Kimberly Cerda vs. City of Santa Ana

Opposition

Cal. Super. - 4th Dist.August 11, 2015

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kevin Mahoney (SBN: 235367) kmahoney @mahoney-law.net Treana LL. Allen (SBN: 302922) tallen @mahoney-law.net ELECTRONICALLY FILED Superior Court of California, MAHONEY LAW GROUP, APC County of Orange 249 E. Ocean Blvd., Suite 814 07/28/2016 at 03:53:00 PI Long Beach, CA 90802 Clerk of the Superior Court Telephone: (562) 590-5550 By Maria Gina Barr, Deputy Clerk Facsimile: (562) 590-8400 Attorneys for Plaintiff Kimberly Cerda SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE KIMBERLY CERDA, an individual, Case No.: 30-2015-00803814-CU-WT-CJC Plaintiff, [Assigned for All Purposes to the Honorable James Crandall; Dept. C33] V. PLAINTIFF KIMBERLY CERDA’S OPPOSITION TO DEFENDANT CITY OF SANTA ANA’S MOTION FOR CITY OF SANTA ANA, and DOES 1 SUMMARY JUDGMENT OR IN THE through 50, inclusive, ALTERNATIVE SUMMARY ADJUDICATION Defendant. [Filed concurrently with Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Facts; Plaintiff’s Separate Statement of Additional Disputed Facts; Evidentiary Objections; Declaration of Treana L. Allen; Declaration of Plaintiff Kimberly Cerda; and Compendium of Evidence] Hearing Date: August 11, 2016 Hearing Time: ~~ 1:30 p.m. Department: C33 Complaint Filed: August 11, 2015 Trial Date: September 12, 2016 -- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IL. III. IV. TABLE OF CONTENTS INTRODUCTION i505 sms anssnn asso sesso sm. 505556 £5555 50-55 0655558 4575557085 650550535 50555355 56535858 5055.50.85 G45 5559.2 1 STATEMENT OF FACTS yess cusssssansnsnsnssossnssusssssos omens 555505 585ns ss massa ome: 2 A. Plaintiff's Employment with the City of Santa Ana .........cccccooeniinniinciiinieniene. 2 B. Discrimination Immediately After Plaintiff’s Injury ........cccccooeviininiiniciicnicniene. 2 C. Defendant’s Retaliation ...........c..oceeoiiiiiiiiniiiiiiniicieciesee cece sees 3 D. Plaintiff’s Termination .........cceueeieririiereiiieeie tt r cree etter eee sees nes 4 LEGAL ARGUMENT ......ootiitiiitiitiitiit cece este saan sneer enn 5 A. Sunmiary JUSTE STANIAT «uss suns sxssssnossssnss sasns sms s5ssss 555555555 5555555 5555550 68 5555553 5 B. McDonnell Douglas Burden Shifting on Summary Judgment ...........ccocceevieenenee. 6 MATERIAL ISSUES OF FACT EXIST AS TO ALL CAUSES OF ACTION cei eeeeeeeeeeteesaeeabe eee e tee she sabe eee snes saee sabe eaeenneens 8 A. Disability DiSCIIMINAION........ooutiitiriieniie niece eec s e seers s es 8 I. CAUSALION.....ceeieiie cetera saben eee snee sere eens 9 2. Perceived DISADIITTY ««x: seuss sn scunss swum ss ansusn ssmasss so sumasss swsisas ss swiss seuss ss sansasins 9 3- Purported Termination Rational is Pretextual..........cccccoceeviiinieniciniennnenne 10 B. Defendants Failed to Prevent Discrimination and Harassment .........c.c.ccoceeeueneee. 10 C. Failure to Make Reasonable Accommodations .............cceevveerrieennieennieennieennnnenn 11 D. REEAITATION eit seers sate sees sane ees 12 E. Wrongful Termination in Violation of Public Policy ......c.ccccooeeieiiiinniiniiceen. 12 CONCLUSION... cece steers eects sete sees e esses sete sees nessa ee sabe eae enn ee sane sane 13 ii- TABLE OF CONTENTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. APP: J TOG suis mmsnss msn summons cusses sss se 0555 56555555 55555555 5555550 5455555.58 505575 6 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 8260 ieee sate sree eae sree sees en 3 American National Insurance Co. v. FEHA (1982) 32 Cal. 3A 603... cetera sree eee eee sate seen 8 Bagatti v. Department of Rehabilitation (2002) 97 Cal. APP. 4th 344 o.oo eee eee sae sees 8 Cassista v. Community Foods (1993) 5 Cal. Ath 1050 wc amsesscumssencumvunnen mms svc mmmmn sas vans noms oe oss en 25mm oss ass 8 D'Amico v. Board of Medical Examiners (1974) 11 Cal BA 1 eee eet ete sb beset e esa ee sbaesebe anaes naeas 5 Eriksson v. Nunnink (2011) 191 Cal. APP. 4th 826 eevee eee sree seers 5 Fisher v. San Pedro Peninsula Hospital (1989) 214 Call. ADP: J, STO consn.s mmmsms. vn snsmmnse coms so msn 555555.58 50505555 £55555. 18 5555558 SAVRR5.5035555 12 Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. APP. Ath 34 o.oo eee estes ebeeeeeeee sae sabe e eases 9 Guz v. Bechtel National, Inc. (2000) 24 Cal. Ath 317 covets sae sree 6,7, 10 King v. United Parcel Service, Inc. (2007) 152 Call. AD: DN AE sxn.0 mmm. cosn osmmense coms 5505550 555555.58 5505555 E5555 5518 5555558 SAR035.503555 11 Mann v. Cracchiolo (1985) 38 Cal. 3d 18... eects eee sate sree estes shee sees 6 McCoy v. Pacific Maritime Assn. (2013) 216 Cal. APP. 4th 283... eects see 12 -iii- TABLE OF AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McDonnell Douglas Corp. v. Green (1973) 411 US. TOZ cee eet sees eee este saae sae eenaeen 6 Mixon v. Fair Employment & Housing Com. (1987) 192 Cal. APP: JL 106: ss0.5 mmsmss msn summons cuss 555m 050555 565555555 S55555555 5555550 S455555.58 B55 6 Morgan v. Regents of University of Cal. (2000) 88 Cal. APP. 4th 52 cee 9 Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal. APP. Ath 952 eee seers eevee esas 7 Nazir v. United Airlines (2009) 178 Cal. APP. 4th 243 o.oo eee eee sate seers sees 5,6 Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal, App. Ath 102] .conmmmmvensimmsusummsnemnsssmss isms 6ss smims6ms mam ass sas 13 Phillips v. St. Mary Regional Medical Center (2002) 96 Cal. APP. 4th 218 cence eects ees eaters sbeebs 12 Prilliman v. United Air Lines, Inc. (1997) 53 Cal. APP.4th O35 eee sete sees 11 Quinn v. City of Los Angeles (2000) BA Cal. APD. DUH AT 2 siss0.is swmsnss msn onmmsnsn oas5e.55 550555555050555% 56 555555 S555555-59 T5555 SH55555.58 S555 8 Reeves v. Sanderson Plumbing (2000) 503 US 133. sate sees este eit sb ae sbeebs ieee eae ebae sees 10 Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. APP. 4th 297 cei 6,7, 10 Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Call. ADP: DIN DBO sxn.0 mmm. sn snsumnse coms se mse. 555555.56 5505555 E5555 5048 5555558 85 10, 11, 13 Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal. App. 4th 1133 oceans ese 7 Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal. App. 4th 246 ...cooiiiiiiiiiiicc cee 6 -iv- TABLE OF AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Zavala v. Arce (1997) 58 Cal. App. 4th O15 o.oo 5 STATUTES Code Of CiVII PrOCEAUIE § 437 ...coooeeeieiiieeeeeeeeeeeeeeeeeeeeeeeeee e e e e 5 Government Code § 129260... an 8 GoVernMENt COE § 12026.1 «covert eee eee esas este tear ee sees sete ates sess sessssaansssesseesens 8 Government Code § 12940 .......ooo oii 10, 11, 13 v- TABLE OF AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff, KIMBERLY CERDA (hereinafter “Cerda” or “Plaintift”), hereby respectfully submits his Memorandum of Points and Authorities in Opposition to Defendant CITY OF SANTA ANA’S Motion for Summary Judgment, or in the Alternative, for Summary Adjudication. I. INTRODUCTION Plaintiff Kimberly Cerda (“Plaintiff” or “Cerda”) was a full-time Police Recruit employed by the City of Santa Ana (hereinafter “CITY”). Plaintiff was discriminated and retaliated against because of an injury she obtained at the Orange County Sheriff’s Academy, which caused a temporary disability. Less than two (2) weeks after Plaintiff suffered her injury, she was told to resign, or she would be terminated. Prior to Plaintiff’s injury the City had never considered terminating her. Contrary to Defendants’ assertions in their Motion for Summary Judgment, Defendants’ reprehensible conduct was not because Plaintiff “performed poorly in all categories of Academy life.” At the time of Plaintiff’s injury at the Academy she was on par with the rest of the recruits, she had passed twenty-seven (27) physical training activities and needed only three (3) more to graduate. However, the CITY determined it was cheaper to get rid of Plaintiff as an employee than allow her time to heal, and give her the opportunity to attend a later academy. The evidence shows that Plaintiff suffered immediate termination after her injury, and that the motive for such action was clearly discriminatory. Despite having in place a “Recycling Program,” which allows police recruits such as Plaintiff an opportunity to stay with the City and attend a later Academy. The City did not even consider including Plaintiff in its Recycling Program, even though several of Plaintiff’s training officers informed the CITY that she would be successful if given the opportunity. As set forth herein, Plaintiff has presented significant evidence showing that the wrongful termination taken against Plaintiff was due to her disability, which clearly constitutes an adverse employment action under California law. Further, Plaintiff demonstrates that a reasonable fact finder could certainly find that Defendants’ pretextual reasons for its termination of Plaintiff are -1- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unworthy of credence. Therefore, summary judgment