Judge Robert B. Broadbelt, Case Number: 22STCV34738, Date: 2024-05-07 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV34738, Date: 2024-05-07 Tentative Ruling

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court rules on defendant Los Angeles Unified School District’s evidentiary objections, filed on May 2, 2024, as follows:

The court grants defendant Los Angeles Unified School District’s request for judicial notice, filed on February 20, 2024. (Evid. Code, § 452, subds. (c), (h).)

The court denies defendant Los Angeles Unified School District’s supplemental request for judicial notice, filed on May 2, 2024, because the document to be judicially noticed is not relevant to a material issue presented by this motion. (Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any matter to be judicially noticed must be relevant to a material issue”].)

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 Los Angeles Unified School District (“Defendant”) moves the court for an order granting summary judgment in its favor and against plaintiffs Amosun Akala (“Akala”), Daniel P. Stelzer (“Stelzer”), and Stacy Hayes (“Hayes”) (collectively, “Plaintiffs”) on Plaintiffs’ Complaint or, in the alternative, granting summary judgment in its favor and against Plaintiffs on the causes of action alleged in the Complaint.

The court notes that, in its moving papers, Defendant has addressed the discrimination and retaliation causes of action (i.e., the second, fourth, and sixth causes of action) first. (Mot., pp. 16:5-7 [heading B addressing discrimination claims], 20:12 [addressing retaliation claim].) The court has addressed Plaintiffs’ causes of action in numerical order in ruling on Defendant’s motion.

1. First Cause of Action for Failure to Accommodate Religious Belief or Observance (Issue Nos. 1-6)

It is an unlawful employment practice for an employer “to discriminate against a person . . . in terms, conditions, or privileges of employment because of a conflict between the person’s religious beliefs or observance and any employment requirement, unless the employer . . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the person’s religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer . . . .” (Gov. Code, § 12940, subd. (l)(1).)

“There are three elements to a prima facie case under section 12940, subdivision (l): the employee held a religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement. [Citation.] Once the employee establishes a prima facie case with sufficient evidence of the three elements, the burden shifts to the employer to establish that ‘it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations.]’ [Citation.]” (California Fair Employment and Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011 (“Gemini”) [internal citations omitted].) “‘Undue hardship’ means an action requiring significant difficulty or expense, when considered in light of” five factors set forth by statute, including the nature and cost of the accommodation needed, the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the type of operations and functions of the facility, and the geographic separateness or administrative or fiscal relationship of the facility or facilities. (Gov. Code, § 12926, subd. (u).)

The court finds that Defendant has met its burden of showing that the first cause of action for failure to accommodate religious belief or observance has no merit because Defendant has shown that “no accommodation was possible without producing undue hardship.” (Gemini, supra, 122 Cal.App.4th at p. 1011 [internal quotations and citations omitted].)

Defendant has submitted evidence showing that Plaintiffs each sought to abstain from Defendant’s COVID-19 vaccination policy, adopted by Defendant on August 31, 2021, in full, while still attending work in-person. (Undisputed Material Fact (“UMF”) Nos. 24, 42-43; Def. Compendium of Evidence (“Def. COE”) Ex. G-1, Pl. Akala Dep., Ex. B; Def. COE Ex. G-2, Pl. Hayes Dep., Ex. A; Def. COE Ex. G-3, Pl. Stelzer Dep., Ex. A.) Plaintiffs proposed the following accommodations to allow them to decline to obtain the vaccine pursuant to Defendant’s policy: (1) changing the hours of their shifts so that Plaintiffs would not be around other coworkers or students; (2) allowing plaintiff Hayes to retire instead of being terminated; and (3) allowing plaintiff Stelzer to work as a supervisor and perform virtual work (which would have required Stelzer to have been promoted). (Def. COE Ex. G-1, Pl. Akala Dep., p. 41:1-24 [“it was implied at some point by one of us that an accommodation could be met by changing our shifts when no one is on campus so we wouldn’t be around anybody”]; Def. COE Ex. G-2, Pl. Hayes Dep., pp. 38:12-39:16 [testifying as to his desire to retire so that he could reserve his lifetime benefits]; Def. COE Ex. G-3, Stelzer Dep., pp. 41:11-19 [testifying as to his offer to work nights], 42:22-43:8 [testifying about willingness to work as a supervisor], 43:9-11.)

