RUCHIKA BHARADWAJ VS COUNTY OF LOS ANGELES

Tentative Rulings

Case Number: ****0281    Hearing Date: November 01, 2019    Dept: 48

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY(S): Plaintiff Ruchicka Bharadwaj

PROOF OF SERVICE:

• Correct Address: Yes.
• 75 (CCP ; 437c(a): OK. Served by personal service on July 11, 2018; continued to this date per March 25, 2019 minute order.

• DENY motion for summary judgment;
• DENY motion for summary adjudication as to Issues Nos. 1 – 5.

ANALYSIS

Plaintiff’s Evidentiary Objections

Pursuant to CCP ; 437b(q), the Court in its discretion declines to rule upon Plaintiff’s objections, which are directed to evidence which the Court does not deem to be material to the disposition of this motion.

Defendant’s Evidentiary Objections

Bharadwaj Declaration

Pursuant to CCP ; 437b(q), the Court only rules upon the objections to evidence which it deems to be material to the disposition of this motion.

No. 83: OVERRULED. Sufficient foundation; hearsay exception—authorized admission of a party opponent—Evid. Code ; 1222; Best Evidence Rule was repealed in 1998.

Motion for Summary Judgment

As discussed below, Defendant has failed to demonstrate that it is entitled to judgment as to all causes of action asserted against it. Accordingly, the motion for summary judgment is DENIED.

The Court will proceed to address the alternative motion for summary adjudication.

Motion for Summary Adjudication

1. Issue No. 1: “Plaintiff’s First Cause of Action for Disability Discrimination Fails as A Matter of Law Because (1) Plaintiff Cannot Establish Her Prima Facie Case; (2) The County Had Legitimate Nondiscriminatory Reasons for Its Actions; and (3) Plaintiff Cannot Demonstrate Pretext.”

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. (Citations omitted)  . . . .

Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.

A key fact in this case is that Plaintiff is still employed by Defendant. See UF No. 1 (Plaintiff currently holds the position of Senior Accountant-Auditor).

The Complaint was filed on February 9, 2017. Accordingly, Plaintiff’s Complaint includes a claim that she is currently being discriminated against on the basis of her disability. Defendant must demonstrate why Plaintiff cannot currently be assigned to perform the tasks of Senior Accountant-Auditor. A summary judgment motion must address the “issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.” Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 753 (bold emphasis and underlining added).

Defendant has not presented evidence that, after the most recent period of February 9, 2016 through May 8, 2016 during which Plaintiff was assigned to perform auditor tasks (see Def’s Exh. NN, Report of Performance Evaluation), Plaintiff is still unable to perform the essential functions of the position she currently holds in name—Senior Accountant-Auditor. That is, Defendant was required to account for the period May 9, 2016 (after the aforementioned temporary assignment to perform auditor tasks) through February 9, 2017 (the date of the filing of the Complaint), the Plaintiff was still unable to perform the essential functions of that position, and thus, there is no possible basis for her claims. Indeed, Defendant’s Chief of Psychological Services, Sepideh A. Souris, Pys. D., testified at deposition that “with a stroke or any type of brain injury, there is a process of rehabilitation and progress that can occur.” Pltf’s Exh. 8 Page 69:1-4.

Defendant’s separate statement only addresses Plaintiff’s ability to perform up until May 8, 2016, but not after that date up until the date of the filing of the Complaint. See UF Nos. 74 – 78.

Thus, Defendant has failed to demonstrate that: (1) Plaintiff cannot establish a prima facie case as to the period May 9, 2016 through February 9, 2017, the date the Complaint was filed; or (2) that there is a legitimate, non-discriminatory reason for failing to assign Plaintiff to perform auditor tasks for the period May 9, 2016 through February 9, 2017 (the date the Complaint was filed).

A motion for summary adjudication must dispose of an entire cause of action [CCP ; 437c(f)(1)], unless certain procedures are followed prior to the bringing of the motion for summary adjudication [CCP ; 437c(t)] which procedures were not followed here. McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975.

In this regard, Plaintiff has raised a triable issue of material fact as to whether she would currently (or at least up until the filing of the Complaint) be unable to perform audit work. She claims that she turned in all the work under the budgeted time constraints, and that an accusation that Plaintiff was confused at times was shown to be wrong, but was not removed from the performance review. Bharadwaj Decl., ¶¶ 105, 106, 108. Plaintiff states that she was demoted to Typist Clerk in May 2016 and has been prohibited from doing audit work. Id. at ¶ 110.

The motion for summary adjudication as to Issue No. 1 re: the first cause of action is DENIED.

2. Issue No. 2: “Plaintiff’s Second Cause of Action for Disability Retaliation Fails as A Matter of Law Because (1) Plaintiff Cannot Establish Her Prima Facie Case; (2) The County Had Legitimate Nondiscriminatory Reasons for Its Actions; and (3) Plaintiff Cannot Demonstrate Pretext.”

Plaintiff alleges that she opposed illegal employment practices by asking that she be allowed to return to a workplace that was free from disability discrimination and opposing her demotion and forced retirement. Complaint, ¶ 26.

As discussed above re: Issue No. 1, Defendant has not demonstrated a legitimate, non-retaliatory reason for failing to assign Plaintiff to perform auditor tasks for the period May 9, 2016 through February 9, 2017 (the date the Complaint was filed). In this regard, Defendant’s argument that Plaintiff cannot temporally establish causation between a protected activity and the alleged retaliation is not persuasive.

The motion for summary adjudication as to Issue No. 2 re: the second cause of action is DENIED.

3. Issue No. 3: “Plaintiff’s Third Cause of Action for Failure to Accommodate Fails as A Matter of Law Because (1) Plaintiff Claims She Never Needed Accommodations to Adequately Perform Her Job; (2) The County Provided Reasonable Accommodations That Complied with Both Plaintiff’s Requests Work Restrictions [sic] and the OHP Restrictions; and (3) Plaintiff Could Not Perform the Essential Functions of the Job.”

¶ 33 of the Complaint alleges that Plaintiff is entitled to the reasonable accommodation of being permitted to return to her former position as a Senior Accountant Editor. Plaintiff alleges that she repeatedly asked for this accommodation, but Defendants refused to accommodate this request and initiated a disability retirement process against her wishes. Id.

“The elements of a failure to accommodate claim are (1) the [*1010]  plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1002-12.

As discussed above, Defendant has failed to demonstrate why it could not accommodate Plaintiff’s request to be returned to the position of Senior Accountant Editor for the period May 9, 2016 through February 9, 2017 (the date the Complaint was filed).

Accordingly, the motion for summary adjudication as to Issue No. 3 re: the third cause of action is DENIED.

4. Issue No. 4: “Plaintiff’s Fourth Cause of Action for Failure to Engage in The Interactive Process Fails Because (1) Plaintiff Was Offered Reasonable Accommodations (2) To the Extent That the Interactive Process Failed, It Was Due to Plaintiff’s Withholding of Information.”

“The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not necessarily required.” Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.

As discussed above, Defendant has not demonstrated that has engaged in a good faith interactive process tasks for the period May 9, 2016 through February 9, 2017 (the date the Complaint was filed).

Accordingly, the motion for summary adjudication as to Issue No. 4 re: the fourth cause of action is DENIED.