Case Number: BC505763    Hearing Date: September 16, 2014    Dept: 34

Moving Party: Defendants County of Los Angeles and Raquel Paxton (“defendants”)

Resp. Party: Plaintiff Luz Hessler (“plaintiff”)

Defendants’ motion for summary judgment is DENIED. Defendants’ motion for summary adjudication is GRANTED as to cause of action No. 3, and DENIED as to the remaining causes of action.

Defendants’ Request for Judicial Notice as to Exhs. 1-2 is DENIED as unnecessary. These items are already part of the Court’s file. Plaintiff’s Request for Judicial Notice as to Exhs. 3-5 is GRANTED. (See Evid. Code, § 452(c), (d), (h).)

Plaintiff’s Request for Judicial Notice as to Exhs. 1-2 is DENIED as unnecessary. These items are already part of the Court’s file. Plaintiff’s Request for Judicial Notice as to Exhs. 3-7 is GRANTED. (See Evid. Code, § 452(c), (d), (h).)

Plaintiff’s Objections to Evidence:

Objection SUSTAINED
1 OVERRULED
2 OVERRULED
3 OVERRULED
4 OVERRULED
5 OVERRULED
6 OVERRULED
7 OVERRULED
8 OVERRULED
9 OVERRULED
10 OVERRULED
11 OVERRULED
12 OVERRULED
13 OVERRULED
14 OVERRULED
15 OVERRULED
16 OVERRULED
17 OVERRULED
18 OVERRULED
19 OVERRULED
20 OVERRULED

PRELIMINARY COMMENTS:

Defendants’ memorandum of points and authorities is 22 pages long (beginning on page 3 and ending on page 25). “In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.” (Cal. Rules of Court, rule 3.1113(d).) There is no showing that defendants obtained leave to file a longer memorandum. The Court therefore disregards the last two pages of defendants’ memorandum.

In defendants’ separate statement, defendants improperly combine several facts into each purported material fact. For example, defendants’ first undisputed material fact (“DMF”) actually asserts three separate facts: (1) plaintiff has been employed by defendant since November 2004, (2) plaintiff has been on disability leave since April 2012, and (3) Paxton had held the same title as plaintiff at the same facility. (See DMF 1. See also DMF 2, 5-9, 11-17, 19, 21-22, 25, 27-38, 40-47, 49, 57-60, 63.) This runs afoul of California Rules of Court, rule 3.1350(d), which provides that a separate statement “must separately identify … each supporting material fact claimed to be without dispute.” Further, by combining several facts into each DMF, defendants have made consideration of this motion needlessly more difficult.

In her “Response to Defendants’ Statement of Undisputed Facts,” Plaintiff often states that a fact is “disputed” on the ground that it is “incomplete.” Plaintiff then adds numerous other facts to show why Defendants’ Undisputed Fact is “incomplete.” This is not proper. If Defendants’ fact, as stated, is undisputed, Plaintiff should so state. Plaintiff can then add her own “Additional Undisputed Facts” that she believes raise triable issues of material fact.

In her opposition, plaintiff withdraws her third cause of action for discrimination based on National Origin and/or Religion. It is not clear to the Court why plaintiff did not dismiss this cause of action previously; i.e., before defendants had to spend the time and attorneys fees in opposing what plaintiff apparently concedes was a cause of action without any evidentiary support.

Lastly, the Court finds that most of plaintiff’s objections to evidence to be frivolous. The court would be interested in hearing from counsel at oral argument why a statement, under penalty of perjury, such as “I never witnessed Ms. Paxton imitate or make fun of Ms. Hessler’s limp” is objectionable on grounds of hearsay or foundation. (See, e.g., Plaintiff’s objections, Nos. 3, 5, 6, 8, 9. 10, 11, 12, 13, 14, 15, 16, 17, 18, 19.)

BACKGROUND:

Plaintiff commenced this action on April 12, 2013, against defendants for: (1) disability discrimination (FEHA); (2) failure to accommodate (FEHA); (3) national origin/religious discrimination (FEHA); (4) harassment (FEHA); and (5) intentional infliction of emotional distress. Plaintiff has been working for defendant County since November 2004. Plaintiff alleges that while working for the County she was harassed by Paxton, her co-worker. Plaintiff alleges she was harassed based on her national origin and her disability. Plaintiff filed a first amended complaint on 10/15/13.

On 2/19/14, the Court sustained defendants’ demurrer to the fifth cause of action, without leave to amend.

ANALYSIS:

Defendants move for summary judgment, or in the alternative summary adjudication of plaintiff’s four causes of action.

