Raseknia v. County of Los Angeles CA2/2 ( 2014 )

Filed 9/30/14 Raseknia v. County of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JOE RASEKNIA, B246936
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC457999)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Elizabeth Allen White, Judge. Reversed and remanded.
Law Offices of Gloria Dredd Haney, Gloria Dredd Haney for Plaintiff and
Appellant.
Peterson ● Bradford ● Burkwitz, Avi Burkwitz, Gil Burkwitz for Defendants and
Respondents.
___________________________________________________
Joe Raseknia (appellant) appeals from a summary judgment entered in favor of
respondents, his employer, the County of Los Angeles (the county), and individual
Francine Jimenez on his complaint for discrimination, harassment and retaliation in
violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code,1
§ 12900 et seq.). We reverse on the ground the trial court should have granted a
continuance and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The Prior Action and Settlement
Appellant is a deputy probation officer employed with the Central Adult
Investigation (CAI) unit of the County’s Probation Department. Appellant’s current
duties generally require him to compile reports relating to criminal defendants, which
reports are submitted to criminal courts. Appellant’s current position allows him to work
remotely and/or to telecommute.
Appellant filed a prior lawsuit against the county in June 2008 for retaliation and
discrimination based on race, national origin and ancestry in violation of the FEHA. The
prior lawsuit alleged, among other things, that the county denied appellant promotions for
which he was qualified because he was Persian and Jewish. Appellant alleged that he
believed that the county did not accurately appraise whether he was promotable because
he has Persian ancestry. By contrast, less qualified African-American females were
receiving higher appraisals so they could be promoted. And, despite receiving high
performance evaluations, during the promotion evaluations, he was denied promotions
because of biased statements made about his interpersonal skills related to his Middle
Eastern ancestry.
The prior lawsuit further alleged that appellant filed complaints regarding alleged
discrimination with the Equal Employment Opportunity Commission (EEOC) in 2007
and with the California Department of Fair Employment and Housing (DFEH) in 2008.
1 All further statutory references are to the Government Code unless otherwise
specified.
2
Appellant also alleged that, after he filed the complaints, the Director of the Probation
Department, Charlene Vartanian, retaliated against by harassing him and creating a
hostile work environment.
In April 2009, while the prior lawsuit was pending, the Senior Director of the
Probation Department, Tom Jeanneret, offered appellant a reassignment from Long
Beach to the CAI unit, which appellant accepted.
On May 11, 2009, appellant underwent a Psychiatric Agreed Medical Examination
in connection with a workers’ compensation claim. The medical report indicated that
appellant could not work under Vartanian’s supervision. The report further stated that
appellant should not be exposed to “undue stress above and beyond that which is to be
expected for the duties” as a deputy probation officer. By the time the report was
generated in May 2009, appellant had been moved to CAI and was no longer working
under Vartanian’s supervision.
Appellant also had physical work restrictions, which were issued in connection
with an unrelated workers’ compensation claim. The restrictions were in place several
years prior to 2009. The physical work restrictions included: no driving over 20 to 25
miles, limited typing, 25-minute limits on sitting behind a desk, and access to stretching
his neck, back and arms as needed.
Also in May 2009, after appellant was transferred to CAI, Robert Smythe, the
Deputy Director of Administration for the Probation Department, objected to the transfer
on the ground that it failed to comply with the “bid process” of the employee
memorandum of understanding. Smythe ordered Jeanneret to tell appellant to report back
to Long Beach. After appellant filed a grievance, the May 2009 transfer order was
rescinded.
In June 2009, Jeanneret told appellant that appellant had to transfer from CAI and
report to the Rio Hondo area office. The June 2009 transfer order was subsequently
rescinded.
Appellant was told on October 30, 2009 and November 17, 2009, that he was
being transferred out of CAI and back to Long Beach. The transfer orders were rescinded
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after appellant filed a grievance. None of the attempts to transfer appellant out of the
CAI assignment ever took effect.
On February 15, 2010, the parties entered into a settlement agreement which
required appellant to dismiss the prior lawsuit and the county to pay $20,000 to appellant.
The settlement agreement contained a waiver of the rights and benefits of Civil Code
section 1542. The settlement agreement included the following: “[Appellant] agrees to
dismiss and waive any claim against the County or its agents, not included in this
complaint case number BC3292940, related to any possible known or unknown claim
related to the allegations of this complaint except for [appellant’s] workers compensation
claims.”
