Filed 3/26/20 Hays v. County of Los Angeles CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

KANDY E. HAYS,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent. B291542

(Los Angeles County

Super. Ct. No. BC655988)
KANDY E. HAYS,

Plaintiff and Respondent,

v.

COUNTY OF LOS ANGELES,

Defendant and Appellant. B293192

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark Mooney, Judge. Affirmed as modified.

Stone|Dean, LLP and Robyn McKibbin for Plaintiff Kandy E. Hays.

Gutierrez, Preciado & House, LLP, Calvin House and Nohemi Gutierrez Ferguson for Defendant County of Los Angeles.

__________________________

Plaintiff Kandy Hays appeals from the trial court’s grant of summary judgment in favor of her former employer, defendant the County of Los Angeles. The County appeals from the trial court’s denial of its motion for attorneys’ fees. Hays filed suit against the County for violation of Labor Code section 1102.5 and various claims under California’s Fair Employment and Housing Act (FEHA), because Hays believed the County had retaliated and discriminated against her for disagreeing with County contracting decisions at a County-managed equestrian center.

We conclude that the trial court properly granted summary judgment because Hays could not demonstrate she had a reasonable belief that the County’s actions were unlawful, or that the County had failed to accommodate her. We also conclude that the trial court did not abuse its discretion when denying the County’s attorneys’ fee motion, but erred when granting the County its costs. Accordingly, we affirm the judgment and the order denying attorneys’ fees, and reverse the award of costs.

FACTUAL AND PROCEDURAL HISTORY

A. Hays’ Employment with the County
B.

Hays worked for the County of Los Angeles (the County) for over forty years, consistently receiving positive performance reviews. In March 2005, Hays transferred to the Department of Parks and Recreation (the Department) as an Administrative Services Manager III, with the title Division Chief, Contracts and Golf Division. Hays and her staff developed and monitored the Department’s requests for proposals, and monitored approximately 100 vendor contracts and their amendments and extensions for the County’s golf operations and special districts. As Division Chief, Hays had an office at the Los Angeles County Arboretum in Arcadia, and worked a 4-day, 40-hour (4/40) weekly schedule.

C. Hays Expressed Concerns with the County’s Handling of Certain Vendor Contracts
D.

1. The County’s WNEC Contract with Griffith
2.

Hays oversaw contracts for the Whittier Narrows Equestrian Center (WNEC). When Hays became Division Chief, Joel Griffith and his wife operated the WNEC under a contract with the County. The contract included a conditional five-year extension option if Griffith completed certain property improvements.

Throughout Griffith’s contract period, Hays expressed concerns about how the County was managing his contract. Hays believed the County intentionally prevented Griffith’s compliance with his contract. For example, the County failed to inform Griffith when permits were unnecessary for building on the property. The contract also required Griffith to obtain a business license, but the County refused to provide Griffith with a Site Plan necessary to obtain a business license.

The County sent Griffith numerous notices of his default. Instead of cancelling Griffith’s contract due to default, the County allowed Griffith to keep operating the WNEC until the end of his initial contract term and then denied Griffith’s option extension on grounds of contract breach. Hays felt it was unfair for the County to have cause to default Griffith in 2008, but permit Griffith to remain the WNEC operator until 2014 to ensure the facility remained open, and then deny his five-year extension. Hays told County employees that Griffith would file a lawsuit over his contract’s extension option.

Griffith sued the County. During the litigation, Hays testified that she believed the County should have informed Griffith that he was not required to obtain a conditional use permit for the WNEC.

3. The County’s WNEC Contract with Litton
4.

While in litigation with Griffith, the County entered into a Director’s Agreement with Linda Fitton to operate the WNEC for a three-year term, with an oral promise of a seven-year extension if Fitton cooperated with the County in the Griffith litigation. On the eve of the WNEC operator transition from Griffith to Fitton, the County and Griffith reached a partial settlement allowing Griffith to remove some of the facility’s essential structures. Griffith also removed or damaged WNEC electrical fixtures, irrigation lines, and safety features. Fitton did not challenge the County and Griffith’s partial settlement based on the County’s promises to award her a seven-year contract extension.

Griffith lost his lawsuit against the County. When the Griffith litigation ended, Hays was called to a meeting to discuss Fitton’s extension, and learned that the County would not be granting the extension. As Department Director, John Wicker had sole authority to extend or not extend Fitton’s contract. Hays believed the County should have granted Fitton’s seven-year contract extension.

After the meeting, Hays walked into Wicker’s office and told him she was “not going to screw over another operator . . . . The department has to stop screwing over operators.” Hays was upset and raised her voice. Hays then approached County counsel Scott Kuhn about Fitton’s extension, but Kuhn denied knowledge of any extension. Hays became enraged, and cursed and yelled at Kuhn. Hays believed the County was taking advantage of another WNEC operator for its own benefit.

E. Hays’ Removal from the WNEC Contract
F.

Approximately two weeks after her conversations with Wicker and Kuhn about the County’s decision not to extend Fitton’s contract, Hays took a medical leave of absence for a surgical procedure. On March 30, 2016, two days into her medical leave, Wicker advised Hays that she was being removed from all WNEC-related matters. Wicker told Hays that he felt she was too emotionally attached to the WNEC situation and could not act objectively. Wicker instructed Hays not to communicate with anyone involved with WNEC, including Hays’ staff and Fitton.

At least four times during this conversation, Hays told Wicker she felt she was being retaliated against for complaining about the County’s handling of the WNEC contracts.

G. Conflict of Interest Investigation
H.
Hays returned to work from her medical leave on April 18, 2016. On May 3, Hays’s subordinate Christopher Kinney informed Wicker that Hays had asked him to proofread a letter ostensibly from Fitton to the Department of Supervisors, conveying Fitton’s belief that the Department was treating her unfairly. Kinney was aware that Hays had been told not to have further dealings with the WNEC. Kinney also felt it inappropriate and a conflict of interest for Hays to advocate on behalf of a vendor. That same week, Wicker learned that Fitton had sent a letter to Los Angeles County Supervisor Hilda Solis’s personal County email; Kinney confirmed that Fitton’s email contained the same letter that Hays had requested Kinney to edit.

At Wicker’s request, on May 4 the Department opened an investigation to determine whether Hays had a conflict of interest regarding Fitton’s WNEC contract that violated County policy. After Hays left work on May 5, a member of Hay’s staff messaged Hays that her computer hard drive had been removed from her office. Hays returned to her office in the arboretum on May 7 to find the doors to the entrance padlocked and guarded by a Sheriff’s vehicle and security guard. That same day, Hays received a letter informing her that she was the subject of an investigation; that she was not to contact Fitton or two subordinate staff members who were potential witnesses; that she was to cease any activities regarding records or documents in her section; and that she was to report to her supervisor Robert Maycumber’s office in Department Headquarters in Los Angeles on May 9.

On May 9, the Department removed Hays from her assignment based on preliminary findings of misconduct in an internal inquiry. While the investigation remained pending, Hays was not permitted to return to the arboretum, contact any member of the Department’s Contracts/Golf Division, or resume her job duties. Due to the investigation, Hays no longer supervised or managed any staff, and was instead treated like a staff member herself and tasked with duties far below her work classification. Hays retained her title and compensation.

I. Hays’ Medical Restrictions and the Department’s Interactive Process Meetings and Accommodations
J.

Due to complications from her surgery, Hays’ doctor restricted her daily work commute by both time and distance—Hays was not to travel more than 25 miles or 45 minutes to or from work. On May 6, Hays provided the Department’s Return to Work representative with her temporary medical work restrictions. Emelia Leng, an Administrative Service Manager for the Department’s Return to Work program, was tasked with the interactive process to find Hays an appropriate accommodation. The County held an interactive process meeting with Hays on May 9—the next business day after receiving her work restrictions.

During this meeting, Hays agreed to work at an office estimated to be a 45-minute drive from her home while Leng searched for alternative offices closer to Hays’ home. On May 19, Leng offered Hays two alternative offices within 25 miles of Hays’ home. Hays rejected these alternatives because she believed they would entail commutes longer than 45 minutes.

On June 1, the County held another interactive process meeting with Hays, and approved Hays’ request to telecommute as a temporary reasonable accommodation. Following her initial interactive process meeting, Hays worked one day in a County office—on May 16 at the location agreed upon during the May 9 meeting—until switching to telecommuting beginning in June and lasting through her final work day before she retired.

