Case Number: 20STCV10644    Hearing Date: July 27, 2022    Dept: 49

Jacqueline Jones v. Los Angeles World Airports, et al.

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:               Defendant City of Los Angeles

RESPONDING PARTY(S): Plaintiff Jacqueline Jones

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiff Jacqueline Jones (“Plaintiff”) worked at the Los Angeles World Airports, a department of the city of Los Angeles, for 38 years, most recently as a Risk Manager.  Plaintiff alleges Defendant discriminated against her based on her being an African American woman in her sixties with a physical disability, and that Defendant forced her to retire in 2019.  The Operative Third Amended Complaint includes causes of action under FEHA for (1) disparate treatment–discrimination, (2) disability discrimination–failure to provide reasonable accommodation, (3) disability discrimination–failure to engage in interactive process, and (11) failure to prevent harassment, retaliation, and discrimination. 

Defendant now moves for summary judgment, or in the alternative, summary adjudication.  Plaintiff opposed the motion.  After the initial May 12, 2022, hearing on this matter, the court continued the hearing and permitted Plaintiff to file and serve an Amended Additional Material Facts in Dispute and a Supplemental Brief.  Defendant was permitted to file and serve a response.  The court has read and considered these filings, and now rules as follows.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is DENIED. 

Defendant’s Motion for Summary Adjudication of the First and Fourth Causes of Action is DENIED.

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

Moving party to give notice.

DISCUSSION:

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

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:

Plaintiff’s objections to the Evans/Yang Report (See Adams Decl., Exh. 3), the Declaration of Paula Adams, and the Declaration of Rodrix Jennings, all which go to hearsay, lack of foundation, or relevance, are OVERRULED.[1]

Defendant’s objections to the Deposition Transcript of Paula Adams (See Doumanian Decl., Exh. D), the Declaration of Jacqueline Jones, and the Declaration of James McGuirk, all of which go to hearsay, lack of foundation, or relevance, are OVERRULED.

Defendant’s objection to the “Amended” Declaration of Plaintiff Jacqueline Jones (submitted 6/13/2022) is SUSTAINED in full.  Plaintiff was not given leave to submit an amended Declaration.  This court will disregard the amended Declaration and treat Plaintiff’s original Declaration (filed 4/28/2022) as operative.[2]

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 motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak.  Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.  

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).

Where a plaintiff cannot establish an essential element of a cause of action, or where a complete defense is shown, a court must grant a motion for summary adjudication.  Code Civ. Proc. § 437c(o)(1)-(2).  A defendant meets its burden by showing that “one or more elements of a cause of action . . . cannot be established.”  Id.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.  Parol evidence cannot be used to supply unwritten details of an arrangement between the parties.  Friedman v. Bergin (1943) 22 Cal.2d 535, 539.

When a defendant moves for summary judgment or adjudication on the basis of an affirmative defense, the defendant has the burden of establishing the undisputed facts support each element of the affirmative defense.  Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-68.

Analysis

1. First Cause of Action (FEHA Discrimination)

a.      ISSUE ONE: As a matter of law, Plaintiff’s First Cause of Action for discrimination in violation of FEHA fails because LAWA had legitimate, non-discriminatory reasons for the alleged adverse employment actions Plaintiff is claiming in this case.; ISSUE TWO: As a matter of law, Plaintiff’s First Cause of Action for discrimination in violation of FEHA fails because the alleged adverse actions were not substantially motivated by discrimination.

Defendant argues that Plaintiff’s discrimination claim fails because LAWA had legitimate, non-discriminatory reasons for the alleged adverse employment actions. 

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].)

Generally, to make 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.) 

Here, as framed by the relevant pleadings, there is no dispute that Plaintiff was a member of a protected class, either on account of her race, age, or physical disability; Plaintiff also pleads  that she was qualified for her position and performed competently in that role—indeed, Plaintiff worked for LAWA for nearly 40 years;  Plaintiff pleads evidence that she was placed on administrative leave after returning from a medical leave in April 2017; and Plaintiff pleads that she suffered an adverse employment action—she was given the “choice” to either retire or face termination.  (See, Third Amended Complaint.) Therefore, Plaintiff has effectively pled a prima facie case of discrimination under FEHA.

This puts the initial burden on Defendant to demonstrate legitimate, non-discriminatory factors for the adverse employment action.  Defendant presents evidence of “legitimate” (and non-discriminatory) grounds for terminating Plaintiff, in that after an outside investigation, Defendant concluded Plaintiff ran an unauthorized “PRP Program”[3] within LAWA.  (UMF 1, 4, 5.)  That outside investigation discovered, among other things, that Plaintiff (1) “created and managed the PRP program”; (2) that she “received at least one PRP treatment at no cost” from a LAWA vendor; and (3) that she “failed to exercise management, supervision and oversight of the PRP program.” (See Adams Decl., Exh. 3.)  There is nothing in the report to suggest that Plaintiff’s race, age, medical leave, or disability was a contributing factor.  (UMF 8.) 

