Judge Yolanda Orozco, Case 21STCV37399 2023-01-11 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV37399, Date: 2023-01-11 Tentative Ruling

Case Number: 21STCV37399 Hearing Date: January 11, 2023 Dept: 31

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

TENTATIVE RULING

Defendant’s Motion for Summary Judgment is GRANTED.

BACKGROUND

On October 12, 2021, Plaintiff William Hatcher (“Plaintiff”) commenced this action against the City of El Segundo and El Segundo Fire Department (collectively “Defendant”) for (1) age discrimination, (2) physical disability discrimination, and (3) failure to accommodate a physical disability.

On October 27, 2022, Defendant moved for Summary Judgment or Summary Adjudication in the alternative.

Plaintiff filed opposing papers on December 29, 2022.

Defendant filed a reply on January 6, 2023.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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.)¿¿¿¿¿

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar, supra, 25 Cal. 4th at 843.)¿ Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (Cal. Code of Civ. Proc. §437c(f).)¿¿¿¿¿¿

A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this 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 defense thereto.”¿(Id.)¿¿¿¿¿

“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.)¿¿¿

On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿¿

Defeating summary judgment requires only a single disputed material fact. (See CCP § 437c(c) [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.”] [emphasis added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿

EVIDENTIARY OBJECTIONS

Defendant submits 64 Evidentiary Objection to Plaintiff’s Opposition to the Motion for Summary Judgment:

Objection Nos. 61 is SUSTAINED.

Objections Nos. 31 to 60 are OVERRULED.

Objections Nos. 1 -19, 20-30, and 62 to 64 are immaterial to the Court’s disposition of the motion. The Court thus declines to rule upon them. All objections not ruled upon are preserved for appeal. (Code Civ. Proc. § 437c(q).)

Any objections raised in Defendant’s response to Plaintiff’s separate statement will not be considered by the Court. (See Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal. App. 4th 1, 8-9 [court did not abuse its discretion in refusing to consider objections not filed separately.].)

Plaintiff submitted Evidentiary Objections to the Transcript of Deposition of William Hatcher, Vol. II, taken October 16, 2022:

Objection No. 1 is SUSTAINED.

DISCUSSION

Statement of Facts

Plaintiff was born in 1955. (PMF 1.) Plaintiff began working at the El Segundo Fire department (“ESFD”) in 2000. (UMF 25.)

City Fire Marshal James Carver (“Carver”) was Plaintiff’s direct supervisor from October 1, 2006, until Plaintiff’s alleged constructive termination/retirement from the City on December 30, 2019 (UMF No. 16.) Fire Chief Chris Donovan was Carver’s direct supervisor.

i. Plaintiff’s Left Knee Injury

In 2011, Plaintiff injured his left knee at work and received a payout from the City on his workers’ compensation claim regarding the knee injury. (PMF 2, 4.) Plaintiff is still receiving treatment for his left knee. (PMF 3.)

ii. Plaintiff’s Right Knee Surgery

On June 15, 2015, Plaintiff injured his right knee and had a total right knee replacement surgery on November 28, 2016. (UMF 33, 34.) On March 02, 2017, Plaintiff was allowed to return to work with work restrictions. (UMF No. 1.) Plaintiff asserts that his request for light duty was denied. (PMF 53.)

On April 21, 2017, Plaintiff was cleared to return to work with no work restrictions. (UMF 2.) Nevertheless, the City was concerned with Plaintiff’s ability to fully and safely perform his duties and scheduled a Functional Capacity Evaluation (“FCE”) to determine Plaintiff’s physical abilities and limitations. (UMF 3.)

Plaintiff was allowed to return to light duty on or about April 24, 2017. (UMF 4.) Plaintiff did not have any reduction in salary, seniority, or loss of benefits while on light duty. (UMF 52.) Plaintiff agreed to attend the FCE but stated his belief that he could return to work without restrictions. (UMF 56.) On May 12, 2017, Plaintiff was again cleared to return to work with no restriction. (UMF 57.) On May 23, 3017, the FCE determined that Plaintiff did not require any work restrictions or accommodations. (UMF 61.) On Jun 9, 2017, Plaintiff’s treating physician confirmed he concurred with the finding of the FCE report that Plaintiff did not require any work restrictions or accommodations. (UMF 63.)

On June 12, 2017, Plaintiff returned to work without any work restrictions. (UMF 64.)

iii. The Return to Full Duty Work Agreement

Plaintiff does not dispute that on or about April 25, 2017, Shaw HR Consulting (“Shaw HR”) was retained to help coordinate the interactive process with Plaintiff. (UMF 53.)

On June 16, 2017, Shaw HRC provided Plaintiff with a “Disability Interactive Process: Return to Full Duty Work Agreement” which states:

“I, William Hatcher, am able to return to full duty work as a Fire Prevention Specialist, without any work restrictions or need for workplace accommodations. I also agree I will notify my supervisor immediately if I suspect or believe that I may need accommodations in the future, or if I suspect or believe that any job activity is not safe for me to perform, is causing me pain or discomfort, or if I require additional leave from work.

Although it appears I do not have a disabling condition at this time, the City of El Segundo and I both understand the interactive process is an ongoing obligation and should I need this process in the future, it will be restarted. I understand if confronted with a job duty I am concerned about performing, or if I need leave again in the future, it is my responsibility to contact my supervisor and share my concerns immediately.”

(UMF 66.)

Plaintiff signed the Full Duty Work agreement on June 20, 2017. (UMF 65.)

Plaintiff alleges that after he returned to work, he experienced age discrimination, disability discrimination, and failure to accommodate. Defendant now moves for summary judgment, or summary adjudication in the alternative, as to all causes of action alleged by Plaintiff.

Statute of Limitation Bars Plaintiff’s Failure to Accommodate Claim.

Defendant alleges that Plaintiff’s claims are time-barred.

Government Code section 12960 governs the timeline for an aggrieved employee to file the initial complaint with the Department of Fair Employment and Housing (DFEH), now called the California Civil Rights Department.

In 2019, the California Legislature amended Government Code section 12960 with Assembly Bill No. 9 and extended the statute of limitations for DFEH violations by three years. (2019 Cal. Legis. Serv. Ch. 709 (A.B. 9). The amended statute came into effect on January 01, 2020 and states any complaint regarding employment violations “ shall not be filed pursuant to this article after the expiration of three years from the date that the alleged unlawful practice occurred or refusal to cooperate occurred.” (Govt. Code § 192960 subd. (e).) Additionally, the current version of section 12960 adds that “filing a complaint means filing an intake form with the department and the operative date of the verified complaint relates back to the filing of the intake form.” (Gov. Code, § 12960(b).) Notably, the legislative digest and section 3 of the bill indicate the “act shall not be interpreted to revive lapsed claims.” (2019 Cal. Legis. Serv. Ch. 709 (A.B. 9).)

When Plaintiff filed his administrative complaint with DFEH on January 28, 2021, Plaintiff’s claims for conduct occurring in 2018 and 2019 had not yet lapsed and are not barred by the three-year statute of limitations.

However, the Court agrees that Plaintiff’s third cause of action, Failure to Accommodate is barred by the three-year statute of limitations.

3rd COA: Failure to Accommodate - Physical Disability

The elements of a claim for failure to provide reasonable accommodation of a disability are (1) the plaintiff had a disability within the meaning of the Fair Employment and Housing Act (FEHA), (2) the plaintiff is qualified to perform the essential functions of the positions, and (3) the employer failed to reasonable accommodate the plaintiff’s disability. (Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193-1194.)

Plaintiff admits that after June 2017, Plaintiff never went to a doctor requesting work restrictions for his left knee. (Plaintiff’s Ex. 2 [Hatcher Depo, V.II 272: 24-25].) Plaintiff alleges that as an accommodation for his knees, he requested that his double workload be reduced. (Plaintiff’s Ex. 2 [Hatcher Depo, V.II 273:11-274:24].) Plaintiff asserts that his request was never accommodated in 2017, 2018, or 2019. (Id.)

Typically, an applicant or employee triggers the employer's obligation to participate in the interactive process by requesting an accommodation. (Gov. Code, § 12940, subd. (n).) Plaintiff fails to identify to whom he made the 2018 and 2019 accommodation requests, or whether he informed his supervisor, Carver, about his requested accommodation as required by the Full Duty Work Agreement. Even if Plaintiff establishes that Carver and Donavan knew about his left knee issues, Plaintiff fails to provide any evidence that after 2017, Carver and Donavan knew that Plaintiff had a disability that required an accommodation.

Plaintiff admits that due to technical computer issues, Plaintiff was not expected to complete his assigned double workload. (PMF 19.) Consequently, Plaintiff did not complain about his double work assignments in 2018. (PMF 43, 44.) In 2019, Plaintiff stated that he was told to only do mandated inspections, so he did not complain about the double workload. (PMF 44.) Plaintiff also does not dispute the fact that he discussed filing a grievance with his union representative but decided against it. (UMF 98.)

Consequently, Plaintiff has failed to present evidence that he notified Carver and Donovan about his need for an accommodation regarding the double work assignment after 2017. There is simply no evidence that after 2017, Plaintiff sought a reasonable accommodation from Defendant and was denied because no request was made.

The Court agrees that Plaintiff’s third cause of action for Failure to Accommodate is time-barred by the three-year statute of limitations.

Summary adjudication is GRANTED as to the third cause of action.

McDonnell-Douglas Burden-Shifting Framework

“In cases alleging employment discrimination, we analyze the trial court's decision on a motion for summary judgment using a three-step process that is based on the burden-shifting test that was established by the United States Supreme Court for trials of employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860.)

“The McDonnell-Douglas framework is modified in the summary judgment context. In a summary judgment motion in ‘an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ (Citation.)” (Serri, supra, 226 Cal.App.4th at 861.) “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’” (Id. citing Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [italics original].)

1st COA: Age Discrimination

The FEHA prohibits an employer from discriminating against an employee in terms of his or her conditions of employment, because of his or her age or physical disability. (Gov. Code, § 12940, subd. (a).) In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (See Sandell v. Taylor-Listun, Inc. (2010), 188 Cal.App.4th 297, 321.)

2nd COA: Physical Disability Discrimination

The FEHA prohibits discrimination due to membership in a protected class. (Gov. Code § 12940(a). The provision extends to terminating a person’s employment or discriminating against the person in compensation or in terms, conditions, or privileges of employment. (Id.) A prima facie case for disability requires the plaintiff to prove that “he or 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[.]” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

No Adverse Employment Action

Defendant alleges that Plaintiff cannot establish that he suffered an adverse employment action due to the purported age discrimination.

Plaintiff alleges that he suffered an adverse employment action by virtue of his constructive termination, by having his assigned workload doubled, because of the manner in which Defendant responded to Plaintiff’s right knee injury and the fact that Plaintiff was cited while doing paperwork after injuring his left knee. The Court examines each contention in turn.

i. Constructive Discharge is Not Adequately Proven by Plaintiff

“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.)

Plaintiff failed to provide sufficient evidence to support a claim he was forced to retire because work conditions were “so intolerable” that a reasonable person in Plaintiff’s position would be compelled to retire. (See Turner, supra, 7 Cal.4th at 1238.) Plaintiff offers no evidence to rebut Defendant’s assertion that in 2018 and 2019 work assignments were evenly divided amongst all inspectors. (UMF 86, 87.) Plaintiff admits that he made no complaints about the double workload in 2018 and 2019. (Plaintiff’s Ex. 1 [Hatcher Depo, V.I 160:11-161:4.) As noted above, Plaintiff admits that he did not seek a disability accommodation in 2018 and 2019 despite the double workload because it was unnecessary. (PMF 42, 43.)

Accordingly, Plaintiff cannot show that his workload assignments constituted an “intolerable” work condition that forced him to retire.

Furthermore, speculation that the computer issues and glitches would be fixed, that Plaintiff would be expected to complete his double workload and would eventually be written up for failing to do so, is not evidence that an adverse employment did in fact take place. Plaintiff’s alleged future injury, in the form of being written up in the future, is not ripe and does not support the assertion he suffered a constructive discharge.

Moreover, the fact that Plaintiff was constantly asked about when he was going to retire, by both his fellow employees and his supervisor, Carver, may suggest a discriminatory animus but the comments do not amount to an adverse employment action. (PMF 16, 24.) Plaintiff does not dispute the fact that discussions regarding retirement were fairly common among City employees because of the economic climate and the fact that many firefighters were retiring. (UMF 93.) Questions about when Plaintiff was going to retire are sufficient to raise a “suspicion of discriminatory animus and does not amount to substantial evidence of discriminatory animus necessary to defeat a summary judgment motion.” (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 428; see also Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 867-868.)“Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable[.]” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054–1055.)

ii. 2017 Incident and 2018 Citation

Plaintiff states he suffered an adverse employment action in 2018 when during an inspection he slipped on the cardboard on the floor and re-aggravated his left knee and was then written up for sitting down while he did paperwork after the inspection was over. (PMF 51, 52.) Plaintiff does present evidence that the citation resulted in a “substantial adverse change in the terms and conditions of plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) Plaintiff does not explain or provide facts to show that the citation materially affected his job performance or opportunity for advancement.

Lastly, Plaintiff makes references to conduct that occurred in 2017 regarding the City’s requirement that Plaintiff undergo a FCE as evidence of discriminatory animus. Although the statute of limitations had passed for conduct occurring in 2017, the Court may properly consider the conduct as evidence of a pattern or practice of discriminatory conduct. (See
Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421.) The evidence may be used to show that in 2018, Carver continued to act with discriminatory animus in citing Plaintiff for sitting down after an inspection was over and after he had re-aggravated his left knee. However, the evidence is immaterial in the absence of evidence that the citation materially affected Plaintiff’s job performance and prospects for advancement or promotion. “[T]he retaliation must result in a substantial adverse change in the terms and conditions of the plaintiff's employment. A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)

Therefore, Plaintiff cannot prove that an adverse employment action took place to support his claim of age and disability discrimination. Plaintiff has failed to provide substantial evidence to defeat Defendant’s Motion for Summary Judgment. “[I]t is incumbent upon the employee to produce ‘substantial responsive evidence’ demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer. (Citation.)” (Serri, supra, 226 Cal.App.4th at 862.)

Summary adjudication is GRANTED as to the first and second causes of action.

CONCLUSION

Defendant’s Motion for Summary Judgment is GRANTED.

Defendant to give notice.