Judge Thomas D. Long, Case 21STCV20977 2022-12-13 Tentative Ruling

On June 4, 2021, Plaintiff Thomas Lim filed a first amended complaint (“FAC”) against Defendant City of Downey, alleging (1) disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to accommodate in violation of FEHA; (3) (2) retaliation in violation of FEHA; (3) failure to engage in an interactive process in violation of FEHA; (4) retaliation in violation of FEHA; and (5) failure to prevent discrimination and retaliation in violation of FEHA.

On September 27, 2022, Defendant filed a motion for summary judgment, or in the alternative summary adjudication.

No. 1, 2, 4-7, 10, 14-15, 23-24, 26-30, 32-37, 39, 45, 47, 51, 53-58, 60: Overruled.

No. 3, 25, 38, 74: Sustained as hearsay regarding the truth of Plaintiff’s restrictions, but admissible for other purposes, such as to show the effect of that communication on the declarant.

No. 8-9, 62: Sustained as hearsay for the truth of the recommendation and retention of RJN.

No. 11-13, 17-22, 31, 40-44, 46, 48-50, 65-70, 72: Sustained as hearsay regarding the truth of what the investigation uncovered, but admissible for other purposes, such as to show the effect of the contents on the declarant.

No. 16: Overruled. Exhibit F is properly authenticated with the Declaration of James McQueen.

No. 61, 64, 71, 73: Overruled. Exhibits C, D, E, I, and J are properly authenticated with the Declaration of James McQueen.

No. 1: Sustained as hearsay as to “my doctor later instructed me to lessen my use of crutches in order to build strength in my leg.”

No. 5: Sustained as hearsay for the truth of the contents of the report. However, Exhibit E may be otherwise admissible for other purposes.

Plaintiff began his employment with Defendant as a probationary police officer on May 29, 2018. (Undisputed Material Facts “UMF” 1; Additional Material Facts “AMF” 1.) His employment was subject to an 18-month probationary period that could be extended up to an additional six months. (UMF 2; AMF 2.) While on probation, Plaintiff was employed in an at-will capacity. (UMF 3.) If Plaintiff passed probation, he could only be terminated for “good cause,” and in such case Defendant would have to go through a time-consuming and expensive termination process, which would include a post-termination appeal hearing that would require Defendant to pay for legal counsel and other expenses. (UMF 4.)

On December 8, 2018, Plaintiff suffered an on-duty injury while responding to a call for service regarding a car accident. (UMF 5; AMF 4.) His injury was to his lower back, which he claimed caused pain in his back, spine, hip, and left leg. (UMF 6.) Plaintiff’s doctor initially prescribed work restrictions that included, among other things, no standing, walking, or sitting more than 20 cumulative minutes per hour, and no lifting more than 5 pounds. (UMF 7.) Plaintiff also needed the ability to lay down 20 minutes per hour. (UMF 7.) If those accommodations could not be provided, he was deemed temporarily totally disabled. (UMF 7; AMF 6.) Plaintiff’s doctor later placed him off work completely beginning in March 2019. (UMF 7.) Defendant accommodated Plaintiff by granting his requests for temporary total disability leave. (UMF 8; AMF 7.) Because Plaintiff filed a workers’ compensation claim, his temporary total disability leave was with no loss of salary. (UMF 9.)

In late March 2019, while Plaintiff was still on medical leave, Defendant learned that Plaintiff may have been engaging in physical activities associated with a basketball league even though he was temporarily totally disabled. (UMF 10.) Defendant passed the information on to AdminSure, and AdminSure recommended an investigation into possible workers’ compensation fraud. (UMF 11.) Defendant was informed that AdminSure retained RJN to conduct a sub rosa investigation and undertake surveillance regarding Plaintiff’s activities. (UMF 12.) Defendant received periodic updates from AdminSure and RJN regarding the investigation, including information regarding Plaintiff’s physical activities and photographs RJN’s investigators had obtained. (UMF 13.) Later in April 2019, Defendant was informed that RJN’s investigation uncovered information suggesting that Plaintiff likely engaged in workers’ compensation fraud when he was seen carrying several heavy items, entering and exiting vehicles without hesitation, and displaying no restrictions. (UMF 14.) For example, the surveillance photos provided to Defendant depicted Plaintiff carrying objects, walking without the use of crutches while volunteering for the X League Nation Basketball League, and scaling a fence four times in order to hang a sign for X League. (UMF 15.) AdminSure further advised Defendant that there was a potential that criminal investigators and/or the State’s workers’ compensation fraud program would open up their own fraud investigations. (UMF 16.)

Defendant did not release Plaintiff from his at-will position in April 2019 based on RJN and AdminSure’s recommendation to delay releasing him to avoid compromising the sub rosa investigation given the potential for a criminal referral and referral to the Department of Insurance Fraud Division. (UMF 17.)

On May 22, 2019, Plaintiff visited the police station, where he was observed walking using crutches even though Defendant had previously received reports and photos showing Plaintiff engaging in various activities, including those related to the basketball league, without the use of crutches. (UMF 18.) On May 28, 2019, AdminSure provided Defendant with an update regarding surveillance that had taken place on May 22, 2019, the same day Plaintiff visited the police station on crutches. (UMF 19.) AdminSure advised that the investigators had observed Plaintiff attending a medical appointment, but he did not utilize any supports while in the waiting area, even though Plaintiff used crutches while visiting the station that same day. (UMF 19.)

Defendant was informed that on June 1, 2019, RJN conducted further sub rosa investigation and obtained photos of Plaintiff lifting and carrying tables, and also lifting up another person up above his shoulders so that second person could do something with a basketball rim. (UMF 20.) Further RJN surveillance on July 18, 2019 and July 20, 2019 showed Plaintiff walking and sitting without any physical restrictions or crutches for support. (UMF 21.)

On August 20, 2019, Defendant was advised that RJN had completed its initial investigation report on July 24, 2022, and that, based upon the review of the claim file, RJN believed the case warranted a referral to both the Los Angeles District Attorney and the Department of Insurance Fraud Division. (UMF 22.) On or about September 4, 2019, AdminSure forwarded to Defendant RJN’s completed FD-1 Summary Report, which stated that it appeared a criminal referral may be warranted to the District Attorney’s Office and the Department of Insurance Fraud Division. (UMF 23-24.) Based on its review of records and surveillance, RJN Investigations’ FD-1 report concluded that it appeared Plaintiff made material misrepresentations regarding (1) his sustained injuries from the December 8, 2018 accident, (2) his daily activities during his workers’ compensation claim, (3) his use of crutches provided by his doctor, and (4) his activities with the “X League Nation” basketball league. (UMF 25.)

On or around September 19, 2019, Plaintiff visited his physician, Dr. Bakshian, and requested a note releasing him to return work as a police officer. (UMF 26.) After this visit, Plaintiff submitted a note to Defendant from his doctor opining that Plaintiff could return to modified work on October 10, 2019, desk work acceptable, with no contact with the general public, and with the ability to sit and stand at will. (UMF 27.) After Plaintiff submitted his doctor’s note to Defendant, Plaintiff was informed by command staff that Human Resources would reach out to him. (UMF 29.) Defendant’s Human Resources Department worked with the Downey Police Department to determine if any positions were available that satisfied Plaintiff’s work restrictions. (UMF 30.) The only light duty/desk assignment available was at the front desk, but that assignment required contact with the general public. (UMF 30; see UMF 32.) Later that day, Defendant’s Human Resources Department spoke with Plaintiff and advised him that Defendant was unable to accommodate his medical restrictions. (UMF 31.)

After being told that Defendant could not accommodate his medical restrictions listed in his September 19, 2019, work release note, Plaintiff returned to Dr. Bakshian for reevaluation. (UMF 34.) On October 17, 2019, Dr. Bakshian provided Plaintiff with a work note releasing him to regular work as a police officer without any restrictions, and Plaintiff sent this note to Captain Baker. (UMF 34, 36; AMF 25.)

After reviewing RJN’s FD-1 report and surveillance photos, Chief Milligan determined that Plaintiff should be released because of suspected workers’ compensation fraud effective November 8, 2019. (UMF 38.) Chief Milligan served a Notice of Release from Probation on Plaintiff which expressly told Plaintiff he made his decision because Plaintiff (1) engaged in activities that were inconsistent with the medical work restrictions imposed on him because of his December 8, 2018 injury, and (2) may have engaged in other activities or behavior that suggested workers’ compensation fraud. (UMF 39; AMF 27.) Chief Milligan believed it was in Defendant’s best interests to release Plaintiff from his at-will employment before the December 1, 2019, end of his probationary period when Plaintiff would gain the equivalent of tenure. (UMF 40.)

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.)

The first cause of action is for disability discrimination. 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.)

The fourth cause of action is for retaliation. 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.)

“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 one 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; see also Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 357 [summary judgment is appropriate where defendant provides “competent, admissible evidence” of “nondiscriminatory reasons” for the adverse employment action and plaintiff did not “rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred”].)

“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.)

Defendant first argues Plaintiff cannot establish a prima facie case of discriminatory motive because there is no supporting evidence. (Motion at pp. 14-15.) “[A] defendant moving for summary judgment [must] present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 (Aguilar), footnote omitted.) Defendant must therefore “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) Although Plaintiff testified that Chief Milligan never indicated he was upset with Plaintiff because he was injured or had to take medical leave (UMF 42; Plaintiff Depo. at p. 102), this does not show that Plaintiff is unable to obtain evidence.

Defendant also argues it had a legitimate and nondiscriminatory reason for terminating Plaintiff’s employment. (Motion at pp. 18-19.) Chief Mulligan received RJN’s investigation report after several months of investigation, which included photos and descriptions of Plaintiff engaging in activities that were inconsistent with his work restrictions at the time. (E.g., UMF 14-15, 18-20, 25, 38.) Chief Mulligan believed it was reasonably likely that Plaintiff was engaging in workers’ compensation fraud, and he believed it was in Defendant’s best interests to release Plaintiff from his at-will employment before the end of his probationary period when Plaintiff would gain the equivalent of tenure. (UMF 40.) Defendant has met its burden of showing a legitimate and nondiscriminatory reason for terminating Plaintiff’s employment. The burden now shifts to Plaintiff to show that this reason was pretextual.

Plaintiff argues that the burden-shifting test does not apply here because “there is direct evidence of disability discrimination because the City terminated Lim while he was on a disability leave of absence accommodation and the termination decision was intimately intertwined with Lim’s disability and his need for reasonable accommodation.” (Opposition at p. 14.) He contends that Defendant “mistakenly believed [Plaintiff] was no longer a qualified person with a disability and, therefore, legally entitled to a reasonable accommodation.” (Id. at p. 15.) However, Plaintiff cites no evidence to support this argument. (See id. at pp. 14-15.) Moreover, this argument is not logically sound: by the time of Plaintiff’s termination on November 8, 2019, Plaintiff was released to regular work without restrictions. (See UMF 34, 36, 38.) Thus, Plaintiff was no longer suffering from a disability at the time of his termination.

Plaintiff also argues that Defendant does not have a legitimate, nondiscriminatory reason because the investigation was inadequate and Plaintiff was never given an opportunity to defend himself. (Opposition at pp. 16-19.) But the cases cited by Plaintiff involve investigations before terminating employment when there was a contract preventing termination except for good cause. (See Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 259; Cotran v. Rollins Hudig Hall Intern., Inc. (1998) 17 Cal.4th 93, 95.) Plaintiff’s employment here was at-will. (UMF 3.)

Accepting that Defendant met its burden of proffering a legitimate and nondiscriminatory reason, Plaintiff argues that there is evidence of pretext. (Opposition at pp. 19-20.) Plaintiff identifies temporal proximity because he was on disability leave and was terminated immediately after he was released to return to work. (Id. at pp. 19-20.) He also argues that the investigation was inadequate and came to an incorrect conclusion, demonstrating that it was pretextual. (Id. at pp. 20-21; see id. at pp. 18-19.) An investigation that is not thorough, does not follow the employer’s express policies, and was conducted by “a person who at least inferentially had an axe to grind” may be evidence of pretext. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 277, 280.) But here, Plaintiff admitted that Chief Milligan never indicated that he was upset about Plaintiff’s injury or medical leave. (UMF 42; Plaintiff Depo. at p. 102.) After Defendant learned that Plaintiff was engaging in physical activities associated with a basketball league even though he was temporarily totally disabled, AdminSure retained RJN to conduct an investigation from April 2019 through an initial report in July 2019 and final report in September 2019. (UMF 10-12.) The investigation yielded descriptions and photos showing Plaintiff carrying objects, walking without the use of crutches, scaling a fence four times, and lifting and carrying tables. (UMF 13, 15, 18, 20.) Plaintiff confirmed that it was him in the photos. (Plaintiff Depo. at pp. 88, 93.) Based on this investigation and the final report, Chief Milligan believed Plaintiff was engaging in workers’ compensation fraud. (UMF 40.)

Plaintiff provides no evidence to the contrary, instead arguing that “the City was 100% wrong about Lim engaging in misconduct” and “the City was wrong in concluding he engaged in workers’ compensation fraud.” (Opposition at pp. 20-21.) The only evidence that Plaintiff attempts to dispute is “an intentionally misleading image that Mr. Lim had lifted a man above his head to fix a basketball hoop,” but “in reality, the video taken shows that a man jumped up and grabbed a basketball hoop in order to fix the netting. Lim then stood underneath this man as to provide minimal support.” (Opposition at p. 11; see id. at pp. 12, 18.) Plaintiff provides a copy of the video while faulting Defendant for relying on only the image and not the full video. (Plaintiff’s Ex. D.) The video shows Plaintiff walking on a basketball court with no supports or visible mobility difficulties. Although the man did jump and Plaintiff did not lift him up, Plaintiff does provide him with some support, at one point shifting his weight to his toes and off his heels. It is not “exculpatory” evidence that demonstrates Defendant’s pretext. (See Opposition at p. 18.)

Even if Defendant was ultimately incorrect about workers’ compensation fraud (see Opposition at p. 20), that does not make its decision pretextual. (Featherstone, supra, 10 Cal.App.5th at p. 1159 [“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” ’ ”].)

Because Plaintiff did not show weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in Defendant’s proffered legitimate reasons for its action, the Court cannot conclude Defendant’s reason for the termination is unworthy of credence or that there is a reasonable inference Defendant did not act for the asserted nondiscriminatory reasons. Accordingly, summary adjudication of the first and fourth causes of action is granted.

The fifth cause of action alleges failure to prevent discrimination and retaliation. Failure to prevent discrimination or retaliation in violation of FEHA requires that (1) plaintiff was an employee of defendant, (2) plaintiff was subjected to discrimination or retaliation in the course of employment, (3) defendant failed to take all reasonable steps to prevent the discrimination or retaliation, (4) plaintiff was harmed, and (5) defendant’s failure to take all reasonable steps to prevent discrimination and/or retaliation was a substantial factor in causing plaintiff’s harm. (CACI 2527.)

Defendant argues that because Plaintiff’s underlying causes of action for discrimination and retaliation fail, so too must the third cause of action for failure to prevent discrimination and retaliation. (Motion at pp. 26-27.) “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under [Government Code] section 12940, subdivision (k).” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)

Because the Court grants summary adjudication of the first and fourth causes of action, summary adjudication is also granted on the fifth cause of action.

The second cause of action alleges failure to accommodate Plaintiff’s disability, and the third cause of action alleges failure to engage in an interactive process. “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.)

Defendant initially accommodated Plaintiff’s disability through his paid disability leave. (UMF 8-9; AMF 7.) Plaintiff’s September 19, 2019 work restrictions included modified work, desk work acceptable, with no contact with the general public, and with the ability to sit and stand at will. (UMF 27.) Defendant’s Human Resources Department worked with the Downey Police Department to determine if any positions were available that satisfied those work restrictions, but none were available. (UMF 30-32.) “California law is emphatic that an employer has no affirmative duty to create a new position to accommodate a disabled employee.” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1224.)

Defendant has therefore met its burden of showing that it initially provided the requested accommodation and thus engaged in the interactive process. Defendant has also shown that it had no duty to accommodate Plaintiff when there were no positions that fit his restrictions.

Plaintiff argues that he could have been accommodated with a leave of absence. (Opposition at p. 22.) It is undisputed that he was on a paid disability leave. (UMF 8-9.) Plaintiff later received a doctor’s note releasing him to work without restrictions. (UMF 34.) Plaintiff has not shown the existence of a disputed fact.

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

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