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1 MAYALL HURLEY P.C.
JOHN P. BRISCOE (SBN: 273690)
2 ibriscoe(g),mayallaw.com
2453 Grand Canal Boulevard
3
Stockton, CaUfornia 95207-8253
4 Telephone: (209)477-3833
FacsimUe: (209) 473-4818
5
Attorneys for Plaintiff David Ridge
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9 DAVID RIDGE, an individual. Case No.: 34-2019-00265393
10 Plaintiff, [PROPOSED] ORDER DENYING
11 DEFENDANT'S MOTION FOR
vs. SUMMARY JUDGMENT OR
12 ADJUDICATION
THE CALIFORNIA HIGHWAY PATROL;
13 and DOES 1-100, inclusive. Date: March 2, 2023
Time: 1:30 p.m.
14 Dept.: 3
Defendants.
15
16
17 Defendant Califomia Highway Patrol's ("CHP") motion for sunmiary judgment, or in the
18 altemative, summary adjudication is denied.
19 In this FEHA disability discrimination action, Plaintiff alleges that CHP denied him a
20 reasonable accommodation for his physical disability, a back injury, which forced him into early
21 retirement. He alleges his disability could have been accommodated by allowing him to wear his
22 sidearm and equipment on a weight-bearing vest instead of the traditional leather belt. Plaintiff
23 alleges he submitted the request for reasonable accommodation in April 2019. Plaintiff alleges
24 causes of action for disability discrimination, failure to accommodate, failure to engage in the
25 interactive process, retaliation and failure to prevent disability discrimination or retaliation.
26 CHP now moves for summary adjudication/judgment of all Plaintiffs claims.
27 In evaluating a motion for summary judgment or summary adjudication the Court engages
28 in a three step process. First, the Court identifies the issues framed by the pleadings. The pleadings
[Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication
Pagel of 17
1 define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI
2 Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary
3 judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v.
4 Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition
5 to the motion must be addressed to the claims and defenses raised in the pleadings. The Court
6 cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary
7 adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a
8 defendant's motion for summary judgment or summary adjudication may not create issues outside
9 the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast
10 Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted
11 that "[i]t would be patently unfair to allow plaintiffs to defeat UCI's summary judgment motion by
12 allowing them to present a "moving target" unbounded by the pleadings." (Melican v. Regents of
13 University of Cahfomia, (2007) 151 Cal. App. 4th 168, 176-177.)
14 Next, the Court must determine whether the moving party has met its burden. A defendant
15 moving for summary judgment or summary adjudication bears the burden of persuasion that one or
16 more elements of the plaintiffs cause of action cannot be established, or that there is a complete
17 defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850,
18 quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more
19 elements of the plaintiffs cause of action. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763,
20 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff
21 carmot prove an element of its cause of action, i.e., that the plaintiff does not possess and carmot
22 reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.)
23 Further, the initial burden requires a showing that the plaintiff "could not prevail on any theory
24 raised by the pleadings." (Hawkins v. Wilton (2006) 144 Cal. App. 4"' 936, 939-940.)
25 At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting
26 the possibility that the plaintiff cannot prove its case; a moving defendant must still make "an
27 affirmative showing" in support of its motion. (Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss
28 «& Glennon (1996) 44 Cal.App.4th 205, 214.)
[Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication
Page 2 of 17
1 Once the moving party has met its burden, the burden shifts to the opposing party to show
2 that a material factual issue exists as to the cause of action alleged or a defense to it. (CCP §
3 437c(p).) In ruling on the motion, the Court must consider the evidence and inferences reasonably
4 drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar,
5 supra, 25 Cal .4th at 843.)
6 Summary adjudication requires disposition of an entire cause of action or claim for
7 damages. (CCP § 437c(f)(l); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.)
8 CHP'S separate statement includes the following facts which it claims are undisputed. On
9 October 14, 2019, CHP issued Plaintiff an options letter and "Option Discussion Checklist"
10 regarding Plaintiffs continued employment. On October 17, 2019, Plaintiff filled out the letter
11 indicating he was interested in discussing (1) retum to work with reasonable acconmiodation; (2)
12 temporary/disability leave/vocational rehabilitation; and (3) industrial disability retirement. (UMF
13 1-3) On November 1, 2019, Plaintiff selected the option of industrial disability retirement. Plaintiff
14 indicated that the process in making that selection was not coercive and that he was of sound mind
15 when he made that choice. (UMF 4-7) No one fi-om CHP told Plaintiff they wanted to force him
16 into retirement due to his disability or request for reasonable accommodation. Plaintiff disability
17 retired effective January 7, 2020. (UMF 8, 9)
18 On April 5, 2019, Plaintiff submitted a request to wear an extemal, load-bearing vest
19 ("ELBV") as a reasonable accommodation. Plaintiff submitted a second request for an ELBV to
20 Sergeant Mueller, the administrative sergeant in the Placerville Office. (UMF 10, 11) CHP denied
21 Plaintiffs request for an ELBV because it has never approved those vests for use by patrol officer
22 due to safety and appearance concems. (UMF 12, 13) CHP offered Plaintiff an altemative
23 accommodation in April/May 2019 consisting of a suspenders system called the Back Defender
24 which is worn under a uniform shirt. (UMF 14) CHP denied Plaintiffs first reasonable
25 accommodation in October 2019. (UMF 15) Plaintiff was aware CHP had never approved ELBVs
26 for patrol officers. He believed that he would wear both the ELBV and his duty belt at the same
27 time. (UMF 16, 17) Plaintiff rejected the offer of the Back Defender and told Placerville Area
28
[Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication
Page 3 of 17
Gomiriahder Matthew Stover and Mueller that it would not work. (UMF 18) Plaintiff never
•followisd up/with anyone at CHP after this. (UMF 19)
Plaintiff has worn the Back Defender since returning to work after the disability retirement
ais his back is.n^ warits to work until he is 60 and avoid further injury. (UMF 20)
Plairitiff indicated the'Back Defender lessens the pressure on his hips and'permits itransfer of
:-•: ' ; " ^ .
[Pi-oposed] Order Denying Defendant's Motion for Summary Judgmeiit/Adju'dication
Page'4 of 17
• •
jidiscrirnination arises, and "the burden shifts to the employer to rebut the presumption by producing
• aclntiissible evidence, sufficient to raise a genuirie issue of fact and to justify a jiadgment for the
1 employer that its action was taken for a legitimate, nondiscriminatory reason." (Id. at 355-56,
2 quotations, citations omitted.) If the employer sustains this burden, the presumption of
3 discrimination/retaliation disappears, and the plaintiff is afforded the opportunity to attack the
4 employer's proffered reasons as pretexts for discrimination/retaliation. (Id. at 356.) On summary
5 judgment, a defendant employer may meet its initial burden to show it is entitled to judgment as a
6 matter of law by demonstrating that the plaintiff cannot demonstrate a prima facie case, and may
7 proceed to present evidence of a nondiscriminatory/nonretaliatory basis for its employment action.
8 (See id. at 357.)
9 The Court notes that the burden shifting analysis employed in many employment
10 discrimination motions for summary judgment is not required here. This is so because CHP has
11 not, for example, based its motion on any claim that there was a legitimate nondiscriminatory
12 reason for any adverse action. Rather, CHP attacks whether Plaintiff can demonstrate a prima facie
13 case, that is, whether he suffered adverse action and whether there is evidence of discrimination.
14 Adverse Employment Action
15 CHP first moves for summary adjudication on the basis that it did not subject Plaintiff to
16 any adverse employment action because he voluntarily elected disability retirement.
17 "[Ajlthough an adverse employment action must materially affect the terms, conditions, or
18 privileges of employment to be actionable, the determination of whether a particular action or
19 course of conductrisesto the level of actionable conduct should take into account the unique
20 circumstances of the affected employee as well as the workplace context of the claim." (Yanowitz
21 V. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) "Minor or relatively trivial adverse actions or
22 conduct by employers or fellow employees that, from an objective perspective, are reasonably
23 likely to do no more than anger or upset an employee cannot properly be viewed as materially
24 affecting the terms, conditions, or privileges of employment and are not actionable..." (Id. at 1054.)
