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DENNIS J. HERRERA, State Bar #139669
City Attorney
KATHARINE HOBIN PORTER, State Bar #173180
Chief Labor Attorney
ERIN KUKA, State Bar #275042
Deputy City Attorney
Fox Plaza
1390 Market Street, 5" Floor
San Francisco, California 94102-5408
Telephone: (415) 554-4229
Facsimile: (415) 554-4248
E-Mail: erin.kuka@sfcityatty.org
Attorneys for Defendants
CITY AND COUNTY OF SAN FRANCISCO
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
11/02/2018
Clerk of the Court
BY: YOLANDA TABO-RAMI!
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
STEPHEN KLOSTER, Case No. CGC 15-547171
Plaintiff, DEFENDANT CITY AND COUNTY OF SAN
VS.
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO FIRE
DEPARTMENT: AND DOES 1 TO 40,
Defendants.
FRANCISCO’S REPLY TO PLAINTIFF’S
OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
Reservation No: 06111109-07
Hearing Date: November 9, 2018
Hearing Judge: Hon. Harold E. Kahn
Time: 9:30 am
Place: Dept. 302
Date Action Filed:
Trial Date:
August 3, 2015
December 10, 2018
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INTRODUCTION
This is a summary judgment case. Nothing in Plaintiffs opposition papers diminishes the City
and County of San Francisco’s (“the City”) showing that there are no material facts in dispute, and that
the City is entitled to summary judgment as a matter of law. Plaintiffs case can be, and should be,
adjudicated on the papers with no further resources needed from the parties or from the court.
I. The Findings Of The San Francisco Fire Commission Are Binding.
Plaintiff cannot escape the holdings of Westlake Community Hospital v. Superior Court, 17
Cal.3d 465 (1976) and Johnson v. Loma Linda (Loma Linda), 24 Cal.4th 61, 65 (2000), and thus seeks
to defeat the City’s motion on an argument based on vocabulary and not disputed facts. Plaintiff's
pedantic argument is that the City has not proven in the moving papers that the San Francisco Fire
Commission (“the Commission”) is a quasi-judicial body. Quasi-judicial simply means “Of, relating
to, or involving an executive or administrative official’s adjudicative acts. Quasi-judicial acts, which
are valid if there is no abuse of discretion, often determine the fundamental rights of citizens. They are
subject to review by courts.” Black’s Law Dictionary (10th ed. 2014). In other words, the
Commission, by definition, is a quasi-judicial body, and Plaintiff cannot seriously dispute that.
If Plaintiffs argument is that the Commission did not meet due process, evidentiary, or other
requirements, then it was his responsibility to challenge that deficiency by taking a writ of mandamus,
and he did not.' Cal. Code Civ. Pro. § 1094.5(b) (writ of mandamus review considers the tribunal’s
jurisdiction, whether there was a fair trial, whether the process violated law, whether the decision is
supported by the findings, or whether the findings are supported by the evidence).
' Plaintiff likely did not file a writ because he could not prove any shortcomings. As stated in
the Commission’s decision:
On March 1, 2016, the full Commission conducted a duly-noticed evidentiary hearing on the
Chief's Verified Complaint. FF Kloster appeared and was represented by his attorney, Ashwin
Ladva. The Chief and Department were represented by Deputy City Attorney Lisa Berkowitz.
Sworn testimony and documentary evidence were received from, and arguments presented on
behalf of, both parties. The Department called to testify Dr. Ramon Terrazas, Jesusa Bushong,
and Deputy Chief Raemona Williams. FF Kloster testified on his own behalf and called
Firefighter Laverne Maliga, Firefighter Rasmi Chan, and Firefighter Richard Avellas. The
Commission admitted Department Exhibit Nos. 1, 2, 3, 4, 5,7, 8,9, 10, 11, 12, 13, 14, and 15.
San Francisco Fire Commission, In re Firefighter Stephen Kloster, Case No. 2015-06, Findings
of Fact (June 22, 2016) at 1 (Ex. B to Declaration of Maureen Conefrey 180 the City’s MSJ).
