Case Number: BC655012 Hearing Date: July 24, 2018 Dept: 47

Luz Flores v. City of Long Beach

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

MOVING PARTY: Defendant City of Long Beach

RESPONDING PARTY(S): Plaintiff Luz Flores

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that due to her medical condition, she could not perform cleaning services above the fourth floor of a building. Plaintiff alleges that she was discriminated against based on her disability in terms of overtime and work hours.

Defendant City of Long Beach moves for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING:

Defendant City of Long Beach’s motion for summary judgment is DENIED.

Defendant’s motion for summary adjudication is DENIED as to Issue No. 1 re: the first cause of action for disability discrimination, Issue No. 2 re: the first cause of action for retaliation, Issue No. 3 re: the second cause of action for failure to engage in good faith interactive process, Issue No. 4 re: the second cause of action for failure to accommodate, and Issue No. 6 re: the fourth cause of action. The motion for summary adjudication is GRANTED as to Issue No. 5 re: the third cause of action for race discrimination.

DISCUSSION:

Page Limit

Regardless of whether or not Plaintiff expressly objects to the page-limit, the Court independently observes that Defendant filed a 24-page brief without having obtained the Court’s permission to file a 24-page brief. Such permission will not be retroactively granted. Defendant’s argument regarding line space being changed from 1.5 to 2.0, causing the page count to go to 20 is not persuasive. This should have been noted before the Ps & As were filed by Defendant and, if 1.5 line spacing would have brought the opening brief within the page limit, then this should have been remedied before filing to demonstrate such. In other words, don’t file a 24-page brief then claim, after the fact that had the line spacing been different, it would have fit within the 20-page limit. Instead, simply don’t file a 24-page brief in the first place; make it a 20-page brief before filing.

A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit.

CRC, Rule 3.1113 (bold emphasis and underlining added).

CRC Rule 3.1113(d) sets forth a 20-page limit on points and authorities in support of or in opposition to summary judgment motions, unless the party applies for an application to file a longer memorandum, which Defendant did not do here. CRC Rule 3.1113(d) & (e). A memorandum filed in excess of the page limits “must be filed and considered in the same manner as a late-filed paper.” CRC Rule 3.113(g). The Court has discretion to disregard a late-filed brief. CRC Rule 3.1300(d). Be that as it may, the Court will consider the arguments and admissible evidence submitted even if such evidence relates to the arguments presented in the excess pages.

On the other hand, Plaintiff’s Amended Opposition is also 25 pages. She did not expressly receive permission from the Court to file a 25-page brief. The order that Plaintiff’s additional documents in support of her opposition “shall be considered in full by the Court in adjudicating the merits of this matter” (July 2, 2018 Order, ¶ 1), does not include permission to file a 25-page brief, because there is no indication that Plaintiff brought to the Court’s attention that she would be filing a 25-page amended opposition brief. Be that as it may, the Court will consider the arguments and admissible evidence Plaintiff presents at Pages 21 – 25 of that amended opposition.

Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of the following: *1) The City of Long Beach Active Employee Benefits Overview for 2017, available at the City’s website: (2) Richard T. Miyamoto, M.D., M.S., Merck Manual Professional Version, “Traumatic Perforation of the Typmanic Membrane, available at MerckManuals.com. Request No. 1 is DENIED. Judicial notice of City records is not permitted.

Evid. Code § 452 provides: “Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: . . . (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Bold emphasis added.)

Under Evidence Code section 452, judicial notice may be taken of decisional law and of public and private official acts of any state. This provision is also applicable to counties since they are, of course, legal departments of the state. (Watson v. Los Altos School Dist., 149 Cal.App.2d 768, 772 [308 P.2d 782].) Cities, however, are municipal corporations which are distinct individual entities and are not connected political subdivisions of the states. As such, they do not have the legal status of counties. (Otis v. City of Los Angeles, 52 Cal.App.2d 605, 611-612 [126 P.2d 954].) Therefore, the trial court properly refused to take judicial notice of the records of the city’s board of rights.

Marino v. Los Angeles (1973) 34 Cal.App.3d 461, 465 (bold emphasis added).

