Opposition To DemurrerOppositionCal. Super. - 2nd Dist.August 20, 2018Electronically FILED O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O y Superior Court of California, County of Los Angeles on 06/23/2020 10:06 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J . Lara,Deputy Clerk LAW OFFICES OF HELENA S. WISE, Bar No. 91163 1907 W. Burbank Boulevard, Suite A Burbank, California 91506 Telephone No. (818) 843-8086 Facsimile No. (818) 843-7958 Attorney for Plaintiff MITRA RASHTI SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES MITRA RASHTI, Plaintiff VS. COUNTY OF LOS ANGELES, ET AL., PLAINTIFF'S OPPOSITION TO DEMURRER ) Case No. BC 718438 ) (Hon. Laura Seigle, Dept.48) ) ) PLAINTIFF'S OPPOSITION TO ) DEMURRER ) (Filed with Request for Judicial Notice, ) Wise Declaration and Opposition to ) Motion to Strike) ) ) Date: July 7, 2020 Time: 8:30 a.m. ) Complaint Filed: 8/16/2018 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O TABLE OF CONTENTS I) PRELIMINARY STATEMENT II) FACTUAL STATEMENT a) Generally b) Writ Proceedings ¢) Individual Defendants III) STANDARD ON DEMURRER DIFFERENT THAN ON SUMMARY JUDGMENT IV) HARASSMENT EXISTS a) PERSONNEL ACTIONS SUPPORT THESE CLAIMS b) EVENTS ARE SEVERE AND PERVASIVE V) PRIMA FACIE DISCRIMINATION IS SUFFICIENTLY PLED VI) UNLAWFUL RETALIATION HAS BEEN ESTABLISHED VII) FAILURE TO ACCOMODATE CLAIM VIII) PLAINTIFF HAS NOT SPLIT CLAIMS CONCLUSION PLAINTIFF'S OPPOSITION TO DEMURRER 2 11 12 12 12 14 17 18 21 22 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m co I O N nm BRA W N = DO O O O N B R A W N = O Table of Cases Alch vs. Superior Court (2004), 122 Cal. App. 41 339 Alvarado v. Board of Trustees, (4th Cir. 1991), 928 F.2d 118 Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105 Beck v. Univ. of Wis. Bd. of Regents (7th Cir. 1996) 75 F.3d 1130 Burlington Northern & Santa Fe vs. White (2006) 548 US -- Castleman v. Acme Boot Co., (7th Cir. 1992), 959 F.2d 1417 Colarossi vs. COTY, Inc. (2002), 97 Cal. App. 4th 1142 Desert Palace, Inc., vs. Costa, (2003) 539 US 90 Dominguez-Cruz v. Suttle Caribe, Inc., (1st Cir. 2000), 202 F.3d 424 Flaitv. North American Watch Corp. (1992) 3 Cal.App.4th 467 Gelfo vs. Lockheed (2006) 140 Cal. App.4th 34 Goodman v. Kennedy (1976) 18 Cal.3d 335 Gressley v. Williams (1961) 193 Cal.App.2d 636 Guz vs. Bechtel National, Inc. (2000) 24 Cal. 41317 Hammond vs. County of Los Angeles (2008), 160 Cal. App.4™" 1579 Harris vs. Forklift Systems (1993), 510 US 17 Hunt-Golliday v. Metropolitan Water (7th Cir.1997) 104 F 3d 1004 In re Adelphia Recovery Trust 634 F 3d 578, 694 (2™ Cir., 2011) Intlekofer vs. Turnage (9 Cir., 1992), 973 F.2d 773 Jensen vs. Wells Fargo Bank (2000), 85 Cal. App.4th 245 Kobrin v. University of Minn., (8th Cir. 1994), 34 F.3d 698 Knickerbocker vs. City of Stockton (1988), 199 Cal. App.3d 235 MecAlindin vs. County of San Diego, (9 Cir., 1999), 192 F 3d 1226 Miller vs. Department of Corrections (2005), 36 Cal.4th 446 MeVine vs. Weis (2001), 90 Cal App. 4th 201 PLAINTIFF'S OPPOSITION TO DEMURRER 3 19 16 19 19 13-14 16 16 15 16 17 21 11 11 passim 15 12 20 21 13 17;.21 16 21,22 18 12 18 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m co I O N nm BRA W N = DO O O O N B R A W N = O Nazir v. United Airlines, Inc. (2009) 178 Cal. App.4th 243 12 Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal. App.4"952 20 Noviello v. City of Boston, (1* Cir., 2005), 398 F 3d 76 13 O'Regan v. Arbitration Forums, Inc., (7" Cir., 2001), 246 F.3d 975 16 Passantino vs. Johnson & Johnson (9th Cir., 2000), 212 F 3d 493 14 Prilliman vs. United Air Lines, Inc. (1997), 53 Cal. App.4" 935 18 Reeves vs. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 passim Reid vs. Google, Inc. (2010), 50 Cal.4th 512 12 Reno v. Baird (1998), 18 Cal.4th 640 12 Richards vs. CH2M Hill, Inc. (2001) 26 Cal.4™ 798 11,19 Roby v. McKesson Corp. (2009) 47 Cal. 4" 686 12,15 Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal. App.4™ 138 16 Schmitz v. St. Regis Paper Co., (2d Cir.1987), 811 F.2d 131 16 Scotch v. Art Institute Of California-Orange County, Inc., 173 Cal. App. 4th 986 20 Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398 12 Spitzer vs. Good Guys, Inc., (2000), 80 Cal. App.4™ 1376 18 Staub v. Proctor Hosp., (2011), 131 S.Ct. 1186 12 Stevens v. Superior Court (1999) 75 Cal.App.4th 594 11 Strother vs. Southern California Permanente Group (9th Cir., 1996), 79 F 3d 859 14 Thurman v. Yellow Freight Sys., Inc., (6th Cir. 1996), 90 F.3d 1160 Washington v. Garrett, (9 Cir., 1993), 10 F.3d 1421 Yanowitz vs. L'Oreal USA (2005) 36 C 4th 1028 Yartzoff vs. Thomas (9th Cir., 1987), 809 F 2d 1371 PLAINTIFF'S OPPOSITION TO DEMURRER 4 16 16 passim passim BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m c o I A N Ln BA W N = O VO N N N B R A W N = O Federal Guidelines: 29 C.F.R § 1630.9 App. (1999) 1; California Ngi kwcvigp: Senate Bill 1300, 2018 Cal. Legis. Servic. Ch. 955 11 California Statutes: 11 Code of Civil Procedure § 452 Government Code § 31725 passim Treatises: Chin et al., Cal. Practice Guide: Employment Litigation [The Rutter Group) 17 (TRG 2005)], § 7:356 Chin et al., Cal. Practice Guide: Employment Litigation [The Rutter Group 19 (TRG 2010)], 4 9:673 EEOC Compliance Manual, Para. 8008 13 PLAINTIFF'S OPPOSITION TO DEMURRER 5 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O I INTRODUCTION The Defendants favorite phrase on this Demurrer is claiming there are no “supporting facts” pled in the First Amended Complaint, while erroneously claiming that the Writ before Judge Chalfant which arose because Rashti’s LACERA Application for Disability Retirement was turned down on March 14, 2014, prevents the instant DFEH action from proceeding. Rashti begs to differ. Unlike the original Complaint, the First Amended Complaint exhaustively recites facts against each of the named Defendants to overcome the current demurrer