Troy Parker v. County of Santa Clara, et al.

During his recovery from his injuries, Plaintiff was required to work on modified duties as prescribed by his medical providers. Plaintiff was constantly harassed by his supervisors and HR employees inquiring, at least once a month, about when he would be able to work without modifications. On one occasion Plaintiff was informed that he should just retire. (FAC ¶¶ 16, 17, 18.) 36, 55)

County failed to provide reasonable accommodation and terminated Plaintiff’s employment on June 24, 2023, 1 in retaliation for informing management about the continued hostile work environment. (FAC ¶¶ 36, 55)

Plaintiff initiated this action on October 3, 2023, and amended his complaint on November 29, 2023, alleging causes of action for (1) Race discrimination; (2) Disability discrimination; (3) Age discrimination; (4) Retaliation; (5) Hostile work environment; and (6) Failure to prevent discrimination, harassment, or retaliation.

1 Parties refer to a termination date of June 24, 2022, throughout their motion, opposition, submitted evidence, and separate statement of undisputed material facts. Therefore, the Court considers termination date of June 24, 2023, to be a typographical error.

II. Legal Standard for Summary Judgment

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code. Civ. Proc. § 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and 'all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v.

Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) "The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings." (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code. Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence that is admissible under the rules of evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

"On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial." (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Further, "the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court's evaluation of credibility. [Citation.]" (Id. at p. 840.)

III. Applicable Law to FEHA Discrimination Claims

In evaluating claims of discrimination under FEHA, California courts apply the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 161(Martin); see Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214 (Harris); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) “Under this approach, if the plaintiff establishes a prima facie case supporting his or her discrimination claim, the burden of production shifts to the employer to rebut the presumption of discrimination by offering a legitimate, nondiscriminatory reason for the adverse employment action.” (Martin, supra, at p. 161; see Harris, supra, at p. 214; Guz, supra, at pp. 355–356.)

This first step of the McDonnell Douglas framework “is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job [the plaintiff] sought was withdrawn and never filled. [Citations.] While the plaintiff's prima facie burden is ‘not onerous’ [citation], [the plaintiff] must at least show ‘“actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion.’”’” (Guz, supra, at pp. 354–355; accord, Department of Corrections & Rehabilitation v.

State Personnel Bd. (2022) 74 Cal.App.5th 908, 924.)

“An employer may meet its initial burden in moving for summary judgment by presenting evidence that one or more elements of a prima facie case are lacking, or the employer acted for a legitimate, nondiscriminatory reason.” (Martin, supra, at p. 162; see Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32.) “A legitimate, nondiscriminatory reason is one that is unrelated to unlawful bias and, if true, would preclude a discrimination finding. [Citation.] ‘[I]f nondiscriminatory, [the employer's] true reasons need not necessarily have been wise or correct.’” (Martin, supra, at p. 162; see Guz, supra, at p. 358.)

“If the employer puts forth a legitimate basis for the adverse employment action, the burden of production shifts to the plaintiff to present evidence creating a triable issue of fact showing the employer's stated reason was a pretext for unlawful animus in order to avoid summary judgment.” (Martin, supra, at p. 162.) “In addition, FEHA does not require proof that discriminatory animus was a ‘but for’ cause of an adverse action, only that it was a ‘substantial motivating factor.’ [Citation.] ‘Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions.’” (Martin, supra, at p. 162; Harris, supra, at pp. 229–232; Guz, supra, at p. 361.) Ultimately, “an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” (Guz, supra, at p. 361; see Martin, supra, at p. 162.)

If a plaintiff can demonstrate “direct evidence of discriminatory animus,” then the burden-shifting analysis does not apply. (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550; see Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144.) “Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption.” (DeJung, at p. 550; see Zamora, supra, at p. 35.) Because “direct evidence of intentional discrimination is rare,” the plaintiff must usually prove discrimination circumstantially. (Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 398; see Department of Corrections & Rehabilitation, supra, 74 Cal.App.5th at p. 923.)

IV. Evidentiary Objections

County objects to Plaintiff’s Opposition (response) to its Separate Statement of Undisputed Material Facts (“SSUMF”) on the grounds that the responses are improper arguments and fail to admit or dispute material facts; fail to present additional facts supported by evidence; and fail to respond to material facts in violation of Rules of Cout, Rule 3.1350.

County’s objection is not objection to evidence, but rather to Plaintiff’s contentions in opposing its separate statement. Therefore, County’s objections are OVERRULED.

V.

Analysis

A. Race & Age Discrimination – First and Third Causes of Action Plaintiff expressly concedes summary adjudication of his race discrimination (first cause of action) and age discrimination (third cause of action) in his opposition. Plaintiff states: “Plaintiff does not oppose summary adjudication as to his independent theories of race discrimination and age discrimination .... Accordingly, Plaintiff’s opposition is directed toward the triable issues relating to disability discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, hostile work environment, and failure to prevent FEHA violations ....”

(Opposition at 9:18-27)

Based on this concession, County’s motion for summary adjudication as to the first and third cause of action is GRANTED.

C. Disability Discrimination – Second Cause of Action

Under the FEHA, it is unlawful for an employer to discriminate against an employee because of the employee's physical disability. (Gov. Code § 12940(a); Cuiellette v. City of Los Angeles, (2011) 194 Cal. App. 4th 757, 765-766.) To establish a claim for discrimination in violation of FEHA, Plaintiff must generally prove he (1) was a member of a protected class, (2) was qualified for the position he sought or was performing competently in the position he held, (3) suffered an adverse employment action, such as termination or demotion, and (4) some other circumstance suggesting discriminatory motive. (See, Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355)

County contends Plaintiff’s disability discrimination claim fails because (1) he did not experience any adverse employment action, and (2) Plaintiff cannot show County acted with a discriminatory motive. In support of its position county submits evidence showing:

• Plaintiff was injured on February 5, 2020, while performing an inspection and was unable to work for approximately three months. Prior to his return to work on May 4, 2020, his provided medical document stated Plaintiff was able to work his full shift with the restriction of mostly seated assignments. From May 4, 2020, to October 6, 2021, Plaintiff was allowed to return to work his full shift with the only restriction for seated assignment. (Sousa Decl. Ex. F at pp. 7-21).

• County accommodated Plaintiff’s work restriction by limiting his assignments to computer-based tasks that he could perform while seated. Given the March 2020 COVID shelter-in-place order, Plaintiff was allowed to work remotely from his home. On April 28, 2020, Mr. Krause (senior building inspector) delivered a County computer to Plaintiff’s house to accommodate his remote working arrangement. (Sousa Decl. ¶ 9; Krause Decl. ¶¶ 16-19)

• When the COVID shelter-in-place order was lifted, County called its building inspectors back to the office in 2021 and no longer permitted remote work. However, County temporarily exempted Plaintiff from returning to the office and performing onsite building inspections. (Krause Decl. ¶ 20)

• Approximately one and half years later, Plaintiff provided a medical note, dated October 6, 2021, stating his work should be restricted to seated assignments and limited to no more than four hours per day. (Sousa Decl. Ex. F at p. 22)

• County accommodated Plaintiff’s reduced working hours and gave him the option of drawing on his accumulated leave banks to retain close to full-time pay while working half- time, or receive leave without pay for the unworked hours. Plaintiff opted to integrate his pay so that he could receive close to full-time pay. (Moslehi Decl. Exhibits N, O)

• On May 11, 2022, Ms. Sousa (management analyst) sent an email to Plaintiff informing him that his leave banks were nearly depleted and since he was still working four hours per day, he would be provided leave without pay for the unworked hours of each day. (Moslehi Decl. Exhibit Q)

• On May 20, 2022, Plaintiff requested a one-year leave of absence for medical reasons to commence on June 24, 2022, and noted that he had been approved for Social Security disability as well. However, Plaintiff’s request for leave was rejected when he failed to submit to County the necessary supporting medical documents. (Moslehi Decl. Ex. R; Krause Decl. ¶ 25; Sousa Decl. ¶¶ 19-20)

• A month later, on June 20, 2022, Plaintiff emailed Ms. Sousa a partially completed CalPERS Disability retirement paperwork, listing separation date of June 24, 2022, asking her to complete the employer portion of the application and return it to him. (Moslehi Decl. Ex. S; Sousa Decl. ¶ 21)

• On June 23, 2022, the Deputy Director of Administration sent an email to Plaintiff inquiring if he intended to continue working while his retirement application was pending. Plaintiff did not respond to this email and did not return to work the next day. (Moslehi Decl. Ex. R)

• On June 28, 2022, Mr. Krause contacted Plaintiff to inquire whether he was going to continue performing his agreed restricted work. The next day Plaintiff responded that he was not clear about his employment status. Mr. Krause immediately responded to Plaintiff on June 29, 2022, reiterating that Plaintiff was expected to resume his restricted work on June 30, 2022, and inquired as to why Plaintiff had returned his computer back to the office workspace. (Moslehi Decl. Ex. U)

• Instead of resuming his work, Plaintiff sent an email to Mr. Krause on June 30, 2022, insisting that he was still unclear about his employment status and demanded a written confirmation on the County’s letterhead signed by an approved party. Plaintiff wrote that he was taking a sick day off if he was still considered an employee. (Moslehi Decl. Ex. U)

• On June 30, 2022, Michael Alvarez (a senior manager within the Department of Planning and Development) provided a written confirmation of Plaintiff’s employment status under the previously agreed accommodations. Mr. Alvarez additionally noted that since Plaintiff’s computer was returned to the County, his telework was rescinded effective July 5, 2022. (Moslehi Decl. Ex. U)

• Plaintiff ceased working for the County since his separation date of June 24, 2022, and has been receiving retirement benefits through CalPERS and social security disability since his separation. (Roll Decl. Exhibits B, E; Parker’s deposition transcript pp. 23-27; SSUMF Nos. 29, 33)

• Plaintiff has testified that he has been physically able to perform his job with the County since 2020: “Q. When you went on the disability retirement from the county, did you feel physically able to perform your job as a building inspector? A. My ability hadn't changed from, I would say, 2020 up until the time I was terminated. The only thing that's -- that whole delay, the only thing was -- the difference between then and where I am now walking and everything was getting the county to evaluate and provide the evaluation to the physician to do what they needed to do. Q. So are you able to work as a building inspector today? A. Yes.” (Roll Decl. Ex. B, deposition transcript 301:10-16)

On this record, County has met its burden of showing Plaintiff was not subjected to an adverse employment action since he voluntarily applied for and received disability retirement benefits since June 24, 2022. The burden thus shifts to Plaintiff to show triable issues of material fact exist on this issue.

Plaintiff citing Turner v. Anheuser-Busch, Inc., (1994) 7 Cal.4th 1238, contends he was constructively discharged when he was forced to retire. Plaintiff goes on to argue that “communication issues” in late June 2022, retrieval of his home computer on June 29, 2022, and the rescission of his remote working arrangement on June 30, 2022, were the conditions that forced his retirement. (Opposition at 5: 10-20)

In support of his position, Plaintiff points to (1) Mr. Alvarez’s testimony that Plaintiff believed he had been told he was being separated and (2) his own testimony about a phone conversation with Ms. Sousa – on an unknown date - in which she allegedly told him that he needed to retire since his vacation banks were exhausted and his last day on payroll would be June 24, 2022. Plaintiff insists Mr. Alvarez’s testimony about his separation belief “fits squarely within Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1244-1245 (Cal. 1994), because it supports the inference that the employment relationship was severed by the employer’s acts, not by Plaintiff’s will.” (Opposition at 10:27-11:2) The Court is not persuaded.

First, nowhere in the FAC is Defendant’s adverse employment action tied to Plaintiff’s alleged forced retirement. Plaintiff does not allege any facts demonstrating a forced retirement and/or a constructive discharge in his FAC and is raising this claim for the first time in his opposition. The FAC merely alleges that the County terminated Plaintiff’s employment on June 24, 2022, without any reasoning, due to his race and age. (FAC ¶¶ 20, 23, 24, 40, 43, 45, 57) FAC’s only reference to retirement is a one sentence allegation stating “[o]n one occasion, Defendants’ employee informed Plaintiff that he ‘should just retire’.” (FAC ¶ 18)

The allegations of the FAC delimit the scope of the issues on a motion for summary judgment (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223 ["In ruling on a summary judgment motion, the issues which are material are limited to the allegations of the complaint."].) Therefore County need address only the issues raised by the FAC. Plaintiff cannot bring up new, unpleaded issues in his opposing papers.

To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. (See, Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253; Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 [since the pleadings define the scope of summary judgment, “‘[a] party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings, and ‘[e]vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings’”].)

As such, Defendant’s constructive discharge claim cannot serve as a basis to defeat the County’s motion.

Second, even if the Court was to consider Plaintiff’s constructive discharge argument, he has failed to submit any admissible supporting evidence. The totality of the evidence before the Court, liberally construed in Plaintiff’s favor, does not show the existence of a triable issue of material fact in this regard.

"[T]o establish a constructive discharge, an employee must plead and prove . . . that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign." (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 826.)

To amount to a constructive discharge, the adverse working conditions must be unusually aggravated or amount to a continuous pattern before the situation will be deemed intolerable. In general, single, trivial, or isolated acts are insufficient to support a constructive discharge claim. (See, Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247.)

Additionally, "the standard by which a constructive discharge is determined is an objective one—the question is whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit." (Turner v. Anheuser-Busch, Inc., supra, Cal.4th 1238, at 1248.)

Here, Plaintiff fails to submit any evidence showing that retrieval of his computer from his home, rescission of his teleworking, and late June miscommunications created unusually aggravated working conditions or amounted to a continuous intolerable pattern that forced his retirement on June 24, 2022.

More specifically, Plaintiff neither disputes nor provides evidence to refute that (1) the computer was returned to the County sometime after he submitted his retirement application to the County i.e. June 20, 2022, and before June 29, 2022, and (2) it was he who returned his home computer to the County thus creating the condition he now challenges. (SSUMF 20; Warren Krause Decl. ¶ 30.)

Similarly, Plaintiff neither disputes nor provides evidence to refute that he was notified of recission of his teleworking on June 30, 2022, which was to take effect on July 5, 2022. This notification occurred ten days after Plaintiff submitted his retirement application to the County and six days after he stopped working. (Moslehi Decl., Ex. U) As such, Plaintiff cannot rely on a post-retirement occurrence as a basis for his forced retirement.

Moreover, there is no evidence before the Court that Plaintiff’s work restrictions required teleworking. The submitted medical records show that Plaintiff was only restricted to seated work for four hours a day. (Sousa Decl. Ex. F) Indeed in his Response to Request for Reasonable Accommodation, Plaintiff acknowledged conversing with Mr. Krause on May 4, 2020, and affirming that he could either drive or take the train to work in the office once the COVID shelter-in-place order was lifted (Moslehi Decl., Exhibit T; Accommodation Form B attachment, sections (2) and (7).)

The only remaining conceivable adverse condition leading to Plaintiff’s constructive discharge is the miscommunications that occurred late June 2022. It is undisputed that Plaintiff emailed his partially filled retirement application to Ms. Sousa, on June 20, 2022, for completion of the employer section. Plaintiff had handwritten June 24, 2022, as his separation date on the application. The application was completed and returned to Plaintiff two days later. It is also undisputed that Plaintiff stopped performing his job for the County on June 24, 2022. (Plaintiff’s Opposition to SSUMF Nos. 9, 12, 13, 29; Moslehi Decl., Exhibits R, S, T) Therefore, miscommunications that occurred after his retirement application do not qualify as conditions that lead to his forced retirement.

Plaintiff places singular emphasis on a denied hearsay statement (in a phone conversation) from Ms. Sousa, in June 2020, saying he needed to retire since his vacation banks were exhausted and that June 24, 2022, would be his last day on the payroll. Plaintiff testified in his deposition that it was this statement that caused him to file his retirement application and list June 24, 2022, as his separation date. (Exhibit 1, at 121:1-5, 121:19-23, 125:4-10, 130:2-15, 132:18-22; see also FAC ¶ 18)

However, a single or isolated act or misstatement of Ms. Sousa, without more, is insufficient to support a constructive discharge claim. (Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at 1247.) There is no evidence before the Court that Ms. Sousa’s alleged comment created intolerable working conditions so adverse that a reasonable employee in Plaintiff’s position would have felt compelled to retire. Nor is there any evidence before the Court that a similarly situated reasonable person, with work arrangement that was admittedly sufficient and without issue until he was faced with HR representative’s alleged retirement suggestion, would believe he had no reasonable alternative except to retire despite County’s confirmation that he retained his full-time employee status. "[T]he standard by which a constructive discharge is determined is an objective one—the question is 'whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.' [Citation.]" (Id. at 1248.)

Therefore, Plaintiff has not produced evidence meeting the transferred burden of showing issues of material fact exists as to an actionable adverse employment. Accordingly, County’s motion for summary adjudication of Plaintiff’s second cause of action for disability discrimination is GRANTED.

D. Retaliation – Fourth Cause of Action

To establish a prima facie case of retaliation under FEHA, a plaintiff must demonstrate that he engaged in a protected activity, the employer subjected him to an adverse employment action, and there was a causal link between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

As concluded in the previous section, Plaintiff was not subjected to an adverse employment action. As such, Plaintiff’s retaliation claim fails.

Accordingly, County’s motion for summary adjudication of Plaintiff’s fourth cause of action for retaliation is GRANTED.

E. Hostile Work Environment – Fifth Cause of Action

To establish a prima facie case of a hostile work environment, Plaintiff must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment because of his disability; (3) the harassment was based on his disability; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

Harassment must be so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. Harassment that is occasional, isolated or sporadic is insufficient. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) "Whether 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.” (Jones v. Dep't of Corr. & Rehab. (2007) 152 Cal.App.4th 1367, 1378; internal citation omitted.)

Furthermore, harassment must satisfy an objective and subjective standard. (Ortiz v. Dameron Hospital (2019) 37 Cal.App.5th 568, 582.) The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position and considering all the circumstances. (Ibid.) Subjectively, an employee must perceive the work environment to be hostile. "Put another way, the plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he] was actually offended." (Id. at p. 583; internal citations and quotes omitted].)

Plaintiff alleges Michael Alvarez, Gary Flagg, Warren Krause, Janette Sousa, and Shawn Whitman harassed him “regarding when he would be able to return to work without any modifications. Plaintiff would be asked at least once a month about working without modifications.” (FAC ¶ 17)

County contends these comments do not qualify as objectively hostile since (1) they were made in the context of an ongoing interactive process (2) the County accommodated Mr. Parker for over two years—and stated its willingness to continue accommodating Mr. Parker; and (3) Plaintiff testified that he felt able to competently perform his job throughout the time that he was supposedly receiving these comments. (Motion at 23: 19-25)

It is undisputed that County effectively accommodated Plaintiff’s restricted work requirements for over two years and the challenged communications were made during this period to check in with Plaintiff about his ongoing limitations and accommodations. It is also undisputed that Plaintiff did not feel the communications interfered with his job or that he was unable to perform his county job at any point while On this record, County has met its burden of showing Plaintiff was not subjected to a hostile work environment. The burden thus shifts to Plaintiff to show triable issues of material fact with this regard.

Plaintiff contends “[a]n employee who believes he is being separated from his position, and then learns management will not meet with him face-to-face to resolve the dispute while he is still employed, can reasonably experience that conduct as isolating, humiliating, and threatening to the basic conditions of employment.” (Opposition at 17:9- 13) In support of his position, plaintiff points to testimony of Mr. Alvarez about Plaintiff’s separation belief as it relates to his discrimination claim and HR’s instruction not to bring Plaintiff in for a face-to-face meeting to resolve the retirement issues. (Opposition 17: 9-13) However, case law has differentiated between conduct which constitutes "discrimination" and conduct which constitutes "harassment."

As explained by the California Supreme Court in Reno v. Baird (1998) 18 Cal.4th 640, "[h]arassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job." (Id. at 645) Actions of a type necessary to carry out the duties of business and personnel management may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.

Harassment, by contrast, consists of actions outside the scope of job duties which are not of the type necessary to business and personnel management." (See, Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 65 [cited with approval in Reno v. Baird, supra, 18 Cal.4th at 646-647.]) Here, Plaintiff does not dispute nor submit any evidence refuting that the challenged communications were not necessary to carry out County’s interactive process to accommodate Plaintiff’s medical restriction.

Nor does Plaintiff dispute or offer evidence that the communications interfered with his job. On the contrary, Plaintiff has indeed testified that at no point he was unable to perform his county job while employed. (SSUMF 49) Therefore, Plaintiff has not produced evidence meeting the transferred burden of showing issues of material fact exists as to a hostile working environment. Accordingly, County’s motion for summary adjudication of Plaintiff’s fifth cause of action for hostile work environment is GRANTED.

F. Failure to Prevent Discrimination, Harassment, or Retaliation – Sixth Cause of Action

This claim is derivative of Plaintiff’s discrimination, hostile work environment, and retaliation claim. "An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented." Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021, internal citation and quotes omitted; see also Dickson v. Burke Williams, Inc. (2015) 234 Cal. 1307, 1317-18.)

The Court has already concluded that Plaintiff’s claims for discrimination, hostile work environment, and retaliation are subject to summary adjudication in favor of the County. As such, this derivative claim also fails.

Accordingly, County’s motion for summary adjudication of Plaintiff’s sixth cause of action for failure to prevent discrimination, harassment, or retaliation is GRANTED.

G. Failure to Make Reasonable Accommodations and Engage in the Interactive Process.

The FAC does not include separate causes of action for these claims. Instead, Plaintiff admittedly “alleged under his second cause of action for disability discrimination that Defendants violated Government Code section 12940(m) and 12940(n) by ‘failing to provide reasonable accommodations’ and ‘failing to engage in the interactive process’”. (Opposition at 13:18-21; FAC ¶¶ 31,31)

County contends that since Plaintiff has not alleged separate causes of action relating to any failure to accommodate or engage in the interactive process, the Court should grant its motion for summary judgment without reaching these un-alleged claims. (Motion at 17: 6-8)

Claims for failure to provide reasonable accommodations and failure to engage in the interactive process are independent violations of FEHA that represent separate and distinct unfair employment practices distinct and detached from a general claim of discrimination under Gov. Code section 12940(a). (See, Miller v. Department of Corrections & Rehabilitation, (2024) 105 Cal. App. 5th 261, 274, internal citations and quotes omitted; Gov. Code § 12940, subds. (a), (m)(1), and (n); See also Vines v. O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 185.) Nonetheless, in the interest of justice, the Court will address these claims.

The “FEHA requires employers to make reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer's operation.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373; Gov. Code § 12940, subd. (m)(1).) “Reasonable accommodations include job restructuring, part-time or modified work schedules, reassignment to a vacant position and other similar accommodations for individuals with disabilities. (Miller v. Department of Corrections & Rehabilitation, supra, 105 Cal. App. 5th at 277, internal quotes and citations omitted.)

The purpose of the interactive process is to determine what accommodation is required. Thus, an “employer cannot be held liable for failing to engage in [the] interactive process when the employee was in fact offered a reasonable accommodation.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195; see (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [there is “no reason why [an] employer should be subjected to liability for failing to engage in the interactive process where the employee was reasonably accommodated”].)

Here, Plaintiff contends that recission of his remote working arrangement on June 30, 2022, tantamount to the County’s refusal to provide accommodation that was effective and reasonable. (Opposition at 4: 12-17; 13:24-14:22) The Court is unpersuaded.

It is undisputed that (1) County accommodated Plaintiff’s medical restrictions by removing him from field inspections, assigned him computer-based duties that he could perform seated, limited his work to four-hours a day, and allowed him to continue work remotely after COVID shelter-in-place order was removed; (2) rescission of Plaintiff’s remote working arrangement occurred after he submitted his retirement application to the County, after he stopped working, and after Plaintiff returned his home computer to the County himself; (3) County offered to continue accommodating Plaintiff with 4-hours a day seated work even after Plaintiff stopped working; (4) Plaintiff’s medical records do not impose a teleworking restriction and only restrict Plaintiff to work seated and for four-hours a day; and (4) Plaintiff in his Response to Reasonable Accommodation Form B expressed his ability to work from office once the COVID shelter-in-place order was lifted. (SSUMF 4, 5, 17, 19, 22, 24, 42-49.)

On this record, County cannot be held liable for failing to engage in the interactive process and/or failing to provide reasonable accommodation when Plaintiff was in fact offered the accommodation his medical providers instructed. The FEHA does not obligate the County to choose the specific accommodation Plaintiff seeks i.e. teleworking, as long as the accommodation chosen and provided is reasonable. (See, Miller v. Department of Corrections & Rehabilitation, supra, 105 Cal. App. 5th at 281.)

Accordingly, County’s motion for summary adjudication of Plaintiff’s claims for failure to make reasonable accommodation or engage in interactive process is GRANTED.

VI.

Conclusion

Based on the foregoing, County’s motion for summary judgment against Plaintiff’s first amended complaint is GRANTED.

SO ORDERED.

Date: ___________ _________________________ Hon. Lori E. Pegg Superior Court of the State of California, County of Santa Clara

Line 3 Case Name: John Diep, M.D., et al. v. Phu Vo, et al.