Amarjeet Rai v. City of San Jose

In August 2020, Plaintiff, at the City’s request, reluctantly agreed to act as a backup to the fingerprinting leads. (Complaint at ¶¶ 16, 18.) Fingerprinting had never been a part of Plaintiff’s job duties for the previous eight years. (Id. at ¶ 18.) Plaintiff also expressed concern and did not want to perform the fingerprinting duties because of her disability. (Ibid.) In November 2021, Plaintiff was appointed as the primary person to take fingerprints which required her to work three days in person each week. (Id. at ¶ 20.) The City assured Plaintiff that it would monitor and ensure that any individual she fingerprinted, would be checked to confirm COVID vaccinations were up to date. (Id. at ¶ 21.)

On January 6, 2022, Plaintiff learned that at least one individual she had fingerprinted had not had her vaccination status checked prior to seeing her. (Complaint at ¶ 22.) Around the same time, Plaintiff learned that the City intended to assign all vaccinated and authorized unvaccinated individuals who needed fingerprinting to her. (Id. at ¶ 23.) At this time, Plaintiff’s medical provider requested that she once again work from home until the COVID numbers quelled. (Id. at ¶ 25.)

On January 20, 2022, Plaintiff had a telephonic meeting with the City to discuss her accommodation request. (Complaint at ¶ 26.) The City stated that it would not be able to ask about the vaccination status of individuals being fingerprinted. (Ibid.) At the same meeting, the City also rejected Plaintiff’s doctor’s note and request for accommodation. (Id. at ¶ 27.) The City then insisted that Plaintiff commit to fingerprinting individuals at least two days per week. (Id. at ¶¶ 27-28.) As a consequence, Plaintiff developed a migraine after the call and later broke out in shingles. (Id. at ¶¶ 28-29.)

The City thereafter asked Plaintiff for another doctor’s note regarding her work from home accommodation. (Complaint at ¶ 30.) Plaintiff provided the City with a note requesting her to continue to work from home for six months. (Ibid.) On April 8, 2022, the City responded that it was able to accommodate her. (Id. at ¶ 31.)

At the end of October 2022, Plaintiff submitted another doctor’s note to the City providing the following temporary work restriction: “work in isolation from other people.” (Complaint at ¶ 32.) The City denied the request, claiming it was unable to allow Plaintiff to work remotely. (Id. at ¶ 33.) The City thereafter placed Plaintiff on unpaid leave. (Ibid.) To date, the City continues to refuse to accommodate Plaintiff and has kept her unpaid leave, causing her undue hardship. (Id. at ¶ 34.)

On August 16, 2023, Plaintiff filed a complaint with the California Civil Rights Department and received an Immediate Right-to-Sue letter. (Complaint at ¶ 8.)

On September 12, 2023, Plaintiff filed the operative complaint against the City alleging causes of action under the California Fair Employment and Housing Act (“FEHA”) for: (1) disability discrimination; (2) failure to provide a reasonable accommodation; (3) failure to engage in a good faith interactive process; (4) retaliation; and (5) failure to prevent discrimination and retaliation.

On May 8, 2026, the City filed the motion presently before the court, a motion for summary judgment, or in the alternative, summary adjudication to the complaint. The City filed a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. The City filed reply papers.

Trial is scheduled for September 14, 2026.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

The City argues there is no triable issue of material fact as to Plaintiff’s claims and thus judgment should be entered as a matter of law. In the alternative, the City moves for summary adjudication of the first, second, third, fourth, and fifth causes of action.

Request for Judicial Notice

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

Here, the City requests judicial notice of the Federated City Employees’ Retirement System Disability Retirement Application Rules and Procedures under Evidence Code section 452, subdivisions (c) and (h). (See Request for Judicial Notice at Ex. F.) Plaintiff does not oppose the request. And the request appears relevant to arguments raised in support of the motion for summary judgment and summary adjudication. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].)

Accordingly, the request for judicial notice is GRANTED.

Evidentiary Objections

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court...” (Code Civ. Proc., § 437c, subd. (c).)

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

Written evidentiary objections must be made in a separate document and must not be re-stated or re-argued in the separate statement. (Cal. Rules of Court, rule 3.1354(b).) Objections must identify the specific item of evidence that is objectionable. (Ibid.)

