Judge Robert S. Draper, Case 21STCV24136 2023-03-13 Tentative Ruling

Defendant City of West Covina’s Motion for Summary Adjudication of the First Cause of Action is DENIED.

Defendant City of West Covina’s Motion for Summary Adjudication of the Second through Fifth Causes of Action is GRANTED.

Plaintiff Michelle Mansour (“Plaintiff”) was employed by defendant City of West Covina (the “City”) as a Management Analyst II from July 2014 until July 20, 2020. (Compl. ¶ 9.)

In early 2019, Plaintiff began experiencing a marked decline in her health. (Compl. ¶ 12.) In July 2019, Plaintiff saw a neurologist, where she learned that she had a hole in her heart that required surgical repair. (Ibid.) She was subsequently diagnosed with fibromyalgia. (Ibid.)

From July 24, 2019 to August 12, 2019, Plaintiff was on a California Family Rights Act (“CFRA”) protected leave of absence to care for her health problems. (Compl. ¶ 12.) During that time period she discovered the City had posted a job flyer for her position on its website. (Compl. ¶ 14.) When she questioned the head of her department, Robbeyn Bird (“Bird”) about the listing, Bird told Plaintiff that the posting was a mistake, but that Bird was bringing in a friend to help the department due to Plaintiff’s absence. (Compl. ¶ 15.) The City then brought in two part-time employees that were assigned tasks previously assigned to Plaintiff. (Compl. ¶ 16.)

On December 6, 2019, Plaintiff underwent surgery to attempt to close the hole in her heart. (Compl. ¶ 17.) Plaintiff sent an email to the city’s Human Resources department requesting additional CFRA time off; this request was granted. (Compl. ¶ 18.)

The first surgery was unsuccessful, and Plaintiff had to schedule a second surgery for January 14, 2020. (Compl. ¶ 19.) Plaintiff was told she would need between nine to twelve weeks to recover. (Compl. ¶ 20.) Before Plaintiff could return, the COVID-19 pandemic struck the United States. (Compl. ¶ 22.) Nevertheless, on March 12, 2020, the City’s Human Resources Director Helen Tran (“Tran”) informed Plaintiff that her 12-week FMLA exhausted. (Compl. ¶ 23.) Shortly thereafter, Plaintiff sent an email to Tran requesting that her leave be extended to April 20, 2020 due to complications with her surgery. (Compl. ¶ 24.) Tran extended Plaintiff’s leave until April 6, 2020, and set an interactive meeting with Plaintiff for that date. (Compl. ¶ 25.)

On April 1, 2020, Plaintiff sent a doctor’s note to Tran stating that Plaintiff could return to work, but could only do so remotely due to the pandemic. (Compl. ¶ 26.) The doctor stated that the restriction could end on July 20, 2020. (Ibid.)

On April 16, 2020, Tran informed Plaintiff that the City could not accommodate her work restriction, but that the City would grant her medical leave through May 15, 2020 and would schedule a follow up interactive meeting for May 11, 2020. (Compl. ¶ 32.) The city was allowing other employees to work from home for non-medical purposed during that time. (Compl. ¶ 32.)

On June 30, 2020, Plaintiff was informed that she would be transferred to the City Clerk’s office beginning upon her return. (Compl. ¶ 38.) Plaintiff felt that this position was beneath her experience and left her more exposed to COVID-19. (Ibid.)

On July 16, 2020, Plaintiff spoke with Tran who expressed her excitement that Plaintiff would be coming back into the office. (Compl. ¶ 42.) Several hours later, Plaintiff discovered via a news article that the City’s Chief of Police had been diagnosed with COVID-19, and that several other COVID-19 cases had been identified within City staff. (Compl. ¶ 43.) Frustrated that Tran had not mentioned anything about the COVID-19 outbreak considering Plaintiff’s weakened immune system, on July 20, 2020, Plaintiff sent a letter of resignation to Tran, indicating that her health could not be protected working in person in the office. (Compl. ¶ 47.)

On June 30, 2021, Plaintiff filed the Complaint asserting five causes of action:

On December 27, 2022, the City filed the instant Motion for Summary Judgment.[1]

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.” (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).)

The party requesting judicial notice must (a) give each adverse party sufficient notice of the request to enable the adverse party to prepare to meet the request and (b) provide the court with sufficient information to enable it to take judicial notice of the matter. (Cal. Evid. Code § 453.)

1. City of West Covina, City Council, Resolution No. 2020-46, dated May 19, 2020, Declaring a Fiscal emergency. (Ex. 23.)

2. Portions of City of West Covina Annual Operating & Capital Improvement Program Budget, Fiscal Year 2020-2021. (Ex. 24.)

3. Plaintiff’s Complaint for Damages filed June 30, 2021, Case No. 21STCV24136. (Ex. 39.)

4. United States District Court, Central District, Case no. 2:16-cv-08963, filed December 2, 2016. (Ex. 40.)

5. Case No. 21STCV08130, filed against City of West Covina on March 1, 2021 by William Mansour. (Ex. 41.)

1. March 4, 2020 Proclamation of state of Emergency by Governor Newsom re COVID-19. (Ex. 1.)

2. March 19, 2020 Stay at Home Executive Order by Governor Newsom re COVID-19. (Ex. 2.)

3. Settlement of Jackson, et al. v. City of West Covina, March 21, 2019. (Ex. 3.)

The City moves for summary judgment, or in the alternative, summary adjudication of each cause of action.

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 such motions, 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 or summary adjudication 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.¿(CCP § 437c(c);¿Villa v.¿McFarren¿(1995) 35 Cal.App.4th 733, 741).¿

As to each claim as framed by the complaint, the party¿moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element.¿(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 or summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak.¿(See¿Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475;¿Salesguevara¿v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.¿¿¿

Once the¿moving¿party has met the burden, the burden shifts to the opposing party¿to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.¿(CCP § 437c(o)(2)).¿When¿a¿party¿cannot¿establish an essential element or defense, a court must grant a motion for summary adjudication.¿(CCP § 437c(o)(1)-(2)).

The City moves for summary adjudication of the First Cause of Action for Failure to Accommodate under FEHA.

Government Code section 12940(m) provides that 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.” (Govt. Code, § 12940(m)(1).)

“The elements of a failure to accommodate a 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.’” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969 (quoting Scotch, supra, 173 Cal.App.4th at 1010).)

Here, neither party disputes that Plaintiff had a disability under FEHA, or that she is qualified to perform the essential functions of her position. However, the City contends that it did reasonably accommodate Plaintiff and her disability.

The City contends that the only accommodation that it did not grant Plaintiff was Plaintiff’s request to work from home. (UMF 44.) The City notes that it allowed Plaintiff to expend the entirety of her FMLA/CFRA through February 24, 2020, then allowed her to take an extended unpaid leave from February 24, 2020 to July 20, 2020, when Plaintiff’s doctor said she could safely return to work. (UMF 29.)

“Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

The City has met its initial burden of demonstrating the nonexistence of a triable issue of material fact as to the City’s failure to reasonably accommodate Plaintiff’s disability. The burden now shifts to Plaintiff to show the existence of such triable issue of material fact.

In Opposition, Plaintiff argues that the City never actually inquired as to whether it would be reasonable for Plaintiff to return to work remotely. Plaintiff notes that Tran conceded that city employees who needed to work from home for child care purposes were considered on a case by case basis, and that she could not recall anyone being told that they could not work from home. (Tran Depo. at 33:10-17, 39:2-41:12.) Additionally, Plaintiff notes that no policy existed forbidding employees from working from home during the COVID-19 pandemic. (Tran Depo. at 41:4-7.)

The Court finds that Plaintiff has demonstrated the existence of a triable issue of material fact as to the City’s failure to reasonably accommodate her disability. Accordingly, the City’s Motion for Summary Adjudication of the First Cause of Action is DENIED.

Next, the City moves for summary adjudication of Plaintiff’s Second Cause of Action for Failure to Engage in the Interactive Process.

Government Code section 12940(n) provides that 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.” (Govt. Code, § 12940(n).)

Here, the City notes that the City engaged in Interactive Process Meetings with Plaintiff on April 6, 2020, May 11, 2020, and June 30, 2020. (UMF 50.) Additionally, the City notes that Plaintiff met with Tran on July 16, 2020 to discuss her work accommodations and confirmed that she would be returning to office on July 20, 2020, without restrictions. (Ibid.) Finally, the City notes that Plaintiff concedes no City employee ever denied Plaintiff an IPM, never denied Plaintiff a remote IPM, and that before resigning, Plaintiff did not request any additional accommodations that the City failed to provide. (UMFs 53- 57.)

The Court finds that the City meets its initial burden of showing the nonexistence of any triable issue of material fact showing that the City failed to engage in the interactive process. The burden now shifts to Plaintiff to demonstrate the existence of such triable issue of material fact.

Here, Plaintiff contends that the City demonstrated a pattern of concealing information so as to chill the interactive process. As evidence of this, Plaintiff notes that Tran required Plaintiff to provide a note stating that Plaintiff was susceptible to COVID rather than an “evolving pandemic”; that the City refused to consider whether Plaintiff could perform the essential duties of her job working from home; that the City has not adequately explained why Plaintiff was transferred to the Clerk’s department; and that the City did not disclose to Plaintiff that an outbreak of COVID occurred among City employees the week prior to Plaintiff’s planned return.

Plaintiff fails to demonstrate the existence of a triable issue of material fact as to the City’s failure to engage in the interactive process. While Plaintiff contends that the City failed to adequately consider her request to work remotely, at all times the City engaged in interactive meetings with Plaintiff, and, until her resignation, granted her some form of accommodation throughout. Additionally, while Plaintiff argues that the City does not properly explain why Plaintiff was transferred to a different department, Plaintiff fails to explain how this represents a failure to consider reasonable accommodations with Plaintiff.

