Judge Robert B. Broadbelt, Case Number: 22STCV01211, Date: 2024-11-27 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV01211, Date: 2024-11-27 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

The court considered the moving and opposition papers filed in connection with this motion. No reply papers were filed.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendant City of Los Angeles (“Defendant”) moves the court for an order granting summary judgment in its favor and against plaintiff K’lem Fitzgerald Banner (“Plaintiff”) on his First Amended Complaint or, in the alternative, granting summary adjudication in favor of Defendant and against Plaintiff on each cause of action.

It is an unlawful employment practice “[f]or an employer, because of the race . . . , national origin . . . , physical disability . . . , [or] medical condition . . . of any person, . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in the terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a); FAC ¶ 33 [alleging discrimination on the basis of Plaintiff’s race, ethnicity, disability, medical condition, and/or his perceived disability or medical condition].) “To establish a prima facie case of discrimination under FEHA, a plaintiff must show they were a member of a protected class; they were qualified for the position or were performing competently in the position they held; they suffered an adverse employment action, such as termination, demotion, or denial of an available job; and some other circumstance suggested discriminatory motive.” (Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 397.)

The court finds that Defendant (1) has not met its burden to show that the first cause of action for discrimination has no merit on the ground that Plaintiff cannot establish the element of circumstances suggesting discriminatory motive, and (2) has met its burden of showing that the first cause of action for discrimination has no merit because Defendant has shown that the adverse employment action (i.e., its termination of Plaintiff’s employment) was based on legitimate, nondiscriminatory factors. (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32 [“The ‘employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors’”].)

First, the court finds that Defendant has not met its burden to show that Plaintiff cannot establish a prima facie case of discrimination on the ground that he cannot establish the element of circumstances that suggest a discriminatory motive.

Defendant has asserted that Plaintiff cannot establish a prima facie case of discrimination “as he can present no evidence that similarly situated, non-Black employees received more favorable treatment.” (Mot., p. 8:10-11.) However, Defendant did not cite evidence in support of this assertion. Thus, Defendant has not met its burden to show, with evidence, that Plaintiff cannot establish a prima facie case of discrimination. (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 160 [on summary judgment, “[t]he defendant must ‘present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonable obtained, needed evidence’”] [internal citation omitted].)

Second, the court finds that Defendant has met its burden to show that its termination of Plaintiff was based on legitimate, nondiscriminatory factors.

Defendant has submitted the declaration of Randall Goddard (“Goddard”), in which Goddard states the following: (1) Plaintiff was under Goddard’s control for his Structured Field Training Program Period; (2) in various of Plaintiff’s Probationary Police Officer Weekly Evaluation Reports (the “Evaluation Reports”) for June 16, 2019 through August 10, 2019, Plaintiff received substandard ratings in various areas; (3) the Employee Comment Sheet for the period of December 26, 2018 through February 1, 2019 stated that Plaintiff received 42/45 “needs improvement” evaluations from his peers, which included their concerns that Plaintiff was forgetful, lacking in confidence, and needed to learn how to effectively manage his stress; (4) the Employee Comment Sheet for the period of February 4, 2019 through March 15, 2019 stated that Plaintiff received a total of 39/45 “needs improvement” evaluations from his peers, which included concerns that Plaintiff lacked critical thinking when put under stress and was unable to make decisions in tactical situations, and comments that his peers would not trust him to be their partner in the field and that they feared for the safety of other officers; and (5) along with other unnamed individuals, Goddard requested the termination of Plaintiff based on his failure to meet the minimum standards of a Los Angeles Police Department police officer, which was approved by Chief of Police Michel Moore on February 21, 2020.[1] (Goddard Decl., ¶¶ 5, 19 [“I, and others, requested termination of Plaintiff . . . .”]; Goddard Decl., Exs. D-K [Evaluation Reports]; Goddard Decl., Ex. L [Dec. 26, 2018 – Feb. 1, 2019 Employee Comment Sheet]; Goddard Decl., Ex. N [Feb. 4, 2019 – March 15, 2019 Employee Comment Sheet].)

The court finds that this evidence shows that Defendant terminated Plaintiff for the legitimate, nondiscriminatory reason that Plaintiff was not satisfying the standards required for a police officer with the Los Angeles Police Department.

“Generally in cases involving affirmative adverse employment actions, pretext may be demonstrated by showing the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or the proffered reason was insufficient to motivate discharge.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594 [internal quotation marks and citations omitted].) “Pretext may also 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 the termination.” (Ibid. [internal quotation marks and citation omitted].)

The court finds that Plaintiff has presented analysis of Defendant’s evidence showing that a triable issue of material fact exists as to Plaintiff’s job performance before his termination and, as such, whether the proffered reason for his termination (i.e., that his performance was unsatisfactory) was sufficient to motivate his discharge. (Soria, supra, 5 Cal.App.5th at p. 594 [pretext may be inferred by demonstrating that the proffered reason was insufficient to motivate the discharge and the employee’s job performance before termination].) Specifically, Plaintiff has argued that his Evaluation Reports stated that his performance was satisfactory, save for the report completed for the period of July 14, 2019 to July 20, 2019.

As noted by Plaintiff, Plaintiff’s overall weekly performance was designated “Satisfactory” for the Evaluation Reports for the periods of June 16, 2019 to June 22, 2019, June 23, 2019 to June 29, 2019, June 30, 2019 to July 6, 2019, July 7, 2019 to July 13, 2019, July 21, 2019 to July 27, 2019, July 29, 2019 to August 3, 2019, and August 4, 2019 to August 10, 2019.[2] (Goddard Decl., Ex. D, p. 1; Goddard Decl., Ex. E, p. 1; Goddard Decl., Ex. F, p. 1; Goddard Decl., Ex. G, p. 1; Goddard Decl., Ex. I, p. 1; Goddard Decl., Ex. J, p. 1; Goddard Decl., Ex. K, p. 1.) Thus, although Plaintiff had various “below standard” ratings in various areas, all but one of the Evaluation Reports stated that Plaintiff’s performance was satisfactory.

Defendant has, as set forth above, submitted the Evaluation Reports completed for Plaintiff for the period of time between June 16, 2019 through August 10, 2019, in which the Field Training Officers stated that Plaintiff’s knowledge and performance in certain areas was “below standard.” However, the court has noted, in reviewing the Evaluation Reports submitted in connection with this motion, that the Evaluation Reports also stated that Plaintiff’s performance in various other areas, including those relating to his general appearance, attitude, and his relationships with citizens in general, with ethnic groups or genders other than his own, and other officers and employees, was “Standard,” which is defined to mean behavior that “demonstrates an adequate ability to accomplish required tasks.” (Goddard Decl., Ex. D, p. 1 [June 16, 2019 – June 22, 2019 Evaluation Report listing as “Standard” Plaintiff’s general appearance, attitude, knowledge of policies and procedures, law regarding search and seizure, and verbal and field performance tests, as well as Plaintiff’s performance with the radio and relationships]; Goddard Decl., Ex. E, p. 1 [June 23, 2019 – June 29, 2019 Evaluation Report listing as “Standard” Plaintiff’s knowledge of policies and procedures, law regarding search and seizure, and the Vehicle Code, as well as Plaintiff’s self-initiated field activities and relationships]; Goddard Decl., Ex. F, p. 1 [June 30, 2019 – July 6, 2019 Evaluation Report listing as “Standard” Plaintiff’s general appearance, attitude, and relationships]; Goddard Decl., Ex. G, p. 1 [July 7, 2019 – July 13, 2019 Evaluation Report, listing as “Standard” Plaintiff’s general appearance, attitude, organization and skill as to report writing, and relationships]; Goddard Decl., Ex. H, p. 1 [July 14, 2019 – July 20, 2019 Evaluation Report, listing as “Standard” Plaintiff’s general appearance, attitude, knowledge of the law regarding search and seizure and the Vehicle Code, officer safety as to suspects/prisoners, control of conflict as to physical skill, and his relationships]; Goddard Decl., Ex. I, p. 1 [July 21, 2019 – July 27, 2019 Evaluation Report listing as “Standard” Plaintiff’s general appearance, attitude, results of verbal tests and field performance tests, officer safety (both generally and as to suspects/prisoners), control of conflict (as to both voice command and physical skill), and his relationships]; Goddard Decl., Ex. J, p. 1 [July 28, 2019 – August 3, 2019 Evaluation Report, listing as “Standard” Plaintiff’s general appearance, attitude, knowledge of search and seizure law, officer safety (both general and as to suspects/prisoners), control of conflict (as to void command), use of common sense and good judgment, appropriate use of communications codes, and relationships]; Goddard Decl., Ex. K [August 4, 2019 – August 10, 2019 Evaluation Report, listing as “Standard” Plaintiff’s general appearance, attitude, knowledge of the Vehicle Code and results of the verbal and field performance tests, report writing (as to grammar and spelling and time used), officer safety (as to suspects/prisoners), control of conflict (as to physical skill), use of common sense and good judgment, and relationships].) The court also notes that Defendant did not present, in support of its moving papers, evidence explaining why the substandard ratings of Plaintiff’s knowledge and performance, when taken in consideration with the standard ratings of Plaintiff’s knowledge and performance, were sufficient to justify Plaintiff’s termination.