25 "The 'materiality' test encompasses not only ultimate employment decisions, but 'also the entire
26 spectrum of employment actions that are reasonably likely to adversely and materially affect an
27 employee's job perfonnance or opportunity for advancement in his or her career.'" (Patten v. Grant
28 Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387.) The proper analysis is not
[Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication
Pages of 17
liiriited to ''whether each alleged retaliatory act coristitutes an adverse employment action in and of
itself.''-(Yariowitz, supra, 36 Cal.4th at 1055.) Rather, "there is no requirement that an employer's
;fetaliatory acts-constitiite one swift blow, rather than a series of subtle; yet damaging, injuries."
'A S^-:A'-^Ai.
^Id:)"^e'COiiclude...a series of separate retaliatory acts pollectively riiay constitute an 'adverse
•leriipipyment action'- even i f some or all of the component actS; might not be iridividually
actioriable. "• (Id. "at 1041.).
V- , /CHP reUes on its evidence discussed above regarding Plaintiffs selection of thedisability
^.;8 .retir^erit-option on the options letter. The letter foUovved Plaintiffs March 2019 workers'
;comperisatiori claim arid.an August 2019 report for the medical, examirier in the workers'
ipompehsatibri case indicatirig Plaintiff was physically incapable of lifting more than 40 pounds,
beridirig,"stoopirig, or wearing a CHP duty belt. CHP then points to Plaintiffs deposition testimony
^tliafhe'was dfsoimd mind when he selected the disability option, not under the influence of drags
or alcohol arid that no one told him they wanted him to retire because he was disabled or requested
a reaspnabie £icconariioda^^ (UMFs 3-9) According to GHP, no reasoriiable trier of fact could
cPncliide Plaintiff was forced into^early retireriient.
Assumirig CHP met' its initial burden,^ the CourtfindsPlairitiff met his burden to
deriipnstrate the existence ofa triable issue of material fact. To that erid, Plairitiff presents evidence
that by'the time he selected-the disability retirement option, CHP had twice denied him what he
.•Ijoiiterids is the only reasonable accommodation for his nieralgia paresthetica that would allow him
itdjContinueSvorking fiill duty. (Plaintiffs Material Fact ["PMF"] 29, 30, 33,-34,41, 82, 86, 87].)
'Plairitiff presents evidence that while he presented his request for a reasonable accommodation on
April 9'-2019 to wear an ELBV, supported with a detailed explanation as to why he needed the
fELBy andriotesfrommultiple doctors recommending the ELBV, he was tPld almost immediately
'i'tlA li ;by Mueller and Stover that the request would never be approved; (PMF 34, 189) Plaintiff was told
ihaf the CHP's Commissioner at the time indicated he never wanted patrol officers wearing ELBVs
as the current belt was more traditional and that ELBVs did not fit the CHP's uniform policy. (PMF
34,189) Plaintiff presents evidence that on April 12, 2019 Stover responded to ari email from
,:s,\iHfe.328. CHP's Equal Employirient Oppprtunity Office related to Plaintiffs request and stated that Plaintiff
[Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication
Page'6, of 17
•I'bas.verbally stated and visually demonstrated the inability to work in a full-duty capacity." Stover
^A -.rllz was referencing Plaintiff having difficulty getting out of his chair. (PMF 55) Stover then
accompanied. Plaintiff to his doctor!s appointments to infonri the doctor he'did not believe Plaintiff
:couid perfonn'his duties, though Stover instmcted Mueller to go tb the appoiritments. (PMF 39)
Mueller went'to approximately 12 appointments and had private discussions with the doctors.
(Ridge Decl. Tl 11.) Kristine Nickell, CHP's PMK regarding accommodations testified that she had
riever heard of this happening and did not believe it was appropriate. (Id.)
In'a letter dated April 23, 2019, Stover acknowledged receipt of Plaintiff s request to wear
.9: iani ELBV-'stating: "be aware that additional information from your miedical doctor will be necessary
tp properfy address your request. Please keep in mind that a reasonable accorrimodation is a logical
iadjustriient made to; a job and/or the work environment which enables a'qualified individual with a
12' disability to perform the essential functions of their position. It is'also important to understand that
if ybu cannot peirfonri the essential functions of this position; with or without an accommodation,
i ' • -, .
then ybii may nP Ipnger be qiialified for the position of Officer, .CHP.'' (PMF 58) On June 25,
2019, Stover received a Limited Duty Assignment-Physician's Report ("CHP 443") regarding
•• A^- .-r6^ Plaintiff which stated: "No wearing of duty belt. However, [Ridge] riiay wear an outer vest carrier
arid duty belt suspension system to evenly distribute the load and,mitigate the invasive width of
duty belt components." The document was also sent to Bryrm Marptte with CHP's Injury and
illness Case Management Unit. (PMF 57, 61) Stover and Mueller inquired as to whether the CHP
• .-':^-;v."!ii2(^ 443: could be used for an options letter to Plaintiff giving him the optibn of industrial disability
•'•••i '. • '
retireriient. Marotte responded that "what we need to see [is] that an [emplbyee] will never be able
tp returri to [full duty] without restrictions. Specifically with the 443s, we like to see in the
"Estiriiated Date for Return'to Full Duty,' that EE carmot return with language such as 'never', etc. I
.wiii: eoritact the adjuster and inquire if they have received any medical repbrts that we can use,
::2i6;; 'especially from this current doctor." (PMF 61) Nickell spoke with Marbtte bn September 27, 2019
an(f;Marotte informed her that an ELBV could not be provided to Plairitiff because it did not
:'2fc ;ePriform^to CHP's unifonn policy. (PMF 38) On October 11, 2019, an'unidentified person marked
:[Proposed]! on
}"Deriied" Order Denying Defendant's
Plaintiffs reasonableMotion for Summaryform.
accommodation Judgment/Adjudication'
No explariation was provided- CHP's
I?ale 7 of 17
- ' . ' J •• • .
'.r'l y ' \ ] '... • • ." •
•/•rv-^'-'-l; :Ec[ual Employment Opportunity Office had referred the request tP the Irijury and Illness Case
Managemienf Unit arid Nickell testified that she did not recall any other reasonable accommodation
• =;>:<'.:-^ :^ ^-iirt^
requests for on the job.injuries being referred there. (PMF 37)
Plaintiff presents evidence that while he was provided an options letter in October 2019, he
stili had not received any written explanation for why his request to wear an ELBV was denied.
-''(•-•J-": '••'•ri ,;-
:Sirice one of the options on the options letter was a request for a reasonable accommodation.
Plaintiff selected that option and again requested he be allowed to wear the ELBV. (PMF 53, 87)
Plaiintiff prbvides evidence that when he informed Stover arid Miiellei:. thatthe intended to submit a
jSecond request:he was told there was no need because the first was denied., Plaintiff indicated that
• •^•"^'i{V•Vv•'>^.^7^
he never received notice of the first denial and that Mueller went and gbt a copy of the form with
the "denied" bpx checked: i(PMF 86) Plaintiff then submitted a second request and a couple of
hours later it was i-etumed as denied. (PMF 87) Plaintiff was unsure who he could follow up with
\ y ^ f : :i3i- 'because no one put their^name on the written denial. (PMF 88)
;|:v>i:._it^ . On October 28, 2019; Plaintiff had a conference call with Stover arid a third party who
^:^;-^,:--;^;15 fPlairitiff believes was.from Human Resources. (PMF 83) While the options lettierhad numerous
•.>>•<. ;..ix.y.^l:6-v bptibns. Stbver tbld Plaintiff that the only options actually available to him were.industrial
.di'sability retirement or termination. The individual who Plaintiff believes was frorn Human
•-•^>^i•>^.:^8- Resourcissi'agreed. (PMF 83) Plaintiffs supervisors told him that CHP policy only allowed one year
v':c":j.;i9'' of limited, so that option was not available. (PMF 84) Plaintiff also did nbt have the option to
A^f6:..x,;2pi- medicallyitransfer ^yithout being demoted. (PMF 85) During the phone call Plaintiff again asked
whether-he could request wearing an ELBV and Stover simply said no. (PMF 99) Plaintiff
^^
•:,
thereafler selected the industrial disability retirement option.
