1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERTA BARNETT, No. 2:17-cv-1517-TLN-CKD (PS) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, 15 Defendant. 16
17 18 Plaintiff Roberta Barnett proceeds pro se with claims under the Rehabilitation Act and 19 California’s Fair Housing and Employment Act (“FEHA”). A motion for summary judgment filed 20 by defendant, California Department of Motor Vehicles (“DMV”), is before the court. (ECF No. 21 76.) This matter is before the undersigned pursuant to Local Rule 302(c)(21). See 28 U.S.C. § 22 636(b)(1). The court previously found this matter suitable for decision without oral argument 23 under Local Rule 230(g). (ECF No. 77.) For the reasons set forth below, the court should grant 24 the motion and enter summary judgment in defendant’s favor on plaintiff’s remaining claims. 25 BACKGROUND 26 Proceeding through counsel at the time, plaintiff filed the operative second amended 27 complaint (“SAC”) on October 6, 2021. (ECF No. 32.) Therein, plaintiff alleges defendant, her 28 employer, refused to provide her with a reasonable accommodation for parking despite knowing 1 she had difficulty walking due to chronic asthma. (Id. at ¶¶ 15-26.) Plaintiff further alleges 2 defendant harassed and retaliated against her because of her request for accommodation. (Id. at ¶¶ 3 32-52.) Specifically, defendant put up “roadblocks” to plaintiff’s advancement and denied 4 plaintiff training which hindered her access to be promoted or transferred. (Id. at ¶ 42.) Under the 5 complaint’s allegations, plaintiff eventually had to take a leave on a request for workers 6 compensation due to the stress from the retaliation and harassment. (Id. at ¶ 47.) 7 The SAC brought claims against defendant as follows: (1) violation of Title I of the 8 Americans with Disabilities Act (“ADA”); (2) disability discrimination under the FEHA; (3) 9 failure to reasonably accommodate under the FEHA; (4) failure to engage in the interactive 10 process under the FEHA, (5) disability discrimination under the Rehabilitation Act (“RA”); and 11 (6) retaliation under the ADA\RA. (ECF No. 32 at ¶¶ 58-106.) The court dismissed the disability 12 discrimination claim for damages under the ADA on July 19, 2022, leaving claims two through 13 six of the operative SAC. (ECF No. 41 at 6.) 14 On March 24, 2023, the court granted plaintiff’s counsel’s motion to withdraw as 15 attorney, leaving plaintiff pro se. (ECF No. 53.) Proceeding pro se, plaintiff twice sought leave to 16 file a further amended complaint. (ECF Nos. 55, 66.) The court denied both motions. (ECF No. 17 65, 75.) 18 On April 19, 2024, defendant filed the motion for summary judgment presently before the 19 court. (ECF No. 76.) Plaintiff opposed the motion. (ECF No. 78.) Defendant filed a reply. (ECF 20 Nos. 78, 80.) 21 LEGAL STANDARDS FOR SUMMARY JUDGMENT 22 Summary judgment is appropriate when the moving party shows there is “no genuine 23 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 24 Civ. P. 56(a). In order to obtain summary judgment, “[t]he moving party initially bears the burden 25 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 26 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 27 moving party may accomplish this by “citing to particular parts of materials in the record, 28 including depositions, documents, electronically stored information, affidavits or declarations, 1 stipulations (including those made for purposes of the motion only), admission, interrogatory 2 answers, or other materials” or by showing that such materials “do not establish the absence or 3 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 4 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). 5 “Where the non-moving party bears the burden of proof at trial, the moving party need 6 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 7 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 8 Summary judgment should be entered “after adequate time for discovery and upon motion, 9 against a party who fails to make a showing sufficient to establish the existence of an element 10 essential to that party’s case, and on which that party will bear the burden of proof at trial.” 11 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 12 nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. 13 If the moving party meets its initial responsibility, the burden then shifts to the opposing 14 party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus. 15 Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence 16 of this factual dispute, the opposing party may not rely upon the allegations or denials of its 17 pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 18 admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 19 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 20 contention is material, i.e., a fact “that might affect the outcome of the suit under the governing 21 law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific 22 Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., 23 “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” 24 Anderson, 447 U.S. at 248. 25 In the endeavor to establish the existence of a factual dispute, the opposing party need not 26 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed factual 27 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 28 trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 1 253, 288-89 (1968)). Thus, the “purpose of summary judgment is to pierce the pleadings and to 2 assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at 3 587 (citation and internal quotation marks omitted). 