At the end of June, the County attempted to switch Hays to a 5-day, 40-hour (5/40) weekly schedule but Hays requested to remain on her 4/40 schedule, and the County acquiesced. The County held a follow-up telephonic interactive process meeting with Hays on June 30, advising Hays that her 4/40 schedule would remain the same and approving her telecommuting through her last day of work before retirement.

Hays retired August 30, 2016. Before her issues with Wicker and the WNEC contracts, Hays had planned to work until at least 2018 before retiring.

K. Hays’ Administrative Complaints
L.

On May 7, Hays filed a Report of County Policy of Equity Retaliation, alleging escalating retaliation by Wicker against her due to continued disagreements on the handling of the WNEC contract. Hays declined to be interviewed by a member of the County’s Equity Oversight Panel regarding her report.

Hays filed a claim with the Los Angeles County Board of Supervisors on September 6, 2016, which was rejected. Hay’s December 15, 2016 amended claim was also rejected.

On March 28, 2017, Hays filed a complaint with the Department of Fair Employment and Housing (DFEH) against the County alleging whistleblower retaliation, disability discrimination and harassment, failure to engage in the interactive process, and failure to provide reasonable accommodation. The DFEH issued Hays a Right to Sue notice on the same date.

M. Hays’ Lawsuit Against the County
N.

Hays filed a lawsuit against the County on March 30, 2017, alleging whistleblower retaliation in violation of Labor Code section 1102.5 (Section 1102.5); failure to engage in the interactive process; failure to accommodate disability; and disability discrimination and harassment. Hays alleged that when she complained about the County’s treatment of its WNEC operators, she had reasonable cause to believe that the County’s conduct violated or did not comply with state or federal statutes or regulations. Hays alleged the County then retaliated against her for her complaints by removing her from the WNEC contract; forbidding her to communicate with anyone involved with the WNEC, including her staff; confiscating her computer; locking her out of her arboretum office; initiating a bogus investigation against her; transferring her to remote work locations in violation of her commuting medical restrictions; assigning her tasks below her job classification, and revoking her telecommuting approval. As a result, Hays alleged she was constructively terminated by the County and forced into early retirement.

Hays also alleged the County harassed and discriminated against her, did not timely engage in a good faith interactive process, and failed to reasonably accommodate her once her doctor restricted her work commute.

O. The County’s Motion for Summary Judgment
P.

The County answered Hays’ complaint and moved for summary judgment or summary adjudication of the complaint’s causes of action. The County argued Hays could not establish a prima facie case of whistleblower retaliation because she had not engaged in any protected activity. While Hays had disclosed County behavior that she felt was unfair, she admitted that she did not believe the County’s conduct violated any statute or regulation, as is required to state a Section 1102.5 claim. Moreover, Hays could not support her claim with any admissible evidence; Hays admitted in deposition that she did not believe the County’s conduct was unlawful, and Hays made no disclosures regarding Fitton’s WNEC contract.

Hays’ complaint also failed to identify any actionable adverse employment action; the alteration of her job responsibilities and the Department’s conflict of interest investigation were not materially adverse, and the Department was immune from liability based on an internal investigation. Moreover, Hays could not establish a causal link between any alleged whistleblowing pertaining to Griffith’s WNEC contract and her removal from the WNEC contract nearly two years later. Additionally, the County had produced admissible evidence that nondiscriminatory reasons had motivated the actions Hays perceived as retaliatory, and Hays had no evidence that the County’s reasons were pretextual.

The County argued Hays’ causes of action for failure to engage in the interactive process and failure to make reasonable accommodation necessarily failed because the County initiated the interactive process on the first business day after learning of Hays’ medical work restrictions, and Hays was reasonably accommodated at all times following.

The County contended Hays could not establish a prima facie case for disability harassment and discrimination because Hays did not provide the Department with her work restrictions until after the allegedly adverse actions she complained of had occurred: she had been removed from the Arboretum; removed from the WNEC contract; and told not to communicate with certain people. Additionally, the complaint did not allege any harassing conduct.

