Pending - Other Pending
Contract - Other Contract
MICHAEL J. CONVEY
LOS ANGELES UNIFIED SCHOOL DISTRICT
OTTO JAMES ALAN
HERNANDEZ MARCOS FREDRICK
12/26/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
11/13/2018: Request for Judicial Notice
11/13/2018: Request for Judicial Notice
11/13/2018: Request for Judicial Notice
11/13/2018: Motion to Compel
Docketat 08:30 AM in Department U, Michael J. Convey, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party[+] Read More [-] Read Less
Docketat 09:30 AM in Department U, Michael J. Convey, Presiding; Trial - Not Held - Continued - Stipulation[+] Read More [-] Read Less
Docketat 08:33 AM in Department U, Michael J. Convey, Presiding; Final Status Conference - Not Held - Continued - Stipulation[+] Read More [-] Read Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk[+] Read More [-] Read Less
Docketat 08:30 AM in Department U, Michael J. Convey, Presiding; Hearing on Motion for Summary Adjudication - Not Held - Taken Off Calendar by Party[+] Read More [-] Read Less
DocketMotion to Compel (Further Responses to Form Interrogatories); Filed by Patrick Finn (Plaintiff)[+] Read More [-] Read Less
DocketSeparate Statement (##); Filed by Patrick Finn (Plaintiff)[+] Read More [-] Read Less
DocketSeparate Statement (#); Filed by Patrick Finn (Plaintiff)[+] Read More [-] Read Less
DocketSeparate Statement; Filed by Patrick Finn (Plaintiff)[+] Read More [-] Read Less
DocketDeclaration (of Venessa F. Martinez in Support of Agreement to Continue Trial); Filed by Los Angeles Unified School District (Defendant)[+] Read More [-] Read Less
DocketMinute order entered: 2018-02-07 00:00:00; Filed by Clerk[+] Read More [-] Read Less
DocketOrder; Filed by Clerk[+] Read More [-] Read Less
DocketOrder; Filed by Clerk[+] Read More [-] Read Less
DocketCase Management Statement; Filed by Patrick Finn (Plaintiff)[+] Read More [-] Read Less
DocketCase Management Statement; Filed by Los Angeles Unified School District (Defendant)[+] Read More [-] Read Less
DocketPartial Dismissal (with Prejudice); Filed by Patrick Finn (Plaintiff)[+] Read More [-] Read Less
DocketAnswer; Filed by Los Angeles Unified School District (Defendant)[+] Read More [-] Read Less
DocketSummons; Filed by Patrick Finn (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by Patrick Finn (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
Case Number: ****6257 Hearing Date: July 09, 2020 Dept: W
finn v. los angeles school district, et al.
defendant lausd’s MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Date of Hearing: July 9, 2020 Trial Date: September 21, 2020
Department: W Case No.: ****6257
Moving Party: Defendant LAUSD
Responding Party: Plaintiff Patrick Finn
Plaintiff Patrick Finn is an elementary school teacher with Defendant Los Angeles Unified School District (“LAUSD”). On or about August 12, 2015, Plaintiff injured his knee, shoulder, back, and foot as a result of falling off an auditorium stage to the floor. Plaintiff filed a worker's compensation claim in August 17, 2015, and thereafter, went off work on a medical leave. Plaintiff now claims LAUSD has refused to return Plaintiff back to work with reasonable accommodation although Plaintiff presented LAUSD with a doctor’s note allowing him to return to work with the restriction of limited walking on the job.
On September 22, 2017, Plaintiff filed a Complaint against LAUSD, asserting claims for: 1) Wrongful Termination in Violation of Public Policy; 2) Age Discrimination; 3) Disability Discrimination; 4) Failure to Reasonably Accommodate; 5) Failure to Engage in Interactive Process; 6) Retaliation; 7) Failure to Take Reasonable Steps to Prevent Discrimination; and 8) Violation of Labor Code Section 1102.5.
On December 1, 2017, Plaintiff dismissed the first cause of action for Wrongful Termination in Violation of Public Policy.
Defendant moves for summary judgment on the grounds that no triable issues of material fact exists and, as such, Defendant is entitled to judgment as a matter of law, or in the alternative, Defendant moves for summary adjudication.
Defendant LAUSD’s Motion for Summary Judgment is DENIED.
Defendant LAUSD’s Motion for Summary Adjudication as to the second and sixth cause of action is GRANTED.
Defendant LAUSD’s Motion for Summary Adjudication as to the third, fourth, fifth, seventh, and eighth causes of action is DENIED.
Plaintiff objects to the declarations of Connie Gervasoni, Andres Equihua, Venessa Martinez, Aleta Powers, and Rima Vosghanian with references to supporting evidence, including Exhibits L, Y, Z, AA and BB. The court notes, however, Plaintiff fails to include the objections to the Rima Vosghanian declaration.
The court sustains the following objections:
Declaration of Connie Gervasoni Nos. 3, 5, 6, 8
Declaration of Andres Equihua Nos. 4, 6
Plaintiff also objects to the documents submitted in LAUSD’s Notice of Errata. The court sustains the objection.
Defendant LAUSD objects to the declarations of Patrick Finn and James Otto. The court notes Defendant LAUSD’s written objections to evidence are not consecutively numbered as required by California Rules of Court, rule 3.1354(b). In the court’s discretion, it rules on the objections. The court sustains the following objections:
Declaration of Patrick Finn Paragraphs 14, 16, 18, 27, 30, 33, 47, 48, 50.
The purpose of a motion for 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. 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.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467; see also CCP ;437c(c).)
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be present, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (CCP ;437c(h).)
The court first notes that, in opposition, Plaintiff addresses the first cause of action for wrongful termination in violation of a public policy. Plaintiff argues LAUSD does not challenge the cause of action and triable issues of fact exist. However, court records show Plaintiff dismissed the first cause of action with prejudice on December 1, 2017. As such, the court will not address Plaintiff’s argument as to the first cause of action.
The instant motion is brought on the grounds: (1) Plaintiff failed to timely exhaust his administrative remedies; (2) Plaintiff cannot establish a prima facie case for disability discrimination; (3) Plaintiff cannot establish a prima facie case for failure to reasonably accommodate; (4) Plaintiff cannot establish a prima facie case for failure to engage in the interactive process; (5) Plaintiff cannot establish a prima facie case for disability or age related retaliation; (6) Plaintiff’s seventh cause of action for failure to prevent discrimination fails; and (7) Plaintiff’ eighth cause of action for violations of Labor Code ;1102.5 fail for failure to file a government tort claim.
“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.)
“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.’” (Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 861 [quoting Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003].) Retaliation claims also operate according to the same modified McDonnell-Douglas framework. (See Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 520; McRae v. Dep’t of Corr. & Rehab. (2006) 142 Cal.App.4th 377, 388.)
Thus, a defendant moving for summary judgment or summary adjudication need not affirmatively negate any of the prima facie elements of a discrimination or retaliation claim. The moving party can meet its initial burden by showing that all of the adverse employment actions taken against the plaintiff were based on legitimate, non-discriminatory and non-retaliatory factors. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) Once this occurs, the opposing plaintiff can only avoid summary judgment or summary adjudication if he or she offers evidence raising a triable issue as to pretext. (See Hersant v. Cal. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1005.)
1. Whether Plaintiff sufficiently exhausted his administrative remedies?
LAUSD contends that Plaintiff’s second cause of action for age discrimination must fail because Plaintiff did not timely file a complaint for age discrimination with the Department of Fair Employment and Housing (“DFEH”) before filing the instant lawsuit. It is undisputed that on October 21, 2016, Plaintiff filed a complaint with the DFEH, but age based discrimination was not set forth as a grounds for the complaint. (UMF 19, 20.)
“Under FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with [DFEH] and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations.] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. [Citations.]” (Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479, 492.)
However, FEHA requires that its procedural requirements “be construed liberally for the accomplishment of [its statutory] purposes.” (Gov. Code, ;12993(a).) When an employee seeks judicial relief for claims not filed in the administrative complaint, the judicial complaint may nevertheless encompass claims that are like or reasonably related to the allegations in the administrative complaint. (See Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 859; Oubichon v. North Am. Rockwell Corp. (9th Cir. 1973) 482 F.2d 569, 571.) “[W]hen the difference between the charge and the complaint is a matter of adding an entirely new basis for the alleged discrimination,” the court has no jurisdiction to consider the newly alleged claim. (Okoli, supra, 36 Cal.App.4th at p. 1615.)