Plaintiff presents evidence that he was only offered used ofthe Back Defender and that he
infortried Stover-arid'Mueller that he tried it but it did not help with his meralgia paresthetica; (PMF
;28);:P.ia.iritiff presents evidence that Stover was unable to state whyJhe ELBV wbuld not have been
a^i'easpnable accoiririiodation, that Stover does not know whether the Back Defender would be as
leffebtiy^^ arid that Stover made no effort to ask anyone withiri CHP , why an exception
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:'[Prop6sed] Order Denying Defeiidant's Motion for Summary Judgment/Adjudication
^•v • ...y'V': i=.';V'..'
^?fJ";r;7^;;-^:26v •Page,f;'6f 17
ir.:'-. :.:.:r::r^;'r;f-
W-;^:;f?^"
• i':.iJ»'-^N:i-'->-^.=^"'
i I l l
tb-tfee unifpfrii policy could not be made to allow Plaintiff to wear the ELBV and returri to fiill
V^v;*^'; ,":^fci^''^2-- dt^;;(PMF47,49;:'59)
•f^:^«;:;535 ; sum and substance of the above evidence raises a triable .issue of material fact as to
wriether CHP subjected Plaintiff to adverse employment action. Specifically, the evidence allows
ifpr a Reasonable inference by a trier of fact that Plaintiffs selection bf indtistrial disability
:":.'''-^'''^i-^^''i^.=6 •* fetireriierif was forced under the circumstances. In that regard, "[cionstmctive discharge occurs
f^ircf •- • • • •
.wheffthe eni^ conduct effectively forces an employee to resign:..As a result,.a constmctive
<^jj?;'^;,p8?'
discharge-is legally regarded as a firing rather than a resignation." (Tumer v.-^Anheuser-Busch, Inc.
•iV'-K';r';^'^9^-
' -.- • .^- Til . 'i,
!p§9'4|'7 Gal.4th 1238^^1244^ "[T]o establish a constractivexdischarge, an eriiployee must
.s*:r#:i-"^'--^X^;
"plead^iaiid^prpye.. .that the employer either intentipnally created br knowingly permitted working
• ' • ,. • .
.coftditipris that were so intolerable or aggravated at the time of the employee's resignation that a
;re|sbriable .ernp^^^ wpuld realize that a reasonable person in the emplbyee's position would be
-•;^4v;^;;i8:;
cpmpeUed;fb resign, (id.'at 1251.) ^yhether a reasonable person would have considered the conduct
severe or pervasive is generally a question of fact. (Vasquez v. Franklin Mgmt. Real Estate Fund,
/^C:?!:^>-L:^2P^/
ari&;(26l3) 222 Cal.App.4th 819, 827.)
:'"=^i-^*/;'^^?il'
; • vThe evidence discussed above shows that Plaintiff made multiple requests for a reasonable
^••l'>;i?^^^---'22:'
accbriuripdafion, which were denied with little to no explanation other than referencing a uniform
- :"^-i-:^';23^;
|.pblicy.,fln the interirii. Plaintiffs supervisors accompanied him to medical appointments (something
wfecfitCHP's 'PMK had not Heard of and believed was inappropriate), discussed obtaining medical
:rep,prts that (qpiild possibly be used so that Plaintiff could be presented with the option of industrial
;i'5-SC -f ' nV :
disability retirement, and then being informed that the only available options were industrial
f.disability retireriient or termiriatibn. Plaintiff also presented evidence thaf Stover and Mueller told
, • (-;,26;,., :)ip:. .'"i-.-ii t '- • t .
:him;,that;if;he continued requesting the accommodation for the ELBV he would be medically
(Tetireii! (PMF
j[Prbposed] Order77) The Defendant's
Denying fact that Plaintiff
Motion testified in his
for Summary depositibn that he was not coerced in
Judgment/Adjiidicatidri
i'{P\age 9 of•17 - ' ' • " - , •
,.7,.^~-.'; lii'o'^;-':!,;-:?^''
1 signing the options letter and was of sound mind and not under the influence of any drags or
1 ' •• ....' 'f. •• " !shbialder
alcbhpf
whetiier?Piaintiff
does
pressiiring
iib was ybu
this
coerced
tpfinding
pickwas
a certain
instated
any manner.
option."
as "in other
The
(Ridge
words,
Court
Depo.
wbuld
was
;-.,t.1.12:15,-20.)
ariybody
riote,thatstanding
While
the'question
rio
pver
oneyour
about
was
standing over Plaintiff s shoulder when he selected the industrial disability retirement option, under
;the circurnstances, and given everything leading up to that selection, a reasonablefinderof fact
i cbuidf conclude that Plaintiff s selection of disability industrial retirement was essentially forced
:'.:";-'-:^?:r-''^^
:;,..•: itlj^-^^;^ •4-: and thus created triable issues of material fact as to whether Pkintiff suffered an adverse
erriplpyriient action. Again, asriotedat the outset whether Plaintiff suffered an adverse action is an
^^-Cf|'J:' eieriierit bf his prima facie case and'his burden in making that showirig is not "onerous" and the
eviderice necessary to meet the burden is "minimal." (Wills, supra, 195 Cal.App.4th at 149.)
:-i:;;v:-^^.?7:'
• : As a result, the motion on the basis that Plaintiff was not subjected to an adverse
.eriiplpyment actiori is deriied.
'-•vf-c'".'iir(".'
^^r./^>','-'TO^': V .; • i Disiabilitv/Substantial Motivating Factor
•sOwp Yi''"'.-'i
? i,- CHP alternatively argues that Plaintiff s disability was not a substantial rriotivating factor in
'v:::i^: any adverse action taken. The only argument that CHP offers iri this respect is that Plaintiff
• "13:??'.yolvititarily chose the'bption of disability retirement" and that there is nb evidence that Plaintiffs
'disabilityrcPntributed to ariy decision to force him into early retirerrierit. (Mot. 13:17-24.)
vp':-^..,,,:i5;. Assuriiing CHP met its initial burden, the Court concludes Plaintiff has demonstrated the
. existerice;bf triable issues of material fact. Indeed, the same evidence set.forth above in cPnnection
; •p^]'rAgf\j^^ -Jwith'the.advefse action analysis also raises a triable issue of material as to whether Plaintiffs
disability was'a substantia! motivating factor. To that end, the evidence shows that Plaintiff made
V!,.i|•:^:;;i.;^i:8ti .miiitipieTequests for a reasonable accommodation due to his disability. The evidence shows
i,',', The motion on the basis that Plaintiffs disability was not a substantial motivating factor in
any, adverse iaction is denied.
Second :Gause of Actibn (Reasonable Accommodation)
CHP's motibri is, deriied.
,r.;^J;,.-^'^'\:-,7;;; ^ > CHP ppints tb evidence that it offered Plaintiff the Back Defender and that it has never
7f,/i:A:^.20^iappiroved-ELBVs due to'appearance and safety-related disadvantages:; CHP also asserts that
iPliintiff admitted that>the Back Defender helps lessen pressure bn his hips atid allows weight to be
^ r - ' i - 22;.. 'ttansferred^from eiquipriient aittached to his duty belt to his shpulders. (UMF 21) CHP claims that
-•AM •.AK';''.•.X ..7 •' . . '
'•^••'AAv
''/^-•-24. Plaiiitiff simply refused.the Back Defender and told Mueller and Stover it would not work and
' 25^ nWer.followed up with anyone at CHP. (UMF 19) CHP also poirits.tb. the evidence that since
r:;-o.'^'''2(^. Plaintiff retumeci^to work after his industrial disability retirement he has used the Back Defender
f' A::^ r'\ '
' • ': • . • ^,<'- • • " "•'
> ." •''•' "
[Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication
Page^-it df 17 • ' • . ' '
whiciidt cbnteri'ds :''ebnclusiveiy'' establishes Plaintiff was offered ai'reasbnable accommodation.
