Judge Robert S. Draper, Case 21STCV41669 2023-03-08 Tentative Ruling

This is an employment action. The operative First Amended Complaint alleges as follows.

Plaintiff Mary Pat Dodson (“Plaintiff”) was hired by Defendant City of Monterey Park (the “City”) as a literacy coordinator in September 2019. (FAC ¶ 4.) She worked there until her termination on or around October 7, 2020. (Ibid.) While employed with the City, Plaintiff was subjected to discrimination based on her age and disability. (FAC ¶ 7.)

On March 13, 2020, the Premises closed to the public due to the COVID pandemic, and Plaintiff was sent home because “people of a certain age had to go home.” (FAC ¶ 10.)

Additionally, Plaintiff suffered from a disability as defined by the Fair Employment and Housing Act (“FEHA”). (FAC ¶ 11.) This disability made her exceptionally susceptible to COVID. (Ibid.) Nonetheless, in late March or early April 2020, Plaintiff was told she had to return to work, in person. (FAC ¶ 13.) Plaintiff provided the City with a doctor’s note stating that she was to work remotely while the pandemic continued. (FAC ¶ 14.) She submitted several similar notes over the coming months. (FAC ¶ 15.)

The City required that Plaintiff return to work in person in August, 2020. (FAC ¶ 39.) She was subjected to retaliation and discrimination. (Ibid.) Shortly thereafter, Plaintiff was terminated. (FAC ¶ 40.)

On November 12, 2021, Plaintiff filed the Complaint asserting six causes of action:

6. Failure to Take All Necessary Steps to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA.

On January 28, 2022, Plaintiff filed the operative First Amended Complaint asserting the same six causes of action.

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. State Health & Emergency Officials Encourage Individuals at Higher Risk of COVID-19 to Take Precautions. (Ex. 8.)

2. California Department of Public Health, COVID-19 Public Health Guidance Self-Isolation for Older Adults and Those Who Have Elevated Risk. (Ex. 36.)

3. County of Los Angeles Department of Public Health, Order of the Health Officer, Safer at Home Order for Control of COVID-19, Issued March 19, 2020. (Ex. 37.)

4. County of Los Angeles Department of Public Health, Order of the Health Officer, Safer at Home Order for Control of COVID-19, issued April 10, 2020. (Ex. 38.)

Plaintiff’s evidentiary objections to the declaration of Angelica Marquez:

The City’s evidentiary objections to exhibits attached to the declaration of Mary Pat Dodson:

The City’s evidentiary objections to exhibits attached to the declaration of Charles Casado:

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 Age Discrimination under FEHA and the Second Cause of Action for Disability Discrimination under FEHA. As the evidence supporting these causes of action is largely duplicative, and as the Court uses the same burden shifting test to consider both causes of action, the Court will consider the First and Second Causes of Action together.

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

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 age or disability discrimination.

As to age discrimination, Plaintiff has presented evidence that she is above the age of 40 and is therefore a member of a protected class. (Dodson Decl. ¶ 6.) Next, Plaintiff contends that she was qualified for her position because in a performance evaluation provided shortly before the COVID-19 pandemic, Plaintiff was evaluated as meeting or exceeding expectations in all categories. (Id.; Ex. 1.) Next, Plaintiff contends she suffered an adverse employment action as she was terminated. (Id. ¶ 84.) Finally, Plaintiff contends that there is evidence that Garcia discriminated against Plaintiff because of her age as she regularly questioned Plaintiff’s technological acumen when Plaintiff was in fact proficient on the computer, that Garcia treated Plaintiff differently than younger employees, and that Garcia had a pattern of treating older employees differently, as attested to by former employees Evena Shu (“Shu”) and Julie Villanueva (“Villanueva”).[1] (Id. ¶¶ 19, 17; Shu Decl. ¶ 9; Villanueva Decl. ¶ 5.)

As to disability discrimination, Plaintiff has presented evidence that she suffered from a disability related to a 2014 diagnosis of autoimmune hepatitis. (Dodson Decl. ¶ 7.) Next, Plaintiff contends that she was qualified for her position but was dismissed, as discussed above. Finally, Plaintiff contends that Garcia treated Plaintiff differently because of the accommodations required for her disability, and that this was the cause of her eventual termination. (Dodson Decl. ¶¶ 78-79.)

The Court finds that Plaintiff has established a prima facie case of both age and disability related discrimination.

The burden now shifts to the City to show that Plaintiff was terminated for a legitimate, non-discriminatory reason.

Here, the City contends that Garcia noticed issues with Plaintiff’s job performance while working remotely in or about May 2020. (UMF 34.) The City notes that in an August 21, 2020 Performance Evaluation, Garcia stated that Plaintiff had troubles with both supervision and technology while working remotely. (UMF No. 37.) Finally, the City notes that several of Plaintiff’s subordinates, Jose Garcia and Angelica Marquez (“Marquez”) raised complaints about Plaintiff as their supervisor. (UMF 40-44.) Accordingly, the City contends that Plaintiff was terminated for non-discriminatory reasons.

The Court finds that the City has produced admissible evidence demonstrating that Plaintiff was terminated for legitimate, non-discriminatory reasons.