Hays opposed the motion, arguing triable issues of material fact precluded summary adjudication of each of the complaint’s causes of action. With respect to her whistleblower retaliation claim, Hays argued that she complained about what she perceived to be unlawful and unfair actions taken against County vendors—the County repeatedly made promises and assurances to vendors that it did not keep. In response, Wicker stripped Hays of all WNEC-related duties and commenced a punitive and pretextual investigation against Hays. During the year in which the investigation remained pending, Hays could not access her arboretum office and was not assigned any substantive work.

Regarding Hays’ claims for failure to engage in the interactive process, failure to accommodate, and disability discrimination and harassment, Hays argued triable issues of fact existed regarding Wicker’s and County counsel’s involvement in her interactive process, leading to revocation of both her telecommuting accommodation and her four-day work week schedule.

Q. The Court’s Ruling and Judgment
R.

The court ruled that Hays had failed to show the existence of any triable issue of fact, and granted the County’s motion for summary judgment. When questioned at the hearing what statute or regulation grounded Hays’ Section 1102.5 whistleblower retaliation claim, Hays’ counsel alleged Hays had disclosed what she reasonably believed was the County’s violation of the Civil Code sections governing contracts and intentional misrepresentation. The court responded that breach of contract is not grounds for whistle blowing. Thus, Hays failed to establish as part of her prima facie case that she had engaged in protected activity. As to Hays’ other causes of action, the court noted that the County immediately engaged in the interactive process with Hays, and provided Hays with her requested accommodation through her last work day.

Hays moved for a new trial alleging various errors in the court’s summary judgment ruling; the court denied this motion.

S. Hays’ Motion to Tax Costs
T.

The County filed a memorandum of costs seeking $20,740.44. Hays moved to tax these costs, arguing that a prevailing FEHA defendant should not be awarded fees or costs where, as here, the plaintiff’s claims were not frivolous, unreasonable, or groundless. In the event the Court awarded the County costs based on Hays’ Labor Code claim, Hays argued the County’s memorandum should be taxed to exclude unreasonable costs such as filing fees the County was exempt from paying and reporter transcription fees for transcriptions not ordered by the court.

The County opposed Hays’ motion, arguing it was entitled to recover costs incurred while defending against Hays’ Section 1102.5 claim as a matter of right, and that the court should exercise its discretion to award the County its costs on Hays’ frivolous FEHA claims.

U. The County’s Motion for Fees and Costs
V.

The County moved to recover $303,857.94 in fees and costs, alleging a discretionary fee award was proper because Hays’ lawsuit was frivolous when brought. Hays opposed the motion and the County’s contention that her lawsuit was frivolous.

W. The Court’s Order Denying Fees and Partially Taxing the County’s Costs
X.

Following oral argument , the court denied the County’s motion for recovery of attorneys’ fees, granted in part Hays’ motion to tax the County’s costs, and awarded the County costs of $15,644.44.

Y. Notices of Appeal
Z.

Hays appealed the judgment of dismissal following the court’s grant of summary judgment. The County appealed the court’s denial of its motion for attorneys’ fees.

DISCUSSION

A. We Review Summary Judgment De Novo
B.
“A motion for summary judgment shall be granted if all the evidentiary papers submitted, which we review independently, 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. We do not resolve factual issues but ascertain whether there are any to resolve. [Citations.] [¶] A defendant ‘may move for summary judgment in any action or proceeding if it is contended that the action has no merit.’ [Citation.] A cause of action has no merit if it is shown that the plaintiff cannot establish one or the action’s elements. [Citations.] [¶] Because a summary judgment denies the losing party a trial, we liberally construe the evidence in support of that party and resolve doubts concerning the evidence in that party’s favor. [Citation.]” (Patten v. Grant Joint Union High School Dist. (2005)134 Cal.App.4th 1378, 1383-1384 (Patten).)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 850.) The party opposing summary judgment “may not rely upon the mere allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of material fact exists . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.)

We affirm summary judgment where it is shown that no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

C. Summary Judgment Was Proper
D.

1. Hays Cannot Establish an Essential Element of her Whistleblower Retaliation Claim
2.

a. Summary of Section 1102.5
b.

Section 1102.5, subdivision (b) prohibits an employer from retaliating against an employee for disclosing a violation of local, state, or federal statute, rule, or regulation to a governmental or law enforcement agency, or to a supervisor with authority to investigate or correct the violation. This provision “reflects the broad public policy interest in encouraging workplace ‘whistleblowers,’ who may without fear of retaliation report concerns regarding an employer’s illegal conduct.” (Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1123.)

“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [Citations.] We are concerned here with the first element of a section 1102.5(b) retaliation claim, establishing a prima facie case of retaliation. To do that, plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. [Citation.]” (Patten, supra, 134 Cal.App.4th at pp. 1383-1384.)

An employee alleging Section 1102.5 retaliation “need not prove an actual violation of law; it suffices if the employer retaliated against him [or her] for reporting his [or her] ‘reasonably based suspicions’ of illegal activity.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.) Nevertheless, to constitute protected activity, the employee must have an actual belief that the employer’s actions were unlawful and the employee’s belief, even if mistaken, must be reasonable. (Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, 933-934 (Carter); Patten, supra, 134 Cal.App.4th at pp. 1384-1385).

In Patten, for instance, the Court of Appeal concluded that a school principal’s report of student complaints about inappropriate behavior by two male teachers, and request for additional staff to assist with campus safety, were made in “the context of an internal personnel matter . . . rather than in the context of a legal violation,” and “d[id] not show any belief on [the principal’s] part that she was disclosing a violation of state or federal law in any sort of whistleblowing context.” (Patten, supra, 134 Cal.App.4th at p. 1385.)

Similarly, in Carter, the Court of Appeal held that a teacher’s report to the high school athletic director that the football coach had recommended a student take a weight-gaining nutritional supplement was not protected activity under Section 1102.5. (Carter, supra, 148 Cal.App.4th at pp. 933-934.) The Court of Appeal concluded that the teacher’s disclosure “was not motivated by his belief that a law had been broken,” and that “even if [the teacher] subjectively believed that [the football coach] had violated a statute or regulation . . ., the record is devoid of anything that would support a conclusion that his belief was ‘reasonable.’” (Id. at p. 933.) The court also reasoned that, as in Patten, the teacher’s report was akin to “a routine ‘internal personnel disclosure’ that was, at its core, a disagreement . . . .” (Id. at p. 934.) Because the disclosure “was not whistleblowing under section 1102.5,” it could not support a retaliatory termination claim as a matter of law. (Ibid.)

An employer can satisfy its burden on summary judgment by showing that the plaintiff cannot establish a prima facie case of retaliation. (Molker v. County of Orange (2007) 157 Cal.App.4th 121, 139; see also Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150 [employer must present ‘admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors’].)

c. Hays Cannot Make a Prima Facie Showing That She Engaged in Section 1102.5 Protected Activity
d.

The County argues Hays cannot make a prima facie showing of retaliation under Section 1102.5 because Hays did not reasonably believe her complaints about Griffith’s and Fitton’s WNEC contracts disclosed any violation of or noncompliance with state or federal law. Hays’ briefing asserts she complained “about what she perceived to be unlawful . . . actions taken against two vendors for many years,” and that she “disclose[d] what she perceived to be a violation of state and/or federal law.” However, Hays’ proffered evidence does not support her briefs’ contentions. Claims and theories not supported by admissible evidence do not raise a triable issue. (Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 216-219.)

When asked during deposition whether she believed the County’s actions that she had disagreed with were unlawful, Hays repeatedly answered either no, or that she did not know. For example, when asked if she thought the County was taking unlawful or unfair actions toward Griffith, Hays responded “Not unlawful. . . . Did I believe how he was being treated was unfair? Yes, I did.” Hays testified that she believed the County had made misrepresentations to Fitton and breached Fitton’s contract when it denied her extension, but Hays also testified that Wicker had the authority to change his mind on whether to extend Fitton’s contract.

Hays’ internal complaints about the Department’s decisions not to extend either Griffith’s or Fitton’s contracts fail to show the existence of a reasonable belief that the County was committing any legal violation. It is undisputed that Hays disagreed with how Fitton’s contract was being handled and with the denial of Fitton’s extension. Hays let coworkers know that she believed Griffith had been “screwed over,” and told Wicker after the meeting regarding Fitton’s extension “I’m not going to screw over another operator, I won’t do it. I won’t go through another trial and be subjected to dispositions [sic] and being questioned on the stand again. The department has to stop screwing over operators.” However, there is no evidence that Hays ever said anything to Wicker or Kuhn that would indicate that she believed the Department’s decisions were unlawful. Instead, Hays’ complaints were focused on her perception of fairness in the Department’s business decisions.

