Department of Fair Employment And Housing vs. Orange County Sheriff'S Department

Response

Cal. Super. - 4th Dist.March 16, 2017

oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O NORMAN J. WATKINS - SBN 87327 PANCY LIN - SBN 239684 LYNBERG & WATKINS A Professional Corporation 1100 Town & Country Road, Suite #1450 Orange, California 92868 (714) 937-1010 Telephone (714) 937-1003 Facsimile Government Code § 6103 ELECTRONICALLY FILED Superior Court of California, County of Orange 0316/2018 at 04:35:00 FM Clerk of the Superior Court By Wanique Ramirez, Deputy Clerk GABRIEL J. BOWNE, Senior Deputy County Counsel - SBN 235126 OFFICE OF THE ORANGE COUNTY COUNSEL 333 W. Santa Ana Blvd., Suite 407 Santa Ana, CA 92702 (714) 834-3741 Telephone (714) 834-2359 Facsimile Attorneys for Defendant, ORANGE COUNTY SHERIFF'S DEPARTMENT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, an agency of the State of California, Plaintiff, VS. ORANGE COUNTY SHERIFF'S DEPARTMENT and DOES ONE through TEN, Defendants. CHARLES STUMPH, Real Party in Interest CASE NO: 30-2017-00909186-CU-CR-CJC Assigned for All Purposes to: Hon. Glenn Salter - Dept. C22 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION [Court Reservation No.: 72710877] Date: March 22, 2018 Time: 1:30 p.m. Department: C22 Trial Date: April 23, 2018 Complaint filed: March 16, 2017 Pursuant to Code Civ. Proc. § 437c and Cal. Rules of Court, Rule 3.1350, Defendant, Orange County Sheriff's Department, submits the following Response to Plaintiff’s Evidence in Opposition to Defendant’s Motion For Summary Judgment or, in the Alternative, Summary Adjudication. DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT NO. PLAINTIFF’S ADDITIONAL FACT AND SUPPORTING EVIDENCE: DEFENDANT’S RESPONSE TO PLAINTIFE’S ADDITIONAL FACT: OCSD is a law-enforcement agency serving the County of Orange. Supporting Evidence: Defendant’s Response to DFEH’s Investigative Request, Response to No. 3, at p. 1, bates stamped DFEH000014, Declaration of Grace Shim (Shim Decl.), 9, Exhibit H. Undisputed for purposes of this motion. OCSD regularly employs five or more persons (or approximately 4000 persons). Supporting Evidence: Deposition of Tracy Zuber taken December 11, 2017 (Zuber Dep.), at 17:3, Shim Decl., 94, Exhibit C. Undisputed for purposes of this motion. Charles Stumph has been an OCSD employee since 1997 and employed as a Deputy Sheriff II since 2006. Supporting Evidence: Declaration of Charles Stumph (Stumph Decl.), | 1, 2:1-2, Shim Decl., { 3, Exhibit B; Zuber Dep. at 42:15, Shim Decl., 4, Exhibit C. Undisputed for purposes of this motion. In December 2012, Charles Stumph injured his wrist while working for OCSD that resulted in surgery and a medical leave of absence. Supporting Evidence: Stumph Decl, {[2, 2:3-4, Shim Decl., 3, Exhibit B; Request for Decision, Permanent Work Restrictions, bates stamped DFEH000049-DFEHO000052, Shim Decl., J 13, Exhibit L. Undisputed for purposes of this motion. OCSD knew about Charles Stumph’s wrist injury in 2012. Supporting Evidence: Undisputed for purposes of this motion. 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Deposition of Janet Hayes taken December 12,2017 (Hayes Dep.), at 45:10-20, Shim Decl., | 5, Exhibit D. 6. Dr. Jot Kent 0 ; ere Undisputed for purposes of this motion. Institute released Stumph to return to work without restrictions in June 2014. Supporting Evidence: Stumph Decl., 3, 2:6-8, Shim Decl., {3 , Exhibit B; Request for Decision, Permanent Work Restrictions, bates stamped DFEH000049-DFEH000052, Shim Decl., J 13, Exhibit L; Notice of Return to Work Without Restrictions, bates stamped DFEH000128, Shim Decl., | 16, Exhibit O. 7 Dr. Knight believed that Stumph “can Hearsay, Evid. Code § 1200; clearly do his job requirements. There S Ia6i d Lack of P 1 would be no reason for restrictions unless peetahion and “ack ot ~orsona he had a recurrence after he went back to Knowledge. Evid. Code §3 702, 800 work.” Supporting Evidence: Deposition of John T. Knight taken June 9, 2016 (Knight Dep.), at 12:24-13:2, Shim Decl., 7, Exhibit F. 3 Stumph returned and worked as normal in | Immaterial. Sangster v. Paetkau, 68 July 2014, without any incident, until July | Cal. App. 4th 151, 162-163 (1998) (“in 2015. order to avert summary judgment the plaintiff must produce substantial g no Evid } responsive evidence sufficient to HPPOTTIRE LVikenoe. establish a triable issue of material fact Stumph Decl., {4, 2:9-15, 5, 2:13-15, 1 | on the merits of the defendant's 6, 2:16-17, Shim Decl., { 3, Exhibit B. showing.”) 9 Between July 2014 to July 2015, Stumph Immaterial. Sangster v. Paetkau, 68 arrested about 25 to 30 suspects, 10 of whom resisted arrest. In one instance, he had to fight with a suspect for 15 minutes before he made the arrest. The incident did not cause any pain in Stumph’s right hand, Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: wrist, or elbow. showing.”) Supporting Evidence: Stumph Decl., 5, 2:13-15, Shim Decl., { 3, Exhibit B. 10 Between June 2014 to July 2015, Stumph Immaterial. Sangster v. Paetkau, 68 regularly qualified at the gun range using | Cal. App. 4th 151, 162-163 (1998) (“in his firearm both right handed and left order to avert summary judgment the -- plaintiff must produce substantial responsive evidence sufficient to ] . establish a triable issue of material fact Supporting Evidence: on the merits of the defendant's Stumph Decl., {4, 2:10-11, Shim Decl., { showing.”) 3, Exhibit B. As part of his workers’ compensation : . . 11. claim, Charles Stumph was seen by a Undisputed for purposes of this motion. Qualified Medical Examiner, Lincoln S. Yee, M.D., in June 2015. Supporting Evidence: Stumph Decl., {7, 2:18-19, Shim Decl., | 3, Exhibit B; Request for Decision, Permanent Work Restrictions, at p. 1, bates stamped DFEH000049, Shim Decl., | 13, Exhibit L; Panel Qualified Medical Evaluation, bates stamped DFEH000162- DFEHDFEH000203, Shim Decl., q 18, Exhibit Q. 12. SHMph Eva ARATE tol i BAbIlity 16 Objection, Argumentative. Evid. Code § perform any of his job functions; he 703; Misstates the Evidence; Hearsa sw sa ; ; y, asserted a lower level of disability that Evid. Code § 1200; S lati d : : vid. Code ; Speculation an merely decreased his earning power. Lack of Personal Knowledge. Evid. Supporting Evidence: Code §% 702, 800 Stumph Decl., 99, 2:25-26, Shim Decl., {| otherwise, undisputed for purposes of 3, Exhibit B. this motion. 13. In. JHREELS, Tht. Yea ExElmpi Simpl: Undisputed for purposes of this motion. and concluded: “This patient is able to return to his usual customary work. In regard to the right hand/wrist, on an industrial basis, should be prophylactically 4 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT NO. AND SUPPORTING EVIDENCE: DEFENDANT’S RESPONSE TO PLAINTIFE’S ADDITIONAL FACT: precluded from any very forceful gripping or grasping, pulling, pushing, and repetitive fine manipulative activity with the right hand/wrist.” Supporting Evidence: Stumph Decl., {7, 2: 19-21, Shim Decl., 3, Exhibit B; Panel Qualified Medical Evaluation at p. 38, bates stamped DFEH000199, Shim Decl., q 18, Exhibit Q. 14. In July 2015, OCSD received a Notice of Permanent Restrictions per Dr. Yee’s June 2015 report from YORK, Orange County’s third party administrator for the workers’ compensation system, which stated: “Work Restrictions: Prophylactically precluded from any very forceful gripping or grasping, pulling, pushing and repetitive fine manipulation activity with right hand/wrist.” Supporting Evidence: Defendant’s Response to DFEH’s Investigative Request, Response to No. 2, at p. 2, bates stamped DFEHO000015, Shim Decl., 9, Exhibit H; Amended Notice of Permanent Work Restrictions, bates stamped DFEH000036, Shim Decl., q 14, Exhibit M; Hayes Dep. at 23:8-10, Shim Decl., { 5, Exhibit D; Zuber Dep. at 48:13- 21, Shim Decl., (4, Exhibit C. Undisputed for purposes of this motion. 