Hartman vs California State University Channel Islands

Plaintiff alleges he worked for CSU as an adjunct professor from 2014 until his termination in October 2020. Plaintiff alleges that he suffered discrimination on the basis of his national origin (though American, Plaintiff claims some connections to various Latin American countries), disability, and marital status (Plaintiff and his wife divorced during the time of his employment with CSU).

On 4/30/21, Plaintiff filed his Complaint against CSU and several other defendants.

After the Court granted an anti-SLAPP motion as to several causes of action and sustained a demurrer, Plaintiff, on 10/6/21, filed the First Amended Complaint (“FAC”). The FAC asserts five causes of action against CSU for: (1) FEHA discrimination; (2) failure to provide reasonable accommodations in violation of the FEHA; (3) failure to engage in the interactive process, (4) retaliation, and (5) failure to prevent discrimination and retaliation.

Grounds: Pursuant to CCP section 437c, Defendant moves for summary judgment against Plaintiff on the grounds that the FAC has no merit, or, alternatively, for summary adjudication of the following issues:

ISSUE 1: Plaintiff’s Second and Third Causes of Action are Barred by Plaintiff’s Failure to Timely Exhaust His Administrative Remedies. (UMF Nos. 4-5, 8-13, 16-22, 42.)

ISSUE 2: Plaintiff’s First, Second and Third Causes of Action Are Legally Insufficient Because Plaintiff Did Not Have a Qualifying Disability Under the FEHA Nor Was Plaintiff Perceived as Disabled. (UMF Nos. 1-13, 34-35, 38.)

ISSUE 3: Plaintiff’s First, Fourth and Fifth Causes of Action Are Legally Insufficient Because Plaintiff Did Not Suffer an Adverse Employment Action. (UMF Nos. 1-3, 39-41.)

ISSUE 4 There is Insufficient Evidence to Establish the Causation Element of Plaintiff’s First, Fourth and Fifth Causes of Action for Discrimination, Retaliation and Failure to Prevent. (UMF Nos. 4-8, 14-15, 17-20, 23-24, 34-35, 38.)

ISSUE 5: CSU Had Legitimate Non-Discriminatory, Non-Retaliatory Reasons for the Alleged Adverse Employment Action. (UMF Nos. 27-31, 36-37.)

Discussion:

I. Judicial Notice

Defendant requests judicial notice of Plaintiff’s DFEH complaint. The Court may take judicial notice of the existence of this relevant document as a record of an official act. (See Evid. Code, § 452, subds. (c) & (h); see also see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [stating that a court may take judicial notice of the existence of certain documents]; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [limiting judicial notice to relevant matters].) Therefore, Defendant’s request for judicial notice is GRANTED.

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II. Objections

A. Evidentiary Objections

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP, § 437c, subd. (q).)

Here, the Court declines to rule on Defendant’s evidentiary objections because they are immaterial to the disposition of the motion. (See CCP, § 437c, subd. (q).)

III. Legal Standard

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Ibid.)

The pleadings frame the issues for summary judgment. (Davis v. Farmers Ins. Group (2005) 134 Cal.App.4th 100; Government v. Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98, fn. 4; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The motion must respond to the theories alleged in the complaint. (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493.)

A moving defendant has the initial burden to demonstrate that a cause of action has no merit by showing “that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (CCP, § 437c, subd. (p)(2).) To show that an element cannot be established, the defendant may present affirmative evidence to negate an essential element of the claim, or evidence showing that the plaintiff does not have and cannot reasonably obtain necessary evidence. (Guz v.

Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) If the defendant meets the initial burden, then the burden shifts to the plaintiff to show the existence of a triable issue of material fact. (CCP, § 437c, subd. (p)(2).) The court may only grant summary judgment if all of the papers show that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Id., subd. (c).)

If the moving party fails to meet the initial burden, then the opposing party is not required to submit any evidence in opposition. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) More importantly, if the moving party fails to meet the initial burden, then it is unnecessary to examine the opposing evidence and the motion must be denied. (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 326; see also Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th, at p. 468.)

In ruling on the motion, affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be

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resolved against granting the motion. (E.g., Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830.)

