Moss v. City and County of San Francisco

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 CECIL H. MOSS, Case No. 3:22-cv-01252-JSC

8 Plaintiff,

ORDER RE: DEFENDANT'S MOTION

9 v. FOR SUMMARY JUDGMENT

10 CITY AND COUNTY OF SAN Re: Dkt. No. 49

FRANCISCO,

11

Defendant.

12

13 Plaintiff Cecil Moss, Jr. alleges the City and County of San Francisco (the “City”)1

14 violated the California Fair Employment and Housing Act (“FEHA”), and four additional causes

15 of action stemming from disability discrimination. The City moves for Summary Judgment. (Dkt.

16 No. 49.)2 For the reasons discussed below, the Court GRANTS in part and DENIES in part the

17 City’s motion. Moss has established genuine issues of material fact as to whether the City

18 reasonably accommodated him and whether the City is responsible for the breakdown of the

19 interactive process.

20 //

21

22

1 Moss also names the San Francisco Municipal Transportation Agency (“SFMTA”) as a

Defendant. The Court take’s judicial notice of the City’s Charter §§ 1.101, 8A.101, (Dkt. Nos. 51-

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1; 51-2). Under the San Francisco Charter, only the City, and not its constituent agencies, “may

appear, sue and defend in all courts in all matters and proceedings.” (Dkt. No. 51-1 at 2.) See also

24

Lelaind v. City and County of San Francisco, 576 F. Supp. 2d 1079, 1089 (N.D. Cal. 2008) (“A

city department . . . may be sued only if it has the capacity to sue or be sued under the city

25

charter.”); see also Sanders v. San Francisco Pub. Libr., No. 23-CV-00211-JSW, 2023 WL

5723695, at *3 (N.D. Cal. Sept. 5, 2023) (same). Moss concedes “SFMTA is operated by City. . .

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[A]ll SFMTA actions were controlled by the City.” (Dkt. No. 57 at 8 n.2.) As such, SFMTA may

not be sued separately from the City and is not a proper defendant. SFMTA is therefore

27

DISMISSED.

1 BACKGROUND

2 Moss was hired by the San Francisco Municipal Transportation Agency (“SFMTA”) as a

3 part-time 9163 Transit Operator on February 1, 2016, eventually moving into a full-time position

4 earning about $38 per hour. (Dkt. No. 58 ¶ 2.) Moss’s primary responsibilities as a Transit

5 Operator were to operate MUNI buses and collect fees. (Id.)

6 On July 13, 2016, Moss was driving a MUNI bus when the hydraulic pedals on the bus

7 malfunctioned and fractured his right ankle. (Id. ¶ 4.) He began a full-time leave of absence to

8 receive treatment for his injury on July 22, 2016. (Dkt. No. 56 ¶ 10.)

9 As a result of his injury, Moss was treated by Panel Qualified Medical Examiner Dr.

10 Naeem Patel. (Id. ¶ 11.) In July of 2018, Dr. Patel saw Moss “for the purpose of determining

11 various issues of permanent disability with respect to a reported industrial event of 7-13-2016.”

12 (Dkt. No. 56-2 at 3.) Dr. Patel concluded it was “clear that [Moss] suffered a work related injury

13 on 7-13-2016 during the course of performing his usual and customary work duties.” (Id. at 19.)

14 Dr. Patel deemed Moss “permanent and stationary as of 7-23-2018” and explained he would “need

15 future medical care.” (Id.)

16 In December of 2018, Dr. Patel provided “specific permanent work restrictions” for Moss

17 based on his July 2018 examination of Moss. (Dkt. No. 56-3 at 3.) Dr. Patel stated: “Mr. Moss’s

18 work restrictions are no lifting over twenty pounds, no repetitive bending or twisting, patient

19 should be allowed to alternate sitting or standing position as patient comfort. No repetitive use of

20 the right lower extremity.” (Id.)

21 On January 8, 2019, SFMTA informed Moss he could not “perform the usual and

22 customary job duties in [his] job as a 9163, Transit Operator with the SFMTA.” (Dkt. No. 56-4 at

23 2.) The City informed Moss he could choose from four options: (1) Request a Reasonable

24 Accommodation; (2) Apply for Service Retirement; (3) Apply for Ordinary Disability Retirement;

25 or (4) Resignation. (Id. at 2-3.) On January 17, 2019, Moss responded and informed SFMTA he

26 “would like a Reasonable Accommodation” and “would like another position with the SFMTA or

27 City.” (Dkt. No. 56-5 at 2.)

1 January 22, 2019 for a “Meeting: Scheduled/Appointment.” (Dkt. No. 55-1 at 3.) According to the

2 City’s “Case Summary” which is meant to “memorialize[] every action taken by the reasonable

3 accommodation team as it worked with Cecil Moss, Jr.,” on February 6, Valdez and Moss had a

4 “Meeting: Scheduled/Appointment.” (Dkt. No. 55 ¶ 4; Dkt. No. 55-1 at 3.) The “Case Activity

5 Notes” for February 6 state: “Updated LOA [Leave of Absence] and ADA [Americans with

6 Disabilities Act] forms; He is working on verification of welding experience. Cannot do PCO

7 [Parking Control Officer], Janitor, car cleaner; He will see Dr. Valmassy on 2/20/19 and try to get

8 med restrictions lessened.” (Dkt. No. 55-1 at 3.) On or around the same day, SFMTA received

9 forms completed by Moss as part of the reasonable accommodation process. (Dkt. No. 56 ¶ 17.)

10 On the “Employee Reasonable Accommodation Request Form,” Moss stated: “Broke my ankle at

11 work resulting in permanent nerve damage. Want to be reassigned to a job that accomodates [sic]

12 my injury.” (Dkt. No. 56-8 at 2.) Moss indicated his physical limitations were explained in the

13 January 8, 2019 letter from the SFMTA. (Id. at 3.)

14 On February 28, 2019, City records indicate Valdez had a telephone call with Moss. (Dkt.

15 No. 55-1 at 4.) The City’s record of this call states:

16 Started with Pacific Steel casting 11/28/11; he will attempt to

verification [sic] of service and responsibilities; completed new LAO

17 [sic] and turned in doctor’s note: Reviewed 9102, 8214, 2708 and do

not qualifited [sic] due to medical restrictions. Reviewed 7390

18 Welder, but salary more than 5% and still need verification. Discussed

citywide job search and what that envolves [sic].

19

20 (Id.) The same day, Valdez sent Moss a letter acknowledging Moss was “disabled under the

21 federal American Disabilities Act (ADA) and/or California Fair Employment and Housing Act.”

22 (Dkt. No. 56-9 at 2.) In this letter, Valdez stated “the SFMTA has determined that we are not able

23 to provide you an accommodation in your Class 9163 Transit Operator position,” so the SFMTA

24 then “considered other SFMTA positions.” (Id.) The letter indicated Moss met “the minimum

25 qualifications” for positions in seven job classifications at the SFMTA. (Id.) For three of those

26 positions, Valdez’s letter indicated Moss’s medical restrictions prevented the SFMRA from

27 considering Moss for that position: 2708 Custodian; 8214 Parking Control Officer; and 9102

1 vacancies existed: 7454 Traffic Signal Operator; 9110 Fare Collection Receiver; and 9126 Transit

2 Traffic Checker. (Id.) For the final position, 8201 School Crossing Guard, Valdez’s letter

3 checked the box in the “no interest” column. (Id.)

4 Moss disputes the City’s “no interest” designation. He testifies “at no point did I tell Ms.

5 Valdez that I was not interested in this position” and he “would have continued to pursue this

6 opportunity had SFMTA updated [him] on its availability.” (Dkt. No. 58 ¶ 16.) According to

7 Moss, he “did not catch the fact that this position was marked as ‘No Interest’” in the letter and, if

8 he had caught it, he “would have made clear to SFMTA that this was not the case.” (Id.) Moss

9 also testifies Valdez did not provide him “with the hard copies of the job descriptions” they

10 discussed, so he “had no opportunity to independently verify the statements Valdez made with

11 regards to each position.” (Dkt. No. 58 ¶ 17.)

12 The February 28, 2019 letter explained because there was “no current open and vacant

13 positions within the SFMTA for which” Moss was qualified, interested in, and met the medical

14 restrictions, the SFMTA was “referring [his] request” to the City’s Department of Human

15 Resources Americans with Disability Act (“ADA”) Coordinator “to conduct a citywide job

16 search.” (Dkt. No. 56-9 at 3.) This citywide job search was scheduled to “last for 60 days.” (Id.)

17 SFMTA informed Moss they would “continue conducting a search for SFMTA vacancies” during

18 the citywide search and would “keep [Moss] informed of the status of [his] seniority as it relates to

19 an identified and open position.” (Id. at 2-3.)

20 The City never sent Moss any updates about his place on the seniority list for any of the

21 positions mentioned in the letter. (Dkt. No. 58 ¶ 18.) However, the City’s internal documents

22 indicate Moss was placed on the seniority lists for the 8201 School Crossing Guard position, the

23 8214 Parking Control Officer Position, and the 9102 Transit Car Cleaner Position. (Dkt. No. 57-8

24 at 2-3.)

25 On March 19, 2019, Moss met with Yazmin Gonzalez, an Equal Employment Opportunity

26 Programs Senior Specialist in the City’s Department of Human Resources. (Dkt. No. 53 ¶¶ 1, 18.)

27 Gonzalez asked Moss “what job classifications he was interested in,” and Moss “expressed interest

1 On March 21, 2019, Gonzalez spoke with Moss by phone and told him he might meet the

2 minimum qualifications for a 2587 Health Services Worker III based on his self-reported

3 experience as a caretaker for a family member. (Id. ¶ 24.) Gonzalez “asked Mr. Moss to provide

4 [her] with verification of his experience, and he agreed to do so by April 1, 2019.” (Id. ¶ 24.)

5 Because of Moss’s expressed interested in welding, Gonzalez also reviewed the City’s job

6 classification page for welding positions and identified two positions: a 7390-Welder classification

7 and a 7360-Pipe Welder classification. (Id. ¶ 21.) After conducting a salary analysis of those

8 positions, Gonzalez determined “the Salary Ceilings of the welding positions were above the 5%

9 threshold established by the Civil Service Rules and [Department of Human Resource’s]

10 interpretation thereof.” (Id. ¶ 22.) On April 9, 2019, Gonzalez wrote a letter to Moss explaining

11 the two welding positions “exceeded the salary ceiling” set by Moss’s 9163 Transit Operator

12 position. (Dkt. No. 53-5.) She also informed Moss she had not yet received the verification of

13 Moss’s previous experience for the 2587 Health Services Worker III position. (Id.) Moss was

14 unable to obtain that verification from his previous employer despite Moss’s “various attempts” to

15 obtain such verification. (Dkt. Nos. 53 ¶ 26; 58 ¶ 24.) Moss informed Gonzalez of the issue and

16 asked whether Gonzalez would be able to request and obtain the verification because Moss was

17 certified by the state to work at a housing facility. (Dkt. No. 58 ¶ 24.) Gonzalez said she would

18 “look it up,” but never told Moss if her efforts were successful or unsuccessful. (Id.)

19 Gonzalez began the 60-day citywide job search process for Moss on April 9, 2019, and

20 concluded it on June 17, 2019. (Dkt. No. 53 ¶¶ 25, 29.) At the end of the 60 days, Gonzalez had

21 not identified a “vacant, unfilled Eligible Position for Mr. Moss” because “none existed.” (Id. ¶

22 29.) The day the search ended, June 17, 2019, Gonzalez called Moss to explain “the job search

23 period had ended.” (Id. ¶ 30.) Gonzalez confirmed this call in a letter to Moss and then referred

24 his case to the Human Resources team at SFMTA. (Id. ¶ 31; Dkt. No. 53-6.)

25 On June 26, 2019, the new SFMTA reasonable accommodation coordinator, Mona Wood,

26 emailed Moss to schedule the final interactive meeting. (Dkt. No. 56-11 at 2.) On July 3, 2019,

27 Wood sent Moss a “Notice of Intent – Medical Separation,” which explained the SFMTA was

1 9163 Transit Operator position.” (Dkt. No. 56-12 at 1.) The letter explained the recommendation

2 was “based on [his] inability to perform the essential functions of [the] Class 9163 Transit

3 Operator; [his] inability to return to work for over two years; and the lack of other vacant,

4 positions of which [Moss] qualif[ied].” (Id.) Wood further stated the final meeting was scheduled

5 for July 15, and at that meeting Moss could “raise any objections or concerns” he had. (Id.)

6 During the July 15, 2019 meeting, Moss explained his “medical restrictions [had]

7 improved” and he could now “lift 40 pounds (previously 20 pounds).” (Dkt. No. 56-13 at 2.)

8 Moss “inquired about the 2708 Custodian, 8214 Parking Control Officer and 9102 Transit Care

9 Cleaner positions.” (Id.) Wood explained those positions “required lifting of 50 pounds” and

10 “employment verification to support [Moss’s] experience” in those positions. (Id.) Moss

11 responded he did not have experience for the 2708 Custodian or 9102 Transit Car Cleaner

12 positions. (Id.) He also requested the interactive process period be extended so Moss could

13 “revisit” his doctor “to provide a new lifting restriction of 50 pounds,” so he could be considered

14 for the 8214 Parking Control Officer position. (Id.) The SFMTA granted Moss’s request for

15 more time to July 22, 2019, but noted “currently there are no 8214 Parking Control Officer

16 positions available.” (Id.)

17 On July 23, 2019, Moss’s attorney requested an additional 60-day extension of the

18 interactive process so Moss could obtain revised restrictions from his doctor. (Dkt. No. 56-14 at

19 2.)

20 On August 9, 2019, the City received a letter from Moss’s attorney that included a report

21 from Dr. Patel. (Dkt. No. 56-15 at 2.) Dr. Patel indicated he had “reviewed the job duties as a

22 Parking Control Officer” and felt Moss “can do the duties as described in the job description.”

23 (Id. at 3.) However, Dr. Patel also explained “the work restrictions” from the earlier report,

24 including “no lifting over twenty pounds (increased to 40 pounds temporarily),” “no repetitive

25 bending or twisting,” and “patient should be allowed to alternate sitting or standing position as

26 patent comfort” were “still” in “effect.” (Id.)

27 On August 14, 2019, the SFMTA opened a specialized recruitment for an 8214 Parking

1 were:

1. Two (2) years of satisfactory public contact experience which must

2 have included providing and/or verifying information on laws, rules,

regulations, and procedures, or responding to client or customer

3 complaints as a primary responsibility; OR

2. Successful completion of two (2) years military service either on

4 active or reserve duty; OR

3. Six (6) months of satisfactory experience as a class 8214 Parking

5 Control Officer.

6 (Id. at 3-4.) Moss did not have experience that met these minimum qualifications. (Dkt. No. 56 ¶

7 28.) “Aside from this specialized 8214-Parking Control Officer recruitment, the [SFMTA] had no

8 other 8214 vacancies.” (Id.)

9 On August 21, 2019, Wood emailed Moss’s doctor, Dr. Patel, to request Dr. Patel

10 complete the” 8214 Essential Functions Guide, Health Care Provider Certification and Functional

11 Capacity Form” by September 4, 2019. (Dkt. No. 56-18 at 2.)

12 When the City did not receive the forms from Dr. Patel, on September 5, 2019, Wood

13 emailed another one of Moss’s doctors, Dr. Ronald Valmassy, to have him complete the 8214

14 Essential Functions Guide, Health Care Provider Certification and Functional Capacity Form for

15 Moss. (Dkt. No. 55-1 at 16.)

16 On September 9, 2019, Moss’s attorney emailed Wood to inquire about the status of

17 Moss’s case and indicated again Moss was interested in the 8214 Parking Control Officer position.

18 (Dkt. No. 56-19 at 2.)

19 On September 20, 2019, the SFMTA received the essential function forms for the 8214

20 Parking Control Officer Position completed by Dr. Valmassy. (Dkt. No. 56-20.) In this form, Dr.

21 Valmassy authorized Moss to lift 50 pounds but inserted the phrase, “limitation of walking,

22 requires 15 min sitting per hour” in response to essential function number 1. (Id.) In response to

23 essential function 3a and 3b, Dr. Valmassy wrote, “rest 15 min hour.” (Id.) In response to

24 essential function number 11, Dr. Valmassy wrote, “requires 15 min rest per hour.” (Id.) At the

25 end of the form, Dr. Valmassy wrote, “[d]ue to patient ongoing [symbol for “right”] ankle

26 problem, he would benefit from sitting 15 min/hour over an eight-hour work day.” (Id.)

27 On September 20, 2019, Junior Management Assistant Amy Nuque forwarded these forms

1 new restrictions prohibited Moss from performing the 8214 Parking Control Officer Position.

2 (Dkt. No. 56-21 at 2.) On September 24, 2019, Holland responded by email: “[t]he below

3 restrictions does [sic] not meet the requirements for 8214 [Parking Control Officer].” (Dkt. No.

4 56-22 at 2.)

5 On October 7, 2019, SFMTA sent Moss a “Notice of Medical Separation.” (Dkt. No. 56-

6 23 at 2.) In total, the City engaged in the interactive process with Moss for eight months: from

7 January through early October 2019.

8 I. PROCEDURAL HISTORY

9 Moss brings five causes of action against the City: (1) Employment Discrimination:

10 Disability, under California Government Code § 12940, et seq.; (2) Wrongful Termination in

11 violation of Public Policy; (3) Failure to Prevent Discrimination, Harassment, and Retaliation in

12 Violation of FEHA, California Government Code §12940(k); (4) Violation of Civil Rights under

13 42 U.S.C. § 1983; and (5) Intentional Infliction of Emotional Distress.

14 DISCUSSION

15 Summary judgment is appropriate if “there is no genuine dispute as to any material fact

16 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving

17 party bears the burden of producing evidence negating an essential element of each claim on

18 which it seeks judgment or showing the nonmoving party cannot produce evidence sufficient to

19 satisfy its burden of proof at trial. Nissan Fire & Mar. Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 1099,

20 1102 (9th Cir.2000). “[T]he inferences to be drawn from the underlying facts contained in such

21 materials must be viewed in the light most favorable to the party opposing the motion.” United

22 States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Once the moving party meets its burden, the

23 nonmoving party must show a material factual dispute exists. California v. Campbell, 138 F.3d

24 772, 780 (9th Cir.1998).

25 I. EMPLOYMENT DISCRIMINATION: DISABILITY UNDER CAL. GOV’T CODE

§ 12940, ET SEQ. (FIRST CAUSE OF ACTION)

26

27 Moss’s first cause of action alleges “employment discrimination: disability” in violation of

1 action, Plaintiff alleges Defendant (1) failed to make reasonable accommodation for Plaintiff’s

2 disabilities, Cal. Gov’t Code § 12940(m); (2) failed to engage in the interactive process

3 contemplated by FEHA, Cal. Gov’t Code § 12940(n); and (3) discriminated against Plaintiff

4 because of his disability, Cal. Gov’t Code § 12940(a). Defendant moves for summary judgment

5 on all three theories of this FEHA cause of action.

6 A. Failure to Make Reasonable Accommodation, Cal. Gov’t Code §12940(m)

7 Under California Government Code §12940, it is an unlawful employment practice “to fail

8 to make reasonable accommodation for the known physical or mental disability of an applicant or

9 employee” unless the employer demonstrates the accommodation would “produce undue

10 hardship.” Cal. Gov’t Code § 12940(m). “‘Undue hardship’ means an action requiring significant

11 difficulty or expense.” Cal. Gov’t Code § 12926(u).

12 The elements of a failure to accommodate claim under California’s FEHA are: “(1) the

13 plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or

14 she can perform the essential functions of the position); and (3) the employer failed to reasonably

15 accommodate the plaintiff’s disability.” Wilson v. County of Orange, 169 Cal. App. 4th 1185,

16 1192 (2009). The parties agree Moss has a disability covered by the FEHA, however, the City

17 argues Plaintiff has failed to identify evidence sufficient to support a finding he is qualified or that

18 the City failed to accommodate him.

19 1. Moss must satisfy the “qualified individual” element

20 As a preliminary matter, Plaintiff, citing Bagatti v. Department of Rehabilitation, 97 Cal.

21 App. 4th 344, 360 (2002), argues § 12940(m) does not require a plaintiff to prove they are a

22 “qualified individual.” In Bagatti, the court analyzed § 12940(m), and held because the section

23 “does not require that an employee be ‘a qualified individual with a disability’” and instead

24 “applies simply to ‘an applicant or employee,’” there is no requirement a “plaintiff must show that

25 he or she is a ‘qualified individual’” to “assert a claim for failure to accommodate” under FEHA.

26 97 Cal. App. 4th at 360-61. So “the duty of an employer to provide reasonable accommodation

27 for an employee with a disability is broader under the FEHA than under the [Americans with

1 Supreme Court held “under the FEHA, a plaintiff must demonstrate that he or she was qualified

2 for the position sought or held in the sense that he or she is able to perform the essential duties of

3 the position with or without reasonable accommodation.” Green v. State of California, 42 Cal. 4th

4 254, 267 (2007). Moreover, California Courts of Appeal since Bagatti have almost universally

5 rejected its holding. See, e.g., Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952,

6 972 (2008) (“We disagree with Bagatti”); Kaur v. Foster Poultry Farms LLC, 83 Cal. App. 5th

7 320, 346 (2022), reh’g denied (Oct. 6, 2022) (explaining one element of a failure to accommodate

8 claim is “the plaintiff is qualified to perform the essential functions of the position [held or

9 desired]”); Cuiellette v. City of Los Angeles, 194 Cal. App. 4th 757, 766 (2011) (same);

10 Shirvanyan v. Los Angeles Cmty. Coll. Dist., 59 Cal. App. 5th 82, 100 (2020) (“FEHA does not

11 require reassignment if there is no vacant position the employee is qualified to fill.”) (cleaned up).

12 So, Plaintiff must demonstrate he was qualified, with or without reasonable accommodation, for

13 either his previous position or another vacant position at an equivalent level to prevail on his

14 failure to accommodate claim.

15 2. Whether Moss is a “qualified individual” for any position

16 To establish a failure to make a reasonable accommodation claim, Plaintiff bears “the

17 burden of proving” he is qualified, or that he has the “ability to perform the essential functions of a

18 job with accommodation.” Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952,

19 977 (2008). A “plaintiff proves he or she is a qualified individual by establishing that he or she

20 can perform the essential functions of the position to which reassignment is sought, rather than the

21 essential functions of the existing position.” Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245,

22 256 (2000).

23 a. 7390 Welder classification

24 Plaintiff has established a genuine issue of material fact as to whether he was qualified for

25 the 7390 Welder position. City human resources employees indicated the welding position

26 requires “verification of welding experience.” (Dkt. No. 55-1 at 3.) Moss testified that before he

27 worked for the City he was a “welder for Pacific Steel.” (Dkt. Nos. 58 ¶ 3; 53-2 at 3 (listing

1 the evidence supports a finding Moss meets the only mandatory qualification of the position in the

2 || record.

3 In Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 969 (2008), for

4 || example, a California Court of Appeal held an employee “raised a triable issue of fact about her

5 || nonphysical qualifications for these positions” because “[s]he had some past experience” related to

6 || the positions and there was “no evidence in the record that [employer] requires specific prior

7 || experience or skills for any of these positions.” Similarly, here, Moss provides evidence he had

8 || “some past experience as a welder” and there is no evidence in the record the City requires any

9 other prior experience or skills for the 7390 Welder position. See also Zamora v. Sec. Indus.

10 || Specialists, Inc.,71 Cal. App. 5th 1, 48 (2021) (citing Nadaf-Rahrov, and finding summary

11 || judgment inappropriate when employer “never discussed” possible job positions with employee

12 || and “never actually offered him any alternative position” because “this lack of communication and

13 evidence that there were vacant positions” could lead a jury to find the employee may have been

14 || able to “perform the essential functions of an available vacant position.”); Prilliman v. United Air

3 15 || Lines, Inc., 53 Cal. App. 4th 935, 952 (1997) (“[O]n summary judgment, the moving party

16 || employer has the burden of establishing that there were no vacant positions the employee could

3 17 || have performed.”).

Z 18 b. 8201 School Crossing Guard position

19 Plaintiff has also established a genuine issue of material fact as to whether he was qualified

20 || for the 8201 School Crossing Guard position. In a letter from SFMTA Reasonable

21 Accommodation Coordinator, Mariana Valdez indicated:

22

Based on your City application and/or résumé, you may meet the minimum qualifications for positions

23 in the following job classifications at the SFMTA (along with the reason(s) why you were not

considered for placement):

5 CLASSIFICATION —

(7454 Teatie Signal Opetor | | oO | a | oO | o

27 || [a01-School Crossing Guard | O | ou | oO | Oo | □□

og || (S24= Parking ConvolOmicer| QO [oO] o | @ | Oo | o_

1 (Dkt. No. 53-1 at 2.) Because Valdez only selected the box for “no interest” on the table, the

2 record supports a finding Moss met all the other listed requirements for the position of 8201

3 School Crossing Guard. Further, in Valdez’s deposition she testified based on Moss’s experience

4 as a MUNI driver, the “school crossing guard” was one of the positions he “could possibly move

5 to.” (Dkt. No. 57-5 at 6.) Interpreting all factual inferences in Moss’s favor, Moss has thus

6 demonstrated he was qualified for the 8201 School Crossing Guard position.

7 3. Whether the City “failed to reasonably accommodate” Moss

8 A “[r]easonable accommodation” includes “part-time or modified work schedules,

9 reassignment to a vacant position, . . . adjustment or modifications of examinations, training

10 materials or policies, . . . and other similar accommodations for individuals with disabilities.” Cal.

11 Gov’t Code § 12926(p) (emphasis added). Moss requested to be reassigned to another position.

12 (Dkt. No. 56-5 at 2.) “If the employee cannot be accommodated in his or her existing position and

13 the requested accommodation is reassignment, an employer must make affirmative efforts to

14 determine whether a position is available. A reassignment, however, is not required if there is no

15 vacant position for which the employee is qualified.” Furtado v. State Pers. Bd., 212 Cal. App.

16 4th 729, 745 (2013) (cleaned up). Reassignment is only required if the vacant position is “at the

17 same level” as the employee’s original position, as the employer is not required to promote the

18 disabled employee. Id.

19 a. 7390 Welder classification

20 Moss has raised a genuine issue of material fact as to whether the City failed to reasonably

21 accommodate him by failing to reassign him to the 7390 Welder position. In March of 2019,

22 “Moss expressed interest in welding classifications” when meeting with Yazmin Gonzalez, who

23 works in Human Resources for the City. (Dkt. No. 53 ¶ 20.) Gonzalez identified two welding

24 positions, including the 7390 Welder classification. (Id. ¶ 21.) However in April of 2019, she told

25 Moss the “7390 Welder” position was not an “Eligible Position[] under the Civil Service Rules

26 because the compensation levels for each was higher than the 5% Salary Ceiling outlined” in the

27 City’s Civil Service Commission Rules. (Id.)

1 The City’s Civil Service Commission Rule 415.13.43 states: “Placement shall be made

2 only to a position for which the nearest salary step does not exceed five percent (5%) in excess of

3 the employee’s current actual salary.” (Dkt. No. 51-4 at 9.) The City has not established that this

4 rule barred Moss from the 7390 Welder position. At the time Moss applied for reasonable

5 accommodations, he was paid “approximately $38 an hour.” (Dkt. No. 57-4 at 34.) So, Moss

6 could pursue a position so long as the “nearest salary step” was equal to or less than $39.90 per

7 hour. Moss argues “nearest salary step” indicates the salary step that is the closest salary level to

8 Moss’s previous position. According to that interpretation, the “nearest salary step” for the 7390

9 Welder position in early 2019 was salary step one, which is $37.75 per hour, slightly less than

10 Moss was making at the time he was injured. (Dkt. No. 57-13 at 2.)

11 The City disagrees with this interpretation of Civil Service Commission Rule 415.13.44.

12 The City argues their “practice for implementing” the rule “is to compare the top level of the

13 highest salary step (“Salary Ceiling”) of the employee’s current position with the Salary Ceiling of

14 the employee’s desired position.” (Dkt. No. 50 at 8.) “If the Salary Ceiling of the employee’s

15 desired position is more than five percent (5%) higher than the Salary Ceiling of the employee’s

16 current position, then that employee is not eligible to transfer to that position as an

17 accommodation.” (Id.) Under this interpretation, Moss did not qualify for the 7390 Welder

18 position because the highest salary step for the position was more than 5% higher than the highest

19 salary step for Moss’s previous position. (Dkt. No. 53 ¶ 22.) The City does not explain why it

20 interpreted “nearest salary step,” as indicated by the text of the rule, to mean “highest salary step.”

21 So, for purposes of summary judgment, the Court interprets the rule according to its plain

22 language and thus in line with Moss’s interpretation.

23 The City asserts it “is not reasonable” for the City to “violate[] the City’s own policies or

24 longstanding practices” of interpreting Civil Service Rule 415.13.14 to accommodate Moss. (Dkt.

25 No. 60 at 3.) Not necessarily. “Ordinarily, the reasonableness of an accommodation is an issue

26

27

3 Pursuant to Defendant’s request, the Court takes Judicial Notice of San Francisco Civil Service

1 for the jury.” Kaur v. Foster Poultry Farms LLC, 83 Cal. App. 5th 320, 346 (2022), reh’g denied

2 (Oct. 6, 2022). Moreover, if the City’s own policies or longstanding practices violate FEHA, then

3 the City may be legally required to violate those policies or practices. “Where a disabled

4 employee requests reassignment as an accommodation, FEHA requires the employer to offer the

5 employee ‘comparable’ or ‘lower graded’ vacant positions for which he or she is qualified.”

6 Atkins v. City of Los Angeles, 8 Cal. App. 5th 696, 721 (2017), as modified on denial of reh’g

7 (Mar. 13, 2017). Moss has established a genuine dispute as to whether the welding position was a

8 “comparable” or “lower graded” position to his previous position, as Moss has provided evidence

9 the first salary step on the welding position was lower than his previous salary. Just because the

10 City has a practice to compare positions according to the highest salary ceiling rather than the

11 nearest salary step does not insulate that practice from FEHA liability.

12 In reply, the City argues this claim is “moot” since Moss “never provided verification of

13 employment experience to satisfy” the mandatory qualification for the position, so Moss

14 effectively rejected the welding position. (Dkt. No. 60 at 6.) However, according to the City’s

15 own recitation of facts, on April 9, 2019, Gonzalez wrote a letter to Moss explaining the 7390

16 Welder position “exceeded the salary ceiling” set by Moss’s 9163 Transit Operator position. (Dkt.

17 Nos. 50 at 11; 53-5.) Considering this letter, a trier of fact could find Moss had no reason to

18 believe he was eligible for this position, and therefore no reason to provide evidence of his

19 employment experience.

20 Neither side has identified direct evidence of whether there was a vacant 7390 Welder

21 position during the relevant period. The Court must “draw reasonable inferences in the light most

22 favorable to” Plaintiff. Scott v. Harris, 550 U.S. 372, 378 (2007). The evidence permits the

23 reasonable inference there was a vacant 7390 Welder position. The only reason cited by Gonzalez

24 for why she did not consider Moss for the 7390 Welder position was because of her interpretation

25 of the Civil Service Commission Rule regarding the salary ceiling of the position. Further,

26 according to Gonzalez, the City’s “public job website” listed “vacant positions.” (Dkt. No. 53 ¶

27 9.) She testified it was her practice to “ask employees to [] review the public website for possible

1 like to pursue.” (Id. ¶ 10.) Moss testifies he “review[ed] the City’s public website for positions”

2 he thought he would be suitable for, and he “brought up” the welding positions to Gonzalez. (Dkt.

3 No. 58 ¶¶ 22, 25). It is a reasonable inference Moss knew of the welding positions because they

4 were listed as vacant positions on the City’s public job website.

5 b. 8201 School Crossing Guard position

6 Moss has also established a genuine issue of material fact as to whether the City’s failure

7 to reassign him to the 8201 School Crossing Guard position was reasonable. There were ample

8 vacant School Crossing Guard positions during the relevant period. (Dkt. Nos. 55-1 at 12

9 (describing the Crossing Guard Program as “very understaffed” in July of 2019); 57-8 at 2

10 (indicating there were 25 vacant 8201 School Crossing Guard positions on July 29, 2019).) As of

11 July 29, 2019, Moss was ranked first in the “ADA: Seniority by Class” rankings for the position.

12 (Dkt. No. 57-8 at 2.) So, Moss has provided sufficient evidence there was a vacant school

13 crossing guard position during the relevant period. And, in any event, on summary judgment “the

14 moving party employer has the burden of establishing that there were no vacant positions the

15 employee could have performed.” Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 952,

16 (1997).

17 The City can prevail on summary judgment if it establishes a “reasonable accommodation

18 was offered and refused.” Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 263 (2000). The

19 City identifies the letter Valdez sent to Moss on February 28, 2019 in which Valdez checked the

20 box for “no interest” as to the School Crossing Guard position, (Dkt. No. 53-1 at 2), and argues

21 given the letter, “[t]he Court should treat Moss as rejecting this possible accommodation.” (Dkt.

22 Nos. 50 at 21.) Moss, however, maintains he never told Valdez he was uninterested in the

23 position, and he has no idea why she checked the box indicating he was uninterested in the

24 position. (Dkt. No. 57-4 at 5-6.)

25 Accepting Moss’s testimony as true, the City unilaterally declared Moss uninterested in the

26 position—despite no indication from Moss that was true. The City argues “because Moss took no

27 action to correct the City’s understanding, he cannot now claim he was interested.” (Dkt. No. 50

1 placement in the school crossing guard position—and does not specify whether Moss was

2 uninterested in the position, or whether the City was uninterested in Moss for that position. Later,

3 the letter explains:

4 Because at this time there are no current open and vacant positions

within the SFMTA for which you qualify, are interested in, or which

5 meet your medical restrictions, we are now referring your request to .

. . conduct a citywide job search. The citywide job search will last for

6 60 days. . .

7 We will continue conducting a search for SFMTA vacancies at the

same time and continue to approve your leaves of absence.

8

(Id.) Further, the letter states, “[a]s SFMTA positions are cleared and become vacant and

9

reasonable accommodation applicants are placed in requested accommodations, your place on the

10

seniority list will rise. We will keep you informed of the status your [sic] seniority as it relates to

11

an identified open and vacant position.” (Dkt. No. 53-1 at 2.)

12

Making all inferences in Plaintiff’s favor, and accepting Moss’s testimony as true, Moss

13

discussed the school crossing guard position with Valdez and never told the City he was

14

uninterested in the position. (Dkt. No. 57-4 at 5-6.) Moss later received a letter in which Valdez

15

indicated “no interest” in that position, without clarifying why she marked the “no interest” box.

16

The City did not highlight or otherwise explain the impact of marking this “no interest” box. The

17

City also told Moss, despite marking the “no interest” box, they would “keep [him] informed of

18

the status [of his] seniority” as to the school crossing guard position. However, despite Moss

19

eventually ranking first in the “ADA: Seniority by Class” rankings for the position (Dkt. No. 57-8

20

at 2), and despite that position being “very understaffed” (Dkt. No. 55-1 at 12), the City never

21

communicated his seniority ranking as to the School Crossing Guard position to Moss.

22

Given the record, there is a genuine issue of material fact as to whether Moss rejected the

23

position, or, whether it was reasonable for the City to treat Moss’s failure to correct Valdez’s letter

24

as such a rejection. Further, there is a dispute as to whether it was reasonable for the City to fail to

25

communicate Moss’s seniority ranking for the School Crossing Guard position to Moss given the

26

City’s earlier assurance it would do so.

27

1 c. Whether the City was required to reassign Moss

2 The City, citing Hanson v. Lucky Stores, Inc., asserts it had no duty to search for or

3 reassign Moss to a vacant, equivalent position for which he was qualified because the City

4 “accommodated” Moss by allowing him to be on disability leave for three years. Hanson v. Lucky

5 Stores, Inc., 74 Cal. App. 4th 215 (1999). That is incorrect. In Hanson, the plaintiff “suffered a

6 hand injury while on the job as a meatcutter and took a series of leaves of absence from work to

7 recuperate.” Id. at 219. After 16 months of leave, the plaintiff’s employer offered the plaintiff the

8 position of a part-time meat clerk, as “there was no other available position for which Hanson

9 qualified.” Id. at 220, 226. The plaintiff “refused the offer.” Id. The California appellate court

10 affirmed summary judgment for the employer because the employer “made two reasonable

11 accommodations”—both the extended leave and the job offer—and the employer could not be

12 held liable for the plaintiff’s dissatisfaction with the offered accommodations. Id. at 229. The

13 court explained “a finite leave can be a reasonable accommodation under FEHA, provided it is

14 likely that at the end of the leave, the employee would be able to perform his or her duties.” Id. at

15 226.

16 Hanson differs significantly from this case. First, in Hanson, the evidence was undisputed

17 Hanson rejected his employer’s job offer. Id. at 219. The City asserts Moss rejected the school

18 crossing guard and welding position. However, as discussed above, Moss has raised a genuine

19 dispute as to whether it was the City, and not Moss, who rejected either the welding or school

20 crossing guard position.

21 Second, the plaintiff in Hanson “did not request an accommodation.” Id. In contrast,

22 Moss specifically requested the City provide him with a reasonable accommodation and find him

23 “another position with the SFMTA or City.” (Dkt. No. 56-5 at 2.) As explained above, once an

24 employee requests reassignment “an employer must make affirmative efforts to determine whether

25 a position is available.’” Furtado, 212 Cal. App. 4th at 745 (cleaned up); see also Kaur v. Foster

26 Poultry Farms LLC, 83 Cal. App. 5th 320, 346 (2022), reh’g denied (Oct. 6, 2022) (“[A]n

27 employer has a duty to reassign a disabled employee if an already funded, vacant position at the

1 The City cites Hanson to argue “the employer is not obligated to choose the best

2 accommodation or the accommodation the employee seeks,” so the City could have simply offered

3 Moss a finite period of leave rather than reassigning him. Hanson, 74 Cal. App. 4th at 228

4 (cleaned up). However, Hanson does not negate the City’s duty to reassign Moss so long as Moss

5 requested reassignment and an equivalent, vacant position for which Moss was qualified existed.

6 See Hanson, Inc., 74 Cal. App. 4th at 225 (employer has an “affirmative duty to make known to

7 the employee other suitable job opportunities with the employer and to determine whether the

8 employee is interested in, and qualified for, those positions, if the employer can do so without

9 undue hardship.”). Further, in more recent cases, the California Courts of Appeal have clarified

10 while “extended leave is an accommodation,” granting an employee leave does not absolve the

11 company of attempting to find an accommodation that would result in the employee working.

12 Nadaf-Rahrov, 166 Cal. App. 4th at 968. “If an employer can provide an accommodation other

13 than a medical leave, it cannot require an employee to take a leave.” Zamora v. Sec. Indus.

14 Specialists, Inc., 71 Cal. App. 5th 1, 45 (2021); see also Cal. Code Regs. tit. 2, § 11068 (“When an

15 employee can work with a reasonable accommodation other than a leave of absence, an employer

16 may not require that the employee take a leave of absence.”). Moss testifies he “was open to any

17 position that would have accommodated [his] medical restrictions. (Dkt. No. 58 ¶ 16.) Moss has

18 established a dispute as to whether there were other vacant positions for which he was qualified.

19 Therefore, Moss has demonstrated a triable issue as to whether the City could have accommodated

20 him by placing him in one of those positions, rather than placing him on leave and then

21 terminating him. See A.M. v. Albertsons, LLC, 178 Cal. App. 4th 455, 464–65 (2009) (holding

22 even if employer makes efforts at accommodation, a single failure to reasonably accommodate an

23 employee is sufficient to find liability); Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th

24 954, 970 (2014), as modified on denial of reh’g (Dec. 23, 2014) (reversing summary judgment in

25 favor of employer and holding employer cannot prevail on summary judgment by demonstrating it

26 granted employee leave and therefore was not required to grant employee’s request for a particular

27 job assignment because “an employer has a duty to reassign a disabled employee if an already

1 ***

2 For the reasons discussed, the City’s motion for Summary Judgment on Moss’s Failure to

3 Make a Reasonable Accommodation claim, California Government Code §12940(m), is DENIED.

4 B. Failure to Engage in Interactive Process, Cal. Gov’t Code §12940(n)

5 It is unlawful for an employer to “fail to engage in a timely, good faith, interactive process

6 with the employee or applicant to determine effective reasonable accommodations, if any, in

7 response to a request for reasonable accommodation by an employee or applicant with a known

8 physical or mental disability or known medical condition.” Cal. Gov’t Code § 12940 (n). “The

9 employee must initiate the process unless his or her disability and the resulting limitations are

10 obvious. Once initiated, the employer has a continuous obligation to engage in the interactive

11 process in good faith.” Kaur v. Foster Poultry Farms LLC, 83 Cal. App. 5th 320, 347 (2022),

12 reh’g denied (Oct. 6, 2022) (cleaned up). “[T]he fact that an employer took some steps to work

13 with an employee to identify reasonable accommodations does not absolve the employer of

14 liability under section 12940(n). If the employer is responsible for a later breakdown in the

15 process, it may be held liable.” Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th

16 952, 985 (2008). “Liability hinges on the objective circumstances surrounding the parties’

17 breakdown in communication, and responsibility for the breakdown lies with the party who fails to

18 participate in good faith.” Kaur, 83 Cal. App. 5th at 348.

19 Plaintiff asserts his failure to engage in interactive process claim, in part, rests on the

20 City’s “lack of good faith” in communications about various job positions. (Dkt. No. 57 at 25-26.)

21 The Court agrees the record supports a triable issue. As discussed above, communication around

22 the welding position ended after the City erroneously told Moss the position exceeded the City’s

23 Civil Service Commission Rules as to maximum salary in an accommodation position. Making all

24 inferences in Plaintiff’s favor, communications surrounding the school crossing guard position

25 broke down after the City erroneously marked Moss as uninterested in the position. Moss has

26 therefore demonstrated a dispute of material fact as to whether the City was responsible for a

27 “breakdown” in the interactive process.

1 an employee. While this is true, the interactive requirement “is a continuing duty and the fact that

2 the employer took some steps to identify a reasonable accommodation does not absolve the

3 employer of liability for failure to engage in the interactive process if it is responsible for a later

4 breakdown in the process.” Zamora v. Sec. Indus. Specialists, Inc., 71 Cal. App. 5th 1, 41 (2021);

5 see also Kaur, 83 Cal. App. 5th at 347–48 (“Each party must participate in good faith, undertake

6 reasonable efforts to communicate its concerns, and make available to the other information [that]

7 is available, or more accessible, to one party.”) (cleaned up); Scotch v. Art Inst. of California, 173

8 Cal. App. 4th 986, 1013 (2009) (“[T]he employer’s obligation to engage in the interactive process

9 extends beyond the first attempt at accommodation and continues when the employee asks for a

10 different accommodation or where the employer is aware that the initial accommodation is failing

11 and further accommodation is needed.”). An employee can survive summary judgment on a

12 failure to interact claim by demonstrating the employer’s “lack of communication and evidence

13 that there were vacant positions,” since then “a jury could find” the employer “failed to engage in

14 or caused a breakdown in the interactive process by refusing to provide information about

15 available positions that might have assisted [the employee] in returning to modified work and

16 avoiding the layoff.” Zamora, 71 Cal. App. 5th at 48. Moss has provided evidence the City failed

17 to communicate relevant information about both the school crossing guard and welding position

18 that might have assisted Moss in returning to work. While the City did interact with Moss, Moss

19 has raised a genuine issue of material fact as to whether the breakdown in the process can be

20 attributed to the City.

21 So, Defendant’s motion for summary judgment as to Moss’s failure to engage in the

22 interactive process claim, Cal. Gov’t Code §12940(n), is DENIED. Plaintiff has raised a genuine

23 dispute of material fact as to whether the City engaged in the interactive process in good faith, and

24 whether the breakdown in communications between Moss and the City was the responsibility of

25 the City.

26 C. Disability Discrimination California Government Code §12940(a)

27 California Government Code §12940(a) makes it “unlawful” for an employer “because of .

1 conditions, or privileges of employment. Cal. Gov’t Code § 12940(a). “In a reasonable-

2 accommodation case with an adverse employment action, a failure to make a reasonable

3 accommodation is direct evidence of disability discrimination.” Urbina v. Comcast Cable

4 Communications Management, No. 16-cv-03948-LB, 2017 Westlaw 6550506, at *11 (N.D. Cal.

5 2017), citing Capote v. CSK Auto, Inc., No. 12-cv-02958-JST, 2014 Westlaw 1614340, at *7

6 (N.D. Cal. 2014). Moss suffered an adverse employment action: he was medically separated from

7 his position with the city. (Dkt. No. 56-23 at 2.)

8 Therefore, since Moss’s failure to make a reasonable accommodation claim survives,

9 Defendant’s motion for summary judgment as to Moss’s disability discrimination claim, Cal.

10 Gov’t Code §12940(a), is DENIED.

11 II. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY (SECOND

CAUSE OF ACTION)

12

The City moves to dismiss Moss’s claim for Wrongful Termination in Violation of Public

13

Policy because “such common law claims cannot be stated against a public entity.” (Dkt. No. 50

14

at 5.) Moss concedes this claim is not available as a matter of law. (Dkt. No. 57 at 8.) So,

15

Defendant’s motion for summary judgment on Plaintiff’s wrongful termination in violation of

16

public policy claim is GRANTED.

17

III. FAILURE TO PREVENT DISCRIMINATION, HARASSMENT, AND

18 RETALIATION IN VIOLATION OF FEHA, CAL. GOVT. CODE § 12940(K)

(THIRD CAUSE OF ACTION)

19

FEHA prohibits an employer from “fail[ing] to take all reasonable steps necessary to

20

prevent discrimination and harassment from occurring.” Cal. Gov’t Code § 12940(k). To prove a

21

failure-to-prevent claim, Plaintiff must establish: (1) Plaintiff was subjected to discrimination,

22

harassment, or retaliation; (2) Defendant failed to take all reasonable steps to prevent

23

discrimination, harassment, or retaliation; and (3) “this failure caused plaintiff to suffer injury,

24

damage, loss or harm.” California Civil Jury Instructions 12.11; see also Lelaind v. City & Cnty.

25

of San Francisco, 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008). Termination from employment is

26

an injury sufficient to support recovery under a §12940(k) failure to prevent discrimination claim.

27

See Gemini Aluminum Corp., 122 Cal.App.4th at 1025.

1 Plaintiff’s claim mentions “retaliation” and “harassment,” but Plaintiff’s response to the

2 Summary Judgment motion does not identify any facts that support a finding that Plaintiff was

3 retaliated against or harassed. It is not the Court’s duty to “scour the record in search of a genuine

4 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Plaintiff has provided

5 no evidence of retaliation or harassment, so Defendant’s motion is GRANTED as to those

6 theories.

7 However, as discussed above, Plaintiff has provided evidence Defendant discriminated

8 against him because of his disability. “[A] failure to prevent discrimination claim is essentially

9 derivative of a discrimination claim.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 804

10 (N.D. Cal. 2015) (cleaned up); see also Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d

11 1086, 1098–99 (E.D. Cal. 2017) (“Because plaintiff's FEHA disability discrimination claim

12 survives defendant’s motion to dismiss, her failure to prevent discrimination claim survives the

13 motion as well.”). Genuine issues of material fact remain as to whether the City took reasonable

14 steps necessary to prevent unlawful conduct. So, Defendant’s motion for summary judgment as to

15 Plaintiff’s claim Defendant failed to prevent discrimination is DENIED.

16 IV. VIOLATION OF CIVIL RIGHTS UNDER 42 U.S.C. § 1983 (FOURTH CAUSE OF

ACTION)

17

To establish a 42 U.S.C. § 1983 claim, Plaintiff must establish Defendants “(1) acting

18

under color of State law, (2) caused (3) Plaintiffs, as U.S. citizens or persons within the

19

jurisdiction of the United States, (4) a deprivation of rights, privileges, or immunities secured by

20

the Constitution and laws.” Chaudhry v. Aragon, 68 F.4th 1161, 1171 (9th Cir. 2023) “Section

21

1983 requires” a plaintiff “to demonstrate a violation of federal law, not state law.” Galen v. Cnty.

22

of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).

23

The City moves to dismiss Moss’s claim for violation of 42 U.S.C. § 1983 because Moss

24

has not shown facts of any violation of a federal right or that the city is liable under Monell v.

25

Department of Social Services, 436 U.S. 658 (1978). Moss admits he only alleged “state law” in

26

his complaint and did not “identify the federal right being violated.” (Dkt. No. 57 at 30.) Moss

27

asserts he “could have provided additional information” which “could reasonably lead to a

1 contention he was deprived of procedural due process” or “equal protection” under the Fourteenth

2 Amendment to the United States Constitution if this issue had been raised earlier. (Id. at 30-31.)

3 However, Moss does not provide any such additional information, nor does Moss submit a 56(d)

4 affidavit or declaration requesting more time to develop such facts. See Fed. R. Civ. Pro. 56(d).

5 Moreover, as pled, Moss’s § 1983 cause of action duplicates his California-law based

6 causes of action. Moss’s amended complaint specifically alleges his § 1983 cause of action is

7 based on Defendant’s discrimination by “failing to make reasonable accommodations” and failing

8 “to engage in the interactive process contemplated by the Fair Employment and Housing Act.”

9 (Dkt. No. 30 ¶¶ 44-45.) As the cause of action was specifically pled, the Court declines to give

10 Moss leave to amend this cause of action now, at the summary judgment stage.

11 So, Defendant’s motion for summary as to Plaintiff’s 42 U.S.C. § 1983 claim is

12 GRANTED.

13 V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (FIFTH CAUSE OF

ACTION)

14

The City moves to dismiss Moss’s claim for Intentional Infliction of Emotional Distress

15

because “such common law claims cannot be stated against a public entity.” (Dkt. No. 50 at 5.)

16

Moss concedes this claim is not available as a matter of law. (Dkt. No. 57 at 8.) So, Defendant’s

17

motion for summary judgment on Plaintiff’s intentional infliction of emotional distress claim is

18

GRANTED.

19

VI. JURISDICTION

20

Defendant removed this case pursuant to 28 U.S.C. § 1441(b), asserting the Court had

21

original jurisdiction because of Plaintiff’s 42 U.S.C. § 1983 claim. (Dkt. No. 1-1.) While the

22

Court dismisses the 42 U.S.C. § 1983 claim, the Court retains supplemental jurisdiction over the

23

case. See 28 U.S.C.A. § 1367. While “in the usual case in which all federal-law claims are

24

eliminated before trial, the balance of factors to be considered under the pendent jurisdiction

25

doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to

26

exercise jurisdiction over the remaining state-law claims,” Carnegie-Mellon Univ. v. Cohill, 484

27

U.S. 343, 350 n.7 (1988), the Court finds this is an unusual case that warrants this case retaining

1 || jurisdiction. Moss filed this case as an unrepresented litigant. (Dkt. No. 1 at 19.) Latham &

2 || Watkins LLP volunteered to undertake this representation at the request of the Federal Pro Bono

3 || Project. (Dkt. No. 13.) Since Plaintiffs counsel’s appointment, Plaintiff's counsel has dedicated

4 || significant time and effort to representing Plaintiff at settlement conferences, participating in

5 discovery, and briefing Plaintiff's response to this summary judgment motion. So, considering the

6 factors of judicial economy, convenience, fairness, and comity, the Court retains jurisdiction, as

7 || remanding the case would exert significant hardship on Plaintiff's volunteer counsel.

8 CONCLUSION

9 For the reasons discussed above, the Court GRANTS Defendant’s motion for summary

10 || judgment as to Plaintiff's wrongful termination in violation of public policy claim (second cause

11 of action), failure to prevent harassment or retaliation in violation of FEHA, Cal. Gov’t Code §

12 12940(k) claim (third cause of action), violation of civil rights under 42 U.S.C. § 1983 claim

13 (fourth cause of action), and intentional infliction of emotional distress claim (fifth cause of

14 || action). The Court DENIES Defendant’s motion for summary judgment as to Plaintiff's

3 15 employment discrimination claims based on disability under FEHA, Cal. Gov’t Code § 12940, et

a 16 || seq. (first cause of action) and failure to prevent discrimination in violation of FEHA, Cal. Gov’t

3 17 Code § 12940(k) (third cause of action).

18 The Court will hold a further case management conference on February 29, 2024 at 1:30

19 || p.m. via Zoom video. An updated joint case management conference statement that includes a

20 || proposed jury trial date is due one week in advance.

21 This Order Disposes of Dkt. No. 49.

22 IT IS SO ORDERED.

23 Dated: February 2, 2024

24

25 Deut sit

JAQ@UELINE SCOTT CORLE

26 United States District Judge

27

28