Horton v. Cauley

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 CORY A. HORTON, Case No. 22-cv-03174-WHO 7 Plaintiff, ORDER GRANTING DEFENDANTS’ 8 v. MOTION FOR SUMMARY JUDGMENT 9 CITY AND COUNTY OF SAN FRANCISCO, et al., Re: Dkt. Nos. 107, 110 10 Defendants. 11 12 Plaintiff Cory Horton asserts thirteen claims against his former employer, defendants City 13 and County of San Francisco and the San Francisco Public Utilities Commission, which is a 14 department of the City and County of San Francisco (collectively, the “City” or “defendants”), 15 stemming from a third-party attack that Horton suffered in August 2020 while he walked to work. 16 He contends that the City failed to reasonably accommodate his resulting disability, discriminated 17 against him on the basis of that disability, retaliated against him, fostered a hostile work 18 environment, and failed to provide him with the due process he was owed regarding his eventual 19 medical separation. The City moves for summary judgment on all claims, arguing that the 20 undisputed facts establish that all of Horton’s claims fail on the merits, and some for lack of 21 proper procedure. 22 The record shows that in the aftermath of the attack, the City worked with Horton to 23 accommodate his safety concerns and his disability. It granted him a leave of absence upon his 24 request and extended it six times between March 2021 and November 2021. Horton did not work 25 in-person between December 2020, when he went on family medical leave, until the date of his 26 medical separation nearly a year later. In the intervening months, the City engaged in the 27 interactive process, but the accommodation that Horton sought—100% telework—was not 1 reasonable given the nature of his job. Nothing in the record supports that the City discriminated 2 against Horton, retaliated against him, or subjected him to hostility. Many of his claims also fail 3 for lack of administrative exhaustion or other procedural deficiencies. None can prevail. The 4 City’s motion is GRANTED. 5 BACKGROUND 6 Starting in December 2019, Horton worked as a stationary engineer, designated as a 7 temporary employee, at the San Francisco Public Utilities Commission (“SFPUC”) Headquarters 8 located at 525 Golden Gate Avenue, San Francisco (“525 Golden Gate”); he provided onsite 9 maintenance and repaired the building’s HVAC system. See Declaration of Maria Mabutas 10 (“Mabutas Decl.”) [Dkt. No. 107-57] ¶ 3; id. Ex. 7; see also Declaration of Rachel Gardunio 11 (“Gardunio Decl.”) [Dkt. No. 107-58] ¶¶ 2-3. 12 The incident that led to this litigation occurred on August 12, 2020. On that day, Horton 13 commuted to work via BART. He exited his train at the Civic Center BART station and was 14 assaulted by three individuals. See Shapiro Decl. Ex. 9 (San Francisco Sheriff Incident Report 15 from August 12, 2020). 16 On August 17, 2020, Horton told his manager at the SFPUC, Al Larcina, and the Facilities 17 Director at 525 Golden Gate, Maria Mabutas, what happened, and informed them that he did not 18 feel safe commuting to work. See Oppo. Ex. 18; Mabutas Decl. ¶¶ 12-29; Mabutas Decl. Exs. 4-6. 19 He stated that the attack “altered [his] life,” and that he had to “change [his] commuting 20 practices,” causing an “unexpected long-term expense that would not exist if not for this incident.” 21 See Oppo. Ex. 18 at p. 105. He asked Mabutas whether there were any “commuting 22 accommodations, safety accommodations, [or] further security” that the City could offer to make 23 him feel safer on the way to work. Id. He also asked whether there were “support systems or 24 resources” for people like him who had “experienced such severe traumas,” and inquired as to 25 what the SFPUC was doing to increase security around the area. Id. 26 Mabutas responded the same day. She said that she was aware of the attack and that the 27 building managers had been informed. See Mabutas Decl. Ex. 5. She also told Horton that he had 1 information and added that she was working on finding him a temporary parking spot so that he 2 could drive to work. Id. 3 On December 10, 2020, Horton began Family Medical Leave Act (“FMLA”) because he 4 had become a father. Four days later, on December 14, 2020, he accepted appointment to a 5 Permanent Civil Service (“PCS”) position. See Declaration of Adam Shapiro (“Shapiro Decl.”) 6 [Dkt. No. 107-7], Ex. 7 at 1. The Notice and Report of Probationary Status that he signed 7 indicated that his probationary period would last for 2080 work hours and that he had received no 8 credit for his prior service.1 Id.; see also Horton’s Opposition (“Oppo.”) [Dkt. No. 108] Ex. 1. 9 While he was on FMLA leave, which was scheduled to last through March 2021, see 10 Mabutas Decl. ¶¶ 30-31, Horton submitted two claims for worker’s compensation arising from 11 complications he was experiencing in the wake of the August 2020 attack. He submitted the first 12 claim on February 10, 2021. See Shapiro Decl. Ex. 36 (email from Horton to Larcina and 13 Mabutas, dated February 10, 2021, attaching DWC-1 form). It was denied because the assault had 14 not occurred at work. See Declaration of Silvia Recinos (“Recinos Decl.”) [Dkt. No. 107-61] Ex. 15 2 (worker’s compensation denial letter, dated February 16, 2021). 16 Horton submitted the second claim on February 21, 2021, alleging that he had been stalked 17 by his attackers while at work sometime after the August 12, 2020, assault and before he went on 18 FMLA leave in December 2020. See Shapiro Decl. Ex. 37 (second worker’s compensation form, 19 dated February 21, 2021). He stated: “After returning to work following my assault on the week 20 of Aug. 17th of 2020 through Aug. 20th 2020 and the following work [sic] Aug. 23rd [through] 21 Aug. 27th week I had experienced multiple traumas during my AM duty rounds many of which 22 continued all through December 3rd of 2020.” Id. He reported that he had “tried to block many of 23 these occurrences out,” so the “dates [might] not be exact.” Id. He indicated that he had been 24 followed to and from work on several occasions after he was attacked.2 This was the first time 25 1 The notice also stated, mistakenly, that his probationary period would end on December 10, 26 2020, four days before he signed the notice. As discussed in Section VI, below, this was a typographical error. The correct date for the anticipated end of his probationary period was 27 December 10, 2021. 1 that Horton notified the City of these continuing incidents. Mabutas Decl. ¶¶ 35-38. 2 On the same day that he submitted his second claim, Horton requested accommodation for 3 his disability. See Shapiro Decl. Exs. 13-15. He emailed Mabutas, stating “I didn’t realize I was 4 suffering from trauma until having time to process these events and take preliminary tests. All the 5 events and encounters mentioned have led to an increased anxieties and more issues. I don’t want 6 to return to my job in such an unstable state neither do I want to lose my job of which I really love 7 and enjoy for not showing up. However, I do need help with this issue. Can you please help?” Id. 8 Ex. 13 (email dated February 21, 2021). He also emailed the City’s ADA coordinator, Joan 9 Philpott, asking whether there was an “accommodation for a change of my job/remote 10 telecommuting,” because he “just can’t physically return to the site at this time.” Id. Ex. 14. 11 When Philpott asked what the issue was, Horton replied that he had “suffered repeated trauma at 12 my job by my attackers while at work,” had “multiple encounters” with his attackers while doing 13 his morning duties, but it “wasn’t until [he] had the time to look closer that it is now apparent how 14 much danger I was in.” Id. He explained that his anxieties were very high because of the level of 15 gang activity in the area surrounding 525 Golden Gate. Id. He asked to “continue working” but 16 explained that he did not feel safe working in the “current capacities.” Id. 17 The ADA coordinator forwarded Horton’s request to Rick Nelson, the Equal Employment 18 Opportunity (“EEO”) Programs Manager at SFPUC. See id. Ex. 15. Nelson emailed Horton the 19 reasonable accommodation request packet with instructions on how to complete it with a 20 healthcare provider and instructions to contact Nelson if Horton had questions. Id. 21 Horton filled out the reasonable accommodation request form and sent it back to Nelson, 22 see id. Ex. 15 at pp. 5-7. He initially attached doctors’ notes from visits before he started working 23 for SFPUC. See id. Ex. 16 at p. 3 (doctor’s note from October 2019 indicating that at that time 24 Horton had a “medical condition” that was “exacerbated by his current position” and he would 25 benefit from a “less stressful position”); id. p. 4 (doctor’s note from April 2016 indicating that 26 Horton had a depressive disorder). 27 1 Nelson responded to Horton the same day, explaining that he would need more specific 2 information about Horton’s condition to assess any accommodation request. See id. Ex. 17. He 3 explained that he did not need “details of [Horton’s] diagnosis,” but he would need to see 4 something that is “specific as to what you can and cannot do, and specific as to the expected 5 duration of the condition.” Id. Horton provided some of the requested information. See id. Ex. 19 6 (doctor’s note requesting “Leave of Absence extension” for Horton, dated March 14, 2021). On 7 March 15, 2021, Nelson granted him a temporary reasonable accommodation leave through April 8 12, 2021. Id. Ex. 20. 9 Throughout the next seven months, the City extended Horton’s leave of absence five more 10 times. See Shapiro Decl. Exs. 21-36. Each time, the extensions followed the submission of a 11 medical note from Horton’s doctor explaining that he could not return to work at all. See e.g., id. 12 Ex. 19 (letter from Jeryl Girton, NP, stating: “Please accept this letter as written Notification that 13 Mr. Cory Horton is unable to attend work and carry out his regular job duties at this time,” and 14 anticipating a return date of April 12, 2021); id. Ex. 21 (letter from same doctor’s office, stating 15 that Horton was still unable to attend work and carry out his regular job duties). 16 At some point in April 2021, Horton and Nelson had a conversation that prompted Horton 17 to express that he felt that he was being “rushed and pressured to enter back to an environment that 18 is unsafe.” Id. Ex. 25. Nelson responded that he did not intend to rush Horton back to work, and 19 that his goal “as a reasonable accommodation coordinator is to find ways that employees with 20 either temporary or permanent disabilities can eventually return to work.” Id. Ex. 26. Nelson 21 explained that he was “asking for additional medical documentation” because he was “trying to 22 explore other potential accommodations,” but did not know what those could look like without 23 more information about Horton’s medical restrictions. Id. Nelson further stated that “[t]here are 24 timelines for getting back to work but nothing is set in stone . . . [leave] can’t be indefinite, but we 25 allow a reasonable amount of time depending on the circumstances.” Id. He finally explained that 26 medical separation, which had apparently been brought up in a prior conversation with Horton, 27 was not a given, but would be the last resort if “all other options” had been exhausted. Id. 1 September 29, 2021. See id. Ex. 35. Nelson and another EEO coordinator, Dena Narbaitz, