Marcial v. County of Los Angeles CA2/4 ( 2022 )

Filed 8/19/22 Marcial v. County of Los Angeles CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
FELIPE MARCIAL, B310130
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No. BC683375)
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rafael A. Ongkeko, Judge. Affirmed.
Haney & Shah, Steven H. Haney and Kenneth W. Baisch
for Plaintiff and Appellant.
Peterson, Bradford, Burkwitz, Avi Burkwitz, Gil Y.
Burkwitz, and Jennie Raphelt for Defendant and Respondent.
INTRODUCTION
Plaintiff and appellant Felipe Marcial has been a
firefighter for the Los Angeles County Fire Department
(LACOFD) since 1996. In November 2017, while on a medical
leave of absence for a shoulder injury, Marcial filed a complaint
against the County of Los Angeles (the County) asserting several
causes of action under the Fair Employment and Housing Act
(FEHA), including harassment, discrimination, and retaliation.
Marcial alleged that soon after beginning his employment, he
observed male firefighters engaging in inappropriate behavior,
including communicating in overly sexual manners with women
who were passing by the station, and “hooking up” with these
women inside of the firehouse. Based on the alleged
“debaucherous” behavior, Marcial described the fire stations as
“bachelor pads.” He further alleged LACOFD failed to provide
privacy for firefighters at certain fire stations, where male and
female firefighters were required to share restrooms, locker
rooms, showers, and sleeping quarters at certain fire stations.
Marcial contends the “sexually charged working
atmosphere” he endured was “hostile and intolerable.” He further
claimed he was harassed and discriminated against for his
complaints about the lack of privacy at the fire stations. The lack
of privacy, according to Marcial, caused him extreme stress and
anxiety.
In response to Marcial’s complaint, the County moved for
summary judgment or, in the alternative, summary adjudication.
In opposition, Marcial was unable to demonstrate a prima facie
case or raise a triable issue of fact with respect to any of the
causes of action he alleged. The trial court, therefore, granted
summary judgment in favor of the County. We affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
Marcial has worked for the LACOFD since 1996. In 1998,
Marcial was assigned to Fire Station (FS) 8 in West Hollywood.
At FS 8, Marcial experienced a “highly sexually charged working
environment,” which included male firefighters communicating in
“lewd, obscene and overly sexual manners with certain females
who were passing by the station[,]” and “certain firefighters
would ‘hook up’ with these females inside of the firehouse.”
Although Marcial found this working environment to be
inappropriate, he initially attempted to fit in by “‘play[ing] along
to get along.’” Marcial asserts, however, that he was unable to
tolerate the “sexually charged working atmosphere” and the
stress was spilling over into his personal life and affecting his
marriage.
Thus, in 2000, Marcial requested to be transferred from FS
8 to FS 103. FS 103 is a station for firefighters who are specially
trained and certified for urban search and rescue (USAR).
LACOFD granted Marcial’s request and assigned him to FS 103,
where he remained for 17 years (until 2017). FS 103 is an older
fire station that has a common sleeping area for both men and
women firefighters, a common changing room, and common
showers.
Marcial found the environment at FS 103 to be just as
“unprofessional and debaucherous” as at FS 8. Marcial
complained to his coworkers and supervisors about the
inappropriate conduct, but nothing was done in response to his
complaints.1
In 2013, Marcial filed a written complaint with the Fire
Chief, claiming FS 8 was a “frat house” with “little moral values.”
He explained: “We would stage out at the Halloween parades
posing for pictures with half naked women. We forgot we were
1 Marcial does not provide dates of the alleged complaints.
3
there to do a job, instead we were having the time of our lives. As
a married man I forgot how this would affect my family. I failed
as a husband, to my wife and family. Unfortunately in order to
save my marriage, I had to request a transfer.” He went on to
state that at FS 103, he experienced the same behavior; men
were “using this facility as a bachelor pad.” He therefore sought
“a social change [to] rid the frat house mentality, bachelor pad
and dating ground” and “new protocols [and] consequences for
our immoral behavior” because ignoring the behavior “is
irresponsible to our families and our communities.” In response
to the complaint, Chief Marrone met with Marcial. Chief Marrone
agreed to help Marcial implement a training program for new
recruits to address the issues identified in Marcial’s complaint.
Despite Marcial’s claim that the “inappropriate behavior”
continued after he complained in 2013, he testified in his
deposition that between 2013 and 2017 “there was nobody coming
over anymore” and he was unable to provide names of any
employees after 2013 who engaged in inappropriate behavior.
In 2017, Marcial learned that a female firefighter had been
granted a transfer to FS 103, which concerned him because even
though they would be working different shifts, they might
overlap at times and have to share “non-gender-separated
facilities.” He therefore requested to be transferred to FS 136, the
only other USAR fire station, which had gender-privacy
accommodations. Another firefighter (Quintin Humphries),
however, received the open position at FS 136. Humphries agreed
to trade positions with Marcial, but LACOFD did not approve the
trade.
Shortly after his transfer request was denied, Marcial
spoke with his Battalion Chief, Mike Fuentes. He relayed to
Fuentes that he was at his “rope’s end.” Fuentes suggested
Marcial speak with his union representative, and also told
Marcial he would speak with his boss to see if anything could be
done regarding Marcial’s transfer request.
4
A few days after his discussion with Fuentes, Marcial
claims Captain Norman (who Marcial identifies as his “superior”)
“angrily confronted [him] and retaliated against [him] for going
over his head.” According to Marcial, Norman then yelled at him
that he was “‘causing problems’” and it was “‘time for [him] to
leave.’”
In March 2017, having lost his bid to transfer to FS 136
and still seeking to avoid working with the female firefighter at a
station with non-gender-separated facilities, Marcial requested,
and LACOFD granted, a stress leave of absence. While on stress
leave, Marcial applied for retirement.
Marcial was released back to work on May 2, 2017, but his
approved retirement did not begin until June 30, 2017. For the
approximately two months until his retirement date, Marcial
requested an accommodation for a work restriction that limited
him from working at FS 103. Marcial expressed his view that FS
136 would be one of his “ideal choices.” LACOFD granted
Marcial’s request, and temporarily assigned Marcial to FS 136
until his intended retirement date.
On June 28, 2017, Marcial rescinded his retirement
request. That same day, he requested, and LACOFD granted, a
medical leave for a shoulder injury. Marcial was on leave for the
shoulder injury from June 2017 through May 2018.
In May 2018, LACOFD still had only two USAR fire
stations: FS 103 and FS 136. Marcial could no longer work at a
USAR fire station, however, because he allowed his necessary
USAR certifications to lapse. With that understanding, Marcial
requested to be assigned to FS 80 (a non-USAR station) because
it was a sufficient distance from FS 103 to “allow [him] to relieve
[his] anxiety [about interacting with firefighters from that
station] and allow [him] to work until [he has] at least [25] years
towards retirement.” LACOFD granted Marcial’s request.
According to Marcial, FS 80 has taken his “situation
seriously” and made efforts to accommodate him, including
5
putting up dividers in the sleeping quarters even without his
requesting them. Marcial feels he is able to perform his job duties
at FS 80.
In November 2017, while on leave for his shoulder injury,
Marcial filed this lawsuit against the County. The operative
complaint asserts seven causes of action: (1) discrimination under
FEHA based on gender, sex, and physical disability; (2)
harassment under FEHA based on gender, sex, and physical
disability; (3) retaliation under FEHA; (4) failure to provide a
reasonable accommodation; (5) failure to engage in the
interactive process; (6) failure to prevent discrimination,
harassment and retaliation; and (7) retaliation in violation of
Labor Code section 1102.5.
The County moved for summary judgment or, alternatively,
summary adjudication of each cause of action. In a lengthy and
detailed ruling, the trial court granted the County’s motion for
summary judgment, and entered judgment in its favor.
Marcial timely appealed from the judgment.
DISCUSSION
I. Standard of Review
“A party is entitled to summary judgment only if there is no
triable issue of material fact and the party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment must show that one or
more elements of the plaintiff's cause of action cannot be
established or that there is a complete defense. (Id., subd. (p)(2).)
If the defendant meets this burden, the burden shifts to the
plaintiff to present evidence creating a triable issue of material
fact. (Ibid.) A triable issue of fact exists if the evidence would
allow a reasonable trier of fact to find the fact in favor of the
party opposing summary judgment. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.)
6
We review the trial court’s ruling on a summary judgment
motion de novo, liberally construe the evidence in favor of the
party opposing the motion, and resolve all doubts concerning the
evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460 [(Miller)].)” (Grebing v. 24
Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 636-637.)
