Pending - Other Pending
Labor - Wrongful Termination
ALAN S. ROSENFIELD
LOS ANGELES CITY OF
DOES 1 TO 25
LENCEK SALISBURY & ASSOCIATES
FEUER MICHAEL N. CITY ATTORNEY
1/30/2018: PLAINTIFF?S FIRST AMENDED COMPLAINT FOR DAMAGES: (1) UNLAWFUL DISCRIMINATION BASED UPON DISABILITY IN VIOLATION OF FEHA ? GOV?T CODE ? 12940, ET. SEQ. (2) FAILURE TO PREVENT UNLAWFUL DISCRIMINATION IN
2/6/2018: PROOF OF HAND DELIVERY
2/22/2018: NOTICE OF CANCELLATION OF HEARING ON DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT; NOTICE OF INTENT TO FILE DEMURRER AND MOTION TO STRIKE PLAINTIFF?S FIRST AMENDED COMPLAINT
2/26/2018: CIVIL DEPOSIT
2/26/2018: PLAINTIFF ANGELIQUE PINKSTAFF'S NOTICE OF POSTING JURY FEES
2/27/2018: Minute Order
2/28/2018: DECLARATION OF MEET AND CONFER COMPLIANCE BY STACEY ANTHONY IN SUPPORT OF DEFENDANT'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT FOR DAMAGES
2/28/2018: DEFENDANT CITY OF LOS ANGELES' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ANGELIQUE PINKSTAFF'S FIRST AMENDED COMPLAINT; ETC.
2/28/2018: DEFENDANT CITY OF LOS ANGELES' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE PLAINTIFF'S COMPLAINT
2/28/2018: DEFENDANT CITY OF LOS ANGELES' NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT; ETC.
3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
4/25/2018: NOTICE RE: CONTINUANCE OF HEARING
4/25/2018: NOTICE RE: CONTINUANCE OF HEARING
5/1/2018: NOTICE OF CONTINUANCE OF HEARING ON DEMURRER, MOTION TO STRIKE AND CASE MANAGEMENT CONFERENCE
5/8/2018: PLAINTIFF ANGEL1QUE PINKSTAFF?S OPPOSITION TO DEFENDANT?S DEMURRER TO PLAINTIFF?S FIRST AMENDED COMPLAINT
5/8/2018: PLAINTIFF ANGELIQUE PIN KSTAFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE PORTIONS OF PLAINTIFF?S FIRST AMENI)ED CO MP LA IN 1?
DocketDeclaration (Amended Decl of james E. Rosenberg, MD ISO COLA's Motion to Compel A Mental Examination of Pf angelique Pinkstaff); Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketMotion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion; Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketDeclaration (of James E. Roseberg, MD ISO COLA's Motion to Compel A Mental Examination of Pf Angelique Pinkstaff); Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketSeparate Statement; Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketDeclaration (of Stacey Anthony ISO COLA's Motion to Compel A Mental Examination of Pf Angelique Pinkstaff); Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketMemorandum of Points & Authorities; Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 37; Post-Mediation Status Conference - Not Held - Continued - Party's Motion[+] Read More [-] Read Less
DocketNotice (of Continuance of Post Mediation Status Conference); Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketMinute Order ( (Post-Mediation Status Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk[+] Read More [-] Read Less
DocketDEFENDANT CITY OF LOS ANGELES' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS DEMURRER TO AND MOTION TO STRIKE PLAINTIFF'S COMPLAINT[+] Read More [-] Read Less
DocketDeclaration; Filed by Defendant/Respondent[+] Read More [-] Read Less
Docket(AMENDED) DECLARATION OF STACEY ANTHONY EXTENDING TIME TO FILE A RESPONSIVE PLEADING PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41[+] Read More [-] Read Less
DocketDECLARATION OF STACEY ANTHONY EXTENDING TIME TO FILE A RESPONSIVE PLEADING PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41[+] Read More [-] Read Less
DocketMiscellaneous-Other; Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketProof-Service/Summons[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by Angelique Pinkstaff (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT FOR DAMAGES: (1) UNLAWFUL DISCRIMINATION BASED UPON DISABILITY IN VIOLATION OF FEHA GOV'T CODE 12940, ET. SEQ. ETC[+] Read More [-] Read Less
Case Number: ****5458 Hearing Date: November 13, 2019 Dept: 37
HEARING DATE: November 13, 2019
CASE NUMBER: ****5458
CASE NAME: Angelique Pinkstaff v. City of Los Angeles, et al.
MOVING PARTY: Defendant, City of Los Angeles
OPPOSING PARTY: Plaintiff Angelique Pinkstaff
TRIAL DATE: January 28, 2020
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary Judgment, or in the Alternative, Summary Adjudication
OPPOSITION: October 30, 2019
REPLY: November 8, 2019
TENTATIVE: Defendant’s Motion for Summary Judgment, or in the Alternative for Summary Adjudication, is DENIED. Counsel for Plaintiff to give notice.
This case arises out of Plaintiff Angelique Pinkstaff’s (“Plaintiff”) employment as an Administrative Clerk at the City of Los Angeles – Department of Transportation. The First Amended Complaint (“FAC”) alleges that Defendant City of Los Angeles – Department of Transportation (“LADT”) subjected Plaintiff to unlawful discrimination and retaliation based upon Plaintiff’s disability.
In the FAC, Plaintiff alleges eight causes of action for: (1) discrimination violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to prevent discrimination in violation of the FEHA; (3) retaliation in violation of the FEHA; (4) failure to accommodate disability in violation of the FEHA; (5) failure to engage in the interactive process in violation of the FEHA; (6) intentional infliction of emotional distress in violation of the FEHA, (8) negligent infliction of emotional distress in violation of the FEHA.
On June 20, 2018 the court sustained LADT’s demurrer to Plaintiff’s fourth, fifth, sixth and seventh causes of action with leave to amend and granted Defendant’s motion to strike as to the allegations related to Plaintiff’s request for punitive damages. The court overruled the demurrer as to the first, second and third causes of action.
On August 8, 2018, the court sustained Plaintiff’s demurrer to LADT’s second and third affirmative defenses with leave to amend. The court also sustained the demurrer to LADT’s thirty-ninth and forty-third affirmative defenses without leave to amend, and otherwise overruled Plaintiff’s demurrer. LADT filed its amended answer on August 21, 2018.
Defendants LADT now moves for summary judgment, or in the alternative, summary adjudication (“MSJ”) on the following six issues:
Issue 1: Plaintiff’s cause of action for disability discrimination fails because she is not a qualified individual.
Issue 2: Plaintiff’s cause of action for disability discrimination fails because she has no evidence that the City’s actions were based on Plaintiff’s protected status.
Issue 3: Even if Plaintiff were to meet her prima facie showing of discrimination, which she cannot, it is undisputed that the City's actions were based on her admitted misconduct, which constitutes a legitimate, non-discriminatory reason.
Issue 4: Plaintiffs second cause of action for failure to prevent discrimination is completely derivative of her cause of action for discrimination. Because these underlying cause of action fails for the reasons identified in Issues 1 through 3, this derivative cause of action necessarily fails.
Issue 5: Plaintiff's cause of action for retaliation fails because she did not engage in a legally protected act under the Fair Employment and Housing Act.
Issue 6: Even if Plaintiff were to meet her prima facie showing of retaliation, which she cannot, it is undisputed that the City's actions were based on her admitted misconduct, which constitutes a legitimate, non-retaliatory reason.
Plaintiff opposes the motion and objected to the evidence submitted by Defendant.
LADT’s reply reasserts its contentions that Plaintiff was not a qualified individual, had no evidence of LADT’s discriminatory motive and did not engage in protected activity for purposes of a cause of action for retaliation under the FEHA. LADT also asserts that Plaintiff’s opposition improperly attempts to expand the scope of her lawsuit by alluding to allegations of sexual harassment. (Reply, 1-2.) LADT also objects to evidence submitted by Plaintiff.
Overruled: 1, 2 Overruled in-part, Sustained in-part: 3, 6, 7 Sustained: 4, 5
Objection 1: Sustained as to the truth of the matters stated; overruled as to it being part of the information on which the Declarant relied in making the termination decision.
Objection 2: Sustained as to the truth of the matters stated; overruled as to it being part of the information on which the Declarant relied in making the termination decision.
Objection 3-7: overruled.
LADT’s Evidentiary Objections
Overruled: 2-3, 10, 12, 14 Overruled in-part, Sustained in-part: 11 Sustained: 1, 4-8
Objection 9: no objection appears to be stated.
Objection 11: overruled in-part, sustained in-part. Sustained as to “on May 11, 2016, my physician found that my PTSD and MDD had severely exacerbated. She advised that I be placed on continuous FMLA leave commencing May 11, 2016 through May 11, 2017.” Otherwise overruled.
Objection 13: overruled, subject to Defendant identifying inconsistent deposition testimony, which was not done in the objection.
Plaintiff’s Separate Statement
Overruled: 16, 19, 20-37, 39-40, 42-44, 46-49, 51, 54-56, 60-61, 66-67, 85, 87-92, 94-97, 101-102.
Overruled in-part, sustained in-part: 45, 50, 57, 65,
Sustained: 41, 46, 49, 52, 53, 58, 62, 64, 68-83, 93, 100, 103-104
Objection 45: overruled in part, sustained in part. Sustained as to “falsified that Ms. Pinkstaff admitted to consensual sexual relations during her February 2, 2016” interview.
Objection 53: Sustained as to first clause; otherwise not objected to.
Objection 57: overruled in part, sustained in part. Sustained as to “retaliated against Ms. Pinkstaff.”
Objection 65: overruled in part, sustained in part. Sustained as to “even though the City did not have any evidence of sexual misconduct by Ms. Pinkstaff.” Otherwise overruled.
“The purpose of the law of summary judgment 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):
A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(Code Civ. Proc., ; 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., ; 437c, subd. (c).)
“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)
In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):
A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.
(Code Civ. Proc., ; 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Swanson, 232 Cal.App.4th at p. 964.)
California Courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Swanson, 232 Cal.App.4th at p. 965.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (Id. at pp. 965-966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.” (Id. at p. 966.) “[T]o avoid summary judgment [on the second of these two grounds], an employee claiming discrimination must offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Ibid.)
B. Issue 1: Disability Discrimination under the FEHA and Protected Class
To establish a prima facie case for discrimination under the FEHA, a plaintiff must show that “(1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355 (Guz).)
For the purposes of the FEHA,
“(1) “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. "Essential functions" does not include the marginal functions of the position.
(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A) The function may be essential because the reason the position exists is to perform that function.
(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A) The employer's judgment as to which functions are essential.
(B) Written job descriptions prepared before advertising or interviewing applicants for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the function.
(E) The terms of a collective bargaining agreement.
(F) The work experiences of past incumbents in the job.
(G) The current work experience of incumbents in similar jobs.”
(Gov’t Code, ; 12926, subds. (1)-(2).)
LADT contends that Plaintiff cannot establish prima facie case of disability discrimination because she cannot establish that she is a qualified individual. (Motion, 8-10.) Plaintiff contends that she was a qualified individual because she was only on Family Medical Leave Act (“FMLA”) for a fixed period and was never deemed incapable of performing the essential functions of her job as an administrative clerk.
First, LADT contends that Plaintiff has essentially admitted that she is totally disabled, unable to work and thus, not a qualified individual for purposes of claiming disability discrimination under the FEHA. Specifically, LADT points to Plaintiff’s testimony admitting to psychological problems and physical disabilities. (Separate Statement in Support of Defendant’s Motion for Summary Judgment (“DSS”) ¶¶ 27-28.) LADT further points to Plaintiff’ testimony that she became totally unable to work as of May 10, 2016, when she was placed off work for an alleged gynecological issue. (DSS ¶ 27, Exhibit B to LADT’s Compendium of Evidence (Deposition of Angelique Pinkstaff (“Pinkstaff Depo.”), 229:21-230:6, 231:4-11) Finally, LADT points to Plaintiff’ testimony that she has not returned to work as of January 2019. (DSS ¶ 29-30, Pinkstaff Depo, 232:1-3, 36:1-3.)
Plaintiff disagrees with LADT’s contention regarding her total disability and argues that she was a qualified individual because she could perform her regular job duties at the time of termination. (Opposition, 13-15.) Plaintiff points to her own declaration, in which she attests that she was able to type, file, process, fill out forms and answer internal phone calls at the time of her termination. Plaintiff also points to testimony from Tammy Watson, who allegedly testified that an administrative clerk’s job functions included typing, filing, creating and issuing permits, filling out forms, generating reports and answering phones. (Plaintiff’s Separate Statement of Disputed Material Facts (“PSS”) ¶104.) (PSS ¶¶ 27-30; Exhibit C to Plaintiff’s Compendium of Evidence, Declaration of Angelique Pinkstaff (“Pinkstaff Decl.”), ¶ 19.) Plaintiff further attests that her May 10, 2016 FMLA request is evidence that she could return to work by May 11, 2017. (Exhibit L.) Finally, Plaintiff asserts that she was only 70% disabled and points to her own deposition testimony regarding same. (Pinkstaff Depo, 271:5-272:9.)
LADT cites Kennedy v. Applause, Incorporated (9th Cir. 1996) 90 F.3d 1477 in support of its contentions. In Kennedy, the plaintiff, diagnosed with chronic fatigue syndrome, brought an action against her employer, alleging that it violated the Americans with Disabilities Act (“ADA”) in terminating her. (Id. at p.1479.) The Ninth Circuit upheld the judgment granting summary judgment in favor of plaintiff’s employer, and found that plaintiff’s chronic fatigue syndrome diagnosis, together with her sworn statements representing her total disability in applying for social security benefits, created no triable issue of material fact that plaintiff was not qualified for purposes of claiming disability discrimination. (Id. at pp. 1481-1482.)
Viewing the evidence in the light most favorable to Plaintiff, a triable issue of fact exists as to whether Plaintiff was a qualified individual for purposes of disability discrimination under the FEHA. Plaintiff has submitted evidence that her essential job functions included typing, filing, creating and issuing permits, filling out forms and generating reports, and answering phones, and has attested that she was able to perform these functions at the time of her termination without accommodation. LADT has not submitted evidence in dispute of Plaintiff’s declaration that she was able to perform her essential job functions. Instead, LADT primarily relies on the statement of Plaintiff’s physician on May 10, 2016, indicating that she should be off work, and to Plaintiff’s statements that she has not returned to work since May 10, 2016.
LADT contends on reply that Plaintiff’s declaration regarding her ability to perform essential job functions is improper and in direct contradiction to her deposition testimony regarding being placed off work. The court disagrees and finds that Plaintiff’s declaration is not contradictory nor improper. LADT’s cited testimony, taken together, demonstrate that Plaintiff was told by her physician to be “off work” beginning May 2016, and that she has not worked since then. However, Plaintiff does not appear to have been questioned, based on the deposition testimony submitted, about which job functions she could or could not still perform. Instead, Plaintiff’s deposition testimony demonstrates that she was told she should be off work beginning May 2016.
Accordingly, the court DENIES summary adjudication on Issue 1.
C. Issue 2: Prima facie evidence of Discriminatory Intent under the FEHA
LADT contends that Plaintiff has submitted no evidence to support the proposition that she was terminated because of her disability, rather than because of LADT’s investigation into her alleged misconduct. (Motion, 10.) Plaintiff disagrees and contends that she has both direct and circumstantial evidence of LADT’s discriminatory intent. (Opposition, 15-16.)
LADT relies on the Declaration of Tammy Watson for its contentions, as well as Plaintiff’s testimony that her requests for medical leave were all granted. Tammy Watson attests that (1) she was the Personnel Director II from March 2015 through February 2018, (2) the Personnel Department began investigating various employees following a series of complaints in 2015, (3) Plaintiff was identified as a “possible witness and potential wrongdoer” during this investigation and was interviewed, (4) disciplinary action was initiated against Plaintiff “based on the statements” she made, (5) Plaintiff was proposed for discharge “based on the seriousness of the offenses” she allegedly admitted to, and (6) Plaintiff’s proposed discharge was “based solely on her misconduct.” (Declaration of Tammy Watson (“Watson Decl.”, ¶¶ 1-5.)
In response, Plaintiff argues that she has direct evidence of discriminatory motive because, while she was on intermittent FMLA leave, her immediate supervisor emailed another City of Los Angeles employee requesting to have Plaintiff removed based on Plaintiff’s sporadic hours. However, Plaintiff does not submit evidence in support of this argument. Plaintiff further argues that she has circumstantial evidence of discriminatory intent because she was placed on administrative leave three weeks after being approved for continuous FMLA leave. (PSS, ¶¶ 147-149; Pinkstaff Depo, 154:9-14; Deposition of Tammy Watson (“Watson Depo”), 331:6-9.)
Viewing the evidence in the light most favorable to Plaintiff, a triable issue of fact exists as to whether LADT had discriminatory motive in taking employment action against Plaintiff. The Declaration of Tammy Watson, as a whole, does not establish sufficient foundation or personal knowledge for its statements that Plaintiff was terminated solely because of misconduct and due to her disability. While Plaintiff submits no evidence in support of her contention regarding direct discriminatory intent, it is undisputed that LADT did place Plaintiff on administrative leave three weeks after her request for continuous FMLA leave. Thus, a triable issue exists as to whether LADT’s conduct constitutes circumstantial evidence of discriminatory motive.
Accordingly, the court DENIES summary adjudication on Issue 2.
D. Issue 3: LADT’s Defense to Disability Discrimination under the FEHA
An employer can meet its initial burden on summary judgment for a FEHA cause of action by offering a legitimate, nondiscriminatory reason for taking employment action or terminating the employee. (See Guz, supra, 24 Cal.4th at pp. 334, 357-358.) “ ‘[L]egitimate’ reasons … are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Id. at p. 358, emphasis in original.) An employer’s legitimate reasons “need not necessarily have been wise or correct.” (Ibid.)
Once an employer has identified a legitimate, nondiscriminatory reason for its conduct, “an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Dep’t of Soc. Servs. (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).) “It is not enough for the employee simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse action were sound.” (Id. at p. 1005.) “The 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. Rather, 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 ‘that the employer did not act for the [the asserted] non-discriminatory reasons.’ ” (Ibid., internal citations and brackets omitted.)
LADT contends that Plaintiff’s discharge was due solely to her misconduct in the workplace and, as such, not discriminatory. (Motion, 12-13, citing DSS ¶¶ 47-48, 97-98.) LADT further contends that Plaintiff cannot offer evidence showing that its actions were pretextual. Specifically, LADT asserts that its investigation was properly conducted and found that Plaintiff engaged in misconduct including falsifying hours and having sexual relations with her supervisors. (Compendium in Support of Motion, Exhibits F, J.) LADT further asserts that Plaintiff admitted to this misconduct, pointing to Plaintiff’s deposition testimony. (DSS, ¶¶ 49, 50, 99, 100; Compendium in Support of Motion, Exhibit B, 129:7-9 [asked about hours worked], 93:3-16 [sometimes paid for more hours than worked], 133:14-21 [engaging in sexual relations with both employees].)
Plaintiff testified as follows with respect to each alleged misconduct:
Paid for more hours than worked:
Q: “Okay. And is your testimony today that you never - - well, let me ask you this question. Did you ever notice any difference in your check when he put in your D-time?
A: There were definitely a couple of times.
Q: And when you say- - what did you notice?
A: maybe I got paid for more hours than I did.
Q: So you noticed - - when you say for more hours that you did, is that overtime or for more hours that you worked?
A: It’s whatever. It would be overtime or regular time, but there were times where I would ask him about the D-time and he told me to leave it alone, to don’t worry about it, and that he already approved my timesheet.
(Compendium in Support of Motion, 93:3-16.)
Q: Okay. So after he asked you, that’s when you informed him that you were having a sexual relationship with both gentlemen; is that accurate?
A: Yeah. He kept asking me.
Q: Okay. And then you finally said yes?
A: “I hesitated answering the question for maybe, like, thirty-seconds or something, and that’s when I told him that I was having sexual relations with Dale and Eric.
(Compendium in Support of Motion, 133:14-21.)
Plaintiff disagrees and argues that LADT had no legitimate reason for taking adverse employment action. (Opposition, 18-19.) Plaintiff argues that any statement she allegedly made during the investigation admitting to consensual sexual relationships with her supervisors were falsified. (Compendium in Support of Opposition, Exhibit H, 52:13-18, 54:2-12, 85:12-88:17.) Plaintiff points to her own testimony during the internal investigation, wherein she agreed to investigator, Steve Davey’s question, which reads as follows: “I guess you said earlier it was friendly. It was a mutual thing, right?” (Compendium in Support of Opposition, Exhibit E, 38:9-12.) Plaintiff also argues that LADT had discriminatory motive for taking employment action against her and submits as evidence testimony from Tammy Watson, who testified as follows:
Q: “Okay, so to you, this says, “if she’s in unpaid status, I don’t mind as much if she stays off a year”; what that means to you is he’s saying, “I don’t mind as much as if she were in paid status and was staying off a year”; is that correct?
A: “If I’m guessing, yes.”
(Compendium in Support of Opposition, Exhibit F, Deposition of Tammy Watson, 350:22-351:4.) Plaintiff argues that generally, the Opposition demonstrates her argument that the LADT had no legitimate reasons to take employment action against her.
Viewing the evidence in the light most favorable to Plaintiff, a triable issue of fact exists as to whether LADT had a legitimate, nondiscriminatory reason to take employment action against Plaintiff. LADT points to Plaintiff’s testimony for the proposition that she admitted to her various alleged misconduct, including allegedly falsifying her hours and alleging engaging in consensual sexual relations with her supervisors. However, Plaintiff disputes that her statements should be construed as admitting to misconduct. Viewing her testimony in the light most favorable to Plaintiff, her statements fail to demonstrate that she admitted to misconduct rather than simply agreeing that the conduct occurred.
Accordingly, the court DENIES summary adjudication on Issue 2.
E. Issue 4: Failure to Prevent Disability Discrimination in Violation of the FEHA
The fifth cause of action is for failure to provide an environment free from discrimination and retaliation under Government Code section 12940. (Gov’t Code, ; 12940, subd. (k).) “An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’ [Citation]” (Scotch v. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)
It is undisputed that Plaintiff’s cause of action for failure to prevent disability discrimination is derivative of Plaintiff’s causes of action for disability discrimination under the FEHA. Having found triable issues of material fact as to the first three issues regarding Plaintiff’s disability discrimination cause of action, the court finds a triable issue of material fact and hereby DENIES summary adjudication as to Issue 4.
F. Issue 5: Retaliation for Plaintiff’s Protected Activity under the FEHA
In order to establish a prima facie case of retaliation under the FEHA, “a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
LADT contends that Plaintiff cannot establish a prima facie case of retaliation because she cannot establish that she engaged in protected activity under the FEHA. (Motion, 10-11.) LADT contends that Plaintiff only submits evidence in support of having made an “informal complaint” regarding sexual harassment. (FAC, ¶¶ 71-72.) LADT points to Plaintiff’ testimony at her interview with Steve Davey and at her deposition for the proposition that she admitted to engaging in consensual sexual relations with her supervisors. (DSS, ¶ 81; Compendium in Support of Motion, Exhibit I (Interview Transcript) 38:9-12, 38-2-8; Exhibit B, 261:1-6.)
LADT further contends that Plaintiff’s allegation of being retaliated against for seeking accommodation does not constitute retaliation under the FEHA. Plaintiff does not submit any evidence in opposition to this contention.
Plaintiff disagrees and contends that she complained of alleged sexual harassment by supervising employees on February 2, 2016. Plaintiff points to her own deposition testimony, wherein she testified as follows:
Q: “Okay. Did you report this behavior to anyone in the City of Los Angeles?”
A: “I did report this behavior on February 2, 2016.”
(Compendium in Support of Opposition, Exhibit B (Pinkstaff Depo.), 71:15-17.)
Plaintiff further asserts that she made a formal written complaint of harassment to Tammy Watson on June 28, 2016 and points to her email of the same date. (Compendium in Support of Opposition, Exhibit O (Email Complaint).)
Plaintiff also disputes LADT’s assertions that she admitted to consensual sexual relations. (Opposition, 4.) Specifically, Plaintiff asserts that she never testified to engaging in consensual sexual relations but, rather, that she agreed to a question as to whether her “association” with both men were “friendly – a mutual thing.” (Compendium in Support of Opposition, Exhibit E (Interview Transcript), 38:9-12.) Plaintiff also asserts that she merely agreed to a question which reads as follows: “and you’ve engaged in sexual activity in his office at work; correct?” (Id., 11:20-22.)
Viewing the evidence in the light most favorable to Plaintiff, a triable issue of fact exists as to whether Plaintiff engaged in protected activity under the FEHA by making complaints about alleged sexual harassment by her supervisors. As in CASE, the court finds that Plaintiff need not know the significance of her complaints, whether formal or informal, at the time she makes them to her employer. LADT contends throughout the motion that Plaintiff has admitted to sexual misconduct, but Plaintiff disputes that her statements should be viewed as admissions of misconduct. To the contrary, Plaintiff’s statements merely demonstrate that she was agreeing to the questions posed to her by investigator Steve Davey and at her deposition.
Accordingly, the court DENIES summary adjudication on Issue 2.
G. Issue 6: LADT’s Defense to Retaliation under the FEHA
Having found that a triable issue of material fact exists as to whether LADT took employment action against Plaintiff for a nondiscriminatory reason, the court hereby finds that a triable issue of material fact exists as Issue 6.
Accordingly, the court DENIES summary adjudication on Issue 2.
For these reasons, the court DENIES the motion. Plaintiff’s counsel to give notice.
 The court only need rule on the evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc., ; 437c, subd. (q).)