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To the extent that Plaintiff is arguing that the City’s motion fails procedurally because the City
cited the findings of the Commission—which demonstrate all due process was provided, see n.1
supra—in contrast to having the City make each constituent requirement of process a separate
undisputed fact, such an argument is unreasonable and unnecessary under the law. Requiring any
moving party to set forth a separate statement for each of these constituent facts would waste the
Court’s and the parties’ time and result in voluminous separate statements for picayune and irrelevant
issues. For example, Plaintiff’s argument is akin to arguing that a motion to enforce a jury’s verdict
fails if, in the moving papers, the movant does not first prove that the jury was properly empaneled,
that the courtroom was open to the public, that the Judge was properly appointed or elected...the list
has the potential to go on and on. Such a requirement would also be unreasonable because there are
many ways that a proceeding could potentially violate due process; this is why the burden is on a party
challenging the result of a quasi-judicial proceeding to articulate any shortcomings, rather than falling
to another party to disprove any and all possible claims any Plaintiff may make. Of course, Plaintiff
did not challenge the Commission’s findings, and accordingly, they are binding on subsequent
proceedings under Westlake and Loma Linda. Plaintiff's arguments should be rejected.
Plaintiff next relies on George v. Calif: Unemployment Ins. App. Bd., but that case explicitly
affirms the City’s argument. In George, the Court of Appeal considered the preclusive effects of facts
found in a FEHA plaintiff's prior quasi-judicial hearing. George v. Calif. Unemployment Ins. App.
Bd., 179 Cal. App.4th 1475, 1478 (2009). The Court in George did hold that a quasi-judicial
proceeding’s findings are not res judicata to a subsequent FEHA claim. Jd. at 1483. However, the
City is not making any res judicata arguments. Instead, the next section of the Court’s analysis. The
Court explains that a party is barred from relitigating issues finally decided and that:
Summary judgment is an appropriate remedy when the doctrine of res
judicata in its subsidiary form of collateral estoppel refutes all triable issues of
fact suggested by the pleadings. When the issue previously decided is a
required element of the FEHA cause of action, the prior adjudication may
have a preclusive effect on the claim, even if the entire claim is not barred,
resulting in a dismissal of the FEHA action.
Id. at 1486 (citations, quotation marks omitted) (emphasis added). The City’s motion for summary
judgment identifies the “required element[s] of the FEHA cause of action,” and then identifies which
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“issue[s] previously decided” by the Commission now preclude Plaintiff's claims of failure to
accommodate, failure to engage in the interactive process, and disability discrimination. The City’s
Memorandum of Points and Authorities (“MPA”) at 7-10. The City has satisfied this burden.
Plaintiff next argues, without citing any authority, that the Commission’s findings are not
binding because the Commission hearing was not an “internal remedy.” Given that the law is clear
that a Section 1094.5 writ is a party’s sole avenue to seek review the Commission’s findings, it is
unsurprising that there are no cases to support Plaintiff's argument. Additionally, the policy reasons
articulated by the Supreme Court in Loma Linda as supporting its decision apply equally to quasi-
judicial hearings that are internal remedies and those that are not, namely: “both the parties’ interest in
avoiding the cost and vexation of repetitive litigation and the public’s interest in conserving judicial
resources.” /d. at 75 (quoting Univ. of Tenn. v. Elliott, 478 U.S. 788, 798 (1986)). Also, as the
Supreme Court pointed out, “[r]efusing to give binding effect to the findings of administrative
agencies in quasi-judicial proceedings would ... undermine the efficacy of such proceedings,
rendering them in many cases little more than rehearsals for litigation.” Loma Linda, 24 Cal.4th at 72.
No court has ever held that findings of a quasi-judicial hearing only apply when those proceedings are
“internal remedies,” and for good reason. The court should reject Plaintiff's unsupported argument.
In sum, this Court is bound by the Fire Commission’s factual determinations, which Plaintiff
did not properly challenge, and Plaintiff has cited no authority to the contrary. Loma Linda, 24
Cal.4th at 65.
Il. The City Is Entitled To Summary Adjudication Of Plaintiff's Disability Discrimination
Claim.
A Plaintiff Concedes The City’s Argument Regarding The Application Of Green v.
California.
The City’s motion extensively discusses Green v. California and that the case’s holding
precludes Plaintiff from establishing a prima facie case of disability discrimination. MPA at 8-10.
Plaintiff does not address or counter this argument, and summary adjudication is proper as the City has
shown that Plaintiff cannot prove a prima facie case for disability discrimination. The Fifth Day, LLC
vy. Bolotin, 172 Cal.App.4th 939, 962 (2009) (issues not raised in opposition to a motion for summary
judgment are waived).
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B. Plaintiff's Argument Regarding The Henderson Report Is Inapplicable.
