Tentative Rulings

Case Number: ****8745    Hearing Date: November 19, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendant County of Los Angeles’ Motion for Summary Judgment or Summary Adjudication is GRANTED.

Factual Background

This is an action for disability discrimination. The Complaint alleges as follows. Plaintiff Cruz Casas (“Casas”) was employed by Defendant County of Los Angeles (“County”) as a peace officer beginning in April, 1999. (Compl. ¶¶ 1, 14.) In May 2016, Casas was criticized by his superior, Lt. Subler, for his reporting after an incident involving an inmate. (Compl. ¶¶ 16-17.) On June 5, 2016, a meeting with Lt. Subler, wherein he berated Casas, caused Casas to suffer a panic attack. (Compl. ¶ 17.) Casas went to the emergency room the following day where hospital placed Casas on sick leave for three days. (Compl. ¶¶ 17-18.) On June 16, 2016, Casas went on leave from work, where he remained until April, 2017. (Compl. ¶ 20.) In January 2017, Casas’ doctors cleared him to return to work with the restriction to work in a different facility. (Compl. ¶ 23.) The County offered to transfer Casas with a demotion, retire, or remain in his original position; Casas accepted the option to transfer with a demotion. (Compl. ¶¶ 24-25.) The Complaint further alleges discrimination, harassment, and retaliation based on Casas’ disability by his supervisors. (Compl. ¶¶ 29-30.)

procedural history

Casas filed the Complaint on March 21, 2019, alleging four causes of action:

1. FEHA Failure to Engage in the Interactive Process

2. FEHA Failure to Accommodate

3. FEHA Discrimination

4. FEHA Retaliation

County filed an Answer on April 19, 2018.

County filed the instant Motion for Summary Judgment on July 19, 2019.

Casas filed an Opposition on October 15, 2019.

County filed a Reply on October 24, 2019.

Discussion

1. OBJECTIONS

   Casas objects to various of County’s evidentiary materials submitted in support of their motion. Objections 1-5 are DENIED. The statements to which objection are made are admissible not for the truth of the matter stated that as background for the reason the officers took the actions they did. Objection 6 is denied because the document in question has been adequately authenticated as a true and correct copy of the document in question

2. JUDICAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure ;438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). Judicial notice may be taken of “(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code ; 452.)

County request that this Court take judicial notice of the Los Angeles County Civil Service Rules 12.01, 12.02, 17.04, and 18.08.

The Court GRANTS the request for judicial notice.

1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. ; 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. ; 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. ; 437c, subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden, inter alia, by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc. ; 437c(p)(2).) What this means in practice is that if a cause of action, such as fraud, for example, requires proof of five elements, one of which is reliance, and if Defendant sets forth a prima facie case that reliance cannot be proven (either by citation to plaintiff’s deposition testimony, written discovery responses or other means), then Defendant has met its burden.

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere 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 that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

County, here, moves for summary judgment on all causes of action.

1. FEHA Discrimination

The Complaint alleges that Casas was discriminated against by County for “reporting and speaking out against wrongful and discriminatory treatment based on his disability, speaking out against improper conduct, and for generally attempting to protect and secure his rights and the rights of others under the FEHA.” (Compl. ¶ 46.) Casas alleges that as a result of this conduct, he suffered losses in earnings and employment benefits, in addition to physical and mental effects. (Compl. ¶¶ 49-50.)

County moves for summary judgment on the Third Cause of Action – FEHA Discrimination on the grounds that Casas’ restriction is not a qualifying disability under FEHA, that he did not suffer any adverse employment action, that there was no discriminatory intent, and that the County’s offers were based on legitimate business reasons. (Motion at 18-21.)

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.)

“On a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination based upon physical disability, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer has done so the plaintiff must offer evidence that the employer's stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

1. FEHA Disability

The first element of the prima facie case of disability discrimination under FEHA is that the employee must show that he suffered from a disability. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 378.)

County presents evidence that Casas admitted does not know if he has been diagnosed with a disability, and that Casas admitted that he was not diagnosed with depression or post-traumatic distress disorder. (PUMF ¶¶ 414-415.) County presents evidence of Casas’ deposition, which Casas does not dispute, where Casas was asked if Dr. Halote diagnosed him with anything, and if he was diagnosed with depression after the incident with Lt. Subler, and both times Casas said “I don’t know.” (Plaintiff’s Evidence, Exh. B, p. 261:12-23; p. 254:18-23.)

In his Opposition, Casas argues that he had a FEHA-recognized disability because he was diagnosed with a panic attack, acute stress disorder, and an adjustment disorder. (Opposition at p. 12.) In Casas’ declaration, he declares that Dr. Halote “identified that I was suffering from acute stress disorder and adjustment disorder.” (Casas Decl. ¶ 16.) However, this declaration contradicts his own deposition that he did not know if he had a diagnosis.

“When an admission, made during discovery, becomes relevant to the determination, on motion for summary judgment, of whether there exist triable issues of fact, such admission of the party opposing summary judgment is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)

Pursuant to the D’Amico standard, the Court must give difference to the admission made by Casas during his deposition that he did not know if he had a diagnosis.

Furthermore, the facts alleged by Casas, even if true, fail to establish that he suffered from a disability under FEHA. Under FEHA, the term “disability” is defined broadly as requiring only a “limit” on a major life activity. (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022.) While FEHA’s definition does include mental health conditions, California courts have held, exactly on all fours with the instant case, “that an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a mental disability under FEHA.” (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 85, emphasis in original.) In Higgins-Williams, the plaintiff and her doctor determined that plaintiff was unable to work under her supervisors due to anxiety, stress related to the standard oversight of plaintiff’s job performance, and having an adjustment disorder with anxiety. (Id. at p. 84.) The court found that plaintiff’s condition, precisely the inability to work under a particular supervisor given the stress, anxiety and adjustment disorder diagnoses, did not rise to the level of a FEHA-recognized disability. (Id. at p. 85.)

The same is true in this case. D’Amico standard, aside, Plaintiff has failed to present sufficient evidence that his condition, bearing the same alleged diagnoses as in Higgins-Williams, rises to the level of a FEHA-recognized disability. Casas has not presented any evidence that his condition goes beyond the inability to work under a particular supervisor. In fact, the doctors’ notes which Casas provided when he requested to return to work, specifically requested that he could not return to his previous job site due to his concerns about interacting with his previous supervisors. (Casas Decl. ¶ 16, Exhs. 7-8 [“I told Dr. Halote that, although I had concerns about returning to MCJ because Lt. Subler was there, I wasl (sic) also worried about going back to MCJ because Captain Dempsey and Captain Del Valle worked there”].)

Accordingly, the Court finds that Plaintiff has failed to establish the existence of a FEHA-recognized disability. The Motion for Summary Judgment is GRANTED as to the Third Cause of Action – FEHA Discrimination.

1. FEHA Failure to Engage in Good Faith Interactive Process and Failure to Accommodate

The Complaint alleges that the County “failed and refused to participate in a timely good-faith interactive process with Plaintiff to determine what reasonable accommodations could be made” and “failed to provide Plaintiff with a reasonable accommodation for his disabling physical condition.” (Compl. ¶¶ 35, 40.)

County moves for summary judgment on these causes of action, arguing that Casas did not have a disability under FEHA, that Casas did not engage in the interactive process in good faith by identifying accommodations that did not violate department policy, and that County engaged in the interactive process by “evaluating and offering numerous accommodations to assist Plaintiff with his claimed disability.” (Motion at pp. 23-24.)

Government Code section 12940, subsection (n) “declares it an unlawful employment practice for an employer ‘to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.’” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961–962.) A prerequisite to liability under section 12940, subsection (n) is whether a reasonable accommodation is available, and the burden is on the employee to prove so. (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at 984.)

As discussed above, the Court has found that Casas did not have a FEHA-recognized disability. However, California courts have held that a Plaintiff need not necessarily have a FEHA-recognized disability to prevail on a claim for failure to engage in the interactive process. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243.) As long as the employer regards the employee as disabled, then a good faith interactive process is required. (Id. at p. 244 [“a pretextual termination of a perceived-as-disabled employee's employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process”].)