must be denied. II. STATEMENT OF FACTS A. Plaintiff’s Employment with the City of Santa Ana On December 10, 2013, Plaintiff was given a conditional offer of employment with the CITY. (Plaintiff’s Additional Disputed Facts, (“ADF”) #6) Employment was conditioned upon successful completion of the polygraph examination, psychological examination and medical examination. (ADF #6) Upon successful completion of those examinations Plaintiff's name was added to a list of candidates eligible for full time employment. (ADF #6) On or about January 1, 2014 Plaintiff was selected and hired as a full time employee by the CITY for the position of Police Recruit (“Recruit”). (ADF) #7). Cerda was not a temporary or conditional employee, but a full-time employee, who was receiving CALPERS benefits, at the time of her unlawful termination. (ADF #8). B. Discrimination Immediately After Plaintiff’s Injury On May 19, 2014 Cerda suffered an ankle injury after jumping over a wall at the academy. (ADF #9) Cerda immediately reported her injury to the fitness instructor on site that was supervising all physical training (“PT”) activities. (ADF #10) On May 20, 2014, after being evaluated by a doctor, Cerda was placed on modified duty, which restricted her to sit-down (desk duty) work only, and required her to wear a walking boot. (ADF #11) Plaintiff submitted her work status report that same day which notified the City of Plaintiff's work restrictions. (ADF #12) Plaintiff’s temporary injury and work restrictions only impeded Plaintiff’s ability to participate in the Physical Training (“PT”) activities at the Academy. (ADF #14) Plaintiff was able to continue to participate in the Police Officer Standards Training (“POST”) other assignments and evaluations, which is evident by her May 27, 2016 passing of an Academy test after her injury. (ADF # 36) After Plaintiff’s injury the Academy excused Plaintiff from participating in the PT activities, yet the City still gave Plaintiff zeros (0) for every PT she did not participate in. (ADF #16). Excusing Plaintiff from participation in PT activities but still giving her a zero for each PT missed, effectuated a drop in her grades and overall ranking in the Academy. (ADF #17) Prior to 2- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 receiving zeros, due to her injury, Plaintiffs scores were on par with all other recruits. (ADF #23 & 24) Shortly after Plaintiff’s injury, on May 28, 2014, despite successfully completing another POST exam, Plaintiff was dropped from the academy, due to her injury. (ADF #36 & 37) Prior to Plaintiff’s injury, the City had never contemplated terminating Plaintiff’s employment. (ADF #21) According to the City’s own human resource manager, Anita Queen, as an injured Recruit and full time employee, the City had a duty to accommodate Plaintiff’s work restrictions and place her on modified duties. (ADF # 15) C. Defendant’s Retaliation Although a recruit may not transition to the position of a sworn police officer until the recruit completes the Academy, at the time of Plaintiff’s termination, the CITY had a Recycling Program in place for recruits who were unable to complete the Academy. (ADF #48) The City’s recycling program was put in place to allow recruits that were unsuccessful in their initial attempt to complete the Academy to attend a later Academy. (ADF #49) However, Plaintiff was never afforded this opportunity, due to her perceived disability. (ADF #44 & 51) On May 30, 2014, Plaintiff had a meeting with Anita Queen, Senior Personnel Analyst/Human Resources Supervisor. In that meeting Plaintiff was given two options: (1) resign and accept a part-time position as a correctional officer; or (2) be terminated. (ADF #39) No other options were presented to Plaintiff, including, taking to time heal. (ADF #43; Attached as Exhibit “N” to the Compendium of Exhibits is an email sent by Ms. Queen where she states, “unfortunately that was not one of the options”) At the meeting Plaintiff informed Ms. Queen that she was not resigning, and further expressed that if it weren’t for her injury she could complete the academy. (ADF #44) In addition, on May 30, 2014, when Plaintiff met with Ms. Queen, Plaintiff was confined to a walking boot, and had limited mobility. (ADF #42) Therefore, Plaintiff could not have done the job functions required of a correctional officer. (ADF #43 & 46) A correctional officer is required to, but limited to escort inmates, prepare and serve meals, and have skill in exercising safe and effective physical restraint tactics. (Attached as Exhibit “BB” to the Compendium of Be PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibits) All of these functions would be impossible for Plaintiff to do considering her work restrictions. Furthermore, Plaintiff had a follow-up visit with her physician on May 31, 2014. (Attached as Exhibit “F” to the Compendium of Exhibits) At this appointment Plaintiff’s doctor took her off work from May 31, 2014 through July 30, 2014, to allow Plaintiff's injury some time to heal. (ADF #46) Contrary to Defendant’s allegations, Plaintiff was required to resign and start the correctional officer position right away (ADF #43). Plaintiff was not given any time to heal and was required to make a decision that day. (ADF #43) Ms. Queen, without even knowing the extent of Plaintiff’s injury, and being fully aware that the City was required to provide reasonable accommodations to Plaintiff, only offered Plaintiff one part-time position that did not accommodate Plaintiff’s disability. (ADF #15) Moreover, the Correctional Officer position offered to Cerda was a 20-hour-per-week part-time position which paid $20.01-$24.32 per hour. (ADF #45) Resigning and taking the position as a corrections officer would have meant Plaintiff would receive a significant reduction in pay as compared to the $5,488 salary she was receiving as a Police Recruit. (ADF #45) D. Plaintiff’s Termination Despite the City’s knowledge of Plaintiff’s injury and with full knowledge that she was currently off work on temporary and total disability, by June 4, 2014 the CITY had already decided to terminate Plaintiff. (ADF #53) Plaintiff’s termination process with the City only started after her injury. (ADF #55) On or about July 15, 2014, Plaintiff’s employment with the City was terminated because of her injury. (ADF #54) Plaintiff’s alleged poor performance in the Academy was pretextual, since prior to her injury the City had never contemplated terminating Plaintiff. (ADF #56 & 21) In a meeting between Plaintiff, Chief Gominsky and Cpl. Steve Ahearn, Plaintiff was handed a “Performance Evaluation” of her time in the Academy (ADF #28-34). In pure retaliatory and intentional fashion Plaintiff’s alleged performance evaluation omitted any mention of Plaintiff’s injury. (ADF #28 & #33) When Plaintiff asked as to why the Performance Evaluation did not have any mention of her injury, she was ignored and told to sign the Performance Evaluation. 4- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (ADF #33) Plaintiff refused to sign, as the Performance Evaluation was an inaccurate description of her time at the Orange County Sheriff’s Academy. (ADF #33 & 34) Upon termination Plaintiff was not able to re-apply and return to her position as a Police Recruit for the City (ADF #57 & 60) The City was unwilling and did not take any steps to enable Plaintiff an opportunity through the Recycling Program to be hired as a sworn police officer. (ADF #62) III. LEGAL ARGUMENT A. Summary Judgment Standard Summary judgment is a “drastic remedy.” Eriksson v. Nunnink (2011) 191 Cal. App. 4th 826, 849. Employment cases are rarely appropriate for disposition on summary judgment. Nazir v. United Airlines (2009) 178 Cal. App. 4" 243, 286. The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law and bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. This means that the defendant must show that the evidence is incapable of supporting a judgment for the non-moving party. “[I]f a defendant moves for summary judgment against such a plaintiff, he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not - otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” Aguilar, 25 Cal.4th at 851. The Court's sole function on a motion for summary judgment is issue finding, not issue determination. The Court must simply determine from the evidence submitted whether a “triable issue as to any material fact” exists. (Code Civ. Proc. § 437(c); Zavala v. Arce (1997) 58 Cal. App. 4th 915, 926.) California law is clear - if even a single triable issue of material fact exists, the motion for summary judgment must be denied. Moreover, Defendant’s evidence must be strictly scrutinized, while Plaintiff’s evidence is viewed in the light most favorable to Plaintiff. D Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1, 21. The facts in Plaintiff’s evidence, and all reasonable inferences therefrom, are -5- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accepted as true. All evidentiary doubts or ambiguities are resolved in Plaintiff’s favor. Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4™ 243, 254. The Court cannot resolve questions of credibility AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App. 3d 1061, 1064. Lastly, matters going to the weight of the evidence must be disregarded. Mann v. Cracchiolo (1985) 38 Cal. 3d 18, 39. In ruling on a motion for summary judgment, the trial court may accept as undisputed facts only those portions of moving party's evidence on motion for summary judgment that are not contradicted by opposing party's evidence. (Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal. App. 4th 246). B. McDonnell Douglas Burden Shifting on Summary Judgment For employment discrimination claims, California has adopted the burden-shifting test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 354-56. The McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims usually must be proved circumstantially, based on inferences from facts that create a reasonable likelihood of bias. Guz, 24 Cal. 4th at 354. See also, Mixon v. Fair Employment & Housing Com.(1987) 192 Cal. App. 3d 1306, 1317 (since in most cases the complainant will be unable to produce direct evidence of the employer's intent, rules regarding the allocation of burdens have developed to achieve a fair determination of the elusive factual question of intentional discrimination.) Under McDonnell Douglas, the plaintiff must offer a prima facie case of discrimination or harassment, and if such showing is made, the burden shifts to the employer to offer a legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. If the employer makes such an offer, the burden shifts back to the employee to prove by a preponderance of the evidence that the purported non-discriminatory reason is a sham or pretext, and the real reason for the adverse action was prohibited discrimination. Id. at 804. This describes the shifting burdens at trial, however, not summary judgment. At the summary judgment or adjudication phase, the burden is reversed as the moving party retains the ultimate burden of proving that there is no triable issue of fact. Guz, 24 Cal. 4™ at 356; Sandell v. -6- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Taylor-Listug, Inc. (2010) 188 Cal. App. 4™ 297, 309. Therefore, even if the employer produces competent evidence of a non-discriminatory reason, it is entitled to summary judgment only “if the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” Guz, 24 Cal. 4™ at 361. Whether summary judgment is appropriate in a particular case depends on a number of factors, including the strength of plaintiff's prima facie case, the probative value of evidence that the employer's explanation is false, and other evidence produced by the employer. Guz, 24 Cal. 4™ at 362. Furthermore, California has adopted the rule that “the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination...” Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal. App. 4th 1133, 1144. Thus, there is no need to engage in this burden-shifting analysis where there is direct evidence of discriminatory animus. (Trop. supra at pp. 1144-1145). Direct evidence is evidence if believed, proves the fact of discriminatory animus without inference or presumption. Comments demonstrating discriminatory animus may be found to be direct evidence if there is evidence of a causal relationship between the comments and the adverse job action at issue. (Trop. supra at pp. 1146-1149) “Once the employer has offered a legitimate, nondiscriminatory reason for the adverse employment action, a plaintiff must offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.” Sandell v. Taylor- Listug, Inc. (2010) 188 Cal. App. 4™ 297, 314. Thus, “[b]ecause proof of discriminatory intent often depends on inferences rather than on direct evidence, very little evidence of such intent is necessary to defeat summary judgment.” Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal. App. 4"™ 952,991. Put conversely, “summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.” Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4" 243,283. Here, Chief Grominsky as well as Anita Queen both testified that the City only considered terminating Plaintiff after her injury. (ADF #21 & 55) Additionally, Chief Grominsky -7- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testified the only reason Plaintiff was dropped from the Academy is because she did not complete her PT’s (ADF #19-20). The same PT’s plaintiff was excluded from completing due to her temporary disability. (ADF #16-20) IV. MATERIAL ISSUES OF FACT EXIST AS TO ALL CAUSES OF ACTION Defendant’s basis of its motion for summary judgment is based on a mischaracterization of Plaintiff’s essential duties. However, Defendant’s at no time point to any evidence which lays out Plaintiff’s essential duties. There is an absence of a job description of a Police Recruit, and also, Defendant fails to show that they engaged in any semblance of an interactive process with Plaintiff to determine if she was capable of doing the essential duties of a Police Recruit. On the other hand, Plaintiff has demonstrated she was capable of doing the essential duties of a Police Recruit at the time she was terminated. For Example, she: (1) was successful on every written exam; (2) passed the psychological exam; (3) passed an extensive and thorough background check; (4) was selected out of thousands of applicants; and (5) passed 27 physical training activities. A. Disability Discrimination Disability discrimination is established by showing that an employment practice denied, in whole or in part, an employment benefit to an individual because she is an individual with a disability Quinn v. City of Los Angeles (2000) 84 Cal. App. 4th 472. A “physical disability” under the FEHA may include having, or having had any physical condition that makes achievement of a major life activity difficult. See Gov’t Code § 12926(k) The FEHA list of disabilities is not restrictive and includes all physical conditions; it is intended to be broadly construed. See American National Insurance Co. v. FEHA (1982) 32 Cal. 3d 603, 607; Cassista v. Community Foods (1993) 5 Cal. 4th 1050; and Gov’t Code §§ 12926.1(b) & (d)(3). In Bagatti v. Department of Rehabilitation (2002) 97 Cal. App. 4th 344, 350, the court ruled that “[a]ny condition of the body, major or minor, that has a disabling effect is a ‘physical disability’ under the FEHA”. Additionally, courts have held that an employer regards a plaintiff as being disabled if an employer perceives the plaintiff has suffered from a disabling physical condition limiting her -8- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ability to perform. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App. 4™ 34, 60-62 Here, Plaintiff’s day-to-day Academy activity reports convincingly illustrate Plaintiff had a disabling physical condition, which is why she was excused from the PT activities and assigned to desk duty. (ADF #41). Moreover, Plaintiff’s work status report undoubtedly evidences a disabling condition, in that she was taken off work due to her ankle injury. (ADF #42, 16-18) 1. Causation Causation may be inferred from circumstantial evidence, such as evidence that there was proximity in time between the employer's knowledge of the protected activities and the allegedly retaliatory employment decision. A causal link is also evidenced by the fact that the employer was aware that the plaintiff had engaged in the protected activity. Morgan v. Regents of University of Cal. (2000) 88 Cal. App. 4th 52. Here the proximity in time between the City’s knowledge of Plaintiff’s disability and its retaliatory decision is a mere eleven (11) days. Although Plaintiff’s actual date of termination was July 15, 2014. Defendant’s retaliated against Plaintiff on May 30, 2014, when Ms. Queen told Plaintiff to resign or be terminated. This is further evident by Ms. Queen’s email on June 4, 2014, in which it stated that the City has begun the termination process, and Plaintiff is not aware. (ADF #53) 2 Perceived Disability Defendant’s reliance on a QME report done more than a year and '% after Plaintiff had already been terminated is misleading and misguided. Whether Plaintiff had an actual fracture or dislocation of her ankle is irrelevant to determining if she had a disability under FEHA. This is due to the fact that Defendant perceived Plaintiff as having a disability. Defendant put Plaintiff on desk duty for a week before presenting her with the options to resign or be terminated. (ADF # 41) Defendant’s were not in possession of any QME report at the time they terminated Plaintiff. Defendant was unmistakably devoid of any QME report on May 30, 2014, when the City told Plaintiff to resign or be terminated. Defendant’s reliance on a QME report done in 9. PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 December 2015 is more evidence of Defendant’s pretextual reasons for terminating Plaintiff based on her disability. 3. Purported Termination Rational is Pretextual Once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best positon to put forth the actual reason for its decision. As the court in Gifz pointed out “[p]roof that the employer's proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons.” Guz, 24 Cal. 4th at 361. A Plaintiff may show that there are weaknesses, inconsistencies, or contradictions sufficient that a fact finder could rationally infer that the employer did not act for the asserted nondiscriminatory reasons, defeating summary judgment. Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297, 314 (finding that negative comments and untrue allegations supported discriminatory animus). If a fact finder rejects the employer's proffered nondiscriminatory reasons as unbelievable, it may infer “the ultimate fact of intentional discrimination” without additional proof of discrimination. See Reeves v. Sanderson Plumbing (2000) 503 US 133, 144. Plaintiff has presented evidence to rebut Defendant’s insubstantial pretextual reasons for terminating Plaintiff. Therefore, Defendant’s motion for summary judgment on disability discrimination must be denied. B. Defendants Failed to Prevent Discrimination and Harassment Plaintiff has alleged that Defendants are liable for failure to prevent discrimination and harassment pursuant to Government Code § 12940(3) and (k). Because Plaintiff's underlying claims of discrimination and harassment are valid, Defendant is liable for failing to prevent such conduct. An actionable claim under FEHA for failure to provide an environment free from discrimination is dependent on a claim of actual discrimination: employers should be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented. Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986. Here, because Plaintiff has presented a prima facie claim for -10- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discrimination, as well as a rebuttal to Defendant’s pretextual reasons for termination, there exists a triable issue of fact as to whether Defendant failed to prevent discrimination. C. Failure to Make Reasonable Accommodations California Government Code section 12940 subdivision (m) provides that it shall be an unlawful employment practice for “an employer or other entity covered by this part to fail to make a reasonable accommodation for the known physical or mental disability of an applicant or employee.” “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” Scotch v. Art Institute of California-Orange County. Inc. (2009) 173 Cal. App. 4th 986, 1010. “An employer's failure to provide reasonable accommodation is a violation of the statute even in the absence of an adverse employment action.” King v. United Parcel Service, Inc. (2007) 152 Cal. App. 4th 426, 442. Here Plaintiffs disability was well documented. In addition, plaintiff was qualified to perform the essential functions of the Position of Police Recruit which is evident by the following: (1) her pre-employment screening; (2) her twenty seven (27) passed PT activities; and (3) passing 100% of the written exams. (ADF#5, 25, 35-36) The only issue that Defendant can attempt to argue is whether Defendant provided a reasonable accommodation. The answer is definitively, no. A reasonable accommodation envisions a cooperative exchange of information “between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions.” Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App4™ 935, 950 Here, Defendant failed to accommodate and/or engage in the interactive process as required by law. Defendant merely told Plaintiff resign and accept a part-time position or be terminated. (ADF #39 & 47) Ms. Queen admitted through testimony, at the time she gave Plaintiff those two options she did not even know Plaintiff’s work status. A cooperative exchange of information cannot exist when the City merely determined the outcome of Plaintiff’s employment without fully knowing the extent of her injury. Ms. Queen could not have -11- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in good faith chosen all the possible available positions for Plaintiff, when Ms. Queen testified that she was not even aware of Plaintiffs work restrictions. Furthermore, Defendants had a Recycling Program that was designed for employees such as Plaintiff. Yet Plaintiff, unlike other Police Recruits, was denied even consideration for the program. (ADF #48-52) And, despite several training officers admissions that they believe Plaintiff would be successful, if she had an opportunity to repeat the Academy. (ADF #51) Defendant’s complete lack of any guise of an interactive process means the City’s motion for summary judgment in regards to failure to provide reasonable accommodations must be denied in its entirety. D. Retaliation “Actions for retaliation are ‘inherently fact -driven’; it is the jury, not the court, that is charged with determining facts.” McCoy v. Pacific Maritime Assn. (2013) 216 Cal. App. 4™ 283, 299. “The retaliatory motive is ‘proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.” Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 615. “The casual link may be established by an inference derived from circumstantial evidence, “such as employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” Id at 615. Here, because Plaintiff has presented a prima facie claim for discrimination, as well as a rebuttal to Defendant’s pretextual reasons for termination, there exists a triable issue of fact as to whether defendant retaliated against Plaintiff when the City fired initiated the termination process a mere eleven (11) days after her injury. E. Wrongful Termination in Violation of Public Policy Any such termination in violation of FEHA is in contravention of a fundamental public policy, and as such is actionable as the tort of wrongful termination in violation of public policy. Phillips v. St. Mary Regional Medical Center (2002) 96 Cal. App. 4th 218. Here, because Plaintiff has presented a prima facie case for disability discrimination in violation of FEHA, -12- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 there exists a triable issue of fact as to whether Defendant’s termination was in violation of public policy. Government Code section 12940 subdivision (a), requires Defendants to refrain from discriminating against any employee on the basis of a physical disability. Govt. Code § 12940(a). “The employer’s duty to prevent harassment and discrimination is affirmative and mandatory.” Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal. App. 4™ 1021. Plaintiff need only establish a prima facie case of discrimination. In establishing a prima facie showing of disability discrimination under FEHA, plaintiff need only to show she was (1) a member of a protected class (she suffered from a disability); (2) Plaintiff was otherwise qualified for the job; and (3) she suffered an adverse employment action. Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986 Based on the foregoing, Defendant both retaliated and discriminated against Plaintiff based on her disability. Plaintiff was more than qualified for the position and the City only considered terminating her after her injury. Therefore, Plaintiff’s termination was in contravention to a fundamental public policy, and Defendant’s motion of summary judgment must be denied. LP CONCLUSION For all the foregoing reasons, Defendant’s Motion for Summary Judgment or in the Alternative Summary Adjudication should be denied in its entirety. Dated: July 28, 2016 MAHONEY LAW GROUP, APC By: /s/Treana L. Allen Treana L. Allen, Esq. Attorney for Plaintiff, KIMBERLY CERDA -13- PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Code of Civ. Proc. § 1013a, subd. (3) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) and not a party to the within entitled action. My place of business is 249 East Ocean Boulevard, Suite 814, Long Beach, CA 90802. On July 28, 2016, I served the foregoing document described as: PLAINTIFF KIMBERLY CERDA’S OPPOSITION TO DEFENDANT CITY OF SANTA ANA’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION, on the interested parties in this action, addressed as follows: Bruce D. Praet G. Craig Smith csmith @law4cops.com FERGUSON, PRAET & SHERMAN 1631 East 18" Street Santa Ana, CA 92705 T: (714) 953-5300 F: (714) 953-1143 Attorneys for Defendant City of Santa Ana X] By electronic service: Based on a court order, I caused the document(s) to be sent to the persons at the electronic service addresses listed above by transmission through ONE LEGAL. IX] By overnight delivery: I enclosed the document(s) in an envelope or package provided by Federal Express and addressed to the person(s) at the addresses above. I then placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. DX] State: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 28, 2016, at Long Beach, California. /s/Laura Palmerin Laura Palmerin -1- PROOF OF SERVICE