Judge Teresa A. Beaudet, Case 20STCV20353 2023-01-24 Tentative Ruling

FRANK LEE, Plaintiff, vs. PARAMOUNT UNIFIED SCHOOL DISTRICT, et al. Defendants.	Case No.:	20STCV20353
	Hearing Date:	January 24, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

Plaintiff Frank Lee filed this employment action on May 28, 2020 against Defendant Paramount Unified School District (“Defendant”). The Complaint asserts causes of action for (1) discrimination on the basis of race; (2) retaliation in violation of FEHA; (3) failure to prevent discrimination and retaliation; and (4) disability discrimination.

Defendant now moves for summary judgment or, in the alternative, summary adjudication of issues. Plaintiff opposes.

The Court rules on Defendant’s Revised Objections to Plaintiff’s Evidence as follows:[1]

- Paragraph 2: sustained as to the second sentence, overruled as to the remainder.

- Paragraph 8: sustained as to the second sentence, overruled as to the remainder.

- Paragraph 15: sustained as to the last sentence, overruled as to the remainder

- Paragraph 18, page 4, ll. 8-12: sustained as to the second and third sentences, overruled as to the first sentence

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) 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.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(p)(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence, and the motion must be denied.” ((Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.)

Plaintiff alleges that he became employed by Defendant on or about December 1994 as a Custodian. (Compl., ¶ 11.) Plaintiff is African-American. (Compl., ¶ 12.)

In or about January 1995, Plaintiff complained to his superiors about being discriminated because of his race, however, after his complaints he was placed on a performance plan. (Compl., ¶ 14.) In 2001, Plaintiff was assigned to a high school and was asked to perform duties of a Senior Custodian and more. (Compl., ¶ 15.) Plaintiff was willing to perform these new duties upon being reclassified as a Senior Custodian and receiving a pay raise. (Compl., ¶ 15.) However, Defendant denied Plaintiffs request, and Plaintiff believes the request was denied because of his previous complaints about the racial discrimination he faced. (Compl., ¶ 15.)

In or about late 2005 or early 2006, Plaintiff applied to be a Senior Custodian. (Compl., ¶ 16.) His application was denied and instead he was reclassified from Custodian to Utility Worker. (Compl., ¶ 16.) Despite this reclassification, Plaintiff was instructed to perform the duties of a Senior Custodian. (Compl., ¶ 16.)

In 2013, Plaintiff was going to be assigned to a new school and was told by Supervisor “Sergio” that he was going to be the Senior Custodian. (Compl., ¶ 17.) However, Plaintiff was only reclassified as a Custodian but again was assigned the duties of a Senior Custodian. (Compl., ¶ 17.) Defendant informed Plaintiff that he was required to attend the Senior Custodian meetings even though he was still classified as a Custodian. (Compl., ¶ 19.)

During the summers of 2009, 2010, and 2011, Plaintiff was placed on the senior cleanup crew to use heavy machinery to clean the campus. (Compl., ¶ 23.) Plaintiff complained every summer that he was not being paid the same as the other members of the crew. (Compl., ¶ 23.) After three summers he was no longer placed on the senior cleanup crew. (Compl., ¶ 23.)

On or about March 30, 2017, Plaintiff went on leave due to work related stress, anxiety, and depression for approximately three months. (Compl., ¶ 24.) While on leave, Plaintiff’s co-worker Rhonda was told by Supervisors Sergio Espinoza and Alicia that when Plaintiff came back from leave they were “going to fire that black MFer.” (Compl., ¶ 24.)

On or about February 23, 2018, Plaintiff was with other African American employees and was told by Vice Principal Jerry King that “it does not look right.” (Compl., ¶ 26.) Vice Principal King also told Plaintiff and the other African American employees to not sit together. (Compl., ¶ 26.) Supervisor Roger Ramirez told Plaintiff that the school “does not want to hire

people like you guys anymore.” (Compl., ¶ 28.) In addition, Supervisor Michael Bishop told Plaintiff that a trained monkey could do his job. (Compl., ¶ 29.)

On or about September 28, 2018, Plaintiff was instructed by Vice Principal Lujan and Principal Rodriguez to quickly clean up a biohazard spill. (Compl., ¶ 32.) Plaintiff explained to his supervisors that he should not clean the spill because he lacked the proper biohazard kit and a shampooer. (Compl., ¶ 32.) Vice Principal Lujan threatened Plaintiff with a write-up if he did not clean the spill. (Compl., ¶ 32.) Plaintiff feared he was going to lose his job so he cleaned the spill with the materials he had on hand. (Compl., ¶ 32.) After he cleaned the spill, Plaintiff was reprimanded and received a poor job evaluation. (Compl., ¶ 33.) The evaluation and reprimand was based on Plaintiff not using the proper materials to clean a biohazard spill. (Compl., ¶ 33.) Plaintiff believes that he was placed in this circumstance so he could be terminated or forced to quit. (Compl., ¶ 33.)

On or about September 3, 2019, Plaintiff was asked by the principal to strip and wax the floor. (Compl., ¶ 36.) Plaintiff asked for the necessary wax three weeks prior but was denied the

necessary supplies. (Compl., ¶ 36.) Plaintiff was told by Vice Principal Lujan and Principal Rodriguez that if he did not complete the project on time he was going to be moved to the night shift. (Compl., ¶ 36.) Plaintiff believes that the heavy workload, denial of necessary supplies, and no support was a retaliatory act by Defendant for his previous complaints. (Compl., ¶ 36.) On or about September 10, 2019, Plaintiff was written up for not completing the flooring job by Principal Rodriguez and Vice Principal Lujan. (Compl., ¶ 37.) Due to this reprimand, Plaintiff

On or about September 12, 2019, Plaintiff met with Superintendent Beatriz and complained about the retaliation and discriminatory behavior he was suffering from Lujan and Rodriguez. (Compl., ¶ 38.) Superintendent Beatriz planned on scheduling another meeting to try and resolve these issues but no meeting actually took place. (Compl., ¶ 38.)

on his hand and elbow. (Compl., ¶ 39.) In December 2019, Plaintiff began seeing a psychiatrist who placed him on medical leave due to severe stress, depression, and anxiety, and upon re-evaluation in January 2020, his leave was extended. (Compl., ¶ 40.) When Plaintiff went on leave he was told he was going to receive half-pay, but since he has been on leave he has not received the half-pay he expected. (Compl., ¶ 42.) Plaintiff believes that his pay is being reduced as a punishment. (Compl., ¶ 42.)

Defendant first asserts that “[t]he majority of Plaintiff’s allegations of race discrimination and retaliation and his claims for failure to prevent FEHA violations, failure to accommodate Plaintiff’s alleged disability, and constructive discharge are barred as a matter of law for failure to exhaust FEHA administrative remedies.” (Mot. at p. 17:1-5.)

As an initial matter, the Court notes that pursuant to Code of Civil Procedure section 437c, subdivision (f)(1), “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Emphasis added.)

Plaintiff’s motion for summary adjudication on the basis of failure to exhaust administrative remedies concerns the third cause of action for failure to prevent discrimination and retaliation in its entirety. (See Notice of Motion, Defendant’s Issue No. 11, at p. 5:26-6:3, “Plaintiff cannot establish a triable issue of fact as to the third cause of action for failure to prevent discrimination and retaliation: this cause of action is barred as a matter of law for failure to exhaust administrative remedies under the FEHA.”)

However, the motion for summary adjudication on the grounds of failure to exhaust administrative remedies is not directed to the entirety of the remaining causes of action. Rather, Defendant asserts that “all of Plaintiff’s allegations relating to alleged adverse employment actions prior to March 2019 are barred as a matter of law because Plaintiff failed to exhaust his administrative remedies as to such claims by filing a timely complaint with the California Department of Fair Employment and Housing (DFEH) based on these facts or events.” (Notice of Motion, Issue No. 1, at p. 2:15-22, emphasis added.) As set forth above, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd.

As to the arguments pertaining to the third cause of action, “[u]nder California law an employee must exhaust the . . . administrative remedy provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) and obtaining the DFEH’s notice of right to sue, before bringing suit on a cause of action under the act or seeking the relief provided therein…To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts…in the context of the Fair Employment and Housing Act…[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect, and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment.” ((Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 [internal quotations and citations omitted].)

It is undisputed that Plaintiff produced in discovery six pages containing his single DFEH complaint filed on March 2, 2020, and the accompanying right to sue letter dated March 2, 2020. (Defendant’s Undisputed Material Fact (“UMF”) No. 7.) Defendant notes that Plaintiff’s DFEH complaint does not allege that Defendant failed to prevent discrimination and retaliation. (Megrabyan Decl., ¶ 4, Ex. 3.) Plaintiff does not address this point in the opposition.

Based on the foregoing, the Court finds that Defendant has met its burden of demonstrating that the third cause of action is without merit because Plaintiff failed to exhaust his administrative remedies as to this cause of action, and that Plaintiff has failed to raise a triable issue of material fact thereto. The Court does not find that Defendant has met its burden of demonstrating that the first, second, and fourth causes of action are barred on the grounds of Plaintiff’s failure to exhaust administrative remedies.

