Judge Thomas D. Long, Case 20STCV48128 2023-05-18 Tentative Ruling

On December 16, 2020, Plaintiff Eduardo Orozco filed this action against Defendant County of Los Angeles (Probation Department) alleging (1) failure to provide accommodation in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to engage in the interactive process in violation of FEHA; (3) disability and age discrimination in violation of FEHA; (4) retaliation in violation of FEHA; and (5) failure to prevent discrimination, retaliation, and harassment in violation of FEHA.

On June 9, 2022, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication.

Defendant’s Objection No. 1: Overruled. Plaintiff can testify to his experience in the work position.

Plaintiff’s Objections to Defendant’s Reply Evidence: Overruled. Generally, “new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537; see Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) However, the dates of these deposition transcripts show that they occurred after Defendant filed its motion, so this evidence was not available to support the initial briefing. Defendant provides only a few additional pages from deposition transcripts to contextualize Plaintiff’s excerpts from these depositions: 2 pages for Toyea Sims, 2 pages for Terrence Vallejo, and 4 pages for Norma Diaz Campos. Plaintiff provided page 24, but not page 25, of Sims’ deposition; Defendant provided pages 24 and 25 in reply. For Vallejo’s deposition, Plaintiff provided page 133, then the next page was 161; Defendant provided pages 149 and 157 in reply. For Campos’s deposition, Plaintiff provided page 52, then the next page was 61; Defendant provided pages 52 through 55. Accordingly, this is not “new” evidence. Instead, it is clearly being used to complete the record and provide context, and sometimes completeness, of the deponents’ testimony.

Plaintiff requests permission to file a surreply if the Court considers this evidence. (See Objection to Reply.) The Court does not believe that it is necessary to provide Plaintiff notice and an opportunity to respond to Defendant’s additional evidence under these circumstances because this is not “new” evidence that surprised Plaintiff; rather, these are pages that Plaintiff intentionally omitted from deposition transcripts that were in his possession and were used to oppose the motion. This evidence also does not change the Court’s decision. However, if Plaintiff believes that a surreply is indeed necessary, he should raise that at the hearing or make his argument about the evidence at the hearing. (See Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [“the trial court’s consideration of such additional evidence is not an abuse of discretion so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material”].)

Under the Court’s First Amended General Order for electronic filing, the table of contents and all attachments, including exhibits, must be bookmarked. (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).)

Plaintiff’s Opposition and exhibits do not comply with these requirements and do not contain bookmarks, which is particularly troublesome when navigating over 300 pages of exhibits.

If any party continues to electronically file noncompliant documents in this action, the Court may strike the filings or issue sanctions.

Plaintiff was a permanent employee in the Civil Service Position of Crew Instructor for the Los Angeles County Probation Department (“Department”) until he was administratively reassigned to accommodate his permanent work restrictions on November 5, 2018. (Undisputed Material Facts “UMF” 1.)

The Crew Instructor position is a physically “Moderate” classification. (UMF 3.) The “Essential Job Functions” of the Crew Instructor position require, among other things, that the worker be able to bend, stoop, squat, twist, occasionally lift over 25 pounds, and frequently lift 10-25 pounds. (UMF 4.)

Plaintiff sustained an on-the-job injury and needed accommodation starting in May 2015. (UMF 2.) His medical provider gave him work restrictions which included avoiding repetitive, continuous or forceful bending, stooping, kneeling, squatting, lifting; not lifting more than ten pounds; and no restriction on driving. (UMF 6.) Plaintiff was reasonably accommodated with a light duty assignment for vehicle coordinator starting in May 2015. (UMF 7.)

Plaintiff’s Agreed Medical Examiner from his worker’s compensation case, Dr. Elliot Schaffzin, provided him with a Permanent and Stationary Report on November 20, 2017. (UMF 9.) Plaintiff’s permanent work restrictions were stated as: “Regarding the issues of lifting, it is felt that Mr. Orozco is able to engage in activities that require bimanual lifting up to 20 pounds at waist level. He is able to push or pull with either hand a maximum of 10 pounds of force.” (UMF 10.)

On about February 21, 2018, Plaintiff was in a vehicle accident in a County vehicle and sustained additional injury to his lower back and right knee. (UMF 8.)

