Mikhail v. Pasadena Unified School District CA2/1 ( 2021 )

Filed 7/22/21 Mikhail v. Pasadena Unified School District CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
MICHAEL NIGUIB MIKHAIL, B298181
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC669576)
v.
PASADENA UNIFIED
SCHOOL DISTRICT,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark V. Mooney, Judge. Affirmed.
Anderson & Associates and Andrei V. Serpik for Plaintiff
and Appellant.
Doumanian & Associates and Nancy P. Doumanian for
Defendant and Respondent.
_______________________________
Plaintiff Michael Naguib Mikhail appeals from a judgment
entered after the trial court granted summary judgment in favor
of defendant Pasadena Unified School District (PUSD) in this
employment action alleging disability and racial discrimination,
harassment, retaliation, and other causes of action. Because
Mikhail has not shown a triable issue of material fact as to any of
his causes of action, we affirm the summary judgment.
BACKGROUND
I. Mikhail’s Employment With PUSD
In 2001, PUSD hired Mikhail as a Food Services
Coordinator in PUSD’s Food Services Department. According to
Mikhail, his duties included “traveling to various schools within
the district to verify that instructions were being followed,
covering for people that were absent, making sure procedures
were being followed, and trouble shooting for problems regarding
food or other food services related issues.”
On April 29, 2016, PUSD sent Mikhail a letter informing
him that “due to lack of work or lack of funds,” PUSD, through an
action by its board, was eliminating the position of Food Services
Coordinator, effective June 30, 2016. Along with the letter,
PUSD enclosed a form for Mikhail to complete, indicating either
his acceptance of the layoff or his election “to bump into an
assignment in a different office/at a different work site, with no
reduction in time, if available, based on [his] seniority.” On May
9, 2016, Mikhail completed and signed the form, indicating his
election of the latter option.
In the summer of 2016, after Mikhail’s last day of
employment with PUSD, Mikhail applied for another position
within PUSD’s Food Services Department, Food Services
Assistant, but his application was “disqualified” for failure to
2
meet requirements, as explained in more detail below during our
discussion of evidence submitted in connection with PUSD’s
motion for summary judgment.
On September 15, 2016, Mikhail filed a complaint against
PUSD with the California Department of Fair Employment and
Housing (DFEH), alleging PUSD engaged in the wrongful
conduct summarized below.
II. Mikhail’s DFEH Complaint Against PUSD
Under the Fair Employment and Housing Act (FEHA) as
written in 2016, to pursue the present action, Mikhail was
required to file an administrative complaint with DFEH within
one year from the date on which PUSD’s alleged unlawful
conduct occurred. (Former Gov. Code, § 12960, subd. (d).)
Mikhail’s September 15, 2016 complaint to DFEH alleges PUSD’s
conduct dating back to 2012.1
Mikhail alleged in his complaint to DFEH that in October
2012, he twisted and injured his knee during his employment
with PUSD. He requested reasonable accommodations, including
a disabled parking spot, which he never received, and he
complained about the nature of his assignments due to his knee
injury, but PUSD failed to engage in a good faith interactive
process with him. He had knee surgery and when he returned to
work, his supervisors ignored the work restrictions his doctors
1 We discuss below in the Discussion section of this opinion
the exception to the one-year FEHA limitations period for filing
an administrative complaint known as the “continuing violation
doctrine,” under which an “employer is liable for acts falling
outside the limitations period when the acts are part of a
continuing violation of the employee’s FEHA rights.” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 371-372
(Nealy).)
3
prescribed and required him to perform tasks prohibited by the
restrictions.2 “Thereafter, PUSD failed to promote him” and
required him to “perform managerial duties” for which he was
not compensated, despite his several complaints about the lack of
compensation and additional duties.
Mikhail also alleged in his complaint to DFEH that in or
about April 2013, he told his supervisor that he planned to apply
for the Operations Supervisor position in PUSD’s Food Services
Department. His supervisor responded, “ ‘The District will hire a
Latino person for that position.’ ”3 Mikhail sent an email to
management, complaining about his supervisor’s comment, but
PUSD “did not investigate this incident and ratified [the]
conduct.” Mikhail applied to be Operations Supervisor and,
according to his DFEH complaint, he “was ranked Number 2 for
this position.”4 PUSD hired someone from outside the district to
be Operations Supervisor.5
2 Although Mikhail did not include in his DFEH complaint
the dates of his knee surgery and his return to work thereafter,
his declaration in opposition to PUSD’s motion for summary
judgment states that he had knee surgery in December 2014 and
returned to work in May 2015.
3 Although Mikhail alleged discrimination based on
national origin/race in his complaint to DFEH, he did not include
any information about his national origin/race in that complaint.
In his declaration in opposition to PUSD’s motion for summary
judgment, he stated he is “of Egyptian nationality.”
4 Evidence Mikhail submitted in opposition to the summary
judgment motion showed that when he took the promotional
examination for Operations Supervisor in or about spring 2012,
he placed “in Rank 2 of candidates on the Promotional Eligibility
List for employment consideration in this class.” His eligibility
4
Mikhail further alleged in his complaint to DFEH that on
or about August 14, 2015, during a “Non-Discrimination Seminar
provided to employees of the Food Services Department,” he was
harassed and discriminated against because of his race when his
supervisor “ridiculed” him “for his accent” in front of other
employees. He did not describe his supervisor’s comment in his
DFEH complaint. He filed a complaint about the incident with
PUSD’s human resources department, but PUSD did not
investigate; instead, it “ratified and condoned the unlawful
conduct.”
Finally, Mikhail alleged in his complaint to DFEH that on
May 31, 2016 (a month after PUSD notified him in writing that
his position was being eliminated effective June 30, 2016, as set
forth above), he “suffered severe injuries to his left arm when
delivering boxes of fruit to an elementary school within the
district.” After he went to the doctor due to his injuries, PUSD
“failed to engage in the mandatory good-faith interactive process
to determine the nature and extent of [his] injuries, and failed to
provide reasonable accommodations. Instead, PUSD terminated
him six (6) days after his workplace injury under the pretext that
for the Operations Supervisor classification, in Rank 2, based on
the 2012 examination, was still in effect when he applied for that
position in or around April 2013.
5 In support of its summary judgment motion, PUSD
presented excerpts from Mikhail’s deposition at which Mikhail
testified that the person hired as Operations Supervisor was a
Ugandan (not Latina) woman, who had prior management
experience in food services.
5
[it] had decided to eliminate his position.”6 PUSD thereafter
“failed to reinstate him as a Food Services Assistant, a demoted
position.” Mikhail alleged PUSD’s termination of his
employment in spring of 2016 was not only due to his arm
injuries but also in “direct retaliation to” the other “complaints
and requests for accommodations” described in his DFEH
complaint, dating back to his knee injury in the fall of 2012.
On September 15, 2016, the same day Mikhail filed his
DFEH complaint, DFEH issued a right-to-sue notice on the
complaint, explaining that “an immediate Right to Sue notice was
requested.”
III. Mikhail’s Complaint Against PUSD in the Present
Action
After filing a tort claim with PUSD, Mikhail filed the
present action against PUSD on July 24, 2017. The complaint
also named individual defendants, who are not parties to this
appeal because they were not parties to the summary judgment
motion, including Mikhail’s supervisors, Darren Hughes and Erin
Dreyer. Mikhail asserts 11 causes of action in his complaint in
this action.
The first five causes of action in the complaint allege
violations of Mikhail’s FEHA rights based on disability status:
harassment, discrimination, retaliation, failure to engage in the
interactive process, and failure to accommodate. These five
causes of actions arise from the October 16, 2012 knee injury and
the May 31, 2016 arm (shoulder) injury, and repeat the alleged
6 We reiterate that PUSD notified Mikhail in writing a
month before he sustained the injuries to his arm that his
position was being eliminated effective June 30, 2016, due to
“lack of work or lack of funds.”
6
conduct of PUSD set forth in Mikhail’s DFEH complaint, as
summarized above. Mikhail added allegations, including: (1)
that one of his supervisors “call[ed] into question the veracity of”
his knee injury, when the supervisor indicated in an email to him
that there had been too many injuries in the Food Services
Department and 80 percent of them “were being investigated”;
(2) that PUSD harassed, discriminated, and retaliated against
him due to his knee injury by denying his request to work for the
2015 summer school session; and (3) that supervisor Hughes
harassed and belittled him by responding, “really,” when he
informed Hughes that his left eye was burning and he needed to
see a doctor on April 29, 2016. He alleges he required surgery on
his left eye in August 2016.7 He also alleges his termination in
June 2016, based on his disability status, “was masked as an
‘elimination of a position,’ ” but the reason was pretextual, as “the
other Food Services Coordinator . . . was bumped into another
position immediately”; and “PUSD cloaked the refusal to rehire
[him as a Food Services Assistant] by alleging [he] was not
eligible for the position because he lacked a bachelor’s degree,”
which was not a requirement for the position. Mikhail asserts
PUSD’s “disability harassment . . . caused him stress, anxiety,
and depression.”
The sixth through eighth causes of action in the complaint
allege violations of Mikhail’s FEHA rights based on his
race/national origin: harassment, discrimination, and retaliation.
These three causes of action arise from the conduct of PUSD set
forth in Mikhail’s DFEH complaint, as summarized above: (1)
that PUSD failed to hire him for the Operations Supervisor
7There is no evidence in the record indicating the eye
injury was work-related.
7
position in April 2013 “because of his Egyptian race/national
origin,” as a supervisor informed him, “The District will only hire
a Latino person for that position”;8 (2) that supervisor Dreyer
“mocked and ridiculed” him on August 15, 2015, “when she
belittled and humiliated [him] for his accent and height in front
of a large group of people [at a] meeting”;9 and (3) that PUSD did
nothing when he complained about these incidents. He asserts
his termination in June 2016, and PUSD’s refusal to rehire him
as a Food Services Assistant (while it rehired the other Food
Services Coordinator), were based on his race/national origin and
his complaints about disparate treatment, and not the pretextual
reason of the elimination of the Food Services Coordinator
position, as stated by PUSD. He also asserts PUSD’s racial
harassment, discrimination and retaliation caused him “to suffer
severe emotional and mental distress.”
In his ninth cause of action, Mikhail asserts PUSD violated
his rights as a whistleblower under Labor Code section 1102.5.
