CARLO AGRUSA,

Plaintiff,

vs.

los angeles unified school district, et al.

Defendants.

Case No.:

BC 648399

Hearing Date:

March 8, 2018

Hearing Time:

8:30 a.m.

ORDER RE:

DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Background

Plaintiff Carlo Agrusa (“Agrusa”) filed this action on January 27, 2017 against Defendant Los Angeles Unified School District (“LAUSD”). The gravamen of Agrusa’s Complaint is that prior to retiring, when he worked as a District Supervising Building/Construction Inspector, he was subjected to discrimination and harassment based on his disability. Agrusa alleges that LAUSD, his then-employer, failed to engage in the interactive process, failed to provide him a reasonable accommodation, and forced him to retire.

LAUSD now moves for summary judgment, or in the alternative, summary adjudication on the four causes of action asserted in the Complaint: (1) discrimination based on disability under the Fair Employment and Housing Act (“FEHA”); (2) failure to reasonably accommodate; (3) failure to engage in the interactive process; and (4) harassment under the FEHA. Agrusa opposes.

Evidence

The Court rules on LAUSD’s evidentiary objections to the Supplemental Declaration of Plaintiff Carlo Agrusa as follows:

The Court sustains LAUSD’s objections to the unauthenticated exhibits improperly attached to the Response. The Court also finds that Agrusa’s Response to Defendant LAUSD’s Statement of Undisputed Facts (the “Response”) does not conform to California Rules of Court, rule 3.1350(f).

Sustained

Sustained

Sustained

Sustained as to “upon a reading of these ‘permanent injuries’ by Dr. Nakana’s December report;” overruled as to the remainder.

Overruled

Overruled

Sustained

Sustained as to “His conduct was despicable and hateful against me. He discriminated against me and my disability . . . .” Overruled as to the remainder.

Sustained

Overruled

Sustained as to everything except “I am unable to understand why Defendant was motived (sic) to terminate my employment with LAUSD;” overruled as to the remainder.

Sustained

Overruled

Overruled

Overruled

Overruled

Overruled

Overruled

Overruled

Sustained as to “Mr. Gilbert and Mr. Laret discriminated against me because of my disability that I sustained by work on June 12, 2014”; overruled as to remainder

Sustained as to “with the intent to deceive”; overruled as to the remainder.

Overruled Note: There is a second objection no. 23 on page 22: Sustained as to the references to the word “misinformed;” overruled as to the remainder.

Sustained as to “willful misinformation” and “Mr. Laret and Mr. Gilbert discriminated against me based on my Physical Disability”; overruled as to remainder

Sustained

Sustained

Sustained

Overruled

Overruled

Overruled

Sustained as to “after knee surgery and other available medical procedures . . .”

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389).

Discussion

Failure to Provide Reasonable Accommodation

Government Code section 12940(m) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” ((Gov. Code, § 12940(m)(1).) The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee’s disability. ((Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) However, “elimination of an essential function is not a reasonable accommodation.” ((Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375.)

“’Essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires. ‘Essential functions’ does not include the marginal functions of the position.” ((Gov. Code, § 12926(f).) “A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: (A) The function may be essential because the reason the position exists is to perform that function. (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. (C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform the particular function.” ((Gov. Code, § 12926(f)(1).) “Evidence of whether a particular function is essential includes, but is not limited to, the following: (A) The employer’s judgment as to which functions are essential. (B) Written job descriptions prepared before advertising or interviewing applicants for the job.” ((Gov. Code, § 12926(f)(2).)

LAUSD’s evidence indicates that the essential functions of a Supervising Building/Construction Inspector include special physical requirements (bend, crawl, climb, crouch, kneel, balance, and lift up to 50 pounds). [Defendant’s Separate Statement of Undisputed Facts (“UF”) 8, 9.] It is undisputed that Agrusa injured his knee on June 12, 2014 while at work. [UF 16.] It is also undisputed that after this injury, LAUSD received a report from Agrusa’s physician that indicated the following permanent restrictions: 1) squat/kneel, knee bending: not at all and 2) lift/carry/push/pull no more than 15 pounds. [UF 19.] Agrusa contends that the permanent restrictions were “meant to be until the approval of knee surgery by Workman’s Comp. that Dr. Nakata requested,” but this contention is unsupported by the report itself. Agrusa has also failed to present any other evidence to support this contention. [See Response to UF 19.] Agrusa also argues that he had been reasonably accommodated after a previous knee injury from October 24, 2011 to June 12, 2014. [Response to UF 12.] However, Agrusa’s evidence only demonstrates that the reasonable accommodation lasted from October 24, 2011 to December 22, 2011, and in any case, this accommodation was based on a temporary restriction. [UF 12; Agrusa Supp. Decl., p: 6:20 – 7:4.] This does not create a triable issue of material fact.

The Court finds that the undisputed facts show that an essential element of the Supervising Building/Construction Inspector was the ability to bend, crawl, climb, crouch, kneel, balance, and lift up to 50 pounds; that Agrusa has permanent medical restrictions from performing those elements; and that it is not a reasonable accommodation for LAUSD to eliminate these particular essential elements to suit Agrusa’s restrictions. Therefore, the Court finds that LAUSD is entitled to summary adjudication on this cause of action.

Disability Discrimination

FEHA prohibits discrimination by an employer against an employee with a physical or mental disability, except where the disability causes the employee to be “unable to perform his or her essential duties even with reasonable accommodations . . .” ((Gov. Code, § 12940(a)(1)); (Green v. State of California (2007) 42 Cal.4th 254, 262.)

California applies the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802,[1] under which a plaintiff must first establish a prima facie case of disability discrimination by showing that: (1) she was disabled, (2) that she was qualified for and performing competently in the position she held, (3) she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at p. 378.) The showing required on the second element (qualified and performing competently) is identical to that required for a cause of action for failure to reasonably accommodate. (Id [a “qualified individual is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation”].)

If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate nondiscriminatory reason for the adverse employment action. ((Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) If the employer meets this burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence that the employer’s reasons for the adverse employment action were a mere pretext for discrimination. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 356.)

As discussed above, the Court finds that Agrusa could not perform the essential functions of his job, with or without reasonable accommodation. Therefore, because Agrusa cannot establish this element of his disability discrimination cause of action, LAUSD is entitled to summary adjudication on this cause of action.

Failure to Engage in Interactive Process

Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or 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.” ((Gov. Code, § 12940(n).) “To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred.” ((Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at p. 379 [citation omitted].) “[T]he employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage.” ((Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at p. 379 [citation omitted].)

The only reasonable accommodation that Agrusa argues should have been available to him is the “same accommodation to which he had previously been granted for the same ‘disabilities’.” (Opp’n, p. 2: 20-21.) That accommodation was working in the office rather than out in the field. [UF 12.] As discussed above, this was not a reasonable accommodation because it would have eliminated an essential function of the job, especially in light of the fact that his restrictions became permanent following his June 2014 injury. LAUSD has shown that Agrusa cannot identify a reasonable accommodation that was available at the time of the interactive process, and consequently, LAUSD is entitled to summary adjudication on this cause of action.

Harassment

“The law prohibiting harassment is violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” ((Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263 [internal quotations omitted].) “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” ((Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.) “The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” ((Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at pp. 609-610.)

LAUSD contends that Agrusa cannot prevail on this cause of action because the purported harassment constitutes personnel management decisions and was not severe or pervasive. The conduct, as alleged in the Complaint, consists of the following: 1) John Gilbert and Richard Laret threatening Agrusa, humiliating Agrusa, and subjecting him to a hostile work environment, 2) refusing to allow Agrusa to continue his previous office duties without just cause after he was injured in 2014, 3) failing to engage in the interactive process, 4) wrongfully giving plaintiff poor performance evaluations, 5) making crude and offensive comments to and about Agrusa, 6) falsely claiming that Agrusa could no longer be accommodated, and 7) wrongfully denying Agrusa’s requests for reasonable accommodation. (Complaint, ¶ 36.)

The Court finds that items 2, 3, 4, 6, and 7 are “commonly necessary personnel management actions” which are not actionable as harassment. ((See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.)

With regard to items 1 and 5, the Court finds that there is no triable issue of fact that the complained-of conduct was severe and pervasive. First, LAUSD has submitted competent evidence that no one at LAUSD had ever made any derogatory comments to Agrusa regarding his disability. [UF 52.] Second, there is no competent evidence that John Gilbert, Richard Laret, or anyone else at LAUSD threatened Agrusa or made any other types of derogatory comments to Agrusa. The only evidence presented by Agrusa is his own declaration stating that derogatory comments were made about his ethnic background and his personal hygiene, and that these comments were reported to “the Teamsters” and to “Gloria Lujan, of Personnel.” [Agrusa Supp. Decl., p. 12:14 – 13:4.] This does not create a triable issue of fact that this conduct was severe or pervasive. There is no evidence of what comments were actually made and when they were made. Without such evidence, Agrusa cannot show that the purported harassment was of a repeated, routine or a generalized nature. Therefore, LAUSD is entitled to summary adjudication on this cause of action.

Conclusion

For the foregoing reasons, the Court grants LAUSD’s motion for summary judgment.

LAUSD is ordered to give notice of this ruling.

DATED: March 8, 2018

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court