Plaintiff endeavors to defeat summary judgment on the argument that the Commission should
not have relied on Dr. Henderson’s report. This is an argument regarding the strength of evidence
before the Commission, and thus would have been an appropriate issue in a proceeding for writ of
mandamus, but it is inapplicable here, where the Court is bound by the Commission’s findings. See
Cal. Code Civ. Pro. § 1094.5(b) (listing topics of inquiry on a writ of mandamus).
Cc. Plaintiff Does Not Demonstrate Pretext.
Preliminarily, the Court only considers pretext if it determines that the Plaintiff has established
a prima facie case, which Plaintiff cannot do, for all the reasons explained in the MPA and above. But
if the Court does proceed to the pretext phase of a disability discrimination claim, Plaintiff has not met
his burden. Plaintiff's opposition merely recites legal standards and then summarily concludes that he
has shown pretext. The Court should treat this argument as abandoned, and should not consider the
argument on the merits. Benach v. Cnty. of Los Angeles, 149 Cal.App.4th 836, 852 (2007) (“This
conclusory presentation, without pertinent argument or an attempt to apply the law to the
circumstances of this case, is inadequate. We therefore treat the issue as abandoned and do not address
it on the merits.”) (citation omitted). It is unfair to ask the Court and the City to guess about what
evidence Plaintiff might claim supports a finding of pretext. Plaintiff has a burden of establishing
pretext, and he has not met that burden. Hersant v. Dep’t. of Soc. Serv., 57 Cal.App.4th 997, 1003
(1997) (to prove pretext, it is the plaintiffs burden to offer “substantial evidence” that the reason for
the adverse action was untrue or pretextual, or evidence of animus, or a combination of the two.).
Plaintiff's conclusory argument does not satisfy his burden. 7d.
Plaintiff cites Reeves v. Sanderson Plumbing Products, Inc., a federal case predicated on the
Age Discrimination in Employment Act, for the standard that a plaintiff can prove pretext by
demonstrating falsity of the employer’s stated explanation for its action. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133 (2000). Reeves is inapposite to the case at bar, where the City
has a thorough record of Plaintiff's behavioral issues, culminating in the fact that the Chief of the Fire
Department had to obtain a restraining order against the Plaintiff due to Plaintiff's threats of violence,
which a Superior Court Judge adjudged to be credible. Unlike Reeves, here Plaintiff did not and
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cannot demonstrate falsity of the City’s explanation. Reeves is also distinguishable on another ground:
the Court was very specific that even if a plaintiff establishes falsity of the employer’s stated
explanation, the plaintiff still has a burden to prove that discrimination occurred because of the
plaintiffs age. Reeves, 530 U.S. at 148; accord Hicks v. KNTV Television, Inc., 160 Cal.App.4th 994,
1003 (2008) (collecting cases) (Plaintiff must both show “that the [employer’s stated] reason was
false, and that discrimination was the real reason.”). Here, Plaintiff offers no evidence that any of the
allegedly discriminatory conduct occurred because of his HIV/AIDS status. Speculations, suspicions,
opinions, and conclusory allegations are inadmissible and cannot constitute evidence in support of
pretext. Guthrey v. California, 63 Cal.App.4th 1108, 1119-20 (1998).
In sum, even if the Court proceeds to analyze the record for pretext—which the Court should
not do because the Court is bound by the Commission findings—the evidence shows that the City had
legitimate business reasons for its actions, and Plaintiff has not met his burden to show pretext. The
City is entitled to summary adjudication of Plaintiff's discrimination claim.
Il. The City Is Entitled To Summary Adjudication On Plaintiffs Claim For Failure To
Engage In The Interactive Process.
Plaintiffs entire argument regarding his claim for failure to engage in the interactive process
can be laid to rest on one authority from the City’s MPA, Gelfo v. Lockheed Martin Corp., which
holds that if the interactive process fails, “responsibility for the failure rests with the party who failed
to participate in good faith.” Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 54 (2006) (internal
citations omitted), As the Commission found, and as the City proved in its moving papers, Plaintiff
did not respond to the City’s multiple attempts to engage him in the interactive process. UF 33-41, 49.
Plaintiff cites Nadaf-Rahrov v. the Neiman Marcus Group, Inc., for the analysis that a jury could find
that the employer was responsible for the breakdown in process, but that case involved a plaintiff who
communicated monthly with human resources regarding returning to work and accommodations.
Nadaf-Rahroy v. the Neiman Marcus Group, Inc., 166 Cal.App.4th 952, 985-86 (2008). Here,
Plaintiff did not return a single phone call or respond to a single letter from our Department of Human
Resources (“DHR”), though DHR attempted to start the interactive process multiple times. The City
is entitled to summary adjudication of Plaintiff's claim for failure to engage in the interactive process.
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IV. The City Is Entitled To Summary Adjudication Of Plaintiff's Claims For Harassment
And Retaliation.
1. Plaintiff Concedes That He Cannot Establish A Continuing Violation.
In its moving papers, the City established that Plaintiff's claims for conduct occurring prior to
March 5, 2014 are barred by the statute of limitations, and that Plaintiff cannot establish a continuing
violation that would allow the court to consider occurrences prior to that date. MPA at 12-14.
Plaintiff does not even attempt to respond to the City’s argument. Accordingly, the court is limited to
considering acts on or after March 5, 2014. The Fifth Day, LLC, supra, 172 Cal.App.4th at 962
(issues not raised in opposition to a motion for summary judgment are waived).
2. The Alleged Acts Occurring Within The Statute Of Limitations Are
Insufficient To Support Plaintiff’s Claims Of Harassment.
Plaintiff does not even attempt to rebut the City’s showing of entitlement to summary
adjudication of his harassment claim. As explained in the City’s moving papers, Plaintiff cites four
incidents that occurred within the statute of limitations to support his case. MPA at 16. Two of the
four were not undertaken by the City. Indeed, the City proved in its moving papers that Plaintiff could
not show the acts were attributable to the City, and Plaintiff conceded as much when he did not even
attempt a response. MPA at 16-17. The Fifth Day, LLC, supra, 172 Cal.App.4th at 962 (issues not
raised in opposition to a motion for summary judgment are waived). This leaves two incidents:
Plaintiff's medical separation and that he was not given cooking credit for a meal he cooked in May of
2014. For the reasons explained in the City’s MPA and unrebutted by the Plaintiff those incidents are
insufficient to support a claim for harassment, and the City is entitled to summary adjudication of
Plaintiff's claim.
3. The Alleged Acts Occurring Within The Statute Of Limitations Are
Insufficient To Support Plaintiff’s Claim of Retaliation.
In his Opposition, Plaintiff does not cite any evidence for the factual claims he makes, such as
that Plaintiff “was wrongfully placed upon [sic] leave, reprimanded, suspended, and terminated,” that
Plaintiff “was either complaining about discrimination or harassment,” that Plaintiff was “seeking
accommodations under the FEHA,” or that “almost every time he complained, he was subject to
discipline.” Of course, to successfully oppose a motion for summary judgment, Plaintiff cannot rest
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on argument, but must provide evidence to rebut the City’s showing. Aguilar v. Atlantic Richfield Co.,
25 Cal.4th 826, 845 (2001). Plaintiff must also apply law to the facts of the case: it is unfair to ask the
Court or the City to concoct Plaintiff’s argument for him in order to be able to brief a response.
Benach, supra, 149 Cal.App.4th at 852.
But even if the Court accepts Plaintiff's argument that he engaged in FEHA-protected
activities, Plaintiff still cannot sustain a claim of retaliation because he has provided neither evidence
nor argument that the Commission medically separated him due those protected activities. First,
Plaintiffs claim that he was terminated in retaliation is “at odds with the preceding determination,”
which found the reasons for his medical separation, and is final and binding on this Court. Loma
Linda, 24 Cal.4th at 71. Second, even if the Court does not credit the Commission’s findings, Plaintiff
must still provide evidence that there was a “causal connection” between the employee’s protected
activity and the adverse employment action. Mixon v. Fair Employment and Housing Comm’n, 192
Cal.App.2d 1306, 1319 (1987). Plaintiff alludes to temporal proximity between his alleged protected
activity and alleged retaliation as proving pretext. However, temporal proximity alone is insufficient
to prove pretext. Arteaga v. Brink’s, Inc., 163 Cal.App.4th 327, 354 (2008). Plaintiff has simply
provided no evidence of pretext. Accordingly, the City entitled to summary adjudication of Plaintiff's
claim of retaliation.
CONCLUSION
For the reasons set forth in the City’s MPA and this reply brief, and supported by the submitted
evidence, the City has shown entitlement to summary adjudication on each of Plaintiffs claims. This
Court should therefore grant the City’s motion in its entirety and dismiss Plaintiffs complaint.