Defendant has also argued, in its moving papers, that Plaintiffs suggested social distancing, masking, and weekly testing as accommodations, citing material fact number 40. (Mot., p. 14:19-21.) The deposition testimony cited in support of Defendant’s contention and material fact number 40 does not appear to show that Plaintiffs requested masking, social distancing, and weekly testing as accommodations. However, Plaintiffs do not appear to dispute that they requested these accommodations. The court therefore evaluates whether Defendant has shown that granting these accommodations would have presented an undue hardship.

As set forth above, it is undisputed that Plaintiffs sought an exemption from Defendant’s vaccination policy, i.e., Plaintiffs declined to obtain the COVID-19 vaccine because of their religious beliefs. (UMF No. 43.) Defendant’s Chief Medical Director, Dr. Smita Malhotra (“Dr. Malhotra”), has explained in her declaration that (1) Defendant’s COVID-19 mitigation measures were meant to address the threat that COVID-19 posed to the safety of its students and staff; (2) non-pharmaceutical interventions (e.g., masking and distancing) were insufficient safety measures to protect against COVID-19; (3) Defendant “was experiencing a heavy financial burden with its weekly COVID-19 testing program[,]” which required it to administer approximately 500,000 tests weekly; (4) Defendant “felt that a vaccination policy would decrease overall rates of COVID-19 infection and eventually significantly reduce the costs associated with this program[;]” and (5) Defendant made the decision to implement its COVID-19 vaccination policy upon representations and recommendations from, inter alia, physicians and scientists from UCLA, the Los Angeles County Department of Public Health, and Dr. Malhotra “that the benefits of vaccination outweighed the risks associated with not being vaccinated.” (Def. COE Ex. 1, Dr. Malhotra Decl., ¶¶ 8, 15-17.) Dr. Malhotra further states that, “to maintain its business operations without significant disruption arising from student, teacher, and worker COVID-19 infections, and in order to reduce the overwhelming expense of testing initiates, [Defendant] needed a primarily vaccinated workforce.” (Def. COE Ex. 1, Dr. Malhotra Decl., ¶ 17.)

The court finds that this evidence is sufficient to show that, in order to accommodate Plaintiffs in the manner that they requested, it would have imposed on Defendant significant difficulty or expenses and therefore produced an undue hardship on it because (1) the non-pharmaceutical interventions, including masking and distancing, were not sufficient to protect against COVID-19, (2) Defendant’s weekly testing program was costly, and Defendant saved “millions of dollars as a result” of implementing its vaccination policy, and (3) allowing Plaintiffs to perform their work on Defendant’s premises could have resulted in the further spreading of COVID-19, could have endangered the health and safety of its employees, students, and surrounding community, and could have resulted in disruptions to its workforce. (Def. COE Ex. 1, Dr. Malhotra Decl., ¶¶ 15, 17; Gov. Code, § 12926, subds. (u) [setting forth factors for undue hardship], (u)(1) [nature and cost of accommodations], (u)(2) [financial resources of the facilities involved in the provision of reasonable accommodations], (u)(3) [overall financial resources of the entity]; Doe v. San Diego Unified School District (9th Cir. 2021) 19 F.4th 1173, 1180 [acknowledging that the EEOC released guidance explaining that, although Title VII prohibits employment discrimination based on religion, an employee’s request for an exemption from a COVID-19 vaccination mandate can be denied on the ground that it would pose an undue hardship “by burdening ‘the conduct of the employer’s business’ through increasing ‘the risk of the spread of COVID-19 to other employees or to the public’”]; O’Hailpin v. Hawaiian Airlines, Inc. (D. Hawai’i 2022) 583 F.Supp.3d 1294, 1309-1310 [finding that plaintiffs did not demonstrate a likelihood of success on Title VII religious discrimination claim because “the increased risk that unvaccinated employees in close quarters pose to other employees” showed an undue hardship].)

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to the existence of undue hardship on Defendant.

As a threshold matter, the court notes that Plaintiffs do not appear to have addressed each cause of action separately, and instead have set forth various arguments that may be applicable to several causes of action. The only specific argument set forth in connection with their claim that Defendant did not offer them an accommodation is that they were not offered in-person work with testing in lieu of vaccination, remote work, or after-school hour shifts. (Opp., p. 13:3-6.) Plaintiffs have submitted their declarations, in which they have each stated that (1) he was not offered unpaid leave of absence, and (2) he was not offered testing as an alternative to vaccination. (Akala Decl., ¶¶ 14; Hayes Decl., ¶ 14; Stelzer Decl., ¶ 14.) Plaintiffs Akala and Stelzer also stated that their requests for an after-hours shift were denied. (Akala Decl., ¶ 23; Stelzer Decl., ¶ 11.) The court finds that this evidence is not sufficient to show that a triable issue of material fact exists as to whether granting their requested accommodations would not have imposed an undue hardship on Defendant. Plaintiffs did not, for example, submit evidence showing a triable issue of material fact exists as to whether it would have imposed an undue hardship on Defendant to permit Plaintiffs to take unpaid leaves of absences, to test for COVID-19 instead of obtaining the vaccine, or that they could have switched to an already-existing night shift without requiring Defendant to create a night shift to accommodate them.

The court notes that, in their opposition papers, Plaintiffs have also asserted that (1) most of Defendant’s population was not required to vaccinate because Defendant did not impose a vaccination requirement on its students, (2) vaccines do not stop the transmission of COVID-19, and instead only decrease the rate of transmission, (3) individual testing was comparable or superior to vaccines, (4) Defendant did not examine the “continued or increased PCR testing of” Plaintiffs, and (5) Plaintiffs could work outside the presence of other people. To the extent that Plaintiffs contend that these arguments show the existence of a triable issue of material fact as to whether granting these accommodations would have presented an undue hardship on Defendant (which is unclear), the court disagrees.

First, the court finds that Defendant’s decision not to impose a vaccination policy regarding its students does not show that a triable issue of material fact exists as to whether accommodating Plaintiffs—its employees, and not students—in the manner requested (i.e., allowing them to remain unvaccinated and work in person) would impose an undue hardship on Defendant.

Second, the court finds that Plaintiffs have not shown that the effectiveness of the vaccines in reducing transmission of COVID-19 shows that a triable issue of material fact exists as to whether accommodating Plaintiffs in the manner requested would impose an undue hardship on Defendant. The court acknowledges that Plaintiffs’ Chief Medical Director testified that there is a 90 percent reduction in a vaccinated individual’s chances of contracting COVID-19. (Kim Decl., Ex. 1, Dr. Malhotra Dep., pp. 25:25-26:12.) However, that the COVID-19 vaccination does not fully “stop transmission” of COVID-19 does not show that (1) Defendant’s decision in implementing the vaccination policy in an effort to reduce contraction of COVID-19 was discriminatory or unlawful, or (2) it would not have imposed an undue hardship on Defendant if it had accommodated Plaintiffs as requested (i.e., by permitting them to work in person while remaining unvaccinated).

Third, the court finds that Plaintiffs’ argument that individual testing was comparable to or superior to vaccines does not show that a triable issue of material fact exists as to whether accommodating Plaintiffs in the manner requested would impose an undue hardship on Defendant. The court acknowledges that Plaintiffs have cited the deposition testimony of Dr. Reingold in which (1) Dr. Reingold was asked if, “in terms of transmission of infection, that testing [of an unvaccinated employee] done the right way would be comparable to vaccination[,]” and (2) Dr. Reingold testified (i) that he did not “know of any study that has been done, or frankly could be done, to directly compare the two in the real world” but that (ii) “taking these estimates from two different studies, they’re in the same ballpark.” (Kim Decl., Ex. 4, Dr. Reingold Dep., pp. 41:8-42:10.)