Request No. 2 is DENIED. This document does not come within any category set forth in Evid. Code § 452, of which the Court is permitted to take judicial notice.

However, the Court will consider the foregoing documents as evidence, subject to evidentiary objections.

Plaintiff’s Evidentiary Objections

Pursuant to CCP § 437c (q), the Court only rules upon those objections asserted against evidence which the Court deems to be material to the disposition of this motion.

Declaration of Russ Ficker

No. 2: OVERRULED as to 3 re: Exh. Q.

No. 3: OVERRULED. Sufficient foundation.

No. 4: OVERRULED. Sufficient foundation.

Declaration of Daniel De La Torre

No. 25: SUSTAINED. Speculative; conclusory.

No. 26: OVERRULED. Goes to weight.

Defendant’s Evidentiary Objections

Pursuant to CCP § 437c (q), the Court declines to rules upon Defendant’s objections as they are asserted against evidence which the Court does not deem to be material to the disposition of this motion. However, to the extent needed, the general and specific objections to the Declaration of Plaintiff Luz Flores based upon her lack of English skills is DENIED. She has sufficient knowledge of the English language, or alternatively, the lack of an official translation can be easily cured.

Motion for Summary Judgment

As discussed below, Defendant has not demonstrated that it is entitled to prevail as to all causes of action asserted against it. As such, 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: “That there is no merit to Plaintiff’s First Cause of Action for Discrimination on Account of Disability or Medical Condition (FEHA – Cal. Govt. Code § 12940 et seq.) against Defendant CITY OF LONG BEACH.”

Plaintiff alleges that she was involuntarily removed from her usual maintenance position in City Hall on February 3, 2016 and placed on a forced disability leave through August 31, 2016, and failed to return her to her customary position in City Hall or provide her with an alternative position, including at the Long Beach Airport. Corrected 1AC (“C1AC”), ¶ 55.a.

Plaintiff also alleges that at all relevant times, she was classified as a Permanent Part Time employee, while similarly situated employees without disabilities or medical conditions were classified as Full Time, and thus eligible for benefits and additional work assignments. C1AC, ¶ 55.b.

Plaintiff alleges that the maintenance position to which she was relocated in Long Beach Airport was inferior to her position in City Hall, where she should have been permitted to continue working. C1AC, ¶ 55.c. Moreover, although Plaintiff had been provided work weeks of 40 hours, as well as overtime, while working at City Hall, she was restricted to approximately 32 hours a week at the Long Beach Airport. Id.

Defendant’s MSA position on this issue is flawed. Defendant argues that Plaintiff’s limitation on the use of elevators prevented her from moving heavy equipment, supplies, and trash from the basement floors 1-4. Motion, Page 8:23-24. According to Defendant’s evidence, Facilities Management Officer De La Torre concluded City Hall would suffer a substantial hardship based on the belief that the doctor’s note received by Defendant on January 12, 2016 prohibited Plaintiff from working above the fourth floor “and from ‘riding elevators’ altogether.” UF No. 37; De La Torre Decl., ¶¶ 7-11, 13; Exh. S. However, Defendant’s own evidence reflects that Plaintiff was not restricted from “riding elevators altogether.” Rather, she was permitted to ride elevators from levels 0 (the first basement level) to level 4. See Defendant’s Exh. G (Medical Status and Work Restrictions Form Non-Occupational, filed January 19, 2016): “Other: Can ride elevator from floor 0-4. Restricted from elevator higher than 4th floor. Pt. has vertigo and claustrophobia.” (Bold emphasis and underlining added.) Moreover, on January 28, 2016, Plaintiff’s doctor, Dr. James Schmidt, M.D. clarified that Plaintiff was “Restricted from floor lower than 0 (i.e. Basement)”; “Can Ms. Flores work on floors above the 4th floor on a permanent basis? No”; “Also, restricted from working on floors less than 0, i.e., below 1st basement level.” Def’s Exh. I (bold emphasis added). Thus, Plaintiff was permitted to ride elevators from level 0 (first basement level) up to the 4th floor. De La Torre incorrectly states that Plaintiff would not be able to take the elevator to the basement level to gather custodial supplies and to empty the trash. De La Torre, Decl. ¶ 10. Thus, De La Torre’s conclusion that there would be a heavy burden on Plaintiff’s fellow maintenance employees because she could not take the elevator is faulty.

The fact that De La Torre concluded that Plaintiff was restricted from riding elevators “altogether” raises a triable issue of material fact as to whether he was using Plaintiff’s disability as a reason to discriminate against her by misinterpreting her work restrictions to make it appear as though her restrictions were being accommodated, when in fact she was subject to an adverse employment action. While an employer may be not held liable for discrimination for making an incorrect decision,[1] here, a triable issue of material fact exists as to De La Torre’s intent in removing Plaintiff from the City Hall assignment (and forcing her into disability retirement) because his motivation was expressly based upon Plaintiff’s disability. Although the decision was perhaps under the guise of accommodating Plaintiff’s disability, a jury is entitled to consider whether the true motivation was discrimination, considering that De La Torre did not engage in an interactive process to determine a reasonable accommodation before placing her on unpaid leave pending the disability retirement determination.

Gov. Code § 12940 provides:

It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental 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, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.

(Bold emphasis and underlining added.)

Gov. Code § 12926(f) provides:

(f) “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. “Essential functions” does not include the marginal functions of the position.

(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:

(A) The function may be essential because the reason the position exists is to perform that function.

(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.

(C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:

(A) The employer’s judgment as to which functions are essential.

(B) Written job descriptions prepared before advertising or interviewing applicants for the job.

(C) The amount of time spent on the job performing the function.

(D) The consequences of not requiring the incumbent to perform the function.

(E) The terms of a collective bargaining agreement.

(F) The work experiences of past incumbents in the job.

(G) The current work experience of incumbents in similar jobs.

Defendant further argues that, at least on occasion, each maintenance worker is expected to be able to report to any floor to address an immediate hazard (spill, tripping risk, etc.) and Plaintiff’s medical restrictions rendered these essential functions in direct conflict with Plaintiff’s work restrictions. Motion at Pages 8:25-9:2. Defendant argues that to attempt to accommodate Plaintiff’s restrictions would “plac[e] a substantial burden on the rest of the City Hall maintenance crew, expos[e] the public to bodily injury and the City to liability, and possibly endanger[ ] Plaintiff herself.” Motion at Page 9:7-9. This parade of horribles is not supported by substantial evidence that such risk to safety would materialize.

“The evidence of the party opposing the motion must be liberally construed, and that of the moving party strictly construed. (Citations omitted.)” Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 308.

“‘A judgment cannot be based on guesses or conjectures. (Puckhaber v. Southern Pac. Co., 132 Cal. 363 [64 P. 480].) And, also, “A finding of fact must be an inference drawn from evidence rather than on a mere speculation as to probabilities without evidence.

. . .

What constitutes substantial evidence, as distinguished from mere possibility or speculation, is clarified in the following passage from Estate of Teed, 112 Cal.App.2d 638, 644 [247 P.2d 54]: “The sum total of the above definitions is that, if the word ‘substantial’ means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with ‘any’ evidence. It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.”

Krause v. Apodaca (1960) 186 Cal.App.2d 413, 418.

Moreover, De La Torre states in his declaration that the elevator has been known to malfunction by shooting up to higher floors with disregard of where it was supposed to go, weight load adjustments on the elevator where the elevator seems like it drops, door problems and the elevator shutting down with people getting stuck for a period of time. De La Torre Decl., ¶12. While such elevator malfunctions would certainly seem inimical to Plaintiff’s medical condition of vertigo and claustrophobia, it sounds like Defendant needs to repair the elevator because it poses a safety to risk to any occupant. Defendant must demonstrate why—after Defendant repairs the elevator—Plaintiff could still not be able to ride the elevator.