Exhaustion of Administrative Remedies

Defendants argue that all of plaintiff’s claims fail because plaintiff failed to exhaust administrative remedies. Defendants also argue that certain claims are time-barred because plaintiff failed to file the instant action within one year of receiving a right to sue letter.

As an initial matter, the Court rejects plaintiff’s suggestion that the Court has already determined, in ruling on defendants’ demurrer to the FAC, that plaintiff had sufficiently exhausted administrative remedies or that the claims were timely. In ruling on the demurrer, the Court accepted plaintiff’s allegations as true and ruled only that the pleadings were sufficient to withstand demurrer. The Court made no definitive evidentiary ruling as to whether the claims were barred.

Before filing suit on a statutory employment discrimination claim under state or federal law, the aggrieved employee must have exhausted his or her administrative remedy. Basically, this means that the employee must have filed a timely and sufficient charge with the appropriate administrative agency and obtained a “right-to-sue” letter from that agency. . . . Failure to do so may bar any civil action on the employee’s claim.

(Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2012) ¶ 16:3 [hereinafter “Chin”].)

[T]he rule of exhaustion of administrative remedies is well established in California jurisprudence, and should apply to [plaintiff’s] action. “In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” [Citation.] The rule “is not a matter of judicial discretion, but is a fundamental rule of procedure … binding upon all courts.” [Citation.] We have emphasized that “Exhaustion of administrative remedies is ‘a jurisdictional prerequisite to resort to the courts.’ [Citation].” [Citation.]

(Campbell v. Regents of Univ. of Calif. (2005) 35 Cal.4th 311, 321.) “Failure to exhaust the appropriate administrative remedy bars a lawsuit on the claim. Under the FEHA, it is regarded as a ‘jurisdictional’ defect . . . .” (Chin, ¶ 16:26 [italics in original].)

Pursuant to FEHA, “[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.” (Gov. Code, § 12960(d).) Any conduct occurring prior to the one-year deadline “cannot serve as the basis for liability unless some exception to the one-year limitations period applies.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1040.)

A lawsuit must be commenced within one year of receiving a right to sue letter. (See Gov. Code, § 12965(b).) Plaintiff originally submitted a DFEH complaint in August 2008 alleging that Paxton harassed her based on her national origin. (See DMF 49.) Plaintiff received a right to sue letter on June 17, 2009. (See ibid.) Plaintiff subsequently filed another DFEH complaint on March 1, 2013, alleging discrimination, harassment, and retaliation due to her national origin, race, and disability. (See DMF 50 [Def. RJN, Exh. 5].) Plaintiff commenced the instant action on 4/12/13.

To the extent that defendants are arguing that plaintiff could not file the second DFEH complaint, defendants once again provide no authority to support this contention. (See People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 [where discussion is “conclusory and fails to cite any authority to support the claim,” it “amounts to an abandonment of the issue”].)

Defendants argue that incidents that occurred more than a year before the 3/1/13 claim was submitted cannot support plaintiff’s claims. (See DMF 51-58, 60-63.) Plaintiff argues that the “continuing violation doctrine” should apply to her claims. Under the “continuing violation doctrine,” “an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056 [citing Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 782, 812].) The continuing violation doctrine applies where an employer’s actions are: “(1) sufficiently similar in kind . . . ; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Richards, 26 Cal.4th at 823.) The statute of limitations begins to run either “when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Ibid.) Claims of a hostile work environment “may be based on acts occurring outside of the time period, so long as at least one act contributing to the claim occurred within the time period.” (Chin, supra, ¶¶ 16:100, 16:264.) The doctrine may also apply to disability discrimination claims. (Id., ¶ 16:264 [citing Yanowitz, 36 Cal.4th at p. 1056].) “On the other hand, when no act occurs within the statutory period, the continuing violation doctrine does not apply, and the employee’s claim is time-barred.” (Id., ¶ 16:264.)

Therefore, in order for the continuing violation doctrine to apply, at least one act of harassment or discrimination must have occurred within a year of the second DFEH complaint (i.e., after 3/1/12), and this act must be sufficiently similar to prior acts. Because it is undisputed that plaintiff has been on a disability leave since 4/30/12, a sufficiently similar act must have occurred between 3/1/12 and 4/30/12. (See DMF/PMF 1.) Defendants provide no evidence which suggests that no similar harassing or discriminatory conduct occurred during this period. Plaintiff testified that she had to work in the Chart Release position after July 2009, and when another employee left in March 2011 plaintiff was required to do more walking before she went on leave in April 2012. (See PMF 7.) Plaintiff testified that, during this time period, she was denied assistance because Paxton told another employee not to help plaintiff. (See PMF 15.) Plaintiff testified that Paxton imitated her accent almost every day and that she slammed files and threw charts multiple times a week or whenever plaintiff was around, throughout plaintiff’s employment. (See PMF 51, 52.) This evidence is sufficient to raise a triable issue of fact as to whether the continuing violation doctrine applies.

Therefore, defendants’ request for summary adjudication based on failure to exhaust administrative remedies or the statute of limitations is DENIED.

First Cause of Action for Disability Discrimination

The following analysis applies to claims for disability discrimination:

State and federal law both analyze disability discrimination claims under a three step framework. First, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. The employer then must offer a legitimate nondiscriminatory reason for the adverse employment decision. Finally, the plaintiff bears the burden of proving the employer’s proffered reason was pretextual. [Citations.]

(Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)

To make a prima facie showing of a cause of action for workplace discrimination, plaintiff must provide facts showing that: (1) plaintiff was a member of a protected class; (2) she was qualified for the position sought, or was performing competently in the position held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

Defendants do not dispute that plaintiff had a disability or that she was qualified for her position. Defendants argue that there is no evidence that plaintiff suffered an adverse employment action. “[T]he proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment” and “in determining whether an employee has been subjected to treatment that materially affects the terms and conditions of employment, it is appropriate to consider the totality of the circumstances.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036.) FEHA “protects an employee against unlawful discrimination with respect not only to so-called ‘ultimate employment actions’ such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Id. at pp. 1053-1054.) “[T]he phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide. (Id. at p. 1054.)

Plaintiff admitted that she has not been terminated, was never demoted, and was not transferred to a different facility or shift. (DMF 2.) Plaintiff argues that the alleged harassment constitutes an adverse employment action. Plaintiff cites to Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, which states that where workplace harassment is sufficiently severe or pervasive, it may constitute an adverse employment action for a retaliation case. (See id. at p. 212. See also Chin, supra, ¶ 7:795 [citing Kelley for the proposition that “workplace harassment, if sufficiently severe or pervasive, may itself constitute an adverse employment action sufficient to state a claim for retaliation”].) Plaintiff provides no authority which held that workplace harassment could constitute an adverse employment action for a discrimination claim. (See Yanowitz, supra, 36 Cal.4th at pp. 1052-1056 [discussing a claim for retaliation]; Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389-1390 [same].) At the same time, defendants provide no authority which suggests that the rule from Kelley and Yanowitz cannot apply to a discrimination claim. As the moving parties in this motion, defendants have the burden to establish that plaintiff’s claims fail, and defendants fail to establish that the alleged harassment cannot constitute an adverse employment action.

As discussed below, plaintiff has provided sufficient evidence to raise a triable issue of fact as to whether she experienced severe or pervasive harassment based on her disability. Therefore, there is a triable issue of fact as to the first cause of action.

Accordingly, defendants’ request for summary adjudication of the first cause of action is DENIED.

Second Cause of Action for Failure to Accommodate

“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.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)

“Employers need not provide reasonable accommodation if it imposes an undue hardship.” (McCullah v. Southern California Gas Co. (2000) 82 Cal.App.4th 495, 501.) An undue hardship

means an action requiring significant difficulty or expense, when considered in light of the following factors: [¶] (1) The nature and cost of the accommodation needed. [¶[ (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. [¶] (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. [¶] (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. [¶] (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.

(Gov. Code, § 12926(u).)

Plaintiff sustained a knee injury in September 2008 for which she took a leave of absence and returned in July 2009. (DMF/PMF 5.) Plaintiff returned to work with restrictions against stooping, bending, or walking for long periods of time. (DMF/PMF 8.) Plaintiff was also given restrictions for her psychiatric disability, which included placing plaintiff in the same type of work and location, and keeping her free from a hostile work environment. (See PMF 6.) At her deposition, plaintiff testified that when her supervisor, Maralyn Salagaj and then Tudora Goga, was present, her orthopedic restrictions were accommodated. (See DMF 7.) Defendant also provides evidence that plaintiff’s assigned tasks did not involve excessive walking. (See DMF 11.) Defendant argues that plaintiff has no evidence that Paxton changed plaintiff’s assignments. (See DMF 12.) However, Paxton admitted at her deposition that, when Goga was not around, Paxton would occasionally perform charge nurse duties and be an “acting supervisor.” (See PMF 12.) Paxton also admitted that when she was the charge nurse she had the ability to direct other nurses on how to perform their jobs. (See ibid.) Plaintiff testified under oath that when Goga was not present, Paxton would move plaintiff to busier assignments that violated her excessive walking restrictions. (See PMF 7.) Plaintiff testified that she was regularly given an assignment that required her to walk more. (See ibid.) After Goga left in March 2011, plaintiff had to do all of the walking when she worked in the Chart Release position. (See ibid.) Plaintiff was also required to work weekend shifts alone, which required her to walk more. (See ibid.) Plaintiff was placed back in the same facility as Paxton, and defendant’s PMK, Michelle Merino, acknowledged that this may not have been a reasonable accommodation of plaintiff’s psychiatric work restrictions. (See ibid.)

Defendant argues that it would have caused an undue burden to provide an additional nurse to work with plaintiff on the weekends. (See DMF 16.) The only evidence in support of this assertion is plaintiff’s testimony that her supervisors told her that they did not have the resources. (See ibid.) The statements by the supervisors constitute inadmissible hearsay. Defendants provide no evidence to support their assertion that it would have been unduly burdensome to provide another nurse to work with plaintiff. Even if defendants could make such a showing, this would only apply to one of plaintiff’s claims as to failure to accommodate. (See Code Civ. Proc., § 437c(f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action”].)

Plaintiff’s evidence is sufficient to raise a triable issue of fact as to whether defendants failed to accommodate plaintiff’s disabilities. Accordingly, defendants’ request for summary adjudication of the fourth cause of action is DENIED.

Third Cause of Action for National Origin / Religious Discrimination

In the opposition, plaintiff withdraws this cause of action. (See Opp., p. 17:13-15.) To the extent it is not withdrawn, the Court GRANTS defendants’ Motion for Summary Adjudication as to this cause of action.

Fourth Cause of Action for Harassment

The essential elements of a cause of action for hostile work environment harassment are: (1) plaintiff was an employee; (2) plaintiff was subjected to unwanted harassing conduct because she was or was believed to be a member of a protected group; (3) the harassing conduct was severe or pervasive; (4) a reasonable member of the protected group in plaintiff’s circumstances would have considered the work environment to be hostile or abusive; (5) plaintiff considered the work environment to be hostile or abusive; (6) the individual defendant participated in, assisted, or encouraged the harassing conduct; (7) plaintiff was harmed; and (8) the conduct was a substantial factor in causing plaintiff’s harm. (CACI 2522A; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

“[T]he existence of a hostile work environment depends upon ‘the totality of the circumstances.’ [Citation.]” [Citation.] ” ‘[W]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ [Citation.]” [Citation.]

(Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1227 [“Fuentes”].)

“To prevail on a hostile work environment claim under California’s FEHA, an employee must show that the harassing conduct was ‘severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected statuts].’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.)

Defendants argue that plaintiff’s allegations of harassment by Paxton fail because there are no witnesses to the allegations. (See DMF 28.) Plaintiff testified under oath that Paxton engaged in harassing conduct, including imitating plaintiff’s Mexican accent, leaving messages on plaintiff’s beeper calling her a “whore,” slamming doors and throwing charts around plaintiff, imitating plaintiff’s limp, and throwing plaintiff’s lunch in the trash can. (See PMF 28-40.) Paxton admitted that she was written up approximately 30 times for causing disturbances at work. (See PMF 28.) Goga testified that she observed Paxton imitating plaintiff’s accent. (See PMF 28.) Plaintiff asserts that Goga instructed Paxton to stop imitating plaintiff’s limp on 20 separate occasions, but the cited evidence does not support this assertion because plaintiff fails to provide the cited pages. (See PMF 28-29 [citing to pages 212, 215, and 219 in exhibit I, but exhibit I does not include these pages].) Goga testified that Paxton threw charts and files, but that Paxton did this with other employees too. (See DMF 32.) There is evidence that Paxton engaged in efforts to gather signatures for a petition to remove plaintiff from the facility. (See DMF/PMF 36.) Though defendant asserts that certain witnesses did not see Paxton throw plaintiff’s lunch in the trash, defendant provides no evidence (such as a denial from Paxton) directly showing that Paxton did not engage in such conduct. (See DMF/PMF 37.) The same is true for the claim that Paxton called plaintiff “that Mexican” on several occasions. (See DMF 43.) Plaintiff testified that Paxton would slam doors around plaintiff when she saw her coming around the corner. (See PMF 38.)

It is not unusual that there are no outside witnesses to alleged acts of harassment. But, as defendants are no doubt aware, the fact that the only witnesses to an alleged event are plaintiff and defendant is not sufficient for the court to grant summary judgment against plaintiff. This is not the first “he said/she said” or “she said/she said” case that a jury will hear.

This evidence presented is sufficient to raise a triable issue of fact as to whether plaintiff was subjected to harassment because of her disability or race.

Accordingly, defendants’ request for summary adjudication of the fourth cause of action is DENIED.