A:^;7^A'that
iexcept: . ' Stpver
t(©ME\2b):;GHP ' Aalsb
7deprived
'ppints
' , tohimthe
. ofevidence
using'it that
for one ' thrieePlaintiffs
it granted
to days.;:^(UMF
request
22, 23)
to use a sit-stand desk
' •"' 7A'
; . Assumirig CHP met its burden. Plaintiff has met his burden tp defnonsfrate the existence of
••^ril-. \A7' •'.i; • , • • • .- . -
rAAA7A'A": a;triable,^^ material fact. To that end, CHP "cannot prevail on summary jiidgment on a claim
7ik^:f&\ bffailiire tb reasonably accommodate unless it establishes through undisputed facts that (1)
reaspnable'acconimodatipn was offered and refiised; (2) there simply was no vacant position within
--A'^7!77.m
the eriiployer's brgariization for which the disabled employee was quaUfied and which the disabled
yAA^-. •"' • ' . . 7' •• 7 '
';.':¥M:;7^- empipyee-was capable of performing with or without accommodation; br (3) the employer did
••'••,:v'::;-^,;!^:.i(;i
everything in its power to find a reasonable accommodation, but theinfortnal interactive process
•brpkeldowri because the employee failed to engage iri discussions, iri good faith:" (Jensen v. Wells
A7'\ •- A:J : . 77 ^ • ' .
Fargo Barik (2000) 85 Cal.App.4th 245,263.) "Employers must make reasonable accommodations
'A- 7 o-, -/"'.'.''•• : ' "•-
i • .'r tb'the'disability bf an individual uriless the employer can demonstrate .that doing so would impose
fan 'undue hardship.''' (Prilliman, supra, 53 Cal.App.4th at 947.) Here, there are disputed facts as to
ribt piily whether: a rbasonable accommodation was offered, whether the ELBV would impose
.A 4;,
^'Sl^'^
•mm , " • ": " • . •.
::^-'.-:v,T^|>5^fi ^undue hardship,.but also .whether CHP did everything in its power to find a reasonable
: i : ' V : r . i l ^ 'apcomrnodatipn.
- --AAA^g^^ V Plairitiff s evidence again shows the ELBV was denied pn the basis that it was not within
•\;2|;; fCHFs uiiifbrm p PMF 266) CHP's PMK was unable to'state why it would be
'•'•i':-f:^^^22' .iiripbssible to make an exception to the policy, whether other agencies have had problems when
{;;:.7::,^23^ ELBVs ^ere. allowed, and could not state that the ELBV would not be a reasonable
-"^''=;.'424-^ ^accpmmodatiori. (PMF 267, 268) CHP indicated in its discovery responses that the ELBV was
refijised due.to "operational, safety and appearance factors" in addition to the imiform policy. As to
%'• ^hiesbpei-ational, safety and appearance factors, CHP indicated that:iri2014 while the Uniform
.Cpriimittee was impressed with the ELBV, it felt that there were bfficer safety issues due to a
:/^;^-^r'^';525v pbssibiUty bif the ELBV being grabbed and that it looked a "bit sloppy.'^ (PMF'244-246)-However,
,[Proposecl]^Ofder
fcHP 'prby^ Denying defendant's
6vidence:;of Motion
any actualforrisk
Summary Judgment/Adjudic'atioii
to anyone created by the ELBV much less any undue
'|-f;^'^>v526:^^ ^P^ge i i o f 17 ' -: ^
:/;'?^(:^S8: hardslrip - F u ^ Plaintiff presents evidence that the Back ,Peferider wias not sufficient at the time
'", 'i^t-'A\K- •' ,
i'equipriient
"utilify
tOi address
belt impiriged-pn
with
his;riieraglia
all of theparesthetica.
required
femoralequipment
nerve
(PMFand 306)
and
exacerbated
The.Back
the belt with
the
Defender
meraglia
the apprbximate
required
paresthetica.
Plaintiff
20 pounds
.(Id.)
to wear
Plaintiff
of the
was working 4 to 5 days per week for 9.5 hour shifts. Around 8 of the hours were spent sitting in a
}'A'A ^ •• *•-
-rA-77AA'--^'^ patrbl vehicle and the laser and radio pressed into Plaintiffs lateral femoral cutaneous nerve. (Id.)
P7AAA77
. •--.7:.,.,,, plaintiff tried the Back Defender prior to his April 2018 surgery and worked a full shift with it. It
'••%7yA^i^:A
'^A7A'-'^'4':caused}piai^^^ discomfort and did not alleviate his pain. Plaintiff told both Stover and
::^^'':Aiink :Mijleller that the Babk Disfender would not work and that the issue was the width of the components
• -^wi'a^e"':fhe'had tb wear and how .they compressed his nerve while sitting in' the car. (PMF 365) "If a
•^••n•• 7w 7 •reasoriable acconimodafi^ does not work, the employee must notify the'employer, who has a duty
i • ' O IT. i ' ' . 'I'M?','. •,
tptjprpyide'Jifo accommodation." (Brown v. Los Angeles Unified School District (2021) 60
Cki.Ai)p.'5?*':1092, 1108.) XVhile CHP pointed to the fact that Plaiiitiff ripw wears a Back Defender,
••:AA '^Ak^,
JIO' Plairitiff indicates that it "does not alleviate the discoriifort and he isvwearing it not as an
acpqriirripdatioribut .so he dbes not make any previous injury worse. (PMF . 366) That Plaintiff may
•indicate that he can now use the Back Defender and can work without ariy accommodation does
13^ not as CHP^suggests ill reply "gut" his claim for reasonable accoriimodation. At the very most, it
'A^\h4 highlights an issue of fact as to whether at the relevant time, CHP offeried reasonable
AfA ><^:^S; •^accomiriodatibn. Plaintiff alsb testified in his deposition that he has seen CHP officers have
7AAA!^A'70'
A^:}A A-^iG^'•aitefatibris fo.their duty belts, approved as accommodations even though they do not fit within the
^HP uniform,pbUcy. (PMF 367)
•-.'v':r>.£^^^ V
^:^^c:i;:?v-;ri'8;^ f' The-abbve evidence raises numerous triable issues of material fact as to whether CHP in
fact Pffered-a reasonable accommodation when it declined the ELBV as an option and then offered
Adox;the Sack Defender: Again, Plaintiff presented evidence indicating that the ELBV addressed his
""•.'"^'lAvA.-."
issue^arid that the Back Defender did not and that he informed CHP of the same yet no other option
was prbvided'tb Plaintiff CHP presented no evidence the ELBV created any safetyrisksor any
:uridue hardship. Whether a reasonable accommodation was provided.prnbt is'a,(question for the
,x. • ^ - .1. • - ..
. trier bf fact. The motion must be denied. "
.0'5'.
i'v ."TheCbiirt was not required, to address Plaintiffs arguments regarding a previous CHP
•'..:-': •s'-;^26s
bfficer's\attempts.to obtain ari ELBV as a reasonable accommodation and/or an apparent survey
.27^
arnong officers rejgarding an ELBV: The evidence discussed abbve was more than sufficient to
A7-A7A2S^
ideriionsfrate the existerice of triable issues of material fact on this inherently factual question.
AAA^A'y:'^ :iPr6p6se'd] Order Denying Defendant's Motion for Summary Judgment'Adjudication
I%ei3tifi7 ' '
'A .lAl^A-A Third Cause of Action (Failure to Engage in the Interactive Prbcess)
A t7 A^iA j CHP's motion is denied.
• ^7i^y:r:y}:772;l
FEHA requires an eniployer to engage in a "timely, good faith interactive prbcess...in
resppii'sib to request for a reasonable accommodation by an eriiployee br applicant with a known
iphysicaitprriientaldisability or known medical condition.""(Gov't Code § 12940(n).) "Under
FEHAj-^mi emplbyer must engage in a good faith interactive process with the disabled employee to
V0.-l^ '• • •
explore the altematives tP;:accommodate the disability." (Wysiriger v. Automobile Club of Southem
Galifbrniay(2P0^7) 157 Cal.App.4th 413, 424.) An employeris npt liable for failing to engage in the
• "AAAuAn^'
interactive process if the erriployee was offered a reasonable accommodation: (Hanspn, supra^ 74
•'5¥5v-v.:r:" •• '^^i.;;
:Gal.App.4th at 229.) Whether an employer adequately engaged in the interactive process, like the
, .
, .- • •
. . . . . r ^ . . r,
' i t" . - .f •' . IT^
'question bf whether a reasonable accommodation was provided, is generally a question of fact.
•'' 1? ' ' ' • ' -
(Wilson, supra, 169 eal.App.4th at 1193.) "'[T]he interactive process requires communication and
A-; ;:12;-
.-gbbdrfaith'exploration of possible accommodations between ernployers and individual employees'
with 'the goal of'identify[ing] an accommodation that allows the employee to perform the job
effectively.'... [F]or the process to work '[b]oth sides must communicate directly, excharige
essential informatipri and neither side can delay or obstract the process.'" (Nadaf-Rahrov v. Neiman
Ml Vl M Mkfeus Group, Inc. (2008) 166 Cal.App.4th 952, 984.) "[T]he employer's obligation to engage in
the interactive process extends beyond the first attempt at accommodation and continues wh
Preview
1 MAYALL HURLEY P.C. JOHN P. BRISCOE (SBN: 273690) 2 ibriscoe(g),mayallaw.com 2453 Grand Canal Boulevard 3 Stockton, CaUfornia 95207-8253 4 Telephone: (209)477-3833 FacsimUe: (209) 473-4818 5 Attorneys for Plaintiff David Ridge 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 DAVID RIDGE, an individual. Case No.: 34-2019-00265393 10 Plaintiff, [PROPOSED] ORDER DENYING 11 DEFENDANT'S MOTION FOR vs. SUMMARY JUDGMENT OR 12 ADJUDICATION THE CALIFORNIA HIGHWAY PATROL; 13 and DOES 1-100, inclusive. Date: March 2, 2023 Time: 1:30 p.m. 14 Dept.: 3 Defendants. 15 16 17 Defendant Califomia Highway Patrol's ("CHP") motion for sunmiary judgment, or in the 18 altemative, summary adjudication is denied. 19 In this FEHA disability discrimination action, Plaintiff alleges that CHP denied him a 20 reasonable accommodation for his physical disability, a back injury, which forced him into early 21 retirement. He alleges his disability could have been accommodated by allowing him to wear his 22 sidearm and equipment on a weight-bearing vest instead of the traditional leather belt. Plaintiff 23 alleges he submitted the request for reasonable accommodation in April 2019. Plaintiff alleges 24 causes of action for disability discrimination, failure to accommodate, failure to engage in the 25 interactive process, retaliation and failure to prevent disability discrimination or retaliation. 26 CHP now moves for summary adjudication/judgment of all Plaintiffs claims. 27 In evaluating a motion for summary judgment or summary adjudication the Court engages 28 in a three step process. First, the Court identifies the issues framed by the pleadings. The pleadings [Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication Pagel of 17 1 define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI 2 Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary 3 judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. 4 Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition 5 to the motion must be addressed to the claims and defenses raised in the pleadings. The Court 6 cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary 7 adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a 8 defendant's motion for summary judgment or summary adjudication may not create issues outside 9 the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast 10 Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted 11 that "[i]t would be patently unfair to allow plaintiffs to defeat UCI's summary judgment motion by 12 allowing them to present a "moving target" unbounded by the pleadings." (Melican v. Regents of 13 University of Cahfomia, (2007) 151 Cal. App. 4th 168, 176-177.) 14 Next, the Court must determine whether the moving party has met its burden. A defendant 15 moving for summary judgment or summary adjudication bears the burden of persuasion that one or 16 more elements of the plaintiffs cause of action cannot be established, or that there is a complete 17 defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, 18 quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more 19 elements of the plaintiffs cause of action. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 20 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff 21 carmot prove an element of its cause of action, i.e., that the plaintiff does not possess and carmot 22 reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.) 23 Further, the initial burden requires a showing that the plaintiff "could not prevail on any theory 24 raised by the pleadings." (Hawkins v. Wilton (2006) 144 Cal. App. 4"' 936, 939-940.) 25 At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting 26 the possibility that the plaintiff cannot prove its case; a moving defendant must still make "an 27 affirmative showing" in support of its motion. (Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss 28 «& Glennon (1996) 44 Cal.App.4th 205, 214.) [Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication Page 2 of 17 1 Once the moving party has met its burden, the burden shifts to the opposing party to show 2 that a material factual issue exists as to the cause of action alleged or a defense to it. (CCP § 3 437c(p).) In ruling on the motion, the Court must consider the evidence and inferences reasonably 4 drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, 5 supra, 25 Cal .4th at 843.) 6 Summary adjudication requires disposition of an entire cause of action or claim for 7 damages. (CCP § 437c(f)(l); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.) 8 CHP'S separate statement includes the following facts which it claims are undisputed. On 9 October 14, 2019, CHP issued Plaintiff an options letter and "Option Discussion Checklist" 10 regarding Plaintiffs continued employment. On October 17, 2019, Plaintiff filled out the letter 11 indicating he was interested in discussing (1) retum to work with reasonable acconmiodation; (2) 12 temporary/disability leave/vocational rehabilitation; and (3) industrial disability retirement. (UMF 13 1-3) On November 1, 2019, Plaintiff selected the option of industrial disability retirement. Plaintiff 14 indicated that the process in making that selection was not coercive and that he was of sound mind 15 when he made that choice. (UMF 4-7) No one fi-om CHP told Plaintiff they wanted to force him 16 into retirement due to his disability or request for reasonable accommodation. Plaintiff disability 17 retired effective January 7, 2020. (UMF 8, 9) 18 On April 5, 2019, Plaintiff submitted a request to wear an extemal, load-bearing vest 19 ("ELBV") as a reasonable accommodation. Plaintiff submitted a second request for an ELBV to 20 Sergeant Mueller, the administrative sergeant in the Placerville Office. (UMF 10, 11) CHP denied 21 Plaintiffs request for an ELBV because it has never approved those vests for use by patrol officer 22 due to safety and appearance concems. (UMF 12, 13) CHP offered Plaintiff an altemative 23 accommodation in April/May 2019 consisting of a suspenders system called the Back Defender 24 which is worn under a uniform shirt. (UMF 14) CHP denied Plaintiffs first reasonable 25 accommodation in October 2019. (UMF 15) Plaintiff was aware CHP had never approved ELBVs 26 for patrol officers. He believed that he would wear both the ELBV and his duty belt at the same 27 time. (UMF 16, 17) Plaintiff rejected the offer of the Back Defender and told Placerville Area 28 [Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication Page 3 of 17 Gomiriahder Matthew Stover and Mueller that it would not work. (UMF 18) Plaintiff never •followisd up/with anyone at CHP after this. (UMF 19) Plaintiff has worn the Back Defender since returning to work after the disability retirement ais his back is.n^ warits to work until he is 60 and avoid further injury. (UMF 20) Plairitiff indicated the'Back Defender lessens the pressure on his hips and'permits itransfer of :-•: ' ; " ^ . [Pi-oposed] Order Denying Defendant's Motion for Summary Judgmeiit/Adju'dication Page'4 of 17 • • jidiscrirnination arises, and "the burden shifts to the employer to rebut the presumption by producing • aclntiissible evidence, sufficient to raise a genuirie issue of fact and to justify a jiadgment for the 1 employer that its action was taken for a legitimate, nondiscriminatory reason." (Id. at 355-56, 2 quotations, citations omitted.) If the employer sustains this burden, the presumption of 3 discrimination/retaliation disappears, and the plaintiff is afforded the opportunity to attack the 4 employer's proffered reasons as pretexts for discrimination/retaliation. (Id. at 356.) On summary 5 judgment, a defendant employer may meet its initial burden to show it is entitled to judgment as a 6 matter of law by demonstrating that the plaintiff cannot demonstrate a prima facie case, and may 7 proceed to present evidence of a nondiscriminatory/nonretaliatory basis for its employment action. 8 (See id. at 357.) 9 The Court notes that the burden shifting analysis employed in many employment 10 discrimination motions for summary judgment is not required here. This is so because CHP has 11 not, for example, based its motion on any claim that there was a legitimate nondiscriminatory 12 reason for any adverse action. Rather, CHP attacks whether Plaintiff can demonstrate a prima facie 13 case, that is, whether he suffered adverse action and whether there is evidence of discrimination. 14 Adverse Employment Action 15 CHP first moves for summary adjudication on the basis that it did not subject Plaintiff to 16 any adverse employment action because he voluntarily elected disability retirement. 17 "[Ajlthough an adverse employment action must materially affect the terms, conditions, or 18 privileges of employment to be actionable, the determination of whether a particular action or 19 course of conductrisesto the level of actionable conduct should take into account the unique 20 circumstances of the affected employee as well as the workplace context of the claim." (Yanowitz 21 V. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) "Minor or relatively trivial adverse actions or 22 conduct by employers or fellow employees that, from an objective perspective, are reasonably 23 likely to do no more than anger or upset an employee cannot properly be viewed as materially 24 affecting the terms, conditions, or privileges of employment and are not actionable..." (Id. at 1054.) 25 "The 'materiality' test encompasses not only ultimate employment decisions, but 'also the entire 26 spectrum of employment actions that are reasonably likely to adversely and materially affect an 27 employee's job perfonnance or opportunity for advancement in his or her career.'" (Patten v. Grant 28 Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387.) The proper analysis is not [Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication Pages of 17 liiriited to ''whether each alleged retaliatory act coristitutes an adverse employment action in and of itself.''-(Yariowitz, supra, 36 Cal.4th at 1055.) Rather, "there is no requirement that an employer's ;fetaliatory acts-constitiite one swift blow, rather than a series of subtle; yet damaging, injuries." 'A S^-:A'-^Ai. ^Id:)"^e'COiiclude...a series of separate retaliatory acts pollectively riiay constitute an 'adverse •leriipipyment action'- even i f some or all of the component actS; might not be iridividually actioriable. "• (Id. "at 1041.). V- , /CHP reUes on its evidence discussed above regarding Plaintiffs selection of thedisability ^.;8 .retir^erit-option on the options letter. The letter foUovved Plaintiffs March 2019 workers' ;comperisatiori claim arid.an August 2019 report for the medical, examirier in the workers' ipompehsatibri case indicatirig Plaintiff was physically incapable of lifting more than 40 pounds, beridirig,"stoopirig, or wearing a CHP duty belt. CHP then points to Plaintiffs deposition testimony ^tliafhe'was dfsoimd mind when he selected the disability option, not under the influence of drags or alcohol arid that no one told him they wanted him to retire because he was disabled or requested a reaspnabie £icconariioda^^ (UMFs 3-9) According to GHP, no reasoriiable trier of fact could cPncliide Plaintiff was forced into^early retireriient. Assumirig CHP met' its initial burden,^ the CourtfindsPlairitiff met his burden to deriipnstrate the existence ofa triable issue of material fact. To that erid, Plairitiff presents evidence that by'the time he selected-the disability retirement option, CHP had twice denied him what he .•Ijoiiterids is the only reasonable accommodation for his nieralgia paresthetica that would allow him itdjContinueSvorking fiill duty. (Plaintiffs Material Fact ["PMF"] 29, 30, 33,-34,41, 82, 86, 87].) 'Plairitiff presents evidence that while he presented his request for a reasonable accommodation on April 9'-2019 to wear an ELBV, supported with a detailed explanation as to why he needed the fELBy andriotesfrommultiple doctors recommending the ELBV, he was tPld almost immediately 'i'tlA li ;by Mueller and Stover that the request would never be approved; (PMF 34, 189) Plaintiff was told ihaf the CHP's Commissioner at the time indicated he never wanted patrol officers wearing ELBVs as the current belt was more traditional and that ELBVs did not fit the CHP's uniform policy. (PMF 34,189) Plaintiff presents evidence that on April 12, 2019 Stover responded to ari email from ,:s,\iHfe.328. CHP's Equal Employirient Oppprtunity Office related to Plaintiffs request and stated that Plaintiff [Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication Page'6, of 17 •I'bas.verbally stated and visually demonstrated the inability to work in a full-duty capacity." Stover ^A -.rllz was referencing Plaintiff having difficulty getting out of his chair. (PMF 55) Stover then accompanied. Plaintiff to his doctor!s appointments to infonri the doctor he'did not believe Plaintiff :couid perfonn'his duties, though Stover instmcted Mueller to go tb the appoiritments. (PMF 39) Mueller went'to approximately 12 appointments and had private discussions with the doctors. (Ridge Decl. Tl 11.) Kristine Nickell, CHP's PMK regarding accommodations testified that she had riever heard of this happening and did not believe it was appropriate. (Id.) In'a letter dated April 23, 2019, Stover acknowledged receipt of Plaintiff s request to wear .9: iani ELBV-'stating: "be aware that additional information from your miedical doctor will be necessary tp properfy address your request. Please keep in mind that a reasonable accorrimodation is a logical iadjustriient made to; a job and/or the work environment which enables a'qualified individual with a 12' disability to perform the essential functions of their position. It is'also important to understand that if ybu cannot peirfonri the essential functions of this position; with or without an accommodation, i ' • -, . then ybii may nP Ipnger be qiialified for the position of Officer, .CHP.'' (PMF 58) On June 25, 2019, Stover received a Limited Duty Assignment-Physician's Report ("CHP 443") regarding •• A^- .-r6^ Plaintiff which stated: "No wearing of duty belt. However, [Ridge] riiay wear an outer vest carrier arid duty belt suspension system to evenly distribute the load and,mitigate the invasive width of duty belt components." The document was also sent to Bryrm Marptte with CHP's Injury and illness Case Management Unit. (PMF 57, 61) Stover and Mueller inquired as to whether the CHP • .-':^-;v."!ii2(^ 443: could be used for an options letter to Plaintiff giving him the optibn of industrial disability •'•••i '. • ' retireriient. Marotte responded that "what we need to see [is] that an [emplbyee] will never be able tp returri to [full duty] without restrictions. Specifically with the 443s, we like to see in the "Estiriiated Date for Return'to Full Duty,' that EE carmot return with language such as 'never', etc. I .wiii: eoritact the adjuster and inquire if they have received any medical repbrts that we can use, ::2i6;; 'especially from this current doctor." (PMF 61) Nickell spoke with Marbtte bn September 27, 2019 an(f;Marotte informed her that an ELBV could not be provided to Plairitiff because it did not :'2fc ;ePriform^to CHP's unifonn policy. (PMF 38) On October 11, 2019, an'unidentified person marked :[Proposed]! on }"Deriied" Order Denying Defendant's Plaintiffs reasonableMotion for Summaryform. accommodation Judgment/Adjudication' No explariation was provided- CHP's I?ale 7 of 17 - ' . ' J •• • . '.r'l y ' \ ] '... • • ." • •/•rv-^'-'-l; :Ec[ual Employment Opportunity Office had referred the request tP the Irijury and Illness Case Managemienf Unit arid Nickell testified that she did not recall any other reasonable accommodation • =;>:<'.:-^ :^ ^-iirt^ requests for on the job.injuries being referred there. (PMF 37) Plaintiff presents evidence that while he was provided an options letter in October 2019, he stili had not received any written explanation for why his request to wear an ELBV was denied. -''(•-•J-": '••'•ri ,;- :Sirice one of the options on the options letter was a request for a reasonable accommodation. Plaintiff selected that option and again requested he be allowed to wear the ELBV. (PMF 53, 87) Plaiintiff prbvides evidence that when he informed Stover arid Miiellei:. thatthe intended to submit a jSecond request:he was told there was no need because the first was denied., Plaintiff indicated that • •^•"^'i{V•Vv•'>^.