13, At the point when OCSD received the Notice of Permanent Restrictions from YORK, Charles Stumph had already worked with no injury for about a year, from approximately July 2014 to July 2015. Supporting Evidence: Stumph Decl., {4, 2:9-10, Shim Decl., 3, Exhibit B; Deposition of Adam Powel taken December 13, 2017 (Powell Dep.) at Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 5 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: 75:18-20, Shim Decl., J 6, Exhibit E; Notice of Permanent Restrictions, bates stamped DFEH000036, Shim Decl., { 10, Exhibit I. On August 5, 2015, Charles Stumph . ; . 16. attended an “Interactive Process Meeting” Undisputed for purposes of this motion. or “IPM” with OCSD’s Workers’ Compensation Manager Tracy Zuber, Risk Manager Janet Hayes and Office Specialist Maya De La Vega. Supporting Evidence: Stumph Decl., 10, 2:1-2, Shim Decl., 3, Exhibit B; Zuber at 54:22-23, Defendant’s Response to DFEH’s Investigative Request, Response to No. 8, at p. 6, bates stamped DFEH000019, Shim Decl., {9, Exhibit H. 17 Tracy Zuber, the Administrative Manager | Immaterial. Sangster v. Paetkau, 68 ’ in the Return to Work SAFE office, is in Cal. App. 4th 151, 162-163 (1998) (“in charge of handling the majority of order to avert summary judgment the permanent restrictions resulting out of both | P laintiff must produce substantial . . responsive evidence sufficient to “coup ational and non-occupational establish a triable issue of material fact Injuries. on the merits of the defendant's showing.”) Supporting Evidence: . . Zuber Dep. at 12:23-13:3, 29:1-2, 46:18- TA ID uted for purposes of 21, Shim Decl., { 4, Exhibit C. 18 Tracy Zuber does not know if OCSD has a | Immaterial. Sangster v. Paetkau, 68 written policy regarding reasonable Cal. App. 4th 151, 162-163 (1998) (“in accommodation. order to avert summary judgment the plaintiff must produce substantial g ee } responsive evidence sufficient to HUPPOTENg HViGence. } establish a triable issue of material fact Zuber Dep. at 24:24-25:1, Shim Decl., 4, | on the merits of the defendant's Exhibit C. showing.”) 19. Going into the August 5, 2015 Interactive | Immaterial. Sangster v. Pa tkau, 68 Process meeting, Tracy Zuber did not know how many doctor’s notes Charles Stumph had related to his injury. Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to 6 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: establish a triable issue of material fact Supporting Evidence: on the merits of the defendant's Zuber Dep. at 67:12-14, Shim Decl., 4, | showing”) Exhibit C. 20 Before the August 5, 2015 Interactive Immaterial. Sangster v. Paetkau, 68 Process meeting, Zuber did not look at Dr. | Cal. App. 4th 151, 162-163 (1998) (“in Yee’s June 11, 2015 report about Stumph | order to avert summary judgment the or any other doctor's note. plaintiff must produce substantial responsive evidence sufficient to . . establish a triable issue of material fact Supporting Evidence: on the merits of the defendant's Zuber Dep. at 67:7-11, Shim Decl., 4, showing.”) Exhibit C. Accessing some of this information could/would have been a violation of HIPAA. 21 Going into the August 5, 2015 IPM, Tracy | Immaterial. Sangster v. Paetkau, 68 Zuber did not have any knowledge of Cal. App. 4th 151, 162-163 (1998) (“in Charles Stumph’s job performance from order to avert summary judgment the June 2014 to July 2015, his ability to use ~~ | Plaintiff must produce substantial firearms during that period, his contact TESpensive evidense sufficient io earms gthatp a ; establish a triable issue of material fact with suspects during that period, or his on the merits of the defendant's arrests or attempted arrests during that showing.”) period. Supporting Evidence: Accessing some of this information Zuber Dep. at 71:25-72:16, 73:11-14, could/would have been a violation of Shim Decl., 4, Exhibit C. POBRA. 29 Tracy Zuber did not request documents Immaterial. Sangster v. Paetkau, 68 about Stumph’s contact with suspects, Cal. App. 4th 151, 162-163 (1998) (“in arrests, or attempted arrests to consider order to avert summary judgment the these factors as a part of the interactive plaintiff must produce substantial responsive evidence sufficient to process. establish a triable issue of material fact on the merits of the defendant's Supporting Evidence: showing.”) Zuber Dep. at 72:17-25; 73:11-23, Shim Accessing some of this information Decl., {4, Exhibit C. could/would have been a violation of POBRA. 23. The Return to Work SAFE (Strategy, Immaterial. Sangster v. Paetkau, 68 Accountability, Focus, and Evaluation) Office manages the policies for OCSD, the Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the 7 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: use-of-force reporting for OCSD, as well plaintiff must produce substantial as purchase paid in the Critical Incident responsive evidence sufficient to Review Process that is managed establish a triable issue of material fact throughout the Department. on the merits of the defendant's showing.”) Supporting Evidence: Hayes Dep. at 15:8-18, Shim Decl., 5, } } Exhibit D. Otherwise, undisputed for purposes of this motion. 24 The Return to Work SAFE Office did not Immaterial. Sangster v. Paetkau, 68 interview any of Charles Stumph’s Cal. App. 4th 151, 162-163 (1998) (“in coworkers or supervisors about his ability | order to avert summary judgment the to do his job or his job performance. p laintiff must produce substantial responsive evidence sufficient to . . establish a triable issue of material fact Supporting Evidence: on the merits of the defendant's Zuber Dep. at 73:24-74:4, Shim Decl., | 4, showing.”) Exhibit C. Accessing some of this information could/would have been a violation of POBRA and/or Stumph’s privacy rights. 75 Tracy Zuber, the Administrative Manager | Immaterial. Sangster v. Paetkau, 68 in the Return to Work SAFE office since Cal. App. 4th 151, 162-163 (1998) (“in March 2013, does not provide doctor’s order to avert summary judgment the notes as part of the Request for Decision to | P laintiff must produce substantial the Executive Command. responsive evidence sufficient to establish a triable issue of material fact Supporting Evidence: on the merits of the defendant's Zuber Dep. at 12:23-13:3, 38:2-40:2, showing") Shim Decl., 4, Exhibit C. Accessing some of this information could/would have been a violation of HIPAA. 26. At the August 5, 2015 Interactive Process Argumentative. Evid. Code § 703; meeting, Tracy Zuber did not have a list of potential reasonable accommodations for Stumph, did not discuss any reasonable accommodations with Stumph that were specific to his work restriction and job position, and did not offer any specific reasonable accommodations to Stumph. Supporting Evidence: Zuber Dep. at 84:1-3; 84:21-85:1; 86:1-6, Misstates the Evidence. 8 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Shim Decl., 4, Exhibit C. 77 Going into the August 5, 2015 Interactive | Immaterial. Sangster v. Paetkau, 68 Process meeting, Janet Hayes did not have | Cal. App. 4th 151, 162-163 (1998) (“in any knowledge of Charles Stumph’s job order to avert summary judgment the performance from June 2014 to July 2015, p ainfith mustps NR his ability to use firearms during that establish a triable issue of material fact period, his contact with suspects during on the merits of the defendant's that period, or his arrests or attempted showing.”) arrests during that period. Accessing some of this information S rine Evid could/would have been a violation of upporting Evidence: POBRA. Hayes Dep. at 90:21-91:23, Shim Decl., 5, Exhibit D. 8 Around 2013, Tracy Zuber contacted Immaterial. Sangster v. Paetkau, 68 County Executive Office (CEO) for a Cal. App. 4th 151, 162-163 (1998) (“in definition of the word “prophylactic” and | order to avert summary judgment the was told that “prophylactic permanent b EE restriction” meant the same as the establish a triable issue of material fact “permanent restriction”. This made sense on the merits of the defendant's to her because OCSD is trying to prevent showing.”) the employee from further harm. Supporting Evidence: Zuber Dep. at 76:19-77:9, 78:14-79:14, Shim Decl., 4, Exhibit C. 29. Clhiarless Stumph 1eld OCSDin August Calls for a legal conclusion and expert 2015 that he had been doing his essential job duties for over a year and have had no issues performing as a Deputy Sheriff II, having had no issues working in patrol and no issues qualifying at the range, and can still shoot a gun and still handcuff a suspect, and do not need an accommodation. Supporting Evidence: Stumph Decl., 10, 2:1-5, Shim Decl., | 3, Exhibit B; Request for Decision on Permanent Work Restrictions, at p. 2, bates stamped DFEH000050, Shim Decl., | 13, Exhibit L. opinion. Otherwise, undisputed for purposes of this motion. 9 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFE’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: 30 OCSD’s Executive Command is the body Immaterial. Sangster v. Paetkau, 68 that makes the decision on whether to Cal. App. 4th 151, 162-163 (1998) (“in accommodate an employee with permanent | Order to avert summary judgment the restrictions. plaintiff must produce substantial responsive evidence sufficient to Supporting Evidence: establish a triable issue of material fact Hayes Dep. at 34:20-22, 36:2-6, 37:6-8, | ©n the merits of the defendant's Shim Decl., { 5, Exhibit D. showing,”) Otherwise, undisputed for purposes of this motion. 31 On August 12, 2015, OCSD’s Executive Immaterial. Sangster v. Paetkau, 68 Command members who were presentat | Cal. App. 4th 151, 162-163 (1998) (“in the meeting to decide on Stumph’s order to avert summary judgment the restrictions were Robert Peterson, Adam p laintiff must p roduce substantial Powell, Toni Bland, and Brian Wayt. TEspotisive svidenve sutfiglent to ’ ’ establish a triable issue of material fact on the merits of the defendant's Supporting Evidence: showing.”) Request for Decision on Permanent Work Otherwise, undisputed for purposes of Restrictions, at p. 4, bates stamped this Motion. DFEHO000052, Shim Decl., q 13, Exhibit L. 39 On August 12, 2015, OCSD’s Executive Immaterial. Sangster v. Paetkau, 68 Command held a meeting in which they Cal. App. 4th 151, 162-163 (1998) (“in considered the work restriction and order to avert summary judgment the whether OCSD could accommodate p laintiff must produce substantial Charles Stumph responsive evidence sufficient to : establish a triable issue of material fact Supporting Evidence: on the merits of the defendant's Defendant’s Response to DFEH’s showarg.”) Investigative Request, Response to No. 2, | Otherwise, undisputed for purposes of at p. 3, bates stamped DFEH000016; Shim | this motion. Decl., 9, Exhibit H; Powell Dep. at 16:22-25, 17:18-19, 18:8-9, 60:15-16, Shim Decl., J 6, Exhibit E. 33. In August 2015, Adam Powell was a Commander and a member of the Executive Command which made decisions on permanent work restrictions of deputy sheriffs. Supporting Evidence: Powell Dep. at 7:20-8:6; 11:9-12:21; 27:15-18, Shim Decl., J 6, Exhibit E. 10 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: 34 At the August 12, 2015 Executive Immaterial. Sangster v. Paetkau, 68 Command meeting, Adam Powell did not | Cal. App. 4th 151, 162-163 (1998) (“in think Charles Stumph as physically order to avert summary judgment the incapable of any forceful gripping or plaintiff must produce substantial ; : ; responsive evidence sufficient to grasping. He believed that he Was atrisk of | oqiablish a triable issue of material fact Tuy from very forceful gripping or on the merits of the defendant's grasping. showing.”) } . Otherwise, undisputed for purposes of Supporting Evidence: this THEO. Powell Dep. at 41:6-24, Shim Decl., | 6, Exhibit E. 35 At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, Adam Powell did not | opinion; misstates the evidence. think Charles Stumph as physically Immaterial. Sangster v. Paetkau, 68 . . . ) , ai airy femetul pullitre; He Cal. App. 4th 151, 162-163 (1998) (“in ed that he was atrisk of injury from | jer 10 avert summary judgment the very forceful pulling. plaintiff must produce substantial responsive evidence sufficient to Supporting Evidence: establish a triable issue of material fact Powell Dep. at 41:25-42:13, Shim Decl., | | on the merits of the defendant's 6, Exhibit E. showing.”) 36 At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, Adam Powell did not | opinion; misstates the evidence. think Charles Stumph as physically incapable of any forceful pushing. He Immaterial. Sangster v. Paetkau, 68 believed that he was at risk of injury from | Cal. App. 4th 151, 162-163 (1998) (“in very forceful pushing. order to avert summary judgment the plaintiff must produce substantial Supporting Evidence: responsive evidence sufficient to Powell Dep. at 42:14-23, Shim Decl., | 6, establish a triable issue of material fact Exhibit E. on the merits of the defendant's showing.”) 37. At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, Adam Powell did not think Charles Stumph as physically incapable of any repetitive fine manipulative activity with the right hand. He believed that he was at risk of injury from any repetitive fine manipulative activity with the right hand. Supporting Evidence: opinion; misstates the evidence. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's 11 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANTS RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Powell Dep. at 42:24-43:8, Shim Decl., q showing.”) 6, Exhibit E 38 At the August 12, 2015 Executive Argumentative; calls for an expert ’ Command meeting, Adam Powell opinion; misstates the evidence. considered Charles Stumph to have free use of his right hand at that time. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in Supporting Evidence: order to avert summary judgment the Powell Dep. at 70:7-14, Shim Decl., 6, plaintiff must produce substantial Exhibit E. responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 39. At the August 12, 2015 Executive Immaterial. Sangster v. Paetkau, 68 Command meeting, Adam Powell = ~~ cy) ‘Apps ah 151, 162-163 (1998) (“in understood that Charles Stood was working . Co . order to avert summary judgment the after the injuries until the permanent work Tair Ts srediies substantial restrictions came in. p . P LL responsive evidence sufficient to Supporting Evidence: establish a triable issue of material fact Powell Dep. at 43:9-24, Shim Decl., 16, | op. a of the defendants Exhibit E. 40 Adam Powell believed Charles Stumph Argumentative; calls for an expert could physically perform his duties as a opinion; misstates the evidence. Deputy Sheriff II. Adam Powell said, “...1 mean, he was - he was - he was obviously | Immaterial. Sangster v. Paetkau, 68 performing those duties. He was back to Cal. App. 4th 151, 162-163 (1998) (“in work,” and “...no one has questioned the order to avert summary judgment the fact whether he could perform these duties | plaintiff must produce substantial that you're stating,” and “Look, like I just | responsive evidence sufficient to said, obviously he can