Thus, the court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to whether Defendant’s proffered reason for terminating Plaintiff was pretext for discrimination since Plaintiff has presented analysis of the evidence submitted by Defendant regarding the adequacy of his work performance.

The court therefore denies Defendant’s motion for summary adjudication as to the first cause of action for discrimination.

It is an unlawful employment practice for an employer, because of race, national origin, physical disability, or medical condition, “to harass an employee . . . .” (Gov. Code, § 12940, subd. (j)(1); FAC ¶ 42 [alleging harassment based on Plaintiff’s race, ethnicity, perceived and/or actual disability, and perceived and/or actual medical condition].) “To establish a prima facie case of unlawful harassment under FEHA, a plaintiff must show ‘(1) he was a member of a protected class; (2) he was subjected to unwelcome . . . harassment; (3) the harassment was based on [the plaintiff’s membership in an enumerated class; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [the defendant] is liable for the harassment.’” (Martin, supra, 97 Cal.App.5th at p. 170.)

The court finds that Defendant has not met its burden of showing that the second cause of action for harassment has no merit because Defendant has not shown that the elements of this cause of action cannot be established.

First, Defendant did not address the second cause of action for harassment in its memorandum of points and authorities, and therefore did not present sufficient argument, analysis, and evidence to show that Plaintiff cannot establish the elements of this cause of action.

Second, Defendant did not (1) separately address the second cause of action for harassment in its separate statement as required, and (2) set forth evidence in the separate statement to show that Plaintiff cannot establish any element of this cause of action. (Cal. Rules of Ct., rule 3.1350, subd. (b) [“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action . . . must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement”].)

Third, the court notes that, in its notice of motion, Defendant has asserted that this cause of action has no merit “because the conduct alleged does not rise to the level of actionable harassment under FEHA” because “[p]ersonnel management decisions such as hiring and firing, job or station assignments, promotions or demotions, performance evaluations, and the provisions of support are not within the meaning of harassment.” (Notice of Mot., pp. 1:27-2:3.) The court agrees that such management decisions do not fall within the meaning of harassment, which consists of actions outside the scope of job duties that are not necessary to business and personnel management. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-870.) But (1) Plaintiff’s harassment cause of action is not based on personnel management decisions of Defendant, but rather that Defendant created and allowed a hostile work environment based on, inter alia, the allegations that Plaintiff’s accent was mocked (FAC ¶ 16), that officers stated that Plaintiff “could not be from ‘the hood’ because he spoke proper English” (FAC ¶ 16), and that he was nicknamed “hurt knee” and was told that he should be fired for injuring himself while still on probation (FAC ¶ 19), and (2) as set forth above, Defendant did not address this cause of action in its moving papers, such that Defendant has not presented adequate analysis, argument, and authority establishing that the conduct does not constitute harassment.

The court therefore denies Defendant’s motion for summary adjudication as to the second cause of action for harassment.

It is an unlawful employment practice for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part . . . .” (Gov. Code, § 12940, subd. (h); FAC ¶¶ 48 [alleging that Plaintiff was retaliated against for his opposition to prohibited employment practices and for attempting to secure his rights under FEHA], 52 [alleging that Plaintiff engaged in protected activity when he complained to his supervisors that Defendant’s conduct violated his work restrictions, and that Defendant thereafter began to retaliate against him].) “‘[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.’” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879.)

The court finds that Defendant has met its burden of showing that the third cause of action for retaliation has no merit because Defendant has shown that its termination of Plaintiff was based on legitimate, nonretaliatory factors (i.e., that Plaintiff was not satisfying the standards required for a police officer with the Los Angeles Police Department) for the same reasons as set forth in connection with the court’s discussion on the first cause of action for discrimination. (Wilkin v. Community Hospital of the Monterey Peninsula (2021) 71 Cal.App.5th 806, 828 [“Where the employer presents admissible evidence either that one or more of [the employee’s] prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory [or nonretaliatory] factors, the employer will be entitled to summary judgment unless the [employee] produces admissible evidence which raises a triable issue of fact material to the [employer’s] showing”] [internal quotation marks and citation omitted]; (Goddard Decl., ¶¶ 5, 19; Goddard Decl., Exs. D-K [Evaluation Reports]; Goddard Decl., Ex. L [Dec. 26, 2018 – Feb. 1, 2019 Employee Comment Sheet]; Goddard Decl., Ex. N [Feb. 4, 2019 – March 15, 2019 Employee Comment Sheet].)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to whether Defendant’s proffered reason for terminating Plaintiff was pretext for retaliation because (1) as set forth above, Plaintiff has presented analysis of Defendant’s evidence to show that a triable issue of material fact exists as to Plaintiff’s job performance before his termination, such that he has shown that a triable issue of material fact exists as to whether the proffered reason for terminating Plaintiff (i.e., his unsatisfactory performance) was sufficient to motivate his discharge, and (2) Plaintiff has submitted evidence showing temporal proximity between (i) Plaintiff’s providing his work restrictions to Defendant on January 23, 2020, and his requests for an accommodation on February 10 and 12, 2020 (which were denied on February 13, 2020), and (ii) Defendant’s request for termination of Plaintiff on February 13, 2020. (Banner Decl., ¶¶ 20 [Plaintiff provided his doctor’s notes with updated restrictions on January 23, 2020], 21 [on February 10, 2020, Plaintiff “contacted Sgt. Ransom to see if there was any work [he] could do for the LAPD because [he] was having surgery on his knee in two weeks[,] and on February 12, 2020, Plaintiff contacted Sgt. Walker], 23, 25; Goddard Decl., Exs. D-K; Goddard Decl., ¶ 19; Soria, supra, 5 Cal.App.5th at p. 594 [pretext may be demonstrated by showing that the proffered reason was insufficient to motivate discharge, the employee’s job performance before termination, and the timing of the termination decision].)

The court therefore denies Defendant’s motion for summary adjudication as to the third cause of action for retaliation.

It is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m)(1).) “‘The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]’” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766 [internal citation omitted].)

The court finds that Defendant has not met its burden of showing that the fourth cause of action for failure to accommodate has no merit because Defendant has not shown that the element of Defendant’s failure to accommodate Plaintiff’s disability cannot be established.

Defendant contends that Plaintiff’s doctor’s note specified that his work restrictions were for semi-sedentary work, and that Defendant accommodated those restrictions. (Mot., p. 10:22-25.) However, Defendant did not cite or present any evidence in support of that assertion. Defendant did not submit, for example, the doctor’s note(s) submitted to it by Plaintiff, or documentation establishing that it accommodated the restrictions described therein. Moreover, Defendant did not (1) separately address this cause of action in its separate statement as required, or (2) state any material facts regarding the accommodations that it provided Plaintiff therein. (Cal. Rules of Ct., rule 3.1350, subd. (b).)

The court therefore denies Defendant’s motion for summary adjudication as to the fourth cause of action for failure to accommodate.

It is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) “‘The employee must initiate the process unless his or her disability and the resulting limitations are obvious. Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith.’” (Kaur v. Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 347 [emphasis in original].)

The court finds that Defendant has not met its burden of showing that the fifth cause of action for failure to engage in the interactive process has no merit because Defendant has not shown that the element of Defendant’s failure to engage in the interactive process cannot be established. Defendant did not (1) present any argument setting forth the acts it took to engage in the interactive process in good faith, instead stating, in conclusory fashion, that it accommodated Plaintiff, which (i) is unsupported by evidence and (ii) does not show, as a matter of law, that Defendant engaged in the interactive process in good faith with Plaintiff; (2) cite any evidence in its memorandum of points and authorities to show that it engaged in the interactive process with Plaintiff; (3) separately address this cause of action in its separate statement as required; and (4) cite any material facts regarding this cause of action in its separate statement. (Mot., pp. 10:3-24; Def. Sep. Statement; Cal. Rules of Ct., rule 3.1350, subd. (b).)

The court therefore denies Defendant’s motion for summary adjudication as to the fifth cause of action for failure to engage in the interactive process.

The court denies defendant City of Los Angeles’s motion for summary judgment or, in the alternative, summary adjudication.

The court orders plaintiff K’lem Fitzgerald Banner to give notice of this ruling.

[1] The court notes that Defendant has not specified the other individuals that also requested Plaintiff’s termination.

[2] Plaintiff does not dispute that his performance was stated to be “Unsatisfactory” for the period of evaluation that occurred during July 14, 2019 to July 20, 2019. (Goddard Decl., Ex. H, p. 1.)

k’lem fitzgerald banner ; Plaintiff, vs. city of los angeles , et al.; Defendants.	Case No.:	22STCV01211

	Hearing Date:	November 27, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: defendant’s motion for summary judgment or, in the alternative, summary adjudication