Dated: November 2, 2018 DENNIS J. HERRERA
City Attorney
KATHARINE HOBIN PORTER
Chief Labor Attorney
ERIN KUKA
Deputy City Attorney
By: /s/ Erin Kuka
ERIN KUKA
Attorneys for Defendants
CITY AND COUNTY OF SAN FRANCISCO
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w aD DENNIS J. HERRERA, State Bar #139669 City Attorney KATHARINE HOBIN PORTER, State Bar #173180 Chief Labor Attorney ERIN KUKA, State Bar #275042 Deputy City Attorney Fox Plaza 1390 Market Street, 5" Floor San Francisco, California 94102-5408 Telephone: (415) 554-4229 Facsimile: (415) 554-4248 E-Mail: erin.kuka@sfcityatty.org Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO ELECTRONICALLY FILED Superior Court of California, County of San Francisco 11/02/2018 Clerk of the Court BY: YOLANDA TABO-RAMI! Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION STEPHEN KLOSTER, Case No. CGC 15-547171 Plaintiff, DEFENDANT CITY AND COUNTY OF SAN VS. CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO FIRE DEPARTMENT: AND DOES 1 TO 40, Defendants. FRANCISCO’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION Reservation No: 06111109-07 Hearing Date: November 9, 2018 Hearing Judge: Hon. Harold E. Kahn Time: 9:30 am Place: Dept. 302 Date Action Filed: Trial Date: August 3, 2015 December 10, 2018 Reply ISO MSJ; CGC 15-547171 n:Mlabor\li2015\160220\0 13 15046.docw aD INTRODUCTION This is a summary judgment case. Nothing in Plaintiffs opposition papers diminishes the City and County of San Francisco’s (“the City”) showing that there are no material facts in dispute, and that the City is entitled to summary judgment as a matter of law. Plaintiffs case can be, and should be, adjudicated on the papers with no further resources needed from the parties or from the court. I. The Findings Of The San Francisco Fire Commission Are Binding. Plaintiff cannot escape the holdings of Westlake Community Hospital v. Superior Court, 17 Cal.3d 465 (1976) and Johnson v. Loma Linda (Loma Linda), 24 Cal.4th 61, 65 (2000), and thus seeks to defeat the City’s motion on an argument based on vocabulary and not disputed facts. Plaintiff's pedantic argument is that the City has not proven in the moving papers that the San Francisco Fire Commission (“the Commission”) is a quasi-judicial body. Quasi-judicial simply means “Of, relating to, or involving an executive or administrative official’s adjudicative acts. Quasi-judicial acts, which are valid if there is no abuse of discretion, often determine the fundamental rights of citizens. They are subject to review by courts.” Black’s Law Dictionary (10th ed. 2014). In other words, the Commission, by definition, is a quasi-judicial body, and Plaintiff cannot seriously dispute that. If Plaintiffs argument is that the Commission did not meet due process, evidentiary, or other requirements, then it was his responsibility to challenge that deficiency by taking a writ of mandamus, and he did not.' Cal. Code Civ. Pro. § 1094.5(b) (writ of mandamus review considers the tribunal’s jurisdiction, whether there was a fair trial, whether the process violated law, whether the decision is supported by the findings, or whether the findings are supported by the evidence). ' Plaintiff likely did not file a writ because he could not prove any shortcomings. As stated in the Commission’s decision: On March 1, 2016, the full Commission conducted a duly-noticed evidentiary hearing on the Chief's Verified Complaint. FF Kloster appeared and was represented by his attorney, Ashwin Ladva. The Chief and Department were represented by Deputy City Attorney Lisa Berkowitz. Sworn testimony and documentary evidence were received from, and arguments presented on behalf of, both parties. The Department called to testify Dr. Ramon Terrazas, Jesusa Bushong, and Deputy Chief Raemona Williams. FF Kloster testified on his own behalf and called Firefighter Laverne Maliga, Firefighter Rasmi Chan, and Firefighter Richard Avellas. The Commission admitted Department Exhibit Nos. 1, 2, 3, 4, 5,7, 8,9, 10, 11, 12, 13, 14, and 15. San Francisco Fire Commission, In re Firefighter Stephen Kloster, Case No. 2015-06, Findings of Fact (June 22, 2016) at 1 (Ex. B to Declaration of Maureen Conefrey 180 the City’s MSJ). Reply ISO MSJ; CGC 15-547171 nz\labor\li2015\160220\01315046.doew aD To the extent that Plaintiff is arguing that the City’s motion fails procedurally because the City cited the findings of the Commission—which demonstrate all due process was provided, see n.1 supra—in contrast to having the City make each constituent requirement of process a separate undisputed fact, such an argument is unreasonable and unnecessary under the law. Requiring any moving party to set forth a separate statement for each of these constituent facts would waste the Court’s and the parties’ time and result in voluminous separate statements for picayune and irrelevant issues. For example, Plaintiff’s argument is akin to arguing that a motion