However, this evidence does not (1) rebut Defendant’s evidence that it, at the time that it instituted the policy, was advised that the vaccine was the best strategy for fighting COVID-19, or (2) show that permitting Plaintiffs to undergo daily testing would not impose an undue hardship on Defendant, since Plaintiffs did not submit evidence showing that a triable issue of material fact exists as to (i) the financial burden imposed on Defendant in administering these tests,[2] or (ii) the risk that Defendant would face if its unvaccinated employees contracted COVID-19 and could not work, thereby resulting in a disruption in the workforce. (Dr. Malhotra Decl., ¶¶ 16, 17 [“by not issuing the vaccine mandate, it would have posed an additional burden on [Defendant] because it made work disruptions more likely”].)

Fourth, Plaintiffs contend that Defendant’s Reasonable Accommodation Committee did not examine whether the continued or increased PCR testing of Plaintiffs could constitute a safe alternative. (Opp., pp. 9:20-10:9.) Plaintiffs have cited the deposition testimony of Dr. Malhotra in support of this contention. However, Dr. Malhotra expressly stated that she was not involved in or consulted about the reasonable accommodations that could be provided to an employee with a religious-based or disability-based objection to the COVID-19 vaccine. (Kim Decl., Ex. 1, Dr. Malhotra Dep., pp. 48:12-20, 50:13-17.) Thus, her testimony explaining that she was not asked whether an employee could be accommodated by allowing them to test for COVID-19 instead of obtaining the vaccine does not support Plaintiffs’ assertion that the Reasonable Accommodation Committee did not examine Plaintiffs’ request for continued or increased testing. (Id., pp. 48:21-49:4.)

Finally, the court notes that Plaintiffs have submitted their own declarations, in which they state that they worked outside the presence of students and teachers. (Akala Decl., ¶¶ 5-6; Hayes Decl., ¶ 5; Stelzer Decl., ¶¶ 4-5.) It appears that Plaintiffs have presented this evidence to show that it would not have imposed an undue hardship on Defendant to allow them to work after-school hours. However, as set forth above, Plaintiffs did not submit evidence showing that rearranging their schedules in such a manner would not have imposed an undue hardship on Defendant (e.g., Plaintiffs did not show that other locksmiths and construction engineers for Defendant (i) worked primarily after hours, or (ii) were able to work remotely).

Thus, the court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to whether Defendant could have accommodated their requests (1) to not be vaccinated against COVID-19 but (2) to allow them to work for Defendant on premises, without imposing an undue hardship on Defendant.

The court therefore grants Defendant’s motion for summary adjudication as to the first cause of action for failure to accommodate religious belief or observance.

2. Second Cause of Action for Discrimination Based on Religion (Issue Nos. 7-21)

It is an unlawful employment practice “[f]or an employer, because of the . . . religious creed . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, §¿12940, subd. (a).) “The specific elements of a prima facie case [for discrimination] ‘may vary depending on the particular facts,’ but generally include evidence that the plaintiff: (1) was a member of a protected class; (2) was qualified for the position he or she sought or was performing competently in the position he or she held; (3) suffered an adverse employment action; and (4) was subject to some other circumstance suggesting discriminatory motive.” (Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 350.)

The court finds that Defendant has met its burden of showing that the second cause of action for discrimination based on religion has no merit because Defendant has shown that Defendant’s termination of Plaintiffs was taken for a legitimate, nondiscriminatory reason. (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32 [on summary judgment motion, the burdens established by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 are reversed, and the employer has the burden to show that either one or more elements of the plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors].)

Defendant has submitted evidence showing that (1) on September 8, 2021, Defendant communicated to its employees that being fully vaccinated against COVID-19 was an essential job function, and (2) Defendant implemented its COVID-19 vaccination policy and terminated any employee(s) that did not comply with the policy and could not work remotely (i) to better protect its students, employees, and the individuals that it serves, (ii) to decrease overall rates of COVID-19 infection, and (iii) to reduce the costs associated with Defendant’s COVID-19 testing program. (UMF No. 31; Def. COE Ex. 1, Dr. Malhotra Decl., ¶¶ 15-17; Def. COE Ex. E.) Defendant has also presented evidence establishing that “all employees who had not [as of October 2021] submitted verifications of their having been vaccinated, regardless of the reason, were suspended. Thereafter, those employees who did not submit such verifications in October 2021 were processed for termination.” (Def. COE Ex. 2, Garza Decl., ¶ 10 [emphasis added].)

The court finds that this evidence establishes that Defendant terminated Plaintiffs for a legitimate, nondiscriminatory reason, i.e., because they did not comply with its vaccination policy and their request for an exemption from that policy could not be reasonably accommodated. (Ibid.; Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 910, 912 [Cedars-Sinai’s facially nondiscriminatory policy requiring employees to obtain flu vaccine, which plaintiff violated, was objective and objectively applied].)

The court therefore grants Defendant’s motion for summary adjudication as to the second cause of action for discrimination based on religion.

It is an unlawful employment practice “[f]or an employer . . . , because of . . . religious creed . . . , to harass an employee . . . .” (Gov. Code, § 12940, subd. (j).) “To establish a prima facie case of harassment, [a plaintiff] must show that (1) [he or] she is a member of a protected class; (2) [he or] she was subjected to unwelcome harassment; (3) the harassment was based on [his or] her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) [the] defendants are liable for the harassment.” (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.)

The court finds that Defendant has met its burden of showing that the third cause of action for harassment based on religion has no merit because Defendant has shown that (1) as to plaintiff Akala, an element of the cause of action (the harassment unreasonably interfered with his work by creating an intimidating, hostile, or offensive work environment) cannot be established, and (2) as to plaintiffs Stelzer and Hayes, the conduct that they have described to be harassment on the basis of religion cannot constitute harassment as a matter of law.

First, as to plaintiff Akala, he testified that (1) there was a sense of animosity toward him, which he believed “was 90 percent COVID related, maybe ten percent ethnicity[,]” including that he was spoken to authoritatively, and (2) nobody directed comments to him that were particularity offensive that upset him. (Def. COE Ex. G-1, Pl. Akala Dep., pp. 48:16-49:1, 49:10-14; UMF No. 52.) Defendant contends that this conduct is not severe or pervasive. (Mot., p. 9:2.) The court agrees. “‘[A]n employee claiming harassment based upon a hostile work environment must demonstrate 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 [protected status].’” (Galvan, supra, 37 Cal.App.5th at p. 564.) The conduct described by plaintiff Akala in his deposition (i.e., a general feeling of animosity) does not constitute severe or pervasive conduct.[3]

Second, as to plaintiff Stelzer, he testified that Kristen Murphy harassed him “through this whole process[,]” including because she informed him that he was required to comply with Defendant’s vaccination policy, reversed his sick and vacation time, and denied his request for unemployment benefits. (Def. COE Ex. G-3, Pl. Stelzer Dep., pp. 78:10-80:16; UMF Nos. 53-58.) Defendant contends that this conduct cannot constitute harassment as a matter of law because the conduct was carried out by Defendant in its management of its employees. (Mot., p. 24:11-12.) The court agrees. Harassment—as opposed to discrimination, if based on improper motives—“‘consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management.’” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870; Id. at p. 869 [“‘Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance’”].) Here, the conduct that plaintiff Stelzer complains of concerns Defendant’s actions that were “necessary to [its] business and personnel management” and therefore cannot form the basis of his cause of action for harassment.[4] (Id. at p. 870 [internal quotations and citations omitted].)

Third, plaintiff Hayes also testified that he was harassed because Defendant’s management team used “strong-arm tactics of forcing the mandate and not giving any reasonable accommodations[.]” (Def. COE Ex. G-2, pp. 31:25-32:8.) However, Defendant’s conduct in denying the accommodations requested by plaintiff Hayes concerns Defendant’s business and personnel management of its staff, and therefore cannot constitute harassment for the same reasons explained in connection with plaintiff Stelzer’s cause of action for harassment.[5] (Serri, supra, 226 Cal.App.4th at p. 870.)

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to the element of acts of severe and pervasive harassment of Plaintiffs.

First, plaintiff Hayes did not identify any harassing comments directed to him in his declaration, and therefore has not met his burden to show that a triable issue of material fact exists as to whether he was subjected to harassment on the basis of his religion.

Second, the court finds that plaintiff Akala has not met his burden to show that a triable issue of material fact exists as to whether he experienced severe and pervasive harassment on the basis of his religion.

Akala states, in his declaration, that Defendant “allowed hostile comments and attitudes about unvaccinated persons to permeate in [his] work environment even though [Defendant] knew that unvaccinated persons like [Akala] were unvaccinated due to [their] religious beliefs.” (Akala Decl., ¶ 20.) Akala further states that he received “more than a half dozen hostile comments” when he checked into facilities, including that he was endangering other people. (Ibid.) The court finds that this does not constitute “substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of [Defendant’s] showing” because (1) the comments appear to have been made not because of Akala’s religious affiliation, but because of his status as an unvaccinated person; (2) Akala has not described the subject comments with sufficient particularity so as to enable the court to find that they were sufficiently severe or pervasive to create an intimidating, hostile, or offensive work environment; and (3) the content of the comments that was described (i.e., that unvaccinated persons were endangering other people) was not severe or sufficiently pervasive as to alter the conditions of employment and create a hostile or abusive work environment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163; Galvan, supra, 37 Cal.App.5th at pp. 563, 564.)

Third, the court finds that plaintiff Stelzer has not met his burden to show that a triable issue of material fact exists as to whether he experienced severe and pervasive treatment on the basis of his religion.

Stelzer has similarly stated that Defendant “allowed hostile comments and attitudes about unvaccinated persons to permeate in [his] work environment even though [Defendant] knew that unvaccinated persons like [Stelzer] were unvaccinated due to [their] religious beliefs.” (Stelzer Decl., ¶ 20.) Stelzer has also asserted that (1) he watched a video on Defendant’s website, in which a board member expressed fear and hostility toward unvaccinated persons, and (2) during a phone call with an interim supervisor, the supervisor laughed at Defendant for seeking religious accommodation. (Stelzer Decl., ¶ 20.)

The court finds that this evidence does not constitute “substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of [Defendant’s] showing” because (1) the comments, fear, and hostility communicated toward unvaccinated persons such as Stelzer were made not because of Stelzer’s religion, but because of his status as an unvaccinated person, and (2) the singular incident regarding Defendant’s interim supervisor laughing at Stelzer for seeking a religious accommodation is not severe or sufficiently pervasive as to create a hostile or abusive work environment. (Sangster, supra, 68 Cal.App.4th at pp. 162-163; Galvan, supra, 37 Cal.App.5th at pp. 563, 564.)

The court therefore grants Defendant’s motion for summary adjudication as to the third cause of action for harassment based on religion.

4. Fourth Cause of Action for Discrimination Based on National Origin (Issue Nos. 28-42)

It is an unlawful employment practice “[f]or an employer, because of the . . . national origin . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, §¿12940, subd. (a).) “The specific elements of a prima facie case [for discrimination] ‘may vary depending on the particular facts,’ but generally include evidence that the plaintiff: (1) was a member of a protected class; (2) was qualified for the position he or she sought or was performing competently in the position he or she held; (3) suffered an adverse employment action; and (4) was subject to some other circumstance suggesting discriminatory motive.” (Diego, supra, 15 Cal.App.5th at p. 350.)

The court finds that Defendant has met its burden of showing that the fourth cause of action for discrimination based on national origin has no merit because Defendant has shown that Defendant’s termination of Plaintiffs was taken for a legitimate, nondiscriminatory reason for the same reasons as set forth in connection with the court’s ruling on Plaintiffs’ second cause of action for discrimination based on religion (i.e., that Defendant terminated Plaintiffs because they did not comply with Defendant’s COVID-19 vaccination policy—an essential job function—and could not perform their duties remotely). (Zamora, supra, 71 Cal.App.5th at p. 32; Def. COE Ex. 1, Dr. Malhotra Decl., ¶¶ 15-17; Def. COE Ex. E; Garza Decl., ¶ 10.)

The court therefore grants Defendant’s motion for summary adjudication as to the fourth cause of action for discrimination based on national origin.

5. Fifth Cause of Action for Harassment Based on National Origin (Issue Nos. 43-48)

It is an unlawful employment practice “[f]or an employer . . . , because of . . . national origin . . . , to harass an employee . . . .” (Gov. Code, § 12940, subd. (j).) “To establish a prima facie case of harassment, [a plaintiff] must show that (1) [he or] she is a member of a protected class; (2) [he or] she was subjected to unwelcome harassment; (3) the harassment was based on [his or] her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) [the] defendants are liable for the harassment.” (Galvan, supra, 37 Cal.App.5th at p. 563.)

The court finds that Defendant has met its burden of showing that the fifth cause of action for harassment based on national origin has no merit because Defendant has shown that (1) as to plaintiff Akala, an element of the cause of action (the harassment unreasonably interfered with his work by creating an intimidating, hostile, or offensive work environment) cannot be established, and (2) as to plaintiffs Stelzer and Hayes, the conduct that they have described to be harassment on the basis of national origin cannot constitute harassment as a matter of law.

First, as set forth above, the conduct identified by plaintiff Akala was the sense that certain of Defendant’s staff had “some type of animosity” toward him, including speaking to him authoritatively, which he felt was “90 percent COVID related, maybe ten percent ethnicity.” (Def. COE Ex. G-1, pp. 48:3-49:3.) The court finds that the conduct described in plaintiff Akala’s deposition does not rise to the level of severity or pervasiveness required. (Galvan, supra, 37 Cal.App.5th at p. 564.)

Second, plaintiff Hayes testified, as to his claim for harassment on the basis of his national origin, that (1) nobody working for Defendant made a comment to him about his national origin directly, (2) he did not hear of anyone working for Defendant making a comment about his national origin, and (3) the harassment that he is asserting is based on the “preferential treatment of students who were not legal, who were given a pass to not be vaccinated in order to be able to attend school.” (Def. COE Ex. G-2, pp. 32:20-33:14.) Thus, the only conduct that Hayes identified as harassing related to Defendant’s allegedly discriminatory enforcement of its vaccination policy. This conduct, which relates to actions necessary to Defendant’s business and personnel management, does not constitute harassment as a matter of law. (Serri, supra, 226 Cal.App.4th at p. 870.)

Third, as set forth above, the conduct identified by plaintiff Stelzer consists of Kristen Murphy’s conduct in enforcing Defendant’s vaccination policy, reversing his sick and vacation time, and denying his request for unemployment benefits. (Def. COE Ex. G-3, Pl. Stelzer Dep., pp. 78:10-80:16.) This conduct concerns actions taken by Defendant in connection with its business and personnel management decisions and therefore does not constitute harassment as a matter of law. (Serri, supra, 226 Cal.App.4th at p. 870.)

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to the element of severe or pervasive harassment of Plaintiffs based on their national origin.

Second, plaintiffs Akala and Stelzer did not assert that they were subjected to harassing statements or conduct on the basis of their national origins. Instead, as set forth above, they stated in their declarations that they were subjected to comments and attitudes “about unvaccinated persons[,]” not about persons of their national origins. (Akala Decl., ¶ 20; Stelzer Decl., ¶ 20.) Similarly, Stelzer’s statement that Defendant’s interim supervisor laughed at him for seeking a religious accommodation does not show that Defendant engaged in harassing conduct based on his national origin. (Stelzer Decl., ¶ 20.)

The court therefore grants Defendant’s motion for summary adjudication as to the fifth cause of action for harassment based on national origin.

6. Sixth Cause of Action for Retaliation in Violation of FEHA (Issue Nos. 49-57)

It is an unlawful employment practice “[f]or any 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.” (Gov. Code, § 12940, subd. (h).) “‘[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 sixth cause of action for retaliation has no merit because Defendant has shown that Defendant’s termination of Plaintiffs was taken for a legitimate, nonretaliatory reason for the same reasons as set forth in connection with the court’s ruling on Plaintiffs’ second and fourth causes of action for discrimination (i.e., Defendant has shown that it terminated Plaintiffs because they did not comply with Defendant’s COVID-19 vaccination policy—an essential job function—and could not perform their duties remotely). (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 91 [after an employee establishes a prima facie case of retaliation, employer must offer a legitimate, nonretaliatory reason for the adverse employment action]; Def. COE Ex. 1, Dr. Malhotra Decl., ¶¶ 15-17; Def. COE Ex. E; Garza Decl., ¶ 10.)

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to whether Defendant’s proffered reason for terminating them based on their failure to comply with its COVID-19 vaccination was pretextual. (Light, supra, 14 Cal.App.5th at p. 94 [plaintiff must offer evidence sufficient to allow a trier of fact to find that the defendant’s stated reasons were pretextual or support a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus].) Plaintiffs did not specifically address the sixth cause of action for retaliation in their opposition papers, and therefore have not met their burden to show that a triable issue of material fact exists as to whether Defendant retaliated against Plaintiffs by terminating them.

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

7. Seventh Cause of Action for Failure to Prevent Discrimination, Harassment, and Retaliation (Issue Nos. 58-66)

It is an unlawful employment practice “[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) “‘[C]ourts 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.)

The court finds that Defendant has met its burden of showing that the seventh cause of action for failure to prevent discrimination, harassment, and retaliation has no merit because Defendant has shown that an element of the cause of action (valid, underlying claims for discrimination, harassment, and retaliation) cannot be established for the reasons set forth in connection with the court’s ruling on the first through sixth causes of action.

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to the element of valid, underlying claims for discrimination, harassment, or retaliation for the reasons set forth in connection with the court’s ruling on the first through sixth causes of action.

The court therefore grants Defendant’s motion for summary adjudication as to the seventh cause of action for failure to prevent discrimination, harassment, and retaliation.

Because the court has granted summary adjudication on all of the causes of action alleged in Plaintiffs’ Complaint, the court finds that all of the papers submitted show that there is no triable issue as to any material fact and that Defendant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The court therefore grants Defendant’s motion for summary judgment on Plaintiffs’ Complaint.

The court grants defendant Los Angeles Unified School District’s motion for summary judgment on plaintiffs Amosun Akala, and Daniel P. Stelzer, and Stacy Hayes’s Complaint.

The court orders defendant Los Angeles Unified School District to prepare, serve, and lodge a proposed judgment no later than 10 days from the date of this order.

The court sets an Order to Show Cause re entry of judgment for hearing on July 2, 2024, at 8:30 a.m., in Department 53.

The court orders defendant Los Angeles Unified School District to give notice of this ruling.

[1] The court notes that defendant Los Angeles Unified School District has objected to various deposition transcripts of individuals taken in other actions on the ground that the plaintiffs did not request judicial notice of those documents. However, defendant did not cite authority requiring them to have requested that the court take judicial notice of those documents.

[2] The court notes that Plaintiffs have stated that they were willing to pay the costs associated with daily testing. (Akala Decl., ¶ 18; Hayes Decl., ¶ 18; Stelzer Decl., ¶ 18.) However, Plaintiffs did not point to any authority establishing that they would be legally permitted to do so. In reply, Defendant has asserted that such actions may have been unlawful pursuant to Labor Code section 2802, subdivision (a), which requires an employer to indemnify an employee “for all necessary expenditures or losses incurred by the employee in the direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer . . . .” Moreover, Plaintiffs did not submit evidence showing that they suggested that they pay the daily testing costs as a reasonable accommodation.

[3] Moreover, the court notes that plaintiff Akala did not testify that he believed he was harassed on the basis of his religion, but instead because of his status as an unvaccinated person and his ethnicity. (Def. COE Ex. G-1, Pl. Akala Dep., pp. 48:16-49:1.)

[4] The court notes that the deposition testimony submitted by Defendant shows that plaintiff Stelzer agreed that it was “fair to say that any harassment [he] fe[lt] he suffered is due to the COVID-19 vaccination and [his] decision not to get vaccinated[,]” and therefore appeared to testify that he was harassed on the basis that he was unvaccinated, and not because of his religious creed. (Def. COE Ex. G-3, p. 81:20-23.)

[5] The court also notes that the deposition testimony submitted by Defendant shows that plaintiff Hayes testified that nobody at work made a comment to him that he took as negative or offensive about his religion. (Def. COE Ex. G-2, Hayes Dep., p. 31:17-24.)

amosun akala , et al.; Plaintiffs, vs. los angeles unified school district , et al., Defendants.	Case No.:	22STCV34738

	Hearing Date:	May 7, 2024

	Time:	10:00 a.m.

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