This shifts the burden to Plaintiff to “offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.”  (Foroudi v. Aerospace Corp. (2020) 57 Cal. App. 5th 992, 1007.)  “Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it ‘remains subject to careful scrutiny.’” [Citation.] (Id. [emphasis added].)  Moreover, the “stronger the employer's showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff's evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at 1008.)

First, Plaintiff argues there is a dispute of fact as to whether she truly “retired”, since she claims her “choice” was not actually a “choice” at all.  However, this disputed fact is not necessarily material for purposes of the pending motion.  It appears undisputed that Plaintiff suffered an adverse employment action, whether it be a through straight termination or a forced retirement.  (See D’s Response to P’s Amended Opposition 6: 12-13 [“For the purpose of this motion, LAWA does not dispute Plaintiff’s claim she was constructively discharged.”].) But an adverse employment action, by itself, does not establish a FEHA violation.  Even assuming that Plaintiff was forced to retire “with a gun to her head” (her words), this says nothing of whether Plaintiff’s protected status was a motivating factor.  Put differently, consider the hypothetical situation where Plaintiff could not demonstrate any dispute as to whether her protected status was a motivating factor in her termination; but could establish a dispute as to whether she “retired” or was “fired.”  This would not defeat the motion for summary judgment, because the latter issue is immaterial if she can’t establish the former.  Of course, at any trial of this case, the issue of whether there was an adverse employment action appears to be disputed.

Be that as it may, and as will be explained, this court finds that Plaintiff has demonstrated the existence of a material issue of fact on other grounds.  To begin, Plaintiff presents evidence of perceived animus based on her race from her supervisors. (Jones Decl. ¶¶ 18,19.) In her Declaration, Plaintiff attests that her supervisor, Paula Adams,[4] “was jealous of me and acted in a mean way towards me, as I was a strong, confident, beautiful, and powerful Black woman.”  (Id. ¶ 18.)  Plaintiff further attests that Adams displayed a “sense of extreme racial inferiority” and “was extremely negative, jealous, and overly critical of other African American women in the workplace (including the plaintiff) and especially those who are thin, beautiful, more fit, more competent, more positive, and more well-liked than she ever was in the workplace.”  (Id.) Plaintiff represents that her other supervisor, Adria Williams, displayed this same racial animus toward her.  (Id. ¶ 19.) 

Standing alone, this evidence is likely insufficient for Plaintiff to carry her burden, because “[t]he employee's ‘subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.’ [Citation.]” (Foroudi, supra 57 Cal. App. 5th at 1007-08.)  However, Plaintiff also presents the following evidence.  With the approval of her supervisors James McGuirk and Wei Chi, Plaintiff started the “PRP Program” to offer PRP therapy to LAWA employees. (Jones Decl. 7.)  The treatment would help injured LAWA employees “heal, heal faster, and return to work sooner.”  (Id. 7.)    Plaintiff submits the Declaration of her former supervisor, James McGuirk, who supervised Plaintiff from 1996 through 2019.  (McGuirk Decl. ¶ 2, Exh. 2.)   By McGuirk’s account, Plaintiff was an exemplary employee at LAWA.  (Id. ¶ 4.) He also adds context to the “PRP Program.”  The PRP Program began in 2013 under the supervision of Wei Chi. (Id. 15.)  McGuirk says the Program “was never investigated nor was [he] ever made aware then (or now) that management had any issue or concern” with it. (Id.) The program terminated in early 2016 due only to a lack of interest—not any concerns of wrongdoing.  (Id.)

Defendant argues that McGuirk’s declaration or opinions on the PRP Program should be ignored because he too was fired for his involvement in the Program.  But Defendant has not shown any evidence in the record, aside from Adams’ declaration, that McGuirk was fired for this reason.  Adams’ Declaration states only that she “recommended discharge of Plaintiff, her supervisor and her subordinate employee” for violation of LAWA policies.  (Adams Decl. ¶ 11.)  McGuirk’s declaration says only that he retired on January 6, 2019.  (Decl. ¶ 1.)  At most, this raises a question of his credibility.  But this court cannot weigh credibility of witnesses—only a trier of fact can. 

Also notable is that the investigation into the PRP Program did not begin until April of 2018—apparently two or more years after the program had ended.  (Adams Decl. ¶ 3.) Moreover, the investigation began the same month (April of 2018) that Plaintiff’s doctor permitted her to return to work with certain restrictions.  (Jones Decl. ¶ 11.)  Considering that Plaintiff perceived racial and/or “ageist” animus by Adams—not to mention that Plaintiff had just returned from medical leave when the investigation kicked off—creates a reasonable inference that the investigation was a pretextual maneuver to terminate Plaintiff because of her additional protected status of age and/or disability. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479 [“Pretext may ... be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination.”].)