Here, Lt. Morgan was aware that Casas had taken time off work for stress and felt anxiety at work. (UMF ¶ 211.) Further Chief Dempsey declared that he knew that Casas had taken time from work on “stress leave.” (Dempsey Decl. ¶ 6.) Although neither party indicated a belief that Casas was “disabled,” the County appears to have been operating under the belief that Casas was disabled. In Dempsey’s deposition, he offered Casas disability-based retirement, and he also referenced various disabled employee return-to-work policies, indicating a belief that Casas was disabled. (UMF ¶¶ 124-125.) Accordingly, this cause of action may continue without a FEHA-recognized disability.

To prevail on a claim for failure to engage in the interactive process, an “employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018.)

Here, County has put forth evidence that it engaged in dialogue with Casas about his restrictions and reasonable accommodations. In Lt Morgan’s declaration, Morgan declares that she spoke with Casas by phone in 2016 and presented several options for his return including placing him on a different floor and shift than Lt. Subler, providing him with an official mentor, providing opportunities to train with the training unit to learn to deal with common incidents, providing opportunities to work with the compliance unit to learn how to prepare Use of Force packages (the type of report Lt. Subler berated him for), providing conflict resolution with Lt. Subler, and providing the number for Employee Support Services. (Morgan Decl. ¶ 6.) Further, when Casas was preparing to return to work, Chief Dempsey met with Casas in-person and discussed the options that were available to him given his probationary status and the department’s policies, which included: returning to work in the same position that he left (same location at Men’s Central Jail and same title) to complete his probationary period from prior to his medical leave, transfer to another facility with a demotion because the probationary period has not been satisfied, or taking disability retirement. (Dempsey Decl. ¶ 14.) County has provided evidence that it further took into account Casas’ previous interactions with Lt. Subler with regards to its first option for Casas, and Dempsey informed Cass that Lt. Subler no longer worked at Men’s Central Jail and informed him of offered support services and mentorship programs to assist him with the transition. (Dempsey Decl. ¶¶ 15-16.) County also presents evidence of completed forms entitled “Interactive Process Meeting” dated April 13, 2017 which represented that Casas requested to not work more than 40 hours per week for the first two weeks and the accommodation was accepted. (County Evid., Exh. D, p. 12.)

Casas argues that the interactive process was insufficient because he alleges that his meeting with the department only lasted 15-30 minutes and consisted entirely of the department’s agenda of “no accommodation for you” and “forcing Plaintiff to demote in order to continue working.” (Opposition at p. 19.) An employee must identify a viable reasonable accommodation that he is seeking. (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1018.) Although Casas does not argue explicitly in his motion which accommodation he is seeking, it is clear that Casas sought to retain his title but transfer locations despite not completing the probationary period. The employee must identify a specific, available reasonable accommodation. (Id. at 1019.) FEHA provides a non-exhaustive list of reasonable accommodations, which include: job restructuring, offering part-time or modified work schedules, reassigning to a vacant position, adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters and “other similar accommodations for individuals with disabilities.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.)

An employer does not violate the duty to engage in the interactive process in good faith merely for denying an employee’s request. (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1019 [“it would be unfair to expect an employee in the workplace to unilaterally identify reasonable accommodations”].) An employer is not required to chose the best or the specific accommodation requested by an employee. (Wilson v. County of Orange, supra, 169 Cal.App.4th at 1193.) The employer has discretion to chose an effective reasonable accommodation. (Id. [“[A]n employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided”].)

Here, Casas was told that the County’s department policies would not allow the accommodation that Casas requested because he had not completed his probationary period. (UMF ¶¶ 81-87.) Although Casas argues that the policy could have accommodated him, and cites various portions of policies that indicate that exceptions to the policies may be made, the fact remains that the employer has discretion in determining what is a reasonable accommodation. (Plaintiff’s Separate Statement, UMF ¶¶ 82-88.) There is significant evidence as to why County determined, based on its own policies, that Casas could not be transferred with his original title due to his failure to complete the probationary period. (See, e.g., Plaintiff’s Evid. Exh. A, 186:22-187:8.) Further, County offered Casas his exact original position and job site location, which indicates a willingness to accommodate Casas to allow him to return to work. Even more, in Casas’ deposition, he acknowledged the policy and acknowledged that a “hardship” memo request is needed for transfers during the probationary time, but that Casas did not submit a hardship memo. (Plaintiff’s Evid., Exh. A, 172:23-173:9.) Casas has not identified another accommodation that County should have offered him other than allowing him to transfer with his title.

County has carried its burden in showing that it engaged in the interactive process in good faith, and that it did fail to reasonably accommodate Casas.

Accordingly, the Motion for Summary Judgment is GRANTED for the First and Second Causes of Action, Failure to Engage in the Interactive Process and Failure to Accommodate.

1. FEHA Retaliation

FEHA makes it unlawful for the employer to discharge or discriminate against an employee because he or she has “opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, ; 12940, subd. (h).) “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]” (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at 380.)

“Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68, 105 Cal.Rptr.2d 652.) 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. (Ibid.)” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

1. Protected Activity

The Complaint alleges that County retaliated against Casas for participating in the alleged protected activities of: “speaking out against inappropriate workplace behavior, reporting and speaking out against wrongful and discriminatory, harassing, and retaliatory treatment based on his disability, speaking out against improper conduct, and for generally attempting to protect and secure her rights and the rights of others under the FEHA.” (Compl. ¶ 53.)

Pursuant to Government Code section 12940, subsection (h), protected activities include opposing any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. (Gov. Code, ; 12940.) “[T]his part” includes all FEHA sections including discrimination in hiring, termination, training, as well as harassing, discharging, expelling, or discriminating against a person for making a report. (Gov. Code, ; 12940.)

Casas has presented evidence of speaking out against Lt. Subler’s behavior, however, Casas has not presented any evidence of speaking out against treatment based on a disability nor has he presented any evidence regarding protecting and securing the rights of others. (UMF ¶¶ 45-46, 50.) Casas has not presented any evidence that he was engaged in a protected activity in speaking out regarding hiring, termination or training. Casas’ Opposition motion argues that the protected activity was in seeking an accommodation for his work restriction (Opposition at p. 17), although this is not specifically alleged in the Complaint and the Complaint does not allege any further protected activity beyond reporting Lt. Subler’s behavior. Nonetheless, requesting a reasonable accommodation on the basis of a disability is considered a protected activity. (Gov. Code, ; 12940(m)(2); Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1049.)

1. Adverse Employment Action

Adverse employment actions are not limited to termination, rather, such action must “materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 367, review denied (Feb. 14, 2018).)

Casas argues that his title demotion, as a requirement for transferring locations, was an adverse employment action. (Opposition at p. 18.) On the other hand, County presents evidence that it offered Casas his exact original position but that Casas chose to take the demotion in order to transfer locations. (Motion at pp. 22-23; Plaintiff’s Evid. Exh. B, 274:16-22, Exh. D.) County further presents evidence that Casas voluntarily chose to take a demotion in order to transfer locations, although he had the option to remain in his original role with the original pay and title. (Plaintiff’s Evid. Exh. D, p. 4; Exh. H Dempsey Decl. ¶ 17.) Accordingly, the Court finds that Casas did not suffer an adverse employment action because he was offered his exact job back upon request to return to work. The fact that Casas chose to take a demotion in order to transfer work sites is unrelated, particularly because Lt. Subler no longer worked at the original site, making the offer to return a reasonable option.

If a prima facie case is established, the employer is required to offer a legitimate, nonretaliatory basis for the adverse employment action in order to shift the burden back to the plaintiff, who must then prove intentional retaliation. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 298.) Assuming arguendo that Casas did suffer an adverse employment action, County has further provided sufficient evidence for nonretaliatory reasons for not allowing Casas to retain his title when requesting a transfer. County has provided extensive evidence of the department’s policies which plainly require the probationary period to be satisfied before transfer. The Court finds that County has sufficiently established a non-retaliatory reason for not allowing Casas to transfer with his title prior to completing the probationary period.

Accordingly, the Motion for Summary Judgment is GRANTED as to the Fourth Cause of Action – FEHA Retaliation and the Motion for Summary Judgment is granted on all causes of action

Defendant to give notice and prepare proposed judgment.

DATED: November 19, 2019

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: ****8745    Hearing Date: October 28, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendant County of Los Angeles’ Motion for Summary Judgment or Summary Adjudication on Causes of Action 1-4 is GRANTED.