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

Next, the City moves for summary adjudication of Plaintiff’s Third Cause of Action for Disability Discrimination under FEHA.

In order to successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.) Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (See Id. at 355.)

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.)

Finally, if the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that 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.” (Id.)

The City argues that Plaintiff cannot establish a prima facie case of disability discrimination because an adverse employment action did not occur, and because she cannot show a link between her proffered adverse actions and any discriminatory motive.

As to an adverse employment action, Plaintiff argues that the City’s failure to accommodate Plaintiff with work from home during the pandemic, decision to transfer Plaintiff to the Clerk’s office upon her return, and constructive termination by failing to alert her to the COVID outbreak upon her return all constitute adverse employment actions.

As to the City’s failure to accommodate Plaintiff’s request to work from home during the pandemic, the Court finds that this argument is entirely duplicative of Plaintiff’s failure to accommodate cause of action.

As to her transfer to the Clerk’s office, Plaintiff notes that the position she was asked to fill “was a rote administrative ‘paper pushing’ position that was well-beneath her years of financial experience.” (Opposition at p. 7.) Plaintiff notes that the Deputy City Clerk position she was transferred to was part of the confidential Employee’s bargaining unit, which is below the Middle Management unit Plaintiff had previously occupied. And, though Plaintiff was paid the same amount, Plaintiff notes that it is a lower paid position. (DMF 8.)

The Court finds that a reasonable trier of fact could determine that transferring Plaintiff to the clerk’s department constitutes an adverse employment action.

As to Plaintiff’s resignation, Plaintiff contends that her resignation was actually an adverse employment action in the form of a constructive discharge.

“To establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4^th 1238, 1251.)

Here, Plaintiff contends that the City was well-aware of Plaintiff’s susceptibility to COVID-19, and that the City’s failure to disclose an active COVID outbreak to Plaintiff as she returned to office constitutes working conditions so aggravated that the City would realize a reasonable person would be compelled to resign.

In Opposition, the City contends that Plaintiff’s decision to resign after reading a news article detailing the outbreak, without first seeking additional accommodations, is objectively unreasonable.

The Court finds that Plaintiff’s decision to resign after reading the article was not objectively unreasonable as a matter of law, and therefore the City’s failure to warn Plaintiff of the outbreak may constitute an adverse employment action.

Finally, Plaintiff must show that some other circumstance demonstrates that both her transfer to the Clerk’s office and the City’s failure to warn Plaintiff of the ongoing COVID outbreak were motivated by discrimination toward her disability.

While Plaintiff argues in her Opposition that the City’s stated reasons for these actions are pretextual, Plaintiff does not provide any admissible evidence demonstrating that there existed any link to discriminatory intent whatsoever.

Absent any admissible evidence demonstrating that the City was motivated by discrimination in transferring Plaintiff to the Clerk’s office, or in failing to warn her about the COVID outbreak, Plaintiff cannot make a prima facie case for discrimination under FEHA.

Accordingly, the City’s motion for summary adjudication of the Third Cause of Action is GRANTED.

Next, the City moves for summary adjudication of Plaintiff’s Fourth Cause of Action for California Family Rights Act Retaliation.

The CFRA is part of the FEHA. (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487.) The CFRA provides that “[i]t shall be an unlawful employment practice for an employer to . . . discharge . . . or discriminate against, any individual because of . . . [¶] (1) An individual’s exercise of the right to family care and medical leave provided by” the CFRA. (Gov. Code, § 12945.2, subd. (l).)

A plaintiff can establish a prima facie case of retaliation in violation of the CFRA by showing the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave. [Citation.]” (Rogers, 198 Cal.App.4th at 487-488, emphasis in original.)

Here, as in Plaintiff’s FEHA discrimination cause of action, Plaintiff fails to provide any admissible evidence showing that the adverse employment actions occurred because Plaintiff exercised the right to take CFRA leave.

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

E. Fifth Cause of Action – Failure to Prevent Discrimination, Harassment, and Retaliation

Finally, the City moves for summary adjudication of the Fifth Cause of Action for Failure to Prevent Discrimination, Harassment, and Retaliation.

As the City’s Motion for Summary Judgment was granted as to Plaintiff’s FEHA discrimination and retaliation causes of action, Plaintiff has not stated a cause of action that can sustain a Failure to Prevent cause of action.

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

[1] As Plaintiff notes in her Opposition, the City’s Motion was overlong by three pages. The Court will consider the City’s Motion in its entirety, but admonishes the City’s Counsel to abide by the rules of this court moving forward.

michelle mansour, Plaintiff; vs. city of west covina, Defendant.	Case No: 21STCV24136
	Hearing Date: March 13, 2023

	[TENTATIVE] RULING RE: DEFENDANT CITY OF WEST COVINA’S motion for summary judgment, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION.