Opposition Memorandum of Points And Authorities In Opposition To Motion For Summary Judgment Batra FinalMotionCal. Super. - 2nd Dist.September 18, 2017Electronically FILE DJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 y Superior Court of California, County of Los Angeles on 03/14/2019 04:47 PM Sherri R. Carter, Executive Officer/Clerk of Court, by P. Offord, Deputy Clerk Carney R. Shegerian, Esq., State Bar No. 150461 CShegerian@ Shegerianlaw.com Anthony Nguyen, Esq., State Bar No. 259154 ANguyen@Shegerianlaw.com William Reed, Esq., State Bar No. 261931 WReed @ Shegerianlaw.com SHEGERIAN & ASSOCIATES, INC. 225 Santa Monica Boulevard, Suite 700 Santa Monica, California 90401 Telephone Number: (310) 860-0770 Facsimile Number: (310) 860-0771 Attorneys for Plaintiff, SUNITA BATRA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT SUNITA BATRA, Plaintiff, VS. BURBANK UNIFIED SCHOOL DISTRICT, BURBANK BOARD OF EDUCATION, MATT HILL, TOM KISSINGER, and DOES 1 to 100, inclusive, Defendants. N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N r Case No.: BC 676 397 The Honorable Ruth Ann Kwan PLAINTIFF SUNITA BATRA’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES (Filed concurrently with Separate Statement of Disputed Facts; Declaration of Carney R. Shegerian; Declaration of Sunita Batra; Declaration of Brian O’Rourke; Objections to Evidence; Notice of Lodging Federal Authorities; Notice of Filing Excerpts of Deposition Transcripts; Appendix of Evidence; [Proposed] Order on Plaintiffs Objections to Evidence; [Proposed] Order Denying Summary Judgment) Date: Time: Dept. March 28, 2019 9:00 a.m. 72 Trial Date: Action Filed: April 29, 2019 September 18, 2017 -i- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page INTRODUCTION .....coiiiiiititeieeteetee eects eee esses sete eects sete sabe eee s tessa ee sabe ese e snes sree sane 1 STATEMENT QF FACTS sis cumsssns suns avssins asso esas. 5655755 55535555 5455555 S575 4655535 $575555 5 46535058 575535085 5 2 A. Retaliatory Admissions Against Batra and Her Protected Activity Set the Table for Batra’s TOXIC ENVITONMENL. ....cc.eiiuiiiiiiiiiiiiiieiie cients cece sees sees eine 2 B. Batra’s Exemplary Performance Before the Retaliation. ..........ccccccueeieniinenniineciecienienecneenn 2 C. With the Onboarding of a New Superintendent (Hill), a New Board Member (Ferguson), and a New Supervisor (Kissinger), Retaliation, Harassment, and Mistreatment of Batra Begins as Her Career Trajectory is Negatively Changed. .................... 3 D. At Ferguson’s Behest, Kissinger Asks Batra to Violate the Law by Assessing Special Education Students During the Summer, Which Batra Refuses, Reports to Counsel, but is Then Subjected t0 Retaliation. ........cc.cooueiiiiiniiiiieiieeiee sec ceceeeeeeece ee eeesee ee 3 E. Thereafter, and Without Investigation, Kissinger Steers Unverified Complaints to Negatively Review Batra’s December 2015 “Performance Plan.” ............ccoceeoiiiiniininncnnene 3 F. As aResult of Pak’s Unfounded Complaints, Kissinger Begins Keeping a Secret Journal Regarding Batra to Document False Performance Deficiencies. .......cc.cccvvveevnineennee. 4 G. Kissinger Further Retaliates by Micromanaging and Disciplining Batra for Emailing Instead of Calling When Her Schedule Was Overbooked. ..........cccccooueeviinniiniinieciiinieenn 4 H. Batra Complains to Superintendent Hill of a Hostile Work Environment - Who Rejects her Complaints and Fails to Investigate Despite Policy Requirement. ........................ 4 I. Hill Secretly Holds a Meeting to Further Elicit Complaints Regarding Batra. ..........c.c........... 4 J. Batra Reports to the Cabinet that the District’s Lack of Inclusive Practices Put the District Out of Compliance, Which Defendant Uses to Target Batra Instead. ...........c.ccc........ 4 K. Kissinger Further Solicits Unfounded Complaints from OT JesSO€. ......ccocveeveenvirnieiniennecnnen. 5 Out of the Blue - and With No Prior Notice of any Alleged Deficiencies - Kissinger Gives Batra a “Performance Plan,” While Defendant is Informed of Batra’s Concern of Her Rights Being Violated and Her Meeting with Lawyers. .......cccccccceevviinieeiecieinneennenn 5 M. Batra Reports to Board Member Tabet That She is Feeling Stressed, Harassed, and Forced Out of the District, Yet Again No Investigation Occurred. .........ccoceevieeieeneenneennenn 9 N. Batra Reports That an Optometrist (and Her Contract) Was Putting the District Out of COMPLIANCE. «onic eects eee eects sae sate eabe estes sree esse ease e snes sree eee 6 O. Batra is Further Retaliated Against for a Trivial Incident, Despite Batra’s Denial and Two Supporting Witnesses Purposely Excluded, Batra is Disciplined.........cccccceceevvenniennnnnnn 6 P. Batra Reports Purthier Compliance Issues 10 NO AVE. xu smssmmssmsssissusmsssmmmssssmmsssmemmsssss 6 -1i- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. Batra is Disciplined When Her Secretary Makes False Allegations to Deflect Against Her Insubordination, Despite Defendant’s Warning About Her Secretary. ........ccccoeeveenuenene 7 R. Unable to Handle Her Retaliatory and Hostile Environment, Batra Takes Stress Leave Due to Her Skyrocketing Stress, Anxiety, Depression, and Fear of Reprisal...........ccccce.e.. 7 S. Kissinger Gives Batra Yet Another Unfounded Performance Evaluation and Attacks Her for Engaging in Protected Complaints Regarding Legal Requirements. ............ccoceeeneeee. 8 Batra Returns and Faces Further Harassment & Retaliation. ............ccoceeiiiiiiininninnincnn, 8 U. Batra Submits Her Rebuttal to The Myriad of Falsities in Kissinger’s Performance Evaluation, Which Includes Reports of: (a) FEHA Discrimination; (b) Whistleblower Retaliation; and (c) Pleas for Help Due to Emotional/Physical Stress. ........ccccceecveevvennieennnenne 8 V. Kissinger Again Complains that Batra Talks “Too Much About the Law.” .........ccccovenennee. 9 W. Ramallo Warns Batra that Kissinger is Targeting Her. .........cccceviiiiiiiiinnnnicececneeeen 9 X. Micromanaging Batra to the Point of Insanity - Kissinger Now Shadows Batra Six- to EiGRE-HOUTS @ DIY. .......cooueiieiieiiie eit eesti essa essa essa esse esas 9 Y. Kissinger Further Criticizes and Retaliates Again Against Batra for Raising BFS COMPIIANCE ISSUES. cece eee eects eee eects sree sete eee sees nae eene 9 Z. Batra Yet Again Reports to Kissinger and Schackman that She is Being Targeted and DiS CEI NATE AG AITISL cui swe an sn swans sss ds sis vss ss 5 44855508 505555 58354553 £45547 58 REE 8 SHAS 45.0 SASHA SRT 10 AA. Kissinger, Hill, and Ferguson’s Plan Comes Together - With No Notice - Kissinger Submits a Board Report Attacking Batra and The Special Education Department Claiming gd “Critical Mass OF COMTOEENE." swuwssss swws.snsmwsnss soma sms. 55555 555515 5555558 S055 10 BB. Batra Again Pleas with Kissinger to Stop Harassing Her. .........ccoccoviiiiiiiinnnniciieceenene 10 CC. The Board Attacks Batra for a Compliance Issue Outside Her Control. .........ccccccevvveeninene 10 DD. A Results-Driven Investigation Ensues to Further Harass Batra. .........cc.cccccvveiniciiiiinnenn, 11 EE. Batra Again Goes Out on Medical Leave Due to the Retaliation and Harassment She SUTTETEA. «eee eect ere eects ee sate sabes eee sees sabe e ees n ee see eane 11 FF. The District Admits It Failed to Engage/Accommodate Batra on Numerous Occasions & Harassed her While She was Out HANG. woos vnuses scussan sn ssaunss swans ss sansa assasss as samasss awsasan a 11 GG. Kissinger Gives Batra Yet Another False “Performance Plan,” Batra Submits a TESTINGSEE EE SAS SAE 11 HH. In December, The Harassment and Retaliation WOISEN. ............uvuveveiveeieieeeieeeineneeeeeeesesenenenens 11 II. An “Anonymous” Complaint Is Made Against Batra, Setting Her Up........ccccocevveiiiiiennnee. 12 JJ. Hill Sends Out District Wide Email Regarding an Unidentified Complaint and INVESTIGATION. «cuties et r sabe eee s tee sree sere estes nee sree sabe ebe enna ns 12 iii PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KK. Batra Goes Out on Medical Leave Due to the Immense Stress Caused by Defendants’ Unrepentant Campaign of Harassment & Retaliation. ...........ccoeceevviiiiniiennicinniecnniecnieee 12 LL. Batra’s Whistleblowing of Burbank Family Services’ Failure to Utilize Licensed TRETAPISTS. +. tt reec s sate eaters sree sabe eee sees shee sare ease e snes sree sere ebe enna 13 MM. Batra is Wronginlly DEmOtet: cum. sms ssssss is somsss sess sows seuss is 2655 55s 45 0 aa58 S0a55 5055 14 NN. Shifting Stories Regarding the Decision to Demote Batra. ........c.cccoeveeiiiiiiniinniciicienenn, 14 OO. Batra, Having No Other Option, and At the Advice of Her Doctor, Self-Terminates............ 14 ARGUMENT cuits eers e eae sate shee sees e bees eb teehee sates estaba este saae nes 15 A. The Legal Standard for Summary Judgment and Adjudication. ..........cccceeceerveenieeneeneennnenn. 15 B. Summary Adjudication iS Inappropriate. ..........ccceeeeerreerieeieeneiriie niec s serene 15 (1) Direct and Indirect Evidence Negates Summary Adjudication. ...........ccoeeevveeveeneennieenenennn 15 (2) Nonetheless, Batra Makes a Prima Facie Showing of Retaliation. ...........cceccecueevvenneennnenne 16 (a) BEEHA REVAITAIION, x55. susmmsn ssnmnas os suman sansa oo sams sn som o6 50m sn 605555556 5553550 5055565 45 S08593 SAR535048 16 (b) 1102.5 Whistleblower Retaliation.............ccuueieeieiiireesiiieeeeeiiieeeeeeieee sses ee eaaeae ee ens 17 (©) CERA REVAITAIION, x55. susmmsn ssunnas os suman sams sn oo 5smsm 0 5550s 56 550555 S0055555,50 5553350 5055585 48 SS8593 SARRHRAD 18 (3) Evidence of Pretext Negates Summary AdjudiCation............ccoeveeueireenneenic cece 19 (a) Falsity of Defendants’ Reasons Inferences Discrimination. .............ceeeeeveenvenneeenenenne 19 (b) Defendants’ Shifting Reasons for Demotion Shows Pretext. ..........coceveevieeieniencnnne 19 (c) Plaintiff’s Work History Supports Pretext and Discrimination. ...........c.ccecueevereeneeneene 20 (d) Biased Remarks Create an Inference of PreteXt..........ccccvveeeeiiiieiiniiieieciieee ce e 20 (e) Absence of Corroborating Documentation as Well as Destruction of Such Documentation Proves PreteXt. .......coouieieiiiiiiinieeiececeeee neces see eec esee n 20 (f) Soliciting Alleged Deficiencies Against Batra to Justify Adverse Action Against Her 18 Evidence OF PETER: cox so suns svsusss is suman asin sows seuss is 24555 5585 55.0 245858 S0885 550 20 (g) Subjective Criticism SuZEStS PrEteXt......covvveruueeiieiriirriienie c ce s ee cece see ee 20 (h) Suspect Timing Negates Adjudication and Establishes a Causal Connection................. 21 (i) Defendants’ Deviation from Policies Supports Pretext. .........oeovevevveeneerieeienieneeneene 22 () Defendants’ Failure to Properly or Adequately Investigate Evidences Pretext. .............. 22 (k) Defendants’ Corporate Culture Tolerating Bias is Evidence of Pretext.............cceeueee. 22 (4) “Me Too” Evidence Shows General Hostility and Defendants’ True Motives. ..................... 23 “iv- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Batra’s Disability-Based Claims Survive Because She Has a Condition That Qualifies 8 ED ST TET oss SS SA SAE (1) Batra’s Failure to Engage and Accommodate Claims Prevail. ..........cccccooevinnineincnicnnene. D. Defendants Concede the Viability of Batra’s Failure to Prevent Claim Subject to Survival of the Aforementioned Underlying Claims. .......cccccoveiriieiiiniiinninnie cece E. Batra’s Intentional Infliction of Emotional Distress Claim SUIVIVES. ..ceeeveeeeveneeeeeeeeeeeeeennnn. IV. CONCLUSION rine sven naman sons sssnsss issn so 2eimes mss is 24555 25551545 5555558 5955545 38 2450555 S555555 43 S405 58 Sosa -vV- 24 25 25 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page Cases Agmlar v. Alantic Richfield Co. (2001) 25 CALAN, 8200: sussssns susanss swssnss sn suvsses samosas sasssss swuanss os sunssss aswsssn ss 15 Ash v. Tyson Foods, Inc. (2000) S46 U.S. 454... ete eee sees saeessaaeeeaaeea 16 Auburn Woods I Homeowners Assn. v. F.E.H.C. (2004) 121 Cal. App.4th 1578 ......ceoiiiiiiniiiiciinieneen 23 Burlington N. v. White (2000) S48 U.S. 53.....ooiieceee eee eee eee ee eset ae eee vbe eee aae ae ae sanrae ae ensaeee ns 17 California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal APPA TOA... eter eee ea testes st estes sate sate st estaba este saa nees 22 Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal. 4th 1.......ccccuviiiiiiiiiieeiieie cece eee eee 20 Chuang v. U.C. Davis (9th Cir. 2000) 225 F.3d 1115 .c.uooiiiiiiiiieeece testes sees eeene 15 Colarossiv. Coty (2002) 97 Cal. APP-Ath 1142 .....cviiiiiiieiie ieee se sree sree 21,22 Cordova v. State Farm Ins. Cos. (Oth Cir. 1997) 124 F.3d 1145... eee 16 Cummings v. The Stand. Reg. Co. (1st Cir. 2001) 265 F.3d 56.....c..veviiiiiiiiiiiiiiieeeeeseeeecee 23 Davis v. Team Elec. (9th Cir. 2008) 520 F.3d 1080 ......ccooiuiiiieeiiiie cerita eserves eaves 15 DeJung v. Superior Court (2008) 169 Cal. ApP.4th 533... eee eee eas 16 Diaz v. Fed. Ex. (2005) 373 F.SUPP.2d 1034 ......comiiiiiieie cece steer ee sete seers ee 24 Diffey v. Riverside County Sheriff’s Dep't (2000) 84 Cal. App.4th 1031 ....ccveriiiniiiiiiniiiiiieniereeeceee 24 Donchin v. Guerrero (1995) 34 Cal. App.4th 1832 ......ooiiiieiiie ects ees 15, 20 Donnelly v. Greenburgh Cent. Sch. Dist. No. 7 (2nd Cir. 2012) 691 F.3d 13 ....coooiiiiiiiiiiiiieieeeen 19 EEOC v. Ethan Allen, Inc. (2nd Cir. 1994) 44 F.3d 116 .....ooiiiiiiiiiieiieeeeeece eee 20 Ercegovich v. Goodyear Tire & Rubber Co. (6th Cir. 1998) 154 F.3d 344 ......oovviiiiiiiiieieieeeieeeen 20, 23 Eriksson v. Nunnink (2011) 191 Cal. APP.4Ath 826.......ccocuiiiiiiiiiiiiieeie eects eee eevee enna 15 Espinal v. Goord (2nd Cir. 2009) 558 F.3d 119......eiuiiiiiiiiiiiecieete sees seas 19 Faust v. Cal. Portland Cement Co. (2007) 150 Cal. App.4th 864 .........oovuiiiiiiiiiiienieeeeiteeeeee eee 19 Featherstone v. S. Cal. Perm. Med. (2017) 10 Cal. App.Sth T1150 ....cc.uviiiiiiiiieeiiieeeeeteeee c c 24 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 ........ccoviiiriiiiiiiiiiieereeeeeeieeee 21 Flait v. North American Watch Corp. (1992) 3 Cal. App.4th 467 .....c..oovviiiiiiiiiiiiiieeeeieeeieeeieen 20, 21, 22 -Vi- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fletcher v. West. Nat. Life (1970) 10 Cal.APP.3d 376 ....ueeeiiieeiie eects sees seeeeaae ee aaes 26 Flowmaster, Inc. v. Superior Court (1993) 16 Cal. App.4th 1019 ......ccuiiiiiiiiecceeee e 15 Gelfo v. Lockheed Martin (2006) 140 Cal. APP.4th 34 .....c.uiiiiiiiii eects seer 24 Gunnell v. Utah Valley State (10th Cir.1998) 152 F.3d 1253.......nniiiiieiicitencesttesecitae se s svaee sss ssa ns 17 Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.Ath 317 ......ovveiieeieeeeeeeee eects eae eee 15, 19 Harris. Forklift Systems; Ine. (1993) SLOTS: 17 so nsusenes sunsnan in sosssss ssnanas os sues samsss.56 5605 56 5555885.59 5058558 55555,38 19 Hicks v. KNTV Television, Inc. (2008) 160 Cal. App. 4th 994 ........ooiiiiiiiieeeeeeee ee 20, 21 Horn v. Coldwater Creek (C.D. Cal. 2016) 2016 U.S. Dist. LEXIS 94743, 31 ..cooevveieeiiiiiieeeee cece. 17 Jensen v. Wells Fargo (2000) 85 Cal. APP.4Ath 245 ......ooiiiiiiiie ee eee ees 23,25 Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal. App.4th 740 ................... 23 Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125 eects eset eset eee ee essere eens 18, 21 Lowe v. Monrovia (9th Cir. 1985) TTS F.2d 998...... neice eee eee 16 Mann v. Carcchiolo (1985) 38 Cal.3d 18 .......uuiiiiiiiieieeeeeee eects eee e eee ee eee e erae aes 15 Mariani-Colon v. Dep't of Homeland Sec. (1st Cir. 2007) S11 F.3d 216.......oooveiiiiiiiiiieeeeieeece e e 19 McCoy v. Pac. Mar. Ass'n (2013) 216 Cal. APP.4th 283........coiiiiiie eects eee 16 MeDonriell Douglas Corp. vi. Green (1FT3Y AL] US. TO cu suxsnan ss susnnss snvanan so sansa snsssssn oo saws 5 55min se 555558 Sa5a5s5,5 15 Mendoza v. West. Med. Cent. Santa Ana (2014) 222 Cal. App.4th 1334 ......ooiiiiiiiiieiieeeeccececeeeene 22 Millerv, Dept, af Corr; (2005) 30 Cal ALE «ou sumsssn in sonssss sovanan ss sansa swans oo suns sows 6.555555 5508559 558558 S55555.35 16 Molko v. Holy Spirit Assn (1988) 46 Cal.3d 1092...........uviiieeiieie ects eee eres eras eras s eav ae es 26 Moore v. Regents of University of California (2016) 248 Cal. App.4th 216.......ccoooveiviiiniiinniiinieen 24 Morgan v. Regents of the University of California (2001) 88 Cal. App.4th 52.....cccceevviiiiiiiinniiinieiiieee 16 Nonity v. Barrows Co. (9th Cit, 1981) 660 F280. 1327s cussnss sss os swans susan ss sass swiss 55.085055555 555555 45 £55555 i5ss550: 21 Nazir v. UA. (2009) 178 Cal. App.4th 243, 11. 3....eiiiiiie eee eee 15,19, 22 Nealy v. Santa Monica (2015) 234 CALADD-Ath 359... ..cosssen scuuss ss sunasss swssan ss susunss swuasss ss samsusis assis sa i susavss swassan ie 25 O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal. App.4th 563 ........covviiivieeiiiiiieiieeie, 16, 20 Pantoja v. Anton (2011) 198 Cal APDAN B7 uses suussin se sums sussss ss sams avs sn sss ss swussin su 56505550 5583 55.0 Sasa 5 48 S055 90.50 23 Passantino v. Johnson & Johnson Consumer Prods. (9th Cir. 2000) 212 F.3d 493.......coovvieeeeiiiiiciieeeee. 19 Paywie vi Northwest Corp. (9th Cit. 1997) 11.3 B30 107 suse sunsssn in sosssss savas os sunssss sonsss os sswsnse susan so somes sasassnis 20 -Vii- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prilliman v. United Airlines, Inc. (1997) 53 Cal. App.4th 935.......uiiiiiiiie eee 25 R.J. Land & Associates Construction v. Kiewit-Shea (1999) 69 Cal. App.4th 416........ccccceveireeiennnenn. 18 Reeves v. MV Transp., Inc. (2010) 186 Cal. App. 4th 666..........coociiiiiiiiiiiiiiiiieeiteeeeee eee 20 Reeves v. Safeway, 121 Cal. APP Ath A. 1 13 asm sunsssns snssnss cosssans sussss cvessn.s ssm5ws son 5558 5555575 555555545 555555 69555 52.55 23 Reeves v. Sanderson Plumbing (2000) S530 U.S. 133... cetera esses erae eee aae aes 19 Reid vi, Google (ZD10) SOCALAE 512 soreness sumnnss sunssan in sunsnss owas ss sans seuss 6 5ms55 5555555 55 5505556 5585.58 535558 555 16, 20 Renteria v. County of Orange (1978) 82 Cal. ApP.3d 833... eee eee 25 Rope v. Auto-Chlor Sys. of Wash., Inc. (2013) 220 Cal. App.4th 635 ......cooiiiiiiiiiiieeeeeee eee 16 Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal. App.4th 138.......coiiiiiiiiiiiiieeeeeee c n 22 Sandell v. Taylor-Listug (2010) 188 Cal-APPAH 207. ccuuuec snus ss sunsussn svsan ans ssmanss swans as suns svsasss is saasss swsian a 24 Scotch v. Art Inst. of Cal. (2009) 173 Cal.App.Ath 986......ccoomiiiiiiiiiiiieeeeeeee eee 24 Shagerv. Upjohn Co. (Tth Git. 19K) 913 Fad 398 cx se sums susan sn summn sumunan sn sunsnes ssosan on sss 555555.58 5455598 2855555.58 20 Sheffield v. L.A. Cnty. Dept. of S.S., (2003) 109 Cal. App.4th 153 ......cccoiiiiiiiieiececeece cece 15 Silva vi. Lucky Stores, Inc. (1998) 65 Cal. APD-AN 236 « ccuuec snus ss unsnssn avsanan ss ssmanss swsssin as sass avsasss is sams swsian 22 Smiley v. Hologic (S.D. Cal. 2017) 2017 U.S. Dist. LEXIS 57070, 26 ......ccooceeiriiiiiiiienieeeieeeieeeiieeeeeen 18 St. Mary 5s Honor Center vi. Hicks (1993) 509 U.S: S02 uuu sussssnss snssnss swsssonss sassasn svwas mss sasnssn sswnssas sosssss swssssass 19 Swanson v. Morongo Unified School Dist. (2014) 232 Cal. App.4th 954 .........ooviiiiiiiiiiiiiiieeeeeeen 24,25 Taylor v. City of LA. (2006) 144 Cal. ADD.Ah 12116 cui cussss ssunssns swans sswss sos svsanss swans so. 65555 5555 56 45 5555355 5535588 17 Tennial v. UPS (6th Cir. 2016) 840 F.3d 202 .......ociiiiiiiiieciie cece sees ees 25 Terry vi. Gry, of Cayigd, 2013 U.S. Dist: LEXIS. TAIT 4 cussion ss ssnsnse swans so somes susavsnss sosass swnases as susssss sawsssns 19 Thomas v. Starz Entm’t (C.D. Cal. 2016) 2016 U.S. Dist. LEXIS 133681, *14 ........ccoeovvveieeirreeeeernen. 17 Trujillo v. North Cnty. Trans. Dist. (1998) 63 Cal App.Ath 280).. .. ccocuueavss eu so svsass sunsssnsn somsusssvnssss ss sunsusn assananss 25 TWA v. Thurston (1985) 469 U.S. T11 ...ooc iii e eee eee e ee essere area ease ene aranaees 16 Villa v. McFerren (1995) 35 Cal ADD AN T3350 sumnssn.ss sussnos ssmsnsnse vss 555555545 5455555 S555535.08 5555555 55555 55.59 54357595 555555055 15 Village of Arlington Heights v. Met. Hous. Dev. Corp. (1977) 429 U.S. 252........ovvieeiiiieeeeieeeeeeie ev e 22 Voytek v. Univ. of Cal. (N.D. Cal. 1994) 1994 U.S. Dist. LEXIS 12453, 38 ........ooteeeiiieieeieeeeeeeie cec 24 Wallace v. Sanislaus Cnty. (2016) 199 Cal. RPU.3d 462......cccuviiiiiiiiiie ities eee ees 25 Wideman v. Wal-Mart (11th Cir. 1998) 141 F.3d 1453.....cccccccnumssimsrsessessessasssnssarssnssssesssssassasssnsssnsessssns 17 -viii- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wysinger v. Automobile Club of Southern California (2007) 157 Cal. App.4th 413.......coooiiiviiiiniiiiieenen. 21 Yanowitzv. L"Oreal USA, Ing. (2005) 36 Cal Ath 1028... ssssss ss ssnnassnssssess snnssss ssmssanissansmsn sss smu 16,17, 21 Statutes 2 California Code of Regulations § 1106 usu sussssnisssssns sass snss sassnss owns snes ssssasn 5755 55 68 5655555 5555 55.55 £455595 555555555 24 Code Of CIVIL PrOCEAUIE § A37C oeuvres esas eet eaa sses esse tessa es esse serena anes 15 EVIAENCE COUE § 413... eee eee ester esas ee ee tetas sess ee seaa aes ee sees sess ana esse es sesennnnnenees 20 Government Code §8 12900-12000... ..cooeieeiimimeeeee ieee erase etter erases eete as aes esse eesessanssessseeses passim LABOE COE § 1102: ocumsnss sums sn snnsnss cnsssann snssss o55553%.06 5555555 55555 55.59 5555575 545555545 5455555 E5555 95.68 SHOR 55 SHFR355 11, 17, 18, 25 Other Authorities CAUCE LOT sims smn on ssn sss ss 5555545.4% 5455555 SH75545.08 455535 S555 5708 AH3 75 555559549 F559 SH535 5.58 554 SHR 57.50 RASH TB HHH 5055 20 Treatises Chin, et al., Employment Litigation (The Rutter Group, 2005), § 5:280 ....cccocuieiriiiimniiiiiiiiieeeieeeie e 235 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (3 The Rutter Group 1998] P 10:158.1. B: 10-57 18%, & |; 1998 commas sms mms summa 19 Lix- PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L INTRODUCTION The number of times Batra raised complaints/concerns of defendant Burbank Unified’s lack of legal compliance and/or refused to participate in illegality activity, too many to count. This was her job. Nonetheless, Batra pleads at least Thirty. Despite a stellar employment record, Batra - former special education director and champion of special needs students - was subsequently villainized, and specifically accused by others (particularly by her supervisor Tom Kissinger) for complaining “too much about the law.” For this (i.e., attempting to protect the rights of special needs students) she was subjected to an intolerable and hostile work environment via multifacital retaliation before she was forced out of the District. During this campaign, Batra’s reputation was sullied with false performance complaints. She was brow beaten. She was micromanaged to the point of insanity. Defendants’ shifting stories simply do not add up. For this, and a host of other reasons described further below, neither summary judgment, nor adjudication, are appropriate. First, former District Director Brian O'Rourke independently confirms Batra’s retaliatory environment, noting that Kissinger and others “began treating Batra differently once she began voicing her opinions on decisions that the district was making that [were] ‘out of compliance.” Second, the motive to target Batra has also independently been confirmed. “On many occasions, principals in the district, [Superintendent] Hill, and Kissinger would tell [O’Rourke] how frustrated they were with Batra and how they ‘wanted her out’ because of her constant complaints in regard to the district being out of compliance” and “inflexibility” regarding student placement mandated by law. Third, Defendants perfectly executed their plan to push Batra out soliciting complaints against her, targeting her for miniscule issues, micromanaging her, shadowing her for six- to eight-hours on a daily basis, and ultimately attacking performance issues that were never discussed with her previously. Fourth, Defendants callously ignored her countless pleas for help to save her from the hostile work environment by failing, on essentially every instance, to take any reasonable action in violation of their own protectionary policies. The same, they ignored the obvious need to engage/accommodate her. Sadly, the negative effect of these compliance issues falls hard not only on Batra, but on vulnerable students who require the most protections - those with special needs. In fact, this is the very purpose underlying the laws enacted to ensure the provision of the services and placement that will best assist them in their educational pursuits. What’s more, the fact that many of the compliance issues remain to this very day should not go ignored. If nothing else, this should be a call to action to: (1) rid the District of sweetheart vendor contracts that deserve students; (2) send a message to school staff that don’t want to follow laws for their own convenience; and (3) let it be known that the violation of special education laws will not (and should not) be tolerated. PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IL STATEMENT OF FACTS A. Retaliatory Admissions Against Batra and Her Protected Activity Set the Table for Batra’s Toxic Environment. As an initial matter, the testimony of Tom Kissinger summarizes the retaliatory environment: Q. “Do you think that Ms. Batra overemphasized compliance? A. ldo” (Plaintiff’s Separate Facts (PSF) 1.) This is independently substantiated by others, such as former District Director Brian O’Rourke, who “personally observed the negative treatment that Batra was facing in her work environment.” He saw that Superintendent Mat Hill, Assistant Superintendent Tom Kissinger, and principals “began treating Batra differently once she began voicing her opinions on decisions that the district was making that [were] ‘out of compliance.’ (PSF 2.) Specifically, in weekly cabinet meetings ... Batra express that certain students were supposed to be placed at specific schools ... according to special education laws. However, many principals expressed to me that they did not want these students at their schools... On many occasions, principals in the district, Hill, and Kissinger would tell me how frustrated they were with Batra and how they ‘wanted her out’ because of her constant complaints in regard to the district being out of compliance. Principals would also tell me they would go fo Batra’s supervisor to make complaints about her to get her fired and place her in a bad light because they didn’t want more special education students in their schools... On many occasions, Kissinger expressed his frustrations to me about Batra. Kissinger told me multiple times that regardless of what direction he gave Batra, she would do what she believed what correct...Kissinger also expressed to me that he placed Batra on a Performance Improvement Plan because he felt that Batra was causing a lot of problems by constantly demanding the district to_be in compliance... Kissinger was watching Batra’s every move, micromanaging her, insisted on being in every parent meeting, and had Batra include Kissinger on all emails and correspondence. ..Batra has been talked down to, isolated, ignored, and talked poorly upon by the principals in the district because they are not getting the results they want of keeping certain students out of their schools. (PSF 3-4.) B. Batra’s Exemplary Performance Before the Retaliation. Batra, a 25-year veteran in the field of special education, was recruited by the District in 2012 and supervised by Superintendent Dr. Jan Britz until the summer of 2015. During that time, Batra received nothing but recognition and praise. Even Kissinger (Batra’s future supervisor) had no choice but to confirm that: (1) he was “glad [] to have [her] working with” the District (2) a great resources for all, (3) she helped him gain a better understanding of special education, (4) proclaimed being lucky to have her, and (5) her “compassion Jor children and families.” In 2013/2014 the Cabinet praised Batra for her work ethic, persona, and ability to work with others. Specifically, Kissinger wrote: “Sunita - big thinker, wonderful compassion! A true friend.” In December 2015, Batra’s team described her as happy, hardworking, good listener, compassionate, very knowledgeable, good listener, sensitive, thoughtful, sweet, caring, etc. Britz described Batra as being “a huge 2 PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 asset” and in June of 2015, wrote: “You are so knowledgeable and have made so many positive changes that have had positive effects on the District. I also appreciate your trust that you have brought to our team.” (PSF 5- 11.) C. With the Onboarding of a New Superintendent (Hill), a New Board Member (Ferguson), and a New Supervisor (Kissinger), Retaliation, Harassment, and Mistreatment of Batra Begins as Her Career Trajectory is Negatively Changed. In July of 2015, Kissinger became Batra’s immediate supervisor. In or around July 2015, Matt Hill became Superintendent. Around the same time (early Summer 2015) Steve Ferguson was also voted in as a Board Member. Immediately prior to becoming her supervisor, Kissinger violated Batra’s rights when he retaliated against her by disciplining her in March of 2015 for raising a compliance issue. Batra had phoned the Burbank High Individualized Education Plan (IEP) team, along with Deborah Cesario (outside counsel) and informed the team that they were qualifying a 504 student (i.e., ADA) Ez.I. for special education when he didn’t meet the legal requirements. Incensed, Kissinger wrote Batra up. (PSF 12-17.) D. At Ferguson’s Behest, Kissinger Asks Batra to Violate the Law by Assessing Special Education Students During the Summer, Which Batra Refuses, Reports to Counsel, but is Then Subjected to Retaliation. In mid-July 2015, Kissinger asked Batra to assess two students for special education. Batra immediately told Kissinger that this would put the District out of compliance. Kissinger explained that Ferguson had made the request, and that one student was at risk due to mental health issues. Batra responded that the student needed immediate psychological evaluation, which was not a special education matter. Angered, Kissinger complained that an assessment should be done now, but Batra informed him it was against the law. Thereafter, Batra called outside counsel Melisa Hatch to fill her in. Hatch said, “your right, you can’t do that.” Ferguson admits to making this request, that it was a compliance issue, and Batra reported such and refused to participate. Kissinger on the other hand denies this ever happened. Following, Kissinger retaliated by beginning to micromanage Batra’s work, questioned nearly every one of her decisions, became very critical of her work, and used a hostile and condescending tone while interacting. Likewise, Ferguson began to criticize Batra’s special education department both publicly and to the Board. (PSF 19-25.) E. Thereafter, and Without Investigation, Kissinger Steers Unverified Complaints to Negatively Review Batra’s December 2015 “Performance Plan.” In June of 2015, former clerk Clarissa Koo made serious allegations against special education staff members Rosie Saenz and Elizabeth Pak. Pak was sent to speak to HR Director Anita Schackman, who referred Pak to Kissinger. In the face these allegations, Pak deflects, and changes the subject to complaints about Batra and being overworked. A review of these allegations shows that they mirror Batra’s December 2015 3. PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “performance plan” (discussed below). Kissinger did not investigate, knowns of no investigation, yet utilized this information to negatively review Batra. (PSF 26-29.) F. As a Result of Pak’s Unfounded Complaints, Kissinger Begins Keeping a Secret Journal Regarding Batra to Document False Performance Deficiencies. Kissinger, ireful because of Batra’s refusal to illegally assess students over the summer, exploits Pak’s complaint, and begins keeping a secret Chronology of “complaints” (i.e., false/unfounded allegations) on Batra without her knowledge. (Pak is the first entry.) Despite this, unverified “Chronology,” was relied upon in the demotion of the Batra despite never previously sharing such allegations her. (PSF 30-31, 256.) G. Kissinger Further Retaliates by Micromanaging and Disciplining Batra for Emailing Instead of Calling When Her Schedule Was Overbooked. On October 2, 2015, Batra was disciplined for failing to follow Kissinger’s directive to make in person or phone contact with Burbank High Principal Mike Bertram about a settlement update, even though Batra emailed him that same day regarding the same. This was used as a basis for a write up for “insubordination,” which Hill denied support for at a subsequent meeting. (PSF 32-35.) H. Batra Complains to Superintendent Hill of a Hostile Work Environment - Who Rejects her Complaints and Fails to Investigate Despite Policy Requirement. In the Fall of 2015, Batra went to speak to Hill with tears in her eyes and asked for help in dealing with Kissinger’s relentless harassment and hostile work environment. Batra also explained that she was overworked, and that Kissinger’s was not only causing her a great amount of stress, but affecting her sleep and work. Batra asked Hill to supervise her. Hill said no. HR Director Schackman admits that according to District policy, an investigation should have ensued. (PSF 36-38.) L Hill Secretly Holds a Meeting to Further Elicit Complaints Regarding Batra. After the fact, Batra learned that a meeting was held by Hill to solicit “complaints” form special education teachers. Departing from past practice, Batra was neither invited nor informed of the meeting. These concerns were either: (1) ongoing in every district she has worked with; (2) outside of her personal control; or (3) either addressed or fixed not long thereafter. Having no other choice, Hill and Kissinger were agreed with the forgoing at their depositions. Despite their admissions, this document was nonetheless relied upon in the demotion of the Plaintiff. Within these complaints, several themes arose. Site staff: (1) constantly complained about student placement, but ignored or didn’t understand that students were placed by law pursuant to IEPs; (2) wanted more information/training, but then when help was offered, they wouldn’t take advantage of it because they were busy; and (3) wanted more time and help, which meant a higher headcount, but Batra couldn’t do this without Board and Superintendent approval. Bottom line, people simply did not understand special education, and blamed Batra for this and things outside her control. (PSF 39-64.) J. Batra Reports to the Cabinet that the District’s Lack of Inclusive Practices Put 4- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the District Out of Compliance, Which Defendant Uses to Target Batra Instead. On or around October 29, 2015, Batra reported to District leadership at a Cabinet meeting that the lack of inclusive practices in terms of special education student involvement in general education activities and classes was putting the District out of compliance. Batra also reported the example of an earlier concern she raised after speaking with a parent of a special needs student (Kelley Duenckel). Ferguson admits Batra did so, but Hill and Kissinger deny this ever happened. Despite Batra’s concerns, no action was taken, resulting in Duenckel filing a due process claim that could have been avoided if Batra’s concerns had not fallen on deaf ears. Instead, this incident was turned on its head, and used as an excuse to demote Batra. (PSF 65-72) K. Kissinger Further Solicits Unfounded Complaints from OT Jessoe. In late October 2015, Kissinger told Batra that he had received complaints from occupational therapist (OT) Jennifer Jessoe regarding herself and Coordinator Gina Ramallo. Jessoe’s correspondence however shows that, similar to before, Kissinger solicited these complaints. The gravamen of Jessoe’s complaint was that she was over-worked, and that more OTs were needed. Batra did not disagree, but again, hiring was out of Batra’s control. A review of Jessoe’s deposition shows that her other complaints were either: (1) inarticulable when she was pressed; and/or (2) caused by her weak understanding of special education laws/processes. Despite this, Jessoe’s complaints were relied upon in the demotion of the Batra. (PSF 73-77.) L. Out of the Blue - and With No Prior Notice of any Alleged Deficiencies - Kissinger Gives Batra a “Performance Plan,” While Defendant is Informed of Batra’s Concern of Her Rights Being Violated and Her Meeting with Lawyers. On or around December 4, 2015: (1) based on the secret file that Kissinger had amassed without investigation, (2) despite admitted biased complainants, and (3) without prior discussion with Batra of any of the allegations or supposed performance deficiencies(other than Ez.I. and the “phone call”), Kissinger presented Batra with a “Performance Assistance Plan.” Batra’s response is detailed in her attached deposition at 189:4-221:7. Around this time, Batra reported to Hill that nothing had been done in regard to her previous complaints of harassment and a hostile environment and told Kissinger that she was meeting with lawyers, because he was violating her rights. Batra began feeling anxious all the time and suffer panic attacks. (PSF 78-90.) M. Batra Reports to Board Member Tabet That She is Feeling Stressed, Harassed, and Forced Out of the District, Yet Again No Investigation Occurred. In January of 2016, Batra attended an event with Board member Charlene Tabet. Batra asked Tabet if she knew that Kissinger and Hill were mistreating her and explained how stressed she was, how she felt harassed, and that she thought that Kissinger and Hill were trying to get rid of her. Tabet said not to worry, but that she had heard of a movement by a Board member to get rid of her. Further, on February 5, 2016, Batra texted Tabet and asked to speak to her about her concerns. Later, according to Tabet, Batra “was calling to whine, complaint -5- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 about stress at work due to the ... improvement plan ... about people that in her office that she had to work with was stressful.” Of course, Tabet (a decisionmaker) did nothing to help. Board member Roberta Reynolds confirms that Tabet should have reported this allegation for investigation. (PSF 91-96.) N. Batra Reports That an Optometrist (and Her Contract) Was Putting the District Out of Compliance. In February of 2016, Batra was working on a contract with UCLA for Vision Assessment services to present to the Board. At the time, said services were being provided by a private optometrist - Dr. Lori Nishida, who Batra raised concerns about because: (1) She provided educationally unnecessary assessments and qualified every student for extensive therapy when mostly unnecessary (UCLA did the opposite); and (2) Nishida was friends with Board members, creating a conflict of interest. Thereafter, Kissinger directed Batra to withdraw the UCLA contract from consideration at the request of Hill. Batra also reported this to Tabet, who of course turned a blind eye. (PSF 97-100.) 0. Batra is Further Retaliated Against for a Trivial Incident, Despite Batra’s Denial and Two Supporting Witnesses Purposely Excluded, Batra is Disciplined. After a trivial incident regarding Batra’s lost lunch on May 18, 2016, a conversation occurred between Batra and two witnesses, Gina Segura and Susana Montgomery, about the incident. Custodian Mariao Avendano, who was nearby, wrongfully assumed that Batra had accused him of stealing her lunch despite the conversation not being directed toward him. According to Segura, Saenz (Batra’s undermining secretary) had poisoned Avendano and turned him against Batra. (PSF 101-104) Believing this to be a non-issue, Batra was suddenly summoned on or around May 23, 2016, by Schackman. When Batra arrived, Schackmann asked her to provide a written statement about the incident. Batra was shocked that something this unfounded and seemingly small was getting this level of attention. Batra then told Schackman that she never accused Avendano, or anyone specifically, of stealing her lunch. Batra also informed her that two other District employees were present and witnesses who supported her side of the story. (PSF 103.) On June 1, 2016, a meeting was held between Batra, Schackman, Kissinger, and Avendano. This meeting was not a discussion, but a targeted attack. Schackman and Kissinger were not trying to conduct an investigation, but humiliate Batra. The two-witnesses that supported Batra were excluded, and Schackman routinely prompted Avendano with specific allegations. Batra was then written up by Kissinger on June 14, 2016, to which Batra confronted Kissinger about his previous statement that he began to “write up” employees when he wanted to eliminate them. Batra submitted a rebuttal. (PSF 104-106.) P. Batra Reports Further Compliance Issues to No Avail. In May of 2016, Jordan Middle Principal Stacy Cashman sent an email threating to send students back to their home schools if Batra didn’t give her an additional teacher for her Autism Program. (This was outside -6- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Batra’s control.) Batra responded that student placement was made pursuant to their IEP (i.e., set by law) and Cashman could not do this. When Cashman persisted, Batra reported to Kissinger (both orally in writing) that Cashman was threatening to put the District out of compliance. Cashman was listed as a person who provided information relied upon in the demotion of Batra. (PSF 107-108.) Around the same time, Batra submitted a request for funds to David Jaynes (Assistant Superintendent) to contract with a private agency for sign language services for deaf and hard of hearing students that she explained was needed to provide legally mandated services. When Jaynes failed to move forward, and after further requests, Batra reported to Kissinger that the District was out of compliance. (PSF 109.) Q. Batra is Disciplined When Her Secretary Makes False Allegations to Deflect Against Her Insubordination, Despite Defendants Warning About Her Secretary. Rosie Saenz (Batra secretary) had been placed on an improvement plan by the previous special education Director. When Batra came on board, and over the years, Kissinger, Schackmann, and Britz would often complain of Saenz and warn Batra of her unprofessional behavior. Schackmann and Kissinger often called Saenz “toxic.” Whenever Batra would set limits, Saenz would threaten to file a hostile work environment complaint. Batra quickly became concerned and asked Schackmann about the ramifications of this kind of complaint. Schackmann dismissed Batra’s concerns and - “we all know Rosie.” Numerous witnesses (Pak, Kissinger, Schackman, Weaver, Urioste, Segura, DeVries, Hawa) agreed that Saenz was insubordinate, mean spirited, disrespectful, rude, and would yell. (PSF 110-112.) Despite notice of Saenz’s tendency to render false allegations, Kissinger used a subsequent incident involving Batra as an excuse to claim that Batra was engaging in inappropriate behavior and that he believed it was Batra who was creating a hostile environment. Saenz was later listed as person who provided information relied upon in demoting Batra as well as by Kissinger in her December “performance plan.” (PSF 113-116) R. Unable to Handle Her Retaliatory and Hostile Environment, Batra Takes Stress Leave Due to Her Skyrocketing Stress, Anxiety, Depression, and Fear of Reprisal. In May/June of 2016, Batra’s stress levels were very high, her glands swollen, and she was constantly anxious and worried about Kissinger’s next move against her. She couldn’t concentrate and suffered from panic attacks, upset stomach, and slept very little. At the advice of her Doctor, Batra took stress leave.? In her notifying email, she put the District on notice that “[w]e can discuss when I get back my End-of-Year Evaluation and what additional steps can be done to improve my current work environment.” Not long thereafter, outside ! The same is true as to Pak. (PSF 111.) 2 Despite Defendants’ insinuation otherwise, the June 24™ doctor’s visit putting Bata on leave occurred prior to the June 30™ transition of the performance evaluation. 7- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 counsel Hatch called Batra and told her that there was a rumor spreading that she had abandoned her job. At the advice of her doctor, Batra extended her leave repeatedly due to her deteriorating health, and the worsening depression, anxiety, and stress that would manifest as her return to work date would near. Batra also sent an email to Kissinger, Hill, and Schackman on July 31, 2016 explaining that her doctor recommended that she “continue to remain on medical leave due to work environment ...” (PSF 117-123.) S. Kissinger Gives Batra Yet Another Unfounded Performance Evaluation and Attacks Her for Engaging in Protected Complaints Regarding Legal Requirements. On June 30, 2016, Kissinger sent Batra her end of the year “performance evaluation,” wherein, he states: “You have provided information to site administrators regarding legal issues. However, some principals, such as those at Burbank High School and Community Day School, have noted that they feel as though your emphasis on legal requirements takes precedent over the provision of services to students.” (PSF 124- 126.) T. Batra Returns and Faces Further Harassment & Retaliation. Immediately upon Batra’s return to work in September, Kissinger (her harasser and retaliator) informed her that he would be sitting in on all her meetings and directed Batra to include him on all emails. Kissinger also informed Batra that - in line with her fears - 50% of special education students were not yet getting services from Burbank Family Services. Batra also learned that Kissinger and Hill met with Ferguson without her to select the vendor for the master plan for special education. Kissinger now often shadowed Batra for most of the day, micromanaged her, became upset if she started without him despite his being late, would turn red when Batra spoke, and assigned more tasks with unreasonable due dates to which he would use as an excuse to scream at her. Kissinger would also frequently complaint that Batra talked too much about the law, despite her reminders that this was her job. Batra experienced tremendous anxiety and stress. She would return to her office crushed and had less time to take of her already voluminous duties; forcing her to spend most of her waking hours at work. What’s more, Batra observed, and her staff would tell her, that Kissinger solicited negative feedback from them. Batra began to sob and told him that he had no idea of the pain she had been experiencing. (PSF 127-134.) U. Batra Submits Her Rebuttal to The Myriad of Falsities in Kissinger’s Performance Evaluation, Which Includes Reports of: (a) FEHA Discrimination; (b) Whistleblower Retaliation; and (c) Pleas for Help Due to Emotional/Physical Stress. Upon her return to work in September, Batra submitted her rebuttal to Tom Kissinger’s false June 30, 2016 evaluation, which refuted many (if not all) of his allegations. Batra (in her declaration and deposition) states that she believes she had room for improvement, as we all do, but was not going to sit by and let Kissinger paper her with false allegations. (PSF 135-136.) Specifically, Batra states: Although you claim that some principals feel that I emphasize legal requirements over the -8- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provisions of services to the students, you do not provide any specific examples of when I have done so. As you know, if we do not follow all legal requirements, we expose the District to lawsuits. Additionally, as public servants we have a duty to faithfully follow the laws that the legislature has passed. Although you, I, or an individual principal may believe that a law is not ideal, it is not our place to make that policy decision. Accordingly, I am unclear if you are directing me to ignore legal requirements when an individual site administrator believes they interfere with the provision of services. If so, I simply cannot do that even if it would improve our relationship with a site administrator. If the site administrators do not want to follow the law, it is our job to convince them to do so or take other appropriate action. Regardless, however, we cannot simply ignore the law.” “I’ve taken significant and measurable steps to improve the quality of special educational support and services. In my 25 years working for numerous school Districts, I've never received a negative evaluation. The evaluation I received was unwarranted and baseless. I believe the sole purpose was part of an ongoing effort to wrongfully target me and force me to leave my position. I am also concerned that the frequent conclusory remarks about my ‘poor communication’ are the result of a cultural bias against my Indian origin.[’] ... I have suffered considerable emotional and physical stress as a result of your ongoing unfair and discriminatory treatment. I would like it to end.” (PSF 137.) V. Kissinger Again Complains that Batra Talks “Too Much About the Law.” On September 19, 2016, Kissinger again complained that Batra talks a lot about the law. Again, she explained its importance and that ensuring compliance was her job. (PSF 138-139.) W. Ramallo Warns Batra that Kissinger is Targeting Her. On October 4, 2016, Ramallo told Batra that she had informed investigator Jacqueline Litra that Kissinger does not like Batra, that she believes he is targeting her, and confirmed his anger sparks when speaking to her, overt involvement in the department and meetings with her, and micromanagement. Later that afternoon, Batra found Leslie Howa crying in Ramallo’s office, because she had spoken to the investigator against Kissinger and was afraid of losing her job. Yet, no mention of either is made in Litra’s investigatory “report.” (PSF 140-142.) X. Micromanaging Batra to the Point of Insanity - Kissinger Now Shadows Batra Six- to Eight-Hours a Day. By October 2016, Kissinger spent six- to eight-hours a day with Batra in meetings and otherwise. His presence, and cursory understanding of special education, slowed down meetings, and bogged down Batra’s already overbooked schedule. As before, he would constantly criticize Batra on discretionary communication issues instead of focusing on the real issues at hand, and assign more and more work, tertiary meetings, phone calls, and emails that did not focus on the students, IEPs, or pending issues. (PSF 143.) Y. Kissinger Further Criticizes and Retaliates Again Against Batra for Raising BFS Compliance Issues. On October 13, 2016, Kissinger criticized Batra for speaking to Mental Health Coordinator John Costanzo and recommending that the District should amend its contract with Burbank Family Services, as they were not 3 Emphasis here is added to the original quotation. 9- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 providing the services to special needs students required by law. Batra then (and again) reported to Kissinger that BFS was failing to provide services to students on at least five or six serious levels, which put the District out of compliance. Kissinger admonished Batra not to criticize BFS. (PSF 144-145.) Z. Batra Yet Again Reports to Kissinger and Schackman that She is Being Targeted and Discriminated Against. In October of 2016, Batra met with Kissinger, Schackman of HR, and Sharat Batra (her son) three times. During these meetings, she again reiterated that she had been targeted and discriminated against. When Batra brought up her heavy workload, Sharat then asked Kissinger what Batra’s essential duties were and what could be done to help her stress levels by taking work off her plate. Kissinger was silent. (PSF 146-147.) AA. Kissinger, Hill, and Ferguson’s Plan Comes Together - With No Notice - Kissinger Submits a Board Report Attacking Batra and The Special Education Department Claiming a “Critical Mass of Concerns.” Without giving any prior notice, a Board Report by Kissinger acclaimed a “critical mass of concerns raised by parents and community members, District Staff and the Board of Education, about the overall state of the District's Special Education Department.” Batra was shocked. She had neither heard this term before, nor been informed that this Report was to be put before the Board. Of course, seeing the writing on the wall, her stress and anxiety grew. During a break, Batra was approached Hill, who looked at her angrily and said in a rude tone - “we have brought forward our concerns to you a number of times.” In response, Batra drafted an email explaining her shock and that she felt marginalized due to her exclusion from the decision-making process regarding the selection of the vendor. The same, Ramallo, sent Board member Ferguson an email explaining her disagreement. According to special education staff such as Segura, master plans are “par for the course,” and don’t really change anything. The same problems that existed under Sunita’s tenure (such as unhappy parents and site staff) still exist today exist under the new director. (PSF 148-154.) BB. Batra Again Pleas with Kissinger to Stop Harassing Her. On or around October 31, 2016, during a weekly meeting with Kissinger, Batra (yet again) asked him to stop harassing her and to please stop using a condescending/intimidating tone. (PSF 155-157.) CC. The Board Attacks Batra for a Compliance Issue Outside Her Control. Jacquie Day (Assistant Principal), deflecting from her own obvious fault, blamed Batra for an attendance issue with Ez.I (the improperly qualified student discussed above). In brief, the school cite should have been monitoring his attendance as the special education office only gets involved when informed of an issue. This chain of events is explained in detail in Plaintiff’s PSF. When Batra updated Hill, he attacked her. At the Board meeting, Board member Larry Applebaum did the same. When Batra tried to explain herself, Hill then interrupted her twice, and snapped at her (“this is a student’s life”). Batra was later blamed for the settlement of the case, despite the fact that she opposed the terms and it was Kissinger’s doing. (PSF 158-168.) -10- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DD. A Results-Driven Investigation Ensues to Further Harass Batra. In response to Batra’s complaints of being mistreated in her September rebuttal (i.e., protected activity under FEHA’s opposition clause & 1102.5(b) & (c)), Batra received a letter from Human Resources Director Schackman informing her that an investigator would be contacting her. Batra then sent Schackman a letter stating that she would prefer not to discuss the painful incidents at the time and that she had recently returned from medical leave related to stressful work conditions, which was not a pleasant experience. The email ended by stating that the issue may need to be revisited if things did not get better, and if that were the case, Batra would like to use the DFEH for an investigation. Ignoring Batra’s requests, Schackman hired a law firm that frequently works with the District to investigate. A review of this report solidifies that this investigation was performed to prove up Kissinger’s claims against Batra, instead of the other way around. (PSF 169-172.) EE. Batra Again Goes Out on Medical Leave Due to the Retaliation and Harassment She Suffered. On November 28, 2016, Batra went back on stress leave, and returned December 5, 2016. (PSF 173.) FF. The District Admits It Failed to Engage/Accommodate Batra on Numerous Occasions & Harassed her While She was Out Healing. According to HR Director Schackman, the District’s policies require the reasonable accommodation of those with known or perceived disabilities and require the District to engage in the interactive process when on notice of the same. Schackman’s evasive testimony evinces countless failures to engage/accommodation triggered by her knowledge of Batra’s struggles both through conversation and the multiple documents submitted by Batra prior to each leave, during her leaves, and upon her return. What’s more, Schackman also admits that - because Batra returned to work cleared from restrictions by her doctor - she intentionally chose not to engage in the interactive process - despite her knowledge of Batra’s mental health issues. Even Hill and the Board knew of Batra’s struggles. Still, nothing was done. (PSF 174-177.) Schackman also admits that Batra was eligible for CFRA leave and that it was “highly insensitive” for Jaynes, and two “investigators” to reach out to Batra on numerous (10 to 15 time) while she was on medical leave, as District policy and practice limits such contact. (PSF 178-180.) GG. Kissinger Gives Batra Yet Another False “Performance Plan,” Batra Submits a Rebuttal. On December 9, 2106, Kissinger gives Batra yet another “performance plan.” Having no other choice, Batra submits a rebuttal to address its falsities. (PSF 181-182.) HH. In December, The Harassment and Retaliation Worsen. The harassment and hostility (including marginalizing of Batra’s role) increased from September 2016 through January 2017. Kissinger continued sitting in Batra’s meetings from 6- to 8-hours a day, criticizing her for petty reasons, blaming and yelled at her, placing unreasonable deadlines upon her, working against her at meetings and conspiring against her thereafter, and withheld important information to her detriment. Upon her 11- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 return, Batra reported to Schackman, Hill, Kissinger, and Tibbet that she was under tremendous stress. Still, no one would ask if she needed help. (PSF 183-184.) II. An “Anonymous” Complaint Is Made Against Batra, Setting Her Up. On December 19, 2016, Batra was asked to meet with David Jaynes, who handed her a letter about a work-related investigation. Jaynes then told Batra that one or two employees from her department had alleged that she created a hostile work environment, and that she demanded that her staff make changes to students’ files. Jaynes also told Batra that an outside law firm had been hired to conduct the investigation, and that the complaint had been made on December 12%, (PSF 185.) Several days later, Batra received a call from HR informing her that she was to meet with the investigator on January 12%, Batra emailed Jaynes to tell her she wanted to have her interview put on hold until she had the chance to review a written copy of the complaint against her. (PSF 186.) On January 8, 2017, Ramallo sent the District a letter in support of Batra. Ramallo also told Batra that she was interviewed, and that in addition to asking general questions about the special education department, Ramallo told Batra that the investigator asked her about “Jill’s recent behavior.” Ramallo also told the investigator about the tension and stress that had arisen since Kissinger inserted himself in the special education department and that she “[h]oped that resolves itself soon.” (PSF 187-193.) In August, a final report was sent to Batra. Therein, she learned that the complainant was Jill Martinez, a former Program Specialist. This report contained many serious allegations that appeared false. On her last day with the District, Martinez texted Batra (after she had resigned and been on medical leave): “...I wanted to let you know how much I appreciate everything you taught me and the time we spent together. I wish you all the best and hope you enjoy your time with your grand babies. Also, I wanted to let you know that I accepted a position at the Diagnostic Center as an Education Specialist. Today is my last day working at Burbank. I am very excited about my next chapter. Thank you for everything. [Heart Emoji].” Schackman admits that this “doesn’t make any sense” to her and Reynolds admits this “does not seem congruent.” According to Kissinger - and despite the fact that the investigation was not completed, and final report not generated until August 2017 - he relied upon unsubstantiated complaints of Martinez in demoting Batra. (PSF 194-198.) JJ. Hill Sends Out District Wide Email Regarding an Unidentified Complaint and Investigation. On January 18, 2017, Hill sent out a District-wide email about an unidentified complaint, decreeing that it is serious and will be reviewed. (PSF 199.) KK. Batra Goes Out on Medical Leave Due to the Immense Stress Caused by Defendants’ Unrepentant Campaign of Harassment & Retaliation. On or around January 19, 2016, Batra again goes out on medical leave due to the immense stress she was under and the related (and debilitating) mental and physical symptoms. These are discussed in detail in -12- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 paragraphs 199 through 211 of Batra’s declaration. During this time, Batra’s doctor repeatedly extended her leave, encouraged her to leave her job, and explained that her continued employment with the District was a health risk. (PSF 200-204.) LL. Batra’s Whistleblowing of Burbank Family Services’ Failure to Utilize Licensed Therapists. Burbank Family Services (BFS) is a mental health agency in Burbank that has close relationships with the Board, Burbank City Officials, and State Legislators. Laurie Bleick is the Executive Director of BFS. Ferguson admits that he has known, and worked with Bleick, since 2001, while former HR Director Schackman, former Burbank Mayor Anja Reinke, former Burbank City Manager Mary Alvord, Jordan Middle Principal Cashman, are all on the BFS Board. (PSF 205-207.) After BFS began providing special needs services for Defendant in Summer of 2016 in place of Hillsides while Batra was on stress leave, despite prior numerous concerns by Batra of their lack of compliance, Batra learned upon her return that BFS was not paying their “special needs” therapists. In fact, these providers were not even licensed therapists, but freshman therapists in training working up their hours under a licensed therapist. Tammy Schiern informed Batra that Bleick didn’t want her service providers talking to District employees, because she didn’t want them to learn this fact. This was quite problematic, because BFS was being paid the same amount as Hillsides, but Hillsides was only charging the amount they paid their licensed therapists while BFS seemed to be pocketing most of the $250,000.00. (PSF 209-218.) Batra also learned that BFS was not providing services as Bleick had promised, instead, they were: (1) refusing to attend IEPs; (2) follow IEP protocols; (3) draft goals; (4) report progress on goals; or (5) collaborate with school staff. BFS also refused to provide services pursuant to a signed IEP until their BFS referral form was signed, which could take time. This all put the District out of compliance and was a huge problem. Ferguson admits to having knowledge of these “challenges,” and is unaware if they were ever resolved. (PSF 219-220.) In November of 2016, a meeting was held regarding BFS with Kissinger, O’Rourke (Director of Student Safety and Services), Costanza (then Coordinator of Mental Health Services), Tammy Schiern (then School Psychologist), and Batra. Batra reported each of the above compliance issues, and reiterated that these services were mandated by law, and BFA was causing the District to be out of compliance. When Batra started to explain how things had worked in the past with Hillsides, Bleick (almost screaming) interrupted Batra midsentence and with hostility told Batra, “STOP.” “Stop comparing us to Hillsides.” No one intervened. These compliance issues continued until Batra took her final stress leave in January of 2017. Troubling, is that numerous other witnesses (Miller, Meglemre, Weaver, Shiern, Costanzo, Cashman) not only confirm that these compliance issues occurred, but that: (1) many are still occurring to this day and (2) complaints regarding -13- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BFS permeate the District and remain widespread. Nonetheless, BFS remains the provider of psychological services to the District’s special needs students. In fact, Hill and the Board (just last week) extended the contract with BFS. (PSF 221-227.) MM. Batra is Wrongfully Demoted. In early March of 2017 - at the recommendation of Hill and Kissinger - BUSD’s Board released Batra from her position and reassigned her as a school psychologist for the next school year. This was a huge demotion that resulted in a significant reduction in salary (~$50,000.00) and lowered her standing in the District. Batra was humiliated and distraught; could not face her co-workers, subordinates, or staff; and was robbed of her of her confidence. Numerous witnesses agreed that Batra’s resignation was reasonable and didn’t think she would return. (PSF 228-233.) NN. Shifting Stories Regarding the Decision to Demote Batra. Would Batra return?: According to Schackman, she, Hill, and Kissinger discussed whether Batra would return after her demotion, and all assumed she would not. Hill denies this. (PSF 234-235.) Who were the decisionmakers?: According to Defendants’ 203.1(b) response, the decisionmakers were Hill, Kissinger, Schackman, and the Board were all decisionmakers. According to Kissinger however, only he, Hill, and Schackman made the decision. (PSF 236-237.) Causaitous time line: On December 9, 2016, Batra is given a “performance plan” that gives her until February 21, 2017 to “improve,” or 74-days. Given winter break, and Batra’s leave, Batra was (in reality) left with only 21 school days to “improve.” Moreover, February 21% - coincidently - lands right before the March 15" deadline to reassign or part ways with a school administrator, and March 2", the last Board meeting held prior thereto. Batra pleaded for more time, but given the above, Kissinger of course refused. Also of import, Kissinger claims not to have had a specific plan regarding Batra’s demotion on December 9. (PSF 238-242.)* Significance of the master plan?: According to Batra detractor Ferguson, he instituted the plan due to a loss of confidence in the special education department under Batra and an outside vendor was hired because the District had liability concerns related thereto. According to Board member Reynolds, the plan was undertaken not because of Batra, but as a matter of course as the District was doing for all departments around the same time. Likewise, Reynolds confirms that the outside vendor had nothing to do with a risk of litigation. (PSF 247- 249.) 00. Batra, Having No Other Option, and At the Advice of Her Doctor, Self- Terminates. 4 According to Schackman, the decision was made in February 2017 and discussions thereon were held in January/February. Hill says that discussions could have happened as early as December. Ferguson starts off stating that Batra’s demotion was first discussed in January 2017, then backtracks stating that late 2016 is possible. Kissinger, for the life of him, simply can’t remember. (PSF 243-246.) -14- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Having no other choice, Batra self-terminated on April 30, 2017. She explained that she resigned due to stressful conditions which included false allegations by Kissinger regarding her work, a retaliatory and hostile environment, and overall retaliation that she had suffered without any improvement. (PSF 250-255.) III. ARGUMENT A. The Legal Standard for Summary Judgment and Adjudication. To succeed, a defendant moving for summary judgment must “conclusively negate a necessary element to the plaintiff’s case or establish a complete defense and thereby demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial.” (Flowmaster v. Sup. Crt. (1993) 16 Cal.App.4th 1019, 1026 (emphasis added), see also Aguilar v. A. Richfield (2001) 25 Cal.4th 826, 850 [moving party bears burden].) The motion will be denied if defendants cannot show that either a complete defense exists or an essential element of plaintiff's claim cannot be established. (C.C.P. § 437¢(c), (0), (p)(2); Guz, 24 Cal.dth 317 at 334; Mann v. Carcchiolo (1985) 38 Cal.3d 18, 29, 36 [doubts resolved against granting motion]; Nazir v. U.A. (2009) 178 Cal.App.4th 243, 286, fn. 3 [rare to grant summary judgment in employment cases];’ C.C.P. § 437¢c(c).) Because summary judgment is a “drastic remedy”: (1) Defendants must meet a high burden (Eriksson v. Nunnink (2011) 191 Cal. App.4th 826, 850); (2) Batra’s version of disputed facts must be assumed correct (Sheffield v. LA. Cnty. S.S. Dept. (2003) 109 Cal. App.4th 153, 1590; (3) Defendants cannot rely on facts that the plaintiff does not, or is unlikely, to know (Villa v. McFerren (1995) 35 Cal. App.4th 733, 749); and (4) false evidence mandates a denial of the motions (Cal. Code Civ. Proc. § 437c(e); Donchinv. Guerrero (1995) 34 Cal. App.4th 1832, 1839 [reversing summary judgment based on false statements]). In other words, if the Court finds itself weighing evidence or credibility, the motion must be denied. B. Summary Adjudication is Inappropriate. (1) Direct and Indirect Evidence Negates Summary Adjudication. With direct evidence, there is no need for inferences, presumptions, or shifting burdens, rendering unnecessary the McDonnell Douglas v. Green (1973) 411 U.S. 792 test. (TWA v. Thurston (1985) 469 U.S. 111, 122; see also DeJung v. Sup. Crt. (2008) 169 Cal.App.4th 533, 550; O Mary v. Mitsubishi Elec. Amer. (1997) 59 Cal. App.4th 563, 574; Morgan v. UC Reg. (2001) 88 Cal.App.4th 52, 69-70.) Further, “showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory...” (DeJung at 551.) “The decision as to an employer's true motivation plainly is one reserved to the trier of fact.” (Lowe v. Monrovia (9th Cir. 1985) 775 > “Asa general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer’s motion for summary judgment ... ‘because the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately con-ducted by a fact finder, upon a full record.” ” (Chuang v. U.C. Davis (9th Cir. 2000) 225 F.3d 1115, 1124; Davis v. Team Elec. (9th Cir. 2008) 520 F.3d 1080, 1089 [emphasizing “the importance of zealously guarding an employee’s right to a full trial”].) -15- PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.2d 998, 1008.) “Very little direct evidence of the employer’s discriminatory intent” is required to survive summary judgment. (Morgan at 69.) A decisionmaker’s single comment “dumb Mexican” is sufficient to survive summary judgment. (Cordova v. State Farm (9th Cir. 1997) 124 F.3d 1145, 1148-1149; See also Ash v. Tyson Foods (2006) 546 U.S. 454; Reid v. Google (2010) 50 Cal.4th 512.) Here, there is direct evidence that Kissinger and Hill retaliated against Batra via: (1) the unequivocal O'Rourke declaration; (2) Kissinger’s clear statements of criticism regarding reports/complaints of illegality contained in performance reviews and made orally, and (3) Kissinger’s March 2015 write up for raising compliance issues. (2) Nonetheless, Batra Makes a Prima Facie Showing of Retaliation. (a) FEHA Retaliation. “Actions for retaliation are inherently fact-driven; it is the jury, not the court, that is charged with determining the facts.” (McCoy v. Pac. Mar. Ass'n (2013) 216 Cal. App.4th 283, 299.) The elements of a prima facie case for FEHA retaliation are: (1) the employee engaged in protected activity; (2) the employee was subjected to an adverse action; and (3) a causal link between the protected activity and adverse action. (Yanowitz v. L'Oreal (2005) 36 Cal.4th 1028, 1042.) All are present here. There can be no question that Batra participated in numerous protected activities. The law is absolutely clear that that no “buzz” words are needed to be used by an employee to have engaged in a protected action. (Rope v. Auto-Chlor Sys. of Wash. (2013) 220 Cal. App.4th 635, 652.) An employee need only believe what she was opposing was unlawful. (Miller v. Dept. of Corr. (2005) 36 Cal.4th 446, 473-474; Yanowitz at 1043.) Moreover, as set forth above, Batra was subjected to a campaign of harassment and retaliation because of her protected activities, which eventually culminated in her demotion, and compelled self-termination. As to the causal connection, each time Batra complained, the District’s treatment of her (mainly through Kissinger), not only continued but became worse. Batra complains to Hill of harassment and a hostile work environment in the Fall of 2015. In response, Hill elicited complaints about Batra from the BTA and Kissinger elicited unfounded complaints from Jessoe and put Batra on an unfounded performance plan. In January 2016, Batra complained to Tabet of Kissinger’s unfair treatment and harassment. Thereafter, she is wrongly written up for lunch-gate and given a false performance review. Defendants admit that Batra participated in protected activity in September and October 2016, but claim there to be a gap until November. They are wrong. They ignore that after Batra complained about Kissinger’s harassment and hostility on at least four separate occasions in October, and in response, Kissinger: (1) gave (or at least drafted) a performance plan on November 22"; (2) gave a performance plan (again) on December 9th; (3) gave Batra 21-days to improve, which: (a) happened to give Kissinger and Hill just enough time to organize Schackman and the Board against Batra, (b) draft a Board report, and (c) get it © Please see the Declaration of Brian O’Rourke, specifically paragraphs six through 10. -16- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 before the Board in time for the last meeting prior to the March 15% deadline to demote/reassign an Administrator such as Batra. (Horn v. Coldwater Creek (C.D. Cal. 2016) 2016 U.S. Dist. LEXIS 94743, 31-32 [four reprimands constitute adverse treatment that fall within 12940(h)];’.) What’s more, Defendants’ causation argument - which relies on the demotion being the only adverse act - reads too narrowly the legal definition of a retaliatory act. First, the employer’s action(s) need only be severe enough to dissuade a reasonable worker from making a charge of discrimination and need not affect the terms and conditions of employment. (Burlington N. v. White (2006) 548 U.S. 53, 57 [dissuasion standard]; Taylor v. City of L.A. (2006) 144 Cal. App.4th 1216, 1231 [applying deterrence standard].) Second, the law is clear, whether write ups, reprimands, and co-worker hostility constitute adverse employment actions cannot be decided as a matter of law. (Horn, supra, at 31-32 [numerous Courts have held that whether write-ups and reprimands constitute adverse employment actions cannot be decided as a matter of law].) Third, “there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Yanowitz, supra, 36 Cal.4th at 1055-56.) (b) 1102.5 Whistleblower Retaliation. The O’Rourke declaration, by itself, negates summary adjudication, as does the Batra’s declaration combined with her amended responses to Kissinger’s interrogatories. The Court need go no further. Nonetheless, the elements/standards above are equally applicable. In order to establish the protected activity element, Batra must show that she reported activity that she believed to be illegal or refused to participate in activity that would violate the law. (Cal. Labor Code § 1102.5 (b) & (c).)® Here, Batra has clearly done so as can be seen by the above, Batra’s declaration, and her amended responses to Kissinger’s interrogatories.’ What’s more, Defendants’ case citations (Molker & Mize-Kurzman) regarding reports that constitute “protected activity” suffer from a fatal flaw - they rely on the pre-2014 (now amended) version of section 1102.5, rendering them outdated and superseded by statute. Instructive on this point is Smiley v. Hologic (S.D. Cal. 2017) 2017 U.S. Dist. LEXIS 57070, 26-28.) There, citing to Mize-Kurzman, the employer claimed that a complaint to a supervisor could not constitute protected activity, because the same supervisor instructed the plaintiff to perform the alleged illegal act. (/bid.) Rejecting this argument outright, the Court rules that because 1 citing Wideman v. Wal-Mart (11th Cir. 1998) 141 F.3d 1453, 1456 [written reprimands, an employer’s solicitation of negative comments, and a one-day suspension constitute adverse employment actions]; Gunnell v. Utah Valley State (10th Cir.1998) 152 F.3d 1253, 1264 [coworker hostility/retaliatory harassment, if sufficiently severe, constitutes adverse employment action for purposes of retaliation claim] 8 Subsection (b) requires only a reasonable belief, while subsection (c) requires the refusal to relate to activity that would violate the law. (Ibid; see Thomas v. Starz Entm’t (C.D. Cal. 2016) 2016 U.S. Dist. LEXIS 133681, *14-15.) % The statutory bases for the Plaintiff's reasonable belief of illegality, and illegalities, underlying her reports and refusals to participate can be found in responses 26 and 27 to Kissinger’s interrogatories attached to Defendant’s motion as Exhibit H. 17 PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mize-Kurzman “was decided prior to changes to section 1102.5 ... at [which] time ... section 1102.5/] did not provide protections for employees who report internally within a company or organization.'® (Ibid.) In 2013 (for 2014), however, the legislature added the “current language protecting disclosure ‘to a person with authority over the employee or to another employee who has authority to investigate, discover, or correct the violation or noncompliance,” as well as the language providing that an employer shall not retaliate ‘because an employer believes the employee disclosed or may disclose information.” ” (Ibid.) As such, Defendants’ contention that a report to a supervisor of their own wrongdoing is not protected by section 1102.5 is outdated, and simply wrong. The same is true as to their citation to Molker regarding the report having to be to a “government agency.” As such, and because of this error of law, Defendants admit that the five incidents listed in the bullet points in their brief do in fact constitute protected activity. The same, Defendants’ claim that “all of Plaintiff’s other ‘protected activities fail to satisfy the first element” also falls flat. To begin, a comparison of the five bullet points and two further incidents discussed in a following paragraph equal a total of nine incidents. However, a review of Plaintiff’s responses to Kissinger’s Special Interrogatory'! No. 26, lists 23 protected activities and No. 27 lists two refusals to participate in illegal activity, for a total of 25 protected activities. Defendants have elected not to challenge 16 activities, leaving them incapable of meeting their burden. (¢) CFRA Retaliation. Batra can prevail on her CFRA claims by showing that her protected leave “constituted a negative factor in the decision to” demote her. (Liu v. Amway (9th Cir. 2003) 347 F.3d 1125, 1135-1136; 2 CCR 11094(b).) Here, it is undisputed that the District is covered by the CFRA, that the District’s own documents (and Shackman) admit that Bata was eligible for CFRA leave, that Batra exercised said right, !2 and suffered an adverse employment action while she was on CFRA leave. Equally damning is that the decision itself was made during her protected leave. (See Faust v. Cal. Port. Cem. (2007) 150 Cal.App.4th 864, 885 (elements of claim).) Where termination follows a leave so close in time, causation may be inferred from timing alone. (Terry v. Cnty. of Cayuga, 2013 U.S. Dist. LEXIS 141975 [“Plaintiff was terminated on the day she returned from FMLA leave. Such close temporal proximity generally gives rise to an inference of retaliation.”] Espinal v. Goord (2nd Cir. Ham employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” 1 plaintiff's responses to Kissinger’s Special interrogatories are attached to Defendants’ Index of Evidence as Exhibit H. 12 Defendants base their claim that Batra didn’t take CFRA leave on her deposition testimony. However, as objected to, the question was improper as it called for a legal conclusion. The law is clear, “[t]he doctrine that admissions made in depositions are given great weight does not apply to mere legal conclusions.” (R.J. Land & Associates Construction v. Kiewit-Shea (1999) 69 Cal. App.4th 416, 425, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (3 The Rutter Group 1998) P 10:158.1, p. 10-57, rev, # 1, 1998.) Because this is their only basis, they cannot meet their burden. -18- PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2009) 558 F.3d 119, 129; Donnelly v. Greenburgh Cent. Sch. Dist. (2nd Cir. 2012) 691 F.3d 134, 152; Passantino v. J & J Cons. (9th Cir. 2000) 212 F.3d 493, 507; Mariani-Colon v. Dep't of Home. Sec. (1st Cir. 2007) 511 F.3d 216, 224 [two-month delay sufficient to prove a causal connection].) (3) Evidence of Pretext Negates Summary Adjudication. Since “evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias,” Batra’s overwhelming evidence of pretext applies to each cause of action. (Guz, supra, 24 Cal.4th at 356.) “[O]nce the employer’s justification [for the termination] has been eliminated, discrimination may well be the most likely alternative explanation.” (Reeves v. Sanderson Plumb. Prods. (2000) 530 U.S. 133, 147.) As explained further below, even if Defendants could prove a legitimate business reason for their actions (they cannot), the pretextual evidence here negates any availability of summary judgment or adjudication. Further, pretext does not require proof that discrimination was the only reason for the employer’s action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) (a) Falsity of Defendants’ Reasons Inferences Discrimination. Evidence that Defendants’ claimed reasons for their conduct against Batra are “unworthy of credence” is probative of pretext and retaliation. (Reeves v. Sanderson, 530 U.S. at 133.) “Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons.” (Guz, 24 Cal.4th at 361; Nazir, 178 Cal. App.4th at 277-283.) Disbelief of defendants’ reasons (particularly when disbelief is accompanied by suspicion of mendacity) may, along with the elements of the prima facie case, suffice to show intentional discrimination. Rejection of Defendants’ proffered reasons permits the trier of fact to infer the ultimate fact of intentional discrimination. (St. Mary's Hon. Cent. v. Hicks (1993) 509 U.S. 502, 512.) Here, a great deal of the District’s stated reasons for demotion (including the claimed performance deficiencies) are refuted by Batra. Even more telling, said “reasons” are either: (1) refuted by the claimed provider of the information/complaint [see Meglemre, Urioste, Paramo]; and/or (2) was proved to be misunderstood, baseless, trivial, false, and/or made out of spite [see Pak, Saenz, Brooks, Kaitz, Cashman, Miller, Hakopian]. Moreover, the conflicting testimony of board members (mainly Ferguson and Reynolds) as to the reason for Batra’s demotion, as well as the purpose of the “Master Plan,” reek of pretext. (See also Donchin, at 1839 [witness’ false statement demonstrates knowledge of wrong act]; CACI 107.) (b) Defendants’ Shifting Reasons for Demotion Shows Pretext. Defendants’ shifting stories and reasons for Batra’s demotion evidence pretext. (EEOC v. Ethan Allen, 44 F.3d 116, 120 [“From such discrepancies [in employer’s reasons for discharge] a reasonable juror could infer that the explanations given by [employer] were pretextual, developed over time to counter the evidence suggesting . . . discrimination]; Payne v. N.W. (9th Cir. 1997) 113 F.3d 1079, 1080 [“A rational trier of fact could find -19- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [employer’s] varying reasons show that the stated reason was pretextual, for one who tells the truth need not recite different versions of the supposedly same event”].) Here such dishonesty is present in terms of Defendants’ attempts to: (1) hide the true decisionmakers, (2) shift the true reason for the master plan, and (3) shift Plaintiff’s termination date. What’s more, numerous false statements are attributable to defendant witnesses. (0) Plaintiffs Work History Supports Pretext and Discrimination. “Pretext may also be inferred . . . [from the demoted] employee’s job performance before termination.” (Flait v. N. Amer. Watch 1992) 3 Cal. App.4th 467, 479.) Demoting a highly rated employee is evidence of pretext. (Flait at 479; Shager v. Upjohn (7th Cir. 1990) 913 F.2d 398, 401.) Here, there is no question that Batra was highly rated prior to: (a) Kissinger becoming her supervisor; (b) Hill becoming Superintendent; and (c) Ferguson joining the Board. Not uncannily, at this exact same time, requests of illegality were made of Batra (along with her refusals) and Batra’s reporting of copious compliance issues. (d) Biased Remarks Create an Inference of Pretext. The countless remarks (including emails) by decisionmakers Kissinger and Hill exposing a distaste for Batra’s compliance related protected activity - bolstered by the direct evidence of retaliation brought forth by O’Rourke - infer pretext. (Ercegovich v. Goodyear (6th Cir. 1998) 154 F.3d 344, 355; Reid, 50 Cal.4th at 540; O’Mary, supra, 59 Cal.App.4th at 575.) (e) Absence of Corroborating Documentation as Well as Destruction of Such Documentation Proves Pretext. An inference of pretext based on the absence of documentation applies “when the party has intentionally concealed or destroyed the evidence.” (Hicks v. KNTV Tel. (2008) 160 Cal.App.4th 994, 1010.) Because the intentional destruction of evidence “can destroy fairness and justice,” it gives rise to an evidentiary inference that “evidence which one party has destroyed or rendered unavailable was unfavorable to that party.” (Cedars-Sinai Med. Ctr. v. Sup. Crt. (1998) 18 Cal.4th 1, 8, 11, emphasis added; Cal. Evid. Code § 413.) In fact, such interference may even “push a claim that might not otherwise have survived summary judgment over the line.” (Reeves v. MV Trans. (2010) 186 Cal. App.4th 666, 682.) Here, Defendants have withheld all meaningful documentation regarding the investigations of Kissinger and Batra, which would unquestionably shed light on the issues at hand. ® Soliciting Alleged Deficiencies Against Batra to Justify Adverse Action Against Her is Evidence of Pretext. Soliciting alleged deficiencies, such as complaints against Batra, is evidence of pretext. Yanowirz v. L'Oreal, which involved a supervisor’s active solicitation of deficiencies to support discipline, is on point. Here, Kissinger and Hill solicited complaints from teachers, principals, Jessoe, Martinez, and many others. (2) Subjective Criticism Suggests Pretext. Where the stated reason for discharge reflects subjective criticisms of an employee, as opposed to -20- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 objective criteria, pretext may be more readily inferred. (Liu v. Amway (9th Cir. 2003) 347 F.3d 1125, 1136 [subjective evaluations of “soft skills” “susceptible of abuse and more likely to mask pretext”); Nanty v. Barrows (9th Cir. 1981) 660 F.2d 1327, 1334.) Here, Kissinger’s criticisms of Batra were inherently subjective and “lend themselves to discriminatory abuse” and should be “closely scrutinized.” (Hicks at 1005 [subjective criticism subject to scrutiny].) (h) Suspect Timing Negates Adjudication and Establishes a Causal Connection. “Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context.” (Yanowitz at 1052.) “[ A]n employer generally can be liable for the retaliatory actions of its supervisors.” (Wysinger v. Auto. Club (2007) 157 Cal. App.4th 413, 420; Colarossi v. Coty (2002) 97 Cal.App.4th 1142, 1153.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’ ” (Fisher v. San Pedro Hosp. (1989) 214 Cal. App.3d 590, 615.) When adverse employment decisions are taken within a reasonable time after an employee engages in protected activity, causation is inferred. (Flait at 479.) Here, the substantial evidence of pretext, coupled with suspect timing, exudes pretext. To start, the crisp timeline - and onset of retaliation - began: e Promptly when Kissinger thought that he had become Batra’s supervisor and disciplined her up for raising a compliance issue. e Then, with the onboarding of Hill and Ferguson, which coincides conveniently with Batra’s refusal to put the District out of compliance by testing students during the Summer, the onslaught ensued. Within weeks, Kissinger put Batra on probation when - unbeknownst to Batra - he began to keep a covert diary of false performance deficiencies. e Thereafter, Kissinger wrote Batra up for being too busy to make a phone call. Then, at his first opportunity, and after her report to Hill mistreatment, Kissinger gave Batra a negative performance review/plan out of the blue without giving her any prior warning of performance deficiencies. e In the new year, Batra - trying only to protect special needs students and the interests of the District - informed the Cabinet that the District was out of compliance for its lack of inclusion of special needs students and that Dr. Nishida (friend to the Board) was putting the District out of compliance. Close in time, Batra also reported to Board member Tabet that she was being mistreated'® by Kissinger and Hill. e Herreward, false discipline for allegedly accusing a custodian of stealing her lunch (i.e., lunch-gate) when all witnesses confirmed otherwise. e Thereafter, Batra reports further compliance issues, and Kissinger (now switching sides) supports Batra’s secretary in her hostile work environment claim, when Kissinger himself, had claimed the secretary to be “toxic,” hostile, and grossly insubordinate. Kissinger then follows this up with another false performance review, which is given right after Batra takes medical leave. 13 Batra uses the word “harassment” and phrase “hostile work environment.” J] = PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e After Batra’s return from stress leave (taken over the Summer due to Kissinger’s mistreatment), Kissinger then (knowing well that he is the cause of her stress) begins sitting in on all Batra’s meetings and asks that he be included on all emails. By October, Kissinger is now spending six- to eight-hours a day with Batra - pure misery. e Then, Batra goes too far. She brings to light compliance issues related to BFS - friend to the Board and the powers that be. e As a result, Kissinger writes yet another false performance evaluation. In what cannot be described as coincidence, Kissinger gives Batra little time to improve (which falls over a lengthy holiday) and places the deadline just in time for the “March 15% deadline to reassign or part ways with Batra, Thereafter, Ferguson (friend to BES), Kissinger, and Hill convince the Board to demote Batra, finalizing the plan that had been in place since August of 2015. This chain of events is probative of causation, and evidences a causal link negating summary adjudication. (Colarossi at 1153; Sada v. Kennedy Med. (1997) 56 Cal.App.4th 138, 156; Cal. F.E.H.C. v. Gemini Alum. (2004) 122 Cal. App.4th 1004, 1023; Flait at 479; Yanowitz, 36 Cal.4th at 1062.) (i) Defendants’ Deviation from Policies Supports Pretext. Deviating from policies and practices, as Defendants did, suggests pretext. (Vill. of Arl. Heights v. Met. Hous. Dev. (1977) 429 U.S. 252, 267 [departures from normal procedural sequence afford evidence that im- proper purposes played a role]; Moore v. Regents of U.C. (2016) 248 Cal. App.4th 216, 239-241.) Here, Defendants violated their policies and practices in: (a) falling to investigate many of Batra’s complaints; (b) contacting Batra over and over again while on leave; and (c) failing to engage in the interactive process. (j) Defendants’ Failure to Properly or Adequately Investigate Evidences Pretext. An employer’s failure to properly or adequately investigate matters relating to its employee, who in turn is then subjected to an adverse employment action, is evidence of pretext. (Nazir, supra, 178 Cal.App.4th at 280; see also Mendoza v. West. Med. Cent. Santa Ana (2014) 222 Cal.App.4th 1334, 1344 [lack of a rigorous investigation is evidence suggesting that defendants did not value discovery of the truth so much as a way to clean up an uncovered mess]; Silva v. Lucky Stores (1998) 65 Cal.App.4th 256 [“the question critical. ..is...whether at the time the decision to terminate ...defendants, acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing plaintiff had done so]; Reeves v. Safeway Stores (2004) 121 Cal. App.4th 95, 121.) Here, the failure to include the claims made by Ramallo and Howa’s to investigator Litra against Kissinger and his abusive treatment of Batra evidence that the investigation had one goal - tarnish Batra’s reputation and provide fodder for her demotion. The same is true regarding Kissinger ’s failure to investigate the allegations in his performance reviews/plans and “notes.” Likewise, Kissinger’s reliance on Martinez’ complaint - despite the fact that the investigation was not completed until the next school year - is further evidence that the District cared not about truth. (k) Defendants’ Corporate Culture Tolerating Bias is Evidence of Pretext. Evidence of other victims of similar misconduct may establish a corporate culture of discriminatory or 02- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 retaliatory bias. (see Johnson v. Unit. Cerebral Palsy/Spastic Child. Found. (2009) 173 Cal.App.4th 740, 765; Pantoja v. Anton (2011) 198 Cal. App.4th 87, 113; Ercegovich v. Goodyear (6th Cir. 1998) 154 F.3d 344, 356 [“circumstantial evidence establishing the existence of a discriminatory atmosphere at the defendant’s workplace in turn may serve as circumstantial evidence of individualized discrimination directed at the plaintiff” even where involving different management]; Cummings v. The Stand. Reg. (1st Cir. 2001) 265 F.3d 56.) Here, clear evidence exists of the perpetuation of a retaliatory culture via the District’s (including Hill, Ferguson, and Schackman) support of Kissinger - despite Batra’s many complaints against him, all of the which tainted the entire Board in its blind ratification of said acts in the unlawful demotion of Batra. 4) “Me Too” Evidence Shows General Hostility and Defendants’ True Motives. “It is clear that an employer’s conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer’s general hostility towards that group is the true reason behind firing an employee who is a member of that group.” (Johnson v. United at 765; Pantoja, 198 Cal. App.4th at 113.) Here, [redacted] complained of compliance issues on the part of the BFS. After being abused and attacked in the presence of Kissinger (just like Batra) he self-terminated shortly thereafter. (Declaration of Carney Shegerian Filed Conditionally Under Seal, Exhibit 1.) C. Batra’s Disability-Based Claims Survive Because She Has a Condition That Qualifies as a Disability Yet again, Defendants interpret the law far too narrowly. Plaintiff alleges (and the documentation supports) depression with anxiety, difficulty concentrating, excessive worry, fatigue, insomnia, panic attacks, etc. (Exhibit 22.) “Numerous cases under state and federal law have held that depression and its related manifestations can meet the definition of disability under antidiscrimination laws.” (Auburn Woods I Homeowners Assn. v. F.E.H.C. (2004) 121 Cal.App.4th 1578, 1592-93, citing to Jensen v. Wells Fargo (2000) 85 Cal. App.4th 245, 259-59 [anxiety qualifies as a disability].) Moreover, it has been held that in cases such as this, where the existence of a mental health issue is in dispute, such a determination cannot be made as a matter of law and must be submitted as a factual issue. (Diaz v. Fed. Ex. (2005) 373 F.Supp.2d 1034, 1053, [declaration setting forth adjustment disorder with mixed anxiety/depressed mood, aggravated with other factors sufficed]; see also Voytek v. Univ. of Cal. (N.D. Cal. 1994) 1994 U.S. Dist. LEXIS 12453, 38-41 [depression caused by personality conflict with manager can form basis of a disability].) Moreover, Defendants ignore that the “law of this state contains broad definitions of physical disability, mental disability, and medical condition,” and “the definitions of ... mental disability” must be construed so that employees are protected from discrimination due to an “actual or perceived mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” (Sandell v. Taylor-Listug (2010) 188 Cal.App.4th 297, 310.) Subdivisions (m)(4) and (5) of section 12926 implement the Legislature’s 23- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 intent to protect individuals who are “erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.” (Ibid.) “Both the policy and language of the statute offer protection to a person who is not actually disabled, but is wrongly perceived to be.” (Moore, supra, 248 Cal. App.4th at 237, fn.4, citing Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34, 53.) “[TThe purpose of the ‘regarded-as’ prong is to protect individuals rejected from a job because of the ‘myths, fears and stereotypes’ associated with disabilities. In other words, to find a perceived disability, the perception must stem from a false idea about the existence of or the limiting effect of a disability.” (Diffey v. Riverside County Sheriff’s Dep’t (2000) 84 Cal. App.4th 1031, 1037.) As such, in order to qualify for protections, Batra need not have been disabled as defined by the law only perceived as such. (1) Batra’s Failure to Engage and Accommodate Claims Prevail. An employer shall initiate an interactive process when: (1) an employee with a known disability or medical condition requests reasonable accommodations or (2) the employer otherwise becomes aware of the need for an accommodation through a third party or by observation.!* (2 C.CR. § 11069(b)(1), (b)(2); Featherstone v. S. Cal. Perm. Med. (2017) 10 Cal.App.5th 1150, 1167.) “Reasonable accommodations include ‘[jlob restructuring, part-time or modified work schedules, reassignment to a vacant position, ... and other similar accommodations for individuals with disabilities. (Swanson v. Morongo Unif. S.D. (2014) 232 Cal. App.4th 954, 968;'3.) It also includes “reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether.” (Nealy v. Santa Monica (2015) 234 Cal. App.4th 359, 375.) FEHA requires employers to be flexible and to work with disabled employees to accommodate their needs. (Prilliman v. UA. (1997) 53 Cal. App.4th 935, 953.) “Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith.” (Swanson at 969- 971, emphasis added.) This is not a one-and-done duty. (Ibid. [duty “not exhausted by one effort”’].) Employer intent is irrelevant. (Wallace v. Sanislaus Cnty. (2016) 199 Cal.Rptr.3d 462, 477.) Here, the above facts demonstrate that Batra not only pleaded for help on numerous occasions, but her stress, anxiety, and emotional turmoil was so visible and apparent that Defendants should have engaged even if not prompted. What’s more, the District - on clear notice that Batra was on stress leave - never once approached her upon her return to engage in the interactive process despite her revolving door of leaves. (Tennial v. UPS (6th Cir. 2016) 840 F.3d 14 «Under F EHA, a person is considered ‘physically disabled’ not only if he or she has a physiological condition that “[1]imits a major life activity,” (Moore, supra, at 237, tn.4, citing Cal. Gov. Code § 12926 (m)(1)(B)) but also if he or she is “regarded or treated by the employer . . . as having, or having had, any ... condition that [currently] makes [or, in the future may make] achievement of a major life activity difficult.” (Id. at subd. (m)(4), emphasis added; see Id., subd. (m)(5).) 15 As “‘[an employee does] not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have,”” an employee is not “expected to identify and request all possible accommodations during the interactive itself.” (Scotch v. Art Inst. of Cal. (2009) 173 Cal.App.4th 986, 1013.) 24- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 292 [awareness of stress related leave put the defendant on notice].) To prevail, Defendants must be able to establish through undisputed facts that: “(1) reasonable accommodation was offered and refused... [ or that (2)] the employer did everything in its power to find a reasonable accommodation ... .” (Jensen, supra, 85 Cal.App.4th at 263.) Here, Defendants argument that they fulfilled their obligations by granting medical leave is fatally undermined by the long-rejected notion that the duty to accommodate is “one and done.” It also flies in the face of the rationale behind the interactive process - which was never engaged in- depriving Batra of the very process by which the gambit of other workplace accommodations that might have assisted Batra with the performance of her job.!® D. Defendants Concede the Viability of Batra’s Failure to Prevent Claim Subject to Survival of the Aforementioned Underlying Claims. Because the aforementioned claims survive, her failure to prevent and public policy claims survive. (Trujillo v. North Cnty. Trans. Dist. (1998) 63 Cal. App.4th 280, 289.) Moreover, there can be no question that Batra complained on numerous occasions where absolutely nothing was done. E. Batra’s Intentional Infliction of Emotional Distress Claim Survives. Batra intentional infliction of emotional distress claim is predicated on harassment and retaliation in the workplace is recognized as “extreme and outrageous” for purposes of an intentional infliction of emotional distress claim. (Renteria v. County of Orange (1978) 82 Cal. App.3d 833, 834.) The same is true as to Plaintift’s section 1102.5 claim. “Illegal conduct [is] per se outrageous,” satisfying the standard for an IIED claim. (Chin, et al., Employment Litigation (The Rutter Group, 2005), § 5:280, citing Cramer v. Consolidated Freightways (9th Cir. 2001) 255 F.3d 683, 697.) The Court’s role on summary judgment is only to determine whether severe emotional distress can be found. “It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.” (Fletcher v. West. Nat. Life (1970) 10 Cal.App.3d 376, 397.) “Where reasonable men may differ, it is for the jury...to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” (Molko v. Holy Spirit Ass 'n (1988) 46 Cal.3d 1092, 1123.) Here, if any of the above claims survive, so does Batra’s ITED claim. Notwithstanding, it is clear beyond cavil that terminating a disabled employee under false pretenses during a known period of vulnerability is outrageous and should not be tolerated in a civilized society. Shifting reasons, falsification of material facts, solicitation of criticisms, and violation of own policies evince the same. IV. CONCLUSION Batra respectfully requests that this honorable Court deny Defendants’ motion. 16 Defendants’ argument that an employer cannot read the employees mind (Prilliman) and that the employee must present a list of restrictions miss the mark, and ignores the fact that this type of obligation arises during an interactive process, whereas here, the Defendants never met their obligation of engaging in such, i.e., never started the discussion. -25- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 14,2019 SHEGERIAN & ASSOCIATES, INC. we Dons Carney®_ BShegerian, Attorneys for Plaintiff, SUNITA BATRA -26- PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BATRA v. BUSD, et al. LASC CASE NO.: BC 676 397 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am an employee in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 225 Santa Monica Boulevard, Suite 700, Santa Monica, California 90401. On March 14, 2019, I served the foregoing document, described as “PLAINTIFF SUNITA BATRA’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES,” on all interested parties in this action by placing a true copy thereof in a sealed envelope, addressed as follows: Jill Williams, Esq. Danielle C. Foster, Esq. CARPENTER, ROTHANS & DUMONT 500 South Grand Avenue, 19th Floor Los Angeles, California 90071 [] (BY MAIL) As follows: ] I placed such envelope, with postage thereon prepaid, in the United States mail at Santa Monica, California. ] I'am “readily familiar” with the firm’s practice of collecting and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day, with postage thereon fully prepaid, at Santa Monica, California, in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation or postage meter date is more than one day after the date of deposit for mailing in this affidavit. x (BY FED EX) I placed such envelope in a designated Federal Express pick-up box at Santa Monica, California. [] (BY ELECTRONIC MAIL) I sent such document via facsimile mail to the number(s) noted above. x (STATE) I declare, under penalty of perjury under the laws of the State of California, that the above is true and correct. Executed on March 14, 2019, at Santa Monica, California. aa Jose Castro
