Motion For Summary JudgmentMotionCal. Super. - 2nd Dist.July 3, 2019Electronically FILED by Superibr Court of California, County of Los Angeles on 04/10/2020 04:43 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk [Fee exempt Pursuant to Govt. Code § 6103] 1 | ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation 2 | Irma Rodriguez Moisa State Bar No. 162272 IMoisa@aalrr.com 3 | Amber M. Solano State Bar No. 216212 ASolano @aalrr.com 4 | Michele L. Collender State Bar No. 276288 Michele.Collender @aalrr.com 5 || 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364 6 | Telephone: (562) 653-3200 2 Fax: (562) 653-3333 Attorneys for Defendant 8 | LONG BEACH PUBLIC TRANSPORTATION COMPANY o 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 10 COUNTY OF LOS ANGELES - CENTRAL DISTRICT oc 3 11 > : . 17 ANET RODRIGUEZ, an individual, Case No. 19STCV23340 ox 3 ang SE £58. 13 Plaintiff, NOTICE OF MOTION AND MOTION FOR SERRE: SUMMARY JUDGMENT OR, IN THE Q gry ee 141 V- ALTERNATIVE, SUMMARY .29EE5 ADJUDICATION BY DEFENDANT LONG S8zE3, 8 15 | LONG BEACH PUBLIC BEACH PUBLIC TRANSPORTATION ” 323 °8; TRANSPORTATION COMPANY, a COMPANY; MEMORANDUM OF POINTS we Esa 16 | California corporation; and DOES 1-50, AND AUTHORITIES IN SUPPORT Ss iEf inclusive, THEREOF < g° > = 17 Defendants. Complete Set of Concurrent Filings: : 0 18 (1) Notice of Motion and Motion for Summary 2 of Judgment or, in the Alternative, Summary < Adjudication; Memorandum of Points and - 19 < Authorities; 20 (2) Separate Statement of Undisputed Material Facts; 21 (3) Compendium of Declarations and Exhibits in Support Thereof; 27 (4) Request for Judicial Notice; and (5) [Proposed] Order] 23 RESERVATION ID: 260528191672 24 Date: June 24, 2020 25 Time: 8:30 a.m. Dept.: 53 26 Judge: Hon. Robert Broadbelt 27 Complaint Filed: July 3, 2019 Trial Date: August 5, 2020 28 008878.00070 27175262.1 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o 1 TO PLAINTIFF JANET RODRIGUEZ AND PLAINTIFF'S COUNSEL OF RECORD: PLEASE TAKE NOTICE that on June 24, 2020, at 8:30 a.m., or as soon thereafter as the matter may be heard in Department 53 of the above-entitled court, Defendant LONG BEACH PUBLIC TRANSPORTATION COMPANY (“LBT”), will and hereby does move the court for an AN nn Bs W N order granting summary judgment or, in the alternative, summary adjudication of issues, on the 7 | Complaint of Plaintiff JANET RODRIGUEZ (“Plaintiff”) in favor of LBT and against Plaintiff. 8 Defendant’s Motion for Summary Judgment is made pursuant to Code of Civil Procedure 9 | section 437¢ on the grounds that there are no triable issues of material fact relating to any of the 10 | causes of action asserted against LBT. In the alternative, Defendant’s motion for summary 11 | adjudication is made pursuant to Code of Civil Procedure section 437¢(f) as to each of Plaintiff’s 12 || individual causes of action. More specifically, this Motion is made on the following grounds: A P R O F E S S I O N A L C O R P O R A T I O N = 78 13 | ISSUE NO. 1: PLAINTIFF’S FIRST CAUSE OF ACTION FOR DISCRIMINATION < 58 14 IN VIOLATION OF THE FEHA FAILS AS A MATTER OF LAW : = 15 The First Cause of Action for Discrimination in Violation of the Fair Employment and 16 | Housing Act (“FEHA”) fails because Plaintiff cannot establish a prima facie case of disability C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 17 | discrimination. 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 18 | ISSUE NO. 2: PLAINTIFF’S SECOND CAUSE OF ACTION FOR FAILURE TO 19 ACCOMMODATE IN VIOLATION OF THE FEHA FAILS AS A 20 MATTER OF LAW 21 The Second Cause of Action for Failure to Accommodate in Violation of the FEHA fails 22 || because Plaintiff there was no reasonable accommodation available to Plaintiff which would have 23 | enabled her to do her job. 24 | ISSUE NO. 3: PLAINTIFF’S THIRD CAUSE OF ACTION FOR FAILURE TO 25 ENGAGE IN THE INTERACTIVE PROCESS IN VIOLATION OF 26 THE FEHA FAILS AS A MATTER OF LAW 27 The Third Cause of Action for Failure to Engage in the Interactive Process in Violation of 28 | the FEHA fails because Plaintiff cannot establish that LBT failed to engage in the interactive 008878.00070 2 27175262.1 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o 1 | process. ISSUE NO. 4: PLAINTIFF'S FOURTH CAUSE OF ACTION FOR FAILURE TO PREVENT IN VIOLATION OF THE FEHA FAILS AS A MATTER OF LAW The Fourth Cause of Action for Failure to Prevent in Violation of the FEHA fails because AN nn Bs W N Plaintiff cannot establish LBT committed any unlawful acts of discrimination or retaliation in 7 | violation of the FEHA. 8 || ISSUE NO. 5: PLAINTIFF’S FIFTH CAUSE OF ACTION FOR RETALIATION IN 9 VIOLATION OF THE FEHA FAILS AS A MATTER OF LAW 10 The Fifth Cause of Action for Retaliation in Violation of the FEHA fails because Plaintiff 11 | cannot establish a prima facie case of retaliation in violation of the FEHA. 12 This Motion is made, and based upon, this Notice, the following Memorandum of Points 13 | and Authorities, the concurrently filed Separate Statement of Undisputed Material Facts, Request 14 | for Judicial Notice, the Compendium of Declarations and Exhibits, including the Declarations of 15 | Jacqueline Gomez and Amber M. Solano, all supporting evidence, all pleadings and records on A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 16 | file in this action, and upon such oral and/or other documentary evidence as may be allowed at the C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 17 | time of hearing on this motion. 18 191 Dated: April 10, 2020 ATKINSON, ANDELSO YA, RUUD & ROMO 20 By: 21 Irma Rodriguez Moisa Amber M. Solano 22 Michele L. Collender Attorneys for Defendant 23 LONG BEACH PUBLIC TRANSPORTATION COMPANY 24 25 26 27 28 008878.00070 3 27175262.1 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page MEMORANDUM OF POINTS AND AUTHORITIES .......coccocccemeseeuess sie smnssnevsss cos snsssssasess ance 9 I. INTRODUCTION ....ooiiiiiiiiieie eee saee sere eee nnee 9 I. UNDISPUTED MATERIAL PACTS cea cuswmmsms esac easmasammms semsmemmmses 10 A BT eeeects eee eters sabes sa ae sane eee nen 10 I. Essential Job Duties of a Coach Operator for LBT..........cccocceevviiinniiennnen. 10 2. Physical Demands Related to Essential Job Duties of a Coach Operator fOr LBT ...ccuoiiiiiiieceee reece 11 B. Plaintiff’s Employment With LBT as a Coach Operator ...........ccccccevueeueeneennnenn. 11 C. Plaintiff’s January 9, 2017 Workplace Injury .........cccoceemieeieeiiinninniccieceeneenne 11 1. Dr. Dini, Plaintiff’s Panel Qualified Medical Examiner, Issued Permanent Work Restrictions of No Kneeling or Squatting, and No Lifting, Pushing or Pulling More than 25 Pounds..........c.ccccceevvinnennnnen. 13 2. LBT’s September 12, 2018 Meeting with Plaintiff.............c.cccccoveennen 13 3. Plaintiff’s Permanent Work Restrictions Issued by Dr. Tabibian............. 14 IIL. LEGAL STANDARDS FOR MOTION FOR SUMMARY JUDGMENT, OR SUMMARY ADJUDICATION OF ISSUES .....coiiiiieee cece eee 16 IV. LEGAL ARGUINENT cscs mummncsunsenussmnsnsmns omen mas essnsss ms oss ssn is siren sss 16 A. LBT is Entitled to Summary Adjudication of Plaintiff’s First Cause of Action for Disability DIiSCrimination ..........cc.ceecueereirnieenieeieeneeniee sieev c c 16 1. Plaintiff Cannot Establish that She Could Perform the Essential Duties of the Coach Operator POSItion.........c.c.cecueereirnieenieeieeneeniee nen 18 a. Undisputed Evidence Shows That Pre-Trip Inspections and Wheelchair Assists Are Essential Functions of the Coach Operator POSITION .......ccocveiriierieiiiiniinie n ece cece eee ese 19 b. Plaintiff Cannot Establish that a Reasonable Accommodation Existed that Would have Allowed her to Perform Essential Functions ........cccccoiiiiiiiiiiiiiicc 21 B. LBT is Entitled to Summary Adjudication of Plaintiff’s Second Cause of Action for Failure to AcCOMMOAALE .......c.c.eerueeeiiiniiriiienieeieeecetee seers 22 C. LBT is Entitled to Summary Adjudication of Plaintiff’s Third Cause of Action for Failure to Engage in the Interactive Process ........cc.cccoveenieeiecicecnnnenns 23 TABLE OF CONTENTS D. LBT is Entitled to Summary Adjudication of Plaintiff's Fourth Cause of 4 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. TABLE OF CONTENTS (CONTINUED) Page Action for Failure to Prevent Discrimination and Retaliation .............cccccccceenneen. 25 E. LBT is Entitled to Summary Adjudication of Plaintiff's Fifth Cause of Action for Retaliation........c.ccovviiirieiiiiieiniie nieces e eeee ee esr eereeeenn 25 1. Plaintiff Never Requested an Accommodation From LBT ...................... 25 2. LBT Had Legitimate Business Reasons for Failing to Return Plaintiff to Work and Plaintiff Cannot Prove Pretext ............ccccevveennnenne. 26 CONCLUSION Lc. sects teense eters sees eee sn ee sate sane eae estes sree sane enaeen 27 3 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o 1 TABLE OF AUTHORITIES 2 Pages 3 | FEDERAL CASES 4 | Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) IS0 F.3A 1217 coe eee eee eee eevee setae eevee saa e aaa ae ess ae sans ae esss ae ssnsaeesnsaessbeeessseeenns 17 5 McDonnell Douglas Corp. v. Green (1973) 6 ATT US. 792 eter t teeta eee e eb teehte sabe esate setae hte sabe a nee e bee sate enbe ante e naan 17 7 | STATE CASES 8 || Aguilar v. Atlantic Richfield Co. (2001) 25 CaliAth 826... eects eee eee eet eta e aba e saa e eases era aeeara ae eaae ee eaae ee eaaeeas 16 9 Arteaga v. Brink's, Inc., (2008) 10 163 CalLAPP.Ath at 343 o.oo t eee bbe sateen steers ee sabe sabe ene ee neeas 27 11 | Frank v. County of Los Angeles (2007) 3 149 CalLAPP.Ath B05 «cence eee eects teste ete t ee ebbe seas eee esas este enbeenneeenseas 17 Es 12 § a 28 Furtado v. State Personnel Board (2013) £.Eg%2 13 212 CALAPPAN 729 wooo eevee sees eee eee sees eee esses 18 8 < esol 14 | Gelfo v. Lockheed Martin Corp. (2006) 2500523 T40 CalLAPP.Ath 34 coco e ete eet teeta testes shee sateen eee b ee ebbe sateen ee neas 23 253zuc 15 BEo, 2x Government Employees Ins. Co. v. Superior Court (2000) g ECE 16 TO CALAPD.AN 05 ooo eee sateen nena eaee eens 17 8° 17 | Green v. State of California (2007) & A2 CALAPP-AN 254 «oes eee ees t ee eh been ante e tee eate sabe e nee eeaas 18 18 Guz v. Bechtel Nat. Inc. (2000) 19 24 Coa 200 0 B20: wuss osname oS SE A AER A 5 17 20 | Hersant v. Department of Social Services (1997) ST CaALAPP-AR O07 e eee ete sabes t teehee abe e eee bee ebbe sabe e anes eeas 27 21 Jensen v. Wells Fargo Bank (2000) 22 85 CaAlLAPP. Ath 245 ot ete sabes t eshte sabe e testes sheen 18 23 | Kerr v. Rose (1990) 216 Cal. APDP.3A 1551 cine eter eet sabe atest eebaeesbe ante e ese e sate enbe anne eenneas 16 24 King v. United Parcel Service, Inc. (2007) 25 152 (CAL AD A ZR 1 5000sso0ss ements EA ARES SE 26 26 | Laabs v. City of Victorville (2008) 163 CalLAPP.Ath 1242 ....ooieiiiiee eee eee ete eee estes hte e ete e sabe sabe anaes eeas 17 27 Lewis v. City of Benicia (2014) 28 224 CalLAPP.AL 1519 cenit sees b te eee eres b tesa sabe eee aeas 25 008878.00070 6 27175262.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o 1 TABLE OF AUTHORITIES (CONTINUED) 2 Pages 3 || Lui v. City and County of San Francisco (2012) 211 CalLAPP.ALN O02 ie eee ete sabes t ees b be eebe ase e ete e sabe eebe anne eeneeas 18 4 Lyons v. Security Pacific Nat’l Bank (1995) 5 20 CA ATI 21, TOIL. mavens osseous mac 50 A OS 16 6 | Moore v. Regents of Univ. of Calif. (2016) 248 Cal APPA 216 ce. eeeet eee te ea e eee t eee b bees eee tee sate sabe anne 26 7 Morgan v. Regents of the Univ. of Cal. (2000) 8 88 CALAPP. AN 52 o.oo eee eee ete she sabes b ee eh te eee antes tae eaee eas 25 9 | Nealy v. City of Santa Monica (2015) 234 Cal.APP.AL 359 onte eee eae eee eee h teste ee ete eabe saree eee nneas 18 10 Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) . 11 1871 CA LATO AE 06) vse cements A RE A 5 17 8, 12 | Rochlis v. Walt Disney Co. (1993) § 223 19 CaALAPP-AI 201 cei eee ete ste eee atest ee she eae atest ee ebbe sabe ene ee neas 16 Z.E3%2 13 g $23 oo Sandell v. Taylor-Listug, Inc. (2010) 8 < = =52 14 188 CalLAPP.Ath 207 «coe eet sabes t eshte sabe estes t ee eabe sete e eee neeas 18 8 g : ig% 15 || Sangster v. Paetkau (1998) BEo, 2x 08 CaAlAPP.AH 151 o.oo eee eee esses ene 16 iii 16 < 85° Scotch v. Art Institute of California (2009) 3 17 178 (CAL AT AI DB 1 50s0sso0ss cements A RES A G3 24 18 || Trujillo v. North Co. Transit Dist. (1998) 63 CaLAPP-Ah 280... eee sbeebs sabes b ee sate sabe anne eeas 25 19 Turner v. Anheuser-Busch, Inc. (1994) 20 T Calldth 1238... eee teeters ete she sabe este et ee ehbe nba e nee e bee sate enbe ante e naan 16 21 | Wilson v. County of Orange (2009) 169 CalLAPP.Ath 1185 cee eee ete sbbe sabe e tees ee ebbe sabe eneeeneeas 22 22 Yanowitz v. L'Oreal USA, Inc. (2005) 23 85 Call TTB cous omnes onsen ono ona somes ss a SA ARSE SE 25 24 | STATE CODES/STATUTES 25 | Code Of Civ. PTOC. § 437C(C) uiiiiiuuiie eee eects eee ee eee ee eee e seen eee erases ee este ease enneees 16 26 || GOV. COAE § 12926 .....eeiiiiiie tcetera ete sate sabe e teste eebbe sabe ene e esas sbbe sabe ene eeneens 20 27 | GOV. COA § 12926(F) ..oeeeeeiieee eee eee eee eee eee eee eae eee eaae eee ete eee eaar ease erases ee eate ease ennnees 19 28 | GOV. Code § 129260(F)(1)..eieiuieeniieiieiie etter eters t teeta e testes sabe eebe ene e es ee sabe enna ese esneeas 20 008878.00070 7 27175262.1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (CONTINUED) Pages OTHER AUTHORITIES QO CER § 396.13... e eee e eee t eaters esas ease ates e ses ee tesa aa es esas sess anes eseenes 20 8 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This is a disability discrimination case filed by Janet Rodriguez (“Plaintiff”), who is a Coach Operator for Long Beach Public Transportation Company (“LBT”). On January 9, 2017, Plaintiff fell while working, injuring her left knee and lower back. Since that time, Plaintiff has been unable to perform the essential functions of the Coach Operator position and remains on a leave of absence. Two separate medical doctors issued to Plaintiff permanent work restrictions consisting of no kneeling and squatting, and no pushing, pulling or lifting more than 25 pounds. Despite Plaintiff's admissions that the work restrictions prevent Plaintiff from performing essential functions of her position, Plaintiff filed this lawsuit alleging five causes of action under the Fair Employment and Housing Act (“FEHA”) for: (1) disability discrimination, (2) failure to accommodate her disability, (3) failure to engage in the interactive process, (4) failure to prevent, and (5) retaliation. Summary judgment must be granted on Plaintiff’s first cause of action for discrimination because the evidence indisputably demonstrates that Plaintiff cannot perform the essential job duties of her job as a Coach Operator with or without an accommodation. As such, Plaintiff is not a qualified individual for purposes of FEHA discrimination protections. Summary judgment must also be granted in LBT’s favor on Plaintiff’s second and third causes of action for failure to accommodate and failure to engage in the interactive process. The indisputable evidence, including Plaintiff’s own testimony, shows that there was no reasonable accommodation that would enable Plaintiff to do her job. Summary judgment must also be granted on Plaintiff’s fifth cause of action for retaliation because Plaintiff’s claim is unsupported by any evidence that she either engaged in protective activity or that LBT’s decision not to return Plaintiff to work in violation of Plaintiff's permanent work restrictions is a pretext for unlawful retaliation. Finally, because Plaintiff cannot establish a prima facie case of disability discrimination or retaliation, summary judgment must also be granted on Plaintiff’s fourth cause of action for failure to prevent discrimination and retaliation. 9 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For each of the foregoing reasons, LBT requests that the court grant its Motion for Summary Judgment or, in the alternative, Motion for Summary Adjudication. II. UNDISPUTED MATERIAL FACTS A. LBT LBT provides public transportation service across 14 cities in southeastern Los Angeles County and northwestern Orange County, including the cities of Long Beach, Signal Hill, Lakewood, Bellflower, Artesia, Cerritos, Hawaiian Gardens, Norwalk, and Seal Beach. (UMF 1.) LBT employs Coach Operators to drive its buses on fixed bus routes. (UMF 2.) In approximately 2008, LBT conducted an essential functions job analysis of the position of Coach Operator and the results of the analysis were included in an Essential Functions Job Analysis Report. (UMF 3.) Since April 2008, LBT has used the Essential Functions Job Analysis report to identify what LBT believes are the essential job functions, duties and physical demands of the position of Coach Operator (UMF 4.) Since April 2008, LBT has used the Essential Functions Job Analysis to set forth the reasons LBT determined the functions are essential. (UMF 5.) 1. Essential Job Duties of a Coach Operator for LBT LBT’s Essential Functions Job Analysis Report provides that the purpose of Coach Operators is, “to safely operate a transit motor coach resulting in safe, courteous, reliable and efficient public transportation.” (UMF 6.) To fulfill this purpose, Coach Operators must perform a pre-trip inspection at the beginning of each shift before driving a bus. (UMF 7.) A pre-trip inspection consists of thoroughly inspecting the vehicle, including checking under the vehicle for leaks, hanging wires, debris, or anything else that could impede bus operations. (UMF 8.) Coach Operators must operate a passenger transportation vehicle in a safe and efficient manner, operate ramps, schedule adherence, maneuver the coach in tight, small areas, complete four point tie downs when necessary, and communicate with dispatcher for instruction. (UMF 9.) Coach Operators must also provide customer service, including assisting passengers in and out of the coach, assisting wheelchair passengers with seatbelts and aligning their wheelchairs, and securing wheelchairs using restraints. (UMF 10.) 10 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 These functions are essential to the position, because they are necessary in order for Coach Operators to provide safe, courteous, reliable and efficient public transportation for passengers, including those in wheelchairs. (UMF 11.) 2. Physical Demands Related to Essential Job Duties of a Coach Operator for LBT A Coach Operator is expected to be able to sit continuously for up to 2.5 hours at a time, not only in operating a bus, but also as required to attend safety training and other meetings. (UMF 12.) Coach Operators must be able to squat and kneel in order to perform pre-trip inspections and when securing wheelchairs with restraints on the bus, which occurs between 31 minutes to 2.5 hours per shift. (UMF 13.) While restraining wheelchairs, Coach Operators must pull on straps, and when moving wheelchair passengers, Coach Operators must push and pull; the combined weight of individuals and wheelchairs may be up to 600 pounds. (UMF 14.) Coach Operators must also be able to lift up to 50 pounds of weight to operate the wheelchair ramp. (UMF 15.) B. Plaintiffs Employment With LBT as a Coach Operator On April 20, 2007, LBT accepted Plaintiff as a Student Trainee for the position of Coach Operator. (UMF 16.) On November 23, 2007, after Plaintiff completed her student training and probationary period, Plaintiff was hired as a full-time professional Coach Operator. (UMF 17.) Plaintiff is still currently employed by LBT as a Coach Operator, but Plaintiff has been on a leave of absence since April 14, 2017. (UMF 18.) C. Plaintiff’s January 9, 2017 Workplace Injury On January 9, 2017, Plaintiff’s bus was involved in a car accident. (UMF 19.) After exiting the bus, Plaintiff’s foot slipped into a hole and she fell, landing on the ground in a kneeling position injuring her left knee and lower back. (UMF 20.) LBT took Plaintiff to CareOnSite for treatment on the same day. (UMF 21.) CareOnSite diagnosed Plaintiff with a contusion and abrasion to her left knee, and told Plaintiff to take the rest of her shift off, which she did. (UMF 22.) On January 10, 17, and 24, 2017, Plaintiff returned to CareOnSite for treatment of her injuries, and CareOnSite released Plaintiff to return to work with the following work restrictions: 11 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 no lifting over ten pounds; no stooping, bending, squatting, twisting, climbing, and kneeling; restricted from stairs; limited distance of walking; and sit and stand as needed for comfort. (UMF 23.) Plaintiff admitted that the following work restrictions prevented her from performing some job duties of Coach Operator: no lifting over 10 pounds, no kneeling, and no twisting. (UMF 24.) LBT placed Plaintiff on a leave of absence effective January 10, 2017 as an accommodation of Plaintiff’s condition. (UMF 25.) On January 30, 2017, Plaintiff began a light duty program that LBT offered to individuals who are unable to perform regular job duties due to medical restrictions. (UMF 26.) While on light duty Plaintiff did not perform any productive work for LBT, rather she watched videos, took quizzes, and went on walks. (UMF 27.) On January 31, 2017, CareOnSite changed Plaintiff’s work restrictions to sitting and standing as needed for comfort and no driving for company business. (UMF 28.) On April 5, 2017, Plaintiff treated with her private doctor, Dr. Sam Tabibian. (UMF 29.) Dr. Tabibian issued the following work restrictions: avoid heavy pushing and pulling more than 10 pounds; avoid lifting over 10 pounds; sit and stand as needed to mitigate pain; avoid bending, stopping, and twisting frequently; and no driving more than 60 minutes continuously. (UMF 30.) Plaintiff could not recall any job duties that she could perform as Coach Operator with the medical restrictions Dr. Tabibian issued. (UMF 31.) On approximately April 14, 2017, LBT’s light duty program ended so LBT placed Plaintiff on a leave of absence. (UMF 32)! After her initial appointment with Dr. Tabibian on April 5, 2017, Plaintiff followed up with Dr. Tabibian approximately once per month, and Dr. Tabibian maintained the same work restrictions noted above throughout, except for on April 12, 2018, for approximately one month as detailed below. (UMF 34.) On April 12, 2018, Dr. Tabibian returned Plaintiff back to regular duty without restrictions, although he did not change his diagnosis of Plaintiff. (UMF 35.) Dr. Tabibian ! Parties, by and through counsel, stipulated that all claims in this case relate to Plaintiff's workplace injury on January 9, 2017, and nothing prior to that date. (UMF 33.) 12 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testified that he did not see the rationale behind removing the work restrictions, except perhaps “she felt that she could do regular work at that time.” (UMF 36.) Dr. Tabibian then returned Plaintiff to the same work restrictions as before at her next appointment on May 16, 2018, and continued the same work restrictions for each subsequent appointment approximately once per month until Plaintiff’s appointment on October 22, 2018. (UMF 37.) LBT maintained Plaintiff's leave of absence as an accommodation of Plaintiff’s medical condition. (UMF 38.) Plaintiff testified that she could not perform the job duties of Coach Operator with the restrictions that Dr. Tabibian issued. (UMF 39.) Plaintiff further testified that she is not aware of any job at LBT that she could perform with the work restrictions that Dr. Tabibian issued. (UMF 40.) 1. Dr. Dini, Plaintiff’s Panel Qualified Medical Examiner, Issued Permanent Work Restrictions of No Kneeling or Squatting, and No Lifting, Pushing or Pulling More than 25 Pounds On June 12, 2018, Plaintiff was seen by a Qualified Medical Examiner, Dr. Arash Dini as part of Plaintiff’s pending workers’ compensation claim regarding the January 9, 2017 injury. (UMF 41.) Plaintiff complained of “constant pain in the lower back, with radiating pain to the left hip, associated with tingling in the entire left lower extremity and foot...numbness and tingling of the lower back...intermittent piercing pain predominantly at the posterior aspect of the left knee, with occasional locking and buckling during episodes of pain.” (UMF 42.) Dr. Dini, based on “thorough and thoughtful care for her conditions in accordance with industrial guidelines,” found that Plaintiff’s injuries had reached maximum medical improvement and deemed Plaintiff permanent and stationary. (UMF 43.) Dr. Dini issued permanent work restrictions of “no kneeling or squatting, and no lifting, pushing or pulling over 25 pounds.” (UMF 44.) 2. LBT’s September 12, 2018 Meeting with Plaintiff On August 29, 2018, LBT sent Plaintiff a letter requesting her attendance at an interactive process meeting on September 10, 2018. (UMF 45.) On September 12, 2018, Plaintiff attended an interactive process meeting with Jacqueline Gomez (“Gomez”), Human Resources Manager, Teresa Anderson (“Anderson”), Human 13 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Resources Assistant and Casey Altman (“Altman”), Risk Management Representative. (UMF 46.) During the meeting, either Ms. Gomez, Ms. Altman, or Ms. Anderson informed Plaintiff that she could not perform the duties of Coach Operator with the permanent work restrictions. (UMF 47.) Plaintiff disagreed because she believed she should not have work restrictions. (UMF 48.) Plaintiff further informed Ms. Gomez, Ms. Altman, and Ms. Anderson that she disagreed with the permanent work restrictions that Dr. Dini issued. (UMF 49.) Ms. Gomez reviewed LBT’s open and available positions to see if Plaintiff had any interest, but Plaintiff did not qualify for them. (UMF 50.) After the interactive process meeting with Plaintiff, LBT extended Plaintiff’s leave as an accommodation and to provide Plaintiff with the opportunity to challenge Dr. Dini’s permanent work restrictions in her pending workers’ compensation case. (UMF 51.) 3. Plaintiff’s Permanent Work Restrictions Issued by Dr. Tabibian On October 22, 2018, Plaintiff sought treatment with Dr. Tabibian, and he issued a Work Status letter which stated: “The QME has provided work restrictions including no kneeling, squatting and no lifting or pushing or pulling over 25 pounds.” (UMF 52.) Dr. Tabibian opined, “Although [Plaintiff] would be able to drive the bus at this time she may have difficulty with assisting disabled passengers and performing other activities requiring heavy lifting greater than 45-50 pounds.” (UMF 53.) LBT continued Plaintiff’s leave of absence because Dr. Dini’s permanent work restrictions had not been removed. (UMF 54.) On January 17, 2019, Plaintiff again sought treatment with Dr. Tabibian, who provided Plaintiff a Work Status letter which stated, “Patient can return back to regular duties without restrictions on a trial basis.” (UMF 55.). Plaintiff spoke with Ms. Altman regarding Dr. Tabibian’s medical report releasing Plaintiff to work on a trial basis without restrictions. (UMF 56.) Ms. Altman informed Plaintiff that Dr. Dini’s medical restrictions still applied. (UMF 57.) Dr. Tabibian subsequently issued a Complex Comprehensive Medical-Legal Evaluation and Permanent and Stationary Report dated January 19, 2019 (“Permanent and Stationary Report”). (UMF 58.) In the Permanent and Stationary Report, Dr. Tabibian determined that 14 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff was permanent and stationary and reached maximum medical improvement. (UMF 59.) He disagreed with Dr. Dini and found that Plaintiff was actually at a greater percentage of disability than Dr. Dini found: “based on the patient’s ongoing residual complaints involving the left knee and low back, and my examination findings on this date, my assessment of the patient’s disability is greater than that reflective by Dr. Dini’s assessment.” (UMF 60.) Dr. Tabibian’s Permanent and Stationary Report confirmed the QME restrictions: With regard to work restrictions, I agree with Dr. Arash Dini (qualified medical examiner) that the patient is precluded from activities requiring lifting, pushing, or pulling over 25 pounds and no kneeling and squatting. Although the patient is able to drive a bus but she would have difficulty with assisting disabled passengers and performing other activities requiring heavy lifting greater than 45-50 pounds. (UMF 61.) Dr. Tabibian testified that the work restrictions were issued to prophylactically prevent additional injury and if Plaintiff tried to do any more than what the restrictions limited, then she would suffer pain. (UMF 62.) When questioned why he would issue the Permanent and Stationary Report and a contradicting Work Status letter, Dr. Tabibian explained: [Flor the purposes of the permanent and stationary report, it’s a much more in- depth report. So we spend time looking at prior restrictions, what has worked, what has not worked, and what sort of restrictions make sense to be permanent...so at times we don’t have those work restrictions ready...to hand to the patient, because we need to spend a little bit more time making research on the chart and seeing what the QME provided and what makes sense. (UMF 63.) Plaintiff has not gone back to Dr. Tabibian to have him reevaluate the permanent work restrictions that he issued. (UMF 64.) Further, Plaintiff resolved her workers’ compensation claim regarding the injuries she sustained on January 9, 2017. (UMF 65.) Plaintiff was represented by counsel during the entirety of the workers’ compensation case. (UMF 66.) Plaintiff believes her attorney tried to challenge Dr. Dini’s permanent work restrictions, but could not recall what her attorney did to do so. (UMF 67.) At the time Plaintiff resolved her workers’ compensation case, Dr. Dini’s permanent work restrictions had not been removed. (UMF 68.) Plaintiff testified that she resolved the claim with Dr. Dini’s permanent work restrictions in place 13 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because “My attorney told me to, that was the right thing to do.” (UMF 69.) Notwithstanding two medical professionals issuing the same permanent work restrictions, Plaintiff believes LBT should return Plaintiff to work because Plaintiff believes she is better and Plaintiff knows she can work. (UMF 70.) III. LEGAL STANDARDS FOR MOTION FOR SUMMARY JUDGMENT, OR SUMMARY ADJUDICATION OF ISSUES A trial court must grant summary judgment if all the papers and affidavits submitted, together with “all inferences reasonably deducible from the evidence” and not contradicted by other inferences or evidence, show that “there is no triable issue as to any material facts and that the moving party is entitled to a judgment as a matter of law.” (Code of Civ. Proc. § 437¢c(c).) In opposing this Motion, Plaintiff must produce admissible evidence raising a triable issue of fact. (Lyons v. Security Pacific Nat’l Bank (1995) 40 Cal.App.4th 1001, 1006.) Claims and theories not supported by admissible evidence do not raise a triable issue. (Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 211 (disapproved on other grounds in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238).) Evidence that gives rise to no more than mere speculation is insufficient to establish a triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) This need for substantial responsive evidence is especially true in employment cases where A plaintiff’s “suspicions of improper motives... based primarily on conjecture and speculation” are not sufficient to raise a triable issue of fact to withstand summary judgment. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.) As it pertains to claims of discrimination and the like, a triable issue of material fact can be found “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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) IV. LEGAL ARGUMENT A. LBT is Entitled to Summary Adjudication of Plaintiff’s First Cause of Action for Disability Discrimination In her first cause of action, Plaintiff alleges that she was discriminated against on the basis 16 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of her disability. Under a disparate treatment theory, discrimination occurs when the employer treats some people less favorably than others because of their membership in a protected group. (Frank v. County of Los Angeles (2007) 149 Cal. App.4th 805, 822.) Although rarely encountered, disparate treatment may be proved by direct evidence of the decision-maker’s discriminatory intent: “Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.” (Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221.) In this action, Plaintiff does not present or allege in her Complaint any direct evidence supporting a disparate treatment theory.” (Request for Judicial Notice, Exhibit “1,” Plaintiff’s Complaint.) To the contrary, Plaintiff’s disability discrimination claim is entirely based on her claim that LBT should have returned Plaintiff to work based on Dr. Tabibian’s medical note dated January 17, 2019 releasing Plaintiff to work on a trial basis. (Request for Judicial Notice, Exhibit “1,” Plaintiff’s Complaint.) In the absence of such direct evidence or any allegations of their existence, Plaintiff must resort to the use of indirect evidence in support of her claim. Where Plaintiff has no direct evidence of LBT’s alleged discriminatory motive, she must proceed on an indirect evidence theory. Under an indirect evidence theory, discrimination claims are analyzed before trial under the McDonnell Douglas burden-shifting framework: 1) establish a prima facie case, 2) articulate a legitimate non-discriminatory reason, and 3) establish the articulated reason is a pretext for discrimination. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th at 354.) Plaintiff has the ultimate burden of proving that the “true” reason for the alleged adverse actions was intentional discrimination. (Guz, supra, 24 Cal.4th at p. 356.) To establish a prima facie case of disability discrimination, Plaintiff must demonstrate that she (1) suffered from a disability, or was regarded as such, (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was * The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be denied on issues not raised by the pleadings. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal. App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73 - “the pleadings determine the scope of relevant issues on a summary judgment motion.”) 17 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 FA X: (5 62 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 subjected to an adverse employment action because of the disability. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.) As discussed below, Plaintiff cannot establish a prima facie case of disability discrimination because she cannot demonstrate that she could perform the Coach Operator position with or without reasonable accommodation due to Plaintiff's permanent work restrictions. 1. Plaintiff Cannot Establish that She Could Perform the Essential Duties of the Coach Operator Position Under the FEHA, a plaintiff must demonstrate that he or she was qualified for the position sought or held in the sense that he or she is able to perform the essential duties of the position with or without reasonable accommodation in order to assert a claim of disability discrimination. (Green v. State of California (2007) 42 Cal. App.4th 254, 265.) A qualified individual under the protections of FEHA discrimination is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation. (Id. at p. 262.) In Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 378-379, Nealy, a Solid Waste Equipment Operator for the City of Santa Monica, suffered a knee injury on the job which restricted his ability to kneel, bend, stoop, squat and lift heavy objects. The Court of Appeal affirmed summary judgment in the City’s favor finding that FEHA permitted the City to discharge Nealy because he was unable to perform the essential functions of his job with or without reasonable accommodation. The Court rejected Nealy’s arguments that the City should have restructured his position so that he did not need to perform heavy lifting or kneeling. The Court found that the FEHA does not obligate employers to accommodate employees by excusing them from the performance of essential functions. (Id. at 375; Furtado v. State Personnel Board (2013) 212 Cal. App.4th 729, 744 [waiving an essential requirement would mean that the plaintiff “would not have to demonstrate that he is a ‘qualified individual’” under FEHA]; Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 970 [“FEHA did not obligate defendant to accommodate plaintiff by excusing him from the performance of essential functions’].) It is undisputed that two separate medical providers, Dr. Dini and Dr. Tabibian, both issued 18 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permanent work restrictions to Plaintiff consisting of the following: no lifting, pushing, or pulling over 25 pounds and no kneeling or squatting. It is undisputed that the Coach Operator position requires occasional kneeling and squatting ranging from 31 minutes to 2.5 hours per shift. Plaintiff testified that kneeling is required to perform the pre-trip inspection. (UMF 13.) Plaintiff also testified that kneeling and squatting is required for strapping or tying down wheelchairs to secure the wheelchair passengers on the bus. (UMF 13.) It is also undisputed that Coach Operators may be required to pull and push for wheelchair assists, wherein the pushing may involve the combined weight of an individual and chair up to 600 pounds. It is also undisputed that Coach Operators may be required to lift between 25 to 50 pounds for wheelchair ramps. Since physical demands of performing pre-trip inspections involve kneeling, Plaintiff’s permanent work restrictions preclude her from performing the functions. Similarly, since the physical demands of assisting passengers in wheelchairs involve kneeling and squatting, and may require pushing, pulling or lifting over 25 pounds, Plaintiff's permanent work restrictions preclude her from performing these functions. As set forth below, the duties associated with the pre-trip inspection and assisting passengers in wheelchairs are essential functions of the Coach Operator position. a. Undisputed Evidence Shows That Pre-Trip Inspections and Wheelchair Assists Are Essential Functions of the Coach Operator Position The FEHA defines “essential functions” as “the fundamental job duties of the employment position the individual with a disability holds.” (Gov. Code § 12926(f).) A job function may be considered essential for several reasons, including, but not limited to: (A) The function may be essential because the reason the position exists is to perform that function. (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. (C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function. (Gov. Code § 12926(f)(1).) Evidence of whether a particular function is essential includes, but is not limited to: the 19 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employer’s judgment as to which functions are essential; written job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; and the consequences of not requiring the incumbent to perform the function. (Gov. Code § 12926.) Here, LBT’s Essential Functions Job Analysis provides that the purpose of the Coach Operator position is to operate a transit motor coach resulting in safe, courteous, reliable and efficient public transportation to members of the public. In order for a Coach Operator to drive the motor coach, the Coach Operator must conduct a pre-trip inspection to identify any safety issues or concerns. Each Coach Operator must perform his or her own pre-trip inspection before driving the bus. This is mandated by law. (See 49 CFR § 396.13.) In addition to being required by law, pre-trip inspections are essential to the safe operations of the motor coaches and the failure to conduct the pre-trip inspection can have grave consequences if safety issues which could have been detected during a pre-trip inspection, arise during transit. As such, the failure to conduct the pre-trip inspection has significant consequences, including creating dangers to the Coach Operator, passengers and members of the public; disrupting the production, schedule, or routine of LBT’s service; and customer dissatisfaction and complaints when buses are delayed, all of which would fundamentally alter LBT’s operations of how buses are rolled out for service every day. (UMF 71.) Similarly, LBT deems assisting passengers in wheelchairs by securing the wheelchair on the bus, to ensure the passenger’s wheelchair does not move while the bus is in transit, as an essential function. LBT also deems assisting passengers in wheelchairs so that they can board the bus and use public transportation, as an essential function. While driving, only one Coach Operator is present and available to assist wheelchair passengers, align wheelchairs, and restrain wheelchairs on the bus for transit. As such, when a Coach Operator is driving the bus on a fixed route and comes to a bus stop wherein a passenger in a wheelchair or other mobility device wants to board the bus for public transport, the Coach Operator must be prepared to assist that passenger, so that the passenger has equal access to public transportation. (UMF 72.) This requires the Coach Operator to kneel and squat to secure the wheelchair or mobility device, and push or pull the 20 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wheelchair to assist the passenger on and off the bus. If the Coach Operator is unable to assist a disabled passenger, this would result in significant safety issues in that an unsecured wheelchair on a moving bus creates safety issues for the passenger in the wheelchair and other patrons on the bus. Additionally, if the Coach Operator is unable to assist a passenger in a wheelchair, this would result in denial of access to public transportation for a disabled passenger. This results in a delay of service to disabled passengers, creates legal liability for failing to provide equal access to public transportation, customer dissatisfaction and complaints, and LBT would have to fundamentally alter how it services disabled passengers. (UMF 73.) Both the pre-trip inspection and assisting passengers in wheelchairs require specialized training, experience or knowledge. (UMF 74.) For example, all Coach Operators must possess a class B driver’s license to operate a coach. Coach Operators also undergo a student trainee period before permanent employment as a Coach Operator with LBT. Training includes classroom and hands on instruction on how to operate and drive a bus, perform per-trip inspections, and properly strap in wheelchairs. (UMF 75.) LBT has deemed the pre-trip inspection and assisting passengers in wheelchairs as essential functions of the Coach Operator position. Plaintiff testified that the pre-trip inspection and assisting passengers in wheelchairs are mandatory parts of the Coach Operator position. (UMF 7, 10.) b. Plaintiff Cannot Establish that a Reasonable Accommodation Existed that Would have Allowed her to Perform Essential Functions Plaintiff has not, and cannot, identify any reasonable accommodation that will allow her to perform the pre-trip inspection duties or duties relating to disabled passengers. Rather, Plaintiff merely disputes the permanent work restrictions and claims she should be allowed to violate the work restrictions. Plaintiff can cite to no legal authority which provides that an employer must disregard permanent work restrictions because the employee disagrees with the restrictions. Plaintiff alleges that LBT should have returned Plaintiff to work after Dr. Tabibian released Plaintiff to return to work on a trial basis in January 2019. However, Plaintiff’s argument 21 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fails to recognize that Dr. Tabibian’s release to return to work did not invalidate Dr. Dini’s permanent work restrictions. Dr. Tabibian recognized that a primary treating physician’s work restrictions has the same weight as a qualified medical evaluator’s opinion. (UMF 76.) And, it is undisputed that Dr. Tabibian subsequently issued the same permanent work restrictions that Dr. Dini previously issued. Finally, Plaintiff testified on February 13, 2020 that she was not aware of any accommodation LBT could have provided to her that would allow an individual with restrictions of no kneeling or squatting to perform the job duties of a Coach Operator. (UMF 77.) Plaintiff further testified that she was not aware of any accommodation that LBT could have provided that would allow an individual with a no lifting, pushing or pulling over 25 pounds restriction to perform the job duties of a Coach Operator. (UMF 78.) Plaintiff further testified that there were no accommodations that she believed should have been provided to her by LBT, other than returning Plaintiff to work in violation of permanent work restrictions. (UMF 79.) Plaintiff testified that she could not do the job duties of a Coach Operator with the lifting and kneeling restriction. (UMF 80.) Additionally, by Plaintiff’s own admission, her injuries affected her job because it required “a lot of sitting and strapping wheelchairs,” which requires bending, kneeling, and twisting. (UMF 81.) In sum, Plaintiff could not perform the essential duties of her position as a Coach Operator with or without a reasonable accommodation. As such, Plaintiff’s cause of action for disability discrimination fails as a matter of law. B. LBT is Entitled to Summary Adjudication of Plaintiff’s Second Cause of Action for Failure to Accommodate To establish her second cause of action for failure to accommodate, Plaintiff must prove: (1) she has a disability under the FEHA, (2) she is qualified to perform the essential functions of the position with or without reasonable accommodation, and (3) LBT failed to reasonably accommodate her disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) As set forth above is Section IV.A.1(a) and (b), Plaintiff cannot establish that she could perform the essential functions of the Coach Operator position with or without reasonable 22 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accommodation; therefore, Plaintiff’s claim for failure to accommodate fails as a matter of law. This claim also fails as a matter of law because Plaintiff cannot demonstrate that LBT failed to reasonably accommodate her disability. Plaintiff testified that she never asked LBT for an accommodation. (UMF 83.) Plaintiff provided in discovery that the only accommodation that she required was a “finite leave of absence.” (UMF 84.) However, Plaintiff testified that she cannot remember any request for leave that she made that LBT denied. (UMF 82.) Further, the undisputed facts demonstrate that LBT provided Plaintiff with a leave of absence, and continues to provide a leave of absence. Again, Plaintiff testified that she is not aware of any accommodation LBT could have provided to her that would allow an individual with restrictions of no kneeling or squatting to perform the job duties of a Coach Operator, nor any accommodation that would permit an individual with restrictions of no lifting, pushing or pulling over 25 pounds to perform the job duties of a Coach Operator. For this reason, Plaintiff’s second cause of action also fails as a matter of law. C. LBT is Entitled to Summary Adjudication of Plaintiff’s Third Cause of Action for Failure to Engage in the Interactive Process In her third cause of action, Plaintiff alleges that LBT failed to engage in the interactive process to find accommodations for her disability. To prevail on this claim, Plaintiff must establish the following essential factual elements: (1) that she had a disability that was known to her employer; (2) that she requested a reasonable accommodation for her disability so that she would be able to perform the essential functions of her job; (3) that she was willing to participate in the interactive process; (4) that her employer failed to participate in the interactive process; and (5) that she was harmed as a result of this failure. (CACI No. 2546; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34, 61-62.) Here, the undisputed facts show that Plaintiff did not request a reasonable accommodation for her disability. Again, Plaintiff testified that she never asked LBT for an accommodation and Plaintiff in written discovery admitted that the only accommodation that she required was a “finite leave of absence.” Indeed, this was the exact accommodation that LBT provided to Plaintiff. 23 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 FA X: (5 62 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, to prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018.) Again, Plaintiff testified that she is not aware of any accommodation LBT could have provided to her that would allow an individual with restrictions of no kneeling or squatting to perform the job duties of a Coach Operator, nor any accommodation that would permit an individual with restrictions of no lifting, pushing or pulling over 25 pounds to perform the job duties of a Coach Operator. Plaintiff further testified that there were no accommodations that she believed should have been provided to her by LBT, other than returning Plaintiff to work in violation of permanent work restrictions. Since Plaintiff cannot identify an accommodation that was available at the time the interactive process occurred, Plaintiff’s claim for failure to engage in the interactive process will fail. Plaintiff admitted during her deposition that LBT met with her to discuss her permanent work restrictions. At the meeting, LBT went through Plaintiff’s restrictions in relation to the job duties of a Coach Operator and presented Plaintiff with a list of vacant positions at LBT, with each of their qualifications. Plaintiff testified that she disagreed with the restrictions and further testified that LBT maintained her leave of absence. LBT did so to allow Plaintiff the opportunity to challenge Dr. Dini’s permanent restrictions that were issued in her pending workers’ compensation case. However, Plaintiff opted to settle her workers’ compensation with knowledge that Dr. Dini’s permanent work restrictions were still in place. Plaintiff further testified that she spoke with Ms. Altman after Dr. Tabibian released Plaintiff to return to work on a trial basis, and Ms. Altman explained to Plaintiff that Dr. Dini’s permanent medical restrictions were still in place. These undisputed facts demonstrate that LBT engaged in the interactive process with Plaintiff. The mere fact that LBT did not return Plaintiff to work in violation of her permanent work restrictions does not support a claim for failure to engage in the interactive process. It is also undisputed that LBT provided Plaintiff with a leave of absence from April 14, 2017 to the present. Prior to Dr. Dini’s issuance of Plaintiff’s permanent work restrictions, 24 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff testified that she was not aware of any job duties that she could perform as a Coach Operator when Dr. Tabibian gave her temporary work restrictions, nor was she aware of any job position at LBT that she could perform the duties of with the temporary work restrictions. As such, Plaintiff has not identified any reasonable accommodation that would have been available at the time the interactive process occurred. Accordingly, Plaintiff’s claim for failure to engage in the interactive process fails as a matter of law. D. LBT is Entitled to Summary Adjudication of Plaintiff’s Fourth Cause of Action for Failure to Prevent Discrimination and Retaliation Plaintiff must first prove discrimination or retaliation to prevail on her fourth cause of action for failure to prevent. (Trujillo v. North Co. Transit Dist. (1998) 63 Cal. App.4th 280, 289.) Because Plaintiff is unable to establish a claim for discrimination or retaliation for the reasons stated herein, summary adjudication must be granted as her fourth cause of action for failure to prevent discrimination and retaliation in violation of the FEHA. E. LBT is Entitled to Summary Adjudication of Plaintiff’s Fifth Cause of Action for Retaliation To state a cause of action for retaliation under the FEHA, Plaintiff must establish that: (1) she engaged in a protected activity; (2) LBT subjected her to an adverse employment action; and (3) there is a causal link between the protected activity and the adverse employment action. (Morgan v. Regents of the Univ. of Cal. (2000) 88 Cal.App.4th 52, 69; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028; Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1533.) Plaintiff’s claim is unsupported by any evidence that she either engaged in protective activity or that any action LBT took would not have been taken but for Plaintiff’s protected activity. In support of this claim, Plaintiff broadly alleges two protected activities as the basis for her retaliation claim. Plaintiff alleges that 1) she requested an accommodation, and 2) requested protected leave, and in retaliation for these actions LBT, in retaliation, did not allow her to return to work. (Request for Judicial Notice, Exhibit “1,” Plaintiff’s Complaint { 46.) The undisputed evidence directly refutes both of these claims. 1. Plaintiff Never Requested an Accommodation From LBT 23 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As discussed above, Plaintiff never requested an accommodation from LBT. Rather, Plaintiff merely advised LBT of her work restrictions. Simply advising an employer of medical status is not a protected activity on which retaliation may be based, even if the medical status constitutes a disability under FEHA. (Moore v. Regents of Univ. of Calif. (2016) 248 Cal.App.4th 216, 247-248.) 2. LBT Had Legitimate Business Reasons for Failing to Return Plaintiff to Work and Plaintiff Cannot Prove Pretext The only adverse employment action Plaintiff has identified is that LBT should have returned Plaintiff to work based on Dr. Tabibian’s medical note dated January 17, 2019 releasing Plaintiff to work on a trial basis. (Request for Judicial Notice, Exhibit “1,” Plaintiff’s Complaint) LBT had legitimate, non-retaliatory reasons for not returning Plaintiff to work based on Dr. Dini’s permanent work restrictions. Again, Dr. Tabibian’s release to return to work did not invalidate Dr. Dini’s permanent work restrictions. LBT provided Plaintiff with the opportunity to challenge Dr. Dini’s work or otherwise get them removed. Ultimately, Dr. Tabibian issued the same work restrictions. Once an employer satisfies its initial burden of proving the legitimacy of its reason for its actions, the employee seeking to avert summary judgment must present specific and substantial responsive evidence that the employer’s evidence was in fact insufficient or that there is a triable issue of fact material as to the employer’s motive. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433) 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 . . . 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 fact finder could rationally find them ‘unworthy of credence,” ... and hence infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.” (Arteaga v. Brink's, Inc., (2008) 163 Cal. App.4th at 343, quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) 26 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 F A X : ( 5 6 2 ) 6 5 3 - 3 3 3 3 008878.00070 27175262.1 ~N O N n e A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the face of this heavy burden, Plaintiff’s evidence is woefully inadequate. Plaintiff has no evidence which establishes that LBT’s decision not to return Plaintiff to work had any connection with purported protected activity. Accordingly, summary judgment must be granted in LBT’s favor on Plaintiff’s fifth cause of action. V. CONCLUSION Based on the foregoing and the supporting papers, LBT respectfully requests that the Court grant its summary judgment in its entirety, or, in the alternative, summary adjudication of Issues. Dated: April 10, 2020 ATKINSON, ANDELS YA, RUUD & ROMO By: Amber M. Sqlano Michele L. Collender Attorneys for Defendant LONG BEACH PUBLIC TRANSPORTATION COMPANY Irma Ss Moisa - 27 DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o 1 PROOF OF SERVICE (CODE CIV. PROC. § 1013A(3)) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 12800 Center Court Drive South, Suite 300,Cerritos, California 90703-9364. On April 10, 2020, I served the following document(s) described as NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action as follows: ~N O N n e A W N Joseph M. Lovretovich Attorneys for Plaintiff JANET RODRIGUEZ 9 Cathryn G. Fund Eden Kalderon Tel.: (818) 610-8800 10} JML Law Fax: (818) 610-3030 5855 Topanga Canyon Blvd., Suite 300 Email: jml@jmllaw.com 11 | Woodland Hills, CA 91367 cathryn@jmllaw.com 19 Eden@jmllaw.com 13 BY PERSONAL SERVICE: I caused to have delivered such document(s) by hand to the office of the addressee(s) noted. 14 15 16 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T DR IV E S O U T H , SU IT E 30 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 T E L E P H O N E : (5 62 ) 6 5 3 - 3 2 0 0 FA X: (5 62 ) 6 5 3 - 3 3 3 3 17 Executed on April 10, 2020, at Cerritos, California. 20 21 22 23 24 25 26 27 28 008878.00070 27175262.1 PROOF OF SERVICE Court Reservation Receipt | Journal Technologies Court Portal Page 1 of 2 Journal Technologies Court Portal Court Reservation Receipt Reservation Reservation ID: 260528191672 Reservation Type: Motion for Summary Judgment Case Number: 19STCV23340 Filing Party: Long Beach Public Transportation Company, California corporation (Defendant) Date/Time: June 24th 2020, 8:30AM Fees Description Motion for Summary Judgment Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $513.75 Account Number: XXXX3276 < Back to Main I= Print Page Status: RESERVED Number of Motions: 1 Case Title: JANET RODRIGUEZ vs LONG BEACH PUBLIC TRANSPORTATION COMPANY, CALIFORNIA CORPORATION Location: Stanley Mosk Courthouse - Department 53 Confirmation Code: CR-H6JEBSYAZ2JWIDP7A Copyright © Journal Technologies, USA. All rights reserved. https://portal-lasc.journaltech.com/public-portal/?q=calendar/receipt/260528191672/225887 Fee Qty Amount 500.00 1 500.00 13.75 1 13.75 $513.75 Type: Visa Authorization: 041764 3/3/2020
