Rosalyn Campfield v. County of Los Angeles

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY(S): Plaintiff Rosalyn Campfield

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Rosalyn Campfield filed this action against the County of Los Angeles alleging discrimination, harassment, and retaliation based on her gender, race, and disability, among other things.

Defendant now moves for summary judgment, or in the alternative, summary adjudication. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is DENIED.

Defendant’s Alternative Motion for Summary Adjudication of the First, Second, Third, Fourth, and Fifth Causes of Action is GRANTED.

Defendant’s Alternative Motion for Summary Adjudication of the Sixth and Seventh Causes of Action is DENIED.

Defendant is ordered to give notice, unless waived.

DISCUSSION:

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

I. Judicial Notice

Pursuant to Defendant’s request, the court takes judicial notice of Plaintiff Rosalyn Campfield’s Complaint of Employment Discrimination Before the State of California Department of Fair Employment and Housing, DFEH No. 201901-04907324, filed on January 24, 2019.

II. Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

Defendant’s Objections numbered 1 through 17 are OVERRULED.

III. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.  Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741. 

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389. A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action.  Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.  Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.  § 437c(o)(2). 

IV. Analysis

A. Allegations in the Complaint

When ruling on a motion for summary judgment, a trial court must first “identify the issues framed by the pleadings since it is these allegations to which the motion must respond.” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal. App. 4th 497, 503.) 

In the catch-all Complaint, Plaintiff alleges that “Defendants subjected Plaintiff to discrimination/harassment/retaliation on the bases of gender; sexual harassment; race/color/ancestry/national origin; disability/perceived disability; opposition to discrimination/harassment/retaliation; and request for and exercise of reasonable accommodation through hostile work environment, quid pro quo, sexual innuendos and propositions, references to Plaintiff's private body parts, racially charged slurs/insults, slurs/insults related to Plaintiffs disabilities, failure to engage in good faith and provide reasonable accommodation for Plaintiff's disabilities, failure to follow internal policies, failure to conduct adequate investigation, increased scrutiny, denied a work environment free of discrimination/harassment/retaliation, denied employment benefits and privileges, defamation, other adverse employment actions, and other actions that would tend to dissuade a worker from making protected complaints.” (Compl. ¶ 6.) 

The Complaint does not identify Plaintiff’s job position, race, disability, gender, or requests for accommodations. (See Complaint, generally.) Plaintiff has provided no specific allegations beyond parroting the elements of each cause of action. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [the complaint “delimit[s] the scope of the issues” and “frame[s] the outer measure of materiality”]; Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [the pleadings “set the boundaries of the issues to be resolved at summary judgment].”)

B. Sufficiency of DFEH Charge

First, Defendant argues summary judgment is appropriate because Plaintiff’s DFEH charge did not identify her claims with the requisite specificity. The DFEH charge asserts that Plaintiff experienced harassment, discrimination, and retaliation. (See D’s Exh. 11.) Like the Complaint, the charge contains no specific allegations to detail or contextualize her claims. 

“An employee who wishes to file suit under the FEHA ‘must exhaust the administrative remedy provided by the statute by filing a complaint with the’ DFEH, ‘and must obtain from the [DFEH] a notice of right to sue.’ [Citation.] ‘The timely filing of an administrative complaint’ before the DFEH ‘is a prerequisite to the bringing of a civil action for damages.’”  (Pollock v. Tri-Modal Distribution Servs., Inc. (2021) 11 Cal. 5th 918, 931.) “The failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,” and thus “a trial court must grant summary judgment and dismiss the suit upon a finding that a party has not exhausted his or her administrative remedies.” (Miller v. United Airlines, Inc. (1985) 174 Cal. App. 3d 878, 890.)

“The purpose of the charge is to supply fair notice of the facts, sufficient to permit investigation.” (Hobson v. Raychem Corp. (1999) 73 Cal. App. 4th 614, 630.) It should contain with “specificity the discrimination alleged and the facts supporting it, including the nature of the disability claimed.” (Id.)

Cases addressing the sufficiency of a DFEH charge generally deal with the scenario where a charge is underinclusive, meaning it does not contain allegations later relied upon by the plaintiff in court. (See, e.g., Wills v. Superior Ct. (2011) 195 Cal. App. 4th 143, 153–54 [“DFEH complaint marked the box for discrimination based on ‘denial of family/medical leave’ only,” but “did not mention disability discrimination, retaliation, harassment, or failure to accommodate a disability”]; Hobson v. Raychem Corp. (1999) 73 Cal. App. 4th 614, 629 [“the underlying administrative charge “alleged [plaintiff’s] disability to be ulcerative colitis,” but contained “no mention of any mental or emotional impairment, such as depression”]; Soldinger v. Nw. Airlines, Inc. (1996) 51 Cal. App. 4th 345, 381[plaintiff’s “charges submitted to DFEH do not duplicate the allegations in her amended civil complaint”].)

The charge here, however, is overinclusive. It contains only generalized allegations, effectively alleging everything and anything that might support claims for discrimination, harassment, or retaliation under the FEHA. While this approach leaves much to be desired, the court cannot say, as a matter of law, that it is insufficient. 

Considering the purpose of the administrative charge, the court concludes the one here is sufficient. It placed the Department on notice of Plaintiff’s claims and would have triggered an investigation into claims reasonably “like or related” to those alleged here in the civil action. (Okoli v. Lockheed Tech. Operations Co. (1995) 36 Cal. App. 4th 1607, 1617.) This is consistent with the purpose of the charging requirements, which “is to ensure DFEH is provided the opportunity to resolve disputes and eliminate unlawful employment practices through conciliation.” (Wills v. Superior Ct. (2011) 195 Cal. App. 4th 143, 156.) 

Broad as it may be, the charge here should have “enable[d] that agency to investigate the charges and attempt to obtain voluntary compliance with the law.” (Soldinger v. Nw. Airlines, Inc. (1996) 51 Cal. App. 4th 345, 381.) Accordingly, the DFEH was sufficient, and this argument in support of summary judgment fails.

C. First Cause of Action for Discrimination

Next, Defendant moves for summary judgment or adjudication of the First and Second Causes of Action.

When ruling on a motion for summary adjudication in the context of a discrimination claim, “the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.  (Moore v. Regents of Univ. of California (2016) 248 Cal. App. 4th 216, 236 [emphasis in original].)  “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....[Citation.] However, ‘many employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Id. [emphasis in original].) 

First, Defendant contends that Plaintiff has not suffered an adverse employment action. Generally, to make a prima facie case for FEHA discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)  

“In California, an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity.” (St. Myers v. Dignity Health (2019) 44 Cal. App. 5th 301, 318.) “Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.” (Francis v. City of Los Angeles (2022) 81 Cal. App. 5th 532, 541.) Echoing that concept, the CACI instructions state:

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.

(See CACI 2509.) 

In her opposition, Plaintiff largely conflates the facts underlying her harassment, discrimination, and retaliation causes of action. But “[i]n the FEHA, the terms ‘discriminate’ and ‘harass’ appear in separate provisions and define distinct wrongs.” (Roby v. McKesson Corp. (2009) 47 Cal. 4th 686, 705–06.) “Because the FEHA treats harassment in a separate provision, there is no reason to construe the FEHA's prohibition against discrimination broadly to include harassment.” (Id.) “Hence, our case law makes clear that the FEHA's discrimination provision addresses only explicit changes in the ‘terms, conditions, or privileges of employment’ (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer.” (Id. at 706.) “In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” (Id.)

“By contrast, harassment often does not involve any official exercise of delegated power on behalf of the employer. We explained this point in Reno: “ ‘Courts have employed the concept of delegable authority as a test to distinguish conduct actionable as discrimination from conduct actionable as harassment. We adopt this approach to find that the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment.’ ” [Citation]. Thus, harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Id.)

Here, it is undisputed that Plaintiff has not been terminated, demoted, suspended, denied a promotion, or disciplined while working with the County. (SSUMF 4-8.) Although Plaintiff contends that she was denied a lateral transfer, she states it is “undisputed” that she “has no evidence that she did not receive the transfer for a discriminatory or retaliatory reason.” (SSUMF 9, 10.) 

Plaintiff goes on to present evidence that she faced harassment from her supervisor, Andres Hernandez, who Plaintiff previously had a romantic relationship with. (SSADMF 2, 3.) Plaintiff contends this harassing “course of conduct” constitutes an adverse employment action. 

Beginning in December of 2016, Hernandez showed Plaintiff pictures of Hernandez’s genitalia and naked women, and asked Plaintiff to have sex with Hernandez and his friends. (SSADMF 4.) Hernandez allegedly called Plaintiff the “’N’ Word” on multiple occasions and put his hand up Plaintiff’s skirt. (SSADMF 5, 9.) When Plaintiff requested a transfer because she felt Hernandez was sexually harassing her, Defendant rejected the transfer. (SSADMF 10.)

Plaintiff presents further evidence that Hernandez’s niece, Sylvia Mejia, has “several sisters [who] all work for Human Resources for Defendant.” (SSADMF 11.) Plaintiff contends that “Mejia has bullied Plaintiff, made fun of Plaintiff, told Hernandez and Gibbs that Plaintiff was unqualified, and told Plaintiff that Plaintiff was not a good trainer.” (SSADMF 12.) On January 25, 2018, Mejia “told Plaintiff [that] Plaintiff was weird and Plaintiff replied that [she] has autism.” (SSADMF 15.) When Plaintiff informed Hernandez that Mejia was bullying her, Hernandez told her she “deserved it.” (SSADMF 17.) 

On February 14, 2018, Plaintiff complained to Hernandez that she was receiving prank phone calls. (SSADMF 19.) Hernandez responded that if Plaintiff reported his niece (Sylvia Mejia), he would kill Plaintiff. (SSADMF 19, 21.) In addition, Hernandez—who knew Plaintiff had previously suffered a miscarriage—referred to her deceased baby as a “dead nigger.” (SSADMF 19.)

On September 13, 2018, Plaintiff was interviewed with the “County Policy of Equity Compliance Unit” regarding complaints Plaintiff made about Hernandez and Mejia. (SSADMF 23.) Hernandez allegedly “was standing on the other side of a glass partition” and “displayed a gun-type signal to Plaintiff.” (Id.) 

Considering this evidence, Plaintiff has failed to demonstrate a triable issue as to whether she faced an adverse employment action for purposes of her discrimination cause of action. Plaintiff has failed to identify any change in the “terms, conditions, or privileges of employment,” that is, “changes involving some official action taken by the employer,” as opposed to harassing conduct by her supervisor. (See Roby, supra, 47 Cal. 4th at 705–06 [noting that FEHA harassment and discrimination are distinct].) As will discussed later, the “course of conduct” Plaintiff highlights goes to her harassment cause of action, not her discrimination cause of action. 

Accordingly, Defendant’s Motion for Summary Adjudication of the First Cause of Action is GRANTED.

D. Second Cause of Action for Failure to Prevent Discrimination

Courts have required a finding of actual discrimination, retaliation, or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k) for failure to prevent the same. (Dickson v. Burke Williams, Inc. (2015) 234 Cal. App. 4th 1307, 1314.)  

Because Plaintiff has not stated a claim for discrimination, her cause of action for failure to prevent discrimination must also fail. 

Accordingly, Defendant’s Motion for Summary Adjudication of the Second Cause of Action is GRANTED.

E. Fifth Cause of Action for Retaliation

Defendant moves for summary adjudication of the retaliation cause of action on the same grounds as the discrimination cause of action, that is, because Plaintiff has failed to demonstrate she suffered an adverse employment action.

“[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.”  (Cornell v. Berkeley Tennis Club (2017) 18 Cal. App. 5th 908, 942.)

As discussed with the discrimination cause of action, Plaintiff has not identified that she suffered any adverse employment action. Because she has not demonstrated a triable issue on this factor, summary adjudication is also appropriate here.

Accordingly, Defendant’s Motion for Summary Adjudication of the Fifth Cause of Action is GRANTED.

F. Sixth Cause of Action for Harassment

1. The Avoidable Consequences Doctrine Does Not Apply

Next, Defendant first argues Plaintiff’s harassment cause of action is barred by the “avoidable consequences doctrine.” Defendant suggests that Plaintiff “should have reported Hernandez’s alleged conduct long before he allegedly made his untoward remarks to her on February 14, 2018.” (Mtn. 15: 22-25.)

“[I]n a FEHA action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine.” (State Dep't of Health Servs. v. Superior Ct. (2003) 31 Cal. 4th 1026, 1044.) Under the avoidable consequences doctrine as recognized in California, “a person injured by another's wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure.” (Id. at 1043.) Addressing the doctrine, the Court of Appeal has quoted The Restatement Second of Torts, which states: “[O]ne injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.” (Id. at 1042-43 [citing Rest.2d Torts, § 918, subd. (1)].) The Restatement’s comment explains that this rule “applies only to the diminution of damages and not to the existence of a cause of action.” (Id., com. a, p. 500.) 

“This defense will allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer's internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.” (Id. at 1044, emphasis added.) The Court emphasized again, however, that the “defense affects damages, not liability.” (Id.) “An employee's failure to report harassment to the employer is not a defense on the merits to the employee's action under the FEHA, but at most it serves to reduce the damages recoverable.” (Id. at 1049.) 

Because of the Court’s repeated admonitions that the avoidable consequences doctrine applies only to damages, but not liability, it is not clear that the doctrine can be applied at the summary judgment stage. Even assuming it can, Plaintiff has established disputed factual issues as to its application. The Court in State Dep’t of Health Services explained that “in some cases an employee's natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor.” (State Dep't of Health Servs., supra, 31 Cal. 4th at 1045.) Here, Plaintiff testified at her deposition that she didn’t immediately report Hernendez’s harassing conduct because she was scared of retaliation, felt manipulated, was not aware that she could make anonymous complaints, and felt ashamed about her sexual relationship with Hernandez, among other reasons. (SSADMF 24-30.) Ultimately, application of the avoidable consequences doctrine “will in many and perhaps most instances present disputed factual issues to be resolved by application of practical knowledge and experience.” (Id. at 1044.) Such is the case here. Accordingly, the doctrine is not a complete bar to Plaintiff’s harassment cause of action. 

2. Whether Harassment Was Sufficiently Severe 

Next, Defendant argues the harassment was not sufficiently severe or pervasive. To establish a FEHA claim for harassment, a plaintiff must show that “(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.”  (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 563.)

“Actionable harassment consists of more than “annoying or ‘merely offensive’ comments in the workplace,” and it cannot be “occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.)  Harassment “must be assessed from the ‘perspective of a reasonable person belonging to [same protected class as] the plaintiff.’ ”  (Cornell v. Berkeley Tennis Club, (2017) 18 Cal. App. 5th 908, 940.)

“Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances. These may include 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. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing and conduct that a reasonable person in the plaintiff's position would find severely hostile or abusive.” (Serri v. Santa Clara Univ. (2014) 226 Cal. App. 4th 830, 870 [cleaned up].)

The harassment cause of action is based on the evidence discussed in Plaintiff’s discrimination and retaliation claims. While that evidence was insufficient to create a triable issue on those causes of action, it is sufficient for the harassment cause of action. 

As discussed, Plaintiff presents evidence that she faced harassment from her supervisor, Andres Hernandez, who Plaintiff previously had a romantic relationship with. (SSADMF 2, 3.) Beginning in December of 2016, Hernandez showed Plaintiff pictures of Hernandez’s genitalia and naked women, and asked Plaintiff to have sex with Hernandez and his friends. (SSADMF 4.) Hernandez allegedly called Plaintiff the “’N’ Word” on multiple occasions and put his hand up Plaintiff’s skirt. (SSADMF 5, 9.) When Plaintiff requested a transfer because she felt Hernandez was sexually harassing her, Defendant rejected the transfer. (SSADMF 10.)