^7^ he never received notice of the first denial and that Mueller went and gbt a copy of the form with the "denied" bpx checked: i(PMF 86) Plaintiff then submitted a second request and a couple of hours later it was i-etumed as denied. (PMF 87) Plaintiff was unsure who he could follow up with \ y ^ f : :i3i- 'because no one put their^name on the written denial. (PMF 88) ;|:v>i:._it^ . On October 28, 2019; Plaintiff had a conference call with Stover arid a third party who ^:^;-^,:--;^;15 fPlairitiff believes was.from Human Resources. (PMF 83) While the options lettierhad numerous •.>>•<. ;..ix.y.^l:6-v bptibns. Stbver tbld Plaintiff that the only options actually available to him were.industrial .di'sability retirement or termination. The individual who Plaintiff believes was frorn Human •-•^>^i•>^.:^8- Resourcissi'agreed. (PMF 83) Plaintiffs supervisors told him that CHP policy only allowed one year v':c":j.;i9'' of limited, so that option was not available. (PMF 84) Plaintiff also did nbt have the option to A^f6:..x,;2pi- medicallyitransfer ^yithout being demoted. (PMF 85) During the phone call Plaintiff again asked whether-he could request wearing an ELBV and Stover simply said no. (PMF 99) Plaintiff ^^ •:, thereafler selected the industrial disability retirement option. Plaintiff presents evidence that he was only offered used ofthe Back Defender and that he infortried Stover-arid'Mueller that he tried it but it did not help with his meralgia paresthetica; (PMF ;28);:P.ia.iritiff presents evidence that Stover was unable to state whyJhe ELBV wbuld not have been a^i'easpnable accoiririiodation, that Stover does not know whether the Back Defender would be as leffebtiy^^ arid that Stover made no effort to ask anyone withiri CHP , why an exception '^••'^tCl^B2f ^ -^ '•-^ = ';^ !-:^ ' :'[Prop6sed] Order Denying Defeiidant's Motion for Summary Judgment/Adjudication ^•v • ...y'V': i=.';V'..' ^?fJ";r;7^;;-^:26v •Page,f;'6f 17 ir.:'-. :.:.:r::r^;'r;f- W-;^:;f?^" • i':.iJ»'-^N:i-'->-^.=^"' i I l l tb-tfee unifpfrii policy could not be made to allow Plaintiff to wear the ELBV and returri to fiill V^v;*^'; ,":^fci^''^2-- dt^;;(PMF47,49;:'59) •f^:^«;:;535 ; sum and substance of the above evidence raises a triable .issue of material fact as to wriether CHP subjected Plaintiff to adverse employment action. Specifically, the evidence allows ifpr a Reasonable inference by a trier of fact that Plaintiffs selection bf indtistrial disability :":.'''-^'''^i-^^''i^.=6 •* fetireriierif was forced under the circumstances. In that regard, "[cionstmctive discharge occurs f^ircf •- • • • • .wheffthe eni^ conduct effectively forces an employee to resign:..As a result,.a constmctive <^jj?;'^;,p8?' discharge-is legally regarded as a firing rather than a resignation." (Tumer v.-^Anheuser-Busch, Inc. •iV'-K';r';^'^9^- ' -.- • .^- Til . 'i, !p§9'4|'7 Gal.4th 1238^^1244^ "[T]o establish a constractivexdischarge, an eriiployee must .s*:r#:i-"^'--^X^; "plead^iaiid^prpye.. .that the employer either intentipnally created br knowingly permitted working • ' • ,. • . .coftditipris that were so intolerable or aggravated at the time of the employee's resignation that a ;re|sbriable .ernp^^^ wpuld realize that a reasonable person in the emplbyee's position would be -•;^4v;^;;i8:; cpmpeUed;fb resign, (id.'at 1251.) ^yhether a reasonable person would have considered the conduct severe or pervasive is generally a question of fact. (Vasquez v. Franklin Mgmt. Real Estate Fund, /^C:?!:^>-L:^2P^/ ari&;(26l3) 222 Cal.App.4th 819, 827.) :'"=^i-^*/;'^^?il' ; • vThe evidence discussed above shows that Plaintiff made multiple requests for a reasonable ^••l'>;i?^^^---'22:' accbriuripdafion, which were denied with little to no explanation other than referencing a uniform - :"^-i-:^';23^; |.pblicy.,fln the interirii. Plaintiffs supervisors accompanied him to medical appointments (something wfecfitCHP's 'PMK had not Heard of and believed was inappropriate), discussed obtaining medical :rep,prts that (qpiild possibly be used so that Plaintiff could be presented with the option of industrial ;i'5-SC -f ' nV : disability retirement, and then being informed that the only available options were industrial f.disability retireriient or termiriatibn. Plaintiff also presented evidence thaf Stover and Mueller told , • (-;,26;,., :)ip:. .'"i-.-ii t '- • t . :him;,that;if;he continued requesting the accommodation for the ELBV he would be medically (Tetireii! (PMF j[Prbposed] Order77) The Defendant's Denying fact that Plaintiff Motion testified in his for Summary depositibn that he was not coerced in Judgment/Adjiidicatidri i'{P\age 9 of•17 - ' ' • " - , • ,.7,.^~-.'; lii'o'^;-':!,;-:?^'' 1 signing the options letter and was of sound mind and not under the influence of any drags or 1 ' •• ....' 'f. •• " !shbialder alcbhpf whetiier?Piaintiff does pressiiring iib was ybu this coerced tpfinding pickwas a certain instated any manner. option." as "in other The (Ridge words, Court Depo. wbuld was ;-.,t.1.12:15,-20.) ariybody riote,thatstanding While the'question rio pver oneyour about was standing over Plaintiff s shoulder when he selected the industrial disability retirement option, under ;the circurnstances, and given everything leading up to that selection, a reasonablefinderof fact i cbuidf conclude that Plaintiff s selection of disability industrial retirement was essentially forced :'.:";-'-:^?:r-''^^ :;,..•: itlj^-^^;^ •4-: and thus created triable issues of material fact as to whether Pkintiff suffered an adverse erriplpyriient action. Again, asriotedat the outset whether Plaintiff suffered an adverse action is an ^^-Cf|'J:' eieriierit bf his prima facie case and'his burden in making that showirig is not "onerous" and the eviderice necessary to meet the burden is "minimal." (Wills, supra, 195 Cal.App.4th at 149.) :-i:;;v:-^^.?7:' • : As a result, the motion on the basis that Plaintiff was not subjected to an adverse .eriiplpyment actiori is deriied. '-•vf-c'".'iir(".' ^^r./^>','-'TO^': V .; • i Disiabilitv/Substantial Motivating Factor •sOwp Yi''"'.-'i ? i,- CHP alternatively argues that Plaintiff s disability was not a substantial rriotivating factor in 'v:::i^: any adverse action taken. The only argument that CHP offers iri this respect is that Plaintiff • "13:??'.yolvititarily chose the'bption of disability retirement" and that there is nb evidence that Plaintiffs 'disabilityrcPntributed to ariy decision to force him into early retirerrierit. (Mot. 13:17-24.) vp':-^..,,,:i5;. Assuriiing CHP met its initial burden, the Court concludes Plaintiff has demonstrated the . existerice;bf triable issues of material fact. Indeed, the same evidence set.forth above in cPnnection ; •p^]'rAgf\j^^ -Jwith'the.advefse action analysis also raises a triable issue of material as to whether Plaintiffs disability was'a substantia! motivating factor. To that end, the evidence shows that Plaintiff made V!,.i|•:^:;;i.;^i:8ti .miiitipieTequests for a reasonable accommodation due to his disability. The evidence shows i,',', The motion on the basis that Plaintiffs disability was not a substantial motivating factor in any, adverse iaction is denied. Second :Gause of Actibn (Reasonable Accommodation) CHP's motibri is, deriied. ,r.;^J;,.-^'^'\:-,7;;; ^ > CHP ppints tb evidence that it offered Plaintiff the Back Defender and that it has never 7f,/i:A:^.20^iappiroved-ELBVs due to'appearance and safety-related disadvantages:; CHP also asserts that iPliintiff admitted that>the Back Defender helps lessen pressure bn his hips atid allows weight to be ^ r - ' i - 22;.. 'ttansferred^from eiquipriient aittached to his duty belt to his shpulders. (UMF 21) CHP claims that -•AM •.AK';''.•.X ..7 •' . . ' '•^••'AAv ''/^-•-24. Plaiiitiff simply refused.the Back Defender and told Mueller and Stover it would not work and ' 25^ nWer.followed up with anyone at CHP. (UMF 19) CHP also poirits.tb. the evidence that since r:;-o.'^'''2(^. Plaintiff retumeci^to work after his industrial disability retirement he has used the Back Defender f' A::^ r'\ ' ' • ': • . • ^,<'- • • " "•' > ." •''•' " [Proposed] Order Denying Defendant's Motion for Summary Judgment/Adjudication Page^-it df 17 • ' • . ' ' whiciidt cbnteri'ds :''ebnclusiveiy'' establishes Plaintiff was offered ai'reasbnable accommodation. A:^;7^A'that iexcept: . ' Stpver t(©ME\2b):;GHP ' Aalsb 7deprived 'ppints ' , tohimthe . ofevidence using'it that for one ' thrieePlaintiffs it granted to days.;:^(UMF request 22, 23) to use a sit-stand desk ' •"' 7A' ; . Assumirig CHP met its burden. Plaintiff has met his burden tp defnonsfrate the existence of ••^ril-. \A7' •'.i; • , • • • .- . - rAAA7A'A": a;triable,^^ material fact. To that end, CHP "cannot prevail on summary jiidgment on a claim 7ik^:f&\ bffailiire tb reasonably accommodate unless it establishes through undisputed facts that (1) reaspnable'acconimodatipn was offered and refiised; (2) there simply was no vacant position within --A'^7!77.m the eriiployer's brgariization for which the disabled employee was quaUfied and which the disabled yAA^-. •"' • ' . . 7' •• 7 ' ';.':¥M:;7^- empipyee-was capable of performing with or without accommodation; br (3) the employer did ••'••,:v'::;-^,;!^:.i(;i everything in its power to find a reasonable accommodation, but theinfortnal interactive process •brpkeldowri because the employee failed to engage iri discussions, iri good faith:" (Jensen v. Wells A7'\ •- A:J : . 77 ^ • ' . Fargo Barik (2000) 85 Cal.App.4th 245,263.) "Employers must make reasonable accommodations 'A- 7 o-, -/"'.'.''•• : ' "•- i • .'r tb'the'disability bf an individual uriless the employer can demonstrate .that doing so would impose fan 'undue hardship.''' (Prilliman, supra, 53 Cal.App.4th at 947.) Here, there are disputed facts as to ribt piily whether: a rbasonable accommodation was offered, whether the ELBV would impose .A 4;, ^'Sl^'^ •mm , " • ": " • . •. ::^-'.-:v,T^|>5^fi ^undue hardship,.but also .whether CHP did everything in its power to find a reasonable : i : ' V : r . i l ^ 'apcomrnodatipn. - --AAA^g^^ V Plairitiff s evidence again shows the ELBV was denied pn the basis that it was not within •\;2|;; fCHFs uiiifbrm p PMF 266) CHP's PMK was unable to'state why it would be '•'•i':-f:^^^22' .iiripbssible to make an exception to the policy, whether other agencies have had problems when {;;:.7::,^23^ ELBVs ^ere. allowed, and could not state that the ELBV would not be a reasonable -"^''=;.'424-^ ^accpmmodatiori. (PMF 267, 268) CHP indicated in its discovery responses that the ELBV was refijised due.to "operational, safety and appearance factors" in addition to the imiform policy. As to %'• ^hiesbpei-ational, safety and appearance factors, CHP indicated that:iri2014 while the Uniform .Cpriimittee was impressed with the ELBV, it felt that there were bfficer safety issues due to a :/^;^-^r'^';525v pbssibiUty bif the ELBV being grabbed and that it looked a "bit sloppy.'^ (PMF'244-246)-However, ,[Proposecl]^Ofder fcHP 'prby^ Denying defendant's 6vidence:;of Motion any actualforrisk Summary Judgment/Adjudic'atioii to anyone created by the ELBV much less any undue '|-f;^'^>v526:^^ ^P^ge i i o f 17 ' -: ^ :/;'?^(:^S8: hardslrip - F u ^ Plaintiff presents evidence that the Back ,Peferider wias not sufficient at the time '", 'i^t-'A\K- •' , i'equipriient "utilify tOi address belt impiriged-pn with his;riieraglia all of theparesthetica. required femoralequipment nerve (PMFand 306) and exacerbated The.Back the belt with the Defender meraglia the apprbximate required paresthetica. Plaintiff 20 pounds .(Id.) to wear Plaintiff of the was working 4 to 5 days per week for 9.5 hour shifts. Around 8 of the hours were spent sitting in a }'A'A ^ •• *•- -rA-77AA'--^'^ patrbl vehicle and the laser and radio pressed into Plaintiffs lateral femoral cutaneous nerve. (Id.) P7AAA77 . •--.7:.,.,,, plaintiff tried the Back Defender prior to his April 2018 surgery and worked a full shift with it. It '••%7yA^i^:A '^A7A'-'^'4':caused}piai^^^ discomfort and did not alleviate his pain. Plaintiff told both Stover and ::^^'':Aiink :Mijleller that the Babk Disfender would not work and that the issue was the width of the components • -^wi'a^e"':fhe'had tb wear and how .they compressed his nerve while sitting in' the car. (PMF 365) "If a •^••n•• 7w 7 •reasoriable acconimodafi^ does not work, the employee must notify the'employer, who has a duty i • ' O IT. i ' ' . 'I'M?','. •, tptjprpyide'Jifo accommodation." (Brown v. Los Angeles Unified School District (2021) 60 Cki.Ai)p.'5?*':1092, 1108.) XVhile CHP pointed to the fact that Plaiiitiff ripw wears a Back Defender, ••:AA '^Ak^, JIO' Plairitiff indicates that it "does not alleviate the discoriifort and he isvwearing it not as an acpqriirripdatioribut .so he dbes not make any previous injury worse. (PMF . 366) That Plaintiff may •indicate that he can now use the Back Defender and can work without ariy accommodation does 13^ not as CHP^suggests ill reply "gut" his claim for reasonable accoriimodation. At the very most, it 'A^\h4 highlights an issue of fact as to whether at the relevant time, CHP offeried reasonable AfA ><^:^S; •^accomiriodatibn. Plaintiff alsb testified in his deposition that he has seen CHP officers have 7AAA!^A'70' A^:}A A-^iG^'•aitefatibris fo.their duty belts, approved as accommodations even though they do not fit within the ^HP uniform,pbUcy. (PMF 367) •-.'v':r>.£^^^ V ^:^^c:i;:?v-;ri'8;^ f' The-abbve evidence raises numerous triable issues of material fact as to whether CHP in fact Pffered-a reasonable accommodation when it declined the ELBV as an option and then offered Adox;the Sack Defender: Again, Plaintiff presented evidence indicating that the ELBV addressed his ""•.'"^'lAvA.-." issue^arid that the Back Defender did not and that he informed CHP of the same yet no other option was prbvided'tb Plaintiff CHP presented no evidence the ELBV created any safetyrisksor any :uridue hardship. Whether a reasonable accommodation was provided.prnbt is'a,(question for the ,x. • ^ - .1. • - .. . trier bf fact. The motion must be denied. " .0'5'. i'v ."TheCbiirt was not required, to address Plaintiffs arguments regarding a previous CHP •'..:-': •s'-;^26s bfficer's\attempts.to obtain ari ELBV as a reasonable accommodation and/or an apparent survey .27^ arnong officers rejgarding an ELBV: The evidence discussed abbve was more than sufficient to A7-A7A2S^ ideriionsfrate the existerice of triable issues of material fact on this inherently factual question. AAA^A'y:'^ :iPr6p6se'd] Order Denying Defendant's Motion for Summary Judgment'Adjudication I%ei3tifi7 ' ' 'A .lAl^A-A Third Cause of Action (Failure to Engage in the Interactive Prbcess) A t7 A^iA j CHP's motion is denied. • ^7i^y:r:y}:772;l FEHA requires an eniployer to engage in a "timely, good faith interactive prbcess...in resppii'sib to request for a reasonable accommodation by an eriiployee br applicant with a known iphysicaitprriientaldisability or known medical condition.""(Gov't Code § 12940(n).) "Under FEHAj-^mi emplbyer must engage in a good faith interactive process with the disabled employee to V0.-l^ '• • • explore the altematives tP;:accommodate the disability." (Wysiriger v. Automobile Club of Southem Galifbrniay(2P0^7) 157 Cal.App.4th 413, 424.) An employeris npt liable for failing to engage in the • "AAAuAn^' interactive process if the erriployee was offered a reasonable accommodation: (Hanspn, supra^ 74 •'5¥5v-v.:r:" •• '^^i.;; :Gal.App.4th at 229.) Whether an employer adequately engaged in the interactive process, like the , . , .- • • . . . . . r ^ . . r, ' i t" . - .f •' . IT^ 'question bf whether a reasonable accommodation was provided, is generally a question of fact. •'' 1? ' ' ' • ' - (Wilson, supra, 169 eal.App.4th at 1193.) "'[T]he interactive process requires communication and A-; ;:12;- .-gbbdrfaith'exploration of possible accommodations between ernployers and individual employees' with 'the goal of'identify[ing] an accommodation that allows the employee to perform the job effectively.'... [F]or the process to work '[b]oth sides must communicate directly, excharige essential informatipri and neither side can delay or obstract the process.'" (Nadaf-Rahrov v. Neiman Ml Vl M Mkfeus Group, Inc. (2008) 166 Cal.App.4th 952, 984.) "[T]he employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues wh