In addition, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3.1354(c). The rule requires an objecting party to file two separate documents, objections and a separate proposed order, both in one of the approved formats set forth in the rule. (See Cal. Rules of Court, rule 3.1354(b) and (c).) Here, the City asserted objections in response to Plaintiff’s separate statement of additional facts which is not permitted by the rules of court. (See City’s Disputed Facts at Nos. 14, 16-18, 20-34, 36-52, 54-58, 61-62, 65-69, 73, 76-77, 79-80, 84, 86-90, 93, 99, 101, 103-104, 109-113, 115-120, 122, 124.) Nor did the City submit a separate document or proposed order for the objections in compliance with the rules of court.

Therefore, the court declines to rule on the objections based on the above-described defects. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court did not abuse its discretion in refusing to rule on improperly formatted evidentiary objections].)

Legal Standard

Any party may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “The motion for summary judgment shall be granted if all the papers submitted 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.” (Code Civ. Proc., § 437c, subd. (c).) “The object of the summary judgment procedure is ‘to cut through the parties’ pleadings’ to determine whether trial is necessary to resolve their dispute. [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1020 (Spinks).)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact...” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Spinks, supra, 171 Cal.App.4th at p. 1021.)

If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.)

A triable issue of material fact exists “if, and only if, 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, 25 Cal.4th at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)

Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. [Citation.] ‘A motion for summary adjudication...shall proceed in all procedural respects as a motion for summary judgment.’ [Citation.]” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630.)

“[S]ummary judgment (or summary adjudication) is a drastic remedy and should be used with caution. [Citation.] Because summary judgment is a drastic procedure all doubts as to the propriety of granting a motion for summary judgment should be resolved in favor of the party opposing the motion. [Citations.]” (Tully v. World Savings & Loan Assn. (1997) 56 Cal.App.4th 654, 660; see Kernan v. Regents of University of California (2022) 83 Cal.App.5th 675, 684 [“The drastic remedy of summary judgment may not be granted unless reasonable minds can draw only one conclusion from the evidence.”].)

First Cause of Action: Disability Discrimination

“A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.) “Respecting the third element, the disability must be a substantial factor motivating the employer’s adverse employment action.” (Ibid.)

On summary judgment, “the pleadings frame the issues to be resolved. ‘ “The purpose of a summary judgment [adjudication] proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.” [Citation.] “The function of the pleadings in a motion for summary judgment [adjudication] 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.” [Citations.]’ [Citations.]” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 477.)

In the first cause of action, Plaintiff alleges she had a disability as she suffered from an autoimmune disease, migraines, and a back injury, which limits her major life activities, including working. (Complaint at ¶ 37.) Plaintiff alleges she was able to perform the essential job duties with reasonable accommodation for her disabilities. (Id. at ¶ 39.) Plaintiff further alleges that her disabilities were a substantial motivating factor in the City’s decision to place her on indefinite unpaid leave. (Id. at ¶ 41.)

On summary judgment, the City argues the discrimination claim fails as it had nondiscriminatory reasons for its actions and Plaintiff cannot show pretext.

Burden Shifting Analysis in Employment Cases

In reviewing motions for summary judgment/adjudication in employment discrimination cases, California courts employ the burden-shifting formula first articulated by the U. S. Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (See King v. United Parcel Service (2007) 152 Cal.App.4th 426, 433, fn.2; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004 (Scotch).) Under McDonnell Douglas, on a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination (or retaliation), and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v.

Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.) “ ‘A defendant employer’s motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings.’ ” (Scotch, supra, 173 Cal.App.4th at p. 1005, quoting Kelly v. Stamps.com, Inc. (2005) 135 Cal. App. 4th 1088, 1097 (Kelly).) To prevail on its motion, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment.” (Avila v.

Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247, citing Kelly, supra, 135 Cal. App. 4th at pp. 1097- 1098, italics added.)

Legitimate, Non-Discriminatory Reasons

“Legitimate” reasons in this context are reasons that are factually unrelated to prohibited bias, and therefore, if true, would preclude a finding of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358.) This burden, like the prima facie case, has been found not to be onerous. (See Board of Trustees of Keene State College v. Sweeney (1978) 439 US 24, 25, fn. 1 [employer’s burden met “if he simply explains what he has done or produce(s) evidence of legitimate nondiscriminatory reasons”].) “Examples of legitimate reasons are a failure to meet performance standards or a loss of confidence in an employee.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.)

Here, the City contends it had legitimate, non-discriminatory reasons for placing Plaintiff on indefinite unpaid leave. In support, the City relies on the following material facts in their separate statement:

• Sarah Steele (“Ms. Steele), the City’s designated Person Most Knowledgeable, testified that while Plaintiff was permitted to work remotely on a temporary basis, she was unable to perform some of her essential duties, including maintaining hard-copy files, covering the front desk, conducting inventory, preparing binders, and organizing special events, among other responsibilities.

• Ms. Steele testified that continuing to accommodate Plaintiff by allowing full-time remote work would create an undue burden, and that the City therefore decided to Plaintiff on unpaid leave.

• Ms. Steele testified that continuing to allow Plaintiff to work remotely on a full-time basis created an undue burden on the City because it required redistribution of approximately 20 percent of Plaintiff’s duties to other employees, who were required to perform both their own duties and Plaintiff’s duties. (See City’s Separate Statement of Undisputed Facts [“SSUF”] at Nos. 14, 17-18.)

Based on these material facts, a trier of fact may conclude that the City did not discriminate against Plaintiff on the basis of her disability as it had legitimate, non-discriminatory reasons for placing her on indefinite unpaid leave. Having done so, the burden now shifts to Plaintiff to provide evidence of pretext.

Direct Evidence of Discriminatory Intent

In opposition, Plaintiff asserts the burden shifting analysis outlined in McDonnell Douglas is not applicable as there is direct evidence of discrimination on the part of the City.

The McDonnell Douglas three-stage framework does not apply where the plaintiff presents direct evidence of discrimination. (Glynn v. Super. Ct. (2019) 42 Cal.App.5th 47, 53 (Glynn).) “Thus, in disability discrimination cases, the threshold issue is ‘whether there is direct evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition.’ [Citation.] ‘[A] plaintiff alleging disability discrimination can establish the requisite employer intent to discriminate by proving (1) the employer knew that plaintiff had a physical condition that limited a major life activity, or perceived him to have such a condition, and (2) the plaintiff’s actual or perceived physical condition was a substantial motivating reason for the defendant’s decision to subject the plaintiff to an adverse employment action.’ [Citation.]” (Ibid.)

“Direct evidence is evidence that proves a fact without inference or presumption.” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 35 (Zamora).) Examples of “[d]irect evidence include comments that demonstrate discriminatory animus and a causal relationship between those comments and the adverse employment action.” (Ibid.; see Dejung v. Super. Ct. (2008) 169 Cal.App.4th at pp. 540-541, 550 [chairman of hiring committee told employee seeking promotion that “we’re looking for someone younger,” “maybe in their 40’s”].)

Direct evidence also includes outright admissions that an adverse employment action was predicated on a belief that an employee was disabled. (See Glynn, supra, 42 Cal.App.5th at pp. 50-53 [employer admitted it terminated employee based on its belief that employee was totally disabled and unable to work]; see also Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 123, 132-133 [employer admitted it imposed unpaid leave of absence on employee based on its belief that restrictions necessitated by employee’s physical disability rendered him unable to safely perform his duties.].)

Plaintiff however fails to cite any specific direct evidence of discriminatory intent to the court showing the City placed her on indefinite unpaid leave because of her disability. (See OPP at p. 18:13-27; Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 75 [“It is appellants’ duty to direct the court to evidence that supports their claims. It is not the court’s duty to rummage through the papers to construct or resuscitate their case.”]; see also Eddins v. Redstone (2005) 134 Cal.App.4th 290, 318 [“The trial court cannot be expected to address expressly every piece of evidence contained in a voluminous record, much less evidentiary items on which a party has not relied to create a dispute issue of material fact.”].) The court thus applies the McDonnell Douglas test and examines whether Plaintiff has evidence to establish pretext.

Evidence of Pretext

“[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).)

“ ‘The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “the employer did not act for the [the asserted] non-discriminatory reasons.” [Citations.]’ [Citations.]” (Hersant, supra, 57 Cal.App.4th at p. 1005.)

As the Sixth Appellate District explained:

“[E]vidence that the employer’s claimed reason is false – such as that it conflicts with other evidence, or appears to have been contrived after the fact – will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful. This does not mean that the fact finder can examine the employer’s stated reasons and impose liability solely because they are found wanting. But it can take account of manifest weaknesses in the cited reasons in considering whether those reasons constituted the real motive for the employer’s actions, or have instead been asserted to mask a more sinister reality.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.)

In opposition, Plaintiff argues the following facts are sufficient to establish pretext: (1) the City’s conclusions regarding which of her duties were essential and which could be performed at home were false and unsupported; (2) the City ignored Plaintiff’s offer to come in after hours, as she had done from 2013-2020, to perform any tasks that required her to be in person; and (3) the City misrepresented its policy regarding remote work. (See OPP at p. 19:1-8; Plaintiff’s Additional Facts at Nos. 94, 99, 105, and 122.)

But, Plaintiff fails to set forth any substantive argument addressing how each of these points supports evidence of pretext. (See Public Employment Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 939 [“The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.”]; United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [court may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he or she wants us to adopt].)

Nor does the court find that these arguments demonstrate the kind of inconsistencies, weaknesses, and implausibilities to establish pretext or that the City placed Plaintiff on an indefinite unpaid leave with a discriminatory animus. As there is no evidence of pretext, there is no viable cause of action for disability discrimination under the FEHA.

Therefore, the motion for summary adjudication to the first cause of action is GRANTED. Having granted the motion on this ground, the court declines to address the remaining arguments raised by the City to the first cause of action.

Second Cause of Action: Failure to Provide a Reasonable Accommodation

“The FEHA requires employers to make reasonable accommodation for the known disabilities of employees and applicants to enable them to perform the essential functions of a position, unless doing so would produce undue hardship to the employer’s operations.” (Zamora, supra, 71 Cal.App.5th at p. 40.)

A “reasonable accommodation” is any “modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Scotch, supra, 173 Cal.App.4th at p. 1010.)

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

Reasonable accommodations may include “[j]ob restricting, part-time or modified work schedules, reassignment to a vacant position...and other similar accommodations for individuals with disabilities.” (Gov’t Code, § 12926, subd. (p).) “FEHA does not obligate an employer to choose the best accommodation or the specific accommodation of a disabled employee or applicant seeks. It requires only that the accommodation chosen be ‘reasonable.’ [Citation.]” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)

In the second cause of action, Plaintiff alleges she had disabilities which substantially limited the following major life activities: working. (Complaint at ¶ 48.) The City knew of Plaintiff’s disabilities. (Ibid.) Plaintiff alleges she was able to perform the essential job duties of her position with reasonable accommodation. (Id. at ¶ 49.) The City allegedly failed to meet its duty to provide reasonable accommodations for Plaintiff’s known disabilities and instead placed Plaintiff on indefinite unpaid leave. (Id. at ¶ 50.)

On summary judgment, the City first contends Plaintiff did not provide adequate medical information to support her requested accommodation. (See City’s SSUF at Nos. 49, 50-59.) This contention however is not compelling as Plaintiff, in opposition, submits evidence showing the City was aware of her disabilities and work restrictions. (See Plaintiff’s Additional Fact at No. 12.)

The City also asserts that no reasonable accommodation existed that would allow Plaintiff to perform the essential functions of her position. (See City’s SSUF at Nos. 60-65, 68-71.) The City’s assertion is based on the ground that Plaintiff could not perform the essential functions of her position under her proposed accommodation. (Id. at Fact No. 65 [Ms. Steele testified that Plaintiff could not perform all essential duties remotely].) This fact however is disputed as Plaintiff, in opposition, submits evidence demonstrating she can perform all of the essential functions of her position remotely.1 (See Plaintiff’s Additional Facts at Nos. 8-10.)

Also, as stated above, the City decided to place Plaintiff on indefinite unpaid leave as continuing to allow her to perform full time remote work would create an undue burden. But, as pointed out in opposition, the City does not carry its burden in establishing an undue burden as required by California law. (See Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 733 [Government Code Section 12940, subdivision (m)(1), places the burden of demonstrating undue hardship on the employer. Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis and involves a multi-faceted, factintensive inquiry.]; see also Kaur v.

Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 351 [“Undue hardship is evaluated with reference to several specific and strictly defined criteria.”].) Nor does placing Plaintiff on an indefinite unpaid leave of absence constitute a reasonable accommodation. (See Mois v. Wynn Las Vegas LLC (9th Cir. 2017) 715 Fed. Appx. 600, 601 [Ninth Circuit concluding that “placing Mois on unpaid leave was not a reasonable accommodation”]; Dawson v. Akal Sec., Inc. (9th Cir. 2016) 660 Fed. Appx. 504, 506 [“The fact that unpaid leave may be a reasonable accommodation when it is requested ‘does not mean that it cannot also be an adverse action, particularly where the employee is placed on unpaid leave involuntarily.’”]; see also Godfrey v.

Oakland Port Services Corp. (2014) 230 Cal.App.4th 1267, 1277, fn. 10 [“Federal circuit opinions do not bind California courts, but they ‘may serve as persuasive authority.’ ”].)

As triable issues of material fact remain, the motion for summary judgment is DENIED. (See Gleason v. Klamer (1980) 103 Cal.App.3d 782 [appellate court reversed trial court’s order granting summary judgment because there was a single triable issue of fact].) The motion for summary adjudication to the second cause of action is DENIED.

