Filed 1/14/21 Davidson v. City & County of S.F. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION THREE
EVELYN DAVIDSON,
Plaintiff and Appellant, A159180
v.
CITY AND COUNTY OF SAN (City & County of San Francisco
FRANCISCO, Super. Ct. No. CGC-18-563596)
Defendant and Respondent.
Plaintiff Evelyn Davidson, formerly an employee of defendant
City and County of San Francisco (City), sued the City for disability
discrimination, failure to provide reasonable accommodation, and
failure to engage in the interactive process in violation of the California
Fair Employment and Housing Act (FEHA). The City successfully
moved for summary judgment, and judgment was entered in its favor.
On appeal, Davidson argues that (1) the trial court erred in
granting summary judgment, as she established a prima facie case on
her disability discrimination claim and presented triable issues of fact
as to each of her three claims; and (2) the trial court abused its
discretion in striking a portion of Davidson’s declaration submitted in
opposition to the summary judgment motion. We affirm.
1
FACTUAL BACKGROUND
All of the facts set forth herein are undisputed unless otherwise
noted. Only facts necessary to the resolution of the appeal are recited
and additional facts are set forth within the discussion portion of this
opinion.
In March 2016, Davidson began working for the City in a
temporary position, with a six-month limit, as a Contract Compliance
Officer in the Contract Monitoring Division (CMD). Around the same
time, three other individuals were also hired by the City as temporary
Contract Compliance Officers.
On her first day of work, Davidson had difficulty stepping up onto
a sidewalk during a site visit with her supervisor, Ryan Young. Young
helped her up onto the sidewalk and stated that he would get her a
reasonable accommodation. They also discussed getting a good chair
for Davidson to use in the CMD office. When Davidson returned to the
office, she was directed to an area where there were available chairs
but was not able to find a suitable one as they were all broken. There
is no evidence in the record regarding who directed her to the area,
whether Davidson was accompanied, or whether Young knew the
chairs were broken.
In her declaration submitted in opposition to the summary
judgment motion, Davidson stated that she told Young that none of the
available chairs were appropriate. At her deposition, Davidson was
asked whether she told Young that “none of [the chairs] sufficed?” She
responded, “In so many words, yes.” When asked for clarification,
Davidson stated: “That means I didn’t use your exact language.
Maybe.” Davidson was then asked whether she “found some way to
2
express to him [she was] unhappy with these available chairs?”
Davidson responded, “Yes.” When asked when she expressed that
unhappiness to Young, Davidson stated that she had “no idea. Within
. . . a few days later. At least a few days later. Maybe that same day.
Maybe the next day.” She then testified that she never told Young to
get her a new chair, and did not recall “going to him and saying, you
know, I need a chair that fits my circumstances.”
On July 7, 2016, Davidson filled out a form seeking medical leave
with an anticipated leave time through August 2016 for hip surgery.
CMD’s then interim director Romulus Asenloo testified that, sometime
between July 7 and July 21, 2016, he began discussing the upcoming
expiration of Davidson’s employment term with Young. Davidson
started her medical leave on July 29, 2016.
While on leave, Davidson requested to extend her leave to
November 4, 2016. The City notified Davidson that Civil Service Rule
120.20 limited sick leave for temporary employees to three months, and
thus it could approve Davidson’s leave only through October 31, 2016.
The City also provided Davidson with a reasonable accommodation
request form. Davidson submitted the completed form on October 4,
2016, requesting use of a walker and restricted walking.
Davidson returned to work on November 1, 2016. Two weeks
later, Davidson emailed a CMD benefits program manager to ask about
the process for getting an ergonomic assessment or getting a specific
type of chair. That same day, the City provided her with the training
and self-assessment needed to initiate the process.
On December 9, 2016, Davidson’s temporary employment period
ended and her employment was terminated. While Davidson was
3
released at the expiration of her temporary employment period, the
three employees who had started with Davidson were hired into
permanent positions. According to the City, each of those employees
had applied for a permanent position, whereas Davidson had not.
There was no evidence in the record that Davidson could not apply for a
permanent position.
Davidson subsequently received a letter from the City that her
reasonable accommodation request had been approved. The letter was
dated December 8, 2016, but she did not receive it until after her
employment was terminated.
PROCEDURAL BACKGROUND
On December 8, 2017, Davidson filed a complaint with the
Department of Fair Employment and Housing (DFEH) alleging
harassment, disability discrimination, and retaliation. She obtained a
right to sue notice the same day.
