Emmanuel Lozano vs Central Irrigation, Inc. et al.

Defendant’s undisputed material facts (UMFs) 2, 3, and 4, and the evidence provided in support thereof, establish that the District’s decision to return to work was discretionary and was directly related to decisions regarding COVID-19. By its very nature, this was a decision related to “preventing disease or controlling the communication of disease within the community[,]” and not merely individual employment management. (Gov. Code § 855.4.) The FEHA claims in Plaintiffs’ complaint are also shown by the evidence provided by Defendant to be based on the District’s decision to require decedent to return to in-person work. (See, Hubbel Decl., Exh. 3, 4, 5, and 6.)

As Defendant has established it is entitled to judgment as a matter of law, the burden shifts to Plaintiffs to provide admissible evidence that either Government Code section 855.4 is not applicable or that the FEHA claims do not originate from the District’s return to work order.

In opposition, Plaintiffs argue that Government Code section 855.4 does not apply to FEHA, relying on DeJung v. Superior Court (2008) 169 Cal.App.4th 533 for the proposition that FEHA specifically imposes liability on public employers for violations, therefore government immunity provisions do not apply. DeJung is not on point here, as it addressed only general immunity, not specific immunities conferred under section 855.4 and its ilk. FEHA does not override an immunity accorded a public agency under a more specific statute, as here.

Plaintiffs further argue FEHA is exempt from the Government Claims Act (Opp. 8:9-12), and that section “855.4 does not relieve the District of its obligations to accommodate a disabled employee . . .” (Opp. 8:17-18.) This conflates the legal concepts of duty and immunity, which are separate and distinct. The fact that FEHA imposes a duty on Defendant, a duty Defendant complied with, has no bearing on whether section 855.4 creates a separate barrier to enforcement through specific immunity.

Plaintiffs have not shown that section 855.4 is not applicable, nor provided evidence that the FEHA claims do not stem from the District’s decision to require its employees to return to in-person work. As Plaintiffs have not carried their burden to create a triable issue of material fact as to the defense of statutory immunity pursuant to section 855.4, the motion for summary judgment is GRANTED.