According to Defendant, the Department no longer had a vacant, funded, light-duty position with which to reasonably accommodate Plaintiff, so it accommodated him with medical leave at home starting on April 18, 2018. (UMF 12.) Defendant found a permanent vacant funded position of an Intermediate Typist Clerk and scheduled an interactive process meeting with Plaintiff, but he failed to respond to attempts to schedule the meeting. (UMF 15.) Plaintiff failed to respond to Defendant’s requests to meet with him, sent on May 4, 2018 and July 24, 2018. (UMF 25.) The letters mailed to Plaintiff between May and October 2018 were mailed to his last known address provided by him to Defendant, but he did not notify Defendant of any address change prior to February 8, 2019. (UMF 23.) The Supervising Typist Clerk reported that she called Plaintiff twice, on October 31 and November 2, 2018, but Plaintiff did not contact her back. (See UMF 36.)

Plaintiff was administratively reassigned to the position effective November 5, 2018 without further interaction because Plaintiff did not participate. (UMF 15.) Defendant mailed letters to Plaintiff at his known address, ordering him to report to work and to provide medical certification excusing his unauthorized absences. (UMF 35.)

Defendant’s employment was terminated, and his untimely request for reinstatement was denied as unsatisfactory. (UMF 37.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) 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, 162-163 (Sangster).)

A. Defendant Has Proven That It Reasonably Accommodated Plaintiff and Engaged in the Interactive Process (First and Second Causes of Action).

The first and second causes of action allege that Defendant did not accommodate Plaintiff’s disability, and it terminated his employment without engaging in the interactive process. (Complaint ¶¶ 16, 22-23.)

“The essential elements of a failure to accommodate claim are: (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]” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. [Citation.]” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242.) An employer is liable for failing to accommodate when it is the one responsible for the breakdown in the interactive process; an employer may prevail where the employer does everything in its power to engage but the employee does not engage in further discussions in good faith. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

Defendant argues that Plaintiff could not perform the essential functions of his job. (Motion at p 13.) “Under FEHA, ‘reasonable accommodation’ means ‘“a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.”’ [Citations.] While the reasonableness of an accommodation is ordinarily a question of fact [citations], FEHA does not require employers to eliminate essential functions of a job to accommodate a disabled employee.” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 719 (Atkins).)

The role of a Crew Instructor requires bending, stooping, squatting, twisting, occasional lifting of objects weighing over 25 pounds, and frequent lifting of 10-25 pounds, among other physical movements. (Sims Decl. ¶ 6.) Plaintiff’s permanent work restrictions permitted him to bilaterally lift up to 20 pounds at waist level and push or pull with either hand with a maximum of 10 pounds of force. (UMF 10; Motion, Ex. 1.) Plaintiff was reasonably accommodated with a light duty assignment for vehicle coordinator starting in May 2015, when Plaintiff signed a Work Hardening Transitional Assignment Agreement that was renewed from time to time with new Work Hardening Agreements through April 18, 2018. (UMF 7; Sims Decl. ¶ 9.) The light-duty assignment as a vehicle coordinator for the unit’s fleet is not a classified position. (Sims Decl. ¶ 11.) On March 23, 2018, Plaintiff agreed to a Work Hardening Transitional Assignment Agreement lasting until April 17, 2018. (Sims Decl. ¶ 12 & Exs. 4-5.) In April 2018, Defendant informed Plaintiff that it no longer had a vacant, funded, light-duty position to reasonably accommodate him. (Sims Decl. ¶ 14.) Because Plaintiff’s lifting restrictions were in conflict with the essential functions of a Crew Instructor, Defendant has met its burden.

Plaintiff argues that in his experience working in this position, these tasks were not essential, and his restrictions did not impact his work functions. (See Opposition at pp. 10-13.) However, Vallejo testified that Plaintiff’s lifting and force restrictions impacted his duties with the lunch, ice chest, water jug, and tools. (Vallejo Depo. at pp. 100, 108-109, 161; see id. at p. 165.) There were not always other Crew Instructors around to help Plaintiff with lifting. (Vallejo Depo. at pp. 110-111.) Vallejo also testified, “Job sites, that’s a different question. There might be things that he may move that’s at the job site, you know, he may have moved at the time, you know,” such as sandbags. (Vallejo Depo. at p. 162.) “[R]equiring employers to eliminate an essential function of a job to accommodate a disabled employee ‘would be at odds with the definition of the employee's prima facie case” under FEHA. [Citation.] The employee’s burden includes ‘showing he or she can perform the essential functions of the job with accommodation, not that an essential function can be eliminated altogether to suit his or her restrictions.’ [Citation.]” (Atkins, supra, 8 Cal.App.5th at p. 720.) Plaintiff has not shown that he could perform the essential lifting functions without eliminating that requirement.