LAUSD’s Exhibit Y contains Plaintiff’s administrative complaint to the DFEH. In the complaint, Plaintiff states that he was subjected to retaliation based on disability [physical or mental]. (LAUSD Compendium of Exhibits [“LAUSD Exhibits”], Exh. Y.) Plaintiff further stated he believed he was denied reasonable accommodation based on his knee and shoulder disability. (LAUSD Exhibits, Exh. Y.) Using the “like or reasonably related” standard, the court finds Plaintiff’s claim of age discrimination in his civil complaint is not sufficiently close to his claim of physical or mental disability in his administrative claim. Nothing in the record shows Plaintiff’s claim for age discrimination is similar to, nor reasonably related to, his claim for physical or mental disability and these acts would likely not be uncovered in the course of a DFEH investigation. Moreover, Plaintiff offers no opposition to the undisputed facts.
On this record, the exception is inapplicable. (See Okoli, supra, 36 Cal.App.4th at p. 1615 [“ ‘complaint alleging race discrimination is neither “like or related to” nor likely to be discovered in a “reasonable” investigation of a charge of sex discrimination’ ”]; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1727 [exhaustion doctrine precluded gender discrimination, harassment, and retaliation claims when DFEH claim alleged only age discrimination]; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123 [plaintiff could not pursue FEHA claim for age harassment because DFEH complaint included only gender discrimination allegations]; see also Rodriguez v. Airborne Express (9th Cir.2001) 265 F.3d 890, 897; Stallcop v. Kaiser Foundations Hospitals (9th Cir.1987) 820 F.2d 1044, 1050–1051.)
Accordingly, the court finds Plaintiff did not exhaust his administrative remedies as to his FEHA age discrimination claim, and Defendant’s motion for summary adjudication as to the second cause of action is granted.
2. Whether Plaintiff established a prima facie case for disability discrimination?
LAUSD contends Plaintiff could not perform essential functions on the job nor was Plaintiff subjected to adverse employment and, as such, Plaintiff cannot establish a prima facie case for disability discrimination.
“A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability. [Citation.]” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.)
Government Code section 12940(a) prohibits discrimination based on physical disability. Subdivision (a)(1) “does not prohibit an employer from refusing to hire or discharging an employee with a physical … disability or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employee’s essential duties even with reasonable accommodations…” (Gov’t. Code ;12940(a)(1).) Thus, “in disability discrimination actions, the plaintiff has not shown the defendant has done anything wrong until the plaintiff can show he or she was able to do the job with or without reasonable accommodation.” (Castro-Ramirez, supra, 246 Cal. App. 4th at p. 193.)
In the instant matter, on August 12, 2015, Plaintiff injured his knee, shoulder, back, and foot as a result of “hopping” from an auditorium stage to the floor. (UMF 2.) While there is some dispute regarding when Plaintiff officially went on leave, Plaintiff did return to work on February 22, 2016. (UMF 4.) The doctor’s note presented to LAUSD provided that Plaintiff could return to work with the following restrictions: “Patient with extreme pain bilateral foot and knees walking about 200 yards/50 or even less yards at the end of the day. Do not stand beyond 5 minutes.” (UMF 5, Exh. C.) Principal Gervasoni sought the assistance of Staff Relations, Miguel Garza, to provide her guidance on how the situation should be handled. (UMF 6.) Principal Gervasoni, with the assistant of Miguel Garza, determined that Plaintiff’s current medical restrictions could not be immediately accommodated at the school site level. (UMF 7.)
LAUSD argues they could not immediately accommodate Plaintiff because the essential functions of Plaintiff’s position as a third grade teacher required him to walk far more than 200 yards per day as he was required to escort and supervise his students to the library, computer lab, and conduct physical education. (DMF 8, Exh. S.) In support of this argument, LAUSD provides a copy of the Elementary School Teacher job description. However, review of Exhibit S does not provide that teachers are required to escort students to other parts of the campus nor does it list walking as an essential duty. Moreover, the testimonies of Principal Gervasoni, Return to Work Specialist Rima Vosghanian, and Administrator of Displaced Teachers indicate that walking is not included as an essential duty in the Elementary School Teacher job. (DMF 8, Exhs. 7, 8, and 9.) As such, the court finds a triable issue of material fact exists as to whether Plaintiff was otherwise qualified to do his job, with or without reasonable accommodation.