1 To the extent that the City takes issue with portions of the declaration submitted by John Tucker with Plaintiff’s opposition (see Reply at p. 4:18-23), the City has not submitted objections in proper form addressing those deficiencies to the court for reasons articulated above.

Third Cause of Action: Failure to Engage in a Good Faith Interactive Process

“The FEHA makes it ‘an unlawful employment practice ... [¶] ... [¶] ... [f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.’ [Citation.] Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perform his or her job effectively [citation], an employer’s failure to properly engage in the process is separate from the failure to reasonably accommodate an employee’s disability and gives rise to an independent cause of action [citation].” (Swanson v.

Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971 (Swanson).)

“The employee must initiate the process unless his or her disability and the resulting limitations are obvious. Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. [Citation.] ‘Both employer and employee have the obligation “to keep communications open” and neither has “a right to obstruct the process.” [Citation.] “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party.

Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” ’ [Citation.]” (Swanson, supra, 232 Cal.App.4th at pp. 971-972, emphasis added.)

“ ‘[T]he fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability ... . If the employer is responsible for a later breakdown in the process, it may be held liable.’ [Citation.]” (Swanson, supra, 232 Cal.App.4th at p. 972, emphasis added.)

In the third cause of action, Plaintiff alleges she was willing to participate in an interactive process to determine whether reasonable accommodations could be made so that she would be able to perform her essential job requirements. (Complaint at ¶ 58.) The City allegedly failed to engage in a timely, good faith, interactive process with Plaintiff to determine effective reasonable accommodations for her known disabilities, and instead placed her on indefinite unpaid leave. (Id. at ¶ 59.)

Here, the City argues it engaged in an extensive, good faith interactive process with Plaintiff over an extended period. (See City’s SSUF at Nos. 72-74.) But, as explained above, liability hinges on whether the City was responsible for the breakdown in the interactive process. Plaintiff, in opposition, submits evidence that, at a minimum, raises a triable issue of material fact as to whether the City was responsible for the breakdown in the process to defeat the instant motion for summary adjudication. (See Plaintiff’s Disputed Facts at Nos. 72-74; Plaintiff’s Additional Facts at Nos. 117-121.)

Accordingly, the motion for summary adjudication to the third cause of action is DENIED.

Fourth Cause of Action: Retaliation

“[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

In the fourth cause of action, Plaintiff alleges she engaged in protected activity when she requested reasonable accommodations. (Complaint at ¶ 65.) Plaintiff further alleges her requests for an accommodation were a substantial motivating reason for the City’s decision to place her on indefinite unpaid leave. (Id. at ¶¶ 66-67.)

Here, like the first cause of action, the City meets its initial burden on summary adjudication as it proffers evidence demonstrating it had legitimate, non-retaliatory reasons for placing Plaintiff on unpaid leave. (See City’s SSUF at Nos. 82-85.) Plaintiff raises the same pretext arguments that were considered and rejected by the court in connection with the disability discrimination cause of action. (See OPP at p. 20:3.) And, to the extent that Plaintiff relies on a temporal proximity argument, courts have determined that temporal proximity alone cannot establish pretext. (See Arteaga v.

Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353 [temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the adverse employment action].) Thus, the court finds there is no viable claim for retaliation under the FEHA.

Consequently, the motion for summary adjudication to the fourth cause of action is GRANTED. Having granted the motion on this ground, the court declines to address the remaining arguments raised by the City to the fourth cause of action.

Fifth Cause of Action: Failure to Prevent Discrimination and Retaliation

A claim for “Failure to Prevent Discrimination and Retaliation” necessarily depends upon establishing that discrimination and retaliation occurred in the first place. Under the FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (See Govt. Code, § 12940, subd. (k).) A prerequisite to a finding of liability for the failure to take all reasonable steps, however, is finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282-283; see also Scotch, supra, 173 Cal.App.4th at p. 1021.)

In the fifth cause of action, Plaintiff alleges the City’s failure to take reasonable steps to prevent discrimination and retaliation was a substantial factor in causing her harm. (Complaint at ¶ 77.) As discussed above, the court granted the motion for summary adjudication to the discrimination and retaliation causes of action. Thus, as those claims fail, so too does the cause of action for failure to prevent discrimination and retaliation.

Therefore, the motion for summary adjudication to the fifth cause of action is GRANTED.

Disposition

The motion for summary judgment to the complaint is DENIED.

The motion for summary adjudication to the first, fourth, and fifth causes of action is GRANTED.

The motion for summary adjudication to the second and third causes of action is DENIED.

The court will prepare the order.

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