On January 10, 2018, Davidson filed a complaint against the City
alleging four causes of action: (1) disability discrimination under
FEHA; (2) failure to provide reasonable accommodation under FEHA;
(3) failure to engage in the interactive process under FEHA; and (4)
violation of whistleblower protection under Labor Code section 1102.5.
The City moved for summary judgment. Davidson dismissed her
whistleblower claim, but opposed the summary judgment motion as to
her remaining three claims. The City made various objections to
evidence submitted by Davidson in her opposition, including the
paragraph of her declaration stating: “I told Mr. Young that none of
the available chairs were appropriate.” The City argued that this
evidence contradicted Davidson’s deposition testimony.
4
On September 18, 2019, the trial court issued a detailed ruling
granting the City’s summary judgment motion in its entirety. The trial
court also struck the paragraph of Davidson’s declaration stating that
she had told Young “none of the available chairs were appropriate,” but
noted that, even if not stricken, the City was still entitled to summary
judgment. Judgment was entered for the City and Davidson timely
appealed.
DISCUSSION
Davidson contends the trial court erred in granting summary
judgment as she established a prima facie disability discrimination
case and also presented triable issues of fact on each of her three
claims. She further argues the trial court abused its discretion in
striking the paragraph of her declaration stating she told Young that
“none of the available chairs were appropriate.” We address each
argument in turn.
I. SUMMARY JUDGMENT
Code of Civil Procedure section 437c, subdivision (c), provides
that summary judgment is properly granted when there is no triable
issue of material fact and the moving party is entitled to judgment as a
matter of law. A defendant moving for summary judgment has the
initial burden of showing that a cause of action lacks merit because one
or more of its elements cannot be established or it is subject to an
affirmative defense. (Id., subds. (p)(2), (o)(1); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Once a defendant
meets this burden, the burden shifts to the plaintiff to show the
existence of a triable issue of material fact. (Code Civ. Proc. § 437c,
subd. (o); Aguilar, supra, 25 Cal.4th 826 at p. 850.)
5
On appeal, we review orders granting a summary judgment
motion de novo. (Aguilar, supra, 25 Cal.4th 826 at p. 860.) “We
exercise ‘an independent assessment of the correctness of the trial
court’s ruling, applying the same legal standard as the trial court in
determining whether there are any genuine issues of material fact or
whether the moving party is entitled to judgment as a matter of law.’ ”
(Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 303.)
We must “ ‘view the evidence in the light most favorable to plaintiff[ ]
as the losing part[y]’ and ‘liberally construe plaintiff[’s] evidentiary
submissions and strictly scrutinize defendant’s own evidence, in order
to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.’ ”
(McDonald v. Antelope Valley Community College Dist. (2008) 45
Cal.4th 88, 96–97.) With these principles in mind, we turn first to
Davidson’s discrimination claim.
A. Discrimination Claim
Discrimination claims under FEHA are analyzed using a three-
step test. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354
(Guz).) First, the employee has “the initial burden to establish a prima
facie [showing] of wrongful discrimination.” (Ibid.) If the employee
does so, the burden then shifts to the employer to produce “admissible
evidence that its action was taken for a legitimate, nondiscriminatory
reason.” (Id. at p. 355–356.) If the employer produces this evidence,
the burden then shifts back to the employee to “demonstrate a triable
issue by producing substantial evidence that the employer’s stated
reasons were untrue or pretextual, or that the employer acted with a
discriminatory animus, such that a reasonable trier of fact could
conclude that the employer engaged in intentional discrimination or
6
other unlawful action.” (DeJung v. Superior Court (2008) 169
Cal.App.4th 533, 553.)
In the context of a defendant seeking summary judgment, the
test is applied such that the defendant bears the initial burden to show
plaintiff’s prima facie case is lacking and then, only if that burden is
met, plaintiff is required to demonstrate a triable issue of fact. (Martin
v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730–
1731.) “In this sense, upon a defendant’s summary judgment motion in
an employment discrimination action ‘the burden is reversed . . . .’ ”
(Id. at p. 1731, quoting University of Southern California v. Superior
Court (1990) 222 Cal.App.3d 1028, 1036.)
Davidson contends the City failed its initial burden to show she
failed to establish a prima facie case. Davidson further contends that,
even if she did not establish a prima facie case, she raised a triable
issue of fact regarding whether the City’s stated reason for her
termination was pretextual. We begin with the first step.
1. Prima Facie Case
The prima facie case for disability discrimination under FEHA
requires an employee to prove that she: (1) suffered from a disability;
(2) could perform the essential functions of the job with or without
reasonable accommodation; and (3) was subjected to an adverse
employment action because of her disability. (Jenkins v. County of
Riverside (2006) 138 Cal.App.4th 593, 603 (Jenkins).) During summary
judgment and on appeal, the City argues only that Davidson failed the
third element: showing adverse employment action based on her
disability.
7
An employee’s prima facie burden is “ ‘not onerous,’ ” but she
“must at least show ‘ “actions taken by the employer from which one
can infer, if such actions remain unexplained, that it is more likely
than not that such actions were ‘based on a [prohibited] discriminatory
criterion . . . .’ ” ’ ” (Guz, supra, 24 Cal.4th at p. 355.) An employee
need only present evidence that “demonstrates, even circumstantially
or by inference,” that he or she was subjected to an adverse
employment action because of a disability. (Moore v. Regents of
University of California (2016) 248 Cal.App.4th 216 (Moore).)
Here, Davidson relies on the following to make her prima facie
case: that (1) Asenloo “began discussing” Davidson’s termination two
weeks after Davidson sought medical leave for her hip surgery; and
(2) the three other employees who started with Davidson were hired
into permanent positions while she was not. These actions and
circumstances, if left unexplained, suggest possible adverse
employment action based on Davidson’s disability. (Mamou v.
Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 714 [“[I]t is enough
for the plaintiff to present ‘some other circumstance’ that ‘suggests’ a
proscribed motive”].) Accordingly, we conclude that Davidson made a
prima facie showing on her discrimination claim.
8
2. Legitimate Reason for Termination
As Davidson made a prima facie showing, we move to the second
step – whether the City produced sufficient evidence that Davidson was
terminated for a legitimate, nondiscriminatory reason. (Guz, supra, 24
Cal.4th at pp. 355–356.)
In March 2016, Davidson was hired as a temporary employee
with a limited six-month term. She worked for five months (March
through July 2016), and then was on leave until she returned in
November 2016. Accordingly, her temporary employment period
expired in December 2016, and she was terminated. Asenloo averred
that his “sole consideration” in terminating Davidson was that her
position was a temporary job.
As the expiration of a temporary employment term is a
legitimate, non-discriminatory reason for termination, we conclude that
the City met its burden on the second step. (Jenkins, supra, 138
Cal.App.4th at p. 616.)
3. Pretext
Moving on to the third step, the question becomes whether
Davidson demonstrated a triable issue by producing “substantial
evidence” that the City’s stated reason for her termination—the
expiration of her temporary employment term—was untrue or
pretextual. (DeJung, supra, 169 Cal.App.4th at p. 553.) Davidson
relies on the same circumstantial evidence as in her prima facie
showing, arguing that (1) the “temporal proximity” between her request
for leave and Asenloo’s discussion of her termination; and (2) the
comparative treatment of Davidson versus the three other employees
9
showed that the City’s stated reason for her termination was
pretextual. Neither argument is persuasive.
First, Asenloo’s testimony makes clear that around July 2016, he
began discussing the upcoming expiration of Davidson’s employment
term, an expiration date set pursuant to standard protocol, and not
some new or different decision to terminate her. He testified that the
discussion occurred because Davidson’s employment term was set to
expire right after she returned from leave, and thus he felt that
Davidson should “at least get a heads up so she can get her affairs in
order[.]” This evidence does not show pretext, but rather supports the
City’s position that it terminated Davidson because her temporary term
had expired.
Second, Davidson’s comparison to the other three employees is
inapt. Comparative evidence is only probative if it shows disparate
treatment between employees who are “similarly situated.” (Guz,
supra, 24 Cal.4th at p. 366.) Davidson was not similarly situated to the
three other employees, as they all applied for permanent positions,
whereas Davidson did not. While Davidson appears to explain her
failure to apply by stating that she was never informed about the
opportunity for a permanent position, she has not presented any
evidence that the City provided some information to the other three
employees that was not also available to her, and does not present
evidence showing any inability to apply for a permanent position. This
evidence does not show pretext, and is insufficient to satisfy Davidson’s
burden on the third step. We thus conclude that summary judgment
was properly granted as to Davidson’s disability discrimination claim.
10
B. Reasonable Accommodation Claim
FEHA provides that it is an unlawful employment practice for an
employer to “fail to make reasonable accommodation for the known
physical or mental disability of an applicant or employee.” (Gov. Code
§ 12940, subd. (m).) “Two principles underlie a cause of action for
failure to provide a reasonable accommodation. First, the employee
must request an accommodation.” (Gelfo v. Lockheed Martin Corp.
(2006) 140 Cal.App.4th 34, 54 (Gelfo).) “Second, the parties must
engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for the failure
rests with the party who failed to participate in good faith.” (Ibid.)
Thus, while a reasonable accommodation claim is independent of an
interactive process claim, “each necessarily implicates the other.”
(Ibid.)
Davidson argues that the trial court erred in granting summary
judgment on her reasonable accommodation request because she raised
triable issues of fact regarding her accommodation requests related to
seating, walking, and extending her medical leave.
As to the seating accommodation, Davidson contends that there
is disputed evidence that she requested an appropriate chair and cites
Moore to support her position that the claim should survive summary
judgment. Moore is not on point. In that case, the trial court had
granted summary judgment on an employee’s reasonable
accommodation claim after concluding that an employee could not
prevail on such a claim if she did not actually have a disability. (Moore,
supra, 248 Cal.App.4th at p. 243.) The appellate court reversed as to
that cause of action, explaining that an employee “need not have an
11
actual disability, but need only be regarded by the employer as having
one, to be able to make out claims under section 12940, subdivisions
(m) and (n).” (Ibid.)
Here, Davidson’s disability is not in dispute. However, there is
no evidence that Davidson requested another chair after Young
directed her to the available chairs. At her deposition, Davidson
testified that she never told Young to get her a new chair. Instead, she
testified that she “found some way to express” that she was “unhappy
with these available chairs.” While no “particular form of request”
(Avila v. Continental Airlines Inc. (2008) 165 Cal.App.4th 1237, 1252)
or “magic words” are required, an employee must actually request an
accommodation in order to trigger the employer’s obligation. (King v.
United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 444.) “ ‘[T]he
employee can’t expect the employer to read his mind and know he
secretly wanted a particular accommodation and sue the employer for
not providing it.’ ” (Prilliman v. United Air Lines, Inc. (1997) 53
Cal.App.4th 935, 954.) We agree with the trial court that some vague
expression of Davidson’s unhappiness was insufficient to satisfy her
obligation to request an accommodation.
As to the walking limitation accommodation, Davidson argues
that the City did not grant her request within a reasonable time, as she
received the approval after she was terminated. But the City presented
evidence that it followed up repeatedly when Davidson’s physician
returned incomplete forms, and sent the approval six days after
receiving the completed forms. Davidson did not offer any contrary
evidence showing that the City was responsible for the delay. (See
Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22 [“Liability hinges on the
12
objective circumstances surrounding the parties’ breakdown in
communication, and responsibility for the breakdown lies with the
party who fails to participate in good faith”].)
As to the leave accommodation, Davidson contends the City
should have granted her request for leave until November 4, 2016,
instead of requiring her to return on November 1, 2016 pursuant to
Civil Service Rule 120.20. The trial court rejected this argument, citing
Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963
(Hastings) for the proposition that the City was not obligated to violate
its civil service rules in order to accommodate Davidson. In that case,
the appellate court concluded that an employee was not entitled to an
accommodation that would reassign him to a position in a difference
civil service classification. (Hastings, supra, 110 Cal.App.4th at pp.
976–977.) Hastings reasoned that its conclusion harmonized the FEHA
with the civil service laws, and was consistent with the FEHA
requirement that accommodations be “measured by the requirements of
the position for which accommodation is sought . . . .” (Id. at pp. 966,
976–977.) We agree that these principles from Hastings apply here, as
Davidson requested an accommodation that exceeded the leave allowed
for temporary employees under Civil Service Rule 120.20. Davidson
has not presented any authority to support her position that the City’s
shortening of her extension request by three days, pursuant to its civil
service rules, shows a failure to provide a reasonable accommodation.
In sum, we conclude that the evidence presented by Davidson
does not present a triable issue of fact on her reasonable
accommodation claim. Summary judgment was properly granted on
this claim.
13
C. Interactive Process Claim
FEHA provides that it is an unlawful employment practice for an
employer to “fail 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.” (Gov. Code § 12940,
subd. (n).) As described above, an employer’s obligation to engage in
the interactive process is inextricably linked to its duty to
accommodate. (Gelfo, supra, 140 Cal.App.4th at p. 61.) “[T]he
interactive process is designed to bring the two parties together to
speak freely and to determine whether a reasonable, mutually
satisfactory accommodation is possible to meet their respective needs.”
(Id. at p. 62.)