to enforce a jury’s verdict fails if, in the moving papers, the movant does not first prove that the jury was properly empaneled, that the courtroom was open to the public, that the Judge was properly appointed or elected...the list has the potential to go on and on. Such a requirement would also be unreasonable because there are many ways that a proceeding could potentially violate due process; this is why the burden is on a party challenging the result of a quasi-judicial proceeding to articulate any shortcomings, rather than falling to another party to disprove any and all possible claims any Plaintiff may make. Of course, Plaintiff did not challenge the Commission’s findings, and accordingly, they are binding on subsequent proceedings under Westlake and Loma Linda. Plaintiff's arguments should be rejected. Plaintiff next relies on George v. Calif: Unemployment Ins. App. Bd., but that case explicitly affirms the City’s argument. In George, the Court of Appeal considered the preclusive effects of facts found in a FEHA plaintiff's prior quasi-judicial hearing. George v. Calif. Unemployment Ins. App. Bd., 179 Cal. App.4th 1475, 1478 (2009). The Court in George did hold that a quasi-judicial proceeding’s findings are not res judicata to a subsequent FEHA claim. Jd. at 1483. However, the City is not making any res judicata arguments. Instead, the next section of the Court’s analysis. The Court explains that a party is barred from relitigating issues finally decided and that: Summary judgment is an appropriate remedy when the doctrine of res judicata in its subsidiary form of collateral estoppel refutes all triable issues of fact suggested by the pleadings. When the issue previously decided is a required element of the FEHA cause of action, the prior adjudication may have a preclusive effect on the claim, even if the entire claim is not barred, resulting in a dismissal of the FEHA action. Id. at 1486 (citations, quotation marks omitted) (emphasis added). The City’s motion for summary judgment identifies the “required element[s] of the FEHA cause of action,” and then identifies which 2 Reply ISO MSJ; CGC 15-547171 nz\labor\li2015\160220\01315046.doew aD “issue[s] previously decided” by the Commission now preclude Plaintiff's claims of failure to accommodate, failure to engage in the interactive process, and disability discrimination. The City’s Memorandum of Points and Authorities (“MPA”) at 7-10. The City has satisfied this burden. Plaintiff next argues, without citing any authority, that the Commission’s findings are not binding because the Commission hearing was not an “internal remedy.” Given that the law is clear that a Section 1094.5 writ is a party’s sole avenue to seek review the Commission’s findings, it is unsurprising that there are no cases to support Plaintiff's argument. Additionally, the policy reasons articulated by the Supreme Court in Loma Linda as supporting its decision apply equally to quasi- judicial hearings that are internal remedies and those that are not, namely: “both the parties’ interest in avoiding the cost and vexation of repetitive litigation and the public’s interest in conserving judicial resources.” /d. at 75 (quoting Univ. of Tenn. v. Elliott, 478 U.S. 788, 798 (1986)). Also, as the Supreme Court pointed out, “[r]efusing to give binding effect to the findings of administrative agencies in quasi-judicial proceedings would ... undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation.” Loma Linda, 24 Cal.4th at 72. No court has ever held that findings of a quasi-judicial hearing only apply when those proceedings are “internal remedies,” and for good reason. The court should reject Plaintiff's unsupported argument. In sum, this Court is bound by the Fire Commission’s factual determinations, which Plaintiff did not properly challenge, and Plaintiff has cited no authority to the contrary. Loma Linda, 24 Cal.4th at 65. Il. The City Is Entitled To Summary Adjudication Of Plaintiff's Disability Discrimination Claim. A Plaintiff Concedes The City’s Argument Regarding The Application Of Green v. California. The City’s motion extensively discusses Green v. California and that the case’s holding precludes Plaintiff from establishing a prima facie case of disability discrimination. MPA at 8-10. Plaintiff does not address or counter this argument, and summary adjudication is proper as the City has shown that Plaintiff cannot prove a prima facie case for disability discrimination. The Fifth Day, LLC vy. Bolotin, 172 Cal.App.4th 939, 962 (2009) (issues not raised in opposition to a motion for summary judgment are waived). Reply ISO MSJ; CGC 15-547171 nz\labor\li2015\160220\01315046.doew aD B. Plaintiff's Argument Regarding The Henderson Report Is Inapplicable. Plaintiff endeavors to defeat summary judgment on the argument that the Commission should not have relied on Dr. Henderson’s report. This is an argument regarding the strength of