Villafana v. County of Los Angeles CA2/4

Filed 3/4/14 Villafana v. County of Los Angeles CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR

ROBERT VILLAFANA, B244114

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC450103)

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S.

Rosenfield, Judge. Affirmed.

Myer Law Firm and Scott D. Myer for Plaintiff and Appellant.

Law Offices of David J. Weiss, David J. Weiss, and Peter M. Bollinger for

Defendant and Respondent.

_________________________

Appellant Robert Villafana sued respondent County of Los Angeles (County) for

violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code

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§ 12900 et seq.), the Family and Medical Leave Act (29 U.S.C. § 2601 et seq.), the

California Family Rights Act (§ 12945.2), and sections 1981 and 1983 of title 42 of the

United States Code. He also claimed his termination was wrongful in violation of public

policy. The trial court granted County’s summary judgment motion on the ground that

there was no triable issue of material fact as to whether County committed misconduct

during the statutory period. It found no continuing violation exception to the applicable

limitations period. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Villafana began working as a children’s social worker at the Los Angeles County

Department of Children and Family Services in 1985. In October 1991, a County

employee left a child unattended with the child’s father during a monitored visit. When

Villafana noticed the father and child were unmonitored, he went to find out who was

responsible for supervising the visit. Villafana later obtained a court report that described

in detail that the County employee was absent when the father had molested the child

during the unsupervised portion of the visit. Sometime in 1991, Villafana told his

supervisor about the abuse. Between 1991 and 2008, he reported the incident at least

seven times to various individuals and entities, including a department administrator, the

City Attorney, a police detective, the Board of Supervisors, and coworkers. In November

1991, Villafana’s supervisor reprimanded him for misconduct during a grievance hearing

allegedly concerning the abuse incident.

Starting in 1994, Villafana began a series of prolonged absences from the

workplace. In January 1994, an earthquake damaged County offices, so all employees,

including Villafana, worked from home. In his deposition, Villafana stated “there was no

hostile work environment” when he worked from home. After six months, County

notified employees to return to work and Villafana resumed working in the office. But

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All further references are to the Government Code, unless otherwise indicated.

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by summer 1995, he underwent knee surgery “to get out on stress [leave]” for three

months. Upon returning to the workplace, Villafana said he experienced stress and

frustration because County had not investigated the 1991 incident. In 1996, he took

multiple sick and stress days “due to the child abuse cover-up.” As a result, he was

placed on “certified time” for missing 15 days of work during a 61-day working period.

Villafana presented a physician’s note requesting a three-week medical leave in

September 1996. And in December 1996, he filed a workers’ compensation claim for

work-related stress due to County’s failure to investigate the 1991 incident, and for

allegedly having disciplined him for reporting the abuse.

Villafana’s workers’ compensation case was resolved in his favor in February

1998. He then returned to the workplace. In March 2000, Villafana attempted to reopen

his workers’ compensation claim, seeking to take additional time off due to stress from

the 1991 incident, County’s failure to investigate, and a hostile work environment.

March 20, 2000 was his last day at work. A physician certified his absence was due to a

“total . . . disability.”

When his second workers’ compensation claim was denied, Villafana applied for

long-term disability benefits through County’s plan. Medical certifications from a

psychiatrist concluded that Villafana was “temporarily totally disabled” through

September 2003, from which date the psychiatrist verified that Villafana was

“permanently psychiatrically disabled.” In December 2004, he was approved for benefits

until age 65 because he met the Social Security criteria for “total disability” as of

September 2000. A psychiatrist again certified his disability and inability to work.

While on disability leave, Villafana requested County “remove” the alleged hostile work

environment and investigate the 1991 incident. Additional certifications from the

psychiatrist in December 2002, July 2004, June 2006, and August 2007 indicate that

Villafana was able to work part-time in “a very limited [number of] jobs” with the

restriction that there be “no ethical conflict.” Finally, in July 2008, the psychiatrist

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certified that Villafana was unable to work in “his regular occupation” and “any

occupation,” even on a part-time basis.

In October 2008, County notified Villafana of its intent to release him from

employment pursuant to Civil Service Rule 9.08 for medical reasons. The notice listed

five bases supporting the release: (1) Villafana had not reported to the office since March

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2001; (2) there was “no suitable position in which [he could] perform satisfactorily”;

(3) he met the Social Security criteria for “total disability”; (4) he received long-term

disability benefits and was scheduled to continue receiving them until he reached age 65;

and (5) he was ineligible for disability retirement. In response, Villafana claimed his

absence from the office was due to the work-related stress induced by the hostile work

environment resulting from the 1991 incident. County then confirmed its decision to

release Villafana, effective November 24, 2008, without prejudice so that he could be

considered for reemployment should his medical condition improve. The decision stated

that Villafana’s response did not present any information “to contradict the basis and

facts supporting [County’s] decision to proceed with the release.”

In December 2008, Villafana petitioned the Civil Service Commission for a

hearing on County’s decision to release him. At the hearing, Villafana said his physician

had not permitted him to return to work. As a result, the Commission denied his petition

and determined he was unlikely to prevail absent a letter from his physician indicating his

ability to return to work. In December 2009, Villafana’s long-term disability benefits

were terminated because he reached age 65. He applied for retirement benefits so that

they would begin shortly after his disability benefits ended.

In November 2009, Villafana’s attorney filed two claims on his behalf. The first

was a government tort claim against County claiming wrongful termination, disability

discrimination, failure to accommodate, hostile work environment, retaliation, and

violation of his constitutional rights. The second was a complaint with the California

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County’s notice listed March 31, 2001 as Villafana’s last day in the office.

