannot establish a prima facie cause of action, a legitimate non-discriminatory reason, or evidence of pretext. (Motion, pg. 22.)

     

              Defendant submitted evidence suggesting Plaintiff cannot establish a prima facie case for retaliation under Labor Code §6310.  Specifically, Defendant submitted evidence that Plaintiff continued to work until he went out on medical leave and never returned.  (DSSF 77; D-COE Decl. of D’Aloisio ¶8.)  Defendant submitted evidence assuming that Plaintiff could establish a prima facie case, that the district had a legitimate business reason for not renewing Plaintiff’s contract because of his performance.  (DSSF 33, 34, 35, 41, 51, 78; D-COE Decl. of Ponce ¶¶17, 20, Decl. of D’Aloisio ¶14, Exhs. 147.)  Defendant submitted evidence that Plaintiff cannot establish pretext.  (DSSF 35, 41, 47, 51, 52; D-COE Decl. of Ponce ¶20, Decl. of D’Aloisio ¶14.)  Defendant met its burden on summary judgment and shifted the burden to Plaintiff to create a triable issue of material fact.

     

              Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish a cause of action for retaliation under Labor Code §6310.  Specifically, Plaintiff submitted evidence that Defendant did not renew his contract because he engaged in protected when he reported his reasonable belief that a hate incident/hate crime occurred, and he was concerned about his own safety and the safety of students and teachers.  (PAMF 105, 106, 135, 136, 139, 141, 263; P-COE Decl. of Faye ¶6, Exhs. A, at 54:23-55:17, 57: 9-20, 59:5-59:21, R, JJ at 270:6-270:11, 314:5-314:9, 314:21-315:1, 315:11-315:16, 326:11-327:0, 327:25-329:6, 331:21-333:6, Q at 37:8-38:3, 60:19-24.)

     

    Defendant’s motion for summary adjudication as to the eighth cause of action for retaliation under Labor Code §6310 is denied.

     

     

    Violation of Civil Code §51.7 (Ralph Act) (9th COA) and §52.1 (Bane Act) (10th COA)

     

    “Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that [defendant] aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291.) Defendant argues Plaintiff cannot establish a cause of action under the Ralph Act because he does not allege any acts of violence by Defendant’s employees in his complaint.  (Motion, pg. 22.) 

     

    Plaintiff argues he was threatened by students in violation of his right to a safe workplace, and in the alternative, was subject to intimidation or coercion, interfering with his right to a safe workplace and to be free of intimidation.  (Opposition, pg. 19.)  Plaintiff argues Defendant ratified students’ conduct by not protecting Faye and other students and faculty.

     

    Bane Act liability occurs when a defendant’s threats, intimidation or coercion interferes or attempts to interfere “with the exercise or enjoyment by any individual of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Civ. Code §52.1(a); see City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077 [determining plaintiff must allege and prove that defendant interfered with plaintiff’s rights under federal or state law].)  The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.  (Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860, 882-883; see also Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [identifying Bane Act as intended to address only egregious interferences with constitutional rights, where the act of interference with a constitutional right must itself be deliberate or spiteful, beyond just any tort, such as negligence].)

     

    Plaintiff alleges Defendant violated the Bane Act when it allowed Plaintiff to be subjected to hate crimes by four students and he relies upon theories of vicarious liability, conspiracy, consent, and ratification to establish liability. (Complaint ¶111.)

     

    Defendant argues Plaintiff cannot establish a claim under the Bane Act because Plaintiff fails to allege any threats, intimidation, or coercion by any of Defendant’s employees.  (Motion, pg. 24.) Defendant submitted evidence suggesting Plaintiff cannot establish a claim for violation of the Ralph Act. Specifically, Defendant submitted evidence that Plaintiff testified that the administration, D’Aloisio, Ponce and Aguilar, did not subject him to any threats or violence. (DSSF 86; D-COE Decl. of Hill ¶4, Exh. C at 459:10-460:6.)  Additionally, Defendant offered evidence that Plaintiff testified that he did not have any knowledge that the administration knew about the students’ intent to engage in the alleged threats, i.e., the drawings, or spoke to the students about the drawings before they were created. (DSSF 87; D-COE Decl. of Hill ¶4, Decl. of Ponce ¶¶26-27; Decl. of D’Aloisio ¶¶16-17; Decl. of Aguilar ¶¶10-11, Exh. C at 460:7-462:14.)  Defendant submitted evidence that Plaintiff does not know if the students believed he was Jewish and he had never seen anything to suggest the students were involved with gangs. (DSSF 88; D-COE Decl. of Hill ¶4, Exh. C at 304:11-305:12, 310:9-313:13.)  At least two of the students attempted to apologize to Plaintiff the very next day.  (USSF 89; D-COE Decl. of Hill ¶4, Exh. C at 317:9-318:10.)   Accordingly, Defendant met its burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact.

     

    Defendant argues Plaintiff cannot establish a claim under the Bane Act because Plaintiff fails to allege any threats, intimidation, or coercion by any of Defendant’s employees.  (Motion, pg. 24.) Defendant submitted evidence that suggesting Plaintiff cannot establish a claim under the Bane Act. Specifically, Defendant submitted evidence that Plaintiff admitted Defendant administration did not do anything to intimidate him.  (DSSF 92; D-COE Decl. of Hill ¶4, Exh. C at 459:10-460:6.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact.

     

    As to both the Ralph Act violation, and the Bane Act violation, Plaintiff submitted evidence submitted evidence by which Plaintiff argues Defendant ratified the conduct of students by failing to discipline the students.  (Oppoisition, pgs. 19-20 citing PAMF 109, 111, 113, 135, 137, 138, 139; P-COE Exhs. Q at 63:11-64:1, 68:22-69:11, 71:20-71:22, JJ at 253:24-254:6, 270:6-270:11, 314:5-314:9, 314:21-315:1, 315:23-316:17, 317:9-317:18, 318:11-319:8, 326:11-327:9, 327:25-329:6, KK.) However, Plaintiff fails to cite legal authority that the failure to discipline a student constitutes ratification by a school district. Accordingly, Defendant’s motion for summary adjudication as to the ninth cause of action for Violation of Civil Code §51.7 (the Ralph Act) and as to the tenth cause of Action for violation of Civil Code  §52.1 (the Bane Act) is granted.

     

    Retaliation Under Labor Code §1102.5 (11th COA)

     

    A cause of action for retaliation under Labor Code §1102.5 requires the following elements: (1) defendant was plaintiff’s employer; (2) plaintiff disclosed or defendant believed that plaintiff had disclosed to a person with authority over plaintiff, or an employee with authority to investigate, discover, or correct legal violations or noncompliance; (3) plaintiff had reasonable cause to believe that the information disclosed a violation or noncompliance with a state statute; (4) defendant discharged plaintiff; (5) plaintiff’s disclosure of information was a contributing factor in defendant’s decision to discharge plaintiff; (6) plaintiff was harmed; and (7) defendant’s conduct was a substantial factor in causing plaintiff’s harm.  (CACI 4603; see Lab. Code §1102.5.)

     

    In Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, the Supreme Court of California held as follows: “Under section 1102.6, a plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual. Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” (Id. at 716.) The Court held that Section 1102.6 first, “places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action [and] [t]he plaintiff need not satisfy McDonnell Douglas . . . to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Id. at 718.)

     

    Plaintiff makes a general allegation that the District violated Labor Code § 1102.5 by terminating his employment because he communicated what he reasonably believed to be illegal conduct by the District. (Complaint ¶122.)

     

              Defendant cites an incorrect standard to suggest Plaintiff cannot establish a claim of retaliation under Labor Code §1102.5.  (See Motion, pg. 25.)   Defendant sets forth the same evidence as stated above pertaining to the District’s legitimate business reason for not renewing Plaintiff’s contract, and no evidence of pretext. Defendant has not met its burden on summary judgment.

     

              Assuming arguendo Defendant met its burden on summary judgment, Plaintiff submitted evidence creating a triable issue of material fact as to whether he can establish a claim under Labor Code §1102.5.  Specifically, Plaintiff submitted evidence that Defendant had at least one retaliatory reason that was a contributing factor in this action, namely Plaintiff’s complaints regarding workplace safety, the hate-crime incident, and harassment under FEHA.  (PAMF 96, 97, 98; P-COE Decl. of Faye ¶5, Exhs. X at 281:9-281:22, AA, JJ at 290:22-291:16, 292:10-292:15, 294:22-296:2, 300:3-300:10; 302:4-302:24; 305:18-305:20, 306:5-306:22, 307:21-308:5, 309:7-309:14, 310:18-311:15, 355:16-355:23, 356:16-357:1, KK.)

     

              Based on the foregoing, Defendant’s motion for summary adjudication of the eleventh cause of action for retaliation under Labor Code §1102.5 is denied.

     

    Based on the foregoing, Defendant’s motion for summary judgment is denied. Defendant’s motion for summary adjudication is denied as to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and and 11th causes of action, and granted as to the 9th 10th causes of action.

     

     

    Dated:  October _____, 2022

                                                                                                                           

    Hon. Monica Bachner

    Judge of the Superior Court