evidence before the Commission, and thus would have been an appropriate issue in a proceeding for writ of mandamus, but it is inapplicable here, where the Court is bound by the Commission’s findings. See Cal. Code Civ. Pro. § 1094.5(b) (listing topics of inquiry on a writ of mandamus). Cc. Plaintiff Does Not Demonstrate Pretext. Preliminarily, the Court only considers pretext if it determines that the Plaintiff has established a prima facie case, which Plaintiff cannot do, for all the reasons explained in the MPA and above. But if the Court does proceed to the pretext phase of a disability discrimination claim, Plaintiff has not met his burden. Plaintiff's opposition merely recites legal standards and then summarily concludes that he has shown pretext. The Court should treat this argument as abandoned, and should not consider the argument on the merits. Benach v. Cnty. of Los Angeles, 149 Cal.App.4th 836, 852 (2007) (“This conclusory presentation, without pertinent argument or an attempt to apply the law to the circumstances of this case, is inadequate. We therefore treat the issue as abandoned and do not address it on the merits.”) (citation omitted). It is unfair to ask the Court and the City to guess about what evidence Plaintiff might claim supports a finding of pretext. Plaintiff has a burden of establishing pretext, and he has not met that burden. Hersant v. Dep’t. of Soc. Serv., 57 Cal.App.4th 997, 1003 (1997) (to prove pretext, it is the plaintiffs burden to offer “substantial evidence” that the reason for the adverse action was untrue or pretextual, or evidence of animus, or a combination of the two.). Plaintiff's conclusory argument does not satisfy his burden. 7d. Plaintiff cites Reeves v. Sanderson Plumbing Products, Inc., a federal case predicated on the Age Discrimination in Employment Act, for the standard that a plaintiff can prove pretext by demonstrating falsity of the employer’s stated explanation for its action. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). Reeves is inapposite to the case at bar, where the City has a thorough record of Plaintiff's behavioral issues, culminating in the fact that the Chief of the Fire Department had to obtain a restraining order against the Plaintiff due to Plaintiff's threats of violence, which a Superior Court Judge adjudged to be credible. Unlike Reeves, here Plaintiff did not and 4 Reply ISO MSJ; CGC 15-547171 nz\labor\li2015\160220\01315046.doew aD cannot demonstrate falsity of the City’s explanation. Reeves is also distinguishable on another ground: the Court was very specific that even if a plaintiff establishes falsity of the employer’s stated explanation, the plaintiff still has a burden to prove that discrimination occurred because of the plaintiffs age. Reeves, 530 U.S. at 148; accord Hicks v. KNTV Television, Inc., 160 Cal.App.4th 994, 1003 (2008) (collecting cases) (Plaintiff must both show “that the [employer’s stated] reason was false, and that discrimination was the real reason.”). Here, Plaintiff offers no evidence that any of the allegedly discriminatory conduct occurred because of his HIV/AIDS status. Speculations, suspicions, opinions, and conclusory allegations are inadmissible and cannot constitute evidence in support of pretext. Guthrey v. California, 63 Cal.App.4th 1108, 1119-20 (1998). In sum, even if the Court proceeds to analyze the record for pretext—which the Court should not do because the Court is bound by the Commission findings—the evidence shows that the City had legitimate business reasons for its actions, and Plaintiff has not met his burden to show pretext. The City is entitled to summary adjudication of Plaintiff's discrimination claim. Il. The City Is Entitled To Summary Adjudication On Plaintiffs Claim For Failure To Engage In The Interactive Process. Plaintiffs entire argument regarding his claim for failure to engage in the interactive process can be laid to rest on one authority from the City’s MPA, Gelfo v. Lockheed Martin Corp., which holds that if the interactive process fails, “responsibility for the failure rests with the party who failed to participate in good faith.” Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 54 (2006) (internal citations omitted), As the Commission found, and as the City proved in its moving papers, Plaintiff did not respond to the City’s multiple attempts to engage him in the interactive process. UF 33-41, 49. Plaintiff cites Nadaf-Rahrov v. the Neiman Marcus Group, Inc., for the analysis that a jury could find that the employer was responsible for the breakdown in process, but that case involved a plaintiff who communicated monthly with human resources regarding returning to work and accommodations. Nadaf-Rahroy v. the Neiman Marcus Group, Inc., 166 Cal.App.4th 952, 985-86 (2008). Here, Plaintiff did not return a single phone call or respond to a single letter from our Department of Human Resources (“DHR”), though DHR attempted to start the interactive process multiple times. The City is entitled to summary adjudication of Plaintiff's claim for failure to engage in the interactive process. 