Judge Theresa M. Traber, Case Number: 22STCV35306, Date: 2025-03-06 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV35306, Date: 2025-03-06 Tentative Ruling

Case Number: 22STCV35306 Hearing Date: March 6, 2025 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 6, 2025 TRIAL DATE: July 15, 2025

CASE: Terri Johnson v. Paramount Global, Inc. et al.

CASE NO.: 22STCV35306

MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Defendants Paramount Global and CBS Broadcasting, Inc.

RESPONDING PARTY(S): Plaintiff Terri Johnson

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment discrimination action that was filed on November 4, 2022. Plaintiff alleges that she was wrongfully terminated based on her medical condition which precluded her from receiving the COVID-19 vaccine.

Defendants move for summary judgment, or, in the alternative, summary adjudication of all causes of action.

TENTATIVE RULING:

Defendants’ Motion for Summary Judgment is GRANTED.

DISCUSSION:

Motion for Summary Judgment

Defendants move for summary judgment. As Defendants have prevailed on their requests for summary adjudication of all causes of action, Defendants’ Motion for Summary Judgment is GRANTED.

Motion for Summary Adjudication

Defendants move in the alternative for summary adjudication of all causes of action.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); 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.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Plaintiff’s Evidentiary Objections

Plaintiff objects to portions of the Declaration of Fania Washington in support of the motion. The Court rules on these objections as follows:

Objection No. 1: OVERRULED. The statement is not speculative nor lacking foundation, nor is it hearsay or an improper legal conclusion. Objections for lacking authentication and the secondary evidence rule are not applicable to this statement.

Objection No. 2: OVERRULED. The statement is not speculative nor lacking foundation, nor is it hearsay or an improper legal conclusion. Objections for lacking authentication and the secondary evidence rule are not applicable to this statement.

Objection No. 3: OVERRULED. The statement is not speculative nor lacking foundation, nor is it hearsay or an improper legal conclusion. Objections for lacking authentication and the secondary evidence rule are not applicable to this statement.

Objection No. 4: OVERRULED. The statement is not speculative nor lacking foundation, nor is it hearsay or an improper legal conclusion. Objections for lacking authentication and the secondary evidence rule are not applicable to this statement.

Objection No. 5: SUSTAINED as hearsay (Evid. Code § 800) to the extent this testimony is offered to establish the contents of CDC guidance at the time in question. However, this testimony is admissible for other purposes, such as to demonstrate Defendants’ subjective understanding of the guidance, and, to such an extent, Plaintiff’s objections are OVERRULED. The statement is not speculative nor lacking foundation, nor is it an improper legal conclusion. Objections for lacking authentication and the secondary evidence rule are not applicable to this statement.

Objection No. 6: SUSTAINED as hearsay (Evid. Code § 800) to the extent this testimony is offered to establish the contents of CDC guidance at the time in question. However, this testimony is admissible for other purposes, such as to demonstrate Defendants’ subjective understanding of the guidance, and, to such an extent, Plaintiff’s objections are OVERRULED. The statement is not speculative nor lacking foundation, nor is it an improper legal conclusion. Objections for lacking authentication and the secondary evidence rule are not applicable to this statement.

Objection No. 7: OVERRULED. The statement is not speculative nor lacking foundation, nor is it hearsay or an improper legal conclusion. Objections for lacking authentication and the secondary evidence rule are not applicable to this statement.

Defendants’ Evidentiary Objections

Defendant objects to portions of Plaintiff’s evidence submitted in opposition to this motion. The Court rules on these objections as follows:

Objection No. 1: SUSTAINED as irrelevant. (Evid. Code § 350.)

Objection No. 2: SUSTAINED as irrelevant. (Evid. Code § 350.)

Objection No. 3: OVERRULED. Plaintiff’s declaration stating the date of a discussion with Dr. Yi about COVID-19 vaccines does not contradict prior deposition testimony that she did not, at that time, know when the discussion took place. Conflicting documents and testimony from another witness goes to the weight of this evidence, not its admissibility.

Objection No. 4: SUSTAINED as irrelevant. (Evid Code § 350; see also King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 433.)

Objection No. 5: SUSTAINED as an improper legal conclusion. (Evid. Code § 800, 802, 803.)

Request for Judicial Notice

Defendants, in support of their reply papers, request that the Court take judicial notice of its own Ruling on Matter Taken Under Submission dated December 19, 2023 regarding Plaintiff’s Motion to Compel Further Responses to Requests for Production. Strictly speaking, it is not necessary to request that the Court take judicial notice of its own docket in the instant action. Nevertheless, Defendants’ request is GRANTED pursuant to Evidence Code section 452(d) (court records).

Underlying Factual History

Given the voluminous evidence presented by both Plaintiffs and Defendants on this motion and the common undisputed facts underlying each cause of action, the Court deems it appropriate to set forth the undisputed factual history giving rise to this case before addressing the merits of Plaintiff’s claims.

Plaintiff Terri Johnson was an employee of CBS Broadcasting, Inc. from June 2016 to January 2022. (Separate Statement of Undisputed Material Fact Issue 1 No. 1; Response to Separate Statement Issue 1 No. 1.) Plaintiff’s final position at the time of her termination was “Coordinator, Global Brand Strategy.” (Id. No. 2.) Commencing March of 2020, at the onset of the COVID-19 pandemic, Plaintiff transitioned to remote employment. (Id. Nos. 3-4.) In 2021, Defendant CBS announced a U.S. COVID-19 Mandatory Vaccination policy which required all CBS employees to be vaccinated before entering any of Defendant’s offices, regardless of whether they were fully remote, unless they were expected never to visit any office location. (Id. Nos. 5-8.) Plaintiff’s cohort of employees was required under the policy to be vaccinated by January 10, 2022. (Id. No. 9.) Employees were required by the policy to either attest that they had been fully vaccinated by the applicable date or request a medical or religious accommodation. (Id. No. 10.) Attestations were made using an online platform conveyed to employees via email. (Id. No. 11.) The attestation platform asked if employees were fully vaccinated, and, if not, offered options for medical and religious accommodation requests. (Id. Nos. 13-14.) Employees seeking medical accommodations were required to provide information relating to job duties, union membership, and their supervisor and human resources representatives. (Id. No. 15.) The attestation platform contained multiple warnings that any intentional misrepresentation might result in disciplinary action, up to and including termination. (SSUMF Nos. 12, 16; RSS Nos. 12, 16.) Once the attestation was completed, employees requesting medical accommodations were referred to CBS’s third-party vendor, Unum, which provided the employee with paperwork supporting the request. (Id. No. 19.) Once the employee had provided their documentation, Unum provided the documentation to CBS, which would evaluate the request based in part upon review by a medical adviser regarding whether a valid medical basis for the accommodation had been shown. (Id. Nos. 20-21.) Examples of conditions CBS deemed sufficient included allergy to a component of the vaccine, a high risk of anaphylactic reaction, pregnancy, or interaction between vaccines and ongoing medical treatment, among others. (SSUMF No. 26.) Examples of insufficient conditions included a “strong reaction” to a first dose of the COVID-19 vaccine, possible reactions to different vaccines, or medical conditions that were not “medically-recognized contraindications” for the vaccines. (SSUMF No. 27.) CBS also denied some requests for failure to provide supporting documentation. (SSUMF No. 28.)

Plaintiff applied for a medical accommodation through the attestation platform on November 8, 2021. (SSUMF Issue 1 No. 29; RSS Issue 1 No. 29.) On November 12, 2021, Unum mailed a letter to Plaintiff requesting that she “please provide supporting documentation to Unum by November 29, 2021” and stating that “[o]nce Unum receives documentation from your medical provider, ViacomCBS will review your request to determine what is reasonable to provide and if it creates an undue hardship on the business.” (SSUMF Issue 1 No. 31 [emphasis added].) The letter also asked Plaintiff to notify Unum if she “experience[d] challenges reaching your medical provider(s) to obtain information.” (Id.) On November 20, 2021, Unum sent Plaintiff additional letters, including one specifically requesting that Plaintiff provide a “Request for Workplace Assistance,” a “Medical Provider Form to be completed by [her] doctor” and an “Authorization to Collect and Disclose Information.” (SSUMF Issue 1 No. 33.) No form entitled “Medical Provider Form” was included, but Plaintiff freely admits that she received a COVID-19 Vaccination Exception Request Form and understands Defendants’ references to a Medical Provider Form as referencing this document. (See RSS Issue 1 No. 33.) The Exception Request Form contained a serious of questions about “the patient” and “your patient.” (Id. No. 38.) However, Plaintiff filled out and submitted the Exception Request Form herself on November 29, 2021, stating that she could not safely receive a vaccine due to unknown allergies but that those allergies did not hinder any major life activities. (SSUMF Issue 1 No. 37, 39-46; RSS Issue 1 No. 37; 39-46.) Plaintiff left the portion of the form labeled “Provider Signature” blank. (Id. No. 47.)

After Plaintiff submitted the Exception Request Form, Unum contacted Plaintiff’s primary care provider, Valencia Medical Care. (SSUMF Issue 1 No. 58; RSS Issue 1 No. 58.) Valencia confirmed that they had not completed the form and did not know who had. (Id. Nos. 58-59.) On December 16 and 17, 2021, Plaintiff was called into Zoom meetings with her HR representative, Erika Grant, as well as HR employee Lynette Sereno. (Id. No. 60.) The purpose of these calls was for CBS to understand who had completed the Exception Request Form. (Id. No. 61.) Plaintiff admitted to having completed the form herself, stating that she had believed that Unum would gather additional information from her doctor. (Id. Nos. 62-63.) On January 14, 2022, Plaintiff’s supervisor met with Plaintiff and informed her that her employment was being terminated for falsifying documents. (Id. No. 80.) This action was commenced in November 2022, alleging disability discrimination, failure to engage in the interactive process and to provide reasonable accommodations, failure to prevent discrimination, retaliation, and wrongful termination. (See Complaint.)

First Cause of Action: Disability Discrimination

Defendants move for summary adjudication of the first cause of action for disability discrimination on the grounds that this cause of action lacks merit.

1. Application of Burden-Shifting Framework

Defendants rely on the burden-shifting framework advanced in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 to support its argument. Although the California Supreme Court has adopted this test for employment discrimination case generally, (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354), the test is only available for disability discrimination claims when there is no direct evidence of disability discrimination. (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 122-23.) When there is direct evidence of discriminatory intent—i.e., “evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition,” the burden-shifting test does not apply. (Id. at 123.)

Plaintiff argues in opposition to this motion that there is direct evidence of discriminatory intent such that the burden-shifting framework should not apply. According to Plaintiff, the mere fact that Defendants’ stated reason for terminating Plaintiff bears some relation to a request for a medical accommodation constitutes direct evidence of discriminatory intent. Not so. As established by the undisputed facts, the stated reason for Plaintiff’s termination was Defendants’ contention that Plaintiff intentionally falsified documents—i.e., that she had passed off a form which she filled out herself as being completed by her medical provider, and without consulting with that provider. (SSUMF Issue 1 No. 80; RSS Issue 1 No. 80.) Plaintiff’s physical or mental condition, whether actual or perceived, is not relevant to that stated reason. The Court therefore finds that the McDonnell-Douglas burden-shifting standard is applicable to this case.

To establish a prima facie case of disability discrimination, a Plaintiff must demonstrate that “she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations; and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-60.) To challenge an employment discrimination claim on summary judgment, an employer must either show that one or more of the prima facie elements is lacking, or must offer a legitimate, nonretaliatory reason for the adverse employment action. (See Caldwell v. Paramount Unified Sch. Dist. (1995) 41 Cal.App.4th 189.) If the employer produces a legitimate reason for the adverse employment action, the presumption of discrimination “drops out of the picture,” and the burden shifts back to the employee to prove that the claimed legitimate reason is merely a pretext. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.)

"In responding to the employer's showing of a legitimate reason for the complained-of action, . . . '" . . . the employee' "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' [citation], and hence infer 'that the employer did not act for the [ . . . asserted] non-discriminatory reasons.' [Citations.]" '" '" (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389.) "The plaintiff must do more than raise the inference that the employer's asserted reason is false. '[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.' [Citation.] If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer's true reason was discriminatory, the employer is entitled to summary judgment. [Citation.]" (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.)

"Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it 'remains subject to careful scrutiny.' [Citation.] The employee's 'subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.' [Citation.] The employee's evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, 'an actual causal link between prohibited motivation and [discrimination].'" (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.)

2. Existence of Disability or Perceived Disability

Defendants first contend that Plaintiff cannot prevail on this cause of action because Plaintiff cannot establish that she either had a disability or was perceived to have a disability. A condition is a “disability” under the Fair Employment and Housing Act if it “limits a major life activity,” including “physical, mental, and social activities and working.” (Gov. Code § 12926(m).) Generalized concerns regarding negative reactions to a vaccine are not sufficient to demonstrate a disability. (Hodges v. Cedars-Sinai Med Ctr. (2023) 91 Cal.App.5th 894, 908.)

Plaintiff alleges that she had a disability because she had a condition which prevented her from receiving a vaccination, “in substantial part due to severe allergic reactions that required hospitalization.” (Complaint ¶ 20.) Defendants contend, however, that Plaintiff cannot produce evidence which would establish any negative reaction at all, let alone one sufficiently severe to impact major life activities. Defendants offer copious deposition testimony from both Plaintiff and her physician, Dr. Yi, establishing that Dr. Yi never told Plaintiff that she would have a negative reaction to a COVID-19 vaccine (SSUMF Issue 2 No. 53), nor that she was allergic to any of the ingredients (No. 54), nor that she would have any negative symptoms if she took one of the vaccines. (No. 55.) Moreover, although Plaintiff testified to a conversation with Dr. Yi at an unspecified time in which her physician advised against receiving the vaccine, that advice was expressly based on uncertainty regarding the source of Plaintiff’s allergies. (SSUMF Issue 2 No. 93.) Defendants have offered evidence that Plaintiff did not suffer from a condition which impacted major life activities, and therefore that she cannot establish the existence of a disability. The burden therefore shifts to Plaintiff to demonstrate a triable issue of fact in this respect.

In opposition, Plaintiff argues that the mere fact that she was subject to a vaccination requirement as part of her employment constituted a limitation on working. Plaintiff also argues that her submission of a medical exemption request is sufficient on its own to establish the existence of a disability. These arguments are specious, circular, and irrelevant. Plaintiff must demonstrate, with admissible evidence, a physical or mental condition which impacts a major life activity. Plaintiff has offered nothing which rises to that threshold. Certainly, her mere submission of a medical exemption request does not fulfill that requirement. Plaintiff has failed to establish a triable issue of fact in this respect.

Plaintiff also alleges that Defendants perceived her as having a disability. (Id. ¶ 22.) Defendants categorically deny this allegation, offering a sworn affidavit from Erika Grant in which she states her conclusion that Plaintiff had intentionally falsified the Exception Request Form to obtain an exemption from the vaccination policy. (SSUMF Issue 2 No. 73.) Ms. Grant further stated that her conclusion was based, inter alia, on her belief that the form was clear that it was to be prepared by a physician, that the communications from Unum were equally clear in that regard, that Plaintiff had admitted to not speaking to her provider before completing the form, and that Plaintiff appeared to Ms. Grant to be looking for any way to avoid taking the vaccine. (SSUMF Issue 2 No. 76.) Ms. Grant categorically denies perceiving Plaintiff as disabled. (Id. No. 98.) Defendants have thus offered evidence that, whatever Plaintiff’s actual condition, Defendants did not perceive Plaintiff to be disabled. The burden therefore shifts to Plaintiff to demonstrate a triable issue of fact in this respect.

In opposition to this contention, Plaintiff again asserts that the vaccination requirement, the mere provision of the medical accommodation paperwork and the submission of an accommodation request establishes that Defendants perceived Plaintiff as having a disability. These arguments are once again specious and circular. Evidence that Plaintiff claimed a disability is not evidence that Defendants perceived that claim to be true, and a refusal to get a vaccination is not sufficient standing alone to prove a disability as a matter of law. (Hodges v. Cedars-Sinai Med Ctr. (2023) 91 Cal.App.5th 894, 905.) Plaintiff has failed to demonstrate a triable issue of fact with respect to Defendants’ perception of Plaintiff’s condition.

As Plaintiff has failed to demonstrate a triable issue of fact regarding the existence or perception of a condition from which she suffered which would impact a major life activity, Plaintiff has failed to demonstrate a prima facie case for disability discrimination. For this reason alone, Defendant is entitled to summary adjudication of the first cause of action.

3. Legitimate Non-Discriminatory Reason

Defendants argue in the alternative that, even if Plaintiff suffered from a disability or was perceived to have a disability, Defendants had a legitimate, non-discriminatory reason for terminating Plaintiff. “Reasons are ‘legitimate’ if they are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. Issues that are nondiscriminatory on their face and honestly believed by [the] employer, will suffice even if foolish or trivial or baseless; the ultimate issue is whether [the] employer honestly believed in the reasons it offers.” (Hodges, supra, 91 Cal.App.5th at 910 [internal citations and quotations omitted, alterations in original].)

Defendants offer substantial evidence, as discussed above with respect to Defendants’ perception of Plaintiff’s condition, that Plaintiff was terminated because of Ms. Grant’s honest belief that Plaintiff had falsified the Exception request form. (SSUMF Issue 3 Nos. 73-79.) Moreover, Defendants also offer evidence that Plaintiff had in fact completed the Exception Request Form on her own, notwithstanding indications that the form was meant to be completed by a physician, and made representations regarding her medical condition without having been told that those statements were true. (SSUMF Issue 3 Nos. 37-57.) With this showing, Defendants have demonstrated, at minimum, that Plaintiff was terminated based on an honestly held belief that she had falsified documents and have offered evidence tending to prove that belief correct. The burden therefore shifts to Plaintiff to demonstrate that this proffered reason is pretextual.

In opposition, Plaintiff contends that Defendants’ proffered reason is pretextual. Plaintiff first asserts that Defendants have made “false assertions” which support the inference of pretext. Plaintiff appears to rely on a misapplication of Donchin v. Guerrero, a 1995 appellate opinion discussing, inter alia, the use of false exculpatory statements as evidence of guilt in criminal proceedings, and which does not address discrimination actions. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1841-43.) That said, it is true, as Plaintiff states, that where the employer has “different reasons stated at different times” for the adverse action, the “shifting explanations” are sufficient to support a claim of pretext on summary adjudication. (Payne v. Northwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080.) Here, however, Plaintiff offers no evidence of any shifting reasons, instead relying on Defendant’s characterization of the Exception Request Form as a “Medical Provider Form” (RSS Issue 3 Nos. 37-48), the putative promise that Unum would assist in “working directly” with Plaintiff’s physician (E.g. No. 19), Plaintiff’s blunt disagreement with Defendant’s claim that there are “no facts” supporting a good-faith submission of the form (RSS Issue 3 Nos. 38, 62-63, 101), and Defendant’s amended discovery responses that the legal department did not participate in the termination decision. (Statement of Additional Facts Nos. 14-15). Plaintiff contends this course of conduct casts doubt on the truth of Defendants’ claimed basis for terminating Plaintiff. Even if true, none of the evidence upon which Plaintiff seeks to rely goes beyond attacking the validity of Defendants’ claimed reason. "The plaintiff must do more than raise the inference that the employer's asserted reason is false. '[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.' [Citation.] If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer's true reason was discriminatory, the employer is entitled to summary judgment. [Citation.]" (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.)

Plaintiff also asserts that “offering […] an opportunity to apply for a medical exemption while implying there would be no harm in doing so” only to then terminate Plaintiff is evidence of pretext. Leaving aside the circularity of this argument, Plaintiff admits that Defendants provided repeated notices that falsifying the forms would be grounds for discipline or termination. (SSUMF Issue 3 Nos. 12, 16; RSS Nos. 12, 16.) Nothing about Defendants’ conduct is inconsistent in that regard.

Next, Plaintiff contends that Defendants’ admission that Ms. Grant relied on Plaintiff’s putative request for a religious accommodation as evidence of Plaintiff’s lack of credibility demonstrates the pretextual nature of Plaintiff’s termination. Ms. Grant’s assessment does nothing of the sort. First, Plaintiff freely admits that she did not request a religious accommodation, although religious accommodations were discussed on the December 2021 Zoom calls. (SSUMF Issue 3 No. 70; RSS Issue 3 No. 70.) Even if Plaintiff had requested that accommodation, a subjective belief that the request was not genuine does not tend to discredit Defendants’ belief that Plaintiff had falsified her documentation.

Plaintiff also contends that CBS deviated from its standard policy and practices because it paused the accommodation process to investigate Plaintiff’s submission of the Exception Request Form. (See RSS Issue 3 Nos. 20, 78.) It is generally true that deviations from regular practice or policy can support an inference that an improper motive is in play. (Kotla v. Regents of Univ. of Cal. (2004) 115 Cal.App.4th 283, 294 fn. 6.) Here, however, while Plaintiff offers evidence of deviation from the usual process, Plaintiff does not demonstrate deviation from standard policy and practices, nor does she explain why a deviation from that process supports an inference of pretext. As Defendants state in reply, Defendants offered ample evidence that their internal policies prohibit dishonesty. (SSUMF Issue 3 No. 78.) The undisputed evidence establishes that Defendants followed the regular practice until Plaintiff submitted a form which she filled out herself, rather than having it filled by her physician, despite numerous context clues indicating that the form was meant for a physician. (SSUMF Issue 3 Nos. 10-23, 29-48, 58.) Even in the light most favorable to Plaintiff, Defendants’ decision to investigate the form does not establish pretext.

Plaintiff further contends that Defendants’ “vague assertion that Grant’s impression of Johnson’s demeanor was that Johnson recognized that she had been caught” is evidence of pretext. (RSS Issue 3 No. 67.) It is true that subjective complaints about performance might support an inference of discriminatory animus. (E.g. Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4^th 297, 319.) It is also true that an excessively subjective criterion is not a valid basis for an employment decision. (Morgan v. Regents of Univ. of Cal. (2000) 88 Cal.App.4th 52, 75.) However, the use of subjective criteria does not, by itself, demonstrate pretext. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1005.) Moreover, Defendants did not rely on that subjective criterion as a basis for terminating Plaintiff. (SSUMF Issue 3 No. 76.) This argument is not sufficient to support a showing of pretext.

Finally, Plaintiff argues that the temporal proximity between Plaintiff’s request for accommodation and her termination supports an inference of retaliation. First, this argument is properly brought in defense of Plaintiff’s retaliation claim, not her discrimination claim. Second, temporal proximity does not suffice on its own to establish a triable issue of fact with respect to pretext, even in the context of retaliation. (Loggins v. Kaiser Permanente Int’l (2007) 151 Cal.App.4th 1102, 1112.)

As Plaintiff has failed to establish a triable issue of fact regarding either her prima facie case or the purportedly pretextual nature of Defendants’ legitimate, non-discriminatory reason for her termination, Defendants are entitled to summary adjudication of this cause of action.

Accordingly, Defendants’ Motion for Summary Adjudication of the first cause of action is GRANTED.

Second Cause of Action: Failure to Engage in Interactive Process

Defendants move for summary adjudication of the second cause of action for failure to engage in the interactive process.

Under Government Code section 12940 (n), it is an unlawful employment practice, unless based on a bona fide occupational qualification or on applicable security regulations established by the United States or the State of California, “for an employer . . . to fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability or known medical condition.”

Defendants argue that Plaintiff cannot prevail on this cause of action because Plaintiff cannot establish either the existence of or perception of a disability. (Doe v. Dept. of Corr. & Rehab (2019) 43 Cal.App.5th 721, 738.) Both Defendants and Plaintiff rely on the same evidence addressed above with respect to the existence of any disability and Defendants’ perception of whether Plaintiff has a disability. The Court therefore finds that Defendants have demonstrated that Plaintiff cannot establish an element of her prima facie case, and that Plaintiff has failed to demonstrate a triable issue of fact in this respect.

Accordingly, Defendants’ Motion for Summary Adjudication of the second cause of action is GRANTED.

Here, Defendants argue that Plaintiff cannot demonstrate the existence of a disability, nor the

Third Cause of Action: Failure to Provide Reasonable Accommodation

Defendants also move for summary adjudication of the fourth cause of action for failure to provide reasonable accommodations.

Under Government Code section 12940(m), an employer has a duty to make “reasonable accommodation for the known physical or mental disability of an . . . employee.” (Gov. Code § 12940(m).) To prevail on this cause of action, a plaintiff must prove that “‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.[Citation.]’ ” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22Cal.App.5th 1187, 1193-1194.) Where there is no disability nor perception of disability, there is no duty to accommodate. (Hodges, supra, 91 Cal.App.5th at 913.)

Both Defendants and Plaintiff rely on the same evidence addressed above with respect to the existence of any disability and Defendants’ perception of whether Plaintiff has a disability. The Court therefore finds that Defendants have demonstrated that Plaintiff cannot establish an element of her prima facie case, and that Plaintiff has failed to demonstrate a triable issue of fact in this respect.

Accordingly, Defendants’ Motion for Summary Adjudication of the third cause of action is GRANTED.

Fourth Cause of Action: Failure to Prevent Discrimination

Defendants move for summary adjudication of the fourth cause of action for failure to prevent discrimination. As this cause of action is wholly derivative of the first cause of action, on which Defendants have prevailed, Defendants’ Motion for Summary Adjudication of the fourth cause of action is GRANTED.

Fifth Cause of Action: Retaliation

Defendants move for summary adjudication of the fifth cause of action for retaliation.

The California Supreme Court has adopted the federal burden-shifting test for assessing employment discrimination claims. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) "[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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation '" 'drops out of the picture, '"' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendants argue that Plaintiff cannot prevail on this cause of action because of the same legitimate reason offered in defense against the first cause of action for disability discrimination—i.e., that Plaintiff was terminated not for requesting accommodations, but for falsifying documents. (See SSUMF Issue 7 Nos. 37-57, 73-79.) Defendants have therefore demonstrated that Plaintiff cannot prevail on this basis. The burden therefore shifts to Plaintiff to establish a triable issue of material fact regarding intentional retaliation.

In response to Defendants’ challenge to this cause of action, Plaintiff relies on substantially the same arguments and evidence presented to support her claim of pretext in the context of her discrimination claim. Plaintiff argues that Defendants’ stated reason for terminating Plaintiff is direct evidence of retaliatory intent. (RSS Issue 7 Nos. 76-77.) As stated above, this contention is not well-taken. Moreover, bare assertions that Defendants “falsely argue[]” that Plaintiff has no evidence are not sufficient to establish intentional retaliation. Nor can it be said that Defendants’ distrust of Plaintiff’s putative request for religious accommodation—which Plaintiff denies having made (SSUMF Issue 3 No. 70; RSS Issue 3 No. 70) – is evidence that Defendants sought to retaliate against Plaintiff for requesting an accommodation in good faith. None of the materials which Plaintiff cites demonstrate, even when viewed in the most favorable light, that Defendants intended to retaliate against Plaintiff for requesting a vaccine accommodation in good faith. Plaintiff has failed to demonstrate a triable issue of fact in this respect.

Accordingly, Defendants’ Motion for Summary Adjudication of the fifth cause of action is GRANTED.

Sixth Cause of Action: Wrongful Termination

Defendants move for summary adjudication of the sixth cause of action for wrongful termination. As the parties agree that this cause of action is derivative of the remaining claims, Defendants’ Motion for Summary Adjudication of the sixth cause of action is GRANTED.

Punitive Damages

Defendants move for summary adjudication of Plaintiffs’ claim for punitive damages. As Defendants have prevailed on all causes of action, Defendants’ Motion for Summary Adjudication of the punitive damages claim is GRANTED.

CONCLUSION:

Accordingly, Defendants’ Motion for Summary Judgment is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 6, 2025 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.