In May 2010, appellant filed a DFEH complaint citing the 2009 attempted
transfers. On March 10, 2011, respondents conducted an interactive process meeting,
which prompted the current lawsuit.
The Current Action
Appellant filed the current action on June 1, 2011, naming as defendants the
county and Jimenez. Appellant alleged that respondents discriminated against him,
harassed him and retaliated against him for engaging in the protected activity of opposing
unlawful employment actions. Respondents continuously humiliated and embarrassed
him, causing him to lose self-esteem due to threats and harassments about appellant’s job
responsibilities and assignment. Each time appellant settled into his position at CAI,
which was an accommodation, respondents ordered him to leave CAI. There was a
continued hostile work environment for appellant because he feared on a daily basis what
would happen to him.
The first amended complaint cited allegations from the prior lawsuit, including
discrimination after he was not promoted in 2001, 2004, and 2007 based on appellant’s
race/ethnicity/national origin. The prior lawsuit also alleged that his employer then
retaliated against appellant for filing a discrimination claim with the EEOC in 2007. In
2009 after appellant was transferred to CAI to accommodate medical restrictions, Smythe
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ordered that appellant be transferred on May 28, June 17, and October 30, 2009, in
violation of the accommodations.
The first amended complaint alleged, that, in January 2011, Jimenez again
attempted to transfer appellant. Appellant alleged that the March 10, 2011 interactive
meeting was supposed to be conducted to discuss any accommodations needed for
appellant’s medical restrictions. But, Jimenez used the meeting to question appellant’s
integrity and raise the issue of appellant’s prior lawsuit. The director of the Long Beach
office made it clear during the meeting that she did not want appellant in her unit. While
appellant was in Long Beach under Director Vartanian’s supervision, appellant was
isolated and ignored by his colleagues because of the prior lawsuit.
Appellant also alleged that Jimenez sent him a letter dated March 25, 2011, which
stated he no longer was in need of accommodation. The letter was discriminatory and
retaliatory in order to harass him and take away his accommodation. On May 2, 2011,
appellant was threatened that he was subject to discipline as a result of the March 10,
2011 interactive meeting.
The first amended complaint contains nine causes of action: retaliation (§ 12940,
subd. (h))(first); race/ethnicity discrimination (second); age discrimination over the age
of 40 (third); disability discrimination (fourth); harassment against Jimenez (fifth); failure
to accommodate (sixth); failure to prevent workplace discrimination (seventh);
harassment (eighth) and discrimination based on religion (ninth).
Summary Judgment/Summary Adjudication of Issues
On September 24, 2012, respondents filed a motion for summary judgment or in
the alternative for summary adjudication of issues, which was set for hearing on
December 5, 2012. Respondents asserted the majority of the allegations in the first
amended complaint are barred by the February 2010 settlement agreement. The
discrimination causes of action (first through fourth) failed because appellant did not
suffer any adverse employment action and any action taken by the county regarding
appellant’s employment was supported by legitimate business reasons.
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Respondents also asserted that the retaliation cause of action (first) failed because
there was no causal connection between any protected activity and any alleged adverse
employment action. The race, age, disability and religious discrimination causes of
action (second through fourth and ninth) failed because there were no allegations which
show that appellant was discriminated against for those reasons. Appellant’s only
evidence on the discrimination claims was that two other employees, one of whom is
African-American and the other Hispanic, were not subjected to multiple attempts to
transfer them back to their previous work assignments. However, there is no evidence of
discrimination based on race, age, or disability.
Respondents asserted appellant could not prevail on the harassment causes of
action (fifth and eighth) because appellant could not show any severe or pervasive
conduct. In addition, personnel management actions do not apply to the harassment
framework under case law. Appellant cannot establish that any alleged harassment was
carried out because of a protected characteristic. And, Jimenez was entitled to immunity
under sections 820.2 and 821.6.
Respondents asserted that they should prevail on the failure to accommodate cause
of action (sixth) because appellant received an accommodation. The claim was also
barred by the settlement agreement, the statute of limitations and appellant’s failure to
exhaust administrative remedies.
Appellant could not prevail on the failure to prevent discrimination cause of action
(seventh) because there was no underlying discrimination.