Finally, Plaintiff must show through admissible evidence that Plaintiff’s proffered reason for termination is pretextual.

Here, Plaintiff attests that both Villanueva and Shu attest to never seeing the type of poor supervision that the City contends Plaintiff was terminated for engaging in. (Shu Decl. ¶¶ 15-18; Villanueva Decl. ¶¶ 8-10.) This, combined with the proximity between Plaintiff’s requests for accommodation related to her disability and her termination, and the previous evaluation from Garcia stating that Plaintiff was exceeding her work expectations, are sufficient to demonstrate pretext.

Accordingly, the City’s Motion for Summary Adjudication of the First and Second Causes of Action is DENIED.

B. Third and Fourth Causes of Action – Failure to Accommodate in Violation of FEHA and Failure to Engage in the Interactive Process

Next, the City moves for summary judgment of Plaintiff’s Third Cause of Action for Failure to Accommodate in Violation of FEHA and Fourth Cause of Action for Failure to Engage in the Interactive Process.

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 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).)

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 contends that it granted Plaintiff reasonable accommodations by allowing her to work remotely for the first five months of the COVID-19 pandemic. (UMF 126.) Next, the City notes that it extended Plaintiff’s fully remote accommodation through September, 2020, despite the fact that other employees were required to return to office in May 2020. (UMF 14.) Additionally, the City notes that Plaintiff’s health care provider, Cristina Christopher (“PA Christopher”) provided the city with a list of accommodations that must be made before Plaintiff could return to office; the City made all those accommodations. (UMF 93.)

The Court finds that the City has met its initial burden of showing the nonexistence of any triable issue of material fact as to the City’s failure to reasonably accommodate Plaintiff’s disability or to engage in the interactive process. The burden now shifts to Plaintiff to show the existence of such triable issue of material fact.

In Opposition, Plaintiff contends that, though the City did accommodate Plaintiff’s need to work remotely through June 3, 2020, the City required Plaintiff to use accrued sick leave to make up for any time that she was not in office thereafter. (Dodson Decl. ¶ 49.) Plaintiff states that she accepted this accommodation for fear of being terminated but did not believe it was reasonable. (Id. ¶ 51.) Plaintiff argues that the City required her to return to work to properly supervise her employees, but that she was adequately supervising her employees remotely, and that the City could not point to any concrete evidence that she was not. (Id. ¶ 57.) Finally, Plaintiff contends that Jose Garcia’s testimony as to Plaintiff’s deficiencies as a supervisor are suspect, as Garcia had held Plaintiff’s position in the interim before Plaintiff was hired, and Jose Garcia felt that he should have been hired in that role.

The Court finds that Plaintiff has met her burden of demonstrating a triable issue of material fact as to the City’s failure to provide her with reasonable accommodations and to engage in a good faith interactive process. Accordingly, the City’s Motion for Summary Adjudication of the Third and Fourth Causes of Action are DENIED.

Next, the City moves for summary adjudication of the Fifth Cause of Action for Retaliation Under FEHA.

To establish retaliation under FEHA, a plaintiff must show that “(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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

As requesting accommodation is a protected activity, Plaintiff has already shown that she has engaged in same. (See Moore v. Regents of University of California (2016) 248 Cal.App.4^th 216, 245-47.) Additionally, as Plaintiff has provided admissible evidence showing that the City terminated her employment because of her inability to work in person due to her disability, the Court finds that a triable issue of material fact exists as to whether a causal link exists between her request for accommodation and her termination.

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

D. Sixth Cause of Action – Failure to Prevent Harassment, Retaliation, or Discrimination

Finally, the City moves for summary adjudication of the Sixth Cause of Action for Failure to Prevent Harassment, Retaliation, or Discrimination. The City contends that this Cause of Action is derivative of her Retaliation and Discrimination causes of action, and as those causes fail, so must this.

However, as the City’s Motion for Summary Adjudication of those causes is denied, the City’s argument is moot.

The City’s Motion for Summary Adjudication of the Sixth Cause of Action is DENIED.

[1] The City objects to Shu and Villanueva’s testimony as inadmissible as “me-too” evidence, citing to Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5^th 55. In Pinter-Brown, the Court of Appeal found that the trial court wrongly admitted evidence of a study conducted as to defendant UC system’s treatment of employment discrimination claims because, “there [was] no evidence whatsoever about who the alleged victims were in the list of DFEH complaints, whether they complained to the medical school, whether the complaints had merit, whether complainants were supervised or even had any contact with [plaintiff’s supervisors], or any other actors [plaintiff] claimed had wronged her. There was simply no evidence establishing the relationship between the anonymous complaints and [plaintiff’s] circumstances or the theory of her case.” (48 Cal.App.5^th at 98.)

Pinter-Brown is inapposite, as here, both Shu and Villanueva complain of the same type of mistreatment by the same supervisor as Plaintiff, worked contemporaneously with Plaintiff, and witnessed Garcia’s alleged discrimination as to Plaintiff.

mary pat dodson, Plaintiff; vs. city of monterey park, Defendant.	Case No: 21STCV41669
	Hearing Date: March 8, 2023

	[TENTATIVE] RULING RE: Defendant city of monterey park’s motion for summary judgment.