Plaintiff presents further evidence that Hernandez’s niece, Sylvia Mejia, has “several sisters [who] all work for Human Resources for Defendant.” (SSADMF 11.) Plaintiff contends that “Mejia has bullied Plaintiff, made fun of Plaintiff, told Hernandez and Gibbs that Plaintiff was unqualified, and told Plaintiff that Plaintiff was not a good trainer.” (SSADMF 12.) On January 25, 2018, Mejia “told Plaintiff [that] Plaintiff was weird and Plaintiff replied that [she] has autism.” (SSADMF 15.) When Plaintiff informed Hernandez that Mejia was bullying her, Hernandez told her she “deserved it.” (SSADMF 17.) 

On February 14, 2018, Plaintiff complained to Hernandez that she was receiving prank phone calls. (SSADMF 19.) Hernandez responded that if Plaintiff reported his niece (Sylvia Mejia), he would kill Plaintiff. (SSADMF 19, 21.) In addition, Hernandez—who knew Plaintiff had previously suffered a miscarriage—referred to her deceased baby as a “dead nigger.” (SSADMF 19.)

On September 13, 2018, Plaintiff was interviewing with the “County Policy of Equity Compliance Unit” regarding complaints Plaintiff made about Hernandez and Mejia. (SSADMF 23.) Hernandez allegedly “was standing on the other side of a glass partition” and “displayed a gun-type signal to Plaintiff.” (Id.) 

Here, the frequent racial slurs and physical threats in the workplace are an “offensive message” that created an intimidating, hostile, or offensive work environment. (Roby, supra, 47 Cal. 4th at 706.) Therefore, Plaintiff has established a triable issue of material fact on her harassment cause of action. The court is mindful that it must “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) 

3. The Continuing Violation Doctrine Applies

Finally, to the extent Defendant might argue some of the claims supporting harassment are time barred under the one-year statute of limitations, the “continuing violations doctrine” applies. “[W]hen the requisite showing of a temporally related and continuous course of conduct has been established, it is appropriate to apply the continuing violation doctrine to…harassment claims.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1058.) In a “harassment case, the FEHA statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality.”  (Id. at 1059.) “The FEHA statute of limitations should be interpreted liberally to allow employers and employees an opportunity to resolve disputes informally.” (Id. at 1057.) In applying the doctrine, courts must consider whether “the employer's actions were (1) sufficiently similar in kind—recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [Citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Id. at 1059.) 

Here, a reasonable trier of fact could find that Hernandez’s harassing acts were similar in kind and occurred with sufficient frequency to constitute a continuous and temporally related course of conduct. Moreover, a reasonable trier of fact could conclude that Plaintiff was not on notice that the harassing conduct had reached a degree of “permanence” prior to January 24, 2018—one year before filing her DFEH charge. Accordingly, this court cannot determine that the continuing violation doctrine is inapplicable as a matter of law.

G. Seventh Cause of Action for Failure to Prevent Harassment

Because the sixth cause of action for harassment remains, so does Plaintiff’s seventh cause of action for failure to prevent harassment.

Accordingly, Defendant’s Motion for Summary Adjudication of the Seventh Cause of Action is DENIED.

H. Third Cause of Action for Failure to Engage in Interactive Process; Fourth Cause of Action for Failure to Provide Reasonable Accommodations

Finally, Defendant moves for summary adjudication of the Plaintiff’s Third and Fourth causes of action.

The elements of a failure to accommodate claim are “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.”  (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1009–10.)

“The ‘interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.” (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1013.)

For its burden, Defendant presents evidence that it engaged in the interactive process with Plaintiff, and that Plaintiff was granted her requested accommodations where necessary. (SSUMF 19, 24, 26, 27, 28, 32, 35.) These facts are undisputed. 

In opposition, Plaintiff states that she “is no longer pursuing claims for failure to engage in the interactive process and provide reasonable accommodation.” (Opp. 5: 3-4.) 

Accordingly, Defendant’s Motion for Summary Adjudication of the Third and Fourth Causes of Action is GRANTED.

IT IS SO ORDERED.

Dated:   June 03, 2024 ___________________________________