“While we must liberally construe plaintiff's showing and resolve
any doubts about the propriety of a summary judgment in
plaintiff's favor, plaintiff's evidence remains subject to careful
scrutiny. [Citation.] . . . [P]laintiff’s subjective beliefs in an
employment discrimination case do not create a genuine issue of
fact; nor do uncorroborated and self-serving declarations.” (King
v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433
(King).)
II. The Court Property Granted Summary Judgment
A. The discrimination, retaliation under FEHA,
and retaliation in violation of Labor Code
section 1102.5 claims fail because Marcial did
not raise a triable issue of fact that he suffered
an adverse employment action
An essential element of causes of action for discrimination
under FEHA, retaliation under FEHA, and retaliation in
violation of Labor Code section 1102.5, is that the employee
suffered an adverse employment action. (See Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 355 [to prove discrimination
under FEHA, “[g]enerally, the plaintiff must provide evidence
that . . . he suffered an adverse employment action, such as
termination, demotion, or denial of an available job . . . .”]; Akers
v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453 [“[t]o
establish a prima facie case of retaliation, the plaintiff must
show . . . the employer subjected the employee to an adverse
employment action . . . .”]; Mokler v. County of Orange (2007) 157
Cal.App.4th 121, 138 [to establish a prima facie case of
7
retaliation under Labor Code section 1102.5, “‘a plaintiff must
show . . . her employer subjected her to an adverse employment
action . . . .’”].)
An “adverse employment action” is one that “materially
affects the terms, conditions, or privileges of employment.”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1306,
1051 (Yanowitz).) “In the case of an institutional or corporate
employer, the institution or corporation itself must have taken
some official action with respect to the employee, such as hiring,
firing, failing to promote, adverse job assignment, significant
change in compensation or benefits, or official disciplinary
action.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) “‘A
change that is merely contrary to the employee’s interests or not
to the employee’s liking is insufficient.” (McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386
(McRae).)
In support of its motion for summary judgment, the County
presented the following evidence: (1) LACOFD never terminated
Marcial and he still maintains his employment with LACOFD; (2)
LACOFD never demoted or suspended Marcial; (3) Marcial
maintains the same rank he has held for the past 10 years; (4)
the only transfers Marcial received are those that he requested;
and (5) Marcial chose not to work at an USAR station and
allowed the required certifications to do so to lapse. Based on this
evidence, we conclude the County met its prima facie burden of
establishing Marcial was not subjected to an adverse employment
action.
The burden therefore shifted to Marcial to establish the
existence of a triable issue of fact with respect to that issue.
Marcial failed to meet this burden. In opposition to the County’s
motion, Marcial argued he suffered the following adverse
employment actions: “losing his position with a USAR fire
station, loss of income due to no longer being a USAR member,
losing his position as a training instructor, losing his position on
8
the state/federal joint task force, being forced to go out on
disability due to the stress and anxiety caused by [LACOFD’s]
actions, being told by his supervisor to leave the LACO[F]D
leaving him no choice but to file for retirement, and being denied
transfer to the USAR facility that had separate facilities for both
genders.” Marcial’s evidence, however, fails to create a triable
issue that LACOFD took any affirmative adverse employment
action against him.
First, there is no evidence that LACOFD required Marcial
to transfer from FS 103 to a different fire station. As the trial
court noted, “if [Marcial] wanted to remain at a USAR station,
that option was available to him.” Marcial chose to transfer to FS
80.
Second, Marcial provides no evidence of the alleged
reduction in pay when he transferred from FS 103 to FS 80, nor
evidence of any benefits taken from Marcial. Marcial let his
USAR certification lapse while he was on his requested leave of
absence, so loss of his USAR assignment and any associated
bonus pay is not due to an adverse employment action by
LACOFD.
Third, Marcial provides no evidence from which the court
can determine whether losing his position as a training instructor
and his position on the state/federal joint task force “materially
affect[ed] the terms, conditions, or privileges of employment.”
(Yanowitz, supra, 36 Cal.4th at p. 1051.) And, it is not clear from
the record whether Marcial “lost” those position as a direct result
of his own transfer and leave requests, rather than as a result of
an affirmative action taken by LACOFD; there is no evidence
when these events allegedly took place.2
2 In his declaration in support of his opposition, Marcial
stated that “Captain Norman took away my teaching
assignments on the heavy rescue class without my knowledge.”
The County objected to this statement as “[v]ague and ambiguous
9
Fourth, contrary to his contention that he was forced to go
on stress leave, Marcial requested leave, and LACOFD granted
Marcial’s request. There is no evidence that the stress leave of
absence Marcial requested had a substantial and detrimental
effect on his employment.
Fifth, Marcial contends he was subjected to an adverse
action because he was “told by his supervisor to leave the
LACO[F]D leaving him no choice but to file for retirement.” 3 But
Marcial’s declaration says only that his supervisor told him it
was “time for [him] to leave” and is ambiguous about whether he
meant it was time to leave FS 103 or LACOFD. Moreover, as
previously noted, the evidence demonstrates Marcial requested a
leave of absence, and during his leave, Marcial applied for
retirement, which, in any event, Marcial eventually rescinded.
Relying on Yanowitz, Marcial contends his supervisor’s
statement is an adverse action because “[a]ctions that threaten to
derail an employee’s career are objectively adverse . . . .”
(Yanowitz, supra, 36 Cal.4th at p. 1060.) We are unpersuaded. In
Yanowitz, the record established the employee “had been a highly
rated and honored employee of L’Oreal for 18 years.” (Ibid.) The
employee’s supervisors, however, began to “actively solicit
negative information about her and then employed this
information to criticize [the employee] both in the presence of her
subordinates and in written memoranda. These supervisors
as to when in his 17 years at FS 103 that Captain Norman
supposedly ‘took away’ his teaching assignments.” The trial court
sustained the objection. As discussed below in Section II.D, we
discern no abuse of discretion.
3 We note the County contends the trial court properly
sustained its objection to the statement in Marcial’s declaration
that Marcial’s supervisor yelled at him for going over his head
and stated it was time for Marcial to leave. The record, however,
reflects that objection was overruled.
10
refused to review her response to these charges and employed the
negative information received to justify new, restrictive directives
regarding her future performance and to impair her effectiveness
with her staff.” (Ibid.) The Yanowitz court held that “[m]onths of
unwarranted and public criticism of a previously honored
employee, an implied threat of termination, contacts with
subordinates that only could have the effect of undermining a
manager’s effectiveness, and new regulation of the manner in
which the manager oversaw her territory did more than
inconvenience [the employee].” (Ibid.) Here, by contrast, Marcial
declared there was one instance of his supervisor yelling at him
for going “over [the supervisor’s] head” in seeking to transfer to
FS 136, and the supervisor told him it was “time for [him] to
leave.” Despite this statement, the record is devoid of evidence
showing LACOFD took any affirmative steps to derail Marcial’s
career; rather, LACOFD granted his leave requests, allowed
Marcial to rescind his retirement date, and placed Marcial at the
fire station he requested upon his return to work in 2018.
Finally, Marcial contends he was denied a transfer to the
USAR facility that had separate facilities for both genders. This
does not constitute an adverse employment action. Marcial
provides no evidence that he was denied a transfer to FS 136 in
2017 because of his gender or sex, and the fact LACOFD did not
approve the trade (i.e., Marcial switching places with Humphries,
who was assigned to FS 136) does not constitute an adverse
employment action. (See, e.g., McRae, supra, 142 Cal.App.4th at
p. 393 [“‘[A] plaintiff who is made to undertake or who is denied a
lateral transfer—that is, one in which she suffers no diminution
in pay or benefits—does not suffer an actionable injury unless
there are some other materially adverse consequences . . . such
that a reasonable trier of fact could conclude that the plaintiff
has suffered objectively tangible harm. Mere idiosyncrasies of
personal preference are not sufficient to state an injury.’”].)
11
In sum, based on Marcial’s own testimony, when he came
back from his leave of absence for his shoulder injury in May
2018, LACOFD placed him at the station he specifically
requested (FS 80), at which, according to Marcial, he could
perform his job duties. This is the position he still maintains
today. Further, LACOFD took no action to prevent Marcial from
keeping his USAR certifications from lapsing (and later being
able to request a transfer to FS 136 if and when it becomes
available).
Accordingly, we conclude Marcial failed to establish he
suffered an injury that had a substantial and detrimental effect
on his employment, or that LACOFD took any affirmative
employment action against him. Because an adverse employment
action is an essential element of Marcial’s claims for
discrimination, retaliation under FEHA, and retaliation in
violation of Labor Code section 1102.5, these claims fail as a
matter of law.
B. The harassment and failure to prevent
harassment claims fail because Marcial did
not demonstrate the alleged harassment was
due to a protected characteristic
“[A]n employee claiming harassment based upon a hostile
work environment must demonstrate that the conduct
complained of was severe enough or sufficiently pervasive to
alter the conditions of employment and create a work
environment that qualifies as hostile or abusive to employees
because of their [protected characteristic]. [Citation.]” (Miller,
supra, 36 Cal.4th at p. 462.) “In determining what constitutes
‘sufficiently pervasive’ harassment, the courts have held that
acts of harassment cannot be occasional, isolated, sporadic, or
trivial, rather the plaintiff must show a concerted pattern of
harassment of a repeated, routine or a generalized nature.”
12
(Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 610.)
The trial court found Marcial’s evidence failed to “create
a triable issue of fact concerning the existence of a pervasive
hostile work environment that continued after he made [ ]
complaints in 2013. Liberally construed, [Marcial’s] evidence
after these complaints is non-specific and stale, with his
ongoing grievances directed mainly at his superiors’ perceived
nonresponsiveness and failure to see things his way and
implement programs according to [Marcial’s] grand plan to
make the department a better place.”
On appeal, Marcial primarily relies on two statements in
his declaration in support of his hostile work environment
claim, which Marcial argues the trial court ignored: (1) In 2017,
his supervisor yelled at him that it was “‘time for [him] to
leave;’” and (2) Marcial was told he was not welcome when he
temporarily transferred to FS 136 in 2017 due to complaints he
made when working at FS 103. Marcial has failed to
demonstrate, however, that either of these instances occurred
because of a protected characteristic. With respect to the first
instance, Marcial declared: “Captain Norman angrily
confronted me and retaliated against me for going over his
head. He was visibly irate that I had gone over his head, and
yelled at me that I had brought attention to his station, that I
was ‘causing problems,’ and it was ‘time for [me] to leave.’”
Thus, based on Marcial’s declaration, his supervisor yelled at
him for going over his head in seeking a transfer to another
station, not because of his gender, sex, or disability (i.e., based
on a protected characteristic). And, as previously noted, it is
unclear whether the supervisor meant it was time for Marcial
to leave that fire station – which is the very thing Marcial was
requesting – rather than that it was time for Marcial to leave
the LACOFD. Similarly, with respect to the second instance,
Marcial does not establish he was unwelcomed based on a
13
protected characteristic. Marcial declared: “In private, both
Capt[ain] McCormick and Humphries at FS 136 told me that a
few of the firefighters were not happy about my coming to their
station and openly complained about me saying that they did
not like what I ‘was bringing with him’ to the station.” These
statements are too vague to establish the firefighters made
Marcial feel unwelcome based on his gender, sex, or disability.
Having concluded Marcial failed to demonstrate the
alleged harassment was based on a protected characteristic
(and therefore, the harassment claim fails as a matter of law),
we also affirm the trial court’s summary judgment on the
failure to prevent harassment cause of action. (See, e.g.,
Trujillo v. North Transit Dist. (1998) 63 Cal.App.4th 280, 289
[“Employers should not be held liable to employees for failure
to take necessary steps to prevent [harassment], except where
the actions took place and were not prevented”]; see also M.F.
v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th
693, 701 [“A plaintiff cannot state a claim for failure to prevent
harassment unless the plaintiff first states a claim for
harassment.”].)
C. The failure to provide reasonable
accommodation and failure to engage in the
interactive process claims fail because, among
other reasons, Marcial received the
accommodation he requested
“Under [Government Code] section 12940, it is an unlawful
employment practice ‘to fail to make reasonable accommodation
for the known physical or mental disability of an applicant or
employee’ unless the employer demonstrates doing so would
impose an undue hardship. (§ 12940, subd. (m).) The essential
elements of a failure to accommodate claim are: (1) the plaintiff
has a disability covered by the FEHA; (2) the plaintiff is a
qualified individual (i.e., he or she can perform the essential
14
functions of the position [with accommodation]); and (3) the
employer failed to reasonably accommodate the plaintiff’s
disability.” (Wilson v. County of Orange (2009) 169 Cal.App.4th
1185, 1192.)
Government Code section 12940, subdivision (n) imposes an
additional and independent duty on employers to engage in an
“‘“interactive process”’” regarding reasonable accommodations.
(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986,
1003.) That provision establishes that it is an unlawful practice
for an employer “to fail to engage in a timely, good faith,
interactive process with the employee . . . to determine effective
reasonable accommodations, if any, in response to a request for
reasonable accommodation by an employee . . . with a known
physical or mental disability or known medical condition.” (Gov.
Code, § 12940, subd. (n).)
The trial court concluded Marcial “offered no evidence to
establish that his stress/anxiety rose to the level of a ‘qualified
disability’ under FEHA.” It explained that Marcial’s doctor’s
note “never described the extent or severity of [Marcial’s] stress
or anxiety—i.e., that the stress rose to the level of limiting
[Marcial’s] ability to perform his job functions.” It went on to
state that “in any event, [Marcial] admits that, after [he]
returned to work from leave in 2018, he ultimately received a
reasonable accommodation where he was able to work.”4 This is
sufficient to defeat Marcial’s claim.
Moreover, even assuming Marcial’s stress and anxiety
rose to the level of a “disability” under FEHA, we conclude no
4 The trial court also noted it could be inferred from
Marcial’s evidence, although not addressed in his opposition
brief, that he suffered from another disability, i.e., sleep apnea.
The court explained, however, that Marcial never requested any
accommodation based on his sleep apnea. On appeal, Marcial
solely focuses on his claim that LACOFD failed to accommodate
his alleged disability of stress and anxiety.
15
triable issue of material fact exists regarding whether Marcial
was denied a reasonable accommodation. Relying on Jensen v.
Wells Fargo Bank (2000) 85 Cal.App.4th 245 (Jensen), Marcial
argues LACOFD failed to accommodate him because he was
only temporarily assigned to FS 136 when he came back from
his stress leave of absence in 2017. Jensen is distinguishable,
however. In Jensen, the Court of Appeal reversed the trial
court’s grant of summary judgment on the employee’s
reasonable accommodation cause of action. (Id. at pp. 248-249.)
There, the disabled employee was offered a temporary job in El
Monte, and it was undisputed that she rejected it. (Id. at p.
264) The court explained, however, that a “temporary position
is not . . . a reasonable accommodation. It represents, like
unpaid leave, a way to put a disabled employee on hold while
the attempt to locate a permanent position is ongoing.” (Ibid.)
The court went on to explain that the plaintiff in Jensen was
never offered a permanent job in El Monte; the fact she was
offered a temporary position (and declined the position),
therefore, could not “support summary judgment on the basis
that [the employee] was offered a reasonable accommodation
which she refused.” (Ibid.)
Unlike the facts in Jensen, here, the evidence
demonstrates the temporary nature of Marcial’s assignment to
FS 136 was a consequence of his actions, not LACOFD’s
actions. Marcial did not refuse the transfer to FS 136 because it
was temporary. To the contrary, the record demonstrates
Marcial requested a transfer to FS 136 when he returned to
work from his stress leave of absence in May of 2017 (based on
his work restriction that prevented him from working at FS
103). In response, LACOFD temporarily assigned Marcial to FS
136 until his intended retirement date. Rather than retiring,
however, Marcial requested, and LACOFD approved, another
leave of absence for his shoulder injury beginning June 28,
2017. During his leave, he allowed his USAR credentials to
16
lapse. Thus, upon his return to work in 2018, Marcial
requested a transfer to a non-USAR station (specifically, FS
80). LACOFD granted Marcial’s request. Marcial admits he
received a reasonable accommodation: “FS 80 put up dividers
in the sleeping quarters even without me requesting them.
Unlike all the years previously, FS 80 took my situation
seriously and finally made efforts to accommodate me. While
there are not separate showers, unlike FS 103, there is a wall
with a door and lockable area so that the shower can be locked
and prevent anyone from seeing in. With accommodation I was
able to perform my job duties.”
On this record, we conclude Marcial not only received a
reasonable accommodation, but the exact accommodation he
sought (i.e., a transfer to FS 80 and privacy in the living
quarters). The trial court therefore properly granted the
County’s motion for summary judgment on Marcial’s causes of
action for failure to provide a reasonable accommodation and
failure to engage in the interactive process. (See, e.g., Wilson v.
County of Orange, supra, 169 Cal.App.4th at p. 1195 [holding
the employee’s claim for failure to reasonably accommodate
failed where, after a series of temporary accommodations, “in
the end, [the employee] got exactly what she wanted . . . .”]; see
also Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215,
229 [employer cannot be held liable for failing to engage in
interactive process when the employee was in fact offered a
reasonable accommodation].)
D. Evidentiary objections
Alternatively, Marcial contends the trial court abused its
discretion by sustaining the County’s objections to portions of
his declaration. Specifically, Marcial argues the County’s
objections to the following six statements in his declaration
should have been overruled: (1) “The lack of gender privacy
caused me intolerable stress and anxiety”; (2) “Between
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January of 2017 and the present, I complained about the
situation to my captains, superiors, and co-workers including
[list of names]”; (3) “My plan had been to retire after [30]
years”; (4) “Captain Norman took away my teaching
assignments on the heavy rescue class without my knowledge”;
(5) “I was taken from a highly prestigious position with a USAR
fire station, which provided increased compensation and
frequent overtime and left with no option but to transfer to a
non-USAR fire station”; and (6) “Due to harassment from
Captain Norman, I had to leave California Task Force 2, which
is a prestigious joint state and federal task force that goes to
other countries to perform USAR work.”
With respect to the first, second, and third statements,
assuming, arguendo, the trial court abused its discretion by
sustaining the County’s objections as to those specific excerpts
in Marcial’s declaration, we conclude Marcial fails to show any
resulting prejudice. First, as discussed above, even assuming
Marcial suffered from “intolerable stress and anxiety,” which
rose to the level of a disability under FEHA, the evidence
demonstrates LACOFD provided Marcial with a reasonable
accommodation. Second, Marcial claims he complained about
“the situation” to his superiors. But as discussed above,
Marcial’s retaliation causes of action fail because he failed to
show LACOFD took any affirmative employment action against
him. Finally, Marcial’s purported plan to retire after 30 years is
irrelevant to any of his causes of action. Admission of these
statements, therefore, would not have changed the outcome of
the summary judgment motion.
Turning to the fourth, fifth, sixth statements, we discern
no abuse of discretion. The County objected to the fourth and
fifth statements on the grounds, among others, that the
statements are vague and ambiguous regarding time (i.e., when
in his 17 years at FS 103 Marcial’s teaching assignments were
allegedly taken away, and when he was “taken from a highly
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prestigious position”). Marcial argues the court erred by
sustaining the County’s objections because these statements
are within Marcial’s personal knowledge and “directly relevant
to the adverse employment action taken against Marcial.”
Relevance, however, was not the basis of the County’s
objections. It is within the trial court’s discretion to disregard
vague, ambiguous, and uncorroborated evidence in a plaintiff’s
declaration. (See, e.g., King, supra, 152 Cal.App.4th at p. 433
[uncorroborated and self-serving declarations do not create a
genuine issue of fact].)
Lastly, the County objected to the sixth statement on the
grounds that it is argumentative and states an improper legal
conclusion. Again, Marcial ignores the bases of the County’s
objections, and argues the trial court abused its discretion in
sustaining the objections because the information is within
Marcial’s “personal knowledge” and “directly relevant.” We
conclude the trial court was within its discretion to sustain the
County’s objection that the statement contains an improper
legal conclusion. (See Hayman v. Block (1986) 176 Cal.App.3d
629, 639 [“The affidavits must cite evidentiary facts, not legal
conclusions or ‘ultimate’ facts.”].)
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DISPOSITION
Marcial raises troubling concerns about working conditions
at LACOFD, in particular alleged firefighter misconduct, physical
plant issues at certain stations resulting in an unacceptable lack
of privacy for firefighters, and an alleged failure by LACOFD and
the County to remediate these problems. As the trial court noted,
however, many of these allegations are stale, referring to
conditions decades ago. To the extent these issues persist, they
demand prompt attention and remediation by LACOFD and the
County.
The judgment is affirmed. The parties shall bear their own
costs on appeal.5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
5 Our Supreme Court recently held that “[a]n appellate court
may not award costs or fees on appeal to a prevailing FEHA
defendant without first determining that the plaintiff's action
was frivolous, unreasonable, or groundless when brought, or that
the plaintiff continued to litigate after it clearly became so.”
(Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th
918, 950-951.) The County, a prevailing FEHA defendant, has not
asked us to determine that Marcial’s action was at any point
frivolous, unreasonable, or groundless.
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