However, Villafana’s testimony at his deposition twice confirmed that his last day was

March 20, 2000.

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Department of Fair Employment and Housing (DFEH) alleging harassment,

discrimination, denial of accommodation, and retaliation based on age, religion, national

origin, ancestry, and disability. His DFEH case was closed the same day because he

requested and received a right-to-sue letter.

In November 2010, Villafana filed a civil complaint against County seeking

compensatory damages. There were eight causes of action: (1) harassment in violation

of section 12940, subdivision (j); (2) discrimination based on age, religion, national

origin, ancestry, disability, and his pattern of complaints in violation of section 12940,

subdivision (a); (3) retaliation in violation of section 12940, subdivision (h); (4) Family

Medical Leave Act (FMLA) and California Family Rights Act (CFRA) violations;

(5) denial of accommodations in violation of section 12940, subdivision (m); (6) failure

to prevent discrimination, harassment, and retaliation in violation of section 12940,

subdivision (k); (7) wrongful termination in violation of public policy; and (8) civil rights

violations pursuant to sections 1981 and 1983 of title 42 of the United States Code.

In December 2011, County filed a motion for summary judgment, which included

a separate statement of undisputed facts. Villafana filed a timely opposition, contested

the motion on the merits, requested a continuance to obtain a medical report pursuant to

Code of Civil Procedure section 437c, subdivision (h), and asked the court to strike

County’s motion pursuant to California Rules of Court, rule 1.20(b) because it

improperly disclosed his Social Security number. The court rescheduled the summary

judgment hearing to May 2012. Because County failed to redact confidential

information, the court ordered all motion paperwork stricken. It stated, “Counsel for

defendant [County] is to file a new motion for Summary Judgment within ten (10) days.”

On March 6, 2012, County filed a new motion for summary judgment, without

Villafana’s Social Security number, but did not include a separate statement of

undisputed facts. It served Villafana by mail. Villafana filed his opposition and separate

statement, opposed the motion on the merits, and moved to strike County’s motion for

violation of the notice provision of Code of Civil Procedure section 437c, subdivision (a).

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The basis for that argument was that the motion had been filed 79 days before the

scheduled hearing, rather than 80 days, as required by that statute.

In April 2012, County filed its separate statement and opposition to Villafana’s

motion to strike. Villafana then moved to strike County’s late-filed papers, including the

separate statement. County opposed the motion, arguing that Villafana suffered no

prejudice. The court granted County’s motion for summary judgment and later entered

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judgment in favor of County. Villafana filed this timely appeal.

DISCUSSION

I

We review the court’s granting of continuances and exceptions to the summary

judgment filing deadlines, and its rulings on the admissibility of evidence, for abuse of

discretion. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100 [reviewing continuances

for abuse of discretion]; Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1261

[reviewing court’s rulings on notice issues for abuse of discretion]; People ex rel.

Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640 [reviewing trial

court ruling on admissibility of evidence for abuse of discretion].)

A. Code of Civil Procedure Section 437c

Villafana argues the court had no jurisdiction to decide the motion for summary

judgment given defects in pretrial procedure that deprived him of due process.

Specifically, he contends County’s filings were untimely in violation of Code of Civil

Procedure section 437c, subdivision (a), and the court abused its discretion in considering

them.

On motions for summary judgment, notice of the motion and supporting papers

must be served on all parties to the action at least 80 days before the time appointed for

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In a subsequent proceeding, the court amended its judgment granting the motion

for summary judgment and awarded costs and fees to County. Villafana filed a separate

notice of appeal from the amended judgment concerning the award of costs and attorney

fees (Villafana v. County of Los Angeles, B246866). We do not discuss fee or cost issues

in this opinion.

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the hearing, when served by mail to any address in California. (Code Civ. Proc., § 437c,

subd. (a).) Courts may not shorten the notice period without the consent of the parties.

(Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764 (Urshan) [“[T]he

Legislature did not . . . authorize a trial court to shorten the minimum notice period for

hearings on summary judgment motions. . . . Moreover, the statutory language regarding

minimum notice is mandatory, not directive”]; McMahon v. Superior Court (2003) 106

Cal.App.4th 112, 115 [“The subdivision does not contain any language authorizing courts

to shorten the . . . notice period”].) In limited circumstances, judgments must be reversed

when a court order violates the statutory notice requirements. (Urshan, at pp. 765-766

[reversing summary judgment order where court provided “only two days” to prepare

motion paperwork in violation of Code of Civil Procedure section 437c, subdivision (a)].)

However, when the notice violation is attributable to the moving party’s late filing, and

does not violate a court order, an opposing “party’s appearance at the hearing of a motion

and filing of opposition to the motion is a waiver of any defects in the moving party’s

notice of motion.” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 650-651

(Boyle).) Thus, reversal is not required for a defendant’s notice violation when plaintiffs

opposed the motion on the merits, simply stated that service was not in compliance with

the statute, appeared and argued at the hearing, did not request a continuance of the

hearing, and did not claim prejudice. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697

(Carlton).)

The facts here are distinguishable from cases that have required the reversal of

summary judgments where courts shortened the minimum notice periods. County first

provided notice of its motion for summary judgment to Villafana on December 13, 2011.

After Villafana moved to strike the filing because it improperly included his Social

Security number, the court ordered County “to have a new motion and all supporting

documentation refiled within 10 days with all of the appropriate redactions . . . [and to]

[r]efile the whole thing.” The court also struck Villafana’s opposition filings, and

directed that they be “refiled in response to the refiled motion.” The court and the parties

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agreed that the refiled motion was “going to be the same . . . without substantive

changes . . . .” The court continued the hearing date to May 24, 2012. Five days later,

County refiled and served by mail its motion for summary judgment, without substantive

changes. This is the filing that was made 79 days prior to the new hearing date.

Villafana timely filed his opposition to the refiled motion and original separate statement.

Even though County did not refile its separate statement until April 26, 2012, just 28 days

before the scheduled hearing, Villafana had adequate time to respond since all parties

were ordered to submit documents that were substantially identical to those served well

before the May 24 hearing date. Because Villafana argued the case, opposed the motion

on the merits, simply mentioned the notice issue, and adequately submitted his filings,

reversal is not required. (See Carlton, supra, 77 Cal.App.4th at p. 697.) Accordingly,

the court did not abuse its discretion in considering County’s late-filed papers.

Villafana argues the holding in Urshan deprives the court of jurisdiction to hear

County’s motion. The parties in that case “had less than two days to prepare a motion or

opposition. Not only was this shortened time period violative of the statute, notice and

opportunity to prepare to be heard was so minimal the procedure was tantamount to a

denial of due process.” (Urshan, supra, 120 Cal.App.4th at p. 765.) Here, Villafana was

afforded more than six months notice of County’s motion and separate statement.

County’s late-filed redacted documents did not contain substantive changes from the

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original filings. As a result, Villafana had adequate notice and was not deprived of due

process. Thus, the court had jurisdiction to consider County’s substantially similar

summary judgment motion papers.

Villafana also argues that the court’s limitation on the evidence the parties could

resubmit violated his procedural rights. He contends the order prohibiting additional

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Villafana argues that County included new evidence in its refiled motion by

adding a paragraph to a declaration and handwritten markings on two pages of evidence.

These changes are not substantial, but even assuming that they were, Villafana has not

demonstrated how they prejudiced his ability to oppose the motion. In any case, we do

not rely on the additional paragraph in this opinion.

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evidence beyond that submitted in the first motion violated the summary judgment

statute, but does not indicate which provision. He relies on an asbestos case in which the

court held it improper for a trial court to order an expedited summary judgment procedure

in which the notice period was shortened and parties were not required to file supporting

papers apart from an attorney certification. (Boyle, supra, 137 Cal.App.4th 645

[reversing summary judgment granted under expedited procedure that violated notice and

supporting evidence requirements of Code of Civil Procedure section 437c].) Villafana

contends “it should similarly be improper and a violation of due process to prevent the

opposing party from filing any documents beyond what was filed for an earlier motion.”

We do not agree. In limiting the scope of the refiled documents, the trial court was

attempting to minimize the inconvenience and burden on the parties to resubmit materials

on a shortened timeframe. Since both sides were ordered to resubmit the same

documents previously prepared without any court-ordered limitations, the court did not

violate Villafana’s procedural rights.

B. California Rules of Court, Rule 3.1350(d)

Villafana also claims the motion for summary judgment was defective in its

formatting. He contends the court abused its discretion in considering County’s filings

that failed to consecutively number the facts, and in which there were other technical

errors. There was no violation of his due process rights.

California Rules of the Court, rule 3.1350(d) requires, in relevant part, that the

separate statement “separately identify each cause of action, claim, issue of duty, or

affirmative defense, and each supporting material fact claimed to be without dispute with

respect to the cause of action, claim, issue of duty, or affirmative defense . . . [i]n a two-

column format . . . in numerical sequence.” In reviewing the court’s consideration of

County’s filings for abuse of discretion, we note that “the court’s power to deny summary

judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is

discretionary, not mandatory.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118

[affirming summary judgment order where “[t]he facts critical to the ruling were

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adequately identified, and Plaintiffs have not explained how any alleged deficiency in

[defendant’s separate statement] impaired Plaintiffs’ ability to marshal evidence to show

that material facts were in dispute”].) We are not required to reverse summary judgment

simply because the court considered filings that were noncompliant in format.

In addition, Villafana failed to demonstrate prejudice. “‘Anyone who seeks an

appeal to predicate a reversal of [a judgment] on error must show that it was prejudicial.

(Cal. Const., art. VI, § 13.)’ [Citation.]” (Carnes v. Superior Court (2005)

126 Cal.App.4th 688, 694.) As detailed above, Villafana received County’s original

filings five months before the May 24, 2012 hearing date. When County refiled its

motion and separate statement, Villafana responded in a timely fashion. He did not

demonstrate how County’s failure to sequentially number and properly identify each

cause of action impaired his ability to contest any factual disputes. Instead, Villafana

responded as if the filings were proper in all respects. Accordingly, we find no abuse of

discretion in considering County’s filings.

C. Evidentiary Objections

Villafana argues County did not present admissible evidence in support of its

motion, and as a result, failed to satisfy its initial burden. Specifically, he contends

County failed to submit proper declarations in support of its exhibits.

“Supporting and opposing affidavits or declarations shall be made by any person

on personal knowledge, shall set forth admissible evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated in the affidavits or

declarations.” (Code Civ. Proc., § 437c, subd. (d).) Here, the declaration from County’s

counsel, Yevgenia Agadzhanova, stated, in relevant part, “I have personal knowledge of

the facts set forth herein and if called and sworn as a witness, I could and would testify to

the facts stated herein.” In its opposition to Villafana’s objections, County argued the

declarant had personally observed the attached deposition and had received other

attached evidence during discovery with signed verifications from Villafana. It also

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5

raised various applicable rules to support the admission of the exhibits. As a result, the

court overruled Villafana’s objections to the attached exhibits. Villafana raises no other

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valid evidentiary challenges on appeal. The court did not abuse its discretion in

considering County’s offered evidence in support of its motion for summary judgment.

II

“Any party may move for summary judgment in any action or proceeding if it is

contended that the action has no merit or that there is no defense to the action or

proceeding.” (Code Civ. Proc., § 437c, subd. (a).) The Supreme Court set out burdens in

motions for summary judgment as follows: “[F]rom commencement to conclusion, the

party moving for summary judgment bears the burden of persuasion that there is no

triable issue of material fact and that he is entitled to judgment as a matter of

law. . . . There is a triable issue of material fact if, and only if, the evidence would allow

a reasonable trier of fact to find the underlying fact in favor of the party opposing the

motion in accordance with the applicable standard of proof. . . . [¶] . . . [T]he party

moving for summary judgment bears an initial burden of production to make a prima

facie showing of the nonexistence of any triable issue of material fact; if he carries his

burden of production, he causes a shift, and the opposing party is then subjected to a

burden of production of his own to make a prima facie showing of the existence of a

triable issue of material fact. . . . A prima facie showing is one that is sufficient to

support the position of the party in question.” (Aguilar v. Atlantic Richfield Co. (2001)

25 Cal.4th 826, 850–851 (Aguilar), fns. omitted.)

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County also responded to Villafana’s objections to declarations from other

individuals supporting other exhibits. But because Villafana raises only the declaration

by County’s counsel in his opening brief, we do not address the court’s treatment of the

other objections here.

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On the last page of Villafana’s opening brief he claims “that some of [County’s]

objections were erroneously sustained . . . [¶] [and] that some of [his] objections were

erroneously overruled.” However, he does not specify which objections he contends the

court treated erroneously, apart from referring to all of the objections from each party.

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We review de novo a trial court’s ruling on a motion for summary judgment.

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).) Under this de

novo standard, “[w]e liberally construe the evidence in support of the party opposing

summary judgment and resolve doubts concerning the evidence in favor of that party.

[Citation.]” (Ibid.)

Villafana claims the court erred in granting County’s motion for summary

judgment because: his claims were timely; he demonstrated triable issues of material fact

on his claims for disability discrimination, harassment, retaliation, and failure to prevent

discrimination and harassment; County’s explanation for its actions was pretextual; his

First Amendment rights were violated; County violated FMLA and CFRA; and County is

not immune pursuant to section 820.2. We address each contention below.

A. Timeliness of DFEH Claims

Villafana argues his DFEH claims are timely. He contends three relevant acts

occurred within the statute of limitations period: his medical release, County’s failure to

accommodate him, and its failure to engage in a good faith interactive process. He also

contends his claims that predate the statute of limitations fall within the continuing

violation exception.

A plaintiff pursuing a FEHA lawsuit must first file an administrative complaint

with DFEH within one year of the alleged wrongful act of employment discrimination.

(§ 12960, subd. (d).) Here, Villafana filed his DFEH complaint on November 23, 2009.

Thus, any allegations of violations that were more than one year before that date are

untimely, including County’s October 2008 letter to appellant describing its intent to

release him, Villafana’s written response a week later, and County’s final decision to

release him in November 2008. The only County action within the limitations period is

the effective date of Villafana’s release, on November 24, 2008. Absent an application of

the continuing violation exception, all other actions fall outside the limitations period.

Under the continuing violation doctrine, “an employer is liable for actions that take place

12

outside the limitations period if these actions are sufficiently linked to unlawful conduct

that occurred within the limitations period.” (Yanowitz, supra, 36 Cal.4th at p. 1056.)

Villafana claims that his reporting of the incident in 1991, 1996, 1998, 1999, 2000,

2004, and 2008 triggered County’s duty to reasonably accommodate his disability and

engage in the interactive process, demonstrating a continuing violation within the

exception to the limitations period. However, as discussed below, County has no duty to

engage in an interactive process when a reasonable accommodation is impossible. (See

Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 981 (Nadaf-

Rahrov).) Similarly, County need not accommodate Villafana if he was unable to

perform in any position at the organization, even with an accommodation. (See Jensen v.

Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 (Jensen).) Without a violation during

the statutory period, the continuing violation exception simply does not apply. (See

Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 326 (Trovato).)

In July 2008, Villafana’s psychiatrist designated him as unable to work in any

position, even on a part-time basis. And in 2009, the same psychiatrist confirmed that

Villafana had made no progress. Thus, throughout the limitations period, County was

under no obligation to accommodate Villafana or to engage in an interactive process. As

a result, any alleged violations before the statutory period cannot be linked to a more

recent act, because there was no violation during the statutory period. (See Richards v.

CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 [finding continuing violation exception

applies after “[t]he Court of Appeal correctly concluded that some of [defendant’s]

misconduct was within the relevant limitations period for FEHA actions”]; Yanowitz,

supra, 36 Cal.4th at p. 1056 [continuing violation exception applies when prior actions

“are sufficiently linked to unlawful conduct that occurred within the limitations period”].)

Accordingly, the continuing violation exception does not apply.

Nevertheless, Villafana argues that if the prior acts are not actionable, he should at

least have been permitted to use them as background evidence in support of his claim.

He relies on the Supreme Court’s ruling that in Title VII discrimination actions, “the

13

statute [does not] bar an employee from using the prior acts as background evidence in

7

support of a timely claim.” (AMTRAK v. Morgan (2002) 536 U.S. 101, 113.) However,

there is no indication that the trial court prohibited consideration of prior acts as

background evidence. In fact, County’s separate statement included multiple references

to events predating November 24, 2008. Instead, the court held that such acts could not

form the basis for a timely DFEH claim, as they fell outside of the statute of limitations.

The court’s apparent consideration of the acts as background evidence does not conflict

with Villafana’s claim here. We find no error.

B. FEHA

Villafana contends he demonstrated several triable issues of material fact on his

FEHA claims. Specifically, he argues County discriminated based on his disability,

failed to engage in the interactive process, failed to reasonably accommodate his

disability, harassed him, retaliated against him, and failed to prevent harassment and

discrimination.

Employment discrimination claims under FEHA are subject to the three-step

burden-shifting analysis of McDonnell Douglas Corp v. Green (1973) 411 U.S. 792

(McDonnell Douglas). (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355

(Guz).) The employee must first make a prima facie case of wrongful discrimination.

(Ibid.) “A prima facie case for discrimination ‘on grounds of physical disability under

the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise

qualified to do his job; and, (3) he was subjected to adverse employment action because

of his disability.’” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th

864, 886.)

The burden then shifts to the employer to rebut the prima facie case by producing

admissible evidence that its action was taken for a legitimate, nondiscriminatory reason.

(Guz, supra, 24 Cal.4th at pp. 355-356.) If that is done, the burden then shifts back to the

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“Our courts frequently turn to federal authorities interpreting Title VII of the Civil

Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (Title VII) for assistance in interpreting

the FEHA . . . .” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 463.)

14

employee to raise a triable issue of material fact that the employer’s proffered reason was

pretextual. (Id. at p. 356.) “A defendant’s summary judgment motion ‘“slightly modifies

the order of these [McDonnell Douglas] showings.”’ [Citation.] Consequently, the

[defendant] ha[s] the initial burden to either (1) negate an essential element of [the

plaintiff’s] prima face case [citation] or (2) establish a legitimate, nondiscriminatory

reason for terminating [plaintiff] [citation].” (Wills v. Superior Court (2011)

195 Cal.App.4th 143, 160.)

Pretext may be shown either directly with evidence ‘““that a discriminatory reason

more likely motivated the employer””’ or indirectly with evidence that ‘““the employer’s

proffered explanation is unworthy of credence.””’ (Morgan v. Regents of University of

California (2000) 88 Cal.App.4th 52, 68 (Morgan).) It is insufficient to show “‘the

employer’s decision was wrong, mistaken, or unwise.’” (Id. at p. 75.) The employer’s

proffered legitimate reasons must be so weak, implausible, inconsistent, incoherent, or

contradictory “‘“‘that a reasonable factfinder could rationally find them “unworthy of

credence,”’”’” in order to infer that the employer’s decision was not based on them.

(Ibid., italics omitted.)

1. Disability Discrimination

FEHA makes it unlawful to discharge an employee due to mental disability or

medical condition. (§ 12940, subd. (a).) Villafana claims County discriminated against

him, in violation of FEHA, when it released him on account of his psychiatric disability.

Employment discrimination claims under FEHA are subject to the three-step burden

shifting analysis outlined above. (Guz, supra, 24 Cal.4th at pp. 354-355.) FEHA

“‘specifically . . . exclud[es] from coverage those persons who are not qualified, even

with reasonable accommodation, to perform essential job duties: “This part does not

prohibit an employer from refusing to hire or discharging an employee with a physical or

mental disability . . . where the employee, because of his or her physical or mental

disability, is unable to perform his or her essential duties even with reasonable

accommodations . . . .”’” (Lui v. City and County of San Francisco (2012)

15

211 Cal.App.4th 962, 970 quoting Green v. State of California (2007) 42 Cal.4th 254,

262 (Green).)

The parties do not dispute that Villafana suffers from a psychiatric disability.

However, Villafana presented no evidence other than his own testimony to indicate that

at the time of his release, he was qualified to perform some other, unspecified, job for

County that presented “no ethical conflicts.” (See Green, supra, 42 Cal.4th at p. 260

[burden on plaintiff to show he “can perform the essential functions of the job with or

without reasonable accommodation”].) To the contrary, multiple physician certifications

of his psychiatric disability confirm his inability to work. In July 2008, the certification

form required his physician to designate whether the “patient [is] now able to work with

reasonable continuity.” The physician responded that Villafana was unable to work in

“his regular occupation” and “any occupation,” even on a part-time basis. A second

certification in 2009 indicated that Villafana could not work with reasonable continuity

for any occupation, and that his progress was “unimproved.” From this, the court could

reasonably conclude there was no possibility that Villafana was able to return to work.

(See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228 (Hanson) [finding

physician report prohibiting employee from working jobs requiring wrist dexterity “does

not support [employee’s] contention that a handbrace would have been a reasonable

accommodation, nor does it support [employee’s] own after-the-fact, self-serving

deposition testimony that handbracing would have been a reasonable accommodation”].)

In addition, Villafana had not worked since March 2000. As the Civil Service

Commission determined, Villafana did not demonstrate that he was qualified to do his

job, or any other job for County. Accordingly, Villafana failed to establish a prima facie

case for disability discrimination.

Even were we to assume that Villafana established a prima facie case of

discrimination, we find County satisfied its summary judgment burden of establishing a

legitimate, nondiscriminatory reason for releasing him from employment. In its notice of

intent to release Villafana from employment, County provided six nondiscriminatory

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reasons: he had been out of work for at least the past seven years; there was “no suitable

position in which [he could] perform satisfactorily”; he met the criteria for total

disability; he received long-term disability benefits and was scheduled to continue

receiving them until he reached age 65; and he was ineligible for disability retirement. At

the trial court, County presented admissible evidence to support these claims, including

medical certifications of Villafana’s inability to work until retirement. Thus, County

effectively rebutted Villafana’s prima facie claim of disability discrimination, and

satisfied its initial burden at the summary judgment stage.

Villafana claims pretext, but failed to raise a triable issue of material fact to

support it. He did not present evidence that he was medically cleared to return to work,

other than claiming that he was ready to return. On the other hand, County provided two

certifications of Villafana’s inability to work just before and after the medical release. In

addition, Villafana’s absence from the workplace since 2000, along with his disability

benefits, further confirms his incapacity to work at County. In short, Villafana presented

no evidence, other than his own beliefs, to show that County’s stated reasons were

untrue, or that it acted with a discriminatory motivation. County was entitled to summary

adjudication of Villafana’s claim for disability discrimination under FEHA.

2. Failure to Accommodate

Villafana also claims County failed to accommodate his disability by allowing him

to return to work in another position with County that presented “no ethical conflict.” He

contends County incorrectly believed it had no duty to accommodate him because of his

designation as totally disabled.

FEHA requires employers to “make [a] reasonable accommodation for the known

physical or mental disability of an . . . employee.” (§ 12940, subd. (m).) Under the

statute, “a disabled employee is entitled to a reasonable accommodation . . . provided that

such accommodation does not impose an undue hardship on the employer.” (Sanchez v.

Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338.) An employer defendant can prevail

on summary judgment if it shows there was no vacant position within its organization for

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which the disabled employee was qualified and which the disabled employee was capable

of performing with or without accommodation. (Jensen, supra, 85 Cal.App.4th at

p. 263.)

As we have discussed, Villafana was diagnosed in 2008 as totally disabled through

his retirement age. His physician declared him unable to work in his original job and any

job, even with an accommodation such as part-time work. Because County demonstrated

that Villafana was unable to work, it showed that there was no vacant position which he

was capable of performing during the statutory period. As a result, County was not

obligated to provide Villafana with another employment opportunity within its

organization, and thus did not fail to accommodate Villafana.

Villafana relies on Cleveland v. Policy Management Systems Corp. (1999)

526 U.S. 795 (Cleveland), which held that the different definitions of “disability” in

federal laws do not preclude an applicant from receiving Social Security Disability

Insurance (SSDI) based on total disability while making a valid claim under the

Americans with Disability Act. “[W]hen the [Social Security Administration] determines

whether an individual is disabled for SSDI purposes, it does not take the possibility of

‘reasonable accommodation’ into account, nor need an applicant refer to the possibility of

reasonable accommodation when she applies for SSDI.” (Id. at p. 803.) Villafana argues

that his classification as totally disabled for purposes of receiving workers’ compensation

and long-term disability benefits does not mean that he could not return to work with

reasonable accommodations. However, in Cleveland the Supreme Court held that a

“plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier

SSDI total disability claim. Rather, she must proffer a sufficient explanation.” (Id. at

p. 806.) “To defeat summary judgment, that explanation must be sufficient to warrant a

reasonable juror’s concluding that, assuming the truth of . . . the earlier statement [of total

disability], the plaintiff could nonetheless ‘perform the essential functions’ of her job,

with or without ‘reasonable accommodation.’” (Id. at p. 807.)

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Unlike Cleveland, Villafana’s case involved more than simply a determination of

total disability for purposes of receiving disability benefits. As we have discussed,

Villafana failed to provide a medical certification that he was capable of returning to

work, even after his certification of workers’ compensation was no longer needed. At the

Civil Service Commission hearing and during the summary judgment motion

proceedings, Villafana relied only on his own testimony of his ability to fulfill the

essential tasks of a job with County. (See Hanson, supra, 74 Cal.App.4th at p. 228.)

Villafana failed to offer an explanation of his ability to work sufficient to warrant a

reasonable jury finding in his favor. Thus, County was entitled to summary adjudication

of Villafana’s failure to accommodate claim.

3. Good Faith Interactive Process

FEHA requires employers “to engage in a timely, good faith, interactive process

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

any, in response to a request for reasonable accommodation by an employee or applicant

with a known physical or mental disability or known medical condition.” (§ 12940,

subd. (n).) In cases where the employer knows of the employee’s disability, the

employer has an affirmative duty to engage in the process. (Prilliman v. United Airlines,

Inc. (1997) 53 Cal.App.4th 935, 950-951 [“[A]n employer who knows of the disability of

an employee has an affirmative duty to make known to the employee other suitable job

opportunities with the employer and to determine whether the employee is interested in,

and qualified for, those positions, if the employer can do so without undue hardship or if

the employer offers similar assistance or benefit to other disabled or nondisabled

employees or has a policy of offering such assistance or benefit to any other

employees”].)

“Failure to engage in [the interactive] process is a separate FEHA violation

independent from an employer’s failure to provide a reasonable disability

accommodation, which is also a FEHA violation.” (Wysinger v. Automobile Club of

Southern California (2007) 157 Cal.App.4th 413, 424 (Wysinger).) “An employer may

19

claim there was no available reasonable accommodation. But if it did not engage in a

good faith interactive process, ‘it cannot be known whether an alternative job would have

been found.’ [Citation.] The interactive process determines which accommodation is

required. [Citations.] Indeed, the interactive process could reveal solutions that neither

party envisioned.” (Id. at pp. 424-425.) However, liability for failure to engage in an

interactive process only occurs “if a reasonable accommodation was possible.” (Nadaf-

Rahrov, supra, 166 Cal.App.4th at p. 983 [“We conclude that the availability of a

reasonable accommodation (i.e., a modification or adjustment to the workplace that

enables an employee to perform the essential functions of the position held or desired) is

necessary to a section 12940(n) claim”].)

Villafana relies on Claudio v. Regents of University of California (2005)

134 Cal.App.4th 224 (Claudio), to demonstrate that the ability to perform the essential

functions of a job is not an element of a section 12940, subdivision (n) claim. (Ibid.

[holding triable issue existed concerning failure to participate in interactive process

regardless of whether reasonable accommodation was possible].) He contends County

was obligated to engage in the process despite his designation as totally disabled.

However, in Claudio, the employer had not demonstrated that no reasonable

accommodation existed. The court noted “[a]t a minimum, it appears plaintiff may have

been physically able to handle clerical positions. Thus, this is not a case (at least not yet)

where it can be said an interactive process would have been futile.” (Id. at p. 249.) By

contrast, in this case Villafana was diagnosed as “totally disabled,” with no ability to

return to work, even in an alternative position or on a part-time basis. His most recent

diagnosis of panic disorder in July 2008 confirmed this. The physician indicated

Villafana was unable to work in “his regular occupation” and “any occupation,” even on

a part-time basis or in a position involving “no ethical conflicts.” As a result, there was

no prospect that Villafana could return to work during the statutory period. Without that,

County was under no obligation to engage in the interactive process. (See Nadaf-Rahrov,

supra, 166 Cal.App.4th at p. 983.)

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4. Harassment

Villafana contends that County’s conduct leading up to and including the medical

release amounts to a prohibited form of harassment. Section 12940, subdivision (j)(1)

prohibits harassment of an employee based on a physical disability or a medical

condition. “[H]arassment focuses on situations in which the social environment of the

workplace becomes intolerable because the harassment (whether verbal, physical, or

visual) communicates an offensive message to the harassed employee.” (Roby v.

McKesson Corp. (2009) 47 Cal.4th 686, 706.) Villafana last reported to work in 2000,

and has since been absent from the workplace due to medical leave. Without a presence

in the workplace since 2000, Villafana cannot show he was harmed by a harassing work

environment. As a result, he cannot show harassment during the statutory period, so the

continuing violation exception does not apply. (See Trovato, supra, 192 Cal.App.4th at

p. 326.) In light of this conclusion, we need not reach County’s other defenses to this

cause of action. As a result, County was entitled to summary adjudication of Villafana’s

harassment claim.

5. Retaliation

Villafana contends that his retaliation claim was based on County’s 2008 medical

release. He argues County’s action was motivated by his prior efforts to draw attention to

the 1991 abuse incident.

Employers may not “discharge, expel, or otherwise discriminate against any

person because the person has opposed any practices forbidden” under FEHA. (§ 12940,

subd. (h).) Retaliation claims under FEHA are subject to the same burden-shifting

analysis as discrimination claims. (Yanowitz, supra, 36 Cal.4th at p. 1042.) The

employee must first establish a prima facie case of retaliation by showing “(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. [Citations.]” (Ibid.) The employer then must offer a legitimate,

21

nonretaliatory reason for the adverse employment action. (Ibid.) If it does, the employee

must prove intentional retaliation. (Ibid.)

A causal link may be established with evidence of the employer’s knowledge that

the employee engaged in a protected activity and the proximity in time between that

activity and the allegedly retaliatory employment action. (Morgan, supra,

88 Cal.App.4th at p. 69.) Conversely, a lack of proximity may support an inference that

the two events are not causally linked, unless the employer’s pattern of conduct is

consistent with a retaliatory intent. (Wysinger, supra, 157 Cal.App.4th at p. 421.)

Here, assuming but not deciding that Villafana established the first two

requirements for retaliation, he did not show a causal connection between his medical

release in 2008 and his efforts to report the 1991 incident in previous years. County

presented six reasons for medically releasing Villafana from employment, and none

referenced his efforts to bring attention to the abuse. A casual connection over such a

long period of time is tenuous at best. In addition, Villafana had been absent from the

workplace since 2000, so he could not have experienced retaliation during that time.

Finally, as discussed above, any retaliatory actions prior to November 23, 2008 fall

outside of the statute of limitations. In particular, Villafana cannot successfully assert

that his alleged 2008 reporting of the incident triggered the County’s alleged retaliatory

release, since that particular reporting occurred after County’s notice of intent to release

him.

For the same reasons, County has satisfied its burden of providing a legitimate

nondiscriminatory reason for his release. As described above, there was sufficient

evidence for the court to conclude that County released Villafana due to his prolonged

absence from the workplace, incapacity to work, and other nondiscriminatory factors.

Thus, County was entitled to summary adjudication of Villafana’s retaliation cause of

action.

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6. Failure to Prevent Retaliation and Harassment

Villafana contends County failed to prevent discrimination and harassment in

violation of section 12940, subdivision (k). But “courts have required a finding of actual

discrimination or harassment under FEHA before a plaintiff may prevail under section

12940, subdivision (k). [Citation.]” (Carter v. California Dept. of Veterans Affairs

(2006) 38 Cal.4th 914, 925, fn. 4.) Because we affirm summary judgment on all of

Villafana’s FEHA causes of action, we also affirm summary judgment on his claim that

County failed to prevent discrimination and harassment. (See Scotch v. Art Institute of

California (2009) 173 Cal.App.4th 986, 1021.)

C. Title 42 United States Code Section 1983

Villafana argues in his reply brief that County violated his First Amendment rights

under the United States Constitution when it released him, allegedly due to his prior

speech about the abuse incident in 1991. In his original complaint, Villafana alleged

violations of sections 1981 and 1983 of title 42 of the United States Code, but raises no

claim regarding section 1981 on appeal. We treat it as abandoned. (See Paulus v. Bob

Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.)

Because Villafana failed to argue a First Amendment violation in his opening

brief, we normally would consider it forfeited. (Wurzl v. Holloway (1996) 46

Cal.App.4th 1740, 1754, fn. 1 [“‘A point not presented in a party’s opening brief is

deemed to have been abandoned or waived. [Citations.]’ [Citation.]”].) However, since

County addressed the claim on the merits “in an abundance of caution,” we briefly

8

resolve it here.

“A claim for retaliation for engaging in protected speech under the First

Amendment requires proof that (1) the person was subjected to an adverse action; (2) the

8

County also addressed a cause of action based on an alleged deprivation of equal

protection and due process, which Villafana raised in his original complaint. However,

because Villafana did not include the claims in his opening and reply briefs on appeal, we

treat them as forfeited. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th

118, 125 [“an appellant’s failure to discuss an issue in its opening brief forfeits the issue

on appeal”].)

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person had engaged in speech that was constitutionally protected because it touched on a

matter of public concern; and (3) the protected speech was a substantial motivating factor

for the adverse action. [Citation.]” (Lachtman v. Regents of University of California

(2007) 158 Cal.App.4th 187, 214 (Lachtman).)

Here, as in Lachtman, we decline to reach the first two elements because Villafana

did not show that his statements motivated County’s decision to release him. First, his

2008 report occurred after County notified him of the medical release. Second, the 2004

report predated County’s medical release by four years. Villafana does not succeed in

showing County’s action was motivated by his prior reports. Furthermore, as we

describe above, County’s decision to release Villafana was supported by several

nondiscriminatory factors. For similar reasons, Villafana’s pretext argument fails. Thus,

County was entitled to summary adjudication of Villafana’s claim based on a violation of

his First Amendment rights.

D. CFRA and FMLA

Villafana argues that had County provided him a reasonable accommodation, and

permitted him to return to work, he could have taken time off under CFRA (section

12945.2) and FMLA (29 U.S.C. § 2601 et seq.) due to stress. In his opening and reply

briefs, he does not cite to any specific provisions of CFRA or FMLA to support this

argument.

CFRA “‘is intended to give employees an opportunity to take leave from work for

certain personal or family medical reasons without jeopardizing job security.’

[Citation.].” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1253

(Avila).) It prohibits employers from denying employee requests for time off for family

care and medical leave, under certain circumstances, including when the employee has

accrued “at least 1,250 hours of service with the employer during the previous 12-month

period . . . .” (§ 12945.2, subd. (a).) Because CFRA is part of FEHA, the procedures

governing FEHA claims also apply to CFRA claims. (§ 12960, subd. (a).) Accordingly,

in order to bring a claim under CFRA, an employee must file a DFEH complaint within

24

one year of the alleged unlawful practice. (§ 12960, subd. (d).) Here, Villafana filed his

DFEH claim on November 23, 2009, so any alleged FEHA and CFRA violations prior to

November 23, 2008 fall outside of the statute of limitations. Since Villafana last reported

to the office on March 20, 2000, he does not meet the 12-month service requirement. As

a result, no CFRA violations could have occurred within the statutory period. (See

Dobos v. Voluntary Plan Administrators, Inc. (2008) 166 Cal.App.4th 678 [holding Los

Angeles County’s termination of allegedly totally disabled employee absent from work

did not violate FMLA or CFRA].)

FMLA “provides protections to employees needing family or medical leave

similar to those provided by CFRA.” (Avila, supra, 165 Cal.App.4th at p. 1254, fn. 8.) It

requires actions to be filed no later than two years after the date of the last event

“constituting the alleged violation for which the action is brought.” (29 U.S.C. § 2617,

subd. (c)(1).) As detailed above, Villafana last reported to work on March 20, 2000. He

conceded in his deposition that his claimed FMLA violations occurred in December

2000, well outside of the two-year statute of limitations. County also contends that

Villafana’s claims here fail because he did not raise the issues in his original DFEH

complaint, and he was never denied medical leave in violation of the statutes. Because

we find his claims fail for the reasons discussed above, we need not reach these two

defenses. County was entitled to summary adjudication of Villafana’s CFRA and FMLA

claims.

E. Public Policy

Villafana contends his medical release amounts to a wrongful termination in

violation of public policy. In his reply brief, he describes the cause of action as “merely a

duplication of [his] other FEHA and [f]ederal civil rights claims.” Since we find County

was entitled to summary adjudication of those claims, there can be no wrongful

termination in violation of public policy. Thus, County was entitled to summary

adjudication of Villafana’s wrongful termination claim as well.

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F. Governmental Immunity

County argues it is immune from FEHA and federal civil rights law liability for

releasing Villafana from employment pursuant to sections 815.2 and 820.2. Because we

affirm the summary adjudication of Villafana’s FEHA and federal claims, we do not

reach County’s defense of immunity.

DISPOSITION

The judgment is affirmed. County is entitled to its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

EDMON, J.*

________________________________________________________________________

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

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