Accordingly, as in Patten and Carter, Hays’ complaints were made in the context of an internal administrative matter, rather than in the context of a perceived legal violation. “They do not show any belief on [Hays’] part that she was disclosing a violation of state or federal law in any sort of whistleblowing context as required for a section 1102.5(b) whistleblowing action.” (Patten, supra, 134 Cal.App.4th at p. 1385; Carter, supra, 148 Cal.App.4th at p. 934.)

Even if Hays subjectively believed the County’s handling of the WNEC contracts had violated a statute or regulation and complained for that reason, the record is devoid of evidence that would support a conclusion that Hays’ belief was “reasonable.” Fitton’s WNEC operating agreement had a 24-month term, “with a month-to-month extension not to exceed 12 months.” Elsewhere, Fitton’s agreement stated that it “constitute[d] the complete and exclusive statement of understanding between the parties, and supersede[d] all previous” written and oral agreements “and all communications between the parties relating to the subject matter of this Operating Agreement.” The plain language of Fitton’s agreement thus prohibited any supplemental oral agreement to an extension of its term.

Moreover, Hays acknowledged Griffith repeatedly failed to comply with his WNEC contract and could have been defaulted off the property before his contract’s initial term expired. Based on the foregoing, there was no reason for Hays to believe that the County’s decisions not to extend either Griffith’s or Fitton’s WNEC contracts were illegal. (See Carter, supra, 148 Cal.App.4th at pp. 933-934.)

Because there is no evidence that Hays reasonably believed the County’s contracting decisions violated any state or federal law, she cannot show that she engaged in protected activity under Section 1102.5 by complaining about such practices.

3. Hays Cannot Establish Essential Elements of Her FEHA-Based Causes of Action
4.

a. Summary of Applicable Law
b.

“‘[The] FEHA prohibits several employment practices relating to physical disabilities. First, it prohibits employers from refusing to hire, discharging, or otherwise discriminating against employees because of their physical disabilities. [Citation.] Second, it prohibits employers from failing to make reasonable accommodation for the known physical disabilities of employees. [Citation.] Third, it prohibits them from failing to engage in a timely and good faith interactive process with employees to determine effective reasonable accommodations.’ [Citations.] ‘Separate causes of action exist for each of these unlawful practices.’ [Citations.]” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 714.)

i. Stating a Discrimination Claim (Govt. Code § 12940, subd. (a))
ii.

“To establish a prima facie case for unlawful discrimination, a plaintiff must provide evidence that ‘(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.’ [Citation.]” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583-584.) In the context of a motion for summary judgment, “an employer may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case ‘is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.’ [Citations.]” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181-1182.)

iii. Stating a Harassment Claim (Govt. Code § 12940, subd. (j))
iv.

Harassment is different than discrimination under FEHA. Discrimination is bias in the exercise of official actions on behalf of the employer, whereas harassment is bias that is expressed or communicated through interpersonal relations in the workplace. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) “‘Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job. [Citations.]’” (Reno v. Baird (1998) 18 Cal.4th 640, 645-646.) Accordingly, “‘commonly necessary personnel management actions’” including job, office or work station assignments do not constitute harassment. (Id. at p. 646.)

To establish a prima facie case of harassment in violation of FEHA, a plaintiff must show that she was subjected to unwelcome conduct or comments, the harassment complained of was based on her protected status, and the harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 463-465.)

v. Stating a Claim for Failure to Accommodate (Govt. Code § 12940, subd. (m))
vi.

“‘The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]’ [Citation.] [¶] Under the FEHA, ‘reasonable accommodation’ means ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’ [Citation.]” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks. [Citation.] It requires only that the accommodation chosen be ‘reasonable.’ [Citation.]” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)

vii. Stating a Claim for Failure to Engage in the Interactive Process (Govt. Code § 12940, subd. (n))
viii.