The court may only grant summary judgment if all of the papers show that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (CCP, § 437c, subd. (c).)

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Id., subd. (c).)

IV.

Analysis

A. ISSUE 1: Plaintiff’s Second and Third Causes of Action are Barred by Plaintiff’s Failure to Timely Exhaust His Administrative Remedies. (UMF Nos. 4-5, 8-13, 16-22, 42.)

The second cause of action is for failure to provide a reasonable accommodation in violation of FEHA. The third cause of action is failure to engage in the interactive process.

1. Defendant’s Initial Burden

Defendant argues that these claims are barred by the one-year limitation period for filing an administrative charge under the FEHA. They acknowledge that FEHA was amended to replace the one-year statute of limitations with a three-year statute of limitations, effective 1/1/20. They contend that the one-year statute of limitations still applies.

Defendant cites, amongst other things, a District Court case discussing this amendment. Plaintiff generally objects to the citations to such evidence because Defendant did not provide copies of these authorities as required by the California Rules of Court. Since these cases are easily accessible online, the Court will still consider these authorities.

Prior to January 1, 2020, the FEHA “provided that no administrative complaint alleging a violation of its provisions could be filed with the DFEH ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.’” Pollock v. Tri-Modal Distrib. Servs., Inc., 11 Cal. 5th 918, 931 (2021) (citing former Cal. Gov't Code § 12960(d)). Effective January 1, 2020, California amended the law by changing the one-year limitations period to three years.

Cal. Gov't Code § 12960(e)(3); see Pollock, 11 Cal. 5th at 931 (“The current statute uses virtually identical language but allows for a period of three years.”). However, California Assembly Bill No. 9 expressly prohibits retroactive application of the newly enlarged limitations period. See A.B. No. 9 § 3, 2019-20 Sess. (Cal. 2019) (“This act shall not be interpreted to revive lapsed claims.”); Cal. Gov't Code § 12960(f)(3) (noting that the tolling provision “is not intended to revise claims that have already lapsed”).

Therefore, the former one-year statute of limitations applies to any FEHA claim that accrued more than one year

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before January 1, 2020, while the current three-year period applies to any FEHA claim that accrued less than one year prior to, or after, January 1, 2020. See Gillespie v. Centerra Servs. Int'l, Inc., No. EDCV 21-2028 JGB (SHKx), 2022 WL 16964007, at *8 (C.D. Cal. Sept. 7, 2022); see also Streets v. Space Sys./Loral, LLC, No. 20-cv-07901-EJD, 2021 WL 4146962, at *4 (N.D. Cal. Sept. 13, 2021) (holding that the three-year statute of limitations period effective January 1, 2020, does not revive lapsed claims). (Conway v. City of Palm Desert (C.D. Cal., July 25, 2023, No. 5:21-CV-01144-SPG-SP) 2023 WL 5677858, at *4, aff'd (9th Cir., June 10, 2024, No. 23-55756) 2024 WL 2890072, bold added for emphasis.) The Court finds this reasoning to be persuasive and will apply the same rule.

The cause of action accrues, and statute of limitations begins to run, on claims for failure to provide a reasonable accommodation and to engage in the interactive process when “the employer has made clear in word and deed that the employee’s attempted further reasonable accommodation is futile,” because “then the employee is on notice that litigation, not informal conciliation, is the only alternative for the vindication of his or her rights. Barring a constructive discharge, it is at that point the statute of limitations for the violation begins to run.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

Defendant cites UMF Nos. 4, 16, 20, and 21 in support of its assertion that Plaintiff’s claims accrued well before 1/1/19.

UMF No. 4 states: “Plaintiff testified that he was disabled with depression during the Spring 2016 semester. Exhibit E-013, E-023; Exhibit N-003, N-009 [All Exhibits are Attached to CSU’s Compendium of Evidence][.]”

UMF No. 16 states: “On November 2, 2017, plaintiff submitted a written response to his March 2017 evaluation explaining that “[d]uring the Spring 2016 semester I was dealing with a significant and traumatic life event that occurred in late fall of 2015. I fell into a temporary depression, and I was not able to engage with students at my normal capacity.” (Italics supplied.) Students understandably had a bad experience in the courses I taught during this time period” (ESRM 328, ESRM 428, and ESRM 200). Plaintiff continued that “ after time off during the summer I came back with a renewed commitment and resiliency, and [my] SRTs were higher than ever in Fall 2016.” Exhibit F-011-012; Exhibit P[.]”