Plaintiff also argues that the vehicle coordinator assignment continued to exist after he was removed from it. (Opposition at p. 8.) But Vallejo testified that it was “a task that we give them” and “just a duty that needs to be performed.” (Vallejo Depo. at pp. 26-27.) Mr. Candler did the task after Plaintiff, but Vallejo denied that the tasks exist as a necessary part of the Crew Instructor job. (Vallejo Depo. at pp. 28-30.) An employee assigned to do the vehicle coordinator tasks had to also be able to perform the essential functions of a Crew Instructor, and Plaintiff was unable to do so. (Vallejo Depo. at p. 157.) Defendant was not required to turn Plaintiff’s temporary assignment (performing only limited tasks within his overall Crew Instructor role) into a permanent assignment when doing so would require Defendant to create a new position just for Plaintiff. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227.)

Moreover, Defendant continued to accommodate Plaintiff with leave beginning on April 18, 2018 pending a Department-wide job search for a vacant permanent funded position where he could be reasonably accommodated on a permanent basis. (UMF 12.) “When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence . . . may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.” (Cal. Code Regs., tit. 2, § 11068, subd. (c).) Defendant’s policy was to no longer have employees on made-up assignments, and they had to be placed in actual assignments. (Campos Depo. at p. 82.) Plaintiff could not perform the essential functions of a Crew Instructor, so he was placed on leave while Defendant attempted to find a position for his return.

Plaintiff argues that there were immediate positions available, so Defendant should not have placed him on leave. (Opposition at pp. 14-15; see Response to UMF 12.) However, the cited testimony by Sims does not clearly support this assertion. Sims testified that she started looking for a position for Plaintiff in May 2018, and there were several vacancies for clerical functions. (Sims Depo. at pp. 90-91.) Sims did state that those positions were available “[e]ven before” May 2018. (Sims Depo. at p. 91.) “When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation. (Cal. Code Regs., tit. 2, § 11068, subd. (c).) The existence of clerical vacancies as of the date of Plaintiff’s leave, and that knowledge after the fact, does not mean that a reasonable accommodation other than a leave of absence was available as of April 18, 2018. Defendant reasonably placed Plaintiff on leave while determining what positions were available. Defendant started looking for those positions “sometime in May before the scheduling of the first [Interactive Process Meeting].” (Sims Depo. at p. 85.) Thus, as of Plaintiff’s April 18, 2018 leave, a permanent position and accommodation for Plaintiff was not yet known. Defendant sent Plaintiff a letter on May 4, 2018—only sixteen days later—scheduling him for an Interactive Process Meeting. (Sims Decl. ¶ 15 & Ex. 6.) Plaintiff did not respond to this or a subsequent letter. (UMF 15.)

Plaintiff argues that “the breakdown of the interactive process occurred on April 18, 2018, when the County placed Orozco on leave when there were other reasonable accommodations available that would have allowed Orozco to continue working.” (Opposition at pp. 18-19.) Placing Plaintiff on leave, rather than terminating employment, was an accommodation when he was unable to perform the essential functions of a Crew Instructor. This accommodation is not a breakdown in the interactive process.

The Complaint alleges that Plaintiff temporarily moved to Arizona on or about November 2, 2018. (Complaint ¶ 10.) Plaintiff declares that he did not receive any letters mailed to his address on file and does not know why they were returned to sender, but he suggests it could be because “no one was home to sign for it as my girlfriend had a full time job and traveled for work was not home during the day.” (Orozco Decl. ¶ 26.) However, Defendant sent letters requesting to meet with Plaintiff on May 4, 2018 and July 24, 2018, before the Complaint’s alleged date of November 2018. (UMF 23, 25.) Plaintiff also denies that Defendant called him about his failure to return to work. (See UMF 36; Response to UMF 36.) Defendant’s evidence shows phone calls made on October 31 and November 2, 2018, which predates Plaintiff’s move to Arizona and does not explain his failure to respond to earlier letters since May 2018. (See UMF 23, 36.) Additionally, Defendant’s policy required employees to submit an update within five working days of a change in address. (Motion, Ex. 15, § 1005.) Although Plaintiff characterizes his residence in Arizona as “staying temporarily,” he admits that he was “not living [at the prior address] physically full time.” (Orozco Decl. ¶ 26.) It was Plaintiff’s duty to ensure that his information on file with Defendant was accurate, and Defendant sent the letters to the last known address that he provided to Defendant. (UMF 23.) Accordingly, Plaintiff, not Defendant, is responsible for the breakdown in the interactive process.