In response to a request for an accommodation, the employer also has a duty to “engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations.” (Gov. Code, § 12940, subd. (n).) “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.]” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.)

c. Hays Cannot Make a Prima Facie Showing that the County Failed to Engage in an Interactive Process with her, Failed to Reasonably Accommodate her Work Restrictions, or Discriminated Against or Harassed her because of her Disability
d.

Hays’ causes of action for disability discrimination and harassment, failure to engage in the interactive process, and failure to accommodate are all premised on the County’s alleged revocation of Hays’ telecommuting accommodation and 4/40 work schedule. Hays’ doctor’s restrictions only concerned Hays’ commuting time and distance; they did not concern the number of hours worked per day or number of days worked per week. Moreover, it is undisputed that Hays rejected any proposed change to her 4/40 schedule, and remained on that schedule through her last working day before retirement.

The County held multiple interactive process meetings with Hays, the first of which was held on the first business day after receiving Hays’ work restrictions limiting her commute to 25 miles or 45 minutes. Through these meetings, Hays requested and the County agreed to allow Hays to telecommute as an accommodation. Hays does not dispute that the County’s accommodations were reasonable. Rather, Hays’ FEHA claims are premised on her allegation that Wicker revoked her telecommuting accommodation in early July 2016. However, Hays admitted that she was permitted to keep telecommuting until her last day of work. During a final, telephonic interactive process meeting, Hays’ telecommuting accommodation was reaffirmed.

Hays made no attempt to show that the County failed to engage in an interactive process with her in response to her commuting restrictions, or that there was a breakdown in this process. The undisputed evidence establishes that the County fulfilled its duty to engage in a timely, good faith, interactive process with Hays. The undisputed evidence also establishes that Hays telecommuted until her last day of work. An unexecuted threat to modify an employee’s accommodation does not ground a claim for failure to accommodate. Because her telecommuting accommodation remained in place until her retirement, Hays’ discrimination claim alleges no adverse employment action. Finally, Hays alleges no non-personnel management actions that could constitute harassment. Accordingly, summary judgment of Hays’ FEHA claims was proper.

E. Standard of Review For Awards of Costs and Fees
F.

We review the trial court’s ruling denying attorney fees to a prevailing defendant in a FEHA action under the deferential abuse of discretion standard. (Robert v. Stanford University (2014) 224 Cal.App.4th 67, 73 (Robert); see Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989.) “‘“. . . [O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” [Citations.]’ [Citations.]” (Dorman v. DWLC Corp. (1995)35 Cal.App.4th 1808, 1815.)

Ordinarily, we also review the trial court’s ruling on defendant’s motion to tax costs for an abuse of discretion. (Code Civ. Proc., § 1032, subd. (a)(4); Wheeler v. First National Bank (1937) 10 Cal.2d 185, 190-191; Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1298; Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1395.) “‘“However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of. . . costs in this context have been satisfied amounts to statutory construction and a question of law.”’ [Citations.] In other words, ‘it is a discretionary trial court decision on the propriety or amount of statutory [costs] to be awarded, but a determination of the legal basis for [a cost] award is a question of law to be reviewed de novo.’ [Citation.]” (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751.)

G. The Trial Court Erred When Awarding the County its Costs
H.

The County sought reimbursement of costs it incurred while defending itself against all Hays’ causes of action. The County’s opposition to Hays’ motion to tax costs acknowledges that, while Hays brought separate claims under the FEHA and Section 1102.5, “the claims are indistinguishable here. . . .” Accordingly, the County argued its costs could not be apportioned between Hays’ FEHA claims and Hays’ Section 1102.5 claim. After striking court reporter transcription fees not ordered by the court and costs associated with the County’s models, enlargements, and photocopies of exhibits, the court awarded the County $15,644.44 in costs.

Hays argues that, pursuant to Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 114-115 (Williams), the County’s Memorandum of Costs should have been disallowed entirely because Hays’ FEHA claims were inextricably intertwined with her Section 1102.5 claim, and Hays’ lawsuit was not frivolous, unreasonable, or groundless. We agree.