Factual Background

This is an action for disability discrimination. The Complaint alleges as follows. Plaintiff Cruz Casas (“Casas”) was employed by Defendant County of Los Angeles (“County”) as a peace officer beginning in April, 1999. (Compl. ¶¶ 1, 14.) In May 2016, Casas was criticized by his superior, Lt. Subler, for his reporting after an incident involving an inmate. (Compl. ¶¶ 16-17.) On June 5, 2016, a meeting with Lt. Subler, wherein he berated Casas, caused Casas to suffer a panic attack. (Compl. ¶ 17.) Casas went to the emergency room the following day where hospital placed Casas on sick leave for three days. (Compl. ¶¶ 17-18.) On June 16, 2016, Casas went on leave from work, where he remained until April, 2017. (Compl. ¶ 20.) In January 2017, Casas’ doctors cleared him to return to work with the restriction to work in a different facility. (Compl. ¶ 23.) The County offered to transfer Casas with the options of a demotion, retirement, or remaining in his original position. Casas accepted the option to transfer with a demotion. (Compl. ¶¶ 24-25.) The Complaint further alleges discrimination, harassment, and retaliation by his supervisors based on Casas’ disability. (Compl. ¶¶ 29-30.)

procedural history

Casas filed the Complaint on March 21, 2019, alleging four causes of action:

1. FEHA Failure to Engage in the Interactive Process

2. FEHA Failure to Accommodate

3. FEHA Discrimination

4. FEHA Retaliation

County filed an Answer on April 19, 2018.

County filed the instant Motion for Summary Judgment on July 19, 2019.

Casas filed an Opposition on October 15, 2019.

County filed a Reply on October 24, 2019.

Discussion

1. OBJECTIONS

   Casas objects to various of County’s evidentiary materials submitted in support of their motion. Objections 1-5 are DENIED. The statements to which objections are made are admissible not for the truth of the matter stated but as background for the reasons the officers took the actions they did. Objection 6 is denied because the document in question has been adequately authenticated as a true and correct copy of the document in question.

2. JUDICAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure ;438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). Judicial notice may be taken of “(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code ; 452.)

County request that this Court take judicial notice of the Los Angeles County Civil Service Rules 12.01, 12.02, 17.04, and 18.08.

The Court GRANTS the request for judicial notice.

1. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. ; 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. ; 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. ; 437c, subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden, inter alia, by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc. ; 437c(p)(2).) What this means in practice is that if a cause of action, such as fraud, for example, requires proof of five elements, one of which is reliance, and if Defendant sets forth a prima facie case that reliance cannot be proven (either by citation to plaintiff’s deposition testimony, written discovery responses or other means), then Defendant has met its burden.

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere 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 that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

County, here, moves for summary judgment on all causes of action.

1. FEHA Discrimination

The Complaint alleges that Casas was discriminated against by County for “reporting and speaking out against wrongful and discriminatory treatment based on his disability, speaking out against improper conduct, and for generally attempting to protect and secure his rights and the rights of others under the FEHA.” (Compl. ¶ 46.) Casas alleges that as a result of this conduct, he suffered losses in earnings and employment benefits, in addition to physical and mental effects. (Compl. ¶¶ 49-50.)

County moves for summary judgment on the Third Cause of Action – FEHA Discrimination on the grounds that Casas’ restriction is not a qualifying disability under FEHA, that he did not suffer any adverse employment action, that there was no discriminatory intent, and that the County’s offers were based on legitimate business reasons. (Motion at 18-21.)

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.)

“On a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination based upon physical disability, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer has done so the plaintiff must offer evidence that the employer's stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)

1. FEHA Disability

The first element of the prima facie case of disability discrimination under FEHA is that the employee must show that he suffered from a disability. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 378.)

County presents evidence that Casas admitted does not know if he has been diagnosed with a disability, and that Casas admitted that he was not diagnosed with depression or post-traumatic distress disorder. (PUMF ¶¶ 414-415.) County presents evidence from Casas’ deposition, which Casas does not dispute, where Casas was asked if Dr. Halote diagnosed him with anything, and if he was diagnosed with depression after the incident with Lt. Subler, and both times Casas said “I don’t know.” (Plaintiff’s Evidence, Exh. B, p. 261:12-23; p. 254:18-23.)

In his Opposition, Casas argues that he had a FEHA-recognized disability because he was diagnosed with a panic attack, acute stress disorder, and an adjustment disorder. (Opposition at p. 12.) In Casas’ declaration, he declares that Dr. Halote “identified that I was suffering from acute stress disorder and adjustment disorder.” (Casas Decl. ¶ 16.) However, this declaration contradicts his own deposition that he did not know if he had a diagnosis.

“When an admission, made during discovery, becomes relevant to the determination, on motion for summary judgment, of whether there exist triable issues of fact, such admission of the party opposing summary judgment is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.) Under the D’Amico standard, a party may not raise a triable issue of fact by a declaration that is directly inconsistent with his prior admissions or statements under oath in discovery. The Court therefore finds Casas bound by his testimony during his deposition that he did not know if he had a diagnosis.

Furthermore, the facts alleged by Casas, even if true, fail to establish that he suffered from a disability under FEHA. Under FEHA, the term “disability” is defined broadly as requiring only a “limit” on a major life activity. (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022.) While FEHA’s definition does include mental health condition, the Court in Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, in a case on all fours with the instant case, held “that an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a mental disability under FEHA.” (Higgins-Williams v. Sutter Medical Foundation (2015), supra, at 85, emphasis in original.)

In Higgins-Williams, the plaintiff and her doctor determined that plaintiff was unable to work under her supervisors due to anxiety, stress related to the standard oversight of plaintiff’s job performance, and having an adjustment disorder with anxiety. (Id. at p. 84.) The court found that plaintiff’s condition, precisely the inability to work under a particular supervisor given the stress, anxiety and adjustment disorder diagnoses, did not rise to the level of a FEHA-recognized disability. (Id. at p. 85.)

The same is true in this case. D’Amico standard aside, Plaintiff has failed to present evidence that his condition, bearing the same alleged diagnoses as in Higgins-Williams, rises to the level of a FEHA-recognized disability. Casas has not presented any evidence that his condition goes beyond the inability to work under his assigned supervisors. In fact, the doctors’ notes which Casas provided when he requested to return to work, specifically requested that he could not return to his previous job site due to his concerns about interacting with his previous supervisors. (Casas Decl. ¶ 16, Exhs. 7-8 [“I told Dr. Halote that, although I had concerns about returning to MCJ because Lt. Subler was there, I wasl (sic) also worried about going back to MCJ because Captain Dempsey and Captain Del Valle worked there”].)

Accordingly, the Court finds that Plaintiff has failed to establish the existence of a FEHA-recognized disability. The Motion for Summary Judgment is GRANTED as to the Third Cause of Action – FEHA Discrimination.

1. FEHA Failure to Engage in Good Faith Interactive Process and Failure to Accommodate

The Complaint alleges that the County “failed and refused to participate in a timely good-faith interactive process with Plaintiff to determine what reasonable accommodations could be made” and “failed to provide Plaintiff with a reasonable accommodation for his disabling physical condition.” (Compl. ¶¶ 35, 40.)

County moves for summary judgment on these causes of action, arguing that Casas did not have a disability under FEHA, that Casas did not engage in the interactive process in good faith by identifying accommodations that did not violate department policy, and that County engaged in the interactive process by “evaluating and offering numerous accommodations to assist Plaintiff with his claimed disability.” (Motion at pp. 23-24.)

Government Code section 12940, subsection (n) “declares it an unlawful employment practice for an employer ‘to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.’” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961–962.) A prerequisite to liability under section 12940, subsection (n) is whether a reasonable accommodation is available, and the burden is on the employee to prove so. (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at 984.)

As discussed above, the Court has found that Casas did not have a FEHA-recognized disability. However, California courts have held that a Plaintiff need not necessarily have a FEHA-recognized disability to prevail on a claim for failure to engage in the interactive process. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243.) As long as the employer regards the employee as disabled, then a good faith interactive process is required. (Id. at p. 244 [“a pretextual termination of a perceived-as-disabled employee's employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process”].)

Here, Lt. Morgan was aware that Casas had taken time off work for stress and felt anxiety at work. (UMF ¶ 211.) Further Chief Dempsey declared that he knew that Casas had taken time from work on “stress leave.” (Dempsey Decl. ¶ 6.) Although neither party indicated a belief that Casas was “disabled,” the County appears to have been operating under the belief that Casas was disabled. In Dempsey’s deposition, he offered Casas disability-based retirement, and he also referenced various disabled employee return-to-work policies, indicating a belief that Casas was disabled. (UMF ¶¶ 124-125.) Accordingly, this cause of action may continue without a FEHA-recognized disability.

To prevail on a claim for failure to engage in the interactive process, an “employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018.)

Here, County has put forth evidence that it engaged in dialogue with Casas about his restrictions and reasonable accommodations. In Lt Morgan’s declaration, Morgan declares that she spoke with Casas by phone in 2016 and presented several options for his return including placing him on a different floor and shift than Lt. Subler, providing him with an official mentor, providing opportunities to train with the training unit to learn to deal with common incidents, providing opportunities to work with the compliance unit to learn how to prepare Use of Force packages (the type of report Lt. Subler berated him for), providing conflict resolution with Lt. Subler, and providing the number for Employee Support Services. (Morgan Decl. ¶ 6.) Further, when Casas was preparing to return to work, Chief Dempsey met with Casas in-person and discussed the options that were available to him given his probationary status and the department’s policies, which included: returning to work in the same position that he left (same location at Men’s Central Jail and same title) to complete his probationary period from prior to his medical leave, transfer to another facility with a demotion because the probationary period has not been satisfied, or taking disability retirement. (Dempsey Decl. ¶ 14.) County has provided evidence that it further took into account Casas’ previous interactions with Lt. Subler with regards to its first option for Casas, and Dempsey informed Casas that Lt. Subler no longer worked at Men’s Central Jail and informed him of offered support services and mentorship programs to assist him with the transition. (Dempsey Decl. ¶¶ 15-16.) County also presents evidence of completed forms entitled “Interactive Process Meeting” dated April 13, 2017 which represented that Casas requested to not work more than 40 hours per week for the first two weeks and the accommodation was accepted. (County Evid., Exh. D, p. 12.)

Casas argues that the interactive process was insufficient because he alleges that his meeting with the department only lasted 15-30 minutes and consisted entirely of the department’s agenda of “no accommodation for you” and “forcing Plaintiff to demote in order to continue working.” (Opposition at p. 19.) An employee must identify a viable reasonable accommodation that he is seeking. (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1018.) Although Casas does not argue explicitly in his motion which accommodation he is seeking, it is clear that Casas sought to retain his title but transfer locations despite not completing the probationary period. The employee must identify a specific, available reasonable accommodation. (Id. at 1019.) FEHA provides a non-exhaustive list of reasonable accommodations, which include: job restructuring, offering part-time or modified work schedules, reassigning to a vacant position, adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters and “other similar accommodations for individuals with disabilities.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.)

An employer does not violate the duty to engage in the interactive process in good faith merely for denying an employee’s request. (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1019 [“it would be unfair to expect an employee in the workplace to unilaterally identify reasonable accommodations”].) An employer is not required to chose the best or the specific accommodation requested by an employee. (Wilson v. County of Orange, supra, 169 Cal.App.4th at 1193.) The employer has discretion to chose an effective reasonable accommodation. (Id. [“[A]n employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided”].)

Here, Casas was told that the County’s department policies would not allow the accommodation that Casas requested because he had not completed his probationary period. (UMF ¶¶ 81-87.) Although Casas argues that the policy could have accommodated him, and cites various portions of policies that indicate that exceptions to the policies may be made, the fact remains that the employer has discretion in determining what is a reasonable accommodation. (Plaintiff’s Separate Statement, UMF ¶¶ 82-88.) There is significant evidence as to why County determined, based on its own policies, that Casas could not be transferred with his original title due to his failure to complete the probationary period. (See, e.g., Plaintiff’s Evid. Exh. A, 186:22-187:8.) Further, County offered Casas his exact original position and job site location, which indicates a willingness to accommodate Casas to allow him to return to work. Even more, in Casas’ deposition, he acknowledged the policy and acknowledged that a “hardship” memo request is needed for transfers during the probationary time, but that Casas did not submit a hardship memo. (Plaintiff’s Evid., Exh. A, 172:23-173:9.) Casas has not identified another accommodation that County should have offered him other than allowing him to transfer with his title.

County has carried its burden in showing that it engaged in the interactive process in good faith, and that it did not fail to reasonably accommodate Casas.

Accordingly, the Motion for Summary Judgment is GRANTED for the First and Second Causes of Action, Failure to Engage in the Interactive Process and Failure to Accommodate.

1. FEHA Retaliation

FEHA makes it unlawful for the employer to discharge or discriminate against an employee because he or she has “opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, ; 12940, subd. (h).) “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]” (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at 380.)

“Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68, 105 Cal.Rptr.2d 652.) 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. (Ibid.)” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

1. Protected Activity

The Complaint alleges that County retaliated against Casas for participating in the alleged protected activities of: “speaking out against inappropriate workplace behavior, reporting and speaking out against wrongful and discriminatory, harassing, and retaliatory treatment based on his disability, speaking out against improper conduct, and for generally attempting to protect and secure his rights and the rights of others under the FEHA.” (Compl. ¶ 53.)

Pursuant to Government Code section 12940, subsection (h), protected activities include opposing any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. (Gov. Code, ; 12940.) “[T]his part” includes all FEHA sections including discrimination in hiring, termination, training, as well as harassing, discharging, expelling, or discriminating against a person for making a report. (Gov. Code, ; 12940.)

Casas has presented evidence of speaking out against Lt. Subler’s behavior, however, Casas has not presented any evidence of speaking out against treatment based on a disability nor has he presented any evidence regarding protecting and securing the rights of others. (UMF ¶¶ 45-46, 50.) Casas has not presented any evidence that he was engaged in a protected activity in speaking out regarding hiring, termination or training. Casas’ Opposition motion argues that the protected activity was in seeking an accommodation for his work restriction (Opposition at p. 17), although this is not specifically alleged in the Complaint and the Complaint does not allege any further protected activity beyond reporting Lt. Subler’s behavior. Nonetheless, requesting a reasonable accommodation on the basis of a disability is considered a protected activity. (Gov. Code, ; 12940(m)(2); Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1049.)

1. Adverse Employment Action

Adverse employment actions are not limited to termination, rather, such action must “materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 367, review denied (Feb. 14, 2018).)

Casas argues that his title demotion, as a requirement for transferring locations, was an adverse employment action. (Opposition at p. 18.) On the other hand, County presents evidence that it offered Casas his exact original position but that Casas chose to take the demotion in order to transfer locations. (Motion at pp. 22-23; Plaintiff’s Evid. Exh. B, 274:16-22, Exh. D.) County further presents evidence that Casas voluntarily chose to take a demotion in order to transfer locations, although he had the option to remain in his original role with the original pay and title. (Plaintiff’s Evid. Exh. D, p. 4; Exh. H Dempsey Decl. ¶ 17.) Accordingly, the Court finds that Casas did not suffer an adverse employment action because he was offered his exact job back upon request to return to work. The fact that Casas chose to take a demotion in order to transfer work sites is unrelated, particularly because Lt. Subler no longer worked at the original site, making the offer to return a reasonable option.

If a prima facie case is established, the employer is required to offer a legitimate, nonretaliatory basis for the adverse employment action in order to shift the burden back to the plaintiff, who must then prove intentional retaliation. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 298.) Assuming arguendo that Casas did suffer an adverse employment action, County has further provided sufficient evidence for nonretaliatory reasons for not allowing Casas to retain his title when requesting a transfer. County has provided extensive evidence of the department’s policies which plainly require the probationary period to be satisfied before transfer. The Court finds that County has sufficiently established a non-retaliatory reason for not allowing Casas to transfer with his title prior to completing the probationary period.

Accordingly, the Motion for Summary Adjudication is GRANTED as to the Fourth Cause of Action – FEHA Retaliation and the Motion for Summary Judgment is GRANTED as to all causes of action.

Defendant to give notice.

DATED: October 28, 2019

________________________________

Hon. Robert S. Draper

Judge of the Superior Court