Moreover, the immediate adverse employment action was that Plaintiff was placed off of work from City Hall, and unpaid leave of absence pending a disability retirement determination from CalPERS, for up to one year, on June 20, 2016. Pltf’s Exh. 22. More than two months later (while Plaintiff was presumably on unpaid leave), on August 31, 2016, Plaintiff was offered employment at the Long Beach Airport. Pltf’s Exh. 27. Defendant indicates that during this time Plaintiff continued to receive “benefits” including medical, vision and dental; sick leave; retirement; deferred compensation; paid vacation; life insurance and catastrophic leave/FMLA[2] leave. UF Nos. 30-32; Ficker Decl., ¶ 21; Thompson Decl., ¶ 13. However, Defendant’s own evidence reflects that Plaintiff lost income (i.e., earned wages instead of “benefits[3]”) in the amount of $22,800 over 31 weeks from February 3, 2016 (when she was placed off-duty from City Hall) until September 11, 2016 (when she began working at Long Beach Airport). See Def’s Exh. BB, Page 24:11-13, Pltf’s Response to Form Interrogatory (Employment Law) 210.2. Thus, a triable issue of material fact exists as to whether Plaintiff suffered an adverse employment action due to loss of wages she could have earned had she not been placed off-duty from her City Hall assignment on February 3, 2016.

A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” (Crady v. Liberty Nat. Bank and Trust Co. (7th Cir. 1993) 993 F.2d 132, 136.) The employment action must be both detrimental and substantial. (Bernheim v. Litt (2d Cir. 1996) 79 F.3d 318, 327 (conc. opn. of Jacob, C. J.).)

Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511 (bold emphasis added).

To summarize, Defendant’s evidence demonstrates that Plaintiff was removed from performing work at City Hall pending disability retirement determination to Long Beach because of Plaintiff’s disability (Defendant misinterpreted the doctor’s restrictions). Plaintiff has submitted evidence sufficient to raise a triable issue of material fact as to whether Plaintiff suffered an adverse employment action by losing earned wages for 31 weeks. As such, a triable issue of material fact exits as to whether Plaintiff suffered disability discrimination.

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

2. Issue No. 2: “That there is no merit to Plaintiff’s First Cause of Action for Retaliation on Account of Disability or Medical Condition (FEHA – Cal. Govt. Code § 12940 et seq.) against Defendant CITY OF LONG BEACH.”

“[I]n order to establish either a discrimination or a retaliation claim, ‘an employee must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment … .’ (Citations omitted.)” Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158, 1168. “[T]he 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.” Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.

For the reasons discussed above re: Issue No. 1, a triable issue of material fact exists as to whether Defendant retaliated against Plaintiff for submitting her doctor’s restrictions by immediately placing Plaintiff off of work, which caused her to lose 31 weeks of wages she could have been earning during that time.

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

3. Issue No. 3: “That there is no merit to Plaintiff’s Second Cause of Action for Failure to Engage in the Interactive Process (FEHA – Cal. Govt. Code § 12940 et seq.) against Defendant CITY OF LONG BEACH.”

Plaintiff alleges that, despite having generally reasonably accommodated Plaintiff’s vertigo and claustrophobia from approximately 2007 to 2015 and against from January 30 to February 3, 2016, Defendants failed to provide reasonable accommodations through August 30, 2016, when Plaintiff was offered a Maintenance I job at the Long Beach Airport. C1AC, ¶¶ 63-65.

Cal Gov Code § 12940(n) provides:

It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
. . .

(n) For an employer or other entity covered by this part 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.

(Bold emphasis added.)

As discussed above, Plaintiff was immediately removed from her duties at City Hall pending a disability retirement determination. Defendant does not provide any evidence that it engaged in a timely good faith interactive process because Plaintiff was not given an opportunity to engage in such interactive process before she was placed on leave pending the disability determination, whereby she lost the opportunity to earn wages (instead of utilizing benefits which she could have saved up for actually vacations she wanted to take or actual sick leave she needed to utilize).

The motion for summary adjudication as to Issue No. 3 re: the second cause of action for failure to engage in good faith interactive process is DENIED.

4. Issue No. 4: “That there is no merit to Plaintiff’s Second Cause of Action for Failure to Accommodate (FEHA – Cal. Gov. Code § 12940 et seq.) against Defendant CITY OF LONG BEACH.”

“The elements of a failure to accommodate claim are (1) the 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.