“It is an unlawful employment practice . . . (a) [f]or an employer, because of the . . . race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)

California applies the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802,[2] under which a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he or she was a member of a protected class, (2) that he or she was qualified for and performing competently in the position she held, (3) he or she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate nondiscriminatory reason for the adverse employment action. (Ibid. .) If the employer meets this burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence that the employer’s reasons for the adverse employment action were a mere pretext for discrimination. (Id. at p. 356.)

Defendant asserts that here, Plaintiff cannot show either that he suffered an actionable adverse employment action or a discriminatory motive for the alleged discriminatory acts of Defendant’s employees.

Defendant cites to Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036, where the California Supreme Court concluded that “the proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment.”

In the Complaint, Plaintiff alleges that “Defendants discriminated against and took several adverse employment actions against Plaintiff due to race including but not limited due receiving a write-up for offenses while others were given more leeway.” (Compl., ¶ 48.) In addition, Plaintiff alleges that when he went on leave, he was told he was going to receive half-pay, but did not receive the half-pay he expected. (Compl., ¶ 42.)

D efendant contends that the alleged “half-pay” claim could constitute an adverse employment action, but that such allegation is refuted by the evidence. It is undisputed that Plaintiff “received the ‘half-pay’ rate he himself characterizes as was correct pay level.” (UMF No. 9.) More specifically, it is undisputed that Plaintiff received regular monthly salary disbursements (net pay) totaling approximately $2,050, with slight variations in a minority of those months; and that during Plaintiff’s three month leave period, his monthly disbursements were approximately $960 in December 2019; $960 in January 2020; and $1066 in February 2020. (UMF No. 9, Calderon Decl., ¶ 3, Ex. 5.) Defendant asserts that accordingly, Plaintiff indeed received approximately one-half his normal salary, or “half-pay,” when on leave, such that there is no dispute that Plaintiff was not subject to an adverse employment action related to not receiving the half-pay expected.

Defendant also contends that other “potentially actionable events” include events occurring after mid-June 2019 that “consist entirely of reprimands about Plaintiff’s work performance, his being denied access to needed supplies or assistance, his being reassigned to the night crew in October 2019…” (Mot. at p. 22:19-23.) Defendant asserts that reprimands have no material effect on the terms and conditions of employment, noting that the Court of Appeal in Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457 found that “a mere oral or written criticism of an employee or a transfer into a comparable position does not meet the definition of an adverse employment action under FEHA.”

Plaintiff’s opposition brief does not mention “adverse employment actions” or appear to respond to Defendant’s assertion that there was no substantial adverse change to Plaintiff’s employment terms and conditions. In his response to Defendant’s separate statement, Plaintiff asserts that “Plaintiff produced documents to the extent they are in Plaintiff’s possession, custody, or control to support for an adverse employment action. Plaintiff was reprimanded because he improperly cleaned biohazard spill. Plaintiff was not provided with the adequate equipment to properly clean the biohazard spill.” (See Response to UMF 13.) In his response to UMF No. 13, Plaintiff cites to Plaintiff’ Exhibit “4,” Responses to Defendant’s Requests for Production, Set One. As set forth above, the Court sustains Defendant’s evidentiary objection to this Exhibit. (See Defendant’s Evid. Objection No. 6.) As Defendant notes, there is no declaration that authenticates the exhibits listed in “Plaintiff’s Evidence in Opposition to Defendant’s Motion for Summary Judgment, or in the Alternative Summary Adjudication.”

The Court also notes that the Declaration of Frank Lee filed in support of Plaintiff’s opposition was not made under penalty of perjury. Code of Civil Procedure section 2015.5 defines a¿“declaration”¿as a writing that is signed, dated, and certified as true under penalty of perjury.¿However, even if the declaration had been made under penalty of perjury, the Court would and does still find that Plaintiff has failed to raise triable issues of fact as to his remaining causes of action, as discussed in further detail below.

As to the adverse employment action issue, Plaintiff asserts that on or about September 10, 2019, he was written up for not completing a flooring job by Principal Rodriguez and Vice-Principal Lujan, and that due to this reprimand, he was moved to the night shift crew. (Lee Decl., ¶ 19.) Plaintiff states that he believes working nights is completely different from the job he had always done. (Lee Decl., ¶ 19.) The Akers decision cited to by Defendant provides that “[a]n unfavorable employee evaluation may be actionable where the employee proves the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s employment. Thus, although written criticisms alone are inadequate to support a retaliation claim, where the employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment, this conduct is actionable.” (Akers v. County of San Diego, supra, at p. 1457 [internal quotations and citations omitted].)

Next, Defendant asserts that assuming the non-time-barred adverse employment actions do in fact constitute adverse employment actions, there are no facts showing that any of Plaintiff’s superiors who issued the subject reprimands or directed the reassignment possessed or manifested any animus towards Plaintiff based on his race. It is undisputed that by the time Plaintiff was reassigned to the night crew in October 2019, Defendant already had determined, after a multi-year period of consideration, to transition the Adult School to employing a team-based approach to cleaning at night by a centrally-assigned crew, rather than continuing to rely on a permanently assigned day-time custodian. (UMF No. 22.) It is also undisputed that the decision to transition the Adult School to using custodial night crews was preceded by a pilot program to compare the performance of night crews with daytime custodians in District schools, which demonstrated the night crew was significantly more effective at cleaning to District standards. (UMF 24.)

In the opposition, Plaintiff asserts that the close timing of disciplinary events following Plaintiff’s complaints raise an inference of discrimination. Plaintiff cites to Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 156, where the Court of Appeal noted that “[p]retext may . . . be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination.”[3] However, here, Plaintiff indicates that “[b]eginning in or about January 1995, I complained to my superior about being discriminated because of my race.” (Lee Decl., ¶ 2, emphasis added.) Plaintiff also indicates that during the summers of 2009, 2010, and 2011, he was placed on the senior cleanup crew to use heavy machinery to clean the campus, and that he complained every summer that he was not being paid the same as the other crew members. (Lee Decl., ¶ 7.) These complaints are not close in time to Lee’s reassignment to the night shift crew in September 2019. (Lee Decl., ¶ 18.) In addition, the alleged adverse employment action referenced in Plaintiff’s Response to UMF No. 13 (Plaintiff receiving a reprimand for improperly cleaning a biohazard spill and not being provided with adequate equipment to properly clean the spill) allegedly took place on or about September 28, 2018. (Lee Decl., ¶¶ 13-14.) Plaintiff does not identify any complaints made shortly before this incident.

Plaintiff also indicates that he made a complaint on or about September 12, 2019 to Superintendent Beatriz [Spelker] regarding Lujan and Rodriguez’s behavior. (Lee Decl., ¶ 19.) But as Defendant notes, Plaintiff complained to the Superintendent only after he was reassigned to the night crew, so the reassignment could not have been the result of such complaint. (Lee Decl., ¶¶ 18-19.) Superintendent Spelker indicates that the transfer occurred before the September 12, 2019 meeting. (Spelker Decl., ¶ 13.)

Plaintiff also asserts that Defendant’s decision not to investigate Plaintiff’s complaints and his version of events raise an inference of discrimination. As set forth above, Plaintiff indicates that on or about September 12, 2019, he met with Superintendent Beatriz [Spelker] and complained about Lujan and Rodriguez’s behavior. (Lee Decl., ¶ 20.) The Superintendent planned on scheduling another meeting to try and resolve these issues, but no meeting took place. (Ibid.) Plaintiff asserts that Defendant’s failure to investigate suggests that “any disciplinary event was an the [sic] actual motivation for discrimination and retaliation against Plaintiff.” (Opp’n at p. 13:20-21.) Plaintiff fails to cite to any legal authority to support this proposition, and in any event, Plaintiff does not provide any evidence that Defendant failed to investigate. Plaintiff only indicates (in a declaration not made under penalty of perjury) that a subsequent meeting with the Superintendent did not take place.

Based on the foregoing, the Court finds that Defendant has met its burden of demonstrating that the first cause of action is without merit, and that Plaintiff has failed to raise a triable issue of material fact thereto.

“[I]n order to 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.” (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) Protected activity includes opposing “any practices forbidden” under FEHA or filing a complaint, testifying, or assisting in any proceeding under FEHA. (Gov. Code, section 12940, subd. (h).)

First, Defendant asserts that there is no evidence of FEHA-protected acts in the relevant time period. Defendant asserts that “other than the single September 2019 complaint to Superintendent Spelker (which as discussed…was not the cause of Plaintiff’s reassignment to the night shift and occurred after the decision of reassignment was already made), none of Plaintiff’s immediate supervisors received from Plaintiff any complaints of discrimination or harassment based on any protected status in the relevant time period.” (Mot. at p. 25:3-8; UMF No. 16.)