do these roles. He establish a triable issue of material fact was doing them. He - he was back to work | on the merits of the defendant's with these restrictions.” showing.”) Supporting Evidence: Powell Dep. at 74:15-17, 74:24-75:1, and 75:18-20, Shim Decl., q 6, Exhibit E. 41. Adam Powell does not recall if, at the Argumentative; calls for an expert August 2015 Executive Command meeting, the Executive Command knew of any deputy sheriff’s duties that requires repetitive fine manipulative activity. opinion; misstates the evidence; Hearsay, Evid. Code § 1200 Immaterial. Sangster v. Paetkau, 68 12 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Cal. App. 4th 151, 162-163 (1998) (“in Supporting Evidence: order to avert summary judgment the Powell Dep. at 39:11-40:2, Shim Decl., { | plaintiff must produce substantial 6, Exhibit E. responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 1. At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, they were reviewing | opinion; misstates the evidence; the permanent work restrictions as Hearsay, Evid. Code § 1200 preventing future harm, as they were “trying to do the right thing moving Immaterial. Sangster v. Paetkau, 68 forward not to hurt him any further.” Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Zuber Dep. at 106:8-19, Shim Decl., 4, responsive evidence sufficient to Exhibit C. establish a triable issue of material fact on the merits of the defendant's showing.”) 43 At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, Tracy Zuber did not opinion; misstates the evidence; bring up the fact that Stumph also uses his | Hearsay, Evid. Code § 1200 left hand because it was his right hand that they were discussing so she doesn’t know | Immaterial. Sangster v. Pa tkau, 68 that she “would even think about bringing | Cal. App. 4th 151, 162-163 (1998) (“in up his left hand.” order to avert summary judgment the plaintiff must produce substantial Supporting Evidence: responsive evidence sufficient to Zuber Dep. at 111:3-20, Shim Decl., (4, establish a triable issue of material fact Exhibit C. on the merits of the defendant's showing.”) 44. Despite believing Charles Stumph could Argumentative; calls for an expert physically perform his duties as a Deputy Sheriff II, OCSD’s Executive Command unanimously determined on August 12, 2015 that Charles Stumph’s restrictions could not be accommodated. Supporting Evidence: Defendant’s Response to DFEH’s Investigative Request, Response No. 2, at p. 3, bates stamped DFEH000016, Shim Decl., 9, Exhibit H; Powell Dep. at opinion; misstates the evidence; Hearsay, Evid. Code § 1200 13 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: 27:19-21, 74:15-17, 74:24-75:1, and 75:18-20, Shim Decl., 6, Exhibit E. 45. The disgussion regarding regarding Charles Immaterial. Sangster v. Paetkau, 68 Stumph’s permanent work restriction at the Cal. App. 4th 151, 162-163 (1998) (“in August 12, 2015 meeting was less than 30 | Py > Do #0 Ee --- dgment the minutes. plaintiff must produce substantial S rine Evid responsive evidence sufficient to Upporting Lvicence. : establish a triable issue of material fact Powell Dep. at 46:19-47:1, Shim Decl., q of The: mers, of the defsndant's 6, Exhibit E. showing.”) The Qualified Medical Examiner’s . . . 46. disputed fi f th tion. é statement that Stumph “was precluded Undisputed for purposes of this motion from very forcefully gripping, grasping, pulling and so on” was “the determinant factor” for making the decision at the Executive Committee. Supporting Evidence: Powell Dep. at 78:4-7, Shim Decl., | 6, Exhibit E; Request for Decision, Permanent Work Restrictions bate stamped DFEH000049, Shim Decl., q 13, Exhibit L. 47. Adam Powell does not ree all if he Immaterial. Sangster v. Paetkau, 68 requested any additional information Cal. App. 4th 151, 162-163 (1998) (“in regarding Charles Stumph besides the Job | der hh ave ” summar udoment the Deseription, thie Request. for Degision plaintiff must broduce substantial form, and the letter from Charles Stumph. . : x , p responsive evidence sufficient to S ne Evid establish a triable issue of material fact upporting Lvidence. i on the merits of the defendant's Powell Dep. at 47:25-48:8, Shim Decl., J showing.” 6. Exhibit E. = 48. Typically, two days before these meetings Immaterial. Sangster v. Paetkau, 68 where the Executive Command discusses permanent work restrictions, Tracy Zuber sends the Executive Commanders a Request for Decision document and a copy of the job classification from the county website. She copy and pastes the Interactive Process Meeting letter into the Request for Decision document. She sends Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 14 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT NO. PLAINTIFF’S ADDITIONAL FACT AND SUPPORTING EVIDENCE: DEFENDANT’S RESPONSE TO PLAINTIFE’S ADDITIONAL FACT: no other documents as part of the Request for Decision. Supporting Evidence: Zuber Dep. at 38:2-24, Shim Decl., | 4, Exhibit C. 49. Typically, Tracy Zuber does not send doctors’ notes as part of the Request for Decision. She can only recall one case where she was given a picture of the doctor’s notes, but she presented that picture at the meeting and did not send it electronically prior to the meeting of the Executive Command. Supporting Evidence: Zuber Dep. at 38:25-39:4, Shim Decl., ] 4, Exhibit C. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 50. In preparation for the August 12, 2015 meeting of the Executive Command, Tracy Zuber sent an email in which she attached the Request for Decision, the job classifications for Deputy Sheriff I and II, and Stumph’s written statement. She does not remember if she sent any other document; she does not think that she sent any other document. Supporting Evidence: Zuber Dep. at 99:13-22, Shim Decl. {4, Exhibit C. Undisputed for purposes of this motion. 51. At the August 12, 2015 Executive Command meeting, the Executive Command did not discuss the specifics of the Job Description. Supporting Evidence: Powell Dep. at 49:23-50:1, Shim Decl., q 6, Exhibit E. Argumentative; misstates the evidence. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 15 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: 59 At the August 12, 2015 Executive Argumentative; misstates the evidence. Command meeting, whether Charles Stumph could improve enough to resume Immaterial. Sangster v. Paetkau, 68 his duties at some point was not Cal. App. 4th 151, 162-163 (1998) (“in considered. order to avert summary judgment the plaintiff must produce substantial Supporting Evidence: responsive evidence sufficient to Powell Dep. at 61:9-21, Shim Decl., 6, establish a triable issue of material fact Exhibit E. on the merits of the defendant's showing.”) 53 In making the determination not to Argumentative; calls for an expert accommodate Charles Stumph, Powell did | opinion; misstates the evidence; not consider the duration of the risk of Hearsay, Evid. Code § 1200 Charles Stumph injuring himself. Immaterial. Sangster v. Paetkau, 68 Supporting Evidence: Cal. App. 4th 151, 162-163 (1998) (“in Powell Dep. at 70:15-24, Shim Decl., 6, | order to avert summary judgment the Exhibit E. plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 54 In making the determination not to Argumentative; calls for an expert accommodate Charles Stumph, Powell did | opinion; misstates the evidence; not consider the extent of the injury that Hearsay, Evid. Code § 1200 could occur, if Charles Stumph was to perform the acts that he was precluded Immaterial. Sangster v. Paetkau, 68 from doing. Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Powell Dep. at 71:4-14, Shim Decl., | 6, responsive evidence sufficient to Exhibit E. establish a triable issue of material fact on the merits of the defendant's showing.”) 55. In making the determination not to Argumentative; calls for an expert accommodate Charles Stumph, Powell did not consider the likelihood or imminence of the harm that Charles Stumph could experience, if Stumph were performing the acts he was precluded from doing. Supporting Evidence: Powell Dep. at 71:15-73:1, Shim Decl., opinion; misstates the evidence; Hearsay, Evid. Code § 1200 Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to 16 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: 6, Exhibit E. establish a triable issue of material fact on the merits of the defendant's showing.”) 56 At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, Powell did not have opinion; misstates the evidence; any knowledge about Stumph’s job Hearsay, Evid. Code § 1200 performance or Stumph’s ability to use firearms from June 2014 to July 2015. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in Supporting Evidence: order to avert summary judgment the Powell Dep. at 72:18-73:17, Shim Decl., | | plaintiff must produce substantial 6, Exhibit E. responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 57 At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, Powell did not have opinion; misstates the evidence; any knowledge about Stumph’s contacts Hearsay, Evid. Code § 1200 with suspects between June 2014 to July 2015. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in Supporting Evidence: order to avert summary judgment the Powell Dep. at 73:24-74:3, Shim Decl., | plaintiff must produce substantial 6, Exhibit E. responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 58 At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, Powell did not have opinion; misstates the evidence; any knowledge about Stumph’s arrests or | Hearsay, Evid. Code § 1200 attempted arrests he engaged in between June 2014 to July 2015. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in Supporting Evidence: order to avert summary judgment the Powell Dep. at 74:4-8, Shim Decl., { 6, plaintiff must produce substantial Exhibit E. responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) 50. At the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, Powell was not aware of Charles Stumph’s performance evaluations, in which Stumph received opinion; misstates the evidence; Hearsay, Evid. Code § 1200 17 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: above standard” marks. Immaterial. Sangster v. Paetkau, 68 . . Cal. App. 4th 151, 162-163 (1998) (“in Supporting Evidence: order to avert summary judgment the Powell Dep. at 76:12-15, Shim Decl., {6, plaintiff must produce substantial Exhibit E; Stumph Decl., (6, 2:16-17, : . . . - responsive evidence sufficient to Shim Decl., §3, Exhibit B. establish a triable issue of material fact on the merits of the defendant's showing.”) 60 In considering an employee’s permanent Argumentative; calls for an expert work restrictions during Executive opinion; misstates the evidence; Command meetings, Powell never asks for | Hearsay, Evid. Code § 1200 the analysis of a doctor to see the context of the work restriction. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in Supporting Evidence: order to avert summary judgment the Powell Dep. at 79:7-10, Shim Decl., 6, plaintiff must produce substantial Exhibit E. responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Accessing some of this information could/would have been a violation of HIPAA. Following the Executive Command’s Co . 61. Aenision, DOSD Foresd Charles Shimph fo Argumentative; misstates the evidence. take an unpaid leave of absence, effective Otherwise, undisputed for purposes of July 30, 2015. this motion that Stumph was placed on leave effective July 30, 2015. Supporting Evidence: Stumph Decl., { 11, 3:68, Shim Decl., 3, Exhibit B; Zuber Dep. at 123:17-19, Shim Decl., J 4, Exhibit C. 62. In Ogtoher 2003; Dr. Yee prepared a Argumentative. Evid. Code § 703; supplemental report, in which he stated that “The prophylactic restrictions do not preclude the applicant [from] individual performance... The applicant should be able to return to his usual and customary work as a Sheriff Officer.” Supporting Evidence: Mistates the Evidence 18 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT NO. AND SUPPORTING EVIDENCE: DEFENDANT’S RESPONSE TO PLAINTIFE’S ADDITIONAL FACT: Amended Notice of Permanent Restrictions, bates stamped DFEH000060, Shim Decl., J 14, Exhibit M. 63. Dr. Yee also wrote in the October 2015 report that if Stumph’s job requires him to use his right hand in potentially harmful ways, “it would not be on a repetitive basis ... He is not working as one would be on an assembly line or using a wrench as a mechanic; neither is he performing tasks as a construction worker, which requires duties such as gripping, grasping of hammers and mallet or other type of consistent repetitive labor intensive activity. Therefore this applicant should be able to return to his usual customary work as a sheriff officer.” Supporting Evidence: Panel Qualified Medical Examiner’s Supplemental Report, bates stamped DFEHO000209, Shim Decl., 19, Exhibit R. Argumentative. Evid. Code § 703; Mistates the Evidence; Hearsay, Evid. Code § 1200; Speculation and Lack of Personal Knowledge. Evid. Code §§ 702, 800 64. Charles Stumph continued to be on unpaid leave of absence from July 2015 until December 2016, for approximately 16 months. Supporting Evidence: Stumph Decl., (11, 3:6-8, | 14, 3:17-18, Shim Decl., 3, Exhibit B. Argumentative; misstates the evidence. Otherwise, undisputed for purposes of this motion that Stumph was on leave from July 2015 to December 2016. 65. On November 30, 2016, a workers’ compensation judge ruled that, “[a]s Dr. Yee’s reporting is contradictory both internally and when compared to the applicant’s credible trial testimony, it is found that his medical reporting is not substantial medical evidence and cannot be relied upon.” The judge found that Stumph had zero permanent disability based on Dr. Knight's opinion. Undisputed for purposes of this motion. 19 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Supporting Evidence: Workers” Compensation Appeal Board, Findings & Award and Opinion on Decision, Stumph v. County of Orange Sheriff’s Department, p. 4, Shim Decl., | 20, Exhibit S. 66. Stumph “loved my j ob, b clieved that Immaterial. Sangster v. Paetkau, 68 OCSD was my ‘family,’ and felt betrayed i” Cal. App. 4th 151, 162-163 (1998) (“in that I was not allowed to work. Stumph . . order to avert summary judgment the had planned on working for at least oom . . plaintiff must produce substantial another 14 years, before retiring around x x , : . responsive evidence sufficient to age 53, after 30 years of service with : ; : ; »s establish a triable issue of material fact OCSD.” In other words, Stumph was not ; i ) : i on the merits of the defendant's ready to retire from his Deputy Sheriff II PS he showing.”) position. Supporting Evidence: Stumph Decl.,{ 13, 3:14-16, Shim Decl., 3, Exhibit B; Statement from Charles Stumph, bates stamped DFEH000147- DFEH000148, Shim Decl., 17, Exhibit P. 67 In August 2015, the Executive Command | Argumentative; calls for an expert did not consider alternative classifications | opinion; misstates the evidence; employees with permanent restrictions. Hearsay, Evid. Code § 1200 Supporting Evidence: Immaterial. Sangster v. Paetkau, 68 Powell Dep. at 64:15-18, Shim Decl., 6, | Cal. App. 4th 151, 162-163 (1998) (“in Exhibit E. order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Raine v. City of Burbank, 135 Cal. App.4th 1215, 1221 (2006) (FEHA “does not require creating a new job....”) 63 In August 2015, the Executive Command | Argumentative; calls for an expert did not consider reassignment to a different classification as a potential accommodation for Charles Stumph. opinion; misstates the evidence; Hearsay, Evid. Code § 1200 20 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Supporting Evidence: Immaterial. Sangster v. Paetkau, 68 Powell Dep. at 64:19-65:1, Shim Decl, | | Cr APP: 4th 151, 162-163 (1998) ("in os order to avert summary judgment the 6, Exhibit E. plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Raine v. City of Burbank, 135 Cal.App.4th 1215, 1221 (2006) (FEHA “does not require creating a new job....”) 69 In August 12, 2015, the Executive Argumentative; calls for an expert Command did not consider reassignment | opinion; misstates the evidence; within the classification that Charles Hearsay, Evid. Code § 1200 Stumph was in. Immaterial. Sangster v. Paetkau, 68 Supporting Evidence: Cal. App. 4th 151, 162-163 (1998) (“in Powell Dep. at 65:25, Shim Decl., 6, order to avert summary judgment the Exhibit E. plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Raine v. City of Burbank, 135 Cal.App.4th 1215, 1221 (2006) (FEHA “does not require creating a new job....”) 70. In the August 12, 2015 Executive Argumentative; calls for an expert Command meeting, no one suggested a potential accommodation for Stumph. Supporting Evidence: Powell Dep. at 44:69, Shim Decl., | 6, Exhibit E. opinion; misstates the evidence; Hearsay, Evid. Code § 1200 Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Raine v. City of Burbank, 135 21 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Cal.App.4th 1215, 1221 (2006) (FEHA “does not require creating a new job....”) 71 Tracy Zuber nor Adam Powell nor Janet Argumentative. Evid. Code § 703; Hayes followed up with Charles Stumph or | Mistates the Evidence. Professional Standards regarding alternative accommodations for Charles Immaterial. Sangster v. Paetkau, 68 Stumph. Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Zuber Dep. at 89:4-15, 89:23-90:1, Shim | responsive evidence sufficient to Decl., 4, Exhibit C; Powell Dep. at establish a triable issue of material fact 63:16-25, Shim Decl., J 6, Exhibit E; on the merits of the defendant's Hayes Dep. at 87:5-24, Shim Decl., 5, showing.”) Exhibit D. 7 No one at the Executive Command Argumentative; misstates the evidence; meeting in August 2015 had Charles Hearsay, Evid. Code § 1200 Stumph’s doctors’ notes, and no one reviewed any of his doctors’ notes before Immaterial. Sangster v. Paetkau, 68 or during the meeting. Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Zuber Dep. at 100:15-20, Shim Decl., 4, | responsive evidence sufficient to Exhibit C; Powell Dep. at 34:24-35:1, establish a triable issue of material fact Shim Decl., 6, Exhibit E. on the merits of the defendant's showing.”) Accessing some of this information could/would have been a violation of HIPAA. 73. In making the decision about whether to Argumentative; misstates the evidence; provide and accommodation for Stumph, Powell did not rely on any documents or information other than the a statement from Stumph about his restrictions, the job description of Deputy Sheriff II, and documents called “Request for Decision Permanent Work Restrictions.” Supporting Evidence: Powell Dep. at 35:20-36:-4, 37:1-4, Shim Decl., J 6, Exhibit E; Statement from Charles Stumph, bates stamped Hearsay, Evid. Code § 1200 Otherwise, undisputed for purposes of this motion. 22 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: DFEH000147-DFEH000148, Shim Decl., 9 17, Exhibit P; Job Description for Deputy Sheriff II, bates stamped DFEH000041- DFEHO000045, Shim Decl., 12, Exhibit K; Request for Decision, Permanent Work Restrictions, bates stamped DFEH000049- DFEHO000052, Shim Decl., 13, Exhibit L. 74. adam Powell, i pat of thie Executive Argumentative; misstates the evidence. Command, did not review any notes or reports by Dr. Knight or Dr. Yee. Asst. Sheriff Powell did review Dr. } } Yee’s restriction that Stumph was Supporting Evidence: “prophylactically precluded from any Powell Dep. at 62:10-22, Shim Decl., 6, very forceful gripping or grasping, Exhibit E. pulling, pushing, and repetitive fine manipulative activity with right hand/wrist.” Throughout the entire interactive process A A 2 : . tative; tates th ; 75 with Charles Stumph, Tracy Zuber did not rgumentative; misstates the evidence review Stumph’s doctor’s notes. Zuber did review Dr. Yee’s restriction } } that Stumph was “prophylactically Supporting Evidence: precluded from any very forceful Zuber Dep. at 131:18-23, Shim Decl., 4, oripping or grasping, pulling, pushing, Exhibit C. and repetitive fine manipulative activity with right hand/wrist.” 76. at fhe August 12; - Estas Argumentative; misstates the evidence. Command meeting, Janet Hayes did not have the doctor’s full report. Hayes did have Dr. Yee’s restriction } } that Stumph was “prophylactically Supporting Evidence: precluded from any very forceful Hayes Dep. at 62:1-4, Shim Decl, { 5, oripping or grasping, pulling, pushing, Exhibit D. and repetitive fine manipulative activity with right hand/wrist.” Accessing some of this information could/would have been a violation of HIPAA and/or the Labor Code. 77. YORK is the county’s third party Immaterial. Sangster v. Paetkau, 68 administrator for the worker’s compensation system, which accepts, denies, investigates claims and provide that information to the employer. Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to 23 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: establish a triable issue of material fact Supporting Evidence: on the merits of the defendant's Hayes Dep. at 23:8-24:10, Shim Decl., 5, | showing.”) Exhibit D. Otherwise, undisputed for purposes of this motion. 78. OCSD did not look at the whole report Argumentative; misstates the evidence. from any of Charles Stumph’s doctors nor spoke to doctors in the entire interactive Accessing some of this information process, but solely relied on the could/would have been a violation of documentation from YORK in making its | gipAA and/or the Labor Code. determination about the reasonable accommodation for Charles Stumph. Supporting Evidence: Zuber Dep. at 131:18-22, 136:17-18, Shim Decl., 4, Exhibit C.; Hayes Dep. at 101:16-22, Shim Decl., { 5, Exhibit D. 79. In 21> FSD did not consider any ORK Argumentative; misstates the evidence. restrictions when determining Accessing some of this information accommodations for Stumph or any other | .;u1d/would have been a violation of employee. HIPAA and/or the Labor Code. Supporting Evidence: Hayes Dep. 101:16-102:11, Shim Decl., q 5, Exhibit D. 80. Lie Eas aie CORALS RHIC, TE Eh SeoSs Argumentative; misstates the evidence. the word “prophylactic” or “prophylactically,” either at the August 12, | yymaterial. Sangster v. Paetkau, 68 2013 meeting or oufside of 1 Cal. App. 4th 151, 162-163 (1998) (“in } } order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Zuber Dep. at 115:5-10, Shim Decl, 4, | responsive evidence sufficient to Exhibit C.; Powell Dep. at 46:8-18, Shim | ogaplish a triable issue of material fact Decl., 16, Exhibit E. on the merits of the defendant's showing.”) 81. At the August 12, 2015 meeting, Tracy Immaterial. Sangster v. Paetkau, 68 Zuber did not bring up the fact that Charles Stumph also uses his left hand to the Executive Command, so Charles Stumph’s Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial 24 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANTS RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: ability to use his left hand was not responsive evidence sufficient to considered by the Executive Command. establish a triable issue of material fact on the merits of the defendant's Supporting Evidence: showing.”) Zuber Dep. at 111:3-20, Shim Decl., | 4, Exhibit C.; Powell Dep. at 44:12, Shim Decl., J 6, Exhibit E. 82. The Execute Commang commitice was Argumentative; misstates the evidence; not provided with any recent police reports Er ee involving Charles Stumph. } } Immaterial. Sangster v. Paetkau, 68 Supporting Evidence: Cal. App. 4th 151, 162-163 (1998) (“in Powell Dep. at 35:2-19, Shim Decl., { 6, order to avert summary judgment the Exhibit E. plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Powell does not recall, at the August 12, J 83. 2015 Executive Command o. having Argumentative; misstates the evidence. any knowledge of Stumph’s job Immaterial. Sangster v. Paetkau, 68 performance from June 2014 to July 2015. Cal. App. 4th 151, 162-163 (1998) (“in } } order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Powell Dep. at 72:22-73:1, Shim Decl., {| responsive evidence sufficient to 6, Exhibit E. establish a triable issue of material fact on the merits of the defendant's showing.”) 84. ais thie: Amgyst 12, 2013 Exeputive Argumentative; misstates the evidence. Command meeting, Powell did not have any knowledge of Stumph’s ability to use firearms from June 2014 to July 2015. Supporting Evidence: Powell Dep. at 73:2-17, Shim Decl., | 6, Exhibit E. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Accessing some of this information could/would have been a violation of 25 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: POBRA. At the August 12, 2015 Executive g : : . ’ A tative; tates th L 22 Command meeting, Powell did not have rgumentatiye; missiles (te gyi denve any knowledge of Stumph’s contact with Immaterial. Sangster v. Paetkau, 63 suspects from June 2014 to July 2015. Cal. App. 4th 151, 162-163 (1998) (“in } } order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Powell Dep. at 73:24-74:3, Shim Decl., { | responsive evidence sufficient to 6, Exhibit E. establish a triable issue of material fact on the merits of the defendant's showing.”) Accessing some of this information could/would have been a violation of POBRA. At the August 12, 2015 Executive co . 86. Command meeting: Powell did nothave Argumentative; misstates the evidence. any knowledge of Stumph’s ability to use Immaterial. Sangster v. Paetkau, 68 firearms from June 2014 to July 2015. Cal. App. 4th 151. 162-163 (1998) (“in } } order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Powell Dep. at 73:2-17, Shim Decl., 16, | responsive evidence sufficient to Exhibit E. establish a triable issue of material fact on the merits of the defendant's showing.”) Accessing some of this information could/would have been a violation of POBRA. 87. at thie: Angst 12; 2013 Exesitive Argumentative; misstates the evidence. Command meeting, Powell did not have any knowledge of Stumph’s arrests or attempted arrests from June 2014 to July 2015. Supporting Evidence: Powell Dep. at 74:4-8, Shim Decl., | 6, Exhibit E. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Accessing some of this information could/would have been a violation of 26 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: POBRA. At the August 12, 2015 Executive i ; 88. Command meeting, Powell did not have Argumentative; misstates the evidence. any knowledge of Stumph’s contact with Immaterial. Sangster v. Paetkau, 68 suspects from June 2014 to July 2015. Cal. App. 4th 151, 162-163 (1998) (“in } } order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Powell Dep. at 73:24-74:3, Shim Decl, | reqponsive evidence sufficient to 6, Exhibit E. establish a triable issue of material fact on the merits of the defendant's showing.”) Accessing some of this information could/would have been a violation of POBRA. 89. OCS 4 id LDS RIES oF ely ofi Job . Argumentative; misstates the evidence. Analysis, which lists the essential functions of the job, during the interactive process Immaterial. Sangster v. Paetkau, 68 with Charles Stumph. Cal. App. 4th 151, 162-163 (1998) (“in } } order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Hayes Dep. at 52:24-53:1, 53:11-17, responsive evidence sufficient to 77:177-19, Shim Decl., 5, Exhibit D. establish a triable issue of material fact on the merits of the defendant's showing.”) 90. LTH: STEEL 12, 2013 a Argumentative; misstates the evidence. Command meeting, the Executive Command did not have a list of essential Immaterial. Sangster v. Paetkau, 63 functions of the job of a deputy sheriff. Cal. App. 4th 151, 162-163 (1998) (“in } } order to avert summary judgment the Supporting Evidence: plaintiff must produce substantial Hayes Dep. at 84:25-85:5, Shim Decl., 5, | responsive evidence sufficient to Exhibit D. establish a triable issue of material fact on the merits of the defendant's showing.”) 91. There is no written evaluation prepared by Immaterial, Sangster v. Pactkan, 68 the OCSD that reports on Stumph’s ability to perform his job based on the restrictions he had prior to the August 12, 2015 Executive Staff meeting. Supporting Evidence: Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact 27 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Hayes Dep. at 67:5-11, Shim Decl., { 5, on the merits of the defendant's Exhibit D. showing.”) 92. Duning five interactive process Gi Argumentative; misstates the evidence. Stumph, Janet Hayes did not rely on any job analysis. Immaterial. Sangster v. Paetkau, 68 ) } Cal. App. 4th 151, 162-163 (1998) (“in Supporting Evidence: order to avert summary judgment the Hayes Dep. at 77:17-19, Shim Decl., 15, | plaintiff must produce substantial Exhibit D. responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Hayes reviewed job descriptions for Deputy Sheriff I and Deputy Sheriff 11 During the whole interactive process with . . . : tative; tates th : 93 Staph, ineluding Aneust 2015, Janet Argumenta ive; missta es the evidence Hayes did not have any document that Immaterial. Sangster v. Paetkau, 68 listed the essential functions of a deputy Cal. App. 4th 151, 162-163 (1998) (“in sheriff. order to avert summary judgment the } } plaintiff must produce substantial Supporting Evidence: responsive evidence sufficient to Hayes Dep. at 77:20-78:1, 84:25-85:5, establish a triable issue of material fact Shim Decl., 5, Exhibit D. on the merits of the defendant's showing.”) Hayes reviewed job descriptions for Deputy Sheriff I and Deputy Sheriff 11 94. Charles Stumph participated in another Argumentative. Interactive Process Meeting on November 24,2015. Supporting Evidence: November 24, 2015 “Interactive Process Meeting” Letter, bates stamped DFEHO000038, Shim Decl., { 11, Exhibit J; November 12, 2015 “Interactive Process Meeting” Letter, bates stamped DFEHO000068, Shim Decl., | 15, Exhibit N. Undisputed that another Interactive Process Meeting was attempted on November 24, 2015. 28 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF'S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: Going into the November 24, 2015 x . 95. Inter re Prouess Meeting, Zier did of Argumentative; misstates the evidence. look at the entire supplemental report from | 7, ber did have Dr. Yee’s restriction Dr. Yee, or any reports from Stumph’s that Stumph was “prophylactically previous doctors. precluded from any very forceful } } gripping or grasping, pulling, pushing, Supporting Evidence: and repetitive fine manipulative activity Zuber Dep. at 131:18-23, Shim Decl., | 4, with right hand/wrist.” Exhibit C. Accessing some of this information could/would have been a violation of HIPAA and/or the Labor Code. 96. Throughout the p roeEs, Janet Hayes never Argumentative; misstates the evidence. saw Dr. Knight’s notes or reports, and had also never reviewed Dr. Yee’s notes. Hayes did have Dr. Yee’s restriction } that Stumph was “prophylactically Supporting Evidence: precluded from any very forceful Hayes Dep. at 108:18-109:4, Shim Decl., q gripping or grasping, pulling, pushing, 5, Exhibit D. and repetitive fine manipulative activity with right hand/wrist.” Accessing some of this information could/would have been a violation of HIPAA and/or the Labor Code. 97. Zuber did not go the November 24, 2015 Argumentative, Interactive Process Meeting with any alternative positions or classifications that were possible for Stumph. Supporting Evidence: Zuber Dep. at 133:6-11, Shim Decl., {4, Exhibit C. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) Scotch v. Art Inst. of California, 173 Cal.App.4th 986, 1018 (2009)(Under California law, “to prevail on a claim ... for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have 29 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: occurred.”) 08 At the November 24, 2015 Interactive A g . ; ; ; rgumentative. Process Meeting, there was no discussion of a reasonable accommodation for Undisputed that there was no discussion Stumph. because Stumph refused to ) } acknowledge he had any disability or Supporting Evidence: work restrictions that required Stumph Decl., 12, 3:9-13, Shim Decl., { accommodations. 3, Exhibit B; Zuber Dep. at 131:24-132:2, Shim Decl., 4, Exhibit C. After the Request for Decision Meetin . 9% | Aupust 12, 2015 Command Staff | Argumentative. meeting), Tracy Zuber did not explore any | immagerial. Sangster v. Paetkau, 68 other positions or classifications as an Cal. App. 4th 151, 162-163 (1998) (“in accommodation for Charles Stumph. order to avert summary judgment the } i plaintiff must produce substantial Supporting Evidence: responsive evidence sufficient to Zuber Dep. at 122:20-24, Shim Decl., 4, | establish a triable issue of material fact Exhibit C. on the merits of the defendant's showing.”) Scotch v. Art Inst. of California, 173 Cal.App.4th 986, 1018 (2009)(Under California law, “to prevail on a claim ... for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.”) 100. Iwas USGI s pragtics at. fhe time of the Argumentative, misstates the evidence. August 12, 2015 meeting to never request a doctor’s note and to only rely on a third party administrator’s summation of the note to understand the context of the work restrictions. Supporting Evidence: Zuber Dep. at 39:11-41:9; 68:9-20, Shim Decl., J 4, Exhibit C. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) OCSD did have Dr. Yee’s restriction 30 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANT’S RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: that Stumph was “prophylactically precluded from any very forceful gripping or grasping, pulling, pushing, and repetitive fine manipulative activity with right hand/wrist.” Tracy Zuber, the Administrative Manager : : . 101. in the Return to Work SAFE office since Argumentative, misstates the evidence. March 2013, does not provide doctor’s Immaterial. Sangster v. Paetkau, 63 notes to the Executive Command as part of Cal. App. 4th 151, 162-163 (1998) (“in the Request for Decision meeting. order to avert summary judgment the } } plaintiff must produce substantial Supporting Evidence: responsive evidence sufficient to Zuber Dep. at 12:23-13:3, 38:2-8, 38:22- | giablish a triable issue of material fact 40:2, Shim Decl., q 4, Exhibit C. on the merits of the defendant's showing.”) Dr. Yee’s restriction that Stumph was “prophylactically precluded from any very forceful gripping or grasping, pulling, pushing, and repetitive fine manipulative activity with right hand/wrist” was provided. 102. Neo, migrmber of fie: Executive Commend Argumentative, misstates the evidence. has ever requested a copy of the doctor’s notes to see the doctor’s analysis in coming to the medical conclusion. Supporting Evidence: Zuber Dep. at 101:11-16, Shim Decl., | 4, Exhibit C. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) The Executive Command had Dr. Yee’s restriction that Stumph was “prophylactically precluded from any very forceful gripping or grasping, pulling, pushing, and repetitive fine manipulative activity with right hand/wrist.” Accessing some of this information could/would have been a violation of 31 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O FACT PLAINTIFF’S ADDITIONAL FACT DEFENDANTS RESPONSE TO NO. AND SUPPORTING EVIDENCE: PLAINTIFE’S ADDITIONAL FACT: HIPAA and/or the Labor Code. 103. Adam Powell, as part of the Executive Argumentative, misstates the evidence, Command, does not ever ask for the analysis of a doctor to see the context of the work restriction, because he believes “how we got there is irrelevant for future issues or litigation, or whatever.” Supporting Evidence: Powell Dep. at 79:7-19, Shim Decl., | 6, Exhibit E Hearsay. Immaterial. Sangster v. Paetkau, 68 Cal. App. 4th 151, 162-163 (1998) (“in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”) DATED: March 16, 2018 Respectfully submitted, LYNBERG & WATKINS A Professional Corporation By: oh NORMAN J. WATKINS PANCY LIN Attorneys for Defendant, ORANGE COUNTY SHERIFF'S DEPARTMENT 32 DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION oe 0 N N U t A W N NN N N N N N N N N e m m e em pm p m em em R N R W D N S N N N R W DN = O Case Name: DFEH v County of Orange, et al. Case No.: ~~ 30-2017-00909186-CU-CR-CJC PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 1100 Town & Country Rd., Suite 1450, Orange, California 92868. On March 16, 2018, I served the foregoing document(s) described as DEFENDANT’S RESPONSE TO PLAINTIFF’S EVIDENCE IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT/ADJUDICATION on the interested parties by placing a true copy thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST: [] BY MAIL: As follows: Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, I deposited such envelope in the mail at Orange, California. [] BY ELECTRONIC TRANSFER via electronic filing service provider: By electronically transmitting the document listed above to ONE LEGAL, an electronic filing and service provider The transmission was reported as complete and without error. [] BY ELECTRONIC MAIL: I caused all of the pages of the above-entitled document to be sent to the recipient(s) noted at the respective email address(es) indicated. [] BY FACSIMILE: I caused all of the pages of the above-entitled document to be sent to the recipient(s) noted via facsimile at the respective telephone numbers indicated above. X BY FEDERAL EXPRESS/OVERNIGHT MAIL: I caused the above-described document to be served on the interested parties noted as follows by Federal Express/Overnight Mail. [1] BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the office(s) of the addressee via messenger. I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on March 16, 2018, at Orange, California. ng el PIA BORETO-MOSH i PROOF OF SERVICE oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O SERVICE LIST: Jon M. Ichinaga, Chief Counsel Paula D. Pearlman, Assistant Chief Counsel Jacob Barak, Staff Counsel DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING 320 W. 4th Street, Suite 1000 Los Angeles, CA 90013 Tel.: (213) 439-6799 Fax: (888) 382-5293 Attorneys for Plaintiff DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING <1) Gabriel J. Bowne Senior Deputy County Counsel OFFICE OF THE ORANGE COUNTY COUNSEL 333 W. Santa Ana Blvd., Suite 407 Santa Ana, CA 92702 Tel. (714) 834-3741 Fax: (714) 834-2359 Co-Counsel for Defendant ORANGE COUNTY SHERIFF'S DEPARTMENT PROOF OF SERVICE