Next, LAUSD argues Plaintiff is unable to establish that he has suffered any adverse employment action. An adverse employment action encompasses “adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion….” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1055.) To be actionable, however, conduct must go beyond “[m]inor 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….” (Id. at p. 1054.) Examples of an adverse employment action include termination, demotion, a loss of pay or benefits, a denial of promotion, or moving an employee to an isolated area. (Thomas v. Dep't of Corr. (2010) 77 Cal.App.4th 507, 510-511.)
LAUSD submits evidence that Plaintiff did not suffer any adverse employment action. Plaintiff has been out on various medical leaves from November 2015 through July 2018. (DSSMF 36, Exhs. X, L.) Plaintiff requested a leave of absence for November 2015 and February 2016, both of which were approved. After Principal Gervasoni sent Plaintiff home after attempting to return to work on February 22, 2016, Plaintiff requested an extension of leave starting April 2016 until July 2018. In May 2018, Plaintiff’s request for reasonable accommodations was granted. (UMF 29, Exh. K.) Upon his return, as there were only eight/nine days left, it was not possible to put Plaintiff at a teaching position until the 2018-2019 school year. (DSSMF 30.) Plaintiff returned to work on July 1, 2018 as a Certified Pool Teacher then transferred to Napa Elementary School for the 2018-2019 school year. (UMF 31, 32.) Based on such, LAUSD contends Plaintiff has not been suspended, demoted, or terminated but rather, Plaintiff has not worked as a result of various medical leaves of absence.
In opposition, plaintiff presents evidence sufficient to raise a triable issue fact that he suffered adverse employments detrimental to his career, including: (1) the refusal to allow Plaintiff to work, despite his willingness and ability to work, thus, causing a loss of wages for more than 2 years; (2) failure to accommodate Plaintiff and taking away prior accommodations, thus, intentionally preventing or reducing job performance; (3) altering job performance evaluations to prevent future promotions; (4) demoting Plaintiff from teacher to a clerk, thus preventing Plaintiff’s ability to maintain membership in the National Board of for Professional Teaching Standards as well as recognition as being in the top 3% of teachers in the United States;and (5) removing teaching assistants from his class room, thereby making it more difficult for him to perform his job. Plaintiff contends, each of the above-listed “adverse treatment [are] is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion.” (Yanowitz, supra, 36 Cal.4th at 1054-1055.) The court agrees. Taken together (and some even when viewed separately), this conduct on the part of school officials constitute adverse employment actions or treatment likely to impair an employee’s job performance or advancement.
Based on the foregoing, Defendant’s motion for summary adjudication is denied as to Plaintiff’s third cause of action for disability discrimination.
3. Whether Plaintiff established a prima facie case for failure to reasonably accommodate?
LAUSD contends it is entitled to summary adjudication as to the fourth cause of action on for Failure to Reasonably Accommodate.
It is an unlawful employment practice for an employer to fail to make a reasonable accommodation for the known physical or mental disability of an applicant or employee. (Govt. Code ; 12940(m).) A plaintiff has a prima facie case for the failure to reasonably accommodate when the plaintiff can plead and prove that (1) the plaintiff suffered from a disability; (2) the plaintiff could perform the essential functions of the job with a reasonable accommodation; and (3) the employer failed to reasonably accommodate the plaintiff’s disability. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.) The plaintiff employee bears the burden of showing that he or she was able to do the job without a reasonable accommodation. (Green v. State of California (2007) 42 Cal.4th 254, 262.)
LAUSD argues it did not in any way fail to reasonably accommodate Plaintiff for his disability because it responded to Plaintiff’s request for reasonable accommodations as quickly as possible and LAUSD did accommodate Plaintiff by granting him an extensive leave of absence. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App. 4th 215, 226 [finding that allowing employee several months of leave constituted “reasonable accommodation.”] (DSSMF 36, Exhs. X, L.)
In opposition, Plaintiff argues LAUSD did fail to reasonably accommodate his disability because he was available to teach summer school, but was never asked to do so. Moreover, he contends that he requested an accommodation but was denied the same for two years, while the LAUSD basically did nothing. (PSSMF 152, Finn Decl. ¶83.) While it is true a finite leave of absence may be a reasonable accommodation to allow an employee time to recover, that leave of absence may not be reasonable if the employee in fact wanted to return to work and could do so. “[T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)
As such, Plaintiff has presented a triable issue of material fact as to whether there was a vacant position within LAUSD that Plaintiff was qualified for and was capable of performing with or without an accommodation, or whether he could have returned to his prior position.
Based on the foregoing, the court denies Defendant’s motion for summary adjudication as to the fourth cause of action.
4. Whether Plaintiff established a prima facie case for failure to engage in the interactive process?
LAUSD contends it is entitled to summary adjudication as to the fifth cause of action for Failure to Engage in the Interactive Process.
In order to establish a claim that an employer failed to engage in the interactive process, a plaintiff must show that (1) the plaintiff requested the employer make a reasonable accommodation; (2) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made; and (3) the employer failed to participate in a timely and good-faith interactive process with the plaintiff to determine whether a reasonable accommodation could be made. (Govt. Code ; 12940(n).) But if an employee does not need or request an accommodation, there can be no violation of the duty to engage in the interactive process or to accommodate. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)
LAUSD argues any breakdown of the interactive process was a result of Plaintiff’s action and thus, Plaintiff cannot establish the second element of the cause of action. LAUSD states Plaintiff contacted Chase Elementary School on February 19, 2016 and informed the school administrative assistant that he would be returning to work on Monday, February 22, 2016. (UMF 4.) Plaintiff provided a doctor’s note upon returning to work, which stated that Plaintiff was allowed to return to work with limited restrictions. (UMF 5.) That same day, Principal Gervasoni sought the assistance of Miguel Garza and the two determined that Plaintiff’s current medical restrictions could not be immediately accommodated. (UMF 7.) Principal Gervasoni then went to Plaintiff’s classroom and informed him that he could not remain in his classroom because a means in which to safely accommodate him could not yet be identified. (UMF 9.) After this, Principal Gervasoni called Plaintiff the same day, but her calls were not returned. (DSSMF 12; Gervasoni Decl. ¶11.) Principal Gervasoni then also sent “Attachment A” as part of the reasonable accommodations application for Plaintiff, which is the Record of Interactive Process. (DSSMF 11, Exh. A.) Instead of engaging in further discussions, LAUSD argues Plaintiff sought medical treatment and asked to be placed "off work" from February 2016 until July 2018. (DSSMF 14, 15; Exh. B.) Around February 20, 2018, Plaintiff again completed and submitted a reasonable accommodation application. (DSSMF 19, Vosghanian Decl. ¶19; Exh. J.) On May 23, 2018, the Reasonable Accommodations Committee mailed their decision letter to Mr. Finn stating that all his requested accommodations were granted. (UMF 29; Vosghanian Decl. ¶¶13, 14; Exh. K.)
To meet his burden, Plaintiff declares, under penalty of perjury, that Principal Gervasoni never invited him to discuss his reasonable accommodations after she asked him to leave. (PSSMF 137, Finn Dec. ¶67.) However, he was contacted by the school’s administrative assistant on February 22, 2016 and was informed that he should contact the Office of Reasonable Accommodations to discuss obtaining accommodations. (PSSMF 138, Finn Dec. ¶68.) The next day, Plaintiff sent LAUSD and Principal Gervasoni an email asking for reasonable accommodation and to engage in an informal interactive process. (PSSMF 175, Exh. 10.) Although Plaintiff rescheduled a Reasonable Accommodations Committee Meeting set for April 12, 2016, Plaintiff states LAUSD never rescheduled the meeting. (PSSMF 141-143; Finn Decl. ¶¶71-74.) Thereafter, it took two years of filing grievances and a DFEH complaint to get LAUSD to supply any reasonable accommodation. (PSSMF 174, Finn Decl. ¶54.) As such, Plaintiff has raised a dispute of material facts as to the failure to engage in the interactive process.
Based on the foregoing, the court denies Defendant’s motion for summary adjudication as to the sixth cause of action.
5. Whether Plaintiff established a prima facie case for disability or age related retaliation?
LAUSD contends the sixth cause of action for retaliation fails because Plaintiff cannot establish a prima facie case. Plaintiff’s sixth cause of action alleges Defendant took adverse employment actions against him by not allowing Plaintiff to return to work, “because of Plaintiffs disability, prior reasonable accommodations and age, and because plaintiff demanded return to work and reasonable accommodations.” (Complaint, ¶58.)
In order to assert a cause of action for retaliation under FEHA, an employee must allege that: (1) he or she engaged in a “protected activity” under FEHA; (2) an adverse employment action was taken against them; and (3) there is a “causal link” between the “protected activity” and the adverse employment action. (See Yanowitz, supra, 36 Cal.4th at p. 1042.)
In opposition, Plaintiff argues he engaged in multiple protected actions including reporting the various forms of harassment that he was subjected to including, harassment for his age, disabilities, and violation of disability discrimination laws. But the court cannot find any evidence in the materials he presented that he actually complained of discrimination prior to filing his FEHA claim. Plaintiff’s demand to return to work and request for reasonable accommodations does not constitute protective activity. (See Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652 [holding the mere act of requesting an accommodation is not a protected activity].) The only complaint he cites to is his rebuttal of her “contrived Summary of Classroom Visitation, handed to her by me an hour before she decided that she could not accommodate me on February 22, 2016.” (Finn Decl., para. 16.) But he does not attach the actual written rebuttal and he does not describe that rebuttal as raising any complaints of disability discrimination or other protected activity.
As such, the motion for summary adjudication as to the sixth cause of action is granted.
6. Whether Plaintiff established a genuine issue of material fact as to the seventh cause of action?
LAUSD contends Plaintiffs seventh cause of action for Failure to Take Reasonable Steps to Prevent Discrimination must fail to the extent that he cannot establish a genuine issue of material fact on his age or disability discrimination and/or retaliation claims.
Under California’s Fair Employment and Housing Act, it is an “unlawful employment practice” when an employer “fail[s] to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code ;12940(k).) However, there can be no recovery by a private litigant, absent a finding that discrimination or harassment actually occurred. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-89.)
As the motion for summary adjudication regarding the third cause of action was denied, Plaintiff can maintain a cause of action for failure to prevent and correct discrimination. As such, the motion for summary adjudication as to the seventh cause of action is denied.
7. Whether the Violation of Labor Code ;1102.5 fails for failure to file a government tort claim?
LAUSD contends Plaintiff’s eighth cause of action for whistleblower retaliation in violation of Labor Code section 1102.5 is barred as a matter of law for failure to timely comply with the claim presentation requirements of the Government Claims Act.
Government Code section 945.4 provides that a party cannot bring suit for “money or damages" against a public entity unless "a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.”
Plaintiff concedes a claim was not filed with the appropriate public entity. However, Plaintiff argues there is no need for plaintiff to file a claim with the government before bringing this action for violation of Labor Code sections 1102.5 and 232.5 because (a) filing a DFEH complaint satisfies the Tort Claims Act requirements for a statutory claim under Labor Code section 1102.5 and 98.7 and (b) after filing a claim with the government, there is no requirement to file a redundant claim because the public policy underlying the reporting requirement of notice to the government to allow for investigation and settlement are fulfilled with the first claim.
The court agrees. In Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, the court held “where the public entity defendant had notice of [plaintiff’s] claim through a federal Equal Employment Opportunity Commission claim and a state Department of Fair Employment and Housing complaint, and had the opportunity to investigate and resolve the claim through the statutory procedures provided by those agencies, there was no violation of any public policy in a conclusion that the appellant was not required also to file a government tort claim with the entity.” Plaintiff filed his DFEH complaint on October 21, 2016, approximately 11 months before Plaintiff filed the instant civil action. Moreover, in San Diego Unified Port Dist. v. Superior Court (1988) 197 Cal.App.3d 843, the court held a separate claim by the plaintiff after filing its claim with the District was unnecessary to implement the purpose of the Government Tort Claims Act.
Based on the foregoing, Defendant’s motion for summary adjudication as to the eighth cause of action is denied.
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