He alleges he engaged in the following protected activities: (1) in
September 2011, he complained to his supervisor in an email
regarding a PUSD elementary school “failing to comply with meal
count procedures”; (2) on dates not disclosed, he complained to a
supervisor and others in emails regarding PUSD requiring him to
perform supervisory and overtime work without supervisory and
overtime compensation, and he requested “a classification study
of his position as Food Services Coordinator”; (3) in August 2012,
8As set forth above, Mikhail acknowledged during his
deposition that PUSD hired a Ugandan (not a Latina) woman for
the position of Operations Supervisor.
9In opposition to the summary judgment motion, Mikhail
stated Dreyer commented that he was short, as described below.
8
he complained to a supervisor in an email about “contaminated
water” at a district high school, which the food services staff used
to prepare food; (4) in June 2013, he complained to a supervisor
in an email, and to the California Department of Education
(CDE) in a written complaint, that the other Food Services
Coordinator was forging the signature of the director of a child
care center by cutting and pasting the signature onto reports; (5)
in December 2013, he complained to a supervisor in an email
regarding PUSD serving spoiled chicken to students; (6) in
November 2014, he challenged the interview process after he
applied for Food Services Operations Supervisor in October 2014
and was not chosen for the position; (7) in October 2015, he filed
a formal complaint with PUSD human resources about
supervisor Dreyer mocking and ridiculing him “for his accent and
height in front of a large group of people meeting for an annual
discrimination course”; and (8) in or about February 2016, he
complained to supervisor Hughes that PUSD was falsifying meal
claims for its Supper Program because students were taking the
meals and then throwing them away unopened because they
disliked the food; and in April 2016, he mailed a written
complaint about this issue to CDE, resulting in a public audit and
report.
Mikhail asserts PUSD retaliated against him for engaging
in the above-referenced protected whistleblowing activities in the
following ways: (1) in 2013, his “supervisor emailed him and
provided him with several additional duties, adding to his
workload and setting him up for failure”; (2) PUSD denied him a
disabled parking spot and ignored his work restrictions after he
returned from knee surgery in spring 2015; (3) he was passed
over for the Food Services Operations Supervisor position in
9
spring 2013, despite his rank on the examination, and PUSD
hired an external candidate; (4) when he again applied for the
Operations Supervisor position in fall 2014, PUSD hired Hughes
and Dreyer from outside the district; (5) after PUSD eliminated
his position of Food Services Coordinator, PUSD did not contact
him to place him in another position, but PUSD immediately
bumped the other Food Services Coordinator into another
position; (6) PUSD used a pretextual reason—elimination of the
Food Services Coordinator position—to terminate his
employment; (7) PUSD refused to place him in the Food Services
Assistant position—a position below his previous position of Food
Services Coordinator—after his termination; and (8) when a Food
Services Coordinator position “was brought back a few months
later,” PUSD failed to reinstate him or contact him to return to
his position.
In his tenth cause of action, Mikhail asserts PUSD
subjected him to discriminatory and retaliatory adverse
employment practices, in violation of the California Family
Rights Act (CFRA), Government Code section 12945.2, because
he took protected leave under CFRA between December 2014 and
April 2015 due to his knee injury. He alleges PUSD failed to
engage in a good faith interactive process with him and failed to
accommodate him, denied his request to work during summer
2015, terminated his employment in June 2016, and refused to
rehire him, because he took protected leave under CFRA for his
knee injury.
In his eleventh cause of action, Mikhail asserts PUSD
retaliated against him, in violation of Labor Code section 923,
because he exercised his right to use a union representative in
July 2013 and October 2013 “in an attempt to discuss the
10
conditions of his employment and unfair discriminatory conduct
by Defendant PUSD in anticipation of filing a grievance”; and, in
December 2014 and March 2015, he retained an attorney to
prepare and file an Unfair Practice Charge and an Amended
Unfair Practice Charge against PUSD with the Public
Employment Relations Board. He alleges PUSD’s retaliation
included denial of promotion to Operations Supervisor in fall
2014, denial of his request to work during summer 2015, his
termination in June 2016, and PUSD’s refusal to rehire him.
IV. Motion for Summary Judgment
A. PUSD’s Moving papers
In its motion for summary judgment/adjudication, PUSD
argued all Mikhail’s causes of action fail as a matter of law
because: (1) PUSD’s conduct occurring before September 15,
2015—one year before Mikhail filed his DFEH complaint—is
outside the limitations period for exhausting his administrative
remedies, and the continuing violation doctrine does not apply to
hold PUSD liable for the pre-September 15, 2015 conduct because
the various incidents were not similar and frequent; (2) PUSD
articulated a legitimate business reason for the elimination of
Mikhail’s position—budget cuts; (3) Mikhail was not disabled
when PUSD notified him of the elimination on his position; (4)
PUSD accommodated Mikhail’s eye injury by providing the time
off he requested—the only injury that occurred after September
15, 2015 and before notice of the elimination of his position; (5)
the majority of the alleged whistleblower disclosures occurred
outside the applicable statute of limitations for violations of
Labor Code section 1102.5, and any disclosures made within the
limitations period do not constitute protected activity; (6) Mikhail
was never denied any requested CFRA leave; and (7) Mikhail was
11
never denied union representation, and there is no evidence he
was laid off for exercising his collective bargaining rights.
In support of its motion for summary
judgment/adjudication, PUSD submitted a declaration from Food
Services Operations Supervisor Darren Hughes, one of Mikhail’s
direct supervisors. Hughes stated in his declaration that due to
the hiring of two Food Services Operations Supervisors in 2015
(him and Dreyer) and budget cuts, PUSD decided to eliminate the
Food Services Coordinator positions in 2016. According to
Hughes, Mikhail had 17 years of employment with PUSD, and
the other Coordinator had 20 years. At the same time the
Coordinators were laid off, a program technician and three cooks
in the Food Services Department were also laid off. Hughes
stated he verbally notified Mikhail and the other Coordinator
about the elimination of their positions on March 28, 2016.10
Thereafter, PUSD sent Mikhail a formal, written notice on April
29, 2016, informing him that the Food Services Coordinator
position would be eliminated effective June 30, 2016, “due to lack
of work or lack of funds,” as discussed above. Hughes attached to
his declaration the April 29, 2016 notice and Mikhail’s May 9,
2016 written election to be bumped into another assignment, if
available, based on his seniority.
Hughes also attached to his declaration text messages he
and Mikhail exchanged on April 29, 2016, regarding Mikhail’s
eye injury. At around 6:00 a.m. on that date, Mikhail texted
Hughes, stating his left eye was burning; he was planning to go
to the doctor to get it checked; he hoped to be done by 10:00 a.m.;
10In his declaration in opposition to the summary judgment
motion, Mikhail stated he did not recall this verbal notification
regarding the elimination of his position.
12
and if so, he would go to work. Hughes replied, “Really?”
Mikhail responded that “it happen[ed] two weeks ago,” and he
was “afraid it [was a] cataract.” Later, Mikhail texted Hughes
again, stating that the doctor would see him by 1:30 p.m., he
would update Hughes after the appointment, and bring him a
doctor’s note. Hughes replied: “No update needed. Just feel
better and return to work when you [the rest of the text message
is cut off].” Hughes stated in his declaration that he told Mikhail
in the text message to return to work when he felt better. He
never “took issue” with or denied Mikhail’s request for time off.
According to Hughes’s declaration, on May 30, 2016,
another employee notified him that Mikhail injured his left
shoulder. Mikhail took time off from work to see a doctor.
Hughes never took issue with or denied Mikhail’s request for
time off due to the shoulder injury. On June 1, 2016, Hughes
texted Mikhail to let him know that he had received the work
keys Mikhail had turned in to PUSD and to request that Mikhail
turn in his work phone by June 2, 2016. On June 2, 2016,
Mikhail texted Hughes to let him know that the doctor said
Mikhail could return to work with the restriction that he not use
his left arm. Mikhail asked Hughes in the text message if
Hughes wanted him to come to work. Hughes responded:
“Negative. Please drop it [the work phone] off at Ed Center when
you are physically able to. Thank you.” Hughes attached these
text messages to his declaration and explained in the declaration:
“Given that the school year had finished and he had already
turned in his keys, I told him [Mikhail] it was not necessary and
he could turn in his work phone when he was physically able to
do so as his last day of work was June 30, 2016.”
13
Hughes also stated in his declaration that Mikhail, the
other Food Services Coordinator, and the other Food Services
Department employees who were laid off were placed on a 39-
month rehire list pursuant to their collective bargaining
agreement. In or about August 2016, with the expansion of the
Childhood Adult Care Food Program from seven schools to 20
schools, enough revenue was generated to pay for an additional
Food Services Assistant position. Pursuant to the collective
bargaining agreement, the other Food Services Coordinator,
whose position was eliminated at the same time as Mikhail’s, was
selected to fill the Food Services Assistant position because she
had more seniority with PUSD than Mikhail (20 years vs. 17
years), and she had previously worked as a Food Services
Assistant for 10 years. According to Hughes, “Mikhail had never
held the position of Food Services Assistant.”
Hughes further stated in his declaration: “In late 2016,
[PUSD] had an opening for a Food Services Manager II position.
Mr. Mikhail was not only notified of the position, but he was
selected as the most qualified candidate and offered the job on or
about October/November 2016. Mr. Mikhail did not take the
position because he had a pending workers’ compensation matter
and acceptance of the position required a full physical
examination.”11
PUSD submitted other exhibits in support of its motion for
summary judgment/adjudication, including: (1) the April 21,
2015 notice of dismissal by the Public Employment Relations
Board of the Unfair Practice Charge and Amended Unfair
11Mikhail did not reference his application for the Food
Services Manager II position in his complaint in the present
action.
14
Practice Charge Mikhail referenced in his complaint in this
action, because Mikhail failed to state a prima facie case;12 (2)
Mikhail’s May 31, 2016 report of occupational injury, instituting
a workers’ compensation claim regarding his shoulder injury; and
(3) the portion of Mikhail’s collective bargaining agreement,
stating in pertinent part, “Layoff shall occur for lack of work or
lack of funds.”
B. Mikhail’s opposition
In support of his opposition to PUSD’s motion for summary
judgment/adjudication, Mikhail submitted his own declaration.
Therein, he included additional information and details that were
not set forth in his DFEH complaint or in his complaint in this
action.13 He stated that when he requested summer work
assignments in 2003, 2006, 2007, 2009, 2012, 2013, and 2014,
PUSD approved the assignments. Prior to his knee injury, the
only time he was a denied a summer work assignment was in
2002. That year, the denial letter stated that his name would be
placed on the substitute list for a summer work assignment. On
May 14, 2015, a few days before he returned to work after his
knee surgery, he received a letter stating he was denied a
summer work assignment for 2015 “[b]ecause of the large number
of applications for Summer School work and because of the
limited number of positions budgeted.” Unlike the denial letter
12 In the charge, Mikhail alleged that, because he belonged
to a union, PUSD discriminated against him and failed to take
any action regarding his grievance that he was working outside
his classification.
13We do not set forth here the statements in Mikhail’s
declaration that are duplicative of the allegations in his
complaint in this action, as summarized above.
15
in 2002, this letter did not state he would be placed on the
substitute list for a summer work assignment. Shortly after his
April 29, 2016 eye injury, he applied for a summer work
assignment for 2016. He received a denial letter with the same
language as that in the 2015 denial letter (again not stating he
would be placed on the substitute list for a summer work
assignment).14 Mikhail attached to his declaration the
acceptance and denial letters for summer work assignments.
In his declaration, Mikhail described supervisor Dreyer’s
August 14, 2015 comment at the discrimination training when
she “mocked and ridiculed [him] due to [his] race and ethnicity”:
“During that meeting, Erin Dreyer requested that people list
traits or characteristics that were protected and subject to
discrimination laws. I raised [my] hand and stated ‘accents,’ as I
had been previously taunted by certain employees regarding my
accent. In response, Erin Dreyer said, ‘and you’re short too,’
referring to my 5’0” height, causing the remainder of the
employees to laugh at me.” He received “a notice that [his]
position was being eliminated, and that [he] was being laid off,
less than six months” after he filed a written complaint with
human resources regarding Dreyer’s comment.
Mikhail further indicated in his declaration that after he
complained to the interim director of the Food Services
Department in December 2013 regarding spoiled chicken being
served in a PUSD school cafeteria, the same interim director
interviewed him in or about October 2014 for the Food Services
Operations Supervisor position and “determined that [he] had
14In his opposition to the summary judgment motion,
Mikhail indicates PUSD denied him a summer work assignment
in 2016 because of the knee injury rather than the eye injury.
16
completely failed [his] oral interview and was not qualified for
the job.” However, when he had interviewed for the same
position two and a half years earlier, he passed the examination
in Rank 2.
Mikhail attached to his declaration documents indicating
he had worked as a Food Services Assistant during summer
assignments in 2006 and 2007. He also attached to his
declaration the August 26, 2016 email informing him that his
post-layoff application for Food Services Assistant “was
disqualified, as it did not clearly reflect that [he] met one or more
of the following requirements: “Experience required for the
position”; “Education required for the position”; “Special License
required for the position”; “Missing required attachments”; and
“Other (e.g. incomplete application).” The email informed
Mikhail he could appeal the disqualification to the Director of the
Personnel Commission within seven days. Regarding the
disqualification, Mikhail stated in his declaration: “When I
inquired further, I was informed that my application was denied
because I had not submitted a valid high school diploma, even
though I had in fact submitted a translated version of my
Egyptian High School Diploma, which was equivalent to an
American high school diploma. This same Egyptian High School
Diploma had previously been accepted when I was hired for the
Coordinator position in 2001, and again when I qualified (but was
not selected) for the Supervisor position in 2012.”15 Mikhail did
not state in his declaration that he submitted an appeal of his
15In his complaint in this action, Mikhail asserted he was
denied the Food Services Assistant position because he did not
have a bachelor’s degree (not a high school diploma).
17
disqualification, and there is no evidence in the record indicating
that he did.
Responding to statements in supervisor Hughes’s
declaration in support of PUSD’s motion for summary judgment
that PUSD offered Mikhail the position of Food Services Manager
II in fall 2016—a position Mikhail did not mention in his
complaint in this action—Mikhail stated in his declaration: “I
was never offered the position and never received a follow up.
Had I been offered the position, I would have happily accepted it.”
Mikhail attached to his declaration documents demonstrating he
applied for the Food Services Manager II position in August 2016,
after his layoff, and was invited to participate in the oral
examination for the position in October 2016. He maintains he
received no response from PUSD after the oral examination.
With his opposition to the summary judgment motion,
Mikhail submitted PUSD documents indicating that the five
other Food Services Department employees who were laid off
with him—the other Food Services Coordinator, the program
technician, and the three cooks—all found other work
assignments at PUSD. On November 1, 2016, a PUSD employee
texted Mikhail, informing him that on that date, the other Food
Services Coordinator whose position was eliminated along with
Mikhail’s was reinstated as Food Services Coordinator (after
serving as Food Services Assistant since the Coordinator
positions were eliminated). Mikhail attached the text messages
to his declaration.
In his opposition to PUSD’s motion for summary
judgment/adjudication, Mikhail argued, among other things: (1)
the continuing violation doctrine applies to PUSD’s conduct
outside the one-year limitations period for filing a complaint with
18
DFEH (pre-September 15, 2016 conduct) because the evidence
shows “continuous instances of discrimination, harassment, and
retaliation, both before and after September 15, 2015” that were
“similar in kind and occurred with sufficient frequency to
constitute a continuous and temporally related course of
conduct”; (2) PUSD’s stated reason for laying off Mikhail—budget
cuts—was pretextual because all other Food Service Department
personnel who were laid off with Mikhail were bumped into other
positions within PUSD, but he was not rehired due to disability
and racial discrimination and as retaliation for his protected
whistleblower disclosures, his exercise of his right to CFRA leave,
and his use of union representatives; and (3) the whistleblower
disclosures he made within the statute of limitations period
constitute protected activity because he believed he was reporting
violations of law. Mikhail also stated, “[t]o the extent the court
finds that certain allegations are not adequately pled in the
complaint, [he] seeks leave to file a first amended complaint.”16
C. Trial court’s ruling and judgment
There was no court reporter at the hearing on PUSD’s
motion for summary judgment/adjudication. Mikhail requested
and the trial court issued a settled statement, providing: “1. The
Court found that all of Plaintiff’s claims were barred by the
statute of limitations and the continuing violation doctrine did
not apply because no wrongful conduct occurred within one year
of September 15, 2016, when Plaintiff filed his DFEH charges;
[and] 2. As to the denial of Plaintiff’s application for the Food
Services Assistant Position on August 26, 2016 and Manager II
16Mikhail and PUSD filed evidentiary objections. The trial
court did not rule on the objections, and the parties do not
address the objections on appeal.
19
position on or about November 1, 2016, the Court found that
Plaintiff had not presented evidence that Plaintiff was in a
protected class (disabled) during that time period.”17
On April 3, 2019, the trial court issued an order granting
PUSD’s motion for summary judgment, finding no triable issues
of material fact as to any of Mikhail’s causes of action, and
concluding PUSD is entitled to judgment as a matter of law. The
same day, the trial court entered judgment in favor of PUSD and
against Mikhail.
DISCUSSION
I. Standard of Review
A trial court should grant summary judgment “if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) To
prevail on a motion for summary judgment in an action brought
under FEHA, Government Code section 12900 et seq., a
defendant employer initially has the burden to show “either that
(1) plaintiff could not establish one of the elements of the FEHA
claim, or (2) there was a legitimate, nondiscriminatory reason for
its decision to terminate plaintiff’s employment [or take some
other adverse employment action].” (Avila v. Continental
Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.) The trial court
must “decide if the plaintiff has met his or her burden of
17Notwithstanding our de novo standard of review, we set
forth the trial court’s reasons for granting the summary judgment
motion because Mikhail argues on appeal that the trial court
improperly granted summary judgment on an issue not raised in
the motion—his disability status at the time PUSD declined to
rehire him—without giving him an opportunity to respond.
20
establishing a prima facie case of unlawful discrimination. If the
employer presents admissible evidence either that one or more of
plaintiff’s prima facie elements is lacking, or that the adverse
employment action was based on legitimate, nondiscriminatory
factors, the employer will be entitled to summary judgment
unless the plaintiff produces admissible evidence which raises a
triable issue of fact material to the defendant’s showing.”
(Caldwell v. Paramount Unified School Dist. (1995) 41
Cal.App.4th 189, 203; see Hicks v. KNTV Television, Inc. (2008)
160 Cal.App.4th 994, 1003.) A triable issue of material fact exists
where “the evidence would allow a reasonable trier of fact to find
the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
On appeal, we independently make the same
determination. “ ‘In determining whether these burdens were
met, we must view the evidence in the light most favorable to
plaintiff, as the nonmoving party, liberally construing [his]
evidence while strictly scrutinizing defendants.’ ” (Scotch v. Art
Institute of California (2009) 173 Cal.App.4th 986, 1005.) “We
review the trial court’s decision de novo, considering all the
evidence set forth in the moving and opposition papers except
that to which objections were made and sustained.” (Johnson v.
City of Loma Linda (2000) 24 Cal.4th 61, 65-66.)18
In his complaint in the present action, Mikhail alleges
PUSD terminated his employment and failed to rehire him as a
Food Services Assistant because he was disabled, because of his
18 As set forth above, the trial court did not rule on the
parties’ evidentiary objections, and the parties do not address the
evidentiary objections on appeal.
21
race/national origin, and as retaliation for his whistleblower
disclosures, his exercise of his right to take CFRA leave, and his
engagement of a union representative and an attorney to
complain about PUSD’s conduct.
We conclude PUSD satisfied its burden on summary
judgment of showing Mikhail cannot prevail on any of his causes
of action because he was laid off when his position was
eliminated due to budget cuts; he was not rehired as a Food
Services Assistant because he had less seniority than the person
who was hired for that position, and he did not demonstrate he
satisfied the requirements for the position; and other conduct he
alleged fell outside the limitations period for his administrative
complaint to DFEH.
“[A]n employer is entitled to summary judgment if,
considering the employer’s innocent explanation for its actions,
the evidence as a whole is insufficient to permit a rational
inference that the employer’s actual motive was discriminatory.”
(Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.) “ ‘The
[employee] cannot simply show that the employer’s decision was
wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.’ ” (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
A showing of “general unfairness” by the employer will not defeat
the employer’s summary judgment motion. (Ibid.) The employee
must show discrimination. “An employee’s ‘subjective beliefs in
an employment discrimination case do not create a genuine issue
of fact; nor do uncorroborated and self-serving declarations.’ ”
(Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th
444, 456.)
22
For the reasons explained below, we conclude Mikhail has
not shown a triable issue of material fact as to any of his causes
of action, and PUSD is entitled to summary judgment as a matter
of law.
II. The Causes of Action Based on Mikhail’s Disability
Status—the First Through Fifth Causes of Action
A. Knee injury
Mikhail’s allegations regarding PUSD’s wrongful conduct
in response to his knee injury fall outside the limitations period
for his DFEH complaint. He filed the DFEH complaint on
September 15, 2016, so any conduct before September 15, 2015 is
outside the limitations period. (Former Gov. Code, § 12960, subd.
(d).) He injured his knee in October 2012, had his knee surgery
in December 2014, and returned to work in April or May 2015.
He presented no evidence indicating he had any lingering
workplace issues associated with his knee injury on or after
September 15, 2015.
The continuing violation doctrine does not apply here. An
“employer’s acts constitute a continuing violation when they ‘(1)
[are] sufficiently similar in kind—recognizing . . . that similar
kinds of unlawful employer conduct, such as acts of harassment
or failures to reasonably accommodate disability, may take a
number of different forms [citation]; (2) have occurred with
reasonable frequency; (3) and have not acquired a degree of
permanence.’ [Citation.] ‘ “[P]ermanence” in the context of an
ongoing process of accommodation of disability, or ongoing
disability harassment, should properly be understood to mean the
following: that an employer’s statements and actions make clear
to a reasonable employee that any further efforts at informal
conciliation to obtain a reasonable accommodation or end
23
harassment will be futile.’ ” (Nealy, supra, 234 Cal.App.4th at p.
372.)
Mikhail presented no evidence indicating he was still
seeking or needed accommodations for his knee injury on or after
September 15, 2015. Moreover, he does not allege, nor has he
presented evidence, that PUSD’s conduct after his eye and
shoulder injuries was similar to that after his knee injury. After
the eye and shoulder injuries, PUSD did not deny any requested
accommodations or require Mikhail to perform tasks inconsistent
with his limitations.
B. Eye injury
On April 29, 2016, after PUSD had made the decision to
eliminate Mikhail’s position, Mikhail informed supervisor
Hughes that he needed to go to the doctor for a burning sensation
in his eye that he believed was caused by a cataract. Hughes
allowed him to take the day off. There is no evidence indicating
Mikhail further discussed the eye issue with, or requested any
other accommodation from, any supervisor at PUSD. That
Hughes may have expressed skepticism—if that is indeed what it
was—when Mikhail first texted him about the eye issue
(responding, “Really?”), does not show a triable issue of material
fact that PUSD took any adverse employment action against
Mikhail because he missed one day of work (with permission) due
to the eye issue. Mikhail has not demonstrated a connection
between the eye injury and any adverse employment action
(including the denial of a summer assignment position for 2016).
C. Shoulder injury
Mikhail injured his shoulder at work on or about May 31,
2016, a month after PUSD sent him written notice that his
position was being eliminated. When Mikhail notified supervisor
24
Hughes on June 2, 2016 that he could return to work, but he
could not use his left arm, the school year was already over,
Mikhail had already turned in his work keys, he had not been
hired to work a summer assignment (before his shoulder injury),
and the elimination of his position was effective June 30, 2016.
Given these factors, Hughes’s decision not to have Mikhail return
to work does not show discriminatory or retaliatory intent.19
Similarly, there is no evidence indicating PUSD refused to
rehire Mikhail as a Food Services Assistant because he had a
shoulder injury. As set forth in Hughes’s declaration in support
of PUSD’s summary judgment motion, the other Food Services
Coordinator whose position was eliminated at the same time as
Mikhail’s had seniority over Mikhail and had previously worked
as a Food Services Assistant for 10 years. Mikhail had worked at
PUSD fewer years than the other Coordinator and had only
worked as a Food Services Assistant during two, brief summer
assignments. Moreover, the evidence shows Mikhail’s application
for Food Services Assistant was disqualified for failure to show he
met the requirements, and there is no evidence indicating
Mikhail appealed the disqualification or corrected the
deficiencies.
Mikhail did not reference his post-layoff application for
Food Services Manager II in his complaint in the present action.
PUSD raised the issue in its motion for summary judgment and
stated (in Hughes’s declaration) it had offered Mikhail the
Manager II position, in support of its argument it had not
discriminated or retaliated against Mikhail due to his shoulder
injury. Mikhail presented evidence demonstrating he applied for
Mikhail does not allege he did not receive his pay
19
between May 31 and June 30, 2016.
25
the Manager II position, and he was selected for the oral
examination for the position. He maintains, however, that he
never heard back from PUSD after the oral examination. He
presented no evidence indicating he contacted PUSD to inquire
further about the position. Even assuming PUSD rejected him
for the position, there is no evidence connecting such rejection
with his shoulder injury. For example, there is no evidence of
any discussion between himself and PUSD regarding any job
performance limitations or accommodations he might have
needed in the Manager II position due to his shoulder injury.20
For the foregoing reasons, Mikhail has not shown a triable
issue of material fact that PUSD took any adverse employment
action against him because he had a disability.
III. The Causes of Action Based on Mikhail’s
Race/National Origin—the Sixth Through Eighth
Causes of Action
Mikhail agues supervisor Dreyer’s comment about him at
the August 14, 2015 discrimination training is within the
limitations period for his DFEH complaint (conduct occurring on
or after September 15, 2015) because the period was tolled while
he pursued his internal complaint with PUSD, which he filed on
October 22, 2015. Assuming Mikhail is correct, without reaching
20 We need not address Mikhail’s contention the trial court
erred in deciding the summary judgment motion on an issue not
raised in PUSD’s motion—that Mikhail was not disabled at the
time PUSD declined to rehire him after the layoff. We assume
for purposes of our analysis that Mikhail was disabled at that
time due to his shoulder injury. But we conclude Mikhail has not
raised a triable issue of material fact showing a connection
between Mikhail’s disability and PUSD’s decision not to rehire
him.
26
the issue, his sixth through eighth causes of action fail as a
matter of law because there is no evidence PUSD took any
adverse employment action against him because of his
race/national origin.
Mikhail asserts that when Dreyer asked the group to list
traits or characteristics that are protected and subject to
discrimination laws, he [Mikhail] listed “accents” as such a trait
or characteristic. According to Mikhail, Dreyer responded, “ ‘and
you’re short too.’ ” The other employees laughed at Mikhail.
Based on Mikhail’s account, Dreyer did not reference Mikhail’s
accent; she referenced his height, which is not a protected
category. Even assuming Dreyer referenced Mikhail’s accent (in
addition to his being short), there is no evidence indicating a
connection between this one comment and any adverse
employment action based on race/national origin.
Mikhail references one other comment about race/national
origin, made by a different supervisor (not Dreyer or Hughes) in
April 2013, outside the limitations period for Mikhail’s DFEH
complaint. According to Mikhail, he expressed interest in
applying for the Food Services Operations Supervisor position,
and his supervisor responded, PUSD “will only hire a Latino
person for that position.” We will not apply the continuing
violation doctrine as an exception to the limitations period where
these two unrelated comments, one in April 2013, and one in
August 2015, are the only allegations that relate in any way to
race/national origin. As set forth above, this doctrine applies to
similar and reasonably frequent conduct. (Nealy, supra, 234
Cal.App.4th at p. 372.) In any event, the evidence does not show
Mikhail was not selected for the Operations Supervisor position
because he is not Latino, as he indicates in his declaration.
27
PUSD selected a Ugandan (not a Latina) woman with prior
management experience for the position.
Mikhail has not shown a triable issue of material fact that
PUSD took any adverse employment action against him because
of his race/national origin.
IV. Ninth Cause of Action for Whistleblower Violations
“Labor Code section 1102.5, subdivision (b), prohibits an
employer from retaliating against an employee for disclosing
information to a government or law enforcement agency, where
the employee has reasonable cause to believe that the
information discloses a statutory or regulatory violation. The
purpose of this statute is to ‘ “encourag[e] workplace whistle-
blowers to report unlawful acts without fearing retaliation.” ’ ”
(Hansen v. California Dept. of Corrections and Rehabilitation
(2008) 171 Cal.App.4th 1537, 1545-1546.) “To establish a prima
facie case for whistleblower liability, a plaintiff must show that
he or she was subjected to adverse employment action after
engaging in protected activity and that there was a causal
connection between the two.” (Id. at p. 1546.)
On appeal, Mikhail only advances two of the numerous
alleged disclosures he referenced in his complaint as being
actionable under Labor Code section 1102.5: (1) his October 22,
2015 written complaint about Dreyer’s August 14, 2015 comment
at the discrimination training; and (2) his April 2016 written
disclosure to CDE insinuating that PUSD was falsifying meal
claims for its Supper Program because students were taking the
meals and then throwing them away unopened because they
disliked the food.
Mikhail has presented no evidence tending to show a
causal connection between either of these two disclosures and
28
any adverse employment action. His opposition papers and
declaration are replete with bald assertions that PUSD took
adverse employment actions against him because he made
various disclosures of an unrelated nature (and also because he
had a disability, and because of his race/national origin, and
because he took CFRA leave, and because he engaged a union
representative to complain about PUSD’s conduct), but no
evidence supporting these assertions. Mikhail has not shown a
triable issue of material fact on his cause of action for
whistleblower violations.
V. Other Causes of Action
On appeal, Mikhail does not argue he has shown a triable
issue of material fact as to his tenth cause of action for CFRA
violations or his eleventh cause of action for violations of Labor
Code section 923. There is no evidence tending to show PUSD
took any adverse employment action against Mikhail because he
took CFRA leave or engaged a union representative or attorney to
complain about PUSD’s conduct. Mikhail has abandoned any
contention on appeal that he has shown a triable issue of
material fact on his tenth or eleventh causes of action.
For the reasons set forth above, Mikhail has not shown a
triable issue of material fact as to any of his causes of action, and
PUSD was entitled to judgment as a matter of law.
29
DISPOSITION
The judgment is affirmed. Respondent is entitled to
recover costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
30