Thus, by construing Plaintiff’s evidence liberally and resolving all evidentiary doubts in her favor, this court concludes that Plaintiff has carried her burden to demonstrate a dispute of triable fact. (Foroudi, 57 Cal. App. 5th at 1007.)  Make no mistake: this court in no way attempts to second-guess the Defendant’s routine management of its employees, and it is not this court’s role to decide if Defendant’s decisions were “wrong, mistaken, or unwise.”  (Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 807 [internal quotations omitted.].) But what it must do is identify “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reason able factfinder could rationally find them unworthy of credence.” (Id.) This court concludes that such factors exist here. 

To conclude, a reasonable juror could find that the reasons proffered for Plaintiff’s termination—indeed, possibly the investigation itself—were pretextual and that a substantial motivating factor in Plaintiff’s termination was her race, age, and/or medical disability. 

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

2. Second Cause of Action (Failure to Accommodate)

a.      ISSUE THREE: Plaintiff’s Second Cause of Action for failure to accommodate in violation of FEHA fails as a matter of law because Plaintiff was unable to perform the essential functions of her job with an accommodation, she was given paid leave, and she was not denied a reasonable accommodation.

Defendant first argues that Plaintiff was unable to perform the essential functions of her job because she was deemed totally disabled from December 7, 2017, until April 22, 2018, and then again from May 11, 2018, until she resigned.  (Mtn. 22: 11-13.)  Defendant further argues that it did provide Plaintiff with a “reasonable accommodation” because it provided Plaintiff paid medical leave. 

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.)

To begin with Defendant’s burden, it presents evidence that it did reasonably accommodate Plaintiff’s disability by giving her medical leave.  (UMF 10, 11, 12.)  (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App. 4th 215, 226 [holding “a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties”].)  This switches the burden to Plaintiff. 

Plaintiff’s Amended Separate Statement provides:

Prior to Plaintiff’s returning from her medical leave of absence in April 2018, she spoke with and was assured by her supervisor James McGuirck that her light duty work restrictions could be accommodated, and it was “no problem at all.” However, when she returned to work, she was informed by Paula Adams that LAWA could not accommodate her temporary work restrictions and she was then summarily placed on administrative leave of absence effective immediately pending an investigation. 

(Amended Separate Statement ¶ 11.)

Thus, it appears that Defendant placed Plaintiff on administrative leave as soon as she returned from medical leave.  Plaintiff has presented no authority demonstrating that a Plaintiff must be given accommodations on an administrative leave. Further, Plaintiff makes no attempts to demonstrate what a reasonable accommodation would have been in such a case.  It is clear that Plaintiff disputes the reasons for the administrative leave, but this says nothing about Defendant’s failure to accommodate. 

For that reason, the court finds Plaintiff has not met her burden to establish the existence of a triable material issue of fact on this issue.  The undisputed facts show that once Plaintiff returned from medical leave, she was immediately placed on administrative leave pending the investigation.  (UMF 10.)

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

3. Third Cause of Action (Failure to Engage in Interactive Process)

a.      ISSUE FOUR: Plaintiff’s Third Cause of Action for Failure to engage in the interactive process fails as a matter of law because Plaintiff was not denied an interactive process.

Defendants next argue there is no evidence that they did not engage in an “interactive process” with Plaintiff.

“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.)

Here, again, Defendant presents evidence that Plaintiff’s injury left her “totally temporarily disabled,” a fact Plaintiff apparently does not dispute.  Defendant further presents evidence that upon Plaintiff returning from medical leave, she was immediately placed on administrative leave, a fact also not in dispute.  (UMF 13.)  Plaintiff herself recognizes that she was placed on administrative leave the day she returned to work.  Plaintiff fails to explain how Defendant deprived her of an interactive process when the undisputed facts establish that Plaintiff went from medical leave immediately into administrative leave.

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

4. Eleventh [Fourth] Cause of Action (Failure to Prevent Discrimination, Retaliation, or Harassment)

a.      ISSUE FIVE: Plaintiff’s Fourth [sic] Cause of Action for Failure to Prevent Discrimination, Retaliation, or Harassment in Violation of FEHA fails as a matter of law because Plaintiff cannot establish a claim of discrimination and her claims for harassment and retaliation have been dismissed.

Defendant argues this claim fails with the first cause of action.  Indeed, “courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)” for failure to prevent discrimination. (Dickson v. Burke Williams, Inc., (2015) 234 Cal. App. 4th 1307, 1314.) 

Because Plaintiff has demonstrated the existence of material triable issues of discrimination (First Cause of Action), her claim for failure to prevent the same also rests on these disputed issues.  Thus, summary adjudication of this cause of action is improper.

Accordingly, Defendant’s Motion for Summary Adjudication of the Eleventh [Fourth] Cause of Action is DENIED.

IT IS SO ORDERED.

Dated:   July 27, 2022                                                 ___________________________________

                                                                                    Randolph M. Hammock

                                                                                    Judge of the Superior Court