Plaintiff alleges that, despite having generally reasonably accommodated Plaintiff’s vertigo and claustrophobia from approximately 2007 to 2015 and against from January 30 to February 3, 2016, Defendants failed to provide reasonable accommodations through August 30, 2016, when Plaintiff was offered a Maintenance I job at the Long Beach Airport. C1AC, ¶¶ 63-65.

Defendant argues that Plaintiff was unable to perform the essential functions of her job because she needed to use elevators regularly to move heavy equipment, supplies, and thrash from the basement floors 1-4. Also, on occasion, each maintenance worker is expected to be able to report to any floor to address an immediate hazard (spill, tripping, risk, etc.). Defendant argues that Plaintiff’s doctor-imposed restrictions rendered these essential functions in direct conflict with Plaintiff’s work restrictions.

However, as discussed above, Plaintiff was immediately removed from her duties at City Hall pending a disability retirement determination. Defendant does not provide evidence that this was a reasonable accommodation because Plaintiff was not given an opportunity to request a reasonable accommodation before she was placed on leave pending the disability determination, whereby she lost the opportunity to earn wages (instead of utilizing benefits which she could have saved up for actually vacations she wanted to take or actual sick leave she needed to utilize).

The motion for summary adjudication as to Issue No. 4 re: the second cause of action for failure to accommodate is DENIED.

5. Issue No. 5: “That there is no merit to Plaintiff’s Third Cause of Action for Discrimination based on Race, Ethnicity or National Origin (FEHA – Cal. Govt. Code § 12940 et seq.) against Defendant CITY OF LONG BEACH.”

Plaintiff alleges that Plaintiff was subject to discriminatory adverse employment actions because she is of Hispanic origin and is predominantly a Spanish speaker. C1AC, ¶ 73. Plaintiff alleges that Defendants were aware that Plaintiff had limited English ability and historically had provided Plaintiff with documents and correspondence in English and Spanish, and ensured that in meetings with City staff she was accompanied by a translator. Id. at ¶ 74. Plaintiff alleges that, at key points during 2016, particularly when denying Plaintiff a reasonable accommodation and in sending her correspondences in connection with the City’s purported interactive process, Defendants communicated with Plaintiff exclusively in English and did not attempt to obtain a Spanish interpreter or translate written correspondences into Spanish, as they were able to do on other occasions. Id. at ¶ 75. Plaintiff alleges that on February 3, 2016, with no Spanish interpreter present, Bartlow-Nieves told Plaintiff the City of Long Beach was placing her on involuntary disability, a leave of absence with the caveat that she could return to her job only if authorized. Id. at ¶ 76. Plaintiff understood very little of the meeting except that she was being removed from her position and that she could not return until the City authorized it. Id. Plaintiff alleges that Bartow-Nieves continued to correspond with Plaintiff in English, despite Principal Deputy City Attorney Gary J. Anderson’s confirmation, in writing, that Plaintiff had limited English writing and speaking skills. Id. at ¶ 77. Plaintiff alleges that, as a result, she was deprived of fully understanding or responding to the actions that were being taken against her, and that Defendants intentionally deprived Plaintiff of a Spanish interpreter and did not translate key correspondence into Spanish so as to prevent her from taking advantage of her rights as a City employee or protest wrongdoing. Id. at ¶ 78.

“[I]n order to establish either a discrimination or a retaliation claim, ‘an employee must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment … .’ (Citations omitted.)” Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158, 1168. “[T]he 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.” Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.

In California, an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity. (Citation omitted.) “A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” (Citation omitted.) “ ‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’ [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any ‘action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’ [Citation.]” (Citation omitted.) The plaintiff must show the employer’s retaliatory actions had a detrimental and substantial effect on the plaintiff’s employment. (Citations omitted.)

McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386-87 (bold emphasis and underlining added).

A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” (Crady v. Liberty Nat. Bank and Trust Co. (7th Cir. 1993) 993 F.2d 132, 136.) The employment action must be both detrimental and substantial. (Bernheim v. Litt (2d Cir. 1996) 79 F.3d 318, 327 (conc. opn. of Jacob, C. J.).)

Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511 (bold emphasis added).