This district has previously held that “[u]nless the FEHA claim was frivolous, only those costs properly allocated to non-FEHA claims may be recovered by the prevailing defendant.” (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062, fn. omitted (Roman).) In Roman, the trial court awarded defendants their costs after they prevailed against plaintiffs’ disability discrimination claims, even though the court had not found plaintiffs’ lawsuit frivolous, unreasonable, or groundless. (Id. at pp. 1043-1050.) The Court of Appeal reversed and remanded the costs award based on the Supreme Court’s holding in Williams, supra, 61 Cal.4th at pp. 99-100 that Government Code section 12965, subdivision (b)’s potentially unilateral fee-shifting provision for FEHA-based claims “is an express exception to” and controls in lieu of Code of Civil Procedure section 1032, subdivision (b), which ordinarily entitles the prevailing party in a civil case to costs as a matter of right. (Roman, supra, at p. 1058.) Accordingly, an unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit. (Ibid.)

“Government Code section 12965, subdivision (b)’s exception to the mandatory award of litigation costs under [Code of Civil Procedure] section 1032, subdivision (b), implements a clear legislative goal of encouraging potentially meritorious FEHA suits. [Citation.] Although [Code of Civil Procedure] section 1032, subdivision (b), also serves an important purpose, relieving a party whose position was vindicated in court of the basic costs of litigation, when those costs have not been increased by the inclusion of additional theories of liability to the primary FEHA claim asserted, the express public policy of Government Code section 12965, subdivision (b), controls. Unless the FEHA claim was frivolous, only those costs properly allocated to non-FEHA claims may be recovered by the prevailing defendant.” (Roman, supra, 237 Cal.App.4th at p. 1062, fn. omitted.) Thus, where otherwise allowable costs are incurred while defending intertwined and inseparable FEHA and non-FEHA claims, the Williams rule of discretion applies to all such costs, and they are not recoverable unless the FEHA claims were frivolous. (Id. at pp. 1059-1062.)

Because the costs incurred by the County while defending itself against Hays’ Section 1102.5 claim are indisputably inseparable from costs incurred while defending against Hays’ FEHA claims, and the trial court did not find Hays’ lawsuit frivolous, Williams prohibits the County’s recovery of such costs.

I. The Court Did Not Abuse its Discretion When Denying the County’s Fee Motion
J.

The County appealed the trial court’s denial of its motion for attorneys’ fees, arguing that, “[a]lthough the Superior Court declined to award fees. . ., this is one of those rare cases in which the appellate court should order an award.” In the hearing on the County’s motion, the court declared that Hays’ complaint was not “totally without foundation.” While the court “didn’t agree with the plaintiff’s arguments,” it thought “there was at least something there, enough that [it couldn’t] say that the action was frivolous.” Substantial evidence supports the trial court’s assessment of Hays’ lawsuit.

The record demonstrates that Hays believed she had been retaliated against for disagreeing with the Department’s decision not to extend Fitton’s contract. It also shows that Hays was upset when the Department suggested changing her four-day work week to a five-day work week while Hays telecommuted to accommodate her disability, as well as when the Department threatened to revoke her telecommuting accommodation. Ultimately, Hays could not establish her prima facie showing on either her Section 1102.5 or her FEHA claims. However, the record does not mandate the conclusion that Hays’ lawsuit was frivolous, unreasonable, or groundless.

Neither party cites authority reversing a trial court’s discretionary decision to not award fees to a prevailing FEHA defendant. Rather, the cited cases either affirm discretionary fee awards to prevailing FEHA defendants where plaintiff’s lawsuits were frivolous, unreasonable, and often vexatious (see, e.g., Robert, supra, 224 Cal.App.4th 67; Saret-Cook v. Gilbert, Kelly, Crowley & Jennett (1999) 74 Cal.App.4th 1211); affirm a decision to not award fees to a prevailing FEHA defendant (see, e.g., Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525; ); or reverse prevailing FEHA defendant’s fee awards because the trial court had not expressly found plaintiff’s cases to be frivolous (see, e.g., Jersey v. John Muir Medical Ctr. (2002) 97 Cal.App.4th 814; Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859.)

Substantial evidence supports the trial court’s decision; the order denying the County’s fee motion is affirmed. (Orien v. Lutz (2017) 16 Cal.App.5th 957, 966.)

DISPOSITION

The order awarding costs is reversed. The judgment and order denying attorneys’ fees are affirmed. Hays shall recover her costs on appeal.

ZELON, Acting P. J.

We concur:

SEGAL, J. FEUER, J.