Youssef v. County of Los Angeles CA2/5 ( 2023 )

Filed 5/11/23 Youssef v. County of Los Angeles CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
ERENI YOUSSEF, B315531
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC701973)
v.
COUNTY OF LOS ANGELES,1
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Law Offices of Gavril T. Gabriel and Gavril T. Gabriel for
Plaintiff and Appellant.
Hausman & Sosa, Jeffrey M. Hausman and Larry D.
Stratton for Defendant and Respondent.
1 Defendant
and Respondent County of Los Angeles was
erroneously sued as County of Los Angeles Probation
Department.
Plaintiff and appellant Ereni Youssef appeals from a
judgment following an order granting summary judgment in
favor of defendant and respondent County of Los Angeles
(County) in this action for employment discrimination under the
California Fair Employment and Housing Act (FEHA; Gov. Code,
§ 12900 et seq.).2 On appeal, Youssef contends triable issues of
material fact exist as to whether: (1) the continuing violation
doctrine applied to extend the statute of limitations; (2) she
suffered a hostile work environment based on her disability;
(3) she was discriminated against based on her disability; (4) she
suffered retaliation for complaints that she filed; (5) the County
failed to accommodate her disability; and (6) the County failed to
engage in the interactive process. We do not determine whether
the continuing violation doctrine applies, because even assuming
the doctrine applies, no triable issue of fact has been shown as to
any of Youssef’s claims, and therefore, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Work History Prior to Date of Disability
The County hired Youssef in 1989. She worked in various
departments and received several promotions. In January 2010,
she took a position as a management analyst, more commonly
referred to as a case manager, in the return-to-work unit of the
risk management section of the probation department. The unit
manages workers’ compensation claims and compliance activities
2All further references are to the Government Code unless
otherwise specified.
2
related to disability issues for the probation department, which
includes more than 20 area offices, courts, three juvenile halls,
and camps that serve the juvenile halls.
A case manager handles a caseload of workers’
compensation cases, evaluates work restrictions, engages in the
interactive process with employees, and works with employees to
allow them to return to work at the earliest point in time. Case
managers must have strong verbal and written communication
skills. One of essential job functions of a case manager is to
conduct interactive process meetings (IPM’s) with employees who
are disabled or have work restrictions. A second return-to-work
employee typically attends the IPM to take notes. Toyea Sims
had been working as a case manager in the unit for one or two
years when Youssef started her position.
Case managers are supervised by senior departmental
personnel technicians, but senior departmental personnel
technicians have their own caseloads. Case managers and senior
departmental personnel technicians are not assigned to the same
cases. They are assigned to locations, so they handle cases based
on the location where the injury occurred or the injured employee
worked. Some caseloads, such as Youssef’s, involved sedentary
office work, while others were field positions that were not
sedentary.
In November 2011, Cynthia Maluto transferred to the unit
to serve as the manager and became Youssef’s second-level
supervisor. Beginning in early 2012, Maluto asked Sims to act as
a senior department personnel technician by supervising Youssef,
even though they held the same title.
3
In 2012, Youssef experienced pain in her knees, shoulders,
and neck, which caused her to walk more slowly than most
employees.
In August 2012, Youssef and Sims passed an examination
required for promotion to the senior departmental personnel
technician position. They were placed in the same eligibility
band.
Youssef was assigned the caseload for Central Juvenile
Hall. In September 2012, Maluto required the three case
managers assigned to the three juvenile halls to work at the
juvenile hall locations. Youssef had to work at Central Juvenile
Hall, several miles from where she worked previously.
When Youssef requested overtime in September 2012,
Maluto required her to list the work that she performed during
each hour of overtime. After this incident, Youssef only
requested overtime a few times.
In November 2012, on the day before Youssef was
scheduled to take a two-week vacation, Maluto gave Youssef a
substantial assignment. Youssef cut her vacation short to
complete the project.
A. January 2013 Worker-Supervisor Conference
On January 10, 2013, Maluto, Sims, and Youssef
participated in a worker-supervisor conference. Maluto
presented a counseling memorandum to Youssef that described
several performance issues, including tasks that were overdue or
incomplete. Maluto required Youssef to draft a summary of
certain workers’ compensation cases within three weeks, in
addition to her regular work. Maluto also told her to produce
4
documents in a particular font size, which was harder for Youssef
to read.
Youssef refused to sign the counseling memorandum. In a
written response to Maluto and Sims, Youssef disputed several
issues raised during the conference. She noted that the probation
department had approximately 650 cases, which were divided
among seven employees. Youssef’s assignment, Central Juvenile
Hall, was the largest location with the most difficult cases.
Youssef’s caseload of 130 to 150 cases accounted for
approximately one-fourth of the overall cases. In July 2012, case
managers had also been given time-consuming additional
responsibilities because of the staff shortage in the unit. After
Maluto began managing the unit, seven employees transferred
out and only two staff members had been hired.
B. January 2013 Incident Report
On January 24, 2013, Maluto issued an incident report that
assigned responsibility to Youssef for delayed benefit payments to
an employee. In Youssef’s view, another employee was
responsible for the error that caused the payment delay.
Youssef took the workers’ compensation case summary
project home, working late without requesting overtime until the
project was completed.
Events After Date of Disability—February 19, 2013,
Outside of Limitations Period
On February 19, 2013, Youssef’s orthopedics doctor placed
her on medical leave and she began treatment for injuries to her
5
neck, shoulders, and knees due to repetitive motions. Minimal
work was completed on Youssef’s cases in her absence. She
returned to work on August 14, 2013. She filed a workers’
compensation case based on the February 2013 injury, which
Maluto and Sims knew about.
A. 2013 Performance Review
Maluto and Sims met with Youssef to deliver a
performance evaluation covering her work from June 2012 to
February 2013, prior to her medical leave. The evaluation stated
that Youssef had difficulty completing work on time. It
summarized the January 2013 worker-supervisor conference.
With respect to the quality of her work, the evaluation stated,
“Ms. Youssef’s work is usually submitted in a neat and legible
manner; however written documentation is difficult to
comprehend due to grammar and conjugation. Errors impair the
meaning and effectiveness of the process. Ms. Youssef has
struggled with written and oral expression. Ms. Youssef’s
inability to communicate well verbally has limited her
effectiveness in conducting IPM’s, which is an essential function
of a Case Manager. This inability has resulted in her supervisor
having to conduct the IPM[’]s, negating the supervisor’s ability to
supervise her unit. Ms. Youssef is rated Improvement Needed in
this area.” The evaluation listed several examples that occurred
during the evaluation period. The evaluation described the
January 2013 incident that caused an employee’s benefits to be
delayed, but rated her as competent in the area of work habits.
6
After three months, Youssef was placed on medical leave
again in November 2013. She was on medical leave throughout
2014, during which she had knee surgery and gained weight.
On January 7, 2014, while Youssef was on leave, her
attorney sent a letter to Maluto requesting revisions to the
performance evaluation. The attorney asserted that most of the
issues had been rebutted already in Youssef’s written response to
the January 2013 conference. Youssef admitted making a
grammatical error in one letter, but argued that she drafted
other letters based on samples provided by Sims. The attorney
added, “Finally to the extent that the unit is experiencing
problems, such problems are directly attributable to the loss of
employees. As a result of the continuous loss of employees, the
department has added responsibilities to the remaining
employees, including Ms. Youssef. Hence, and as a direct result,
the amount of work each employee must perform has increased.”
The letter did not claim that Youssef had a greater workload
than other case managers, did not mention Youssef’s disability,
and did not make any allegations of discrimination, harassment,
or retaliation.
In July 2014, while Youssef was on medical leave, Maluto
promoted Sims to a permanent position as senior departmental
personnel technician. Youssef believes employee Vicki Hooks
was transferred to the unit, assigned the caseload for Central
Juvenile Hall, and promoted to senior departmental personnel
technician.
7
B. First IPM
Youssef returned to work on May 21, 2015. On June 9,
2015, Youssef, Sims, and Norma Diaz participated in an IPM for
Youssef. The IPM worksheet listed her temporary work
restrictions as follows: sedentary work only; no overhead use of
the injured extremity; no climbing, bending, squatting, or
kneeling; lifting limited to five pounds; typing limited to two to
three hours per day; and parking close to the entrance.
Youssef was assigned the caseload for Los Padrinos
Juvenile Hall, which had 61 cases at that time. Sims and Diaz
said if Youssef could not manage the cases at Los Padrinos
Juvenile Hall, Maluto would go with “Plan B.” The IPM
worksheet stated that Youssef was not sure whether the caseload
would violate her work restrictions, but she was willing to try.
The worksheet also stated that if Youssef could not handle the
caseload, Sims would talk to Maluto to discuss other options.
Sims told Youssef to self-administer her work restrictions.
Youssef signed an agreement stating that she would work within
her physician’s limitations, and if she was given any duties
outside her limitations, she agreed to immediately notify her
supervisor and the return-to-work coordinator in writing. Sims
signed the agreement on behalf of the probation department.
C. Incidents After First IPM
No one had worked on the cases for Los Padrinos Juvenile
Hall in months, so the cases required extra work to get on track.
Youssef was also assigned the caseload for Barry J. Nidorf
Juvenile Hall when the case manager for that location was
8
absent. Due to the workload, Youssef felt she would be
disciplined if she followed her doctor’s work restrictions.
In June 2015, Maluto scheduled a unit meeting and
explained how to perform a particular project. Youssef was
unable to attend, because she was at a class that Maluto
assigned. She received a project that required the training
covered in the unit meeting. Sims agreed to provide the
instructions to Youssef, but did not. Youssef asked coworker
Lena Virgil for help. Youssef believed Sims was surprised when
Youssef gave her the completed assignment.
In August 2015, Youssef attended a unit meeting that
provided training for a certain type of investigation. Youssef felt
humiliated and harassed when she was asked to leave the room
because no cases were going to be reviewed for Los Padrinos
Juvenile Hall. She did not receive the training that the meeting
participants received.
Maluto set a unit meeting for Friday, December 11, 2015,
which was not a day that Youssef was scheduled to be in the
office. Youssef sent an email to Maluto explaining that she had
declined the meeting because she was not scheduled to work that
day, but asked if Maluto wanted her to attend. Maluto
responded, “[Y]ou don’t have to come in, it’s not mandatory.
Toyea can update you on what we discuss. [¶] That was the only
day that I could schedule the meeting because I am off all next
week and then it’s the holiday weeks and a lot of staff will be off.”
Youssef heard later that people exchanged holiday gifts at the
meeting.
Case managers held monthly claim review meetings with
the third-party administrator. The meetings were generally
attended by a county monitor, return-to-work representatives,
9
county counsel, and a representative from human resources. An
adjustor from the third-party administrator would state the
claimant’s age, weight, and height, which was necessary
information for the review. During a meeting on January 13,
2016, Maluto sat next to Youssef and said in her direction, “Oh
my god. This person is the same height as me, weighing 238
pounds. That is so obese. Oh my god, I cannot believe that.” She
asked, “Is he even able to walk with this much weight?” and
“what is his life expectancy?” The injured worker’s weight was
less than Youssef’s weight at the time.
Maluto was promoted to manage the entire risk
management section. Rachel Lara became the manager of the
return-to-work unit in February 2016. Sims reported to Lara,
and Youssef continued to report to Sims.
In March 2016, Lara scheduled a staff meeting on the
second floor. Most employees took the stairs to reach the meeting
room, but Youssef had to take the elevator due to her injured
knees. Youssef arrived a few minutes late. Lara said, “You made
it!” Youssef perceived Lara’s comment to be sarcastic, because
Lara had seen Youssef in the office earlier and it was not a
surprise that Youssef attended the meeting.
In April 2016, at a meeting at Los Padrinos Juvenile Hall,
the superintendent for the hall commented that when people got
hurt in the old days, they got up and went on with their day as if
nothing happened, but now, employees did not want to work with
even a minor injury. Lara responded, “Why are we talking about
other employees, when we have one right here.” Youssef was the
only employee with disabilities present who had taken extended
medical leave, so she believed the comment was about her.
10
D. 2016 Performance Review and Improvement Plan
In August 2016, Sims presented Youssef with a
performance evaluation for the period July 2015 to June 2016.
The evaluation stated Youssef was assigned the caseload for
Los Padrinos Juvenile Hall, which increased from 61 cases at the
time of the assignment to 68 cases at the time of the evaluation.
The evaluation rated Youssef as needing improvement in
the area of work quality and as competent in all other areas.
With respect to work quality, the evaluation stated,
“Ms. Youssef’s work is usually submitted in a neat and legible
manner; however, her work falls below Department standards
due to deficiencies in her writing skills that impair or negate the
effectiveness of her work. Ms. Youssef struggled with written
and oral expression. Ms. Youssef’s inability to communicate
verbally has impacted her ability to conduct IPM[’]s, which is an
essential job function of a Case Manager. This inability has
resulted in Ms. Youssef’s supervisor having to conduct her
IPM[’]s. In this area, Ms. Youssef is being rated improvement
needed.” The evaluation listed specific documents Youssef
drafted that had grammatical errors.
The evaluation noted that Youssef had been given a
workload of 68 cases to allow her to adjust to the systems and
processes for managing cases in the unit. It concluded, “During
this time, Ms. Youssef’s supervisor had to attend several IPM[’]s
with her. It has been observed that she has a very difficult time
communicating with employees. Also, Ms. Youssef has drafted
several letters, all of which contain several grammatical errors
and lack proper structure. Her performance has fallen below the
11
minimum standards of her position. Ms. Youssef is being rated
overall Improvement Needed.”
The evaluation was signed by Sims, Lara, and department
head Deanna Carlisle. Youssef refused to sign the evaluation.
Youssef was placed on a six-month plan for individual
improvement. The plan required Youssef to increase the
quantity of work that she completed by meeting certain goals.
She would improve the quality of her work by taking certain
steps, including thoroughly reviewing letters prior to submitting
them for signature. She would improve the manner in which she
conducted IPM’s by observing IPM’s conducted by other case
managers, for which Youssef would take notes. She was to meet
with her supervisor every other week to have her work reviewed
for content, accuracy, and timely completion. If she failed to
demonstrate continuous progress toward the goals of the plan,
the plan would be terminated and she would be rated
“unsatisfactory.”
As a result of the performance evaluation, Youssef began
having nightmares, severe anxiety, difficulty breathing, and fears
for her well-being and job security. In August 2016, her
psychiatrist prescribed medication and therapy, and placed her
on medical leave. The period of the improvement plan was
extended as a result of Youssef’s medical leave.
Incidents Within the Limitations Period for FEHA
Claims—December 18, 2016, to December 18, 2017
On January 5, 2017, Youssef sent a letter to Sims alleging
legal violations, violations of internal policies, and discrimination
under Maluto’s supervision. Specifically, she alleged the
12
following misuse of County resources by her coworkers:
completing their children’s school projects during work hours;
planning graduation parties for their children using County
resources such as copier, ink, and paper; using work time to
make personal telephone calls and using the internet for personal
reasons; using lunch time to pick up food that they ate during
work time; shopping and transporting children during overtime
hours; paying overtime to staff who were not in the office or
conducting office business; and approving overtime pay to
compensate for extra responsibilities. In addition, Youssef stated
she was required to comply with a process for authorizing
overtime that other employees were not.
Youssef complained that the managers built relationships
with certain staff based on favors, while discriminating against
others. Although Sims and Youssef took the same promotion
examination and were placed in the same eligibility band, as a
result of favoritism, Sims was placed as Youssef’s immediate
supervisor and promised a promotion, while Youssef was
harassed, so that she would be written up and unpromotable.
She described the comments that Maluto made about an
obese claimant, which Youssef found offensive. She stated that
in the meeting, a coworker asked Maluto to stop mocking injured
workers, but Maluto continued until another staff member
ordered her to stop. Youssef also described the meeting where
she had no cases for review and was asked to leave.
She complained that Maluto scheduled unit meetings on
days when some staff were not present and excluded Youssef
from emails intended for the unit staff. Youssef considered the
August 2016 performance evaluation to be harassment as a
13
result of her workers’ compensation claim and her physical
disability.
Youssef requested a transfer to another unit for relief from
the emotional distress caused by the management of the return-
to-work unit. The County instituted an internal investigation
based on Youssef’s complaint.
At the end of the month, Youssef provided documentation
from her psychiatrist stating that Youssef would be able to return
to work on February 16, 2017, in a different unit with a less
stressful environment.
Youssef returned to work on February 16, 2017. In
interrogatory responses, Youssef stated that she was given a new
set of cases from area offices, which had additional processes.
However, in her declaration, she stated that she was assigned
again to Los Padrinos Juvenile Hall. She was no longer assigned
the caseload for the Barry J. Nidorf Juvenile Hall when the case
manager for that hall was absent.
A. Second IPM for Psychiatrist’s Note
In February 2017, the day after she returned to work,
Youssef, her counsel, Lara, and a representative from the county
counsel’s office attended an IPM for Youssef to address her
psychiatrist’s note. Lara’s meeting notes stated that Youssef was
willing to work, but not under the same supervision and unit.
Youssef particularly objected to Maluto’s authority over the unit,
as well as the friendship among Maluto, Lara, and Sims,
although she stated that she did not have as much of an issue
with Sims.
14
Lara sent a letter to Youssef confirming the substance of
the meeting. Lara had offered for Youssef to report directly to
her, rather than to Sims, but Youssef said she did not have a
problem reporting to Sims. Youssef also said she felt harassed
and discriminated against, and could no longer endure this kind
of treatment.
In April 2017, Maluto was reassigned and no longer
Youssef’s supervisor at any level.
B. Additional IPM’s for Work Restrictions
On April 6, 2017, Youssef, Sims, and return-to-work case
manager Kim Pickett participated in an IPM to address
permanent work restrictions imposed by the agreed medical
examiner (AME) in Youssef’s workers’ compensation proceeding.
The AME recommended “[n]o prolonged weight bearing.” Youssef
disagreed with this recommendation, because it did not address
all of her injuries.
A few weeks later, Youssef provided Lara with a note from
Dr. Phillip Kwong listing several additional work restrictions.
Youssef and Lara attended an IPM on May 1, 2017, to address
temporary work restrictions imposed by Kwong. The IPM
worksheet listed the following restrictions: no driving more than
10 miles; parking close to the office entrance; standing or walking
for 20 minutes of every hour; typing a maximum of two to three
hours per day; and no climbing, bending, squatting, or kneeling.
Notes from the meeting stated that the temporary work
restrictions did not interfere with Youssef’s essential job duties.
Her position was not field based. On occasion, she might have to
drive to meetings, but could carpool or seek alternate
15
transportation. Youssef would self-monitor her standing,
walking, and typing restrictions to prevent exacerbating her
injuries. She had already been provided a reserved parking space
in front of the building.
Youssef signed the May 1, 2017 IPM worksheet agreeing
with the work restrictions, that she could perform the usual and
customary duties of her position, and that no accommodations
were needed. Youssef believed her workload would comply with
the restrictions listed in the document.
Youssef provided the County with an additional letter from
her psychiatrist and requested a transfer from the return-to-work
unit. On May 9, 2017, Youssef, her counsel, Lara, and a
representative from the county counsel’s office attended another
IPM for Youssef. In a summary of the meeting, Lara reported
that the psychiatrist said Youssef could perform all of the
essential job functions listed for a management analyst in the
return-to-work unit without accommodation. The psychiatrist
stated that Youssef’s restriction referred to “the environment of
discrimination in the office with constant questioning of her
work, scrutiny and belittling of her work. Namely by her
supervisors and managers.” Lara had informed Youssef at the
meeting that she would not be transferred, “because inability to
work with a particular supervisor or manager is not a disability
requiring an accommodation” under the law. Although the
doctor’s note referred to discrimination, nothing presented at the
meeting had shown Youssef was subjected to discrimination.
Lara said to inform her if Youssef experienced any conduct in the
workplace that Youssef believed was discriminatory, and Lara
would address it. Lastly, Lara said if Youssef had medical
16
documentation different from that already discussed, to submit it
to her so that Lara could schedule another IPM.
The following day, Youssef received three assignments that
she believed should have been completed by the risk management
safety inspector and required driving to an employee’s work site.
On June 2, 2017, Youssef met with Sims about the
improvement plan. Sims praised Youssef’s work, and Youssef
was not asked to attend any further meetings under the plan.
On June 28, 2017, Youssef sent an email to Lara with a
medical note attached. Lara responded that she would check her
schedule about meeting with Youssef to review and discuss the
note. Youssef later declared that Lara did not follow up.
Shortly afterward, Youssef was assigned the caseload for
Central Juvenile Hall. The former case manager for Central
Juvenile Hall had not worked on the cases in months and left the
unit. The cases were in disarray and required a lot of work. The
additional assignment brought Youssef’s caseload to 140 cases.
On August 9, 2017, Youssef went out on medical leave. On
December 18, 2017, Youssef filed a claim with the Department of
Fair Employment and Housing (DFEH) and received a right-to-
sue letter.
Youssef returned to work a few days later. On
December 26, 2017, Youssef, Sims, and Pickett attended an IPM
to address the following temporary work restrictions imposed by
Youssef’s doctor: limited weight bearing; typing no more than 60
minutes without a 10 minute break; no repetitive lifting, pushing,
pulling, or carrying; no prolonged overhead work or extension of
the neck; and maximum lifting of five pounds. Youssef agreed
with the restrictions. Accommodations were offered that if a file
weighed more than five pounds, Youssef would ask for assistance,
17
which Youssef accepted. The notes taken at the IPM stated that
Youssef agreed she can perform her usual and customary duties
with the accommodation of assistance lifting files greater than
five pounds.
Youssef, Pickett, and another return-to-work case manager
attended an IPM for Youssef on December 28, 2017, to address a
permanent work restriction imposed by an AME in Youssef’s
workers’ compensation proceeding. Youssef disagreed with the
restriction that she should remain working sedentary duties, but
agreed that she could perform the usual and customary duties of
her position and no accommodation was necessary.
In December 2017, Youssef was assigned to the area offices,
but also assigned to a juvenile hall when the case manager for
that hall left.
Complaint and Subsequent Events
On April 16, 2018, Youssef filed a complaint against the
County alleging discrimination, harassment, and retaliation,
among other causes of action.
In June 2018, Lara transferred to another entity. Sims
became the acting manager of the return-to-work unit for the
probation department.
Youssef took two weeks of medical leave in June 2018.
When she returned, Youssef was assigned to the first 90 days of
all workers’ compensation cases for all of the area offices. She
was also assigned to the first 90 days of the cases at the Barry J.
Nidorf Juvenile Hall when the case manager for that hall went
on leave, and she was assigned to the camps. A case manager
18
was hired for the camps, but Sims did not transfer the camp
cases to the new case manager for several months.
On April 26, 2019, Youssef filed the operative third
amended complaint against the County alleging causes of action
that included discrimination, harassment, retaliation, failure to
provide reasonable accommodation, and failure to engage in the
interactive process. She alleged that she was a 56-year-old
woman whose disabilities were severe pain in her shoulder, neck,
and knee, obesity, recovery from knee surgery, anxiety, and
depression.
Motion for Summary Judgment and Supporting Evidence
On November 14, 2019, the County filed a motion for
summary judgment on several grounds, including that there was
no basis to find a continuing violation, no adverse employment
action had been taken against Youssef, the alleged harassing
conduct consisted of common managerial decisions, being
overworked was not a FEHA violation, no relationship had been
shown between any employment action and Youssef’s disability,
the County interacted and accommodated Youssef, and there was
no retaliation.
A. Maluto’s Declaration
In support of the motion for summary judgment, the
County submitted Maluto’s declaration as to the following
evidence in addition to facts above. It was necessary in the
return-to-work unit to discuss the physical attributes and
limitations of other employees. If Youssef heard comments about
19
the physical condition of other employees, the statements would
have been job related. Maluto does not know of any time when
comments were directed toward Youssef about her own physical
characteristics.
Maluto made no decisions regarding Youssef, including
work assignments, based on improper grounds, and she never
discriminated, harassed, or retaliated against Youssef based on
her disability status. Maluto managed all employees in the
return-to-work unit by the same performance-based criteria.
Maluto promoted Sims to a permanent position as senior
departmental personnel technician in July 2014, after Sims had
been performing the job in an acting role. Although Youssef and
Sims were both on the eligibility list for the position, Sims was
performing the duties of the position in a superior manner and
was the strongest candidate. Maluto believed Sims had a greater
understanding of new procedures being implemented in the
return-to-work unit, which she had learned and adopted quickly.
In comparison, Maluto perceived Youssef to have
performance problems which made her a less qualified candidate
than Sims. The relative performance of the two employees was
the only factor Maluto considered in selecting Sims over Youssef
for the position. She did not consider Youssef’s disability status.
During the time that Maluto was in the probation
department, all employees had substantial caseloads, including
Youssef. Caseloads were highly variable, and the number of
cases assigned was not necessarily a meaningful measure of the
work load. If a management analyst took leave, other staff
members were required to pick up the extra work. Not all of the
assigned cases were equally active. Staff were assigned to
geographical areas, such as a particular facility, so the number
20
and activity of the cases depended on the facility involved. To the
extent Youssef complained of having 100 cases, Maluto had
approximately 400 cases when she worked for the return-to-work
unit of the Los Angeles County Sheriff’s Department. There was
no discrimination, harassment, or retaliation in the manner that
cases were assigned to Youssef in the return-to-work unit or in
the number of cases that she received. Youssef was not treated
differently from other management analysts in regard to
workload. Maluto is not aware of any time when Youssef was
provided assignments which violated her workers’ compensation
work restrictions.
Maluto never intentionally gave Youssef an assignment
that shortened her vacation. If Youssef had raised the vacation,
Maluto would have made other arrangements by assigning work
differently.
Staff parties, including holiday parties, were not combined
with meetings in the return-to-work unit. All return-to-work
staff were invited to all holiday parties and unit celebrations.
Maluto was not aware of any instance where Youssef was not
invited to a party.
Maluto may have said it was better for employees to return
to work and be placed on light duty, rather than to stay at home,
because employees are known to heal more quickly when they
return to work. Maluto had no involvement with tax reporting
issues by the County concerning County employees. She had no
involvement with Youssef’s W-2 forms or any wage and tax
statement issued by the County to her. Tax reporting issues
were outside her job functions.
21
B. Lara’s Declaration
The County also submitted Lara’s declaration as to the
following evidence. Sims prepared the August 2016 performance
evaluation that rated Youssef’s performance as “Improvement
Needed.” Lara reviewed and approved the evaluation based on
her own observations, as well as reports from Sims. Youssef fell
below performance standards in the area of quality. Youssef’s
work included persistent grammatical errors during the rating
period.
Lara was not aware of Youssef’s employment complaints
until January 2017, when Sims received Youssef’s letter. In
claim review meetings, frank discussions had to be held about the
claimant’s overall health, fitness, and physical condition. Lara
never witnessed any staff member make inappropriate
statements or insinuations to Youssef about her weight or
disability.
When Lara managed the return-to-work unit, it was not
unusual to limit attendance at meetings to relevant staff in order
not to waste employees’ time with unnecessary meetings. During
the time that Lara managed the return-to-work unit, the unit
was short staffed. All case managers, including Youssef, had a
large caseload, and when a staff member took leave, the caseload
became greater for the remaining staff members. Lara attempted
to place caseloads in rough parity between various staff members,
but precise equality was impossible. Assignments were made
based on geography and facilities, so the number of claims were
never equal. In addition, some cases were more active than
others. The number of claims at a given facility changed as well.
Because of these factors, the number of case assignments was not
22
necessarily an accurate reflection of a case manager’s workload.
Youssef’s disability status was never a factor in the nature or
quantity of assignments given to her.
Lara had no recollection of exclaiming, “You made it!” after
Youssef arrived at a meeting. If she made such a statement, it
was not a commentary upon Youssef’s weight or disability status.
Lara preferred to take the elevator, so would not have
commented on Youssef’s use of the elevator due to her weight.
Lara recalled discussing Youssef’s driving restriction at the
May 9, 2017 IPM. Youssef’s position was a desk position, not
field work, and when it was necessary for Youssef to travel to
meetings, including claim review meetings at the third-party
administrator’s office, Youssef could carpool with other staff
members. Youssef had a keyboarding restriction, but typing on a
keyboard was a minor aspect of her duties as a case manager.
Youssef could self-monitor her keyboarding to ensure that she
was working within her workers’ compensation restrictions.
One of Youssef’s doctor’s notes provided a work restriction
that referred to an environment of discrimination subjecting
Youssef to constant scrutiny, for which Youssef sought
reassignment out of the return-to-work unit. Lara was not made
aware of any factual basis or evidence supporting a
discrimination claim. Lara and the county counsel
representative told Youssef and her attorney that an inability to
work with a particular supervisor was not a disability requiring
accommodation. There were significant business reasons to deny
reassignment without good cause while a plan for improvement
was in place. Reassigning the employee to a different supervisor
or unit would defeat the purpose of the plan designed to remedy
performance and allow the employee to avoid reassessment. Lara
23
believed Youssef’s work restrictions did not conflict with her
usual and customary duties, because her work as a case manager
was sedentary, and she could self-monitor her activities to stay
within the guidelines of her restrictions.
Lara made every effort to be responsive to Youssef’s
request for interaction. She did not recall the June 2017 email
from Youssef referring to her work restrictions, but Lara would
not have intentionally failed to respond or follow up. Youssef
never said that her duties required her to violate her work
restrictions. Lara met with Youssef in formal and informal
settings, and repeatedly said to tell her if anything interfered
with her work restrictions. To Lara’s knowledge, all of Youssef’s
medical restrictions were fully accommodated during the time
that Lara managed the return-to-work unit.
Whenever case managers worked overtime, they were
required to list the work that was completed. Lara never made
any decision related to Youssef motivated by discrimination,
retaliation, or harassment.
Lara was reassigned before Youssef’s plan for individual
improvement was completed.
C. Sims’s Declaration
The County submitted Sims’s declaration as to the
following information. Case managers must discuss whether
certain illnesses, conditions, or disabilities affect an employee’s
ability to return to work, including whether the employee should
be placed on light duty. Obesity is a comorbidity with other
conditions, such as diabetes, joint conditions, and cardiovascular
issues. An employee’s obesity might be raised during the claim
24
review for the employee’s workers’ compensation case. The work
of the unit would be severely hampered if these discussions could
not occur. It would be unreasonable for a case manager in the
unit to personalize the discussions. Sims was not aware of any
instance when comments were directed toward Youssef
concerning her own physical characteristics or disability status.
Sims managed all employees in the unit by the same
performance-based criteria; she never took any action against
Youssef based on her disability status.
At the June 9, 2015 IPM, all of the accommodations that
Youssef required were provided. Youssef’s position required
some limited typing, but not constant typing. Youssef was in the
best position to monitor her own activities on the job in order to
meet her restrictions. Youssef’s job duties did not change after
her return to work, and Youssef was able to perform the essential
functions of her position throughout the time periods at issue.
Sims prepared Youssef’s 2015-2016 performance
evaluation. Sims attended some IPM’s for which Youssef was the
case manager. In Sims’s observation, Youssef often appeared
unprepared, and often failed to communicate in a clear manner
with the employee. On some occasions, Sims was compelled to
intervene and take over Youssef’s IPM’s. In addition, Youssef’s
written work contained persistent drafting and grammatical
errors during the rating period.
Youssef was placed on a performance improvement plan to
improve the quality of her work and increase the quantity of her
work. The purpose of the plan was remedial, not disciplinary.
When Youssef returned to work following her medical leave, she
did not complete the improvement plan. After that time, in light
of her extended medical leave, management decided to continue
25
observing her progress through the next rating period. No
employment action was taken as a result of her placement on the
improvement plan or her evaluation as needing improvement.
Sims declared that caseloads were variable, and the
number of cases assigned was not necessarily a meaningful
reflection of an employee’s workload. There was no
discrimination, harassment, or retaliation in the manner cases
were assigned to Youssef or in the number of cases that she
received. Youssef was not treated differently from other case
workers in regard to the caseload assigned.
Youssef’s caseload was also consistent with her work
restrictions. Her position was not a field position. It involved
office work, which was sedentary. Her work restrictions were
generally enforced through her own self-monitoring. Sims told
Youssef to notify the return-to-work unit if she believed a task
violated her work restrictions. Had Youssef advised the unit that
her activities violated her work restrictions, Sims and the unit
would have responded by interacting and seeking to
accommodate her.
Staff parties were not combined with meetings. Sims was
not aware of any instance where Youssef was not invited to a
party, and no party would have been purposefully scheduled
during a time that Youssef was on leave.
Sims was not involved with tax reporting issues or
Youssef’s W-2 forms. Tax reporting issues were outside Sims’s
job functions. Sims was not aware of any instance when Youssef
was denied overtime opportunities. Even if she did not receive
desired overtime, no decision relating to overtime was based on
any unlawful factor, such as her disability status.
26
D. Additional Evidence
The County submitted Youssef’s interrogatory responses as
well. Asked to name and describe each disability alleged in the
pleadings, Youssef stated that she suffered injuries to the neck,
shoulders, and knees due to repetitive motions, which occurred
approximately on or about February 19, 2013. Maluto had given
Youssef a short deadline to complete a long project, which
precipitated Youssef’s medical leave in February 2013. She took
work home to comply with Maluto’s unrealistic expectations.
Aside from physical injuries, she suffered severe emotional
distress and continuous stress from a hostile and overworked
environment.
In addition, the County submitted IPM documentation,
Youssef’s January 2017 letter to Sims, her performance
improvement plan, and discovery responses.
Opposition to Summary Judgment and Supporting
Evidence
Youssef opposed the motion for summary judgment by
arguing there were triable issues of fact as to whether: the
continuing violation doctrine applied to extend the statute of
limitations; employees belittled Youssef about her weight and
disability; she suffered an adverse employment action because
her caseload was substantially higher than her peers and her
negative performance evaluation made her unpromotable; Maluto
and Sims acted with a discriminatory motive; Youssef suffered
retaliatory adverse employment actions; the County failed to
engage in a good faith interactive process by not meeting until
27
June 9, 2015, not scheduling an IPM after Youssef sent a medical
note in June 2017, and denying her transfer request; and the
County failed to accommodate Youssef because they knew self-
monitoring was inadequate due to her increasing workload but
never offered modified work, transfer to a different unit, or
transfer to a different supervisor.
A. Youssef’s Declaration
Youssef submitted her own declaration as to the following
information in addition to the facts stated above. Youssef
requested overtime only a few times after the incident in
September 2012 for fear of retaliation. Maluto had fired several
people and Youssef was afraid to be fired. Her coworkers were
not asked to track their overtime hours.
After Youssef returned to work in August 2013, her heath
continued to decline as a result of the comments made by Maluto
and Sims. During unit meetings, Maluto spoke negatively about
workers’ compensation cases that were very similar to Youssef’s
experience, insinuating that Youssef’s medical concerns were not
genuine. Maluto often suggested workers’ compensation cases
were fraudulent. If a disability was not obvious, Maluto seemed
to believe the disability did not exist or was faked by the
claimant.
Youssef agreed that discussion of the conditions of injured
workers at claim review meetings with the adjusters was an
essential job duty. It was not the case manager’s job, however, to
evaluate or question a claimant’s medical conditions or physical
limitations. The case manager only needed to know the
restrictions to accommodate the injured worker properly. Case
28
managers were not required to discuss a claimant’s medical
conditions, life expectancy, or appearance, and Youssef
considered it unprofessional to discuss a claimant’s weight.
By early 2016, Youssef notified her supervisors that her
taxable income had been miscalculated. Maluto and Sims were
responsible for contacting the third-party benefits administrator
and requesting a corrected notice. Instead, they forwarded
Youssef’s benefits notice to the third party without correction.
When Youssef asked about her incorrect W-2 notice, Sims
referred Youssef to a person in the payroll unit. Had Sims or
Maluto contacted the third-party administrator and requested a
correction, Youssef would have been paid timely and correctly.
Instead, Youssef paid much more in taxes than she was required
to pay. The error also affected her family’s ability to qualify for
financial aid for her daughter, because the W-2 showed more
income than Youssef earned. Youssef requested the correction
from payroll again the following year, in February 2017, when
she returned to work.
Youssef disputed the August 2016 performance evaluation
regarding her oral and written communication skills. Youssef
has a slight accent due to her Egyptian background, but people
did not have trouble understanding her speech. Maluto had
never attended any of Youssef’s IPM’s. Lara attended a couple of
Youssef’s IPM’s and praised how Youssef conducted them. She
noted that case managers gave drafts of documents to supervisors
for review before mailing, and Lara had a reputation for
extensive editing, but no other case manager had been placed on
a plan for individual improvement because of the grammar in
drafts. Before being supervised by Maluto and Sims, Youssef had
29
never received a complaint or a negative evaluation based on her
verbal or written communication skills.
After Youssef returned to work in February 2017, her
supervisors did not hold the meetings specified under her
improvement plan and Youssef did not receive any notice about
the recalculated dates for the plan. Youssef was assigned to Los
Padrinos Juvenile Hall without any help, while managers
assigned to other juvenile halls had assistance.
After the May 1, 2017 IPM, at which Youssef agreed she
could perform her duties without accommodation, she found it
impossible to self-monitor, because working on a large number of
cases required significantly more than two to three hours of
typing per day. She informed her supervisors that the initial
accommodations were inadequate, but no supervisor offered even
part-time help. Youssef believed this was intended to overwhelm
her with cases so that she would fail.
At the May 9, 2017 IPM, she complained of harassment,
discrimination, and retaliation by Maluto, Sims, and Lara. She
also complained about errors in her 2014 and 2015 W-2 forms,
and overtime abuses that she had observed. She never stated her
disability was an inability to “get along” with a supervisor.
Youssef declared that her caseload of 140 cases between
June 28 and August 9, 2017, was well above the normal caseload
for other case managers. The additional work worsened her
physical disabilities, stress, and anxiety.
B. Deposition Excerpts and Other Evidence
Youssef also submitted excerpts from her own deposition.
When Youssef returned to work after her first medical leave, she
30
believed she was given the work of a senior departmental
technician without the title.
Youssef complained about overtime abuses in January
2017, because she thought Maluto, Sims, and another employee
were conducting personal business during work time, although
she had not seen their timecards. She believed that her
supervisors would not approve her to work overtime to prevent
her from witnessing their overtime abuses.
Youssef believed Maluto must have provided incorrect
information to payroll, or failed to review a notice with incorrect
information that the third-party administrator sent to payroll, in
order to cause a problem for Youssef with her tax reporting
because of Youssef’s disability. She assumed her payroll issues
resulted from Maluto’s action or inaction.
After the December 11, 2015 unit meeting, people told
Youssef that the meeting was a Christmas party where people
exchanged gifts.
Youssef submitted excerpts from other depositions as well.
Maluto stated in deposition that a case manager who did not
finish an assignment would be counseled, and depending on the
reason, the employee might receive an extension. Case managers
could be assigned 100 cases or more, because the unit was under
a lot of pressure, and if a case manager went on leave or
transferred, that person’s caseload had to be managed.
Whenever a case manager left the unit, Maluto reassigned the
cases by reviewing how many cases the remaining employees
had.
At the time of Sims’s deposition in October 2019, there
were four management analysts and four senior departmental
personnel technicians in the unit handling approximately 400 to
31
480 total cases. The number of cases handled by a particular
employee was not a factor in assigning cases. There was an
employee assigned to camps for the juvenile halls, an employee
assigned to each juvenile hall, and the rest of the offices were
divided among the remaining employees. At the time of Sims’s
deposition, Youssef was handling the first 90 days of cases for the
area offices, or until the claim was accepted or denied, at which
time it was transferred to the next case manager. In the first
90 days, there is typically not a lot of work to be done with the
file. The case usually does not require scheduling IPM’s or
addressing work restrictions during that time.
Pickett, in her deposition, stated that during the time she
was a management analyst in the return-to-work unit, the most
cases that she had at one time was approximately 70 cases. Her
caseload was unique, however, because she managed field cases.
In Lara’s deposition, she stated that Youssef’s performance
improvement plan was the only one that Lara issued while she
worked in the probation department.
Youssef submitted excerpts from the deposition of Virgil,
who was a former coworker. Virgil heard Sims and Maluto say
that they did not like the way Youssef walked, she walked too
slowly, and she would not do her work. Sims and Maluto
intimidated everyone, including Youssef. Virgil considered the
performance evaluation that Youssef received to be intimidating
or bullying. They wrote up three other employees in the same
manner until the employees left the department. Virgil
considered it a form of harassment to make it unbearable to work
by picking on an employee’s performance or giving assignments
without explanation. Virgil believed Youssef was treated
differently from other employees that Sims and Maluto
32
supervised. Virgil heard Sims refer to Youssef’s pace from the
parking lot by saying, “I can go home by the time she get in here.
I would went home and came back how slow she was walking.”
(Sic.)
Youssef also filed objections to the evidence that the
County submitted.
Reply and Trial Court Ruling
The County filed a reply to the opposition and responded to
Youssef’s evidentiary objections. The County also filed excerpts
from Virgil’s deposition that qualified many of her statements.
A hearing was held on the motion for summary judgment
on August 2, 2021. No reporter’s transcript has been
incorporated in the record on appeal. The trial court issued a
detailed minute order granting the motion. The court found the
County met its burden on summary judgment to show the alleged
adverse employment actions were based on legitimate factors,
rather than Youssef’s disability status. The burden shifted to
Youssef, who failed to show a triable issue of fact that the alleged
adverse employment actions were motivated by her disability.
Youssef did not show a triable issue of fact that any negative
comments were related to her disability or that the comments
were sufficiently severe or pervasive to create an abusive working
environment. There was insufficient evidence of retaliation
based on Youssef’s disability and insufficient evidence that the
County failed to engage in the interactive process or failed to
provide reasonable accommodation. The trial court also
sustained three of Youssef’s evidentiary objections and overruled
the remainder. The trial court entered judgment in favor of the
33
County on August 10, 2021. Youssef filed a timely notice of
appeal.
DISCUSSION
Standard of Review
“ ‘We review the grant of summary judgment de novo.
[Citation.] We make “an independent assessment of the
correctness of the trial court’s ruling, applying the same legal
standard as the trial court in determining whether there are any
genuine issues of material fact or whether the moving party is
entitled to judgment as a matter of law.” [Citation.] A defendant
moving for summary judgment meets its burden of showing that
there is no merit to a cause of action by showing that one or more
elements of the cause of action cannot be established or that
there is a complete defense to that cause of action. (Code Civ.
Proc., § 437c, subd. (p)(2).) Once the defendant has made such a
showing, the burden shifts back to the plaintiff to show that a
triable issue of one or more material facts exists as to that cause
of action or as to a defense to the cause of action.’ ” (Howard
Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102,
1113.)
“ ‘In performing our de novo review, we view the evidence
in the light most favorable to plaintiffs as the losing parties.
[Citation.] In this case, we liberally construe plaintiffs’
evidentiary submissions and strictly scrutinize defendants’ own
evidence, in order to resolve any evidentiary doubts or
ambiguities in plaintiffs’ favor.’ ” (Howard Entertainment, Inc. v.
Kudrow, supra, 208 Cal.App.4th at pp. 1113–1114.) The
34
“opposition to summary judgment will be deemed insufficient
when it is essentially conclusionary, argumentative or based on
conjecture and speculation.” (Buehler v. Alpha Beta Co. (1990)
224 Cal.App.3d 729, 733.)
Statutory Scheme
Under the FEHA, it is an unlawful employment practice to
discriminate against an employee in the terms, conditions, or
privileges of employment because of a physical or mental
disability or medical condition. (§ 12940, subd. (a).) The FEHA,
however, “does not prohibit an employer from . . . discharging an
employee with a physical or mental disability, . . . if the
employee, because of a physical or mental disability, is unable to
perform the employee’s essential duties even with reasonable
accommodations.” (§ 12940, subd. (a)(1).)
The “FEHA proscribes two types of disability
discrimination: (1) discrimination arising from an employer’s
intentionally discriminatory act against an employee because of
his or her disability (disparate treatment discrimination), and
(2) discrimination resulting from an employer’s facially neutral
practice or policy that has a disproportionate effect on employees
suffering from a disability (disparate impact discrimination).”
(Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 232.)
“The FEHA requires employers to make reasonable
accommodations for employees with disabilities. It provides that
‘[i]t is an unlawful employment practice, unless based upon a
bona fide occupational qualification, or, except where based upon
applicable security regulations established by the United States
35
or the State of California: [¶] . . . [¶] . . . For an employer or
other entity covered by [FEHA] to fail to make reasonable
accommodation for the known physical or mental disability of an
applicant or employee.’ (§ 12940, subd. (m)(1).) An employer,
however, is not required to make an accommodation ‘that is
demonstrated by the employer or other covered entity to produce
undue hardship . . . to its operation.’ ” (Zamora v. Security
Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 30 (Zamora).)
“In addition to the obligation to make reasonable
accommodation for a known physical or mental disability, the
FEHA makes it unlawful 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.’ (§ 12940, subd. (n).) Section 12940
‘imposes separate, independent duties on an employer to engage
in the “ ‘interactive process’ ” and to make “ ‘reasonable
accommodations.’ ” ’ ” (Zamora, supra, 71 Cal.App.5th at p. 30.)
With respect to retaliation, it is unlawful under the FEHA
for an employer “to discharge, expel, or otherwise discriminate
against any person because the person has opposed any practices
forbidden under this part or because the person has filed a
complaint, testified, or assisted in any proceeding under this
part.” (§ 12940, subd. (h).)
Statute of Limitations
Youssef filed her DFEH complaint on December 18, 2017,
but contends that she may recover for acts prior to the one-year
36
statute of limitations under the continuing violation doctrine. “A
plaintiff suing for violations of FEHA ordinarily cannot recover
for acts occurring more than one year before the filing of the
DFEH complaint.” (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1400.) The plaintiff bears the burden to
demonstrate that claims are founded on a pattern or practice of
employer conduct that continued into the limitations period. (Id.
at p. 1402.) We need not address whether the continuing
violations doctrine applies in this case, however, because even if
the doctrine applied, no triable issue of fact has been shown as to
any claim.
Harassment
Youssef contends triable issues of material fact exist as to
whether she was subject to a hostile work environment. We
disagree.
Under FEHA, it is unlawful “[f]or an employer . . . or any
other person, because of . . . physical disability, mental disability,
[or] medical condition . . . to harass an employee.” (§ 12940,
subd. (j)(1).) To establish a prima facie case of a hostile work
environment, Youssef must show that (1) she is a member of a
protected class; (2) she was subjected to unwelcome harassment;
(3) the harassment was based on her protected status; (4) the
harassment unreasonably interfered with her work performance
by creating an intimidating, hostile, or offensive work
environment; and (5) defendants are liable for the harassment.
(Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)
“ ‘ “[H]arassment consists of conduct outside the scope of
necessary job performance, conduct presumably engaged in for
37
personal gratification, because of meanness or bigotry, or for
other personal motives. . . . [¶] . . . [¶] . . . [C]ommonly necessary
personnel management actions . . . do not come within the
meaning of harassment. . . . These actions may retrospectively be
found discriminatory if based on improper motives, but in that
event the remedies provided by the FEHA are those for
discrimination, not harassment. . . . This significant distinction
underlies the differential treatment of harassment and
discrimination in the FEHA.” ’ ” (Roby v. McKesson Corp. (2009)
47 Cal.4th 686, 707.)
“ ‘[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 status].’ (Miller v. Department of Corrections (2005)
36 Cal.4th 446, 462.) ‘[H]arassment creates a hostile, offensive,
oppressive, or intimidating work environment and deprives
victims of their statutory right to work in a place free of
discrimination when the harassing conduct sufficiently offends,
humiliates, distresses, or intrudes upon its victim, so as to
disrupt the victim’s emotional tranquility in the workplace, affect
the victim’s ability to perform the job as usual, or otherwise
interfere with and undermine the victim’s personal sense of well-
being.’ (§ 12923, subd. (a); see also Harris v. Forklift Systems,
Inc. (1993) 510 U.S. 17, 26 (conc. opn. of Ginsburg, J.).) ‘A single
incident of harassing conduct is sufficient to create a triable issue
regarding the existence of a hostile work environment if the
harassing conduct has unreasonably interfered with the
plaintiff’s work performance or created an intimidating, hostile,
38
or offensive working environment.’ (§ 12923, subd. (b).) ‘The
existence of a hostile work environment depends upon the totality
of the circumstances and a discriminatory remark, even if not
made directly in the context of an employment decision or
uttered by a nondecisionmaker, may be relevant, circumstantial
evidence of discrimination.’ (§ 12923, subd. (c).)” (Ortiz v.
Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 582–583
(Ortiz).)
“ ‘The harassment must satisfy an objective and a
subjective standard. “ ‘[T]he objective severity of harassment
should be judged from the perspective of a reasonable person in
the plaintiff’s position, considering “all the circumstances.” . . .’ ”
(Miller v. Department of Corrections, supra, 36 Cal.4th at p. 462.)
And, subjectively, an employee must perceive the work
environment to be hostile. [Citation.] Put another way, “[t]he
plaintiff must prove that the defendant’s conduct would have
interfered with a reasonable employee’s work performance and
would have seriously affected the psychological well-being of a
reasonable employee and that [she] was actually offended.” ’ ”
(Ortiz, supra, 37 Cal.App.5th at p. 583.)
Youssef identified four incidents when a supervisor made
comments that she contends support her claim for harassment.
Employees were required to discuss the comorbidities of injured
workers during claim review meetings. Maluto discussed the
weight of an injured male employee during a claim review
meeting about that employee in January 2016. Youssef believed
Maluto’s comments were directed toward her and she was
offended by the remarks. Other employees present at the
meeting told Maluto to stop making comments about the
employee’s weight. Maluto’s comments did not refer to Youssef
39
directly, and there was no evidence that Maluto made any
derogatory remarks about the claimant’s disability.
Youssef identified two comments by Lara. First, when
Youssef arrived at a meeting later than other employees, Lara
said, “You made it.” Objectively, the comment does not belittle
Youssef on the ground of her disability. Even if the comment
referred to the fact that Youssef was late to the meeting, the
evidence did not show that Youssef was unable to allow time to
arrive at the meeting on time. Second, in April 2016, the
superintendent of Los Padrinos Juvenile Hall complained that
employees with minor injuries did not want to work, and Lara
responded, “Why are we talking about other employees, when we
have one right here.” Youssef believed that Lara’s comment was
about her because she was the only employee present who fit the
description.
Virgil overheard a comment by Sims at an unknown point
in time, which Youssef did not hear, in which Sims said that she
could go home and back in the time that it took Youssef to walk
to the office from the parking lot.
These limited incidents of insensitive comments, no more
than one or two by each supervisor over a span of more than five
years, and none made directly to Youssef specifically about her
disability, did not amount to conduct that was sufficiently severe
or pervasive to alter the conditions of Youssef’s employment and
create a hostile or abusive work environment based on her
protected disability status. All of the other conduct that Youssef
contends constituted harassment were commonly necessary
personnel managements decisions, such as decisions about work
assignments, performance evaluations, and which employees
were to attend meetings. Under the totality of the circumstances,
40
none of the comments identified by Youssef, standing alone or
taken collectively over a period of five years, were sufficient to
create a triable issue of fact as to harassment.
Discrimination
Youssef contends that she raised a triable issue of fact as to
whether the County discriminated against her on the basis of her
disability. Specifically, she contends that she was given a higher
caseload than her peers, received a negative employment
evaluation that made her effectively unpromotable, and was
subjected to severe harassment rising to the level of an adverse
employment action. We conclude that no triable issue of fact has
been shown.
A. Burden-Shifting Analysis
“Generally, in cases alleging employment discrimination,
California has adopted the three-stage burden-shifting test
established by the United States Supreme Court in McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792. [Citations.] This
test ‘reflects the principle that direct evidence of intentional
discrimination is rare, and that such claims must usually be
proved circumstantially. Thus, by successive steps of
increasingly narrow focus, the test allows discrimination to be
inferred from facts that create a reasonable likelihood of bias and
are not satisfactorily explained.’ ” (Zamora, supra,
71 Cal.App.5th at p. 31.)
“Under the McDonnell Douglas test, the plaintiff has the
initial burden of establishing a prima facie case of discrimination.
41
[Citation.] To meet this burden, the plaintiff must, at a
minimum, show the employer took actions from which, if
unexplained, it can be inferred that it is more likely than not that
such actions were based on a prohibited discriminatory criterion.
[Citation.] A prima facie case generally means the plaintiff must
provide evidence that (1) the plaintiff was a member of a
protected class, (2) the plaintiff was qualified for the position he
or she sought or was performing competently in the position held,
(3) the plaintiff suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some
other circumstance suggests a discriminatory motive.” (Scotch v.
Art Institute of California (2009) 173 Cal.App.4th 986, 1004
(Scotch).)
“If the plaintiff establishes a prima facie case, then a
presumption of discrimination arises, and the burden shifts to
the employer to rebut the presumption by producing admissible
evidence sufficient to raise a genuine issue of material fact the
employer took its actions for a legitimate, nondiscriminatory
reason. [Citation.] If the employer meets that burden, the
presumption of discrimination disappears, and the plaintiff must
challenge the employer’s proffered reasons as pretexts for
discrimination or offer other evidence of a discriminatory motive.”
(Scotch, supra, 173 Cal.App.4th at p. 1004.)
“[T]o avoid summary judgment, an employee claiming
discrimination must offer substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse
action was untrue or pretextual, or evidence the employer acted
with a discriminatory animus, or a combination of the two, such
that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination. [¶] It is not enough for
42
the employee simply to raise triable issues of fact concerning
whether the employer’s reasons for taking the adverse action
were sound.” (Hersant v. Department of Social Services (1997)
57 Cal.App.4th 997, 1004–1005.)
“As several federal courts have stated: ‘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. [Citations.]
Rather, the [employee] must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them “unworthy of
credence,” [citation], and hence infer “that the employer did not
act for the [the asserted] non-discriminatory reasons.” ’ ”
(Hersant v. Department of Social Services, supra, 57 Cal.App.4th
at p. 1005.)
“When seeking summary judgment or summary
adjudication in an employment discrimination case, the burdens
established by the McDonnell Douglas framework are altered.
The ‘employer, as the moving party, has the initial burden to
present admissible evidence showing either that one or more
elements of plaintiff's prima facie case is lacking or that the
adverse employment action was based upon legitimate,
nondiscriminatory factors.’ ” (Zamora, supra, 71 Cal.App.5th at
p. 32.) If the employer satisfies the initial burden on summary
judgment, the burden shifts to the plaintiff to demonstrate a
triable issue of fact. (Ibid.)
43
B. Workload
There is no evidence from which to infer that Youssef was
given a higher caseload or more burdensome work assignments
as a result of her disability. Prior to the date of her disability,
Youssef was responsible for cases at Central Juvenile Hall. In
her own words, this assignment was the largest location with the
most difficult cases. Her caseload was approximately 130 to 150
cases, which accounted for approximately one-fourth of the cases
in the probation department. In addition to the Central Juvenile
Hall caseload, she had taken on time-consuming additional
responsibilities due to a shortage of staff members.
After the date of her disability in February 2013, the
evidence showed that she received the same workload or less
work. There is no evidence that she received a different caseload
in August 2013, when she returned to work for three months.
When she returned to work in May 2015 after her second medical
leave, she received the caseload for Los Padrinos Juvenile Hall,
which was only approximately 61 to 68 cases. She stated that in
addition to these cases, she was responsible for the caseload of
Barry J. Nidorf Juvenile Hall when the case manager for that
hall was absent, but she did not state how often the case manager
for that hall was absent or how many cases were involved. The
caseload for Barry J. Nidorf Juvenile Hall was not mentioned in
her June 2015 IPM, nor in her August 2016 performance
evaluation addressing her work responsibilities from the prior
year.
In approximately June 2017, the caseload for Central
Juvenile Hall was assigned to Youssef after the case manager for
that hall left the unit bringing Youssef’s caseload to 140 cases,
44
which she declared was above the normal caseload for other case
managers. The total number of cases, however, was not more
than Youssef had prior to her disability in February 2013.
When she returned from medical leave again in December
2017, Youssef was assigned to area offices and had responsibility
for a juvenile hall when the case manager was absent. For part
of 2018 and 2019, Youssef was assigned the first 90 days of cases
for area offices and the cases at the Barry J. Nidorf Juvenile Hall,
as well as camps. The first 90 days required less active
management of the cases by Youssef. A new case manager was
hired for the camps, and although the cases for the camps were
not transferred as quickly as Youssef would have liked, the cases
were transferred to the new employee.
Youssef provided Pickett’s deposition testimony stating
that the highest caseload Pickett had during the time that she
was a case manager was approximately 70 cases, but Pickett
clarified that she managed field cases. Youssef’s work
restrictions were incompatible with a field assignment.
The evidence showed the employees in the return-to-work
unit were, at all times, overworked. There was no evidence that
Youssef suffered an adverse employment action in the form of a
greater workload than she had before the date of her disability,
and Youssef has not shown that the burden of completing work
due to vacancies in the department was disproportionately
assigned to her after the date of her disability. In fact, the
evidence showed her supervisors gave her a juvenile hall with
less difficult cases than Central Juvenile Hall upon her return to
work from her second medical leave, did not assign her field
cases, and eventually gave her a less active assignment limited to
the first 90 days of cases.
45
We note that even were we to conclude that there was a
triable issue of fact as to whether Youssef was subject to an
adverse employment action, the County submitted evidence
showing Youssef’s work assignments resulted from legitimate
business decisions. The County’s method of assigning caseloads
by location did not have to be wise, as long as the reasons were
not based on a discriminatory motive. The County’s evidence was
sufficient to shift the burden to Youssef to show a triable issue of
fact. Although Youssef would have preferred caseloads to be
divided among the staff when a case manager was absent or a
position was vacant, she has not raised a triable issue of fact that
the supervisors’ method was a pretext for discrimination.
C. Performance Evaluation
Youssef did not show that the negative performance
evaluations she received were an adverse employment action
based on her disability. She received a negative counseling
memorandum prior to the date of her disability that raised the
same performance issues as the evaluations she received after
her disability. There was evidence that several other employees
had their performance subjected to heightened scrutiny,
regardless of disability status, resulting in multiple employees
leaving the unit. Youssef also did not show that negative
performance evaluations had any bearing on promotion decisions.
Even the performance improvement plan created to address
issues raised in the evaluations was set aside and did not result
in any adverse employment action being taken against her.
Even were we to assume, however, that the negative
performance evaluations were an adverse employment action, the
46
County presented evidence of legitimate business reasons for the
evaluations. The County’s evidence was sufficient to shift the
burden to Youssef to show a triable issue of fact existed. She did
not present evidence from which a trier of fact could reasonably
conclude the County’s reasons for her negative performance
evaluations were pretextual. She admitted grammar errors in
letters that she drafted, although she blamed some of the errors
on samples that she was given to follow. She admitted that Sims
had taken over IPM’s. No triable issue of fact was raised as to
whether the reasons given for the negative performance
evaluations were false and a pretext for discrimination.
D. Promotion
There was no evidence from which a trier-of-fact could
conclude that Youssef did not receive a promotion due to her
disability. Sims received a promotion for which Youssef was
eligible, but Maluto asked Sims to begin performing the work of a
senior departmental personnel technician long before the date of
Youssef’s disability. The County presented legitimate business
reasons for selecting Sims instead of Youssef for promotion to the
available position in July 2014, because Sims had worked in the
unit for one or two years longer than Youssef and was already
performing the work in an acting capacity. Youssef did not
present evidence that the County’s reasons were pretextual, or
that there were other promotion opportunities for which she was
not considered. Youssef believed another employee transferred to
the unit and received a promotion while Youssef was on medical
leave, but she has not argued or presented evidence that she
47
should have received this promotion instead of the transferred
employee.
E. Additional Actions Alleged
Youssef raised several additional actions during oral
argument, but did not establish a triable issue of material fact
that these incidents supported a discrimination claim. For
example, she was required to track work during overtime hours
when her coworkers were not, and she was given an assignment
on the day before her vacation, but the evidence showed that both
of these actions took place before the date of her disability. These
were not adverse employment actions taken against her due to
her disability.
As discussed above, the evidence does not support a claim
for harassment, and therefore, it does not support Youssef’s claim
that she suffered severe harassment rising to the level of an
adverse employment action.
She asserted that she was excluded from a meeting, but the
County provided a legitimate business reason for limiting the
meetings to employees with cases being reviewed and Youssef did
not raise a triable issue of fact that the County’s reason was
pretextual. In addition, her supervisor offered to provide the
training that she missed, but Youssef chose to seek the training
from a coworker.
Youssef also complained that she was not invited to a
holiday party. Even assuming the lack of a holiday party
invitation constitutes an adverse employment action, the
evidence in this case showed that she was invited to attend the
event. She declined to attend because it was not scheduled for a
48
day that she was in the office, and when she asked her supervisor
about attendance, the supervisor said it was not mandatory.
There was no triable issue of material fact as to an adverse
employment action concerning a holiday party invitation.
F. No Direct Evidence of Discriminatory Animus
Youssef contends that the burden-shifting analysis does not
apply in this case, because she presented direct evidence of
discrimination by Maluto, Sims, and Lara. This is incorrect.
“Courts have held that the three-stage McDonnell Douglas
framework does not apply when the employee presents direct
evidence of discrimination.” (Zamora, supra, 71 Cal.App.5th at
p. 34.) “Direct evidence is evidence that proves a fact without
inference or presumption. [Citation.] Direct evidence includes
comments that demonstrate discriminatory animus and a causal
relationship between those comments and the adverse
employment action.” (Id. at p. 35.)
There was no direct evidence of discrimination presented in
connection with summary judgment in this case.
Retaliation
Youssef contends that she raised a triable issue of fact that
the County retaliated against her for disputing statements in her
performance evaluations and reporting violations of overtime
policies, because they continued to overload her with work.
The three-step McDonnell Douglas burden shifting
framework applies to a retaliation claim under FEHA. (Yanowitz
v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) To establish
49
a prima facie case of retaliation under FEHA, “a plaintiff must
show ‘(1) he or she engaged in a “protected activity,” (2) the
employer subjected the employee to an adverse employment
action, and (3) a causal link existed between the protected
activity and the employer’s action.’ ” (Scotch, supra,
173 Cal.App.4th at p. 1020.) The employer meets its initial
burden on a summary judgment motion by presenting evidence
that one or more elements of a prima facie case is lacking, or the
employer acted for a legitimate, nondiscriminatory reason.
(Featherstone v. Southern California Permanente Medical Group
(2017) 10 Cal.App.5th 1150, 1158.)
There was no evidence of an adverse employment action
taken against Youssef in this case, as discussed above, and even
if Youssef’s work assignments and performance evaluations were
considered adverse employment actions, the County provided
evidence that her supervisors had legitimate business reasons for
the actions. Youssef did not provide evidence from which a trier
of fact could reasonably infer these actions were taken in
retaliation for disputing statements in her performance reviews,
filing a complaint about overtime abuses, or filing a workers’
compensation claim based on her disability.
Failure to Accommodate
Youssef contends she raised a triable issue of fact as to
whether the County failed to accommodate her disability.
Specifically, she contends the County should have offered her
modified work, initial accommodations were not implemented by
the County, her supervisors continued to overload her with work,
and the County did not show it would be an undue hardship to
50
provide a modified work schedule or transfer to another unit. No
triable issue of fact has been shown.
“A reasonable accommodation is a modification or
adjustment to the work environment that enables the employee
to perform the essential functions of the job he or she holds or
desires. (Nadaf–Rahrov v. Neiman Marcus Group, Inc. (2008)
166 Cal.App.4th 952, 974.) FEHA requires employers to make
reasonable accommodation for the known disability of an
employee unless doing so would produce undue hardship to the
employer’s operation. (Gov. Code, § 12940, subd. (m).) The
elements of a reasonable accommodation cause of action are
(1) the employee suffered a disability, (2) the employee could
perform the essential functions of the job with reasonable
accommodation, and (3) the employer failed to reasonably
accommodate the employee’s disability.” (Nealy v. City of Santa
Monica (2015) 234 Cal.App.4th 359, 373 (Nealy).)
“ ‘Essential functions’ means the fundamental job duties of
the employment position the individual with a disability holds or
desires. ‘Essential functions’ does not include the marginal
functions of the position.” (§ 12926, subd. (f).) A job function may
be considered essential for different reasons, including that the
position exists to perform that function or there are a limited
number of employees among whom performance of that job
function can be assigned. (§ 12926, subd. (f)(1); Cal. Code. Regs.,
tit. 2, § 11065, subd. (e)(1).)
“ ‘Reasonable accommodation’ may include either of the
following: [¶] (1) Making existing facilities used by employees
readily accessible to, and usable by, individuals with disabilities.
[¶] (2) Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
51
equipment or devices, adjustment or modifications of
examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.” (§ 12926,
subd. (p).)
The reasonableness of an accommodation generally is a
question of fact, but an employer is not required to eliminate
essential functions of a job to accommodate a disabled employee.
(Nealy, supra, 234 Cal.App.4th at pp. 374–375.) “Where a quality
or quantity standard is an essential job function, an employer or
other covered entity is not required to lower such a standard as
an accommodation, but may need to accommodate an employee
with a disability to enable him or her to meet its standards for
quality and quantity.” (Cal. Code Regs., tit. 2, § 11068, subd. (b).)
“A leave of absence also may be a reasonable
accommodation if, after the leave, the employee can return to
work, with or without further reasonable accommodation, and
the leave does not create an undue hardship for the employer.”
(Zamora, supra, 71 Cal.App.5th at pp. 41–42.) “ ‘Holding a job
open for a disabled employee who needs time to recuperate or
heal is in itself a form of reasonable accommodation and may be
all that is required where it appears likely that the employee will
be able to return to an existing position at some time in the
foreseeable future.’ ” (Id. at p. 42.)
If an employee cannot perform essential functions of the
position, a reasonable accommodation may include reassignment
to a vacant position. (Nealy, supra, 234 Cal.App.4th at p. 377.)
“Offering a disabled employee who can no longer perform the
essential functions of his or her job a vacant position may be a
reasonable accommodation even if the new position pays less
52
than the original job.” (Zamora, supra, 71 Cal.App.5th at p. 42.)
“The employer is not required to create a new position or to
promote to accommodate disabled employees unless it has a
policy or practice of creating new positions for disabled workers.”
(Id. at pp. 42–43.)
In this case, Youssef repeatedly agreed in writing that her
disability did not prevent her from performing the essential
functions of her position and she did not need any additional
accommodation. The nature of her work restrictions required her
to self-monitor compliance by taking breaks from typing, walking,
and requesting assistance lifting materials over a certain weight
limitation. The County provided parking accessible to the
building.
Youssef had a heavy workload before and after her
disability. There is no evidence that the quantity of cases was
not an essential function of her position. In fact, there was
evidence that when a case manager was absent or a position was
vacant, covering the additional caseload over-burdened the
remaining employees in the unit and work was not completed.
There was also no evidence Youssef told the County that she
could not manage the quantity of work required by the position
while following her work restrictions. Youssef cannot create a
triable issue of fact through a self-serving statement in her
declaration that she informed her supervisors the initial
accommodations were inadequate in contradiction of multiple
written statements that she could perform the essential functions
of her position without accommodation.
There is no evidence that modified or light duty work
assignments existed. The County was not required to create a
permanent light duty position for Youssef, which would increase
53
the workload for the remaining case managers. Had Youssef told
the County that she was unable to complete an essential function
of the position, the County would have considered whether
reassignment was an available accommodation under the
circumstances.
On appeal, Youssef argues that the inability to work under
a particular supervisor can constitute a disability for which an
employer may need to provide reasonable accommodations. In
Youssef’s declaration, she states that she did not say she could
not work with her supervisor. Maluto was the supervisor that
Youssef identified when she requested a transfer. Lara offered
that Youssef could report directly to her, but Youssef declined
this accommodation and stated that she did not have a problem
reporting to Sims. Within two months of requesting a transfer,
Maluto was transferred and no longer served as Youssef’s
supervisor. We conclude that the trial court properly granted
summary judgment as to the claim for failure to accommodate
her disability.
Failure to Engage in the Interactive Process
Youssef contends that the County failed to engage in a
timely, good faith, interactive process to determine whether a
reasonable accommodation would enable her to perform the
essential functions of her job, because the County did not hold an
IPM until two years after Youssef filed her workers’
compensation claim and did not hold an IPM after Youssef
provided a doctor’s note in June 2017. We disagree with
Youssef’s analysis.
54
“ ‘Under FEHA, an employer must engage in a good faith
interactive process with the disabled employee to explore the
alternatives to accommodate the disability.’ [Citations.] FEHA
requires an informal process with the employee to attempt to
identify reasonable accommodations, not necessarily ritualized
discussions.” (Nealy, supra, 234 Cal.App.4th at p. 379.)
“To prevail on a claim for failure to engage in the
interactive process, the employee must identify a reasonable
accommodation that would have been available at the time the
interactive process occurred. [Citations.] ‘An employee cannot
necessarily be expected to identify and request all possible
accommodations during the interactive process itself because
“ ‘ “[e]mployees do not have at their disposal the extensive
information concerning possible alternative positions or possible
accommodations which employers have. . . .” ’ ” ’ [Citation.] But
the employee should be able to identify specific, available
reasonable accommodations through the litigation process, and
particularly by the time the parties have conducted discovery and
reached the summary judgment stage.” (Nealy, supra,
234 Cal.App.4th at p. 379.)
“The duty to reasonably accommodate a disabled employee
is a continuing one that is not exhausted by one effort. [Citation.]
‘A single failure to reasonably accommodate an employee may
give rise to liability, despite other efforts at accommodation.’ ”
(Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 722.)
In this case, there is no evidence that Youssef had any work
restrictions when she returned to work in August 2013 or that an
IPM was required. Within three months, Youssef took medical
leave until May 2015. In June 2015, a few weeks after returning
from her second leave, the County held an IPM to discuss
55
Youssef’s work restrictions. The first IPM based on the work
restrictions imposed after her second medical leave was timely.
Youssef cannot maintain a claim for failure to engage in the
interactive process based on the date of the first IPM.
Youssef contends that after holding multiple IPM’s, Lara
failed to schedule an IPM based on a doctor’s note she received
from Youssef on June 28, 2017. There was no evidence, however,
that the doctor’s note contained new or different restrictions than
the ones that the County had already accommodated. And
although there was no evidence that Lara or Youssef took any
further action on the note, the County accommodated Youssef
approximately five weeks later through additional medical leave.
Within one week of Youssef’s return from this medical leave in
December 2017, the County held an IPM for Youssef to discuss
her work restrictions. In context, based on the evidence
presented, Youssef cannot maintain a claim for failure to engage
in the interactive process based on the delay between June and
August 2017. Summary judgment was properly granted as to the
claim for failure to engage in the interactive process.
56
DISPOSITION
The judgment is affirmed. Respondent County of Los
Angeles is awarded its costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
57