Appellant’s Request for a Continuance
On November 21, 2012, two days before the opposition to the summary judgment
was due, appellant filed an ex parte request to continue the December 5, 2012 hearing
and the trial date of January 9, 2013. Appellant’s counsel filed a declaration which
outlined reasons for the continuance request. Among the reasons was the need to conduct
additional discovery. Counsel declared that she needed a continuance in order to compel
the deposition of respondents’ counsel, Avi Burkwitz, as to the extent of the February
2010 settlement agreement.
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Counsel also declared that she needed a continuance to depose appellant’s expert,
Dr. Jeffrey Bone, about two supplemental psychological reports issued on January 18,
2011 and November 7, 2011, and reports in 2012 concerning the effects of threats to
transfer appellant back to the Long Beach office. The evidence would refute the claims
that there were no adverse actions taken again appellant.
Appellant claimed that the deposition of Dwight Thompson, the Field Vice
President for Local Union 685, was necessary because he attended the March 10, 2011
interactive meeting and would provide evidence as to the purpose of the meeting.
Thompson would also provide evidence concerning the threats of discipline made against
appellant and Thompson during and after the interactive meeting. Because he is a union
officer, Thompson could testify or identify similarly situated employees by
age/race/ethnic origin and disability.
The deposition of Dave Leone, the Acting Deputy Director of the Field Services
Division for the Probation Department, was needed because he was willing to provide a
declaration/evidence that Jimenez was determined to force appellant back to the Long
Beach office. And, that there was no legitimate business reason to do so. Leone could
testify or identify similarly situated employees by race/ethnic origin and disability.
Counsel declared that she had not been able to respond appropriately to the
summary judgment motion because her father suffered from Alzheimer’s and she was his
primary caretaker. In September 2012 after she was served with summary judgment, his
condition worsened to point that she was at a crisis level. In addition, another family
member, who depended on counsel, had cancer. Counsel had not been able to focus on
the opposition and discovery matters as she had done earlier in the year. Counsel then
listed discovery she had conducted earlier in the year and the existence of outstanding
discovery she had served on November 5, 2012. In addition, she and union counsel had
been attempting to find a date to depose Thompson.
Respondents opposed the ex parte application to continue the hearing on the
summary judgment motion on the grounds: a motion to compel is not a proper matter for
an ex parte application; respondents filed a protective order request after appellant served
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notice of intent to depose counsel; and the subject matter of the proposed deposition of
respondents’ counsel is privileged. Respondents also argued that the request failed to
show that appellant acted with reasonable diligence in obtaining the discovery. The
complaint was filed in June 2011. The summary judgment motion was filed in
September 2012. The request for a continuance was made two months later and two days
before the opposition was due. No explanation was offered as to why the requested
discovery was not conducted prior to that time.
The trial court denied the ex parte application on November 21, 2012. Appellant
filed opposition to the summary judgment motion on November 26, 2012, in which he
renewed his request for a continuance.
Evidence from the Separate Statements
With noted exceptions, the parties agreed that the following facts were not
disputed. In May 2009, after appellant was transferred to CAI, Smythe objected to the
transfer on the ground that it failed to comply with the “bid process” of the employee
memorandum of understanding. Appellant claimed that Smythe’s objection was not valid
because the transfer had been approved by the Chief of the Probation Department, as well
as the union.
In May 2009, Smythe ordered Jeanneret to tell appellant to report back to Long
Beach. The parties dispute whether, at the time Smythe made the decision to rescind
appellant’s reassignment to CAI, Smythe was aware of the details regarding appellant’s
prior lawsuit, including work restrictions and appellant’s Middle Eastern and Jewish
heritage. According to appellant, Smythe would have known because his subordinate,
Jimenez, conducted the investigation of the FEHA complaint, which was the basis of
appellant’s prior lawsuit. Jimenez was also the coordinator for compliance with the
Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA) and was aware of
appellant’s work restrictions. Although Smythe was never involved with appellant’s
daily work and work performance, his subordinate, Jimenez, investigated appellant’s
claims. After appellant filed a grievance, the May 2009 transfer order was rescinded.
8
In June 2009, Jeanneret told appellant that appellant had to transfer from CAI and
report to the Rio Hondo area office. The June 2009 transfer order was subsequently
rescinded.
Appellant was told on October 30, 2009 and November 17, 2009, that he was
being transferred out of CAI and back to Long Beach. The transfer orders were rescinded
after appellant filed a grievance. None of the attempts to transfer appellant out of the
CAI assignment ever took effect. However, appellant argued that the continuing attempts
to send him back to the Long Beach office exacerbated his disability. Appellant raised
the issue of the attempted transfers in the prior lawsuit in opposition to the summary
judgment motion.
Appellant admitted at his deposition that he was not aware of any work
restrictions, which specifically required him to be assigned to CAI instead of another
county facility.
On February 15, 2010, the parties entered into a settlement agreement which
required appellant to dismiss the prior lawsuit in exchange for $20,000. The settlement
agreement contained a waiver of the rights and benefits of Civil Code section 1542. The
settlement agreement included the following: “[Appellant] agrees to dismiss and waive
any claim against the County or its agents, not included in this complaint case number
BC3292940, related to any possible known or unknown claim related to the allegations of
this complaint except for [appellant’s] workers compensation claims.” Appellant
admitted that the first instance of alleged improper behavior, which occurred after the
February 2010 settlement agreement was executed, occurred in a March 2011 interactive
process meeting.
Appellant’s May 2010 DFEH complaint caused the county’s Office of Affirmative
Action Compliance (OAAC) to begin an investigation into the allegations of the
complaint. According to Jimenez, in December 2010, an investigator from the OAAC
contacted her for information about appellant’s claims. Jimenez’s position as an ADA
coordinator required that she investigate alleged policy violations based on disabilities.
Respondents claim that based on appellant’s assertion in the 2010 DFEH compliant that
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the employer failed to accommodate his disability, Jimenez referred the matter to her
supervisor for guidance on how to proceed. Respondents produced evidence that an
interactive process meeting was needed to discuss what accommodations appellant
needed.
Appellant filed a declaration which stated the interactive process meeting was
called for the purpose of harassing him and to threaten him with discipline. The meeting
was held on March 10, 2011. Among those attending the meeting were appellant, his
attorney, a union representative, a return-to-work coordinator, Jimenez and the Director.
In addition, appellant argued that, because he had named Jimenez in the DFEH
complaint, the county had a duty to have a different person investigate his claims.
Jimenez conducted the investigation and “then took away” appellant’s need for an
accommodation because appellant engaged in a protected activity and for the purpose of
continuing to harass appellant. Appellant noted that his treating physician had never
indicated that appellant did not need an accommodation.
The parties dispute what occurred at the meeting. Respondents assert that Jimenez
attempted to advise appellant that the purpose of the March 10, 2011 meeting was to see
if his work restrictions were being met. But, the tenor of the meeting became contentious
and resulted in appellant’s union representative using profanities. Appellant also accused
Jimenez of harassing him.
Appellant declared that, during the meeting, he was harassed regarding his
previous complaints of discrimination and his previous lawsuit. He denied that his union
representative used profanity.
The parties also disputed what occurred during and after the meeting regarding
appellant’s need for an accommodation under the ADA. Respondents claimed appellant
admitted that his work restrictions were being accommodated at CAI. Appellant
admitted in his deposition that the issue of transferring him to Long Beach was not raised
in the meeting. He also admitted that Jimenez never told him that he did not qualify
under the ADA. By contrast, appellant asserted that Jimenez indicated that he no longer
needed an accommodation even though his treating physician had not changed the need
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for one. Appellant cited a letter sent by Jimenez dated March 25, 2011, which he claims
falsely stated that he did not need an accommodation under the ADA. The letter
provides: “During the ‘Interactive Process Meeting’ held on March 10, 2011, you
confirmed that currently, you are not in need of accommodation under the ADA
(Americans with Disabilities Act) through my office. As such, I will close my file
effective immediately. [¶] If in the future you are in need of accommodation, please
contact me . . . .”
None of the attempts to transfer appellant out of the CAI assignment ever took
effect. However, appellant argued that the continuing attempts to send him back to the
Long Beach office exacerbated his disability.
In addition, since his reassignment, appellant has never received any substandard
performance evaluations, criticisms of his work, suspensions, or letters of reprimand or
warning. The CAI assignment accommodates his work restrictions. Appellant does not
have any complaints with his current assignment.
On December 5, 2012, the trial court denied appellant’s renewed request for a
continuance. The trial court then summarily adjudicated each of the causes of action in
favor of respondents and granted summary judgment. On January 25, 2013, the trial
court denied appellant’s motion for new trial. Appellant filed a timely notice of appeal
from the judgment.
DISCUSSION
Appellant claims the trial court erred in denying his request for a continuance.
Code of Civil Procedure section437c, subdivision (h) provides: “If it appears from the
affidavits submitted in opposition to a motion for summary judgment or summary
adjudication or both that facts essential to justify opposition may exist but cannot, for
reasons stated, then be presented, the court shall deny the motion, or order a continuance
to permit affidavits to be obtained or discovery to be had or may make any other order as
may be just. The application to continue the motion to obtain necessary discovery may
also be made by ex parte motion at any time on or before the date the opposition response
to the motion is due.”
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Code of Civil Procedure section 437c, subdivision (h) was enacted “‘“[t]o mitigate
summary judgment’s harshness”’” as to “‘an opposing party who has not had an
opportunity to marshal the evidence.’ [Citation.]” (Cooksey v. Alexakis (2004) 123
Cal. App. 4th 246, 253.) There is a conflict in the law as to whether a continuance is
mandated if the affidavit requesting the continuance meets the requirements of Code of
Civil Procedure section 437c, subdivision (h). (Compare Rodriguez v. Oto (2013) 212
Cal. App. 4th 1020, 1038, fn. 7 [continuance is not mandated by the terms of the statute
given the words granting the trial court authority to “make any other order as may be
just” (Code Civ. Proc., §437c, subd. (h)) contemplating an exercise of discretion
including reasonable or lack of diligence] with Johnson v. Alameda County Medical
Center (2012) 205 Cal. App. 4th 521, 532 [continuance must be granted when good faith
showing is made by affidavit that a continuance is necessary to obtain essential facts to
oppose summary judgment motion], Park v. First American Title Co. (2011) 201
Cal. App. 4th 1418, 1427 [same].) In any event, the declaration or affidavit must detail
specific facts which would establish the existence of material controverting evidence.
(Lerma v. County of Orange (2004) 120 Cal. App. 4th 709, 715.)
In this case, appellant’s counsel presented a declaration which showed that she
needed to conduct additional discovery as to at least three witnesses: Dr. Bone,
Thompson, and Leone. Dr. Bone would present evidence concerning the effects of
continued threats against appellant. Thompson, who attended the interactive process
meeting as appellant’s union representative, would provide evidence of threats made
during and after the meeting. Leone, who was the Acting Director during pertinent times,
would describe Smythe’s conduct and the absence of a legitimate business reason for
continuing to threaten appellant with transfers. Counsel’s declaration showed that
plaintiff may discover evidence pertinent to his claims concerning the purpose, nature
and result of the March 2011 interactive process meeting. Specifically, appellant claimed
that the meeting involved continued threats about transferring him from CAI as well as
threats of discipline. Appellant also asserted that, notwithstanding his need to continue
12
his stress and physical accommodations, Jimenez claimed he no longer needed any
accommodations.
In addition, counsel listed discovery she had conducted earlier in the year and the
existence of outstanding discovery she had served on November 5, 2012. Counsel also
declared that she and union counsel had been attempting to find a date to depose
Thompson. Thus, counsel’s declaration showed a justification for the continuance by
showing the facts expected to be discovered and how the evidence would be used.
Because counsel identified the specific issues that the witnesses would testify to and how
the evidence was needed to meet appellant’s summary judgment burden, the trial court
should have granted a continuance under Code of Civil Procedure section 437c,
subdivision (h).
Even if the continuance was not mandatory, counsel also requested additional time
to respond to the summary judgment motion under the trial court’s broad discretionary
power. We review the denial of such a request for an abuse of discretion. (Johnson v.
Alameda County Medical Center, supra, 205 Cal.App.4th at p. 532.) Counsel identified
personal circumstances which precluded her from responding properly to the summary
judgment motion in a timely manner. Counsel requested additional time due to
responsibilities surrounding her father’s Alzheimer’s condition. At the same time,
counsel was required to care for a family member who had cancer. Here, the medical
conditions of two people, who relied on counsel for their care, was good cause for at least
a short continuance. (See Cal. Rules of Court, rule 3.1332(c)(3) [illness is a
circumstances that may indicate good cause]; Lerma County of Orange, supra, 120
Cal.App.4th at p. 716.)
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DISPOSITION
The summary judgment is reversed. The matter is remanded to the trial court for
further proceedings without prejudice to respondents’ filing a motion for summary
judgment and/or summary adjudication of issues.
Appellant is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
FERNS, J.*
We concur:
BOREN, P.J.
ASHMANN-GERST, J.
_______________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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