In the opposition, Plaintiff asserts that Defendant retaliated against him for complaining about racial discrimination towards Plaintiff, and that the close timing of disciplinary events following Plaintiff’s complaints raises an inference of retaliation. In his response to UMF No. 16, Plaintiff asserts that he “produced documents [sic] support his claim for harassment and racial discrimination by Defendant towards Plaintiff in the workplace...” (Response to UMF No. 16, citing to the Complaint and Plaintiff’s Exhibit 4.) As set forth above, the Court sustains Defendant’s evidentiary objection to Plaintiff’s Exhibit 4.

As also discussed above, Plaintiff indicates that on or about September 10, 2019, he was written up for not completing the flooring job by Principal Rodriguez and Vice-Principal Lujan, and that due to this reprimand, he was moved to the night shift crew. (Lee Decl., ¶ 19.) Plaintiff also states that he was reprimanded for improperly cleaning a biohazard spill and was not provided the necessary materials to clean the spill. (Lee Decl., ¶¶ 13-14.) However, Plaintiff does not point to any complaints made close in time to these alleged adverse employment actions. The September 12, 2019 complaint to Superintendent Beatriz Spelker was made after alleged incidents set forth above.

Lastly, like the discrimination cause of action, Plaintiff also asserts that Defendant’s decision not to investigate Plaintiff’s complaints raise an inference of retaliation. For the reasons set forth above, the Court is not convinced by this argument.

Based on the foregoing, the Court finds that Defendant has met its burden of demonstrating that the second cause of action is without merit, and that Plaintiff has failed to raise a triable issue of material fact thereto.

“To establish a prima facie case of mental disability discrimination under FEHA, a plaintiff must show the following elements: (1) She suffers from a mental disability; (2) she is otherwise qualified to do the job with or without reasonable accommodation; and (3) she was subjected to an adverse employment action because of the disability.” (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84.)

In support of the fourth cause of action for disability discrimination, Plaintiff alleges that he “suffered from medical conditions including but not limited to stress, depression, and anxiety. Defendant…knew Plaintiff was placed on medical leave due to stress, depression, and anxiety.” (Compl., ¶ 69.) Plaintiff alleges that Defendant “discriminated against and took adverse employment actions against Plaintiff due to his actual or perceived disability including

but not limited to reducing his pay.” (Compl., ¶ 71.) Thus, as Defendant notes, Plaintiff does not appear to allege any acts of discrimination by Defendant based on Plaintiff’s alleged mental disability, other than the failure to pay him half-pay as allegedly promised. However, as set forth above, it is undisputed that “Plaintiff received the “half-pay” rate he himself characterizes as was correct pay level.” (UMF No. 9.)

Defendant also provides evidence that during his deposition, Plaintiff was asked: “[a]re you alleging that you were discriminated against based on disability?” to which Plaintiff responded, “[b]ased on -- am I alleging that I was discriminated – no.” (UMF No. 27, Megrabyan Decl., ¶ 2, Ex. 1 (Lee Depo.) at p. 63:8-11.)

In the opposition, Plaintiff does not address the foregoing points. Plaintiff discusses medical treatment Plaintiff received in 2017 due to work-related stress, and asserts that “[a]t the very least, there is a triable issue of fact whether Defendant failed to accommodate Plaintiff’s disability.” (Opp’n at p. 14:18-20.) But Plaintiff does not cite to evidence demonstrating that Defendant failed to accommodate Plaintiff’s disability. Moreover, Plaintiff does not explain in the opposition how he contends he was allegedly subjected to an adverse employment action because of the disability.

Based on the foregoing, the Court finds that Defendant has met its burden of demonstrating that the fourth cause of action is without merit, and that Plaintiff has failed to raise a triable issue of material fact thereto.

Based on the foregoing, the Court grants Defendant’s motion for summary judgment. The Court orders Defendant to file and serve a proposed judgment within 10 days of the date of this Order.

[1]On November 3, 2022, Plaintiff filed “Revised Objections” indicating that he withdraws all of his objections.

[2]((See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2.)

[3]The Sada Court found that “[i]n light of several factors--the timing of the Medical Center’s termination decision (i.e., a few days after Brendia learned about Sada’s DFEH complaint), the identity of the person making the decision (i.e., a supervisor who made anti-Mexican remarks before and after rejecting Sada for full-time employment), and Sada’s job performance before termination (i.e., praiseworthy until Brendia ordered a ‘reevaluation’)--we conclude that Sada raised a triable issue as to whether the Medical Center terminated her in retaliation for her DFEH complaint.” (Id. at p. 157.)

Superior Court of California

County of Los Angeles

Department 50