which is written more like a Summary Judgment Motion. The facts against Jeff Howard, Hector Bordas and Amir Ibrahim clearly show that Rashti was harassed over an extended period of time because of her national origin, religion, disabilities, age and protests. (Compare Original Complaint, Plaintiffs Request for Judicial Notice (Plain. RJN) Harassment Cause of Action, Exhibit A at 9 43-51, pages 16-17, with the First Amended Complaint, 943 with subparagraphs relative to the individually named Defendants: pages 15-19, subqq i-xiv relative to Jeff Howard), pages 19-20, sub" i-vi regarding Hector Bordas, and pages 20-24, sub{{i-xiv pertaining to Amir Ibrahim. These facts collectively establish establish harassment and support each of the claims for discrimination, retaliation as well as the failure to engage in a good faith interactive. At the same time, the passage of Senate Bill 1300, 2018 Cal. Legis. Serv. Ch. 955, frowns upon allowing Employers, including Public Sector employers like the County of Los Angeles, let alone individual defendants, to escape liability in this type of case, without first empaneling a jury. As for the Writ action, the Judgment is not final, while the Separate Statement mandated by the Appeal is not even set to be heard by Judge James Chalfant until July 30, 2020. (Declaration of Helena S. Wise, at 9 3-4 and Exhibit “A” thereto; Also see Judgment, page 1, 2" 9, attached as Exhibit “B” to Defendants Request for Judicial Notice wherein the Court specifically stated the Court’s written ruling was “modified, and further expanded upon by the court in the transcript of the proceeding”. Those rulings are significant because Judge Chalfant himself has expressed a preference for Rashti’s claims pertinent to a failure to accommodate Rashti’s disabilities to be heard in the instant DFEH action, and may need to rehear the matter if a Separate Statement cannot be achieved. PLAINTIFF'S OPPOSITION TO DEMURRER 6 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O II) FACTUAL STATEMENT a) Generally Rashti, Jewish, is an Architectural Assistant, who immigrated to the United States from Israel with dreams of becoming an architect. She joined the County in 1988 and in the intervening 30 years has been deprived of not only the opportunity to promote, but the salary and benefits that she should have received for close to one-third of that time. (FAC 9 7, 12, 16). After Rashti reported asbestos in several County buildings in the early 1990s, Rashti became a target for abuse. A box of books, during a staff meeting, fell from above and hit Rashti on the back, neck and shoulders. Those injuries have been exacerbated since, resulting in determinations that Rashti suffers from neurological, orthopedic, macular and psychiatric disabilities. (FAC 998, 10.) Although Rashti wanted to work, the County, largely through the efforts of Jeff Howard refused to accommodate Ms. Rashti, particularly once Ms. Rashti refused to accept a regular retirement in exchange for Long Term Disability pay, since Ms. Rashti was seeking a disability retirement as well as the right to continue working as well. (FAC qq 10-16). b) Writ Proceedings Once her disability application was turned down on March 11, 2014, the County finally capitulated and reinstated Rashti on July 1, 2014, largely due to Government Code § 31725. Said statute insists that an employee who is denied a disability retirement has a right to reinstatement and a make whole remedy covering the period of time he or she has not been accommodated. (FAC 9 14). Although the back pay and benefit losses owing prior to July 1, 2014 was before Judge Chalfant on a Writ, the actions of the County which have evolved since were not. Judge Chalfant stated that the actions taken against Ms. Rashti should be considered in a DFEH action relative to a failure to accommodate Ms. Rashti, with that ruling the reason why Rashti persists in seeking a Settled Statement that the parties have been directed to attempt to agree upon. The Court signed a Judgment which was subject to modifications made during the hearing, but unfortunately the Court’s statements in those regards were lost when the assigned Court reporter experienced a computer malfunction. (Wise Decl., 9 3-4). For reasons advanced herein, a DFEH action can clearly redress the failure to accommodate Rashti not only dating back to 2006 but up to the present as well, independent of any Writ action arising under Government Code Section 31725 because of the denial of Rashti’s PLAINTIFF'S OPPOSITION TO DEMURRER 7 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O disability application. At the same time, the actions of individually named Defendants and others ever since have been designed to force Rashti out, if not to penalize her for daring to complain of ongoing acts of discrimination, harassment and retaliation, including a failure to accommodate her well known physical disabilities, ever since the summer of 2016 when Jeff Howard and his superiors decided the County would not make Rashti whole for her prior losses. (FAC q 16). b) Individual Defendants Although Defendants claim insufficient facts have been pled to establish harassment, discrimination, retaliation and a failure to accommodate, Rashti again disagrees. In addition to the general paragraphs, 9 8-41, Rashti expanded upon these allegations when referencing the particular Defendants and the role played relative to the hostile and abusive environment to which Rashti was subjected. Relative to Jeff Howard, see pages 15-19 of the First Amended Complaint, at paragraph 43, detailing 14 continuous actions that Howard was involved in between 2007 and up to present. The lionshare of Howard’s actions were undertaken after Rashti was allowed to return to work on July 1, 2014, while the Interactive Meetings Howard was involved in have two sets of minutes since Rashti and her Union