Case Number: BC672809 Hearing Date: August 22, 2018 Dept: 32

rosa livier alvara,

Plaintiff,

v.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant.

Case No.: BC672809

Hearing Date: August 22, 2018

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

BACKGROUND

Plaintiff Rosa Alvara (“Plaintiff”) alleges that she was discriminated and retaliated against by her previous employer Defendant Los Angeles Unified School District (“Defendant.”) Plaintiff alleges that Defendant refused to accept her permissive leave paperwork, refused to acknowledge Plaintiff’s disability extension and terminated Plaintiff for exercising her right to request accommodations. (FAC ¶32.) Plaintiff asserts causes of action for (1) discrimination; (2) retaliation; (3) failure to prevent discrimination and retaliation; (4) failure to provide reasonable accommodations; (5) failure to engage in a good faith interactive process; (6) declaratory judgment; and (7) failure to permit inspection of personnel and payroll records.

EVIDENTIARY OBJECTIONS

The Court rules on Plaintiff’s evidentiary objections as follows: 7-17 and 21-27 OVERRULED.

Pursuant to CCP § 437c(q), “the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” The Court finds that any remaining evidentiary objections are immaterial to the disposition of this motion. All objections are preserved for appellate review.

ANALYSIS

First Cause of Action- Disability Discrimination

The essential elements of a disability discrimination claim are that the employee (1) has as disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; (3) the defendant’s adverse employment decisions; (4) because of Plaintiff’s actual or perceived disability. (Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) A plaintiff presents sufficient proof of a prima facie case of discrimination based on disability, where evidence showed the employer’s knowledge of the disability. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 314.)

Defendant contends that Plaintiff could not perform the essential functions of her job, never requested reassignment and there is no evidence that she suffered an adverse employment action because of her disability.

Essential Functions

To establish that an employer has discriminated on the basis of a disability in violation of FEHA, the plaintiff employee has the burden of proving he or she could perform the essential functions of the job with or without reasonable accommodation. (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 716.) Evidence of “essential functions” may include the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring employees to perform the function, the terms of a collective bargaining agreement, the work experiences of past incumbents on the job, and the current work experience of incumbents in similar jobs. (Atkins at 717; Cal. Gov. Code §1296(f)(2)). Cal. Gov. Code §12926(f) provides, (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.”

Defendant contends that Plaintiff received and was familiar with the job description for HCA and she understood lifting students of varying weights was a requirement of the job. (UMF 3, 5). Defendant states that the everyday duties of the HCA require that they be able to lift more than 15lbs and this is an essential function as Plaintiff would be responsible evacuating the child in the event of an emergency. (UMF 5) Plaintiff was assigned to a student who was wheelchair bound and her job duties included lifting him. (UMF 7.)

In opposition, Plaintiff contends that Defendant fails to establish that Plaintiff’s position could not have been modified such that plaintiff was able to perform her job’s essential functions. Plaintiff contends that examples of a reasonable accommodation include temporary placement in a nurse’s office, getting assistance from other workers to lift more than 15 lbs., attaching the child’s backpack to his wheelchair, use of waist support, temporary placement with a younger lighter student. (PMF 59, 60, 61, 63, 67, 76, and 79). Plaintiff provided testimony that when she was stationed at the nurses’ office, the nurse almost always assisted Plaintiff with lifting Victor onto the bed for catheterization and if the nurse couldn’t do it, then Steven Clark did. (PMF 59, 60, 61, 63.)

Plaintiff’s argument conflates the legal standards for discrimination under 12940(a) for discrimination and 12940(m) for failure to make reasonable accommodation. To establish a FEHA claim for discrimination, the plaintiff must prove he is qualified for the position for which an accommodation is sought, not for another position requested as a reassignment. (Atkins at 717). The question of whether plaintiffs could perform the essential functions of a position to which they sought reassignment is relevant to a claim for failure to engage in the interactive process and failure to accommodate. (Ibid.)

In opposition Plaintiff contends that Defendant has failed to establish that any weightlifting capacity was an essential function of an HCA. However, Plaintiff restrictions provided that she could not lift more than 15lbs and an Defendant has evidenced that an essential function of the job was to lift students of varying weights, and that Plaintiff could not with reasonable accommodation perform the act of lifting a student based on the doctor’s notes provided. As such, Defendant has conclusively negated a necessary element of the plaintiff’s case and Defendant’s motion for summary adjudication to the discrimination cause of action is GRANTED.

Age Discrimination- FEHA

The essential elements of an age discrimination case are (1) membership in a protected class (over 40); (2) Plaintiff was qualified or competent for the position sought or performed; (3) Plaintiff suffered an adverse employment action; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National., Inc. (2000) 24 Cal.4th 317, 355.)

Defendant contends that Plaintiff admitted in deposition she has no evidence of any discriminatory animus against her because of her age, except that no one called to check in on her during her leave of absence. (Plaintiff’s Depo 184:7-15; 187:22-25;191:20-192:15.)

In opposition, Plaintiff testified that she believes Defendant prefers younger employees because Defendant did not accommodate Plaintiff. However, such a belief is not supported by any evidence. As such, Defendant’s motion for summary adjudication on Plaintiff’s age discrimination claim is GRANTED.

Second Cause of Action – Retaliation

The elements of a retaliation claim under the Fair Employment and Housing Act (“FEHA”) are (1) the plaintiff engaged in a “protected activity” under the FEHA; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant contends that Plaintiff cannot establish a causal nexus between Plaintiff’s disability and an adverse employment action because Plaintiff admitted in deposition that she has no evidence to establish retaliatory animus by anyone at LAUSD. (Plaintiff’s deposition 200:7-201:16; 202:1-11.) Plaintiff does not offer any argument or evidence to the contradict Plaintiff’s own admissions. As such, Defendant’s motion for summary adjudication on the retaliation cause of action is GRANTED.

Third Cause of Action – Failure to Prevent Discrimination and Retaliation

Courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k). (Dickson v. Burke Williams Inc. (2015) 234 Cal.App.4th 1307, 1314)(“There’s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn’t happen, for not having a policy to prevent discrimination when no discrimination occurred…). Defendant contends that since Plaintiff failed to establish a cause of action for disability discrimination, and retaliation against the District, her claim for failure to prevent likewise fails. The Court agrees and Defendant’s motion for summary adjudication as to the failure to prevent claim is GRANTED.

Sixth Cause of Action- Declaratory Relief

Plaintiff basis her declaratory relief cause of action based on the contention that “Defendants did discriminate and retaliate against Plaintiff on the basis of Plaintiff’s disability or perceived disability” (Complaint ¶85.) As Plaintiff has failed to establish a claim for disability discrimination or retaliation, her claim for declaratory relief likewise fails.

Defendant’s motion for summary adjudication to the declaratory relief cause of action is GRANTED.

Fourth Cause of Action- Failure to Accommodate

The elements of a failure to accommodate cause of action are that (1) Plaintiff has a disability covered by the FEHA; (2) Plaintiff is a qualified individual, i.e. they can perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the plaintiff’s disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) The employee bears the burden of giving the employer notice of the disability, which then triggers the employer’s burden to take positive steps to accommodate the employee’s limitations. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) The employee retains a duty to cooperate with the employer’s efforts by explaining her disability and qualifications. (Ibid.) Thus, reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employer’s capabilities and available positions. (Ibid.)

FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks. (Ibid.) If the employee cannot be accommodated in her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available. (Ibid.) The responsibility to reassign a disabled employee who cannot be otherwise accommodated does not require creating a new job, moving another employee, promoting the disabled employee, or violating another employee’s rights under the collective bargaining agreement but it nevertheless does entail affirmative action. (Spitzer v. The Good Guys Inc. (2000) 80 Cal.App.4th 1376, 1389). Under the FEHA an employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would impose an undue hardship on its operations or if there is no vacant position for which the employee is qualified. (Ibid.)

On or about May 19, 2015, Plaintiff went to a chiropractor for her back pain and he provided her with a doctor’s note that said “no excessive or repeated bending or squatting and restrict from heavy lifting…10 lbs for one week.” (UMF 11.) In response, her supervisor Steven Clark, told her in May 2015 “No problem. I will help you.” (UMF 13). Plaintiff had applied to work the Extended School Year special education summer program from June 22 to July 17. (UMF 14.) On June 10, Plaintiff went to a doctor who have her a doctor’s note restricting her from pushing, pulling, or lifting over 15lbs for six weeks, or in the alternative, if those restrictions could not be accommodated that Plaintiff be considered totally temporarily disabled. (UMF 15; Exh 9.) Plaintiff notified LAUSD of these restrictions on the first day of her summer assignment. (Plaintiff’s Depo, 88:2-5.)

On July 22, 2015, Plaintiff was provided with a physician’s note identifying the same physical restrictions. (Exh 14.) On August 16, 2015, Plaintiff went to pupil free day and told Mr. Clark that she had extended restrictions. (Plaintiff’s Depo, 105:1-24). The assistant principal then told her, I think that you better call a substitute. And when you get better come back.” (Ibid.) At this point, Plaintiff was expecting to go back to work and that she would get better. (Plaintiff’s Depo, 108:14-15.) On September 21, 2015, Plaintiff submitted leave forms to LAUSD indicating that she needed a leave of absence from August 17, 2015 through November 15, 2015. (UMF 22.) Plaintiff knew there was a big difference in pay between being a teacher’s assistant and a healthcare assistant so she did not inquire about other positions. (Plaintiff’s Depo, 115:6-17).

On September 25, 2015, Plaintiff received a letter from the Personnel Commission stating that her leave request has been approved and processed, and expired on November 17, 2015. (Exh. 16.) The note provides, “If you exhaust all benefit time (illness and vacation hours) prior to returning to work, you will be separated from the District for exhaustion of benefit time. You may request a permissive leave to extend your leave. However, it is at the discretion of your supervisor and work location to approve this request. (Exh. 16.) Plaintiff was approved an additional leave of absence until January 12, 2016. (Exh 21.) Plaintiff was approved an additional leave of absence until February 19, 2016 (Exh 25); March 18, 2016 (Exh 28); April 4, 2016 (Exh 30); and August 15, 2016 (Exh 42). On September 30, 2016, Plaintiff received a letter stating that he request for permissive leave has been disapproved by her direct supervisor and “If you do not return to work within five working days from the date of this letter or respond to this letter, a voluntary resignation will be processed on your behalf with an effective date of September 2, 2016.” (Exh. 48). On October 20, 2016, Plaintiff received a letter stating that a voluntary resignation was processed on her behalf with an effective date of August 15, 2016. (Exh 49.) The letter stated, “A permanent employee who voluntarily resigns may request reinstatement within 39 months after the last paid day of service. Please remember that reinstatement is a privilege and not a right.” (Exh. 49). Jesus Nunez ultimately denied Plaintiff’s final request to extend her permissive leave because he doctor’s note indicated she would be unable to return to work until September 28, 2016. (Nunez Depo 129:10-20.)

Defendant contends they provided Plaintiff with an accommodation in the form of a lengthy paid leave of absence with multiple extensions. Plaintiff was afforded an unpaid permissive leave after she had exhausted her paid leave balances. (UF 58). When after four months of permissive leave Plaintiff submitted a doctor’s note in September of 2016, Principal Nunez denied her request for additional unpaid time off, triggering the mandatory provisions of Education Code §45192. Further, Defendant states that the only additional accommodation Plaintiff wanted was to be excused from performing an essential function of her job, namely lifting/pulling/pushing over 15 lbs. Defendant contends that Plaintiff concedes she never inquired with anyone at the District about reassignment and that once on leave of absence she did not contact the District for any reason other than to extend her leaves. (Plaintiff’s Depo 18:12-19; 141:24-142:7; 169:24-170:18; UF 43.)

Plaintiff contends that Principal Nunez did not refer Plaintiff to the personnel commission, a return to work specialist or the reasonable accommodation committee. Plaintiff contends that Defendant failed to provide reasonable accommodations to Plaintiff when it saw that a leave of absence had failed, and failed to transfer or reassign Plaintiff to a vacant position. Plaintiff contends that Defendant did not meet its burden to establish unequivocally that the employee was unqualified for any vacant position within the organization. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 260.) There is an affirmative duty to reassign a disabled employee if an already funded vacant position at the same level exists, and Defendant has not evidenced that it satisfied this burden by the mere existence of an Integrated Disability Management Department or Return at Work Specialists. (See Lewis Decl.) Plaintiff has evidenced that she could have been a teacher assistant, as that was her initial placement with LAUSD. (UF 1)

As such, a triable issue of material fact remains as to whether Defendant made affirmative efforts to determine whether a position is available, to offer other accommodations or even told Plaintiff of the availability of the return to work programs. The motion for summary adjudication as to the Failure to Accommodation claim is DENIED.

Fifth Cause of Action- Failure to Engage in the Good Faith Interactive Process

The elements of a cause of action to failure to engage in an interactive process are: (1) the plaintiff has a disability or medical condition that was known to the employer; (2) the plaintiff requested that his employer make a reasonable accommodation for that disability/medical condition so she would be able to perform the essential job requirements; (3) the Plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made; (4) the employer failed to participate in a timely, good faith interactive process with the Plaintiff; (5) the Plaintiff was harmed; and (6) the employer’s failure to engage in a good faith interactive process was a substantial factor in causing the Plaintiff’s harm. (Gov. Code §12940(n).)

Defendant contends there is sufficient evidence to show the District engaged in the interactive process at multiple stages, and that the process broke down because of Plaintiff’s inaction. Additionally Defendant contends that Plaintiff failed to identify a reasonable accommodation that was available at the time of the interactive process. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018)

Plaintiff claims she could have been reassigned to a different position and that the only information she received from Defendant was a form letter informing that she could either return from leave, ask for a leave of absence or resign. (See Exh. 28.) An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. (Scotch at 1018.)

For the above reasoning, the Court finds that there exist triable issues of material fact as to whether Defendants engaged in the interactive process to find an alternate vacant position for Plaintiff or inform Plaintiff of its return to work programs. As such, the motion for summary adjudication is DENIED.