In sum, Defendant accommodated Plaintiff’s restrictions, but it was not required to convert his temporary assignment into a permanent one. Defendant continued to reasonably accommodate Plaintiff by finding a new, permanent position that fit his work restrictions. However, Plaintiff did not participate in the interactive process after Defendant sent letters and administratively reassigned him to the new permanent position.

B. Defendant Has Proven a Legitimate and Non-Discriminatory Reason for the Alleged Discrimination and Retaliation (Third and Fourth Causes of Action).

The third cause of action alleges disability and age discrimination by failing to accommodate Plaintiff after he suffered an injury. (Complaint ¶¶ 28-29.) The fourth cause of action alleges retaliation in response to Plaintiff’s request for an accommodation. (Complaint ¶¶ 35-36.)

An employee’s prima facie claim of discrimination requires “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) If an employee makes a prima facie showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. (Id. at p. 714.) “To establish that an employer has discriminated on the basis of a disability in violation of FEHA, the plaintiff employee has the burden of proving he or she could perform ‘the essential functions of the job with or without reasonable accommodation.’” (Atkins, supra, 8 Cal.App.5th at p. 716.)

“In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that on or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) Then the burden shifts to the employee “to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination.” (Id. at pp. 1158-1159.) “The plaintiff’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. [Citation.] The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at p. 1159.)

“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.] (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination is pretextual, an employee ‘ “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” ’ [Citation.] To meet his or her burden, 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,’ ” ’ and hence infer ‘ “the employer did not act for [the asserted] nondiscriminatory reasons.” ’ [Citations.]” (Ibid.)

Similarly, to establish a prima facie case of retaliation under 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. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

“An employer is not liable for discharging an employee with a disability unless the employee was able to perform the essential functions of his or her job with or without accommodation.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975; see Gov. Code, § 12940, subd. (a)(2).) As discussed above, Defendant has shown that Plaintiff could not perform the essential functions of his job as a Crew Instructor, and this was a legitimate and nondiscriminatory reason for placing him on leave and reassigning him.

Additionally, Defendant did administratively reassign Plaintiff to a permanent position, but he was deemed to have resigned because he did not report to work or provide the requested medical certification excusing his unauthorized absences. (See UMF 15, 35; Anastasiev Decl. ¶¶ 9-15.) Plaintiff did not timely request reinstatement, and his untimely request did not satisfy the requirements. (UMF 37; Anastasiev Decl. ¶¶ 16-19.) This is a legitimate and nondiscriminatory reason for terminating Plaintiff’s employment.

Defendant has met its initial burden of showing legitimate, nondiscriminatory reasons for the adverse employment actions. (Motion at pp. 8-10.) The burden now shifts to Plaintiff to show pretext and intentional retaliation.

Plaintiff points to Defendant placing him on leave after his February 2018 accident. (Opposition at pp. 19-20.) This does not overcome the temporary nature of his accommodations and that Defendant would have had to eliminate an essential function of the job in order to make the accommodation permanent. (See Atkins, supra, 8 Cal.App.5th at p. 719.)

Plaintiff also contends that Supervising Crew Instructor Vallejo “commented to me that I seemed to be getting injured a lot and maybe I should think about looking for work elsewhere or retiring.” (Orozco Decl. ¶ 23; Opposition at p. 20.) This single comment is not “substantial responsive evidence” that creates a triable issue of fact. (See Sangster, supra, 68 Cal.App.4th at pp. 162-163.)

D. Because Defendant Prevails on the Underlying Claims, It Cannot Be Liable For Failure to Prevent (Fifth Cause of Action).

The fifth cause of action alleges failure to prevent discrimination, retaliation, and harassment in the caption, and it alleges only failure to prevent discrimination in the body of the Complaint. Plaintiff did not allege any harassment. (UMF 50; see generally Complaint.)

Defendant argues that because there was no discrimination, harassment, or retaliation, it also cannot be liable for failing to prevent discrimination, harassment, or retaliation. (Motion at p. 14.)

For the reasons discussed above, summary adjudication of the fifth cause of action is also granted.

The motion for summary judgment is GRANTED. Defendant is ordered to submit a proposed judgment within 5 days.

A Non-Appearance Case Review Re: Submission of Proposed Judgment is scheduled for June 7, 2023 at 8:30 AM.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court