4 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 5 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 6 v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 7 the opposing party’s obligation to produce a factual predicate from which the inference may be 8 drawn. Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 9 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 10 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 11 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 12 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 13 U.S. at 289). 14 UNDISPUTED FACTS1 15 Plaintiff was hired by the DMV and began work on September 15, 2014. On that date, 16 defendants were put on notice that plaintiff had a disability, specifically asthma, and needed a 17 reasonable accommodation for parking. (ECF No. 80-1 at 2.) 18 DMV headquarters is surrounded by multiple parking lots exclusively for DMV employee 19 use. (ECF No. 76-3 at 60, ¶ 2.) Parking is assigned by lot and costs $20 per month paid by 20 deduction from the employee’s monthly salary. (Id. at 61, ¶ 3.) To park in a DMV parking lot, an 21 1 Plaintiff’s opposition to defendant’s motion for summary judgment indicates she disputes most 22 of defendant’s facts. In finding some of those facts or portions of those facts to be undisputed, the 23 court has reviewed and considered plaintiff’s evidence to the extent it is relevant and appears to be competent. This includes plaintiff’s sworn statements set forth under penalty of perjury and 24 based on her personal knowledge. However, neither a mere claim that a matter is “disputed” nor citation to factual allegations in the complaint will suffice to dispute a proposed undisputed fact 25 that is supported by competent evidence. See Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 758, 762 (9th Cir. 1987) (recitations of unsworn factual allegations do not adequately oppose 26 competent evidence presented in a motion for summary judgment); Burch v. Regents of Univ. of 27 California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006) (“statements in declarations based on speculation or improper legal conclusions, or argumentative statements, are not facts and likewise 28 will not be cidered on a motion for summary judgment”). 1 employee must complete, sign, and turn in form ADM 2178. (Id.) The employee must also 2 authorize the State Controller’s Office to deduct the $20 parking fee from their monthly salary. 3 (Id.) 4 An employee granted a parking permit is assigned a lot and can park in any open space in 5 the assigned lot but cannot park in other lots. (ECF No. 76-3 at 60-61, ¶ 2.) Several lots have 6 spaces marked reserved for disabled, executive, or state vehicles. (Id. at 61, ¶ 2.) Reserved spaces 7 are not available for open parking. (Id.) 8 Form ADM 2178 contains an area for a DMV employee to indicate that they require 9 disabled parking accommodations. (ECF No. 76-3 at 61, ¶ 3.) DMV employees may obtain 10 disabled parking by providing a copy of their Disabled Placard and submitting a completed ADM 11 2178. (Id. at 61, ¶ 5.) If an employee submits a completed form ADM 2178 indicating they 12 require disabled parking accommodations, provides a copy of their Disabled Placard ID, and 13 completes the form authorizing a parking fee deduction from their salary by the State Controller’s 14 Office, that employee will be issued a disabled parking permit and authorized to park in a 15 reserved disabled space. (Id.) In 2014-2015, there was a wait list for DMV parking spaces at 16 Headquarters, but disabled employees were able to bypass the wait list if they had a disabled 17 parking placard. (Id., ¶ 3.) 18 An employee can, alternately, request a reasonable accommodation for parking by 19 completing form Exec 96 and giving it to the DMV Headquarters office. (ECF No. 76-3 at 67, ¶ 20 4.) Employees requesting disabled parking who provide a copy of their Disabled Placard and 21 submit a completed ADM 2178 are not required to request reasonable accommodation by 22 submitting a form Exec 96. (Id. at 67, ¶ 5.) 23 On her first day of work, plaintiff was given a form ADM 2178 parking permit application 24 which contained a section for plaintiff to indicate “I require disabled parking accommodations.” 25 (ECF No. 76-3 at 32-33, 49.) Plaintiff checked the box on the form, indicating “I require disabled 26 parking accommodations.” (Id.) Plaintiff signed and dated the form September 15, 2014. (Id. at 27 49.) Plaintiff did not, however, authorize the DMV to deduct the $20 monthly parking fee. (Id. at 28 32-33, 49.) On the form she filled out, plaintiff left blank the closing certifications allowing for 1 processing of a payroll deduction. (Id.) Plaintiff asked if the fee could be waived but was not able 2 to obtain approval for waiver of the fee and was not able to obtain disabled parking without 3 authorizing deduction of the monthly fee. (Id. at 32-33, 49, 61.) 4 Defendant’s databases do not contain a completed form ADM 2178 for plaintiff. (ECF 5 No. 76-3 at 61-62, ¶ 6.) The DMV also does not have any record of plaintiff completing and 6 submitting paperwork for a reasonable accommodation. (ECF No. 76-3 at 67, ¶ 5.) 7 Plaintiff has never received a “Notice of Adverse Action” while employed at the DMV. 8 (ECF No. 76-3 at 67, ¶ 3.) 9 Defendant provided plaintiff with leaves of absence for the following time periods: March 10 2, 2017, through April 1, 2017, and May 2, 2017, through May 15, 2017. (ECF No. 76-3 at 67.) 11 Plaintiff’s last leave of absence began on June 2, 2017, and was ongoing during briefing of this 12 motion in 2024. (Id.) 13 DISCUSSION 14 A. Objections to Evidence 15 The parties lodge several objections to evidence, with defendants objecting to lack of 16 foundation, authentication, and hearsay for most of the plaintiff’s evidence. (ECF No. 80-2.) In 17 one line of authority, the Ninth Circuit has held that a court on summary judgment need not focus 18 on the admissibility of the evidence’s form, and instead may focus on the admissibility of its 19 contents. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Portnoy v. City of 20 Davis, 663 F. Supp. 2d 949, 953 (E.D. Cal. 2009) (noting “the Ninth Circuit’s conflicting rulings 21 on analysis of pro se oppositions to summary judgment motions” and reviewing a pro se 22 plaintiff’s evidence “without regard to the present admissibility of those facts”). Here, accepting 23 all of plaintiff’s evidence over defendant’s objections, the evidence and plaintiff’s theories are not 24 sufficient to defeat summary judgment in favor of defendant. Accordingly, the court need not rule 25 on defendant’s objections to evidence and will focus on the contents of plaintiff’s evidence rather 26 than the form. 27 Plaintiff also lodges objections to defendant’s evidence. She objects generally to most of 28 defendant’s evidence as “not based on fact,” out of context, “in contradiction to the evidence,” 1 and “not admissible evidence of fact they are contemporaneous and were not the procedures at the 2 time of events.” (ECF No. 78 at 4.) In particular, plaintiff objects to the declarations of Jennifer 3 Garces and Angelica Guzman as “contemporary” and not “relate[d] to the facts of the time….” 4 (E.g., id. at 11, 35, and throughout.) Plaintiff’s objections are overruled. 5 As to the declaration of Jennifer Garces, the court understands plaintiff to be objecting, in 6 part, because paragraph five of the declaration uses the present tense to discuss DMV’s 7 procedures for employees to request disabled parking. (See ECF No. 76-3 at 61, ¶ 5.) However, 8 paragraph three also states “[a] DMV parking permit has always been required for a DMV 9 employee to park in a DMV lot, and for a disabled employee to park in a disabled parking space 10 in DMV lots.” (Id., ¶ 3.) Thus, the matters stated are based on Garces’ personal knowledge as a 11 Staff Services Manager 1 over Employee Services with DMV and are relevant to the time-period 12 at issue. 13 As to the declaration of Angelica Guzman, the matters stated are based on Guzman’s 14 personal knowledge as a Staff Services Analyst in the Medical Management Unit with the DMV 15 who has reviewed plaintiff’s official personnel file. (ECF No. 76-3 at 66-68.) Although Guzman 16 was not personally involved in the events at issue, the declaration is properly based on Guzman’s 17 review of official DMV records. Guzman need not have been involved in the events underlying 18 plaintiff’s case in order to have personal knowledge of relevant facts for this motion. 19 Plaintiff’s other general objections for “not based on fact,” out of context, and “in 20 contradiction to the evidence” are overruled. Argumentative statements unsupported by plaintiff’s 21 own competent evidence do not suffice to dispute defendant’s competent evidence. See Burch, 22 433 F. Supp. 2d at 1119. 23 B. Exhaustion of Administrative Remedy 24 Defendant argues plaintiff failed to exhaust her administrative remedy for her FEHA 25 claim for failure to accommodate a disability, Cal. Gov’t Code § 12940(m)(1), for her FEHA 26 claim for failure to engage in the interactive process, Cal. Gov’t Code § 12940(n), and for any 27 reasonable accommodation and retaliation claims under the RA. (ECF No. 76 at 11-12, 18, 20.) 28 //// 1 The timely filing of an administrative complaint and exhaustion of that remedy with 2 DFEH is a prerequisite to maintenance of a civil action for damages under FEHA. See Cal Govt. 3 Code § 12965(b). Similarly, plaintiffs alleging employment discrimination claims under the RA 4 must exhaust their administrative remedies before filing suit. 42 U.S.C. § 2000e-5(a), (e); see 5 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). Accordingly, this action is limited 6 to matters “like or reasonably related to” those raised in the DFEH complaint. Okoli v. Lockheed 7 Technical Operations Co., 36 Cal.App.4th 1607, 1616 (1995); Green v. Los Angeles Cnty. 8 Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th Cir. 1989). Courts liberally construe 9 administrative charges. Green, 883 F.2d at 1476. In determining whether an additional allegation 10 is like or reasonably related to another allegation in this context, the court inquires whether the 11 original investigation would have encompassed the additional charges. Id. 12 Plaintiff’s administrative complaint dated July 10, 2016, alleges she was harassed on 13 account of her disability and denied a work environment free of discrimination and/or retaliation. 14 (ECF No. 32-1 at 5.) And further: “On a weekly basis, co-workers make comments such as “She 15 is just cray cray or Shes crazy.” (Id.) Plaintiff’s administrative complaint does not complain of 16 any failure to accommodate or any failure to engage in the interactive process. (See id. at 5-6). 17 Defendant argues plaintiff’s RA claims and FEHA claims for failure to accommodate and 18 failure to engage in the interactive process are unexhausted because administrative complaint 19 specifies only her allegations of harassment. (ECF No. 76 at 11-12, 18, 20.) However, the 20 exhaustion requirement can be met outside the administrative complaint itself through facts 21 provided in other submissions or facts that “might [have been] uncovered by a reasonable… 22 investigation.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (“Subject 23 matter jurisdiction extends over all allegations of discrimination that either “fell within the scope 24 of the EEOC’s actual investigation or an EEOC investigation which can reasonably be expected 25 to grow out of the charge of discrimination.”), abrogated in part on other grounds by Fort Bend 26 County, Texas v. Davis, 587 U.S. 541 (2019); Nazir v. United Airlines, Inc., 178 Cal.App.4th 27 243, 268 (2009) (the administrative exhaustion requirement is satisfied if the allegations of the 28 civil action are within the scope of the DFEH charge, any DFEH investigation actually 1 completed, or any investigation that might reasonably have been expected to grow out of the 2 charge). 3 Plaintiff argues she exhausted her administrative remedy when she reported her 4 complaints to the DFEH before and during the investigation, and particularly when she completed 5 the “Pre-Employment inquiry Form” (Item 2), a submission DFEH acknowledged as received in a 6 letter dated February 25, 2016. (See ECF No. 78 at 12-13, 82.) On this form, plaintiff stated she 7 was denied the ability to park in front of the building and denied reasonable accommodations. (Id. 8 at 82.) Plaintiff’s Item 3 purports to be further communication between plaintiff and DFEH which 9 is an email from plaintiff dated June 6, 2016. (Id. at 85.) In this communication, plaintiff 10 indicated she “asked for the reasonable accommodation” when she was first hired in or around 11 October of 2014. (Id.) 12 Defendant’s argument for summary judgment focuses solely on the contents of plaintiff’s 13 administrative complaint. At a minimum, though, plaintiff’s evidence raises the question whether 14 DFEH might reasonably have been expected to investigate plaintiff’s claims for failure to 15 accommodate a disability, failure to engage in the interactive process, and retaliation. The court 16 views plaintiff’s administrative complaint alleging harassment on account of her disability and 17 disability discrimination “with the utmost liberality.” Yamaguchi v. U.S. Dep’t. of the Air Force, 18 109 F.3d 1475, 1480 (9th Cir. 1997). Viewing the evidence in the light most favorable to plaintiff, 19 plaintiff’s claims for failure to accommodate, failure to engage in the interactive process, and 20 retaliation are within the scope of the investigation that might reasonably have been expected to 21 grow out of the charge dated July 10, 2016, based on her other communications with DFEH. See 22 B.K.B., 276 F.3d at 1100; Nazir, 178 Cal.App.4th at 266. 23 C. Second Cause of Action: Disability Discrimination under FEHA 24 Under FEHA, it is unlawful “[f]or an employer, because of ... physical disability ... of any 25 person ... to refuse to hire or employ the person or to refuse to select the person for a training 26 program leading to employment, or to bar or to discharge the person from employment or from a 27 training program leading to employment, or to discriminate against the person in compensation or 28 in terms, conditions, or privileges of employment.” Cal. Gov’t. Code § 12940(a). 1 Because of the similarity between state and federal employment discrimination laws, 2 California courts look to pertinent federal precedent when applying state employment 3 discrimination laws. Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 354 (2000). To establish a prima 4 facie case of disability discrimination under FEHA, a plaintiff must show (1) she suffers from a 5 disability; (2) she is otherwise qualified to do her job; and (3) she suffered an adverse 6 employment action because of her disability. Faust v. Cal. Portland Cement Co., 150 Cal. App. 7 4th 864, 886 (2007). 8 At issue in the present motion is whether plaintiff can establish she suffered an adverse 9 employment action because of her disability. An adverse employment action in this context “must 10 materially affect the terms, conditions, or privileges of employment to be actionable,” taking into 11 account “the unique circumstances of the affected employee as well as the workplace context of 12 the claim.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1052 (2005). 13 Defendant argues the SAC failed to allege any facts that plaintiff suffered an adverse 14 employment action because of her disability, and that she can produce no evidence of any adverse 15 action suffered because of her disability. (ECF No. 76 at 10.) Defendant points out it is 16 undisputed that plaintiff has never received a “Notice of Adverse Action” while employed at the 17 DMV. (ECF No. 76-3 at 67, ¶ 3.) 18 Plaintiff responds that she suffered the following adverse actions: 19 [D]enied reasonable accommodation due to discrimination, denied Good Faith Interaction, denied training, training with coworkers, 20 denied promotional opportunities, denied ability to file receive FMLA, assaulted in response to reporting EEO complaint, forced to 21 change units in response to assault, harassment and for filing EEO complaint, loss of alternate pay range, falsely written up 3X on 22 Memorandums of Understandings (used as Negative Adverse Actions) in in retaliation for harassment, forced to leave work for 23 asthma allergy attack caused by harassment) given plates after immediately informed “asthma allergies” to “test” plaintiff. 24 25 (ECF No. 78 at 32; see also id. at 7 & 11.) 26 Neither the alleged failure to accommodate nor the alleged failure to engage in the 27 interactive process are adverse actions in this context because those are distinct FEHA causes of 28 action. See Doe v. Dep’t of Corr. & Rehab., 43 Cal. App. 5th 721, 735-36 (2019) (“No court has 1 ever held that a failure to reasonably accommodate an employee’s disability—which is a separate 2 cause of action under FEHA (§ 12940, subd. (m))—can qualify as the adverse action underlying a 3 discrimination or retaliation claim.”). In the case of an institutional employer such as here, DMV 4 must have itself taken some official action with respect to plaintiff “such as hiring, firing, failing 5 to promote, adverse job assignment, significant change in compensation or benefits, or official 6 disciplinary action.” Id. at 734. 7 Allegations of denial of training, denial of promotional opportunities, denial of FMLA, 8 being forced to change units, loss of alternate pay range, and being falsely written up could 9 potentially constitute adverse actions. However, plaintiff does not put forth competent evidence 10 adequate to support these assertions. “To survive summary judgment, a plaintiff must set forth 11 non-speculative evidence of specific facts, not sweeping conclusory allegations.” Cafasso, U.S. 12 ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011). Here, plaintiff’s 13 evidence lacks the specific factual details necessary to support her arguments. In other words, 14 plaintiff has put forth only sweeping, conclusory allegations of the alleged adverse actions. 15 The court has considered plaintiff’s declaration and statements made under penalty of 16 perjury in opposition to the pending motion. (ECF No. 78 at 71-74.) Plaintiff’s declaration either 17 does not address -- or does not address with specific facts -- the alleged denial of promotional 18 opportunities, denial of leave, being forced to change units, loss of alternate pay range, or being 19 falsely written up. (See id.) Her statements regarding the alleged denial of training, which is the 20 adverse action pleaded in the complaint, lack specific facts, instead alleging in conclusory fashion 21 “training stopped, trained around and in proximity to timed need….” (Id. at 72.) At her 22 deposition, plaintiff testified she eventually received the training at issue but “did not get some of 23 it in time.” (ECF No. 76-3 at 13.) Plaintiff now argues her deposition testimony referred to “the 24 basic minimum training” and she was “denied more advanced training given her work kept 25 stagnant to prevent promotional opportunities.” (ECF No. 78 at 46.) Plaintiff argues Item 4 (see 26 id. at 87-96) and Item 52 (see id. at 286-307) support her allegations that she was denied training. 27 However, these and other items cited by plaintiff as establishing certain facts do not establish 28 those facts. In this instance, Item 4 and Item 52 appear to be documents that may relate to 1 plaintiff’s argument that she was denied training or subjected to delay. However, the documents 2 do not establish any denial or delay of training, and plaintiff does not elsewhere provide the 3 necessary factual details through competent evidence. 4 Conclusory allegations of adverse employment action made in opposition to the motion 5 for summary judgment do not suffice. Viewing the evidence in the light most favorable to 6 plaintiff, the court finds insufficient evidence of specific facts to raise a genuine dispute whether 7 plaintiff suffered an adverse employment action because of her disability. Accordingly, 8 defendant’s motion for summary judgment should be granted as to the second cause of action for 9 disability discrimination under FEHA. 10 C. Third Cause of Action: Denial of Reasonable Accommodation under FEHA 11 As relevant here, under FEHA, it is unlawful “[f]or an employer or other entity covered by 12 this part to fail to make reasonable accommodation for the known physical or mental disability of 13 an applicant or employee….” Cal. Gov’t Code § 12940(m)(1). To prevail on a FEHA failure to 14 accommodate claim, plaintiff must show that she could perform the essential functions of her 15 position with or without reasonable accommodation and that the DMV failed to reasonably 16 accommodate her disability. See Green v. State of California, 42 Cal. 4th 254, 262 (2007); 17 Cuiellette v. City of Los Angeles, 194 Cal. App. 4th 757, 766 (2011). At issue in the present 18 motion is whether plaintiff raises a triable issue that the DMV failed to reasonably accommodate 19 her disability. 20 “A reasonable accommodation is a modification or adjustment to the work environment 21 that enables the employee to perform the essential functions of the job he or she holds or desires.” 22 Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 373 (2015). The reasonableness of an 23 accommodation is generally a question of fact, Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 24 215, 228 n.11 (1999), but “FEHA does not obligate an employer to choose the best 25 accommodation or the specific accommodation a disabled employee or applicant seeks,” Raine v. 26 City of Burbank, 135 Cal. App. 4th 1215, 1222 (2006). Instead, it requires only that the 27 accommodation chosen be “reasonable.” Id. 28 //// 1 Defendant argues the only accommodation plaintiff sought was to be able to park close to 2 the building due to her asthma without paying the $20 monthly parking fee paid by all employees 3 who parked in DMV parking lots. (ECF No. 76 at 16.) Under plaintiff’s deposition testimony and 4 her other evidence and argument, similarly, defendant required her to authorize deduction of the 5 $20 parking fee before defendant would accommodate her with disabled parking. (ECF No. 76-3 6 at 32-34 & 82; ECF No. 78 at 20, 106.) 7 Defendant cites cases holding that an employer is under no obligation to remove non- 8 workplace barriers unrelated to essential functions of the employee’s job, such as those related to 9 the employee’s commute. (See ECF No. 76 at 14-15.) However, DMV’s provision of parking in 10 its own lots for employee use is much closer to a workplace barrier than, for example, factors 11 related to an employee’s commute on public transportation. In any event, this court need not 12 decide whether plaintiff’s request for parking related to workplace barrier in this case because 13 there is a distinct basis for summary judgment on this claim. 14 Defendant’s databases do not contain a completed parking application for plaintiff. (ECF 15 No. 76-3 at 61-62, ¶ 6.) The DMV also does not have any record of plaintiff requesting disabled 16 parking by completing and submitting paperwork for a reasonable accommodation. (Id. at 67, ¶ 17 5.) Defendant therefore argues plaintiff “refused to complete the reasonable accommodation 18 process and was not denied reasonable accommodation.” (Id. at 18.) Defendant argues plaintiff’s 19 requested accommodation of not paying the $20 parking fee did not constitute a reasonable 20 accommodation for a disability. (Id. at 16.) 21 It is undisputed that plaintiff partially filled out the Form ADM 2178 parking application 22 on her first day of work on September 15, 2014, with a request for disabled parking. According to 23 plaintiff’s deposition testimony, the DMV employee “didn’t know how to process it” without 24 either plaintiff authorizing the payroll deduction or plaintiff getting management approval. (ECF 25 No. 76-3 at 32-34.) Plaintiff disputes that she refused to pay the $20 fee, arguing she “only asked 26 about the fee” and “was fine with answer of fee must be paid….” (ECF No. 78 at 19; see also id. 27 at 35, 44.) Plaintiff explains the reasonable accommodation she wanted was to not pay for parking 28 without knowing where she would park and to not pay for parking unless she knew it would meet 1 her needs. (Id. at 40.) Plaintiff argues she “had no idea where she would be sent to park.” (Id. at 2 20; see also id. at 36.) Plaintiff argues she “was ready to pay the fee” (ECF No. 78 at 44) but does 3 not assert she ever did so or attempted to do so by returning the form with the parking fee 4 authorization. 5 Plaintiff has explained why knowing exactly where she would be issued a permit to park 6 before authorizing the deduction would have been a preferable accommodation to what she was 7 offered. However, defendant was not obligated to choose the best accommodation or the specific 8 accommodation plaintiff preferred. Raine, 135 Cal. App. 4th at 1222. The question is whether 9 DMV offered plaintiff a reasonable accommodation through its standard practice for issuing 10 disabled parking permits when it required her to submit a parking application and authorize a 11 monthly deduction of $20 in order to be issued a disabled parking permit for a specific DMV lot. 12 Under the circumstances, defendant offered a reasonable accommodation.2 No trier of fact could 13 reasonably find that requiring plaintiff to submit the application and pay the same fee paid by all 14 employees parking in DMV lots constituted a failure to provide a reasonable accommodation. 15 D. Fourth Cause of Action: Interactive Process under the FEHA 16 Under FEHA, it is unlawful “[f]or an employer or other entity covered by this part to fail 17 to engage in a timely, good faith, interactive process with the employee [ ] to determine effective 18 reasonable accommodations, if any, in response to a request for reasonable accommodation by an 19 employee [ ] with a known physical or mental disability or known medical condition.” Cal. Gov’t. 20 Code § 12940(n). “Two principles underline a cause of action for failure to provide a reasonable 21 accommodation. First, the employee must request an accommodation. [Citation.] Second, the 22 parties must engage in an interactive process regarding the requested accommodation and, if the 23 process fails, responsibility for the failure rests with the party who failed to participate in good 24 faith.” Doe, 43 Cal. App. 5th at 738 (quoting Avila v. Continental Airlines, Inc. 165 Cal.App.4th 25 1237, 1252 (2008)). To prevail on a claim for failure to engage in the interactive process under 26 2 Because defendant offered a reasonable accommodation in the form of disabled parking upon 27 submission of an application and authorization of the fee, the court need not address defendant’s alternate argument that defendant provided plaintiff a reasonable accommodation in the form of 28 leave. 1 the FEHA, “an employee must identify a reasonable accommodation that would have been 2 available at the time the interactive process should have occurred.” Scotch v. Art Inst. of 3 California, 173 Cal. App. 4th 986, 1018 (2009). 4 Here, although plaintiff did not submit a formal request for reasonable accommodation, it 5 is nevertheless undisputed that she requested accommodation in the form of parking close to the 6 building. Thus, the issue is whether there is a triable issue that responsibility for failure of the 7 process rests with defendant. 8 As set forth, DMV offered plaintiff a reasonable accommodation through its standard 9 practice for issuing disabled parking permits. Defendant also puts forth evidence that plaintiff was 10 provided with multiple reasonable accommodation forms to fill out which she did not return (ECF 11 No. 76-3 at 35-36, 40-41), but plaintiff demonstrates she was only provided these forms after she 12 was already out on leave. (ECF No. 78 at 40.) Both parties put forth an automated transcript of a 13 September 9, 2015, voicemail (nearly a year after plaintiff initially filled out the parking 14 application form) left for plaintiff by “Maria” about reasonable accommodation, provision of 15 parking, and $20 fee. (ECF No. 76-3 at 80; ECF No. 78 at 106.) In addition, a message from 16 plaintiff to “Mrs. Musquez” indicates that around October of 2014, plaintiff’s manager informed 17 her “they wouldn’t cover for reasonable accommodations… and I would have to buy the pass.” 18 (ECF No. 76-3 at 82.) Plaintiff also acknowledges in her argument she was informed “fee was 19 required[.]” (ECF No. 7 at 20.) 20 Plaintiff does not identify a reasonable accommodation not offered which would have 21 been available, and therefore does not have a viable FEHA claim for failure to engage in the 22 interactive process. Scotch, 173 Cal. App. 4th at 1018; Nadaf-Rahrov v. Neiman Marcus Grp., 23 Inc., 166 Cal. App. 4th 952, 984 (2008) (“the burden of proving the availability of a reasonable 24 accommodation rests on the employee”). Moreover, plaintiff does not dispute that she could have 25 submitted a fully completed parking application with an authorization for the monthly deduction, 26 and thereby been issued a disabled parking permit. Her speculative argument that there is no way 27 to be certain where she would have been authorized to park, and no way to be certain whether it 28 would have met her needs, does not suffice to defeat summary judgment on the FEHA claim for 1 failure to engage in the interactive process, particularly in the absence of evidence that she 2 explained to defendant that this was her reason for withholding authorization of the parking fee. 3 There is no triable issue of fact on plaintiff’s fourth cause of action alleging failure to engage in 4 the interactive process. 5 E. Fifth Cause of Action: Discrimination under the RA 6 The RA prohibits employers receiving federal financial assistance from discriminating 7 against their employees based on disability. 29 U.S.C. § 794. In order to prove an RA violation, 8 plaintiff must demonstrate she “(1) is a [disabled] person; (2) that [s]he is otherwise qualified; and 9 that the [defendant’s] actions either (3) excluded [her] participation in or denied [her] the benefits 10 of a service, program, or activity; or (4) otherwise subjected [her] to discrimination on the basis 11 of [her disability].” Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996); see also Zukle v. 12 Regents of Univ. of California, 166 F.3d 1041, 1045 (9th Cir. 1999) (noting “[t]here is no 13 significant difference in analysis of the rights and obligations created by the ADA and the [RA]”). 14 “[A] public entity can be liable for damages under § 504 of the RA if it intentionally or 15 with deliberate indifference fails to provide meaningful access or reasonable accommodation to 16 disabled persons.” Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008). Deliberate 17 indifference requires: (1) “knowledge that a harm to a federally protected right is substantially 18 likely, and” (2) “a failure to act upon that the likelihood.” Duvall v. Cnty. of Kitsap, 260 F.3d 19 1124, 1139 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 2001). 20 The parties do not dispute for purposes of this motion that plaintiff was disabled and 21 otherwise qualified for her position. Thus, at issue is whether plaintiff raises a triable issue that 22 she was denied any benefits or otherwise discriminated against based on her disability. 23 Defendant argues the SAC does not allege what benefits plaintiff was denied, how she 24 was discriminated against because of her disability, or any adverse action. (ECF No. 76 at 21-22.) 25 Plaintiff argues she was denied equal access to training and promotion opportunities, denied 26 parking accommodations necessary to access the workplace, and that her training was stopped, 27 and she was “trained around” after requesting reasonable accommodation and after she became 28 sick from Bronchitis. (ECF No. 78 at 24-27.) 1 Plaintiff’s RA disability discrimination claim suffers from the same defects discussed 2 above for her FEHA discrimination claim. Plaintiff’s evidence of discrimination in the form of 3 denial of training and promotion opportunities takes the form of sweeping, conclusory allegations 4 which are not sufficient to survive summary judgment. See Cafasso, 637 F.3d at 1061 (“To 5 survive summary judgment, a plaintiff must set forth non-speculative evidence of specific facts, 6 not sweeping conclusory allegations.”). Plaintiff’s declaration and statements made under penalty 7 of perjury in opposition to the pending motion do not contain factual details that raise a triable 8 issue on the question whether she was discriminated against based on her disability. (See ECF 9 No. 78 at 71-74.) 10 In addition, as set forth above, no trier of fact could reasonably find that defendant failed 11 to provide a reasonable accommodation by requiring plaintiff to submit a fully completed parking 12 application -- and pay the parking fee paid by all employees parking in DMV lots -- in order to 13 obtain a reasonable accommodation of disabled parking. Plaintiff argues she “asked for a 14 reasonable accommodation [for parking] regardless of the fee.” (ECF No. 78 at 25.) However, 15 “[r]easonable accommodation [under the RA] does not require an organization to make 16 fundamental or substantial alterations to its programs.” Mark H. v. Hamamoto, 620 F.3d 1090, 17 1098 (9th Cir. 2010). Reasonableness depends on the individual circumstances of each case, and 18 requires a fact-specific, individualized analysis of the disabled individual’s circumstances and the 19 accommodations that might allow the employee to enjoy meaningful access to the program. Id. 20 An accommodation is reasonable if it is “reasonable on its face, i.e., ordinarily or in the run of 21 cases.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002). 22 Plaintiff was not denied meaningful access to DMV’s provision of parking. Plaintiff’s 23 non-receipt of a disabled parking permit resulted directly from her decision not to submit the fully 24 completed parking application with authorization for payment of the parking fee paid by all 25 employees parking in DMV lots. Accordingly, there is no triable issue of fact on plaintiff’s fifth 26 cause of action under the RA. 27 //// 28 //// 1 F. Sixth Cause of Action: Retaliation 2 A prima facie case of retaliation under the Rehabilitation Act “requires a plaintiff to show: 3 ‘(1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link 4 between the two.’” Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004) 5 (quoting Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003). An adverse action is 6 something “non-trivial” that would deter a reasonable person from engaging in a protected 7 activity. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). As to the causal 8 link, “[t]he plaintiff must present ‘evidence adequate to create an inference that an employment 9 decision was based on an illegal discriminatory criterion.’” Coons, 383 F.3d at 887 (quoting 10 O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996).3 11 Plaintiff argues she requested a reasonable accommodation which was a protected activity 12 and “[t]here was a causal link between the times Plaintiff asked for a reasonable accommodation 13 and [her] training stopped and trained around. There was a causal link between time plaintiff 14 became sick from Bronchitis and training denied.” (ECF No. 78 at 28.) As set forth above, 15 plaintiff’s allegations about her training being stopped or delayed are insufficient to raise a triable 16 issue of fact regarding an adverse action suffered because they are vague, conclusory, and lacking 17 in explanatory detail. Similarly, plaintiff’s bare assertion of a causal link does not suffice to create 18 an inference that any denial or delay of training was discriminatory in nature. For example, 19 plaintiff does not provide competent evidence of a coherent timeline of these alleged events. 20 There is no triable issue of fact on plaintiff’s sixth cause of action alleging retaliation. 21 CONCLUSION AND RECOMMENDATION 22 In accordance with the above, IT IS RECOMMENDED as follows: 23 1. Defendant’s motion for summary judgment (ECF No. 76) be granted. 24 2. Judgment be entered in favor of defendant, California Department of Motor 25 Vehicles, on plaintiff’s remaining claims. 26
27 3 The analytical framework for retaliation is the same under the ADA and the RA. Barnett v. U.S. Airlines, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000) (adopting Title VII analysis for the ADA 28 retaliation); Coons, 383 F.3d at 887 (applying ADA retaliation analysis for the RA retaliation). 1 3. The Clerk of the Court be directed to close this case. 2 These findings and recommendations are submitted to the United States District Judge 3 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) 4 || days after being served with these findings and recommendations, any party may file written 5 || objections with the court and serve a copy on all parties. Such a document should be captioned 6 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 7 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 8 || objections. The parties are advised that failure to file objections within the specified time may 9 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 10 | 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 11 | Dated: February 27, 2025 / aa / x ly a 2 CAROLYN K.DELANEY 13 UNITED STATES MAGISTRATE JUDGE 14 15 | 8, Barnettl7ev1517.msj 16 17 18 19 20 21 22 23 24 25 26 27 28 19