Similar to her reasonable accommodation claim, Davidson argues
that there are triable issues of fact regarding her seating, walking
limitation, and leave accommodation requests. We again find the
arguments unpersuasive.
As to the seating accommodation, Davidson was directed to the
area with available chairs after her discussion with Young at the site
visit. When Davidson emailed about getting an ergonomic assessment
or specific type of chair, the City promptly provided Davidson with the
training and self-assessment needed to initiate the process. Davidson’s
vague expression of unhappiness did not trigger further obligations by
the City, and given the City’s participation following Davidson’s specific
ergonomics request, did not result in a breakdown of the interactive
14
process. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th
986.)
As to the walking limitation accommodation, the uncontradicted
evidence presented shows that Davidson was responsible for the delay
in approving that request. (See Gelfo, supra, 140 Cal.App.4th at p. 62,
fn. 22.) As to the leave accommodation, the City granted Davidson an
extension of leave from August through October, explaining that it was
shortening the requested extension by three days pursuant to Civil
Service Rule 120.20. There is no evidence that the City failed to
participate in good faith in processing either request.
In sum, we conclude that the evidence presented by Davidson
does not present a triable issue of fact on her interactive process claim.
Summary judgment was properly granted on this claim.
II. EVIDENTIARY RULING
Davidson argues that the trial court abused its discretion in
striking the paragraph of her declaration stating she told Young that
“none of the available chairs were appropriate,” as it impacted her
ability to establish her reasonable accommodation and interactive
process claims.
Courts generally review evidentiary rulings on summary
judgment for abuse of discretion. (See Mackey v. Bd. of Trustees of CSU
(2019) 31 Cal.App.5th 640, 657 (Mackey) [“ ‘The weight of authority
holds that an appellate court reviews a court’s final rulings on
evidentiary objections by applying an abuse of discretion standard’ ”].)
While there is some question as to whether a de novo standard should
apply to evidentiary rulings made solely on summary judgment papers,
courts have reviewed the decision not to consider evidence presented
15
for the first time at the summary judgment hearing for an abuse of
discretion. (See, e.g., Wall Street Network, Ltd. v. New York Times Co.
(2008) 164 Cal.App.4th 1171, 1190–1191.) Accordingly, we proceed
under the abuse of discretion standard, which provides that the “party
challenging an evidentiary ruling bears the burden of establishing the
court exceeded the bounds of reason.” (Mackey, supra, 31 Cal.App.5th
at p. 657.)
The consideration of contradictory evidence on summary
judgment was addressed by the California Supreme Court in D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico). In
general, doubts as to the propriety of granting a summary judgment
motion should be resolved in favor of the plaintiff, and affidavits
submitted by the plaintiff should be liberally construed. (Id. at 20.)
D’Amico explained, however, that this general rule is “relaxed or
altered” when discovery has produced an admission or concession by
the plaintiff demonstrating there is no factual issue to be tried. (Id. at
p. 21.) For example, where “ ‘there is a clear and unequivocal
admission by the plaintiff, himself, in his deposition . . . we are forced
to conclude there is no substantial evidence of the existence of a triable
issue of fact.’ ” (Ibid., quoting King v. Andersen (1966) 242 Cal.App.2d
606, 608.) Courts have subsequently applied D’Amico to exclude
evidence where a plaintiff’s deposition testimony and later declaration
are contradictory or in conflict. (Benavidez v. San Jose Police Dept.
(1999) 71 Cal.App.4th 853, 862–863; Scalf v. D. B. Log Homes, Inc.
(2005) 128 Cal.App.4th 1510, 1525.)
At her deposition, Davidson testified that she did not say exactly
that “none of [the chairs] sufficed,” but instead “found some way” to
16
express to Young that she was “unhappy with these available chairs[.]”
She testified that she never told Young to get her a new chair, or “a
chair that fits [her] circumstances.” Then, in her declaration submitted
in opposition to summary judgment, she stated that she told Young
that “none of the available chairs were appropriate.” The trial court did
not “exceed[] the bounds of reason” in determining that this paragraph
in Davidson’s declaration was contradictory to her previous deposition
testimony and, therefore, it did not abuse its discretion in striking the
paragraph. (Mackey, supra, 31 Cal.App.5th at p. 657.)
DISPOSITION
Judgment is affirmed. Defendant is entitled to recover its costs
on appeal.
17
_________________________
Petrou, J.
WE CONCUR:
_________________________
Siggins, P.J.
_________________________
Jackson, J.
A159180/Davidson v. City and County of San Francisco
18