UMF No. 20 states: “Plaintiff states that “[he] was explicitly denied reasonable accommodation in meetings with Dr. Rodriguez (Fall 2017) and Dr. Sean Anderson (Spring 2018).” Exhibit E-035; Exhibit F-011-015, F-023; Exhibit K-008[.]”

UMF No. 21 states: “Plaintiff testified that Dr. Anderson responded to his request by stating, “it’s nothing I can do; [y]ou just have to be the kick-ass professor that you think you are from here on out.” Exhibit F-016-017; Exhibit N-003, N-009-010[.]”

Defendant is correct that this evidence demonstrates that the alleged failure to provide a reasonable accommodation and failure to engage in the interactive process claims accrued before 1/1/19. Specifically, the evidence shows that Plaintiff’s requests for accommodations were unequivocally denied in 2017 and 2018.

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Defendant also cites UMF Nos. 4 and 9-13 for the contention that Plaintiff alleges he was only temporarily disabled during a short period in Spring 2016.

UMF No. 4 is stated above.

UMF No. 9 states: “From approximately February 2016 until sometime in Fall of 2016, plaintiff received medical treatment for depression. Exhibit E-023-025[.]”

UMF No. 10 states: “Plaintiff testified that he stopped treatment for depression sometime in Fall 2016 “cause [he] got better.” Exhibit E-026, E-029-E030[.]”

UMF No. 11 states: “Plaintiff did not seek any further medical treatment for depression for the remainder of his employment at CSUCI. Exhibit F-008-010[.]”

UMF No. 12 states: “Plaintiff worked continuously at CSUCI from Fall 2016 through Fall 2019 without requesting or needing any additional teaching assistance. Exhibit E-009, E-028; Exhibit F-006-007; Exhibit L-003 at ¶4[.]

This evidence is sufficient to show that Plaintiff’s depression—which was the disability for which he sought reasonable accommodations—occurred in 2016. This, too, is long before 1/1/19.

In addition, Defendant cites UMF Nos. 5-8 as admissions by Plaintiff that he sought teaching assistance during Spring 2016 when he was temporarily depressed; and UMF Nos. 17-19 as evidence that in the 2017-2018 academic year, he sought assurance that his admittedly poor performance in 2016, allegedly due to his depression, would not “bias” future evaluations, which he referred to as a “restorative” accommodation.

UMF No. 5 states: “During the Spring 2016 semester, plaintiff was co-teaching a class (ESRM 200) with Dr. Donald Rodriguez, an ESRM professor and Chair of the ESRM program. Exhibit E-009-010; Exhibit L-002 (¶3.)[.]”

UMF No. 6 states: “Plaintiff testified that he was struggling in Spring 2016 and verbally disclosed to Dr. Rodriguez that he had run into “personal difficulties” and was having difficulty focusing, concentrating and staying organized. Exhibit E-009-010; Exhibit L-002 (¶3.)[.]”

UMF No. 7 states: “Dr. Rodriguez was physically present and participating in the ESRM 200 lecturers, but plaintiff asked Dr. Rodriguez to take on more responsibility, including leading more lectures and coordinating some of the class field trips. Exhibit E-010-012[.]”

UMF No. 8 states: “Plaintiff testified that Dr. Rodriguez was dismissive of his request and was not fulfilling his agreed upon share of the lecture work. Exhibit E-012-014[.]”

UMF No. 17 states: “Plaintiff did not request a leave of absence. He did not request a change in his job responsibilities or work schedule. He did not request any assistive equipment or devices or seek any type of remote accommodation. The only “accommodation” request that plaintiff made after Spring 2016 was what he described as a “restorative” accommodation to “hit the reset” button. Exhibit E-031, E-034[.]”

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UMF No. 18 states: “Plaintiff testified that between Fall 2017 and Spring 2018, he made verbal requests to Human Resources, Faculty Affairs, and then directly to the ESRM program chairs Dr. Sean Anderson and Dr. Donald Rodriguez, to “hit the reset button,” meaning “put that Spring 2016 semester behind us.” Exhibit E-015-16[.]”

This evidence supports Defendant’s assertions that Plaintiff only sought the teaching assistance accommodation in Spring 2016, which is when he was depressed, and in the 2017-2018 academic year, he requested a “restorative” accommodation.

Defendant is also correct that it has submitted evidence that it was made clear in Spring 2016 that Plaintiff’s requested teaching assistance accommodation had been rejected (UMF No. 8), meaning the statute of limitations commenced. Its evidence also shows that Plaintiff admitted that he did not need to request further assistance after the Spring 2016 semester. (UMF Nos. 10-12.) Defendant’s evidence shows that the “restorative” accommodation was requested in 2017-2018 academic year, and was unequivocally rejected by the department chair in January 2018. (UMF Nos. 17-21.) That means that the latest his claims could have accrued is January 2018, which is before 1/1/19. As a result, the one-year statute of limitations applies, and Plaintiff needed to submit his administrative complaint during or before January 2019.

Defendant’s evidence also shows that Plaintiff submitted his administrative complaint on 10/7/20 (UMF No. 42), which is after the statute of limitations had passed.

In sum, Defendant has met its burden to submit evidence to show that Plaintiff failed to timely file an administrative complaint for his claims for failure to provide a reasonable accommodation and failure to engage in the interactive process. Defendant is correct that the shorter, one-year statute of limitations applies. Its evidence shows that Plaintiff failed to submit an administrative complaint within one year of the department chair’s unequivocal rejection of his requests for accommodations, which occurred during the 2017-2018 academic year.

It follows that the burden shifts to Plaintiff to raise a triable issue of material fact.

2. Plaintiff’s Burden in Opposition

Since Defendant met its initial burden, Plaintiff must proffer evidence to show that a triable issue of material fact exists.

Plaintiff either admits that the subject UMFs are undisputed or fails to include a coherent citation to evidence that could support a triable issue of material fact. Specifically, Plaintiff only generally cites deposition transcripts, declarations, and/or other documents, without indicating exhibit numbers, pages, or line numbers. “Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(f)(2).) By failing to include the required information in the citations, Plaintiff has violated this Rule, and rendered many UMFs effectively undisputed.

Turning to Plaintiff’s separate statement, Plaintiff does not dispute UMF Nos. 4, 16, 20, and 21, which show that the alleged failure to provide a reasonable accommodation and failure to engage in the interactive process claims accrued before 1/1/19. Specifically, the evidence shows that Plaintiff’s requests for accommodations were unequivocally denied in 2017 and 2018.

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Plaintiff also does not dispute UMF Nos. 4 and 9-13, which show that his alleged disability that required a reasonable accommodation (depression) occurred during a period in 2016.

Plaintiff does not dispute UMF Nos. 5-8 and 17-19, which show that the only accommodations he sought (teaching assistance and a restorative accommodation) occurred in Spring 2016 and during the 2017-2018 academic year.

Lastly, Plaintiff does not dispute UMF No. 42, which states that he filed his DFEH complaint on 10/7/20.

The remaining issue is whether Plaintiff’s AMFs raise a triable issue of material fact. The only applicable AMFs are AMF Nos. 6-11. AMF Nos. 6-10 all involve interactions that occurred before the department chair unequivocally rejected his request for a reasonable accommodation in January 2018, or are citations to testimony involving that interaction. Such evidence is insufficient to raise a triable issue of material fact.

AMF No. 11 states: “In a meeting with Sean Anderson in June 2019, Plaintiff again raised the issue of his concern about his prior complaints about perceived discrimination and the use of the period during which he had been struggling with depression and had requested accommodations, Anderson acknowledged reviewing the rebuttal to the performance review for the period that Plaintiff ran into trouble. Anderson said that the rebuttal did not matter and that he was required look at the entire record. Anderson further stressed that Plaintiff would not be reappointed due to his poor performance and budgetary restraints and that Plaintiff would teach one class the following semester. (Declaration of Brett Hartman filed in Opposition to Anti-Slapp Motion, Paragraph 16, Page 7:16-8:12)”

This evidence does not raise a triable issue of material fact because it remains undisputed that the underlying disability occurred in 2016, and both requested accommodations (teaching assistance in Spring 2016 and “restorative” accommodation in the 2017-2018 school year) were unequivocally rejected by the department head in January 2018. This rejection triggered the statute of limitations because it was clear that any attempted further accommodation was futile. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) The fact that Plaintiff attempted to complaint about this again, 6 months later, is immaterial because Plaintiff was already on notice that he would need to litigation, not informal discussion, would be the only way for him to vindicate his rights with respect to workplace accommodations and failure to engager in the interactive process. (See ibid.)

In sum, Plaintiff has failed to submit any evidence in opposition that could raise a triable issue of material fact as to Issue 1.

3.

Conclusion

In light of the foregoing, Defendant’s motion for summary adjudication of Issue 1 is GRANTED. Defendant met its initial burden, and Plaintiff failed to show the existence of a triable issue of material fact. All of the papers show that there is no triable issue of material fact, and Defendant is entitled to summary adjudication of the second and third causes of action as a matter of law.

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B. ISSUE 2: Plaintiff’s First, Second and Third Causes of Action Are Legally Insufficient Because Plaintiff Did Not Have a Qualifying Disability Under the FEHA Nor Was Plaintiff Perceived as Disabled. (UMF Nos. 1-13, 34-35, 38.)

The first cause of action is for FEHA discrimination. The second cause of action is for failure to provide a reasonable accommodation in violation of FEHA. The third cause of action is failure to engage in the interactive process.

1. Defendant’s Failure to Address All Theories Alleged in the First Cause of Action for Discrimination

To begin, in Defendant’s memorandum of points and authorities, it acknowledges that the first cause of action for discrimination in the operative FAC includes discrimination based on both disability and national origin. Defendant cites Plaintiff’s deposition testimony as evidence that Plaintiff has “abandoned” the national origin claim. The deposition testimony cited does not contain a confirmation from the Plaintiff himself that he agrees to dismiss any claim based on national origin discrimination, and the Court has not been provided with any writing signed by Plaintiff stipulating to this fact.

Absent such confirmation by the Plaintiff, the operative complaint is still the FAC, and the FAC continues to assert a claim for discrimination based on both disability and national origin. (FAC ¶ 11.) However, Plaintiff does not dispute or even address this in the opposition papers, and counsel states on the record during the deposition that Plaintiff is no longer pursuing any claim based on national origin. The Court accepts this representation.

2. First, Second, and Third Causes of Action

As an initial matter, the Court need not consider Issue 2 with respect to the second and third causes of action because the Court already granted summary adjudication as to Issue 1, which completely disposes of these causes of action.

On the merits, Defendant is correct that an actual or perceived disability is an essential element of all three causes of action, and FEHA defines this broadly.

The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. (Gov. Code, § 12926.1, subd. (b).)

“To avail [himself] of the benefits of the ADA under this theory, plaintiff must demonstrate that [his] impairment ‘substantially limits one or more of [his] major life activities.’” Wright v. Drury Inns, Inc., 1999 WL 1423069, at *4 (D.Kan. Dec.6, 1999) (quoting 42 U.S.C. § 12102(2)(A)).

A “major life activity” is a basic activity that the average person in the general population can perform with little or no difficulty. Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.1999). Major life activities include “functions such as caring for oneself, performing

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manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Id. (quoting 29 C.F.R. § 1630.2(1)). Recently, the Supreme Court held that reproduction is a major life activity, see Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2204–05, 141 L.Ed.2d 540 (1998), and the Tenth Circuit held that sleeping is a major life activity, see Pack, 166 F.3d at 1305. Other activities such as sitting, standing, lifting and reaching may also be considered major life activities. Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1173 (10th Cir.1996) (citing 29 C.F.R. § 1630.2(i)).

Various factors are relevant in determining whether an impairment substantially limits a major life activity, including: “‘(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.’” Aldrich v. Boeing Co., 146 F.3d 1265, 1269–70 (10th Cir.1998) (quoting 29 C.F.R. § 1630.2(j)(2)). “Whether an impairment ‘substantially limits' a major life activity depends on the individual and the impairment. Such determinations are not susceptible to per se rules; they must be made on a case-by-case basis.” Id. at 1270 (citing 29 C.F.R. pt. 1630 app., § 1630.2(j)). (Glover v. NMC Homecare, Inc. (D. Kan. 2000) 106 F.Supp.2d 1151, 1166–1167, aff'd (10th Cir. 2001) 13 Fed.Appx. 896.)

Depression does not constitute a disability under FEHA where “symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline. ([Citation].)” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 346.) Conversely, depression is a disability under FEHA where the symptoms do make the performance of job duties difficult as compared to the plaintiff’s unimpaired state or to a normal or average baseline.

“An employer does not have to accept an employee's subjective belief that he is disabled and may rely on medical information in that respect. ([Citations].)” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 347.)

Defendant’s arguments begin by addressing “actual” disability, followed by “perceived” disability.

With respect to actual disability, Defendant argues that Plaintiff does not allege and has not offered any evidence to show that his temporary disability of depression limited his ability to perform the essential functions of his job, that is, teaching. Instead, from 2014-Fall 2016, he performed his job duties without any medical restrictions or limitations, and he did not provide a doctor’s note. Defendant cites UMF Nos. 1-13 in support of these assertions.

Defendant’s evidence is insufficient to meet its initial burden to show that Plaintiff did not have an actual disability. Although Plaintiff did not provide a doctor’s note (UMF No. 13), that alone does not establish that he did not have an actual or perceived disability. Defendant does not submit evidence to negate this element, such as affirmative evidence showing that Plaintiff’s symptoms did not make performance of his job duties more difficult, or that Plaintiff admitted that he does not have and cannot obtain necessary evidence after extensive discovery. The fact that Plaintiff was still teaching from Fall 2014 to Fall 2016 (UMF Nos. 1-13) does not show that his symptoms did not make this more difficult. To the contrary, Defendants acknowledge that

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Plaintiff disclosed to Dr. Rodriguez he struggled during the Spring 2016 semester due to personal difficulties, and as result of those difficulties he asked Dr. Rodriguez to take on more of the lectures and to coordinate some of the class field trips (UMFs 5-8). Additionally, the evidence submitted by Defendant shows that in March 2017 Plaintiff provided Defendant with a written response to Dr. Rodriguez’s performance evaluation, stating he fell into a depression during the Spring 2016 semester due to a traumatic life event; due to the depression he was not able to engage with students in his normal capacity; and, in the Fall of 2017 he made multiple verbal requests to HR, Faculty Affairs, and to ESRM program chairs Dr.

Anderson and Dr. Rodriguez to “hit the reset button”. (UMFs 14-19.) Accordingly, Defendant has failed to meet its burden to establish there is no triable issue of fact regarding whether Plaintiff had an actual disability.

Turning to perceived disability, Defendant cites UMF Nos. 34-35 and 38 as evidence that he was not perceived as disabled. Defendant asserts that Plaintiff needs evidence of a perceived disability because he has no evidence of an actual disability. This argument is unavailing. As explained above, Defendant has failed to meet its burden to show that Plaintiff did not have an actual disability. The definition of “disability” includes an actual or perceived disability. (See Gov. Code, § 12926.1, subd. (b).) Therefore, even if Defendant’s UMF Nos. 34-35 and 38 show that Plaintiff did not have a perceived disability, its failure to show that Plaintiff did not have an actual disability means that Defendant cannot show that Plaintiff cannot establish this element of his causes of action.

In short, Defendant has failed to meet its initial burden in connection with Issue 2.

3.

Conclusion

Defendant’s motion for summary adjudication of Issue 2 is DENIED. Defendant fails to show that Plaintiff does not have an actual disability in connection with the first, second, and third causes of action. It follows that Plaintiff need not submit any evidence in opposition, and the motion as to this issue must be denied.

C. ISSUE 3: Plaintiff’s First, Fourth and Fifth Causes of Action Are Legally Insufficient Because Plaintiff Did Not Suffer an Adverse Employment Action. (UMF Nos. 1-3, 39-41.)

The first cause of action is for FEHA discrimination. The fourth cause of action is for retaliation. The fifth cause of action is for failure to prevent discrimination and retaliation.

Defendant argues that Plaintiff did not experience an adverse employment action within the statute of limitations because his only adverse employment action in that period was an unsatisfactory performance evaluation. Defendant cites UMF Nos. 1-3 and 39-41.

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]'s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee's job

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performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.

(CACI 2509.)

UMF Nos. 1-3 state that Plaintiff worked as a part-time lecturer from Fall 2014 through Spring 2020, each appointment was for a specified period (one semester to one year) and then re-evaluated, and each appointment was temporary.

UMF No. 39 states: “Plaintiff submitted a grievance to CSUCI relating to his unsatisfactory evaluations, among other issues. Exhibit G-006-009[.]”

UMF No. 40 states: “In an attempt to resolve the grievance, CSUCI offered to reappoint plaintiff for another year and to re-evaluate him after completion of the pending Title IX investigation of sexual misconduct against plaintiff. Exhibit G-006-009[.]”

UMF No. 41 states: “Plaintiff rejected CSUCI’s offer. Exhibit G-006-009[.]”

This evidence is insufficient for Defendant to meet its burden to show that Plaintiff did not suffer an adverse employment action. At best, the evidence raises a triable issue of material fact as to whether the negative evaluation and resulting offer constitute an adverse employment action.

Without citing evidence, Defendant states, “Plaintiff was not terminated; he chose to discontinue working at CSUCI.” This unsupported statement is insufficient for Defendant to meet its initial burden.

Defendant relies on the case of Brooks v. City of San Mateo (2020) 229 F.3d 917, 929-930. Brooks is distinguishable. In Brooks, the plaintiff allegedly received a downgraded performance review following a complaint about a coworker. The court found this was not an adverse employment action “because it was subject to modification by the city. Brooks refused to accept the unsatisfactory review and appealed but “abandoned her job while the appeal was pending.” (Brooks v. City of San Mateo (2020) 229 F.3d 917, 929-930.)

In contrast, here Plaintiff was eligible for a 3-year teaching appointment. Defendant denied Plaintiff the position due to the unsatisfactory review. Unlike Brooks, here Plaintiff was not able to appeal this decision. Rather, he was offered an opportunity to work for another year and then Defendant would re-evaluate him for the position. Plaintiff, although eligible for the 3-year position at that time, was told he had to work another full year before any reconsideration. This raises a triable issue of fact as to whether this conduct is in fact an adverse employment action.

Thus, Defendant has failed to meet its initial burden in connection with Issue 3.

3.

Conclusion

Defendant’s motion for summary adjudication of Issue 3 is DENIED. Defendant fails to show that Plaintiff did not suffer an adverse employment action in connection with the first, fourth, and fifth causes of action. It follows that Plaintiff need not submit any evidence in opposition, and the motion as to this issue must be denied.

202100553820CUDF: Hartman vs California State University Channel Islands

D. ISSUE 4 There is Insufficient Evidence to Establish the Causation Element of Plaintiff’s First, Fourth and Fifth Causes of Action for Discrimination, Retaliation and Failure to Prevent. (UMF Nos. 4-8, 14-15, 17-20, 23-24, 34-35, 38.)

The first cause of action is for FEHA discrimination. The fourth cause of action is for retaliation. The fifth cause of action is for failure to prevent discrimination and retaliation.

Defendant argues that Plaintiff cannot establish a prima facie case because he cannot establish the element of causation, due to the length of time between any alleged disclosure of his disability in 2016, 2017, and/or 2018, and his negative evaluation in 2020.

“An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee's prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee. ([Citation].)” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 966, italics in original.) A retaliation claim follows the same burden-shifting framework as a discrimination claim. (See Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) Therefore, Defendant may either challenge a prima facie element of the retaliation claim, or proffer a legitimate, non-retaliatory reason for the adverse employment action.

Defendant’s argument is a challenge to Plaintiff’s ability to prove a prima facie case by challenging the element of causation.

A causal connection may be shown by “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir.1982). Unless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir.1997). “[W]e have held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation.

By contrast, we have held that a three-month period, standing alone, is insufficient to establish causation.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (citation omitted). Because O'Neal presented additional evidence from which a reasonable jury could find causation, this court need not address whether two months and three weeks, by itself, is sufficient to support a prima facie case of retaliation.

(O’Neal v. Ferguson Constr. Co. (10th Cir. 2001) 237 F.3d 1248, 1253.)

The fact that an employee’s termination occurred shortly after the employee filed a termination complaint is not, by itself, sufficient to show a sufficient causal nexus between protected activity and adverse employment action. (Nelson v. Pima Cmty. Coll. (9th Cir. 1996) 83 F.3d 1075, 1081.)

Defendant submits evidence related to the time that lapsed between the depression, discussions about accommodations, and negative review and offer in 2020. (See UMF Nos. 4-8, 14-15,

202100553820CUDF: Hartman vs California State University Channel Islands

17-20, 23-24, 34-35, and 38.) While this might show that Plaintiff cannot rely on temporal proximity to show causation, it does not negate the element because it does not address other possible evidence of a discriminatory or retaliatory motive, and does not show that Plaintiff does not have and cannot obtain necessary evidence. Here, the evidence does indicate Plaintiff’s performance from 2014-2019, including peer observations and the SRTs, were considered as part of the 2020 evaluation. (UMFs 27-31.)

In sum, Defendant relied on the negative student reviews from 2016/2017, during the time of the alleged disability, when determining, in 2020, whether to appoint Plaintiff for a 3-year term. A triable issue of fact remains as to whether there was a legitimate reason for the poor performance review and/or denial of a 3-year term, and whether there was a causal connection between failing to “hit the reset button” as to the Spring 2016 semester and the poor performance review.

It follows that Defendant has failed to meet its initial burden as to Issue 4.

1.

Conclusion

Defendant’s motion for summary adjudication of Issue 4 is DENIED. Defendant fails to show that Plaintiff cannot establish the element of causation in connection with the first, fourth, and fifth causes of action. It follows that Plaintiff need not submit any evidence in opposition, and the motion as to this issue must be denied.

E. ISSUE 5: CSU Had Legitimate Non-Discriminatory, Non-Retaliatory Reasons for the Alleged Adverse Employment Action. (UMF Nos. 27-31, 36-37.)

Defendant argues that it has legitimate, non-retaliatory reasons for the negative evaluation and for the adverse employment action (i.e. the negative evaluation and unfavorable contract offer in 2020).

Defendant submits evidence to show that the reason for its negative evaluation and unfavorable contract offer in 2020 was that Plaintiff’s SRTs (evaluations by students) were concerning because they varied from class to class, year to year, and were generally inconsistent. (UMF Nos. 27-31 & 36-37.) Some evaluations were “focused on the most recent SRTs (2018-2019); however, this included the entire period from Fall 2014 through Fall 2019 (UMF No. 27), which includes the time when Plaintiff was depressed, sought accommodations, and was denied accommodations.

In other words, the adverse employment action was based on inconsistent performance during the time when Plaintiff had a disability, sought accommodations, and was denied said accommodations, and shortly thereafter. At most, this raises a triable issue of material fact as to whether Defendants had a legitimate, non-retaliatory basis for the adverse employment action, or whether the adverse employment action was based at least in part on a retaliatory motive.

Thus, Defendant has failed to meet its initial burden in support of Issue 5.

3.

Conclusion

Defendant’s motion for summary adjudication of Issue 5 is DENIED. Defendant fails to show that a legitimate, non-retaliatory motive in connection with the first, fourth, and fifth causes of

202100553820CUDF: Hartman vs California State University Channel Islands

action. It follows that Plaintiff need not submit any evidence in opposition, and the motion as to this issue must be denied.

F.

Conclusion

For the reasons set forth above, Defendant’s motion for summary judgment of the entire action is DENIED, and motion for summary adjudication is GRANTED IN PART and DENIED IN PART as follows.

The motion is GRANTED as to Issue 1. This completely disposes of the second and third causes of action for failure to provide a reasonable accommodation, and failure to engage in the interactive process.

The motion is DENIED as to Issues 2, 3, 4, and 5. Defendant failed to meet its initial burden.

Defendant’s request for judicial notice is GRANTED.

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