5 Reply ISO MSJ; CGC 15-547171 nz\labor\li2015\160220\01315046.doew aD IV. The City Is Entitled To Summary Adjudication Of Plaintiff's Claims For Harassment And Retaliation. 1. Plaintiff Concedes That He Cannot Establish A Continuing Violation. In its moving papers, the City established that Plaintiff's claims for conduct occurring prior to March 5, 2014 are barred by the statute of limitations, and that Plaintiff cannot establish a continuing violation that would allow the court to consider occurrences prior to that date. MPA at 12-14. Plaintiff does not even attempt to respond to the City’s argument. Accordingly, the court is limited to considering acts on or after March 5, 2014. The Fifth Day, LLC, supra, 172 Cal.App.4th at 962 (issues not raised in opposition to a motion for summary judgment are waived). 2. The Alleged Acts Occurring Within The Statute Of Limitations Are Insufficient To Support Plaintiff’s Claims Of Harassment. Plaintiff does not even attempt to rebut the City’s showing of entitlement to summary adjudication of his harassment claim. As explained in the City’s moving papers, Plaintiff cites four incidents that occurred within the statute of limitations to support his case. MPA at 16. Two of the four were not undertaken by the City. Indeed, the City proved in its moving papers that Plaintiff could not show the acts were attributable to the City, and Plaintiff conceded as much when he did not even attempt a response. MPA at 16-17. The Fifth Day, LLC, supra, 172 Cal.App.4th at 962 (issues not raised in opposition to a motion for summary judgment are waived). This leaves two incidents: Plaintiff's medical separation and that he was not given cooking credit for a meal he cooked in May of 2014. For the reasons explained in the City’s MPA and unrebutted by the Plaintiff those incidents are insufficient to support a claim for harassment, and the City is entitled to summary adjudication of Plaintiff's claim. 3. The Alleged Acts Occurring Within The Statute Of Limitations Are Insufficient To Support Plaintiff’s Claim of Retaliation. In his Opposition, Plaintiff does not cite any evidence for the factual claims he makes, such as that Plaintiff “was wrongfully placed upon [sic] leave, reprimanded, suspended, and terminated,” that Plaintiff “was either complaining about discrimination or harassment,” that Plaintiff was “seeking accommodations under the FEHA,” or that “almost every time he complained, he was subject to discipline.” Of course, to successfully oppose a motion for summary judgment, Plaintiff cannot rest 6 Reply ISO MSJ; CGC 15-547171 nz\labor\li2015\160220\01315046.doew aD on argument, but must provide evidence to rebut the City’s showing. Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 845 (2001). Plaintiff must also apply law to the facts of the case: it is unfair to ask the Court or the City to concoct Plaintiff’s argument for him in order to be able to brief a response. Benach, supra, 149 Cal.App.4th at 852. But even if the Court accepts Plaintiff's argument that he engaged in FEHA-protected activities, Plaintiff still cannot sustain a claim of retaliation because he has provided neither evidence nor argument that the Commission medically separated him due those protected activities. First, Plaintiffs claim that he was terminated in retaliation is “at odds with the preceding determination,” which found the reasons for his medical separation, and is final and binding on this Court. Loma Linda, 24 Cal.4th at 71. Second, even if the Court does not credit the Commission’s findings, Plaintiff must still provide evidence that there was a “causal connection” between the employee’s protected activity and the adverse employment action. Mixon v. Fair Employment and Housing Comm’n, 192 Cal.App.2d 1306, 1319 (1987). Plaintiff alludes to temporal proximity between his alleged protected activity and alleged retaliation as proving pretext. However, temporal proximity alone is insufficient to prove pretext. Arteaga v. Brink’s, Inc., 163 Cal.App.4th 327, 354 (2008). Plaintiff has simply provided no evidence of pretext. Accordingly, the City entitled to summary adjudication of Plaintiff's claim of retaliation. CONCLUSION For the reasons set forth in the City’s MPA and this reply brief, and supported by the submitted evidence, the City has shown entitlement to summary adjudication on each of Plaintiffs claims. This Court should therefore grant the City’s motion in its entirety and dismiss Plaintiffs complaint. Dated: November 2, 2018 DENNIS J. HERRERA City Attorney KATHARINE HOBIN PORTER Chief Labor Attorney ERIN KUKA Deputy City Attorney By: /s/ Erin Kuka ERIN KUKA Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO 7 Reply ISO MSJ; CGC 15-547171 nz\labor\li2015\160220\01315046.doe