Here, Defendant has presented evidence that Defendant only failed to provide Plaintiff with a Spanish translator on February 3, 2016, but Plaintiff understood that she was being told at that meeting that she would not be able to work at City Hall any longer because she could not go above the fourth floor. UF Nos. 59 – 61; Pltf’s Depo. 278:2-281:19. Plaintiff admitted that, after the February 3, 2016 meeting, she had 9 to 13 more meetings with Bartlow-Nieves (and other individuals also present) before returning to work at the Airport, and that there was someone there to translate for her at every single one of those additional meetings. UF No. 65; Pltf’s Depo. at 284:10-286:6.

The failure to provide a Spanish Interpreter is not an adverse employment action for purposes of a FEHA discrimination action, especially when Plaintiff admits she understood what she was being told at the February 3, 2016 meeting. Rather, it is the fact that Plaintiff was not be permitted to work at City Hall any longer which would constitute an adverse employment action. However, Plaintiff did not plead in the C1AC that she was not permitted to work at City Hall on the basis of her race. Accordingly, Defendant has demonstrated that Plaintiff was not subjected to any adverse employment action on the basis of her race. The burden shifts to Plaintiff to raise a triable issue of material fact.

In her opposing separate statement/statement of additional facts, Plaintiff fails to cite any evidence sufficient to raise a triable issue of material fact as to whether she suffered an adverse employment action on the basis of her race. Plaintiff’s attempt to introduce a new theory of liability in her separate statement of additional facts for failure to transfer Plaintiff due to her limited English (see Additional Facts (“AFs”)) No. 19, is impermissible.

Plaintiffs cannot defeat summary judgment by showing a triable issue as to an unpled theory. “The complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded.” (Citation omitted.)” Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225 (bold emphasis added). See also Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387 (“[A] summary judgment motion is directed to the issues framed by the pleadings. [Citations.] Those are the only issues a motion for summary judgment must address. [Citations.]” (Citation omitted.))”

The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint. A “moving party need not ‘. . . refute liability on some theoretical possibility not included in the pleadings.’ [Citation.]” (Citation omitted.) ” ‘[A] motion for summary judgment must be directed to the issues raised by the pleadings. The [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.’ [Citation.]” (Citations omitted.)

Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342 (italics in original, bold emphasis added).

As such, the motion for summary adjudication as to Issue No. 5 re: the third cause of action for race discrimination is GRANTED.

6. Issue No. 6: “That there is no merit to Plaintiff’s Fourth Cause of Action for Failure to Prevent Discrimination or Retaliation (FEHA – Cal. Govt. Code § 12900 et seq.) against Defendant CITY OF LONG BEACH.”

A failure to prevent claim under FEHA requires that the actual discrimination, harassment or retaliation have actually occurred.

See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4 [44 Cal. Rptr. 3d 223, 135 P.3d 637] (‘But courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k)’).” We affirm on the same ground.

Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 208, superseded by statute on other grounds as stated in Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239.

As discussed above, Plaintiff’s disability[4] discrimination and retaliation claims survive.

“The FEHA makes it a separate unlawful employment practice for an employer to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (§ 12940, subd. (k).)” State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040 (bold emphasis added).

The fact that Defendant has Personnel Policies prohibiting discrimination based on disability (UF No. 88; Ficker Decl., ¶ 3; Def’s Exh. Q) is insufficient to demonstrate that Defendant took “all reasonable steps necessary” to prevent discrimination and retaliation from occurring.

The motion for summary adjudication as to Issue No. 6 re: the fourth cause of action is DENIED.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: July 24, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1]

On the other hand, if nondiscriminatory, Bechtel’s true reasons need not necessarily have been wise or correct. (See, e.g., Horn, supra, 72 Cal. App. 4th 798, 807; Hersant, supra, 57 Cal. App. 4th 997, 1009.) While the objective soundness of an employer’s proffered reasons supports their credibility (see discussion, post), the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.

Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357.

[2] FMLA leave is unpaid leave—it is the employee’s job status that is protected under FMLA leave. See https://www.dol.gov/sites/default/files/PaidLeaveFinalRuleComparison.pdf.

[3] Plaintiff should have been able to earn wages instead of involuntarily having to use up sick leave and vacation when she was not planning to.

[4] But not race.