representative disagreed with the “slanted” ones prepared by Howard and his staff. Despite full knowledge of Rashti’s need for accommodations and the medical restrictions which were issued by the Agreed Upon Medical Examiner, Dr. Alex Angerman, i. e. 15 minute breaks to stand and stretch (FAC, 17), Howard feigned ignorance of same. Howard had been involved in most of the Interactive Meetings leading up to Rashti’s reinstatement and thus his credibility is sorely lacking. Howard and his cohorts, Victor Bordas and Amir Ibrahim, with their roles separately referenced in Paragraph 43, as well, see pages 19-20 (Bordas) and 20-24 (Ibrahim) then jointly and publicly subjected Rashti to more onerous working conditions, making her a spectacle in front of her colleagues. (FAC q 18-19, 24, 26-28, 31-34). These Defendants also deprived Rashti of unimpeded training like her colleagues, as well as accommodations and ergonomic equipment that had been ordered for Rashti, i.e. a stool, two work stations for sitting and standing and a floor mat. These Defendants also docked Rashti’s pay when Rashti would stop and stretch, as mandated by PLAINTIFF'S OPPOSITION TO DEMURRER 8 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O the very medical restrictions which Howard feigned ignorance of. (FACY17, 30). At the same time, Rashti was followed to the bathroom by Ibrahim, denied the same start time as others and was forced to take a longer lunch break so that her pay was substantially shorted as well. (FAC q 20-22, 24, 30.) Although Rashti had been working in the Architectural Unit up through the summer of 2016, that assignment was curtailed when Rashti sought to press her grievances including with the Civil Service Commission to be made whole for the years Rashti was not allowed to work, pursuant to Government Code Section 31725. (FAC qq 11-15, 18-19.) Shortly thereafter Rashti was moved to a different floor by Howard and Bordas whereupon Rashti was placed under the supervision of Amir Ibrahim, Egyptian. From that point forward, Bordas and Ibrahim have issued highly dilatory performance evaluations which Rashti has been denied an opportunity to even object to, with the evaluation for 2016-17 issuing in 2019, even though Ibrahim was removed as Rashti’s superior in April 2017. The Evaluations prior to the summer of 2016 were all Competent. (FAC 15, 35) Amir Ibrahim has also made a point of openly scoffing at Rashti, including forcing her to do her stretches in a public area where all co-workers could see, while also discussing Rashti’s medical needs and accommodations in a public setting as well. Besides following Rashti to the bathroom, Ibrahim sent Rashti an e-mail at 4 A.M.; openly bragged that he knew how to “take care of her”, and denigrated Rashti by suggesting that Rashti should be “like his wife and stay in the kitchen.” (See FAC, 19, and then see Ibrahim, at pages 19-20, FAC 4399, iv, vi, vii, at pages 20-23.) (FAC qq Collectively, Rashti’s training on current CADD programs was also deliberately impeded by Ibrahim. For some strange reason the County claims that Rashti references being assigned to a student worker for training, citing FAC 99 25-26. That is not what Rashti has claimed. Instead, Rashti alleges that the individual Defendants, knowing full well Rashti needed current training, declined to send Rashti to classes between January 2017 and April 2017, on the guise there was no training. However, DPW sent student workers to the classroom training instead and allowed Ibrahim to interfere with training provided to Rashti in her public workspace. Ibrahim refused to allow the instructors to refresh Rashti who had not worked with CADD in more PLAINTIFF'S OPPOSITION TO DEMURRER 9 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O than ten years, but insisted that she start at a higher level in a project, knowing full well that Rashti did not remember the earlier steps and thus would be set up for failure. Howard, Bordas and Ibrahim knew that Rashti could have been sent to the same classroom setting like younger employees, including Student Workers, but refused to so assign Rashti. (FAC 9 20-21, 26-27). Simultaneously, when Ergonomic experts recommended stools and dual work stations for Rashti, DPW, by and through Bordas, Howard and Ibrahim refused. After Rashti protested the harassment (FAC 925, 36), Ibrahim then interfered with Rashti’s ability to timely attend her Seder for Passover. (FAC 929). Ibrahim was then reassigned and Dave Diotalevi assumed responsibility for Rashti. Diotalevi set up dual work stations and was allowing Rashti to proceed with her tasks. However, Diotalevi was suddenly told that Rashti was no longer assigned to Design, but rather was being sent to Fleet Management instead, whereupon Rashti’s ergonomic chair was lost in the transition. (FAC 99 31-34.) By then, Jeff Howard and Hector Bordas insisted that Rashti’s pay check be docketed for every moment that she honored her medical restrictions, namely stretching and standing. Close to one-third of Rashti’s pay was docked commencing in May 2017 and up through the beginning of October 2017 because Howard decided the County did not have to honor the work restrictions, even though Rashti’s disabilities arose as an industrial injury which has impacted her mobility and major life activities every since. (FAC 9 10, 17, 74-78). To add further insult to injury, Howard, Bordas and Ibrahim caused Rashti, an architectural assistant to be assigned as a glorified “greeter” in the Fleet Management Unit where cars are fueled. This was quite traumatic because Rashti had been responsible for designing that working space in the late 1990s, but found her name left out of the commendation. (FAC 4 15-16, 31, 34). Rashti, who suffers from macular problems was placed in a poorly lit breakroom area where she was expected to perform clerical tasks in front of employees watching television, on their breaks. Undoubtedly Rashti need to do her job conflicted with the desires of male employees who wanted to take their breaks inside because of the temperatures outside. Rashti was then given a desk belonging to a student worker, without a place to secure her belongings and was expected to stretch in a tiny bathroom. (FAC 9931-34, 43 vi-vii re Howard). When Rashti asked for better lighting, she was punished and openly questioned in front of her colleagues, including her request PLAINTIFF'S OPPOSITION TO DEMURRER 10 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O for ergonomic accommodations. Although Rashti was eventually told she could walk outside on her breaks, same was not conducive due to triple digit temperatures. (FAC 99 32-34). Because Rashti was contemporaneously challenging the failure of her former Workers Compensation Attorney to obtain Retroactive Vocational Rehabilitation monies that were due to Rashti, in a trial that commenced in September 2017, Rashti was then suddenly removed from work completely and has not been returned to work since. (FAC 938-39). She has since learned others were promoted, yet she did not know about the opportunity to compete for same. III) ARGUMENT A) DEMURRER STANDARD DIFFERENT THAN ON SUMMARY JUDGMENT Defendants’ Demurrer sounds more like a Motion for Summary Judgment, even though this stage of the pleadings is not the time or place to assess credibility or the type of evidence Rashti will offer to substantiate her allegations. In fact, Rashti is not even allowed to present her evidence. If, however, the FAC is considered deficient, then it would be error for the demurrer to be sustained without leave to amend, since the claimed defects can be cured through additional amendments. In ruling on a demurrer, a court construes the complaint “liberally . . . with a view to substantial justice between the parties.” Code Civ. Proc. § 452; see Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601. A complaint that shows some right to relief, even if the facts are not clearly stated, is generally held sufficient against demurrers. Gressley v. Williams (1961) 193 Cal.App.2d 636, 639. Even if a demurrer is sustained, leave to amend a complaint is routinely granted. It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that the plaintiff can state a good cause of action. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Since plaintiff here has pled sufficient facts to state proper claims against defendant, the Court should overrule the demurrer. This is especially so since the Legislature has broadly endorsed allowing cases of this nature to be tried by a jury, including when only one act within a statutory time frame has occurred. Senate Bill 1300, 2018 Cal. Legis. Serv. Ch. 955. Additionally, ample caselaw shows that cases of this nature require application of several principles of law, including totality of the circumstances and continuing violation tests as well as the stray remarks/cat’s paw doctrine. Yanowitz vs. L'Oreal, Inc. (2008), 36 Cal.4™ 1028, 1059; Richards vs. CH2M Hill, Inc. (2001), 26 PLAINTIFF'S OPPOSITION TO DEMURRER 11 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m c o I A N Ln BA W N = O VO N N N B R A W N = O Cal.4™ 798, 823; and Reid vs. Google, Inc. (2010), 50 Cal.4th 512, 539; Staub v. Proctor Hosp., (2011), 131 S.Ct. 1186 and Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 402. Each of those doctrines would be eviscerated if the demurrer were granted at this time. B) HARASSMENT HAS BEEN ESTABLISHED 1) PERSONNEL ACTIONS SUPPORT THESE CLAIMS Notwithstanding Defendants claim to the contrary, the Supreme Court in Roby v. McKesson Corp. (2009) 47 Cal. 41 686, 706, has clearly stated that harassment now may be established by reference to a supervisor’s acts that are connected to business and personnel management decisions. Naturally, Defendants seek to ignore Roby completely. Herein, widespread favoritism in the workplace favoring younger Caucasians over disabled and older Jewish employees can constitute harassment against the nonfavored employees, in the same way that in Miller vs. Department of Corrections (2005), 36 Cal.4th 446, cited in Roby, supra, sexual favoritism supported a claim of sexual harassment from nonfavored employees. 2) EVENTS ARE SEVERE AND PERVASIVE As Yanowitz, supra, at 1055-56 found, summary judgment had to be reversed in a case involving claims of retaliation and retaliatory harassment following protected activities. Subjecting an employee to a hostile work environment, including continuous insults and harassment after an employee protests unlawful treatment, can constitute unlawful adverse employment actions. Yanowitz, supra, at 1059. (FAC 9 925, 36, reporting of harassment by Rashti). Furthermore, whether harassment is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive environment, an assessment must be made “from the 'perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff”, and not the race of the County's attorneys nor named Defendants herein. Nazir v. United Airlines, Inc. (2009) 178 Cal. App.4th 243, 263-265. Harris vs. Forklift Systems (1993), 510 US 17, to be actionable abusive work environment harassment, the standard applied is whether a reasonable person would find the environment hostile or abusive, while the effect on an employee’s psychological well-being is relevant, but not necessary. A workplace permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the PLAINTIFF'S OPPOSITION TO DEMURRER 12 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m c o I A N Ln BA W N = O VO N N N B R A W N = O conditions of an employee’s employment, creates an abusive working environment. Similarly, the United States Supreme Court as well as the California Supreme Court have refused to distinguish between harassment because of one's protected characteristics and retaliatory harassment Burlington Northern & Santa Fe Railway Co. vs. White (2006), 548 US ---. “Title VIIs substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”. Yanowitz, supra, at 1055-56 and 1062, “Harassment as retaliation for engaging in protected activity should be no different (than harassment based on race and gender) - it is the paradigm of adverse treatment that is based on retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual, Para. 8008. Transfers of job duties and undeserved performance ratings likewise will suffice. Yartzoff vs. Thomas (9 Cir., 1987), 809 F 2d 1371, 1376. "[T]here is no requirement that an employer's [discriminatory] acts constitute one swift blow, rather than a series of subtle, yet damaging injuries. (Yanowitz, supra, 36 Cal.4th at 1123.) In light of the conduct and actions of Defendants towards and behind Rashti’s back, an abusive work environment clearly arose. Once placed on notice that she was being harassed, Howard and Bordas had an obligation to respond. They did not, but instead allowed Ibrahim to continue to sabotage Rashti’s training, interfered with ergonomic accommodations, and even kept Rashti from making it to her Seder on time. See Intlekofer vs. Turnage (9 Cir., 1992), 973 F.2d 773, once placed on notice of harassment, an Employer has an affirmative obligation to remedy the harassment, .. once it learns that harassing behavior has not stopped. “If the employer fails to take even the mildest form of disciplinary action”, the remedy is insufficient under Title VII and DFEH, as well. 1d., at 779. Herein, although Ibrahim ceased being Rashti’s supervisor, ironically he returned to issue the derogatory evaluations complained of, even though purportedly he was not the supervisor. Actions that threaten to derail an employee's career are objectively adverse(...). See Noviello v. City of Boston, (1% Cir., 2005), 398 F 3d 76, cited approvingly in Yanowitz, supra, at 1059, [analysis of effect of Employer conduct should include "the relative ubiquity of the .. conduct, its severity, its natural tendency to humiliate . . . a reasonable person, and its capacity to PLAINTIFF'S OPPOSITION TO DEMURRER 13 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O interfere with the plaintiff's work performance."].) Reno vs. Baird (1998), 18 Cal.4th 640, 646-648 "conduct presumably engaged in for personal gratification, because of meanness or bigotry or for other personal motives .. is not conduct necessary for management of an employer's business." As noted in para. 43 of the FAC, Howard, Bordas and Ibrahim did just that. 0) PRIMA FACIE DISCRIMINATION IS SUFFICIENTLY PLED Rashti believes she has more than sufficiently pled national origin, religious beliefs, disability and age discrimination. If this court disagrees, then leave to amend should be permitted. Ibrahim deliberately kept Rashti from attending her Seder in April 2017, while allowing other employees to leave. Ibrahim was Egyptian, while Rashti is Jewish. Ibrahim wanted Rashti to be more like his wife and accept her position in the kitchen rather than in the workforce. Howard, Bordas and Ibrahim equally focused on Rashti’s disabilities and medical restrictions, not only violating her right to privacy, but docking her pay for complying with her restrictions. Defendants equally denied Rashti even ergonomic accommodations that Rashti was deemed to be entitled to. Younger employees were sent to training, including Student Workers, while Rashti was forced to receive training that Ibrahim repeatedly countermanded and impeded. Rashti was denied a promotion while younger employees were promoted, shortly after Rashti was removed from work again in October 2017. Establishing a prima facie case is the easiest challenge facing a plaintiff. Yartzoff vs. Thomas (9th Cir., 1987), 809 F 2d 1371, 1375; Strother vs.Southern California Permanente Group (9th Cir., 1996), 79 F 3d 859, 870-71; Passantino vs. Johnson & Johnson (9th Cir., 2000), 212 F 3d 493,507. Herein, Plaintiff has clearly made a prima facie showing, while Defendants have not even suggested that nondiscriminatory or nonretaliatory reasons for its actions exist, except for the specious claim that Rashti is responsible for what happened. The County ignores the concerted efforts of Howard, Bordas and Ibrahim to deliberately rid DPW of Rashti as well as its refusal to allow Rashti to return to work, after October 2017, despite valiant efforts by Rashti and her counsel to obtain reinstatement. As Guz vs. Bechtel National, Inc. (2000) 24 Cal. 4™ 317 noted, the easiest way to prove a case of discrimination is to show that the Employer's reasons are false. That is exactly what the PLAINTIFF'S OPPOSITION TO DEMURRER 14 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m c o I A N Ln BA W N = O VO N N N B R A W N = O evidence shows herein. See Guz, supra at 384. Quoting the United States Supreme Court decision in Reeves vs. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110, it was noted in Guz, that "evidence suggesting that a defendant accused of illegal discrimination has chosen to give a false explanation for its actions gives rise to a rational inference that the defendant could be masking its actual, illegal motivation." Also see Desert Palace, Inc., vs. Costa, (2003) 539 US 90, which reinforced the importance of providing a mixed-motive jury instruction, since “evidence that a defendant’s explanation for an employment practice is “unworthy of credence” is “one form of circumstantial evidence that is probative of intentional discrimination. Desert Palace, supra, at 100. Also see Hammond vs. County of Los Angeles (2008), 160 Cal. App.4™ 1579 where a reduction in a teacher's classroom assignment was found to have impaired the teacher's ability to perform the job for which she was hired. Also see Yanowitz, supra, 36 C 4th at 1055-56, “it is appropriate to consider the totality of the circumstances.” (Emphasis added). Id., at 1055-1056, Solicitation or fabrication of negative information then used to intimidate, disempower, and punish the employee, including refusing to allow the employee to answer the charges leveled against oneself is evidence that a reasonable trier of fact can consider as sufficient evidence of an acceptable adverse employment action. Yanowitz, supra, at 1059. In this case you cannot answer the accusations, when they are placed into a Performance Evaluation that is held for almost two years after Rashti was put out to pasture again. Likewise the recent California Supreme Court decision in Roby v. McKesson Corp. (2009) 47 Cal. 4™ 686, noticeably absent from Defendants Motion notes that a jury could infer, based on the discrimination evidence, that a supervisor’s hostility was "because of . . . [Roby's] medical condition," or in this case Rashti’s age, national origin, religious beliefs or disabilities and/or protests, since each of the individually named Defendants clearly knew that Rashti considered herself to be disabled and was nonetheless treated differently and in a retaliatory fashion once Rashti engaged in protected activities before the Civil Service Commission and internally, including raising issues about her disabilities, the failure to accommodate and ultimately the harassment she was experiencing. For the same reasons, Plaintiff has made a prima facie case of age discrimination. PLAINTIFF'S OPPOSITION TO DEMURRER 15 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m c o I A N Ln BA W N = O VO N N N B R A W N = O Plaintiff, over the age of 40, was clearly denied training provided to younger employees. Since filing the First Amended Complaint, Plaintiff has learned that younger employees occupying her position or the equivalent thereof were promoted. Rashti seeks leave to allege same if the instant FAC does not overcome the Demurrer. The California Supreme Court as well as the Ninth Circuit have recognized the need for a trier of fact to determine whether an articulated nonretaliatory reason for an Employer’s actions, namely that Rashti does not satisfactorily perform her job, is pretextual. Yanowitz, supra. Once a plaintiff succeeds in raising a genuine factual issue regarding the authenticity of the employer's stated motive, even summary judgment is inappropriate because the trier of fact decides which story is to be believed. Washington v. Garrett, (9" Cir., 1993), 10 F.3d 1421, 1433. “Pretext” means a dishonest explanation, “a lie rather than an oddity or error.” O'Regan v. Arbitration Forums, Inc., (7™ Cir., 2001), 246 F.3d 975, 983. Once the employer’s stated justification has been eliminated, discrimination becomes the most likely alternative explanation because the employer is in the best position to put forth the actual reason for its decision. Reeves vs. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2110, supra, 530 U.S. at 147. Substantial changes over time in the employer's proffered reason for its employment decision support a finding of pretext. Kobrin v. University of Minn., (8th Cir. 1994), 34 F.3d 698, 703. See, e.g. Dominguez-Cruz v. Suttle Caribe, Inc., (1st Cir. 2000), 202 F.3d 424, 432; Thurman v. Yellow Freight Sys., Inc., (6th Cir. 1996), 90 F.3d 1160, 1167; Castleman v. Acme Boot Co., (7th Cir. 1992), 959 F.2d 1417, 1422; Alvarado v. Board of Trustees, (4th Cir. 1991), 928 F.2d 118, 122-23; Schmitz v. St. Regis Paper Co., (2d Cir.1987), 811 F.2d 131, 132-33. “[I]n the ordinary case, such fundamentally different justifications for an employer's action (gives) rise to a genuine issue of fact with respect to pretext since they suggest the possibility that neither of the official reasons was the true reason.” Washington v. Garrett, (9" Cir., 1993), 10 F.3d 1434. Also see Colarossi vs. COTY, Inc. (2002), 97 Cal. App. 4th 1142, for the proposition that when a party has made inconsistent statements, as has been the case with named Defendants, Rashti should be entitled to have a jury decide who is telling the truth. Sada v. Robert F. Kennedy PLAINTIFF'S OPPOSITION TO DEMURRER 16 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O Medical Center (1997) 56 Cal. App.4" 138, 157-157; Yanowitz, supra, at 1055-1056, 1059. With respect to disability discrimination, a shifting burden of proof must be applied to claims of disability discrimination based on disparate treatment. Initially, the plaintiff has the burden of establishing a prima facie case of discrimination by proving that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254, 102 Cal.Rptr.2d 55.) To prevail, the plaintiff must show that “intentional discrimination was the ‘determinative factor’ in the adverse employment action.” (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2005) 4 7:356, p. 7- 49.) If the plaintiff employee meets his or her prima facie burden, the defendant employer must offer a legitimate nondiscriminatory reason for the adverse employment decision. Thereafter, the plaintiff employee bears the burden of proving the defendant employer's proffered reason was pretextual. If Defendants maintain that Plaintiff does not suffer from a physical disability and that furthermore she has not sustained any adverse employment actions, that excuse likewise fails. Being off work with seriously reduced pay alone belies the latter claim. The fact that Plaintiff has well documented work restrictions which were in Interactive Minutes but mysteriously disappeared from Jeff Howard’s memory even though he attended those meetings, supports rather than detracts from the Disability Claim pursued herein. E) UNLAWFUL RETALIATION HAS BEEN ESTABLISHED Plaintiff's complaints clearly qualify as protected activity to support a retaliation claim under the Fair Employment and Housing Act. A meritorious retaliation claim may lie even where the underlying discrimination claim fails. “An employer may not ‘fire an employee because he opposed discrimination against a fellow employee, even if he was mistaken and there was no discrimination. The mistake must, of course, be a sincere one; and presumably it must be reasonable . ..(I)t is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in.” Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476-477. For these PLAINTIFF'S OPPOSITION TO DEMURRER 17 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m c o I A N Ln BA W N = O VO N N N B R A W N = O reasons there clearly is a link between Rashti’s internal and Civil Service protests, and the actions taken against Plaintiff. As Flait, supra, at 478-479 teaches, in a DFEH-proscribed retaliation setting, the role of a trier of fact is to determine whether a nexus exist. LeVine vs. Weis (2001), 90 Cal. App.4th 201, 210, overturned on other grounds by Wells vs. One2One Learning Foundation (2006), 39 Cal. 4th 1164. Since Rashti clearly complained, the retaliation she has experienced ever since it unlawful and worthy of recompense. D) FAILURE TO ACCOMODATE CLAIM SURVIVES Caselaw and Government Code Section 12926 clearly show that Rashti suffers from cognizable physical disabilities for which she was entitled to accommodation. (FAC 99 10, 74, 77). McAlindin vs. County of San Diego, (9™ Cir., 1999), 192 F 3d 1226 re ADA coverage for physical and psychological disabilities, while Rashti also suffers from cardiovascular ailments ever since she started experiencing chest pains in 2009, in addition to physical disabilities associated with her passing out at work in 2003 and the disabling condition of her hands commencing in August 2014 when the desk shelf collapsed because the safety lock was not on. Notwithstanding same, Rashti has also proven her ability to perform the essential duties of her job with or without reasonable accommodations, and has sustained adverse employment actions, which range from the denial of promotion, denial of leave benefits offered by other employees to ensure continuation of medical benefits, to disciplinary actions, derogatory evaluations, exclusion from meetings, and deprival of the tools needed to do her job, including proper training. Similarly, "(U)nder the FEHA ... an employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would impose an “undue hardship’ on its operations or if there is no vacant position for which the employee is qualified." Spitzer vs. Good Guys, Inc., (2000), 80 Cal. App.4™ 1376, 1389. Defendants cannot show that there would have been an “undue hardship” had Rashti been allowed to continue working in the Dual Stations that Dave Diotalevi set up for Rashti in May 2017. She similarly could have remained working in the Fleet Section, while the excuse that the work disappeared is specious and indicative of a conscious effort to PLAINTIFF'S OPPOSITION TO DEMURRER 18 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m c o I A N Ln BA W N = O VO N N N B R A W N = O create an excuse to mask Defendants’ removal of Rashti from her position so she could be easily bypassed for promotions shortly after October 2017. As noted in Prilliman vs. United Air Lines, Inc. (1997), 53 Cal. App.4™ 935, 950-951 noted, “an employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees”. Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2010) 9:673, pp. 9-66 to 9-67 (rev. # 1 2009). Herein, DPW recognized that it had an obligation to restore Rashti to duty in July 2014, despite claiming for more than eight years that it could not accommodate her. In light hereof, it should be readily apparent that the COUNTY failed to accommodate Rashti and more importantly failed to engage in an interactive process, let alone one in good faith. Instead they took advantage of Rashti and abused her commencing in the summer of 2016 because Rashti persisted in seeking what Government Code Section 31725 provides, namely a make whole remedy if one is deprived of work on the guise of being disabled, yet denied a disability retirement. “Liability for failure to provide reasonable accommodations ensues where the employer bears responsibility for the breakdown.” Beck v. Univ. of Wis. Bd. of Regents (7th Cir. 1996) 75 F.3d 1130, 1135-1137; Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, at 1116. The well-written holding by the Supreme Court in Richards vs. CH2M Hill (2001), 26 C. 4™ 798, explains the interactive process. "[T]o determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process" with the disabled employee. (29 C.F.R. § 1630.2(0)(3) (2000).) (29 C.F.R. Appen. to 1630, Interpretive Guidance on Title I of the ADA, foll. § 1630.9, Process of Determining the Appropriate Reasonable Accommodation (2000).) Alch vs. Superior Court (2004), 122 Cal. App. 4M 339, Rashti clearly fulfilled her duty to inform the COUNTY that she was in need of a PLAINTIFF'S OPPOSITION TO DEMURRER 19 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND m m e m e e e a e a e m c o I A N Ln BA W N = O VO N N N B R A W N = O reasonable accommodation, dating as far back as 2006, let alone after Dr. Angerman concluded Rashti had irreversible damage to her back, neck and shoulders and could work in an alternative position. [FAC, 943 ii (Howard).] Despite same, Jeff Howard tried to hide his knowledge of same, and instead encouraged Bordas and Ibrahim to suddenly issue derogatory evaluations to Rashti, even though she had just received two Competent ones for 2014-15 and 2015-16. See EEOC Interpretive Guide, 29 C.F.R. § 1630.9 App. (1999) which the Federal courts have adopted. As stated in Taylor v. Principal Financial Group, Inc. (5th Cir.1996), 93 F 3 155, it is the employee's initial request for an accommodation which triggers the employer's obligation to participate in the interactive process. Hunt-Golliday v. Metropolitan Water (7th Cir.1997) 104 F 3d 1004, 1012. Once such notice is given, as stated in Prilliman, supra, ‘the employer's burden to take “positive steps' to accommodate the employee's limitations” arises, with the employee required to “cooperate with the employer's efforts by explaining [his or] her disability and qualifications. ... Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions." (/d. at p. 950, quoting Goodman v. Boeing Co. (1995), 127 Wn2d 401, 899 P. 2d 1265. Even after the Agreed Upon Medical Examiner recommended alternative positions for Rashti, Jeff Howard and his cohorts refused same, electing instead to place Rashti in a position well beneath her skills as an Architectural Assistant. The COUNTY did locate a suitable position, but instead perpetuated the unfathomable story that Rashti was a poor employee, but the record shows otherwise. By forcing Rashti to do clerical tasks, after she started working at dual work stations performing CADD work, to wit, her usual and customary duties, is clearly not a reasonable accommodation. As Scotch v. Art Institute Of California-Orange County, Inc., 173 Cal. App. 4th 986, 1013 (2009) notes, on a claim of failure to make a reasonable accommodation in violation of section 12940, subdivision (m), Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal. App.4™ 952, 975-976 should be followed since it defines reasonable accommodation as "a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired." Thus, the COUNTY's claim that PLAINTIFF'S OPPOSITION TO DEMURRER 20 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O expecting Rashti to stay at home when alternative positions were available that Rashti could clearly perform is not a reasonable accommodation by any stretch of one’s imagination. Likewise, removing Rashti from Fleet was not a reasonable accommodation, nor was it extended in good faith. Gelfo vs. Lockheed (2006) 140 Cal.App.4th 34, including footnote 22 relative to importance of interactive process and good faith participation therein. Also see Jensen vs. Wells Fargo Bank, supra, at 266, liability hinges on objective circumstances surrounding parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith. F) PLAINTIFF HAS NOT SPLIT CAUSES OF ACTION It is most unusual for the County to claim that the instant action involves the same issues presented in the Writ Hearing arising under Government Code § 31725. The instant action involves claims arising after Rashti was reinstated on July 1, 2014, while this court should find the statements of Judge Chalfant persuasive that damages for failure to accommodate Ms. Rashti should be awarded in a DFEH-action. The continuing violation and totality of circumstances doctrines would support that statement as well. Likewise, the doctrine of res judicata, or claim preclusion, applies in later litigation if an earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action. In re Adelphia Recovery Trust 634 F 3d 578, 694 (2™ Cir., 2011). Although there is a final judgment against Rashti, issued by a court of competent jurisdiction, said judgment is not final since, as Defendants point out, it is pending on Appeal. More importantly the lack of a transcript specifically referenced in the Judgment makes the Judgment null and void. Absent a Settled Statement Judge Chalfant may end up conducting a new hearing completely, a fact which Defendants conveniently failed to point out to this Court. (See Wise Declaration, 93-4 and Exhibit “A” thereto relative to an upcoming hearing on a Settled Statement). Neither doctrines of claim preclusion, res judicata or collateral estoppel will assist the defense in their efforts to procure a sustaining of the Demurrer without leave to amend, either. Knickerbocker vs. City of Stockton (1988), 199 Cal. App.3d 235, 245-246, noted that issue PLAINTIFF'S OPPOSITION TO DEMURRER 21 BC718438 O© 0 J O N wn hb W N = NN N N N N N N N ND o m e m e m e m e m e m e m e d c o I A N Ln BA W N = O VO N N N B R A W N = O preclusion is not a complete bar to the maintenance of another action between the parties, particularly when one sustained damages from actions distinct from issues affirmatively determined adverse to an employee. In Knickerbocker, an officer was fired for a number of different reasons, many of which were specifically rejected after hearing and in turn Knickerbocker was reinstated, but demoted. Knickerbocker sued for damages because of the false allegations and in turn the court observed that a prior determination operates only as an estoppel or conclusive adjudication as to those issues in the second proceeding which were actually litigated and determined in the first proceeding. Thus, the same causes of action were not before Judge Chalfant and could not have been, since Rashti was not allowed to return to work until well after the obligations under the §31725 materialized. CONCLUSION For each of these reasons, the Demurrer should be overruled in its entirety. LAW OFFICES OF HELENA S. WISE s/HELENA S. WISE Dated: June 23, 2020 By HELENA S. WISE, Esq. Attorney for MITRA RASHTI PLAINTIFF'S OPPOSITION TO DEMURRER 22 BC718438 PROOF OF SERVICE BY E-FILING AND EMAIL STATE OF CALIFORNIA, COUNTY OF LOS ANGELES [ am a resident of the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; by business address is 1907 W. Burbank Boulevard, Suite A, Burbank, California 91506. On June 23, 2020, I served the within document: PLAINTIFF'S OPPOSITION TO DEMURRER on the interested parties in said action, as well as by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Burbank, California. Service was completed as follows: JeffreyHausman, Esq. Larry Stratton, Esq. LAW OFFICES OF HAUSMAN & SOSA 20750 Ventura Boulevard, Suite 105 Woodland Hills, California 91364 Executed on June 23, 2020 at Canyon Country, California I declare under penalty of perjury, under the laws of the State of California that the foregoing is true and correct. Patty Villagénor
