Michael Howard vs. South Orange County Community College District

Opposition

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

W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Darren J. Campbell, Bar No. 223088 Chris M. Heikaus Weaver, Bar No. 231907 John B. Steinhart, Bar No. 313844 Aitken Campbell Heikaus Weaver, LLP 2030 Main St., Suite 1300 Irvine, California 92614 Telephone: (949) 236-4626 Facsimile: (949) 271-4046 Attorneys for Plaintiff MICHAEL HOWARD ELECTRONICALLY FILED Superior Court of Califarnia, County of Orange 10/22/2018 at 10:54:00 AM Clerk of the Superior Court By Monique Ramirez, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE —- CENTRAL JUSTICE CENTER MICHAEL HOWARD, an individual, Plaintiff. V. SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT, a public entity; and DOES 1 through 150, inclusive, Defendants. N a r N r N a SN N a N a N a N a N a N a N a SN N e Case No. 30-2017-00926653-CU-WT-CJC Assigned to: Hon. James Di Cesare Dept: C16 Assigned to: Honorable James J. Di Cesare, Dep’t Cil6 PLAINTIFF MICHAEL HOWARD’S OPPOSITION TO DEFENDANT SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES [Filed concurrently herewith: Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts; Plaintiff’s Compendium of Evidence in Support of His Opposition; Plaintiff’s Objections to Defendant’s Evidence] Date: November 9, 2018 Time: 9:30 a.m. Dept.: C16 Complaint Filed: June 16, 2017 Trial Date: January 28, 2019 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L II. Table of Contents INTRODUGCTION. ooo esse sees esos esos esos esses esses esses es esos esses esses esos ener eres esos ener es ens 1 PLAINTIFF*S UNDISPUTED MATERIAL FACTS. cuss sss sausnammssmassassuss 3 A. Plaintiff Has Suffered From Hearing Impairment Since Birth And Has Worn Hearing Aids Since His Early Twenties, But Has Consistently Held Down Two JOBS. .....ccccovivviiiiiieiiiniencnecece ce 3 B. Defendant’s Decision Makers Were Acutely Aware That Plaintiff Was Hearing Impaired From Before The Time Defendant Hired Plaintiff. ............cccoooiiiiiiiiiiiceccce ce e 4 C. Mr. Cooper Mocked Plaintiff Because Of Plaintiff’s Hearing Impairment And Other Co-Workers Made Jokes About Plaintiff’s Hearing Impairment. .............cocueeieiiiiiiiiniienie eects s eev seas 3 D. Plaintiff Had Problems Communicating With His Supervisors And Co-Workers Because Of His Hearing IMPaITTIENL. .......co.uiiiiiiiieiieeiie cette ceases eee et ee ette este este esas ee ssee este esse aseeensee esse esse anseeenseessse eens 6 E. Exhibit G Was Not The Performance Evaluation Provided To Plaintiff In September 2016 And The Attached Pictorss Ate Not OF BUTIATNG ATO «oo una snus io msm0 5000.0 55550 05505 5055 5556555 5455555 005555555 555 6 F. Plaintiff Complained About Mr. Cooper’s Treatment Of Him And Sought To Engage Defendant In The Interactive Process, But Defendant Failed To Investigate. ...........cccovveeieeiieeniienieeieeeeeiie i ne 7 G. Mr. Hurlbut Admits That He Has No Personal Knowledge Regarding The Facts Or Pictures Attached To EXRIDIT Gi....ooueiiiiiiiiieieii ccri eee sate sae ne eens 4 H. Ms. Graham Admits That She Has No Personal Knowledge Regarding The Facts Or Pictures Aftaghietl Tio ERBIBTY IL susan cosmssmnssssss snsmsenssnsssssiusssi5ss 55555555 55636858558 A558 345 SHS 8 I. Ms. Graham Admitted That Defendant Does Not Consistently Follow Any Policies Regarding Handling Discrimination Complaints, Including Plaintiffs Complaint............ccccovevvieveiiiiiininncnnnn 8 III. APPLICABLE LAW GOVERNING MOTIONS FOR SUMMARY JUDGMENT ........c.cceeueee. 9 IV. LAW & ARGUMENT ......oiitiitii ties eee ste teeteeebeeae ateseeee es beebeee tesa nes 10 A. Defendant Wants The Court To Apply The Wrong Standard For Its Summary Judgment Motion. 10 B. Plaintiff Has Provided Direct Evidence Of Discrimination By A Decision Maker. ..................... 13 C. Even Applying The McDonnell Douglas Test, There Are Triable Issues Of Material Fact That Defendant Terminated Plaintiff Because OF Hs DISABTHEY. wan smmms swmss somsssssas snnnoss snosmssasasssinss sssw s 14 1. Plaintiff Has Provided Evidence Establishing A Prima Facie Case of Disability Discrimination. 14 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Defendants Have Not Proffered A Legitimate Non-Discriminatory Business Reason For B51 1112.9) 12111 A —————— 15 3. Plaintiff Has Provided Substantial Evidence Of PreteXt. .....ooovvvviiiiiiiiiiiiiiiiieeeeee 17 D. There Are Triable Issues Of Material Fact That Defendant Failed To Engage Plaintiff In The TEI ETATHIVE PTOBESES: nn sn cvumnun sisua in sons ,05055.50054558. 45055 5005563 S55 554555 5535443 50 SR SAA SETA RE HA 50 17 E. There Are Triable Issues Of Material Fact That Defendant Failed To Provide Plaintiff With A Reasonable ACCOMMOMALION. .......ouveeitiieieeieieeeeeeeeeeeeeeeeeeeeaeeeeeeeeeeaeaeaeaeaeeeaeee ae ae a seee ae aeseaee eese eaea reneren n s 18 F. There Are Triable Issues Of Material Fact That Defendant Failed To Prevent Discrimination And Retaliation In The WOTKPIaCE.......cc.eeiiiiiieiie ci s eases sree sabe eee eees 19 V. C10. [051 1011 (5 S — 20 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826 (2001) ...ccvviiiiiieee eee eee eee 9 Ash v. Tyson Foods, Inc., 546 U.S. 454 (2000) ........cooruiiiiieiiiieeeiieie eects eset ee eee ae essere ee eivae ee 2,14 Bozzi v. Nordstrom, Inc., 186 Cal. App. 4th 755 (2010) .eoovieeiieiiiiiieie e e eee s es 15 Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864 (2007)...cccueecriiiiiiiienieeieeceeesiee ee evee 2,14 Godwin vt. Hunr Wesson, Inc.; 150 F.3d 1217 (Oth Cit 1998).csusssssss snsssnnsasssainssss ssnissasssinssa ssnussasanuss 2,14 Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317 (2000) .....vviiieieeeiee cesses eee eters eee eee eee 13 Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013) ..cuueiiiiieiiie cece eee 1,10 Husman v. Toyota Motor Credit Corp., 12 Cal. App. 5th 1168 (2017)..cccvevivvniienieeiieienen. 1,10, 11, 12 Lopez v. Univ. Partners, 54 Cal. App. 4th 1117 (1997) eeeuieeieeieeee eee 15 MeDonnell Douglas Carp. v. Green, 411 TS. 792 (1973) cus comssnsmnss on ssssnsnconssnswnss ss susanss a ssussn ss 1,3; 15 Roby v. McKesson Corp., 47 Cal. 4th 686 (2009), as modified (Feb. 10, 2010) ........cccceeevuvreerrerennenn. 3,17 Rowland v. Christian, 69 Cal. 2d 108 (1968) .......ccouiiiiie cies eee eee eee eee eee erases eves eases 9 Slobojan v. Western Travelers Life Ins. Co., 70 Cal. 2d 432 (1969) ......ccoveeoieiicieeeieeeceeeeeeeeeeee 9,16 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) cence 3,15 Stationers Corp. v. Dun & Bradstreet, 62 Cal. 2d 412 (1965) ......oeeoieeiiiieeiee cec eee e 9,16 Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th 954 (2014) ....ccoviiiiiiieieieeieeee eee 18 Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028 (2005) ....ooooriiieiie cei eee eee eves 2 Statutes CAL. CODE CIV. PROC. § 437C (D)(1) teeteeitieeiie etic eesraesaaeeebee ie eeeees 3,9,15,16 CAL, CODBACTY. PROCS $8 A3 TE (LY o.000005.55000 00555555085 5055505000558500558515058585.555005 405508500, 05 00 A 00 FH A HT 10, 16 CAL. CODE CIV. PROC. §§ 437C (2), (P)(2) errr euteeteenrieeieeiteeiteestieetieeeete eest estes sere en e esses ssae s ve annneensens 9,20 CAL. EVID. CODE § 110. iii ete eee etree ee eaat ae eee aae ae estas ae es ennsae ee snsseaeannsnenas 9 CAL. EVID. CODE § 702) .uvvtteeeitieeeeeeiiieeeeitie ee eestieee ee stiste eee esaea ssssssseesesssaeaeannsses esssssseessnssesssnssssseans 3,16 CAL. PENAL CODE § T18(8)..uutteeiuiiieiiiiiieie cites eee teases ee eaae teeta eee estasae ee eaaae ae aessssae ae esnsaeeesnsseaeanssnnens J Other Authorities L-2500 CACT 2505... cetera teste atest ee ebae sateen see ensaeesbe sabe anseeensaeesae esse anseeensee sree saseannns 13 L-2500 CACT 2507... ieee teste sates be atest ee etae sabe as sees ns ae esbe sabe anseeensaeesae esse anseeenseessaesnbeannns 11 L-2500 CACT 2540.....ceeeeiie ete ete ete ete ete testes hae eabe este e see ebbe sabe anse eases esbe esse ansee esas ssae sane annes 12 T-2500 CACTI 2541... t eshte sabe a tees ee ebbe sabe an see e ns ae ebbe esse arse eensaeesae ease annes 19 7 TNT NR rs S 17 Treatises CHIN, WISEMAN, CALLAHAN, & LOWE RUTTER GROUP, CALIFORNIA PRACTICE GUIDE: EMPLOYMENT LITIGATION ....cettitieieieeeteeeeeeeee eee ee eee eee eee atte esas eae teases ae esas esas seas esas esas esas seas aeas esas seas sean seas asse as aeseanee 2,12, 14 Regulations 2 CAL. CODE REGS. 11065(A)(2)(A)(B).eutiiuiereetieerieieeie cierto steet ess s eae eraessee eee esae esse ssaessaensenss esse esnes 15 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. In order for Defendant South Orange County Community College District (“Defendant”) to succeed on its Motion for Summary Judgment, or in the Alternative Summary Adjudication of Issues (the “Motion”), the Court must conclude that there are no triable issues of material fact. This case, however, presents numerous triable issues of material fact that need to be resolved by a jury at trial. Indeed, Defendant identified 91 facts that it deemed “material” in its Separate Statement of Undisputed Material Facts that it filed with this Motion. Out of the 91 “material undisputed” facts identified by Defendant, at least 75 or over 80% are in dispute. | Accordingly, the Court must deny Defendant’s Motion because there is more than one material issue of triable fact. The Motion should also be denied in its entirety for the following factual and legal reasons: o The California Supreme Court’s landmark decision in Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013) and its progeny, the California Court of Appeal case Husman v. Toyota Motor Credit Corp., 12 Cal. App. 5th 1168 (2017), have completely changed the landscape on how California courts handle motions for summary judgment in employment discrimination cases. See Husman, 12 Cal. App. 5th at 1182-87. California courts need no longer apply the burdensome and confusing McDonnell Douglas test when, as here, the employee can rely on a “mixed-motive analysis.” Id. at 1186-88 (discussing how the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (“McDonnell Douglas”) test no longer applies). Indeed, in this context, the framework for summary judgment “requires a court to ask only whether a plaintiff has offered ‘evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) [a protected characteristic] was a motivating factor for the defendant’s adverse employment action.’ Id. at 1185. Here, as described more fully below, Plaintiff has provided substantial evidence for each of the elements of his claims for discrimination and retaliation in violation of California’s Fair Employment and Housing Act (“FEHA”). Accordingly, pursuant to Husman: “If triable issues of material fact exist whether discrimination was a substantial motivating reason for the employer’s adverse employment action, even if the employer’s professed legitimate reason has not been disputed, the FEHA claim is not properly resolved on summary judgment.” Id. at 1186 (emphasis added). !' This does not include the 36 undisputed material facts identified by Plaintiff. 1 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ° Even if the Court believes that the McDonnell Douglas test is still applicable, it does not apply in this case because Plaintiff has provided the Court with direct evidence of discriminatory intent on behalf of Defendant’s admitted decision maker, Vincent Cooper. “Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.” See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (brackets in original; internal quotes omitted). “When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Id. Indeed, such evidence “need be ‘very little.” Id. Furthermore, “a decision maker’s remarks about race, age or gender may be an indicator of discriminatory bias.” CHIN, WISEMAN, CALLAHAN, & LOWE RUTTER GROUP, CALIFORNIA PRACTICE GUIDE: EMPLOYMENT LITIGATION, § 7:360 (“CHIN”). “The strength and credibility of such evidence are for the trier of fact.” Id. Whether the remarks indicate bias depends on the decision maker’s meaning, which “may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006). Here, Mr. Cooper knew that Plaintiff was hearing impaired, he mocked Plaintiff concerning Plaintift’s hearing deficits, and his evaluations concerning Plaintiff’s performance directly related to Plaintiff’s ability to communicate with others. (See Plaintiff’s Undisputed Material Facts (“PUMEF”) 9 6-19.) This direct evidence shows Mr. Cooper’s discriminatory animus towards Plaintiff’s physical disability. ° Finally, even if the Court applies the McDonnell Douglas burden shifting test, the result is the same, which is that the Court must deny Defendant’s Motion. ° Plaintiff has submitted substantial evidence of a prima facie case of disability- based discrimination. See Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007). Namely, Plaintiff suffers from a hearing impairment that affected one of his “special sense organs” and limited a major life activity, hearing. (PUMF § 2, 11-19, 22-24.); see 2 CAL. CODE REGS. 11065(d)(2)(A)-(B). Defendant was fully aware of Plaintiff’s physical disability. (Id. 4 8.) Plaintiff suffered the ultimate adverse employment action of termination. (Id. 34); see Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1054 (2005). There is a causal connection between Plaintiff’s disability and his termination because he was replaced by a non-disabled person. (PUMF 9 36.) Plaintiffs burden 2 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in making out his prima facie case are “minimal requirements” that are not “onerous.” See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). ° Under the McDonnell Douglas test, the burden shifts to the Defendant to provide a legitimate, non-discriminatory business reason for Plaintiff’s adverse employment action. See McDonnell Douglas, 411 U.S. at 802. Here, as set forth in detail in Plaintiff’s Objections to Defendant’s Evidence, Defendant has not provided evidence of a legitimate, non-discriminatory business reason for wrongfully terminating Plaintiff. Indeed, many of the exhibits Defendant attached as evidence to support this Motion lack foundation because the declarants admittedly lack personal knowledge of the events and pictures. (PUMF 9420-21, 25-29); see CAL. CODE CIV. PROC. § 437c(b)(1), (d); CAL. EVID. CODE § 702(a). Furthermore, during Plaintiff’s six-month evaluation, one of the complaints that Mr. Cooper articulated to him was Plaintiffs inability to communicate with his supervisors and co-workers. (PUMF 9 12-19.) The reason why Plaintiff was unable to effectively communicate with his supervisors and co-workers, including Mr. Cooper, was because of his hearing impairment, which Plaintiff complained about to both Mr. Cooper and Defendant. (Id. 99 2, 6-19, & 22-24.) ° Even if the Court believes that Defendant has articulated a legitimate, non-discriminatory business reason for terminating Plaintiff, Plaintiff has provided substantial evidence of pretext. It is undisputed that Mr. Cooper openly mocked Plaintiff specifically for being hearing impaired, as did other co-workers. (PUMF 99 11-19.) Demeaning comments, facial expressions, and gestures made by Mr. Cooper with respect to Plaintiff’s known physical disability “establish a widespread pattern of bias.” (Id.); see Roby v. McKesson Corp., 47 Cal. 4th 686, 709 (2009), as modified (Feb. 10, 2010). Here, the direct evidence of Mr. Cooper’s discriminatory animus towards Plaintiff also shows that the adverse employment action taken by him was pretextual. IL PLAINTIFF’S UNDISPUTED MATERIAL FACTS A. Plaintiff Has Suffered From Hearing Impairment Since Birth And Has Worn Hearing Aids Since His Early Twenties, But Has Consistently Held Down Two Jobs. Plaintiff is 43 years old and was born and raised in Southern California. (PUMF q 1.) Plaintiff’s African-American father raised Plaintiff and his brother. (Id.) Plaintiff suffered from hearing problems 3 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 since his birth. (Id. 42.) Plaintiff started wearing hearing aids to assist him with his hearing deficits when Plaintiff was in his early twenties. (Id.) Plaintiff is a hard-working man, who for the bulk of the past 24 years has worked multiple careers to support his family, including his two daughters. (/d. 9 3.) During his career, Plaintiff has worked as both a professional bellman and butler, and was a member of the butler’s guild. (/d.) Plaintiff moved to Orange County, California in 2010. (Id. 94.) Prior to and while concurrently working for Defendant, Plaintiff was also employed as a Senior Custodian at the University of California, Irvine. (Id. 95.) In that capacity, he was responsible for overseeing 15 custodians, for ordering supplies, for maintaining inventory, and for inspecting 44 on-campus houses with over 1,000 students. (Id.) Plaintiff has received multiple letters of commendation during his tenure at U.C. Irvine and has earned both a Property Management Certification and Facilities Management Certification. (Id.) Plaintiff has also obtained his license with the Institute of Inspection Carpet Restoration relating to water damage, mold remediation, odor control, and carpet cleaning. (Id.) B. Defendant’s Decision Makers Were Acutely Aware That Plaintiff Was Hearing Impaired From Before The Time Defendant Hired Plaintiff. Before Defendant hired Plaintiff, he interviewed for Defendant’s Custodian position in March 2016 with, inter alia, Jeff Hurlbut. (PUMF 9 6.) Defendant has admitted that Mr. Hurlbut was one of the decision makers regarding the decision to terminated Plaintiff’s employment. (See Mtn. at 11:8-10.) During the interview, Plaintiff wore his very noticeable hearing aids. (PUMF 4] 6.) Furthermore, for the first two to three months of his employment with Defendant, Mr. Hurlbut was Plaintiff’s direct supervisor and they interacted on several occasions. (Id. § 7.) Indeed, Defendant admitted in response to Plaintiff’s Request for Admission No. 3 that, “it was aware that Plaintiff used hearing aids for purported hearing impairments.” (Id. § 8.) While working, Plaintiff would often take out his hearing aids because his sweat would short circuit the batteries. (/d. 9.) However, Plaintiff would wear headphones while he worked (not playing music), so that his supervisors, including both Messrs. Hurlbut and Cooper, and co-workers would be reminded to speak directly to him and not behind his back or from a distance. (Id.) Plaintiff recalls having conversations with both Messrs. Hurlbut and Cooper regarding this issue. (/d.) In fact, at one 4 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 point, Plaintiff was reprimanded by Mr. Cooper for wearing the headphones and had to remind Mr. Cooper why Plaintiff wore the headphones in the first place. (Id. 9 10.) C. Mr. Cooper Mocked Plaintiff Because Of Plaintiff’s Hearing Impairment And Other Co-Workers Made Jokes About Plaintiff’s Hearing Impairment. Prior to Mr. Cooper being appointed Defendant’s Night Operations Supervisor (“NOS”), Mr. Hurlbut testified that he did not “recall” any verbal or written reprimands of Plaintiff, which was while Mr. Hurlbut was Plaintiff’s direct supervisor. (PUMF q 11.) However, on June 21, 2016, immediately after Mr. Cooper was appointed Defendant’s NOS, and at the same time that Mr. Cooper learned of Plaintiff’s hearing disability, another of Plaintiff’s supervisors, Robert McKee, purportedly sent three e- mails within a 34-minute timeframe that Defendant now contends shows that Plaintiff’s work was substandard. (See Def.’s Exh. D.) However, this is the same employee that made a “joke” regarding Plaintiff’s inability to hear and that Plaintiff needed “hearing aids.” (PUMF 9 12.) Ironically, Defendant argues that the Court should grant its summary judgment motion because Plaintiff “failed to provide even one example of Cooper making remarks regarding his disability.” (Mtn. at 11:10-12 (emphasis added).) While Plaintiff disputes that he did not provide Defendant with contemporaneous evidence of Mr. Cooper making disparaging remarks to him (that he was unable to recall at deposition over a year and a half later), this argument is the equivalent of asking the Court to grant summary judgment because a blind person did not see a supervisor commit a discriminatory act. (PUMF 9 13.) Not only did Mr. Cooper make comments to Plaintiff, some of which Plaintiff heard and reported (but some of which Plaintiff might not have heard), Mr. Cooper made demeaning facial expressions and gestures to Plaintiff. (/d. § 14.) This included Mr. Cooper cupping his hands over his ears and saying with respect Plaintiffs hearing aids: “Aren’t those things big like this?” (Id.) Mr. Cooper then said, “how else are we supposed to communicate with you by sign language?” (Id.) When he said this to Plaintiff, Mr. Cooper made an indecipherable gesture with his hands that mocked sign language that Plaintiff found demeaning. (/d.) These types of interactions, not only with Mr. Cooper, but Plaintiff’s co-workers, including Mr. McKee, continued throughout Plaintiff’s employment with Defendant. (Id.) For example, instead of text messaging or slowing and clearly articulating directions to Plaintiff, Messrs. Cooper and McKee would often cup their hands around their mouths and yell 5 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 directions at Plaintiff. (Id. 9 15.) When Plaintiff complained about this discriminatory treatment to Defendant’s Human Resources Department and the Facilities Director, nothing was done about it. (Id.) D. Plaintiff Had Problems Communicating With His Supervisors And Co-Workers Because Of His Hearing Impairment. Plaintiff was also accused of coming across as “indifferent” to his supervisors and co-workers, which is directly related to Plaintiff’s inability to communicate with them due to his hearing deficits. (PUMF 9 16.) Plaintiff also complained to Mr. Cooper that he was not able to hear communications over the radio. (Id. § 17.) Indeed, during a meeting in which Mr. Cooper was discussing his six-month evaluation with Plaintiff, Mr. Cooper identified Plaintiff’s inability to communicate with his supervisors and co-workers as shortfall in Plaintiff’s performance. (Id. 18.) This was shocking to Plaintiff because the reason why Plaintiff has an inability to communicate with people is because of his hearing impairment. (Id.) Plaintiff is not indifferent, he just cannot hear what people are saying to him. (/d.) Plaintiff was also accused of not attending certain meetings or arriving to certain meetings late. (Id. 19.) Again, the reason for this was because Plaintiff was unaware of the meetings because it was either communicated over the radio, which Plaintiff oftentimes could not hear and he communicated that issue to his supervisors, or because he was orally informed and he could not hear the time of the meeting. (Id.) All of this could have easily been resolved had Defendant simply provided Plaintiff with the information in written or electronic format (e.g., via text messaging). (Id.) E. Exhibit G Was Not The Performance Evaluation Provided To Plaintiff In September 2016 And The Attached Pictures Are Not Of Building A-200. Defendant included as Exhibit G, a document that it purports was the Performance Evaluation provided to Plaintiff in September 2016. (See Def.’s Exh. G.) This is not the Performance Evaluation that Mr. Cooper provided to Plaintiff in September 2016. (PUMF 4 20.) Exhibit G was not signed by anyone, including Plaintiff, Mr. Cooper, or Mr. Cooper’s supervisor, which as a formal document, it should have been signed by at least Plaintiff and kept in his personnel file as such. (Id.; see Def.’s Exh. G, p. 14.) The Performance Evaluation that Mr. Cooper provided to Plaintiff was much smaller, less detailed, contained fewer sections, and contained only four pictures. (PUMF 4] 20.) Furthermore, Plaintiff does not recognize the pictures attached to Exhibit G as being associated with Building A-200, 6 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which, again, should have been maintained in Plaintiff’s personnel file and signed by Plaintiff. (/d. 20-21.) Indeed, the vast majority of the pictures attached as Exhibit G could be from many of the buildings at Irvine Valley College, including buildings A-100, A-300, and A-400. (PUMF q 21.) Exhibit G appears to have been fabricated after Plaintiff made complaints in September 2016 and after his termination. (/d.) Indeed, simply looking at the pictures attached to Exhibit G, it is not possible that those pictures (or at least some of them) could have been attached in September 2016 as they are labelled October 2016. (Id.) Accordingly, Mr. Hurlbut’s declaration is nothing more than a tissue of lies and document of deceit that amounts to perjury.> F. Plaintiff Complained About Mr. Cooper’s Treatment Of Him And Sought To Engage Defendant In The Interactive Process, But Defendant Failed To Investigate. After his meeting with Mr. Cooper in September 2016 regarding his performance, Plaintiff sent an e-mail to Defendant’s Human Resources department. (PUMEF q 22.) In this e-mail, Plaintiff made complaints to Gloria Garcia, who Plaintiff understood to be Defendant’s Human Resources Specialist, regarding what Plaintiff perceived to be discriminatory treatment. (I/d.) Plaintiff also understood at the time that he was engaging Defendant in the interactive process relating to his physical disability, hearing impairment. (Id.) After sending the September 20, 2016 e-mail, Defendant did not ever engage Plaintiff] in the interactive process or provide him with a reasonable accommodation, like providing him with written or electronic communications instead of forcing Plaintiff to use the radio or being yelled at by Plaintiff’s supervisors. (Id. 423.) Furthermore, Defendant never investigated the complaints set forth in Plaintiff’s September 20, 2016 e-mail to Ms. Garcia. (Id. § 24.) Indeed, the only investigation that Plaintiff is aware that Defendant conducted relating to his complaints occurred well after his termination. (Id.) G. Mr. Hurlbut Admits That He Has No Personal Knowledge Regarding The Facts Or Pictures Attached To Exhibit G. As a threshold matter, Mr. Hurlbut’s declaration was neither expressly made based on personal knowledge nor on information and belief. (PUMF 9 20.) Furthermore, as set forth above, Exhibit G 2 California Penal Code section 118 states in pertinent part: “every person who...declares...under penalty of perjury in any of] the cases in which the...declarations...[are] permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.” CAL. PENAL CODE § 118(a). 7 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does not contain any signatures, which was a violation of Defendant’s policies; and, Plaintiff disputes the authenticity of the pictures attached thereto. (PUMF 99 20-21; see Def.’s Exh. G, p. 14.) Mr. Hurlbut declared under penalty of perjury that he “assisted in preparing Plaintiff’s six-month evaluation,” but contradicted that testimony by stating under oath at his deposition that he did not “participate in creating this document.” (PUMF 9 25.) Furthermore, Mr. Hurlbut had to admit during his deposition that he had no personal knowledge of the “events detailed in” the purported Performance Evaluation, which is consistent with the fact that his declaration was not based on personal knowledge. (Id. 926.) With respect to the pictures attached to Plaintiff’s purported Performance Evaluation, Mr. Hurlbut had no personal knowledge regarding time or date of when those pictures were taken. (/d. § 27.) With respect to the location of the pictures, Mr. Hurlbut could only testify generally that he believed based on some of the pictures that the location was Building A-200, but not the “zoomed” in pictures. (Id. 928.) In fact, Mr. Hurlbut had to admit that he had no personal knowledge of the list of purported performance deficiencies identified in his declaration at paragraph 16. (Id. 929.) In sum, the Court cannot rely on Mr. Hurlbut’s declaration for anything as it lacks any evidentiary value. H. Ms. Graham Admits That She Has No Personal Knowledge Regarding The Facts Or] Pictures Attached To Exhibit M. Similar to Mr. Hurlbut’s declaration, Ms. Graham’s declaration is neither expressly based on personal knowledge or based on information and belief. (PUMF 9 30.) And, as night follows day, Ms. Graham was forced to admit during her deposition that the declaration she submitted was not based on personal knowledge. (Id.) For example, in her declaration at paragraph 2, Ms. Graham states that in preparing her declaration, she “reviewed documents, including, but not limited to, Plaintiff’s personnel file.” (Id.) However, she admitted in her deposition that she has not “personally” reviewed Plaintiff’s personnel file since December 2016. (Id. (Dep. of E. Graham Vol. II, 35:2-15).) This includes Exhibit M and all of the facts and pictures contained within that Exhibit. (Id.) I. Ms. Graham Admitted That Defendant Does Not Consistently Follow Any Policies Regarding Handling Discrimination Complaints, Including Plaintiff’s Complaint. Ms. Graham attached as Exhibit J through L to her declaration certain of Defendant’s policies relating to discrimination and harassment in the workplace. (PUMF § 31.) However, she admitted 8 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under oath that she has no personal knowledge that Plaintiff ever received these documents or was ever made aware of these documents. (Id. § 32 (Dep. of E. Graham Vol. II, 38:12-39:24).) On September 20, 2016, Plaintiff complained to Defendant regarding what he considered to be discrimination based on his disability. (Id. 4 23-24.) Yet, since according to Ms. Graham’s testimony, every situation is “unique,” Defendant does not have a consistent policy on how to approach every complaint made by an employee regarding discrimination. (PUMF 9] 33.) III. APPLICABLE LAW GOVERNING MOTIONS FOR SUMMARY JUDGMENT “The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial.” Rowland v. Christian, 69 Cal. 2d 108, 111 (1968). “[T]he affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” Stationers Corp. v. Dun & Bradstreet, 62 Cal. 2d 412, 417 (1965) (emphasis added); Slobojan v. W. Travelers Life Ins. Co., 70 Cal. 2d 432, 437 (1969). “A defendant moving for summary judgment bears the burden of showing that a cause of action has no merit because plaintiff cannot establish an element of the claim or because defendant has a complete defense.” See Garibay v. Hemmat, 161 Cal. App. 4th 735, 741 (2008). Only if the defendant can make this showing, does the burden then shift to “the plaintiff opposing the summary judgment motion to establish that a triable issue of fact exists as to these issues.” Id. (applying California Code of Civil Procedure sections 437c(a), (p)(2)). “‘[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact....”” Id. (quoting Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 850 (2001)). The burden of production involves the presentation of evidence. See id.; CAL. EVID. CODE § 110. “A prima facie showing is one that is sufficient to support the position of the party in question.” Aguilar, 25 Cal. 4th at 851. In order to “meet the burden of production, the party moving for summary judgment must support that motion ‘by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.’ Garibay, 161 Cal. App. 4th at 741; CAL. CODE C1v. PROC. § 437c (b)(1). The cee supporting affidavits or declaration provided by the moving party “‘shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is 9 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 competent to testify to the matters stated in the affidavits or declarations.” Id.; CAL. CODE CIV. PROC. § 437c(d). IV. LAW & ARGUMENT A. Defendant Wants The Court To Apply The Wrong Standard For Its Summary Judgment Motion. For decades attorneys and courts have used the three-part, burden-shifting McDonnell Douglas test to analyze claims, in particular on summary judgment. That test, as noted by the California Supreme Court, “presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate.” Harris, 56 Cal. 4th at 215. However, the Supreme Court explicitly ruled in Harris that a plaintiff in an employment discrimination case does not need to prove that discrimination is the single motive for the adverse employment action. Rather, the Harris Court held that an employer may have “mixed” motives and that the plaintiff can still prevail, so long as discrimination was “a substantial motivating factor.” Id. at 232. The Supreme Court in Harris was reviewing a jury verdict, not a summary judgment motion. Its direct holding concerned, among other things, the legal effect of a mixed motive case and the proper way to instruct a jury on the issue of discriminatory intent and the mixed motive defense. But, the case has immense implications for the continued validity of the McDonnell Douglas test, even if those were not immediately recognized. 1. Harris Effectively Overruled The McDonnell Douglas Test. The Court of Appeal finally did recognize some of those implications in Husman. The Husman Court specifically addressed the application of the McDonnell Douglas to a “mixed-motive case.” See Husman, 12 Cal. App. 5th at 1182. The Husman Court reasoned that Harris’ “mixed-motive analysis translates readily to the summary judgment context.” Id. at 1184. The Husman Court found the Harris mixed-motive analysis fundamentally inconsistent with McDonnell Douglas and found that numerous federal appellate courts had held the same. The Husman Court held that rather than the McDonnell Douglas burden shifting test the trial court on summary judgment need only ask “whether a plaintiff has offered evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff and (2) a protected characteristic was a motivating factor for the defendant’s adverse 10 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employment action.” Id. at 1185. The focus on summary judgment should not shift to the employer’s non-discriminatory business reason and the issue of pretext, but remain focused on the issue of discriminatory intent: “If triable issues of material fact exist whether discrimination was a substantial motivating reason for the employer’s adverse employment action, even if the employer’s professed legitimate reason has not been disputed, the FEHA claim is not properly resolved on summary judgment.” Id. at 1186. The Husman Court, however, still seemed to mark “mixed-motive” cases as some special subset of employment discrimination cases. But they are not. In reality, every employment discrimination case that hinges “upon proof of the employer’s motivation” is a mixed-motive case. See CHIN, § 9:2126.1. In terms of doctrine, the ultimate burden of an employment discrimination plaintiff is to prove that the protected characteristic was “a substantial motivating factor” for the adverse employment action. The key word here is “a.” Indeed, the approved jury instructions explain precisely what this means: “A ‘substantial motivating reason’ is a reason that actually contributed to the [specify adverse employment action]. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the [adverse employment action].” 1-2500 CACI 2507. Thus, an employment discrimination plaintiff never has to demonstrate that “a single reason” motivated the adverse action and that the solitary reason was discrimination. Indeed, under the same decision defense in Harris, even if the employer proves that it would have made the same adverse employment decision regardless of discrimination, the plaintiff still prevails. Thus, summary judgment is inappropriate even if the undisputed facts show that the employer would prevail on a same decision affirmative defense. To put it more simply, the McDonnell Douglas test determines whether discrimination is the reason for the adverse employment action. But, at trial the plaintiff need only prove that discrimination is a reason. Therefore, the McDonnell Douglas test is no longer good law for employment discrimination claims in California. See Husman, 12 Cal. App. 5th at 1182-87. In sum, the McDonnell Douglas test has outlived its usefulness. It was originally created decades ago to guide courts in applying new statutes that created brand new causes of action for employment discrimination. But the law and society both evolve. The McDonnell Douglas test did not evolve, and it no longer accurately states the law. The McDonnell Douglas test does not apply in mixed 11 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 motive cases, and every case is, in effect, a mixed motive case. Husman, 12 Cal. App. 5th at 1182-87; see CHIN, § 9:2126.1. The courts need no special test to guide them on summary judgment. Rather, they need only ask, as they would in any other case, whether “triable issues of material fact exist whether discrimination was a substantial motivating reason for the employer’s adverse employment action.” Husman, 12 Cal. App. 5th at 1186. 2. Plaintiff Has Provided Substantial Evidence To Support Each Of The Elements Of His Claims. a. Disability-Based Discrimination. The CACI jury instruction for Disability Discrimination requires the plaintiff to prove: (1) That Defendant was a covered employer; (2) That Plaintiff was an employee of Defendant; (3) That Defendant knew that Plaintiff had physical condition that limited a major life activity; (4) That Plaintiff was able to perform the essential job duties with a reasonable accommodation; (5) That Defendant discharged Plaintiff; (6) That Plaintiff’s physical condition was a substantial motivating reason for Defendant’s decision to discharge Plaintiff; (7) That Plaintiff was harmed; and (8) That Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. See CACI 2540. Here, there is no dispute whatsoever with respect to elements 1, 2, 5, 7, or 8. (See PUMF 4 8, 34-35.) Defendant argues that its decision makers, Messrs. Hurlbut and Cooper, had no knowledge of Plaintiff’s disability. This is pure chutzpah. Not only did Defendant admit in RFA No. 3 that it had knowledge of Plaintiff’s hearing impairment, but Plaintiff has provided substantial evidence that Mr. Hurlbut knew of Plaintiff’s disability before Plaintiff was even employed and Mr. Cooper knew about his disability shortly after becoming the NOS. (See PUMF qq 6-19.) Plaintiff has also provided substantial evidence that he was capable of performing the essential functions of his job duties with a reasonable accommodation. (See PUMF 9 3-19.) So, the real inquiry comes down to whether there is a triable issue of material fact whether “Plaintiff’s physical condition was a substantial motivating reason for Defendant’s decision to discharge Plaintiff.” Here, there is, at a minimum, a triable issue of material fact whether Plaintiff’s disability was a substantial motivating reason for his termination. Mr. Cooper mocked and joked about Plaintiff’s disability openly in front of Plaintiff as did other employees of Defendant. (/d. 4 11-19.) Mr. Cooper 12 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 demeaned Plaintiff’s disability using physical hand gestures. (/d.) Mr. Cooper fabricated a reason to terminate Plaintiff after Plaintiff complained about the discriminatory practices. (Id. 44 22-29.) Indeed, Mr. Cooper specifically referenced Plaintiffs inability to communicate with others as a reason for his poor performance evaluation and ultimately the decision to terminate Plaintiff. (/d. 99 13-19.) b. Retaliation In Violation Of California’s FEHA. The CACI jury instruction for Retaliation in violation of FEHA requires the plaintiff to prove: (1) That Plaintiff made a protected complaint to Defendant; (2) That Defendant discharged Plaintiff; (3) That Plaintiff’s making of the protected complaint was a substantial motivating reason for Defendant’s decision to discharge Plaintiff; (4) That Plaintiff was harmed; and (5) That Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. See CACI 2505. Here, there is really no dispute that Plaintiff made a protected complaint on September 20, 2016. (PUMF 9 23-24.) And, there is no dispute that Defendant terminated Plaintiff's employment, that Plaintiff was harmed, and that Defendant’s conduct was the only factor in causing that harm. (Id. q 34.) So, again, the inquiry turns on whether “Plaintiff’s making of the protected complaint was a substantial motivating reason for Defendant’s decision to discharge Plaintiff.” And, again, there is a triable issue of material fact regarding that question. There is substantial evidence is that Mr. Cooper fabricated what Defendant attached as Exhibit G to the Motion and labelled as Plaintiff’s September 2016 Performance Evaluation. (PUMF 99 20-21 & 25-29.) Indeed, it is impossible for Exhibit G to be authentic because while the Performance Evaluation is dated “9/19/2016,” there is at least one picture dated October 29, 2016. (Compare Exh. G, p. 1 (DRTP 000110), with Exh. G, p. 23 (DRTP 000132).) “The authorities suggest that, in an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions.” Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 363 (2000). Here, a jury needs to decide exactly what inference should be accorded to Defendant’s deception. B. Plaintiff Has Provided Direct Evidence Of Discrimination By A Decision Maker. A claim of employment discrimination may be proved by direct evidence of the decision maker’s discriminatory intent. “Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.” See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 13 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (9th Cir. 1998) (brackets in original; internal quotes omitted). “When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Id. Indeed, such evidence “need be ‘very little.”” Id. Furthermore, “a decision maker’s remarks about race, age or gender may be an indicator of discriminatory bias.” CHIN, § 7:360. “The strength and credibility of such evidence are for the trier of fact.” Id. Whether the remarks indicate bias depends on the decision maker’s meaning, which “may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (holding that use of “boy” can evidence racial bias). Here, one of the admitted ultimate decision makers, Mr. Cooper, openly mocked and joked about Plaintiff’s disability in front of Plaintiff only a few months prior to his termination. (PUMF q§ 11-19.) Mr. Cooper also made demeaning gestures regarding the use of sign language to communicate with Plaintiff. (Id.) Finally, one of the specific reasons given to Plaintiff regarding his purported deficit performance was his inability to communicate with his supervisors and co-workers. (PUMF 9 12-19.) All of these acts show direct discriminatory animus on behalf of one of the individuals that Defendant admits made the decision to terminate Plaintiff. Tellingly, Defendant failed to include in any of its evidence supporting this Motion either a declaration or deposition testimony from Mr. Cooper regarding the issues in this case, including any explanation regarding his actions. This is a startling failure and would itself be the subject of an adverse inference at trial. CACI 203 (“If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence.”). C. Even Applying The McDonnell Douglas Test, There Are Triable Issues Of Material Fact That Defendant Terminated Plaintiff Because Of His Disability. 1. Plaintiff Has Provided Evidence Establishing A Prima Facie Case of Disability Discrimination. “A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do [his] job; and, (3) he was subjected to adverse employment action because of [her] disability.” Faust, 150 Cal. App. 4th at 886. Here, Plaintiff has provided substantial evidence supporting all three elements. First, Plaintiff was hearing impaired. (PUMF 9 2, 6-10.) There can really be no dispute that he had a 14 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “disorder or condition” that affected “one or more of the following body systems:...special sense organs” and limited “a major life activity,” hearing. See 2 CAL. CODE REGS. 11065(d)(2)(A)-(B) (defining “Physical Disability” for purposes of FEHA). Moreover, Defendants have not proffered any evidence that Plaintiff did not suffer a physical disability. Second, there is a dispute that Plaintiff was qualified to perform his job. Plaintiff has provided substantial evidence from which a jury could easily infer that he was more than capable of performing his job duties, including evidence that he was concurrently a Senior Custodian at U.C. Irvine. (PUMF 99 3-5.) Moreover, based on Defendant’s deception, there is no competent evidence before the Court regarding Plaintiff’s inability to perform his job duties. (PUMF 9 20-21 & 25-29); Bozzi v. Nordstrom, Inc., 186 Cal. App. 4th 755, 761 (2010) (“The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.”) Here, as will be discussed in further detail below, the declarations submitted by Mr. Hurlbut and Ms. Graham are inadmissible because the declarations are not based on personal knowledge. See CAL. CODE Civ. PROC. 437¢(b)(1), (d); Lopez v. Univ. Partners, 54 Cal. App. 4th 1117, 1124 (1997) (“Declarations based on information and belief are insufficient to satisfy the burden of either the moving or opposing party on a motion for summary judgment or adjudication.”) Finally, Plaintiff suffered the ultimate adverse employment action, termination. (PUMF q 34). There is a causal connection between Plaintiff’s disability and his termination because he was replaced by a non-disabled person. (PUMEF 9 36.) Plaintiff’s burden in making out his prima facie case are “minimal requirements” that are not “onerous.” See St. Mary’s Honor Ctr., 509 U.S. at 506. 2. Defendants Have Not Proffered A Legitimate Non-Discriminatory Business Reason For Terminating Plaintiff. Under the McDonnell Douglas test, the burden shifts to the Defendant to provide a legitimate, non-discriminatory business reason for Plaintiff’s adverse employment action. See McDonnell Douglas, 411 U.S. at 802. However, Defendant did not provide the Court with a legitimate, non-discriminatory business reason for terminating Plaintiff because the evidence Defendant submitted is inadmissible. 15 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” CAL. CODE C1v. PROC. § 437¢(d). Indeed, the bulk of the declarations and most of the exhibits Defendant attached as evidence to support this Motion lack foundation because the declarants admittedly lack personal knowledge of the events and exhibits. (PUMF 99 20-21, 25-33.); see CAL. CODE CIV. PROC. § 437¢(b)(1), (d); CAL. EVID. CODE § 702(a). With its Motion, Defendants attached the declarations of three individuals: (1) Jeffrey Hurlbut, (2) Ettie Graham, and (3), its attorney, Matthew Wallin. In Mr. Wallin’s declaration, he states under penalty of perjury that “I have personal knowledge of all the facts stated herein....” (Declaration of Matthew Wallin, 4 2.) There is no such statement in either the declaration of Mr. Hurlbut or Ms. Graham. (See Declaration of Jeffrey Hurlbut and Declaration of Ettie Graham.) Indeed, the vast majority of the substantive portions of the declarations of Mr. Hurlbut and Ms. Graham are obviously not based on personal knowledge and are chock full of inadmissible hearsay statements. (See id.; Pltf.’s Objs. To Def.’s Evidence.) In fact, Ms. Graham states that in preparing her declaration, she “reviewed documents, including, but not limited to, Plaintiff’s personnel file.” (PUMF 4 30.) However, she admitted in her deposition that she has not “personally” reviewed Plaintiff’s personnel file since December 2016. (Id. (Dep. of E. Graham Vol. II, 35:2-15).) Simply put, there are serious “doubts as to the propriety” of granting this Motion, because in strictly construing the “affidavits of the moving party,” the Court must conclude that Defendant has in fact not presented admissible evidence to support its arguments. See Stationers Corp., 62 Cal. 2d at 417; Slobojan, 70 Cal. 2d at 437. Substantively, Defendant did not articulate a legitimate, non-discriminatory business reason for terminating Plaintiff because during Plaintiff’s six-month evaluation, one of the complaints that Mr. Cooper articulated to him was Plaintiff’s inability to communicate with his supervisors and co-workers. (PUMF 9 12-19.) The reason why Plaintiff was unable to effectively communicate with his supervisors and co-workers, including Mr. Cooper, was because of his hearing impairment, which Plaintiff complained about to both Mr. Cooper and Defendant. (Id. 4 2, 6-19, & 22-24.) 16 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Plaintiff Has Provided Substantial Evidence Of Pretext. Even if the Court believes that Defendant has articulated a legitimate, non-discriminatory business reason for terminating Plaintiff (which it has not), Plaintiff has provided substantial evidence of] pretext. It is undisputed that Mr. Cooper openly mocked Plaintiff specifically for being hearing impaired, as did other co-workers. (PUMF 4 11-19.) Demeaning comments, facial expressions, and gestures made by Mr. Cooper with respect to Plaintiff’s known physical disability “establish a widespread pattern of bias.” (Id.); see Roby, 47 Cal. 4th at 709. Here, the direct evidence of Mr. Cooper’s discriminatory animus towards Plaintiff also shows that the adverse employment action taken by him was pretextual. Indeed, as set forth above, Plaintiff’s inability to effectively communicate with his supervisors and co-workers, including Mr. Cooper, was one of Mr. Cooper’s reasons for Plaintiff’s purported poor performance. (Id. 49 6-19 & 22-24.) This is directly related to Plaintiff’s hearing impairment. (/d.) D. There Are Triable Issues Of Material Fact That Defendant Failed To Engage Plaintiff In The Interactive Process. A claim for failure to engage in the interactive process requires Plaintiff to prove: (1) That Defendants were employers; (2) That Plaintiff was an employee of Defendants; (3) That Plaintiff had a physical disability that was known to Defendants; (4) That Plaintiff requested that Defendants make a reasonable accommodation for his physical disability so that he would be able to perform the essential job requirements; (5) That Plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that he would be able to perform the essential job requirements; (6) That Defendants failed to participate in a timely good-faith interactive process with Plaintiff to determine whether a reasonable accommodation could be made; (7) That Plaintiff was harmed; and (8) That Defendant’s failure to engage in a timely good-faith interactive process was a substantial factor in causing Plaintiff’s harm. See 1-2500 CACI 2546. Plaintiff has provided the Court with substantial, indisputable evidence regarding each of the elements of failing to engage in the interactive process. (See PUMF 94 2, 11-19, 22-24, & 34-35.) Accordingly, the Court must deny Defendant’s Motion. 17 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “An employer or other covered entity shall initiate an interactive process when: []] (1) an applicant or employee with a known physical or mental disability or medical condition requests reasonable accommodations, or [] (2) the employer or other covered entity otherwise becomes aware of] the need for an accommodation through a third party or by observation.” 2 CAL. CODE REGS. 11069(b)(1)-(2) (emphasis added). Plaintiff initiated the interactive process by requesting a reasonable accommodation, and Defendant was obligated to initiate the interactive process based on its own observations. Id.; (PUMF 9 6-10 & 22-24.) On September 20, 2016, Plaintiff e-mailed Defendant’s Human Resources department regarding his inability to communicate with his supervisors. (PUMF qf 22-24.) In that e-mail, Plaintiff clearly informed Defendant that he wore hearing aids, he had communicated that fact to his direct supervisor, that wearing his hearing aids while working caused a short circuit in the battery, and that he needed another method of communication to effectively perform his job duties. (/d.) Defendant did nothing to engage Plaintiff in the interactive process, including communicating with Plaintiff in a method other than oral communication (e.g., electronic communication, such as text messaging or e-mail or some type of sign language). (Id.) “Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. ‘Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.”” Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th 954, 971-72 (2014) (internal citations omitted). Indeed, “[e]ach party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” Id. Here, the interactive process broken down because Defendant failed to even address Plaintiff’s request for an accommodation. (PUMF 9 6-10 & 22-24.) E. There Are Triable Issues Of Material Fact That Defendant Failed To Provide Plaintiff With A Reasonable Accommodation. In order for Plaintiff to establish a claim for failure to provide a reasonable accommodation, he must prove the following elements: (1) That Defendants were employers; (2) That Plaintiff was an employee of Defendants; (3) That Plaintiff had a physical disability that limited any of the following 18 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 major life activities: hearing; (4) That Defendants knew of Plaintiff’s physical disability that limited one of his major life activities; (5) That Plaintiff was able to perform the essential job duties with a reasonable accommodation for his physical disability; (6) That Defendants failed to provide a reasonable accommodation for Plaintiff’s physical disability; (7) That Plaintiff was harmed; and (8) That Defendant’s failure to provide a reasonable accommodation was a substantial factor in causing Plaintiff’s harm. See 1-2500 CACI 2541. Again, Plaintiff has provided the Court with substantial evidence regarding each of the elements for a claim for failure to provide a reasonable accommodation. (See PUMF 9 2, 11-19, 22-24, & 34-35.) Accordingly, the Court must deny Defendant’s Motion. Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation, which Plaintiff did on September 20, 2016. (PUMF 9] 22-24.) Second, the requested accommodation must be reasonable, and Defendant must fail to provide it. (Id.) F. There Are Triable Issues Of Material Fact That Defendant Failed To Prevent Discrimination And Retaliation In The Workplace. Defendant’s first argument is that a “plaintiff cannot maintain a failure to prevent claim if the plaintiff cannot establish the underlying discrimination [or retaliation].” (Mtn. at 15:13-15.) Here, Plaintiff has provided substantial, indisputable evidence supporting both his discrimination and retaliation claims. Accordingly, Defendant’s argument fails. Defendant next argues that because it had discrimination and retaliation policies in place and because those policies were distributed to Plaintiff, Defendant cannot be liable for failure to prevent discrimination and retaliation. Assuming arguendo that Defendant’s argument is true, which it is not, there is still a triable issue of material fact regarding Plaintiff’s claim for failure to prevent discrimination and retaliation because Defendant failed to prove that Plaintiff ever received its discrimination and retaliation policies. (See PUMF 23-24, 31-33.) “A defendant moving for summary judgment bears the burden of showing that a cause of action has no merit because plaintiff cannot establish an element of the claim or because defendant has a complete defense.” See Garibay, 161 Cal. App. 4th at 741. Only if the defendant can make this showing, does the burden then shift to “the plaintiff opposing the summary judgment motion to establish that a triable issue of fact exists as to these 19 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES w s W N Oo © NN AN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issues.” Id. (applying California Code of Civil Procedure sections 437c(a), (p)(2)). Here, as discussed above and in Plaintiff's Objections to Defendant’s Evidence, Ms. Graham’s declaration is woefully inadequate, lacks personal knowledge, and Defendant failed to prove that Plaintiff ever received Defendant’s purported policies. (PUMF 23-24, 31-33.) Furthermore, Ms. Graham’s deposition testimony made clear that Defendant did not always follow its policies regarding discrimination and retaliation. (/d. 1] 31-33.) Accordingly, the Court must deny Defendant’s Motion as to this claim. V. CONCLUSION For all of the reasons set forth above, Plaintiff respectfully requests that the Court deny Defendant’s Motion in its entirety. Dated: October 22,2018 AITKEN CAMPBELL HEIKAUS WEAVER, LLP By: a Défren J. Campbell Attorney for Plaintiff MICHAEL HOWARD 20 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES