Janice Pearson vs Los Angeles County Probation Department

Reply to Plaintiffs Opposition to Motion for Summary Judgment

Cal. Super. - 2nd Dist.June 21, 2018

Electronically FILED by Superi H U R R E L L C A N T R A L L LL P LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 30 0 S O U T H G R A N D AV EN UE , SU IT E 13 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0 Thomas C. Hurrell, State Bar No. 119876 E-Mail: thurrell@hurrellcantrall.com Maria Tuason, State Bar No. 256397 E-Mail: mtuason@hurrellcantrall.com HURRELL CANTRALL LLP 300 South Grand Avenue, Suite 1300 Los Angeles, California 90071 Telephone: (213) 426-2000 Facsimile: (213) 426-2020 County Probation Department) JANICE PEARSON, Plaintiff, Vv. LOS ANGELES COUNTY PROBATION DEPARTMENT and DOES 1-20, Defendants. r Court of California, County of Los Angeles on 01/31/2020 03:52 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk Attorneys for Defendant, COUNTY OF LOS ANGELES (erroneously sued as Los Angeles SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT CASE NO. BC711032 [Exempt Pursuant to Gov't Code §6103] DEFENDANT COUNTY OF LOS ANGELES’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION Date: February 5, 2020 Time: 8:30 a.m. Dept.: 37 Reservation ID: 063135464287 (Filed Concurrently with Defendant’s Reply to Plaintiff's Opposition to Defendant’s Separate Statement of Undisputed Facts, Defendant's Evidentiary Objections to Plaintiff's Compedium of Evidence, and [Proposed Order] Defendant's Evidentiary Objections to Plaintiffs Compedium of Evidence.) Assigned to Hon. Richard J. Burdge Dept. 37 Action Filed: 06/21/18 FAC Filed: 01/10/19 SAC Filed: 03/26/19 Trial Date: 05/26/20 Defendant County of Los Angeles hereby submits its Reply to Plaintiffs Opposition to Defendant's Motion for Summary Judgment or in the Alternative Adjudication. REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P 30 0 S O U T H G R A N D A V E N U E , S U I T E 13 00 L O S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 4 2 6 - 2 0 0 0 o w NN S N Nn dl W N N O N N N O N N O N =m mm mm em mm ee l e m e k e m TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES ....cooiiiiiiieee eee 1 L INTRODUCTION. ..ccotttiie eee terete esrb estes tee ese esse nse esss esse annnes 1 IL. PLAINTIFF CANNOT BRING IN THEORIES OF LIABILITY WHICH WERE NOT PLED IN THE ‘OPERATIVE COMPLAINT. ives a simbnnmmnmnmnnonnssnebinnsnbasinis i 1 [II. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFF'S DISCRIMINATION CLAIM UNDER FEHA. ........ccooiiiiicieee, 1 A. Plaintiff Has Not Made A Prima Facie Showing Of Discrimination. ...................... 2 B. The County’s Actions Were Based On Legitimate, Non-Discriminatory TR USTIN mums mosmssnts, .0 ASE W653 55 55 GA.03 5-0 US SAE EA 4 C. Plaintiff Has Failed To Set Forth Evidence of PreteXt..........ccoovivvvivieciiiiiciceen 4 IV. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFFS HARASSMENT CLAIM. woot evecare 6 V. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFF'S RETALIATION CLATN soso assem mons amon im somssns sms oom sons mmm oi 00 7 VI. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFF'S FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS ACL PL. csecostermmsmcnspseam sme ere SE SEA 5 ES 8. SS 9 VII. PLAINTIFF'S CLAIM FOR GENDER DISCRIMINATION MUST BE ADJUDICATED ON BEHALF OF THE COUNTY. coccinea 10 -i- REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P 30 0 S O U T H G R A N D AV EN UE , SU IT E 13 00 LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 $ e NN S N n e WW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page CASES Aguilar v. Avis Rent 4 Car System, Inc. (1999) 21 Cal. 4th 121, 126 cooovivieiiiiieeeeeeeeeeee 6 Ayon v. Esquire Deposition Solutions, LLC (2018) 27 CASth 487,496........cccoevveeveeeeiecieeeeeen 5 Bagatti v. Department of Rehabilitation (2002) 97 Cal. App.4th 344 (“Bagatti’ ...........ccovueeueen... 2 Connor v. First Student, Inc. (2018) 5 C5th 1026, 1038......cccoiiiiieiiiiiieee eee 5 Cucuzza v. City of Santa Clara (2002) 104 Cal. App.4th 1031, 1038....eviiviiieeeeeeeeeeeeeee 8 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 610 ......ccoecvveieiereieiennee, a Guz v. Bechtel Nat'l. Inc. (2000) 24 Cal.dth 317,358. ..oeviiiiieieeeeeeee eee e e eens 4 Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App. 4th 215, 228, 87 ceeeeeeeeeeeeeeeeeeeeeeeeeee eens 9 Hayman v. Block (1986) 176 Cal.App.3rd 629, 639-039 ......cciiiiiiiiieieceeeeeeeeeeeee 7 Hersant v. Dep't Soc. Sves. (1997) 57 Cal. App.4th 997, 1005 o.oo, 4 Hunton v. Fidelity Nat. Title Co. (2013) 213 Cal. App.4th 486, 493 (“Hunton”) ........ccccceeevveveennn. 1 KAriotis v. Navistar Int’l Transp. Corp. (1997) 131 F3d 672, 676 ....oceoveeeeeieeeeeeeeeeeeeeee 4 Lyle v. Warner Brothers Television Productions, (2006) 38 Cal. 4th 264, 279 ......ccoceeveveveecnennn. 6,7 McDonnell Douglass Corp. v. Green (1973) 411, US 792, 802-804 ........ooveveeeeceeeeeeeeeee 6 Michael v. Caterpillar Fin’l Services Corp. (2007) 496 F3d 584, 593 ...oomvioeieeeceeeeeeeeeeee n, 3 Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal. App.4th 952,984 .......cocvvvevveenennn. 9 Nealy v. City of Santa Monica (2015) 234 Cal. App.4th 359, 379 w.oveeriieiieeeeeeeeee ee 9 Raine v. City of Burbank (2006) 135 CalLApp.4th 1215 ieee eee 9 Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. at 148 .....oovviiioiiiiiieieceeeeeeee 5 Reno v. Baird (1998) 18 Cal Ath 640, BABGAT sunessors russ sessisess.nsesms sn seems is 5.55558 ma i165 6048 585.055 406545554 6 Sangster v. Paetkau (1998) 68 Cal. App.4th 151, 162-163. ...coooiiiiiiieiiiiieeeeeeeeeee 3 Scotch v. Art Institute of California (2009) 173 Cal APD ALh 986 ..... cnn im mssismssmnns assume sswsss isons 9 Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971-972 ...ccoovvveieis 10 Trujillo v. First American Registry, Inc. (2007) 157 Cal. App.4th 628, 638 ........cccoevvvvveviiirieieenne 5 Trujillo v. N. Cnty. Transit Dist. (1998) 63 Cal.App.4th 280.289 .....ccoovviviiiiiieceeeeeeee 6 ie REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 30 0 S O U T H G R A N D AV EN UE , SU IT E 13 00 eo we ua aN Wn d e Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATUTES Government Code § 12940(3)(1) -11i- REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P 30 0 S O U T H G R A N D A V E N U E , S U I T E 13 00 L O S A N G E L E S , C A L I F O R N I A 80 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 $ e N S N n t Re WW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L. INTRODUCTION. A review of plaintiff's Opposition reveals plaintiff failed to establish a genuine issue of material fact as to any of her causes of action. As the Opposition shows, this case is primarily about plaintiff's dissatisfaction about not getting to keep her personal printer following a 2015 County-wide mandate to remove personal printers from the offices of County of Los Angeles employees. Although plaintiff was offered and indeed accepted various forms of reasonable accommodations to address her claimed medical restrictions, plaintiff became disgruntled because she did not receive her preferred accommodation of having her own printer. She proceeds to offer speculations, conclusions, and even attempts to introduce her recent internal County complaint from a few months ago to hopelessly turn her gripes into actionable claims. This case is ripe for summary judgment. IL. PLAINTIFF CANNOT BRING IN THEORIES OF LIABILITY WHICH WERE NOT PLED IN THE OPERATIVE COMPLAINT. Summary judgment proceedings are restricted to the issues raised in the pleadings. Hunton v. Fidelity Nat. Title Co. (2013) 213 Cal. App.4th 486, 493 (“Hunton”). In Hunton, our Supreme Court has explained that “[t]he materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment.” Hunton, 213 Cal. App.4th at 493. Thus, defendant “need not refute liability on some theoretical possibility not included in the pleadings,” and “the papers filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings.” [bid (emphasis added). Here, plaintiff seeks to introduce events as recent as October and December 2019 to support her claims. However, this action was filed in 2018 and the operative complaint filed in March 2019. Thus, any allegations occurring after March 2019 are not in the pleadings, outside the boundaries of issues to be resolved at summary judgment, and must be excluded. III. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFF'S DISCRIMINATION CLAIM UNDER FEHA. Plaintiff's Opposition presents no triable issue of material fact regarding her discrimination REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P 30 0 S O U T H G R A N D A V E N U E , S U I T E 13 00 LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claims. When we discard fabricated claims, grossly mischaracterized assertions, and irrelevant argument, we find no evidence supporting plaintiff's claims. A. Plaintiff Has Not Made A Prima Facie Showing Of Discrimination. The crux of plaintiff’s discrimination claim is the removal of her desktop printer and the assignment of a work project requiring her to enter data. She claims she should not have been subjected to these actions because she had a doctor’s note recommending a printer be placed closer to her office and a doctor’s note stating she could not type using her left hand. (See Opposition [“Opp”] 7:3-6). Neither of these arguments, however, are even actionable under a ‘discrimination’ claim as opposed to a ‘fuilure to accommodate’ claim. In particular, the case of Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344 (“Bagatti”) analyzed the issue of whether allegations of failure to accommodate are sufficient to show an adverse employment action. In rejecting that plaintiff’s claim for disability discrimination based on an alleged failure to accommodate, the Bagatti court noted the statutory distinctions between the two causes of action under the Government Code, found that the FEHA provision is “markedly different” from the ADA in this respect, and specifically noted the following: In this case, and contrary to the assertions of her brief, plaintiff does not fairly allege a cause of action for disability discrimination. Disability discrimination is defined by subdivision (a) of section 12940 [citation omitted] and, as pertinent, outlaws discrimination against the person "in compensation or in terms, conditions, or privileges of employment." Plaintiff has not alleged such discrimination, because she has not properly pleaded that she was denied compensation or that an adverse employment action was taken against her. Rather, as we have discussed, plaintiff has fairly pleaded a claim for damages premised on failure to make reasonable accommodation in violation of subdivision (m) of section 12940. Bagatti, 97 Cal. App.4th at 366. Additionally, plaintiff implores the court to use a “totality of the circumstances analysis” to conclude that together with not getting a printer and having to type, trivial actions such as the reduction of her staff, exclusion from emails, meetings and trainings, “denial” of overtime, and not having a key to the supply room, constitute an adverse employment action. (Opp. 7:1-14). However, plaintiff grossly mischaracterizes such allegations. As stated in the moving papers. plaintiff was excluded from emails, meetings and trainings because they did not pertain to her job 2 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 30 0 S O U T H G R A N D A V E N U E , SU IT E 13 00 SN Nn ke WwW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 functions and she does not offer any facts to dispute this. Further, although she was not assigned to work on the Prop 63 project and therefore did not work overtime for that project, she was not denied overtime because she was allowed to work overtime to keep up with the backlog caused by other employees having to work on Prop 63. Her staff was reassigned not because plaintiff lost her credibility with her staff but because a staff member reported that she could no longer work with plaintiff because she caused her tremendous stress. (UMF 27). Lastly, although she was not given a key to the supplies area - she was not denied access to supplies. Additionally, the Opposition claims that being assigned to process the CL-22 list was a “demotion” because plaintiff was employed as a supervising clerk. (Opp. 8:11-12) However, plaintiff does not point to any evidence to show that working on the list is outside a supervising clerk’s duties. “To avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.” Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163. Lastly, the purported “negative performance evaluations” which supposedly ridiculed and reprimanded plaintiff is a blatant misrepresentation of the evidence. (Opp. 8:12-13) Other than the assertion in the Opposition, plaintiff fails to identify any negative performance evaluation. Further, the emails produced by plaintiff as Exhibit 3 to her Compedium of Evidence, which are not performance evaluations, largely praised plaintiff for clearing the CL-22 list and overall described the work that needed to be done. (See also Defendant's Evidentiary Objections to Compedium of Evidence, concurrently filed herewith). Overall, plaintiff failed to show a “materially adverse change in the terms and conditions of her employment.” Michael v. Caterpillar Fin'l Services Corp. (2007) 496 F3d 584, 593. Plaintiff fails to present any evidence to dispute the facts showing the absence of any adverse employment action and instead mischaracterizes such events to lead to misleading and false allegations. Thus, even if all these actions were analyzed under the “totality of the circumstances,” it would fail to constitute an adverse employment action. 117 3. REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 30 0 S O U T H G R A N D A V E N U E , S U I T E 13 00 o N Nn ek W N No no No No No n o ph po pk - pd pk - ) ps t B. The County’s Actions Were Based On Legitimate, Non-Discriminatory Reasons. Here, the defendant has articulated legitimate nondiscriminatory reasons for each of its actions. In 2015, plaintiff's printer was removed as a part of a County-wide ordinance to remove most personal printers. Plaintiff’s then-supervisor, Mr. Monteilh did not have an input on which employees can keep printers. (UMF 6) Further, plaintiff did not advise Mr. Monteilh of her need for a personal printer until after her printer was removed. (UMF 17) Thus, without knowledge that plaintiff had a disability that required her to have a printer, it would logically follow that the removal of the printer is “factually unrelated to prohibited bias” and would preclude a finding of discrimination. Guz v. Bechtel Nat'l. Inc. (2000) 24 Cal.4th 317, 358. Plaintiff further attacks Mr. Monteilh’s belief that that plaintiff’s printer was not left behind because she did not print highly confidential material as false. However, even if Mr. Monteilh was mistaken, this does not show a discriminatory motive. Villarimo v. Aloha Island Air, Inc. (2002) 281 F3d 1054, 1063; KA4riotis v. Navistar Int’l Transp. Corp. (1997) 131 F3d 672, 676; see also Guz v. Bechtel Nat'l, Inc. Supra 24 Cal 4th 1t 258. (An employer’s reasons if honestly believed and no discriminatory on their face may preclude a finding of discrimination, even if such reasons as “foolish or trivial or baseless).” Further, as explained above and in the moving papers, the remaining alleged adverse employment actions were based on non-discriminatory reasons even if plaintiff disagrees with them. The soundness of defendant’s decision is not at issue; plaintiff “cannot simply show that the [County’s| decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the [County], not whether the [County] is wise, shrewd, prudent, or competent.” Hersant v. Dep't Soc. Sves. (1997) 57 Cal. App.4th 997, 1005 (emphasis added). C. Plaintiff Has Failed To Set Forth Evidence of Pretext. Here, plaintiff claims pretext because the odd technician who was tasked to physically remove her printer in 2015 suggested that plaintiff speak with her superior, Mr. Monteilh about keeping her printer. (Opp. 9:7-16). Plaintift concludes that since the technician suggested her to speak with Mr. Monteilh, Mr. Monteilh had input and authority over how the County of Los Angeles should manage its equipment. (Opp. 9:7-16). Plaintiff does not offer any evidence 4 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 30 0 S O U T H G R A N D A V E N U E , SU IT E 13 00 © e e a a Wn Re WwW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regarding the title, rank, position, credentials, or mindset of the technician to provide credence to his statement. Since plaintiff does not provide context on whether the technician had authority to unequivocally assert that Mr. Monteilh had the mandate to decide which printers were to be kept or if he was simply giving friendly advice, such contention is weak and does not support a finding of pretext. Based on this assumption alone, “a rational fact finder could not conclude the employer’s action was discriminatory.” Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. at 148. Plaintiff also failed to create any issue of fact to overcome defendant’s remaining business actions. She attacks Mr. Monteilh’s declaration stating that the reason plaintiff was not included in meetings and emails is because they did not pertain to her duties by stating it was “self- serving.” However, the law is clear, that the moving party’s declarations are self-serving is not enough to prevent summary judgment. Unless controverted, they ordinarily must be accepted as true on a motion for summary judgment. Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 638 (disapproved on other grounds by Connor v. First Student, Inc. (2018) 5 C5th 1026, 1038; Ayon v. Esquire Deposition Solutions, LLC (2018) 27 CAS5th 487, 496. It is also illogical for plaintiff to all of a sudden claim that taking her supply room keys away from her after her return from medical leave in 2017 as a pretext for discrimination because she has claimed discrimination based on disability ever since her printer was taken away in 2015. In passing, plaintiff also claims but again does not offer any evidence other than her belief that she “was not accommodated” because of her race and age and that the defendant preferred younger employees who were not African American and that her supervisors did not like her. (Opp. 10:24-27) However, a belief does not offer any probative value to support pretext. Defendant is entitled to judgment as a matter of law because the record conclusively reveals some other nondiscriminatory reason for the business decisions. Alternatively, plaintiff only created a “weak issue of fact” (if at all) as to why the defendant’s reason was untrue and there is abundance and incontrovertible independent evidence that no discriminatory occurred. Reeves v. Sanderson Plumbing Products, Inc. Supra, 530 U.S. at 148. Here, plaintitf has failed to meet her burden of proof as a matter of law. Since the alleged -5. REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P 30 0 S O U T H G R A N D A V E N U E , S U I T E 13 00 LO S A N G E L E S , C A L I F O R N I A 80 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 N e e a a N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adverse employment actions are mischaracterizations of the facts, she fails to establish a prima face case of discrimination. Nonetheless, the defendant has legitimate, non-discriminatory reasons for its actions, which plaintiff fails to prove as “pretext” for unlawful discrimination. McDonnell Douglass Corp. v. Green (1973) 411, US 792, 802-804. Thus, the discrimination causes of action must be adjudicated on behalf of the defendant. Lastly, because plaintiffs discrimination claims cannot survive summary judgment, her failure to take correction action must also be adjudicated in favor of the defendant. See Trujillo v. N. Cnty. Transit Dist. (1998) 63 Cal.App.4th 280, 289. IV. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFF'S HARASSMENT CLAIM. Generally, an employee claiming harassment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their protected characteristic (in this case Plaintiff's disability). See Lyle v. Warner Brothers Television Productions, (2006) 38 Cal. 4th 264, 279 (“Lyle”) [concerning sexual harassment]; See also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121, 126. As further dictated by Government Code § 12940(j)(1) and/or accompanying case law, it is also part of the plaintiff's burden to show that the severe and pervasive treatment took place because of the protected characteristic and not for some other reason. See also Lyle, supra, 38 Cal.4th at p. 279 [discussing requirement that harassment pertain to protected characteristic in gender harassment context]. Accordingly, allegations related to plaintiff's request for a printer do not fall withing her harassment cause of action because they were taken away as part of a larger County-wide mandate. Unsurprisingly, plaintiff again recycles the same alleged wrongful actions in her discrimination claim as a catch-all, general purpose allegation. However, "commonly necessary personnel management actions . . . do not come within the meaning of harassment." Reno v. Baird (1998) 18 Cal.4th 640. 646-647. Actions such as “office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment &- REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P LO S A N G E L E S , CA LI FO RN IA 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 30 0 S O U T H G R A N D AV EN UE , SU IT E 13 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like . . . may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.” /d. Plaintiff’s claim regarding reduction of her support staff and being excluded from attending meetings, email and activities do not fall under harassment because they are commonly necessary personnel management actions. Plaintiff claims that the defendant’s actions “could affect her job performance and ability to advance” without offering any facts such as denied applications for promotions to support such assertion. (Opp. 13:23-24) However, evidentiary facts are required to support a summary judgment. Conclusions of fact or law are not sufficient. Hayman v. Block (1986) 176 Cal.App.3rd 629, 639-639. “When a plaintiff cannot point to a loss of tangible job benefits, he or she must make a ‘commensurately higher showing that the [| harassing conduct was pervasive and destructive of the working environment.” Lyle, supra, 38 Cal.4th at p. 284 [quoting Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 610] [emphasis added]. Thus, even if we were to take the “totality of the circumstances,” plaintiff's harassment claim fails as she does not have any evidentiary facts as to how the alleged harassment affected her job performance and ability to advance. Lastly, plaintiff improperly attempts to support her harassment claim with theories not previously alleged in her pleadings. Here, plaintiff's claims a “third party who witnessed the conduct” filed a grievance against plaintiff's supervisor Ms. Munoz a mere three months ago supports her claim for harassment. This is improper not only because it is speculative and lacks foundation but also because the pleadings, with the operative complaint filed in March 2019, set the boundaries in adjudicating a motion for summary judgment. (See Section II, supra) Thus, such allegations should be disregarded for the purpose of adjudicating this motion. V. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFE’S RETALIATION CLAIM. The only new argument plaintiff offers to support her retaliation claim is that a causal connection exists to support retaliation because in addition to stating she did not know whether she was treated 7 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 30 0 S O U T H G R A N D A V E N U E , S U I T E 13 00 $$ Nd S N Wn Re W N N O R O N O N I N N em e m mm p m e m e m e m e k p l differently after she filed her grievances, she also stated that it was also a “possibility.” Additionally, she also states, Ms. Munoz was “treating her poorly even before” her grievances. (See Defendant's UMF 225 - Exh. K, Pltft’s Depo Vol 11, 307:23-24) However, plaintiff must present more than speculation. [A] material triable controversy is not established unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant's proffered explanation.” Cucuzza v. City of Santa Clara (2002) 104 Cal. App.4th 1031, 1038. Thus, since plaintiff only offers speculation to argue retaliation and even admits that one of her supervisors “treated her poorly” even before filing her grievances, there would be no causal link to support her retaliation claim. VI. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFF'S FAILURE TO ACCOMMODATE CLAIM. In response to plaintiff's multiple medical restrictions, the defendant has offered plaintiff the following accommodations: (1) printing on secure mode to lessen her trips to the community printer; (2) moving to offices closer to the community printer to lessen her walk to the community printer, (3) getting up and moving more frequently; and (4) completing the CL-22 project at a rate of one page per week. (UMF 355, 363-364, 370, 375) The only accommodation plaintiff refused was moving offices. Plaintiff does not dispute that she did accept as accommodation printing on secure more and completing the CL.-22 project at a rate of one page per week. (UMF 355, 363- 364, 370, 375) Now plaintiff argues that she only accepted printing on “secure print mode’ because it was all she could get” and it was “better than nothing, which was her only other option” (which is actually false as she could have moved offices). (Opp. 16:4-6.) Further, she argues that she only accepted completing the CL-22 list at a pace of one page per week “as lip service.” (Opp. 16:4- 6.) The undisputed facts show that every time plaintiff presented the defendant with new medical restrictions, the defendant engaged in an interactive process meeting with plaintiff to discuss reasonable accommodations. On each occasion, plaintiff accepted and literally signed off on accommodations such as printing on secure mode or completing the CL-22 list at one page per week. For plaintiff to now claim that the defendant failed to provide reasonable accommodations because she did not really want to accept the accommodations shows that the plaintiff did not -8- REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P 30 0 S O U T H G R A N D A V E N U E , S U I T E 13 00 L O S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 engage in the interactive process in good faith. The law does not hold the employer to be a mind- reader and conclude that plaintiff meant to refuse these accommodations even if she said stated acceptance. Further, “FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks. Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App.4th 215, 228, 87 Cal.Rptr.2d 487. It requires only that the accommodation chosen be "reasonable." Raine v. City of Burbank (2006) 135 Cal. App.4th 1215. The defendant provided plaintiff with reasonable accommodations, which in this case was accepted by plaintiff on multiple occasions. VII. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT REGARDING PLAINTIFF'S FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS CLAIM. Plaintiff essentially claims the defendant failed to engage in the interactive process in “good faith” because it neither offered nor discussed moving the community printer closer to plaintiff's office. This is both an incorrect assertion of the facts and an improper interpretation of the law. First, plaintiff’s own deposition testimony and the interactive process meeting (“IPM”) notes conducted on October 21, 2015 show that moving the “copier/printer” closer to plaintift’s office was discussed by plaintiff and the defendant as a possible accommodation. (See UMF 326) More importantly, plaintiff mistakenly conflates her dissatisfaction with not getting desired accommodation as a violation of the law. To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred. Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359. 379; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018 (Scotch); Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal. App.4th 952, 984. While an employee cannot be expected to identify available accommodations during the interactive process itself, the employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage. (Scotch, supra at 1018-1019). Here, while plaintiff identified moving the community 9. REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P LO S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 42 6- 20 00 30 0 S O U T H G R A N D AV EN UE , SU IT E 13 00 eo 0 1 N N da W N N O N O N N N N N N em e m mm ge m em e m m d em e w e m printer as her desired accommodation, she has not offered any evidence that it was an available reasonable accommodation at the time of her interactive process. To engage in the interactive process in good faith, “both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.” “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” Swanson v. Morongo Unified School Dist. (2014) 232 Cal. App.4th 954, 971-972. Through the various [PMs conducted to address plaintiff's requests for accommodation and the communications between plaintiff and Kim Pickett from the Return to Work Unit to address plaintiff's request for accommodation, the defendant kept its obligation to keep communications open and engage in a good faith interactive process. However, if plaintiff now claims she misrepresented her acceptance of the defendant’s reasonable accommodations, then any breakdown in the interactive process should not be attributed to the defendant. VII. PLAINTIFF'S CLAIM FOR GENDER DISCRIMINATION MUST BE ADJUDICATED ON BEHALF OF THE COUNTY. Since plaintiff's Opposition is silent as to how her claim for gender discrimination is barred as a matter of law for failure to exhaust administrative remedies, plaintiff's second cause of action for gender discrimination should be adjudicated on behalf of the defendant. DATED: January 9) , 2020 HURRELL CANTRALL LLP THQMAS C. HURRELL MARIA TUASON Attorneys for Defendant, COUNTY OF LOS ANGELES (erroneously sued as Los Angeles County Probation Department) -10- REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION H U R R E L L C A N T R A L L LL P L O S A N G E L E S , C A L I F O R N I A 90 07 1 T E L E P H O N E (2 13 ) 4 2 6 - 2 0 0 0 30 0 S O U T H G R A N D A V E N U E , S U I T E 13 00 = S N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, | was over 18 years of age and not a party to this action. [ am employed in the County of Los Angeles, State of California. My business address is 300 South Grand Avenue, Suite 1300, Los Angeles, California 90071. On January 31, 2020, [ served true copies of the following document(s) described as DEFENDANT COUNTY OF LOS ANGELES’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION on the interested parties in this action as follows: Joseph Farzam, Esq. Attorneys for Plaintiff Janice Pearson JOSEPH FARZAM LAW FIRM 11766 Wilshire Boulevard, Suite 280 Los Angeles, CA 90025 Tel: (310) 226-6890 Fax: (310) 226-6890 BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. [ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 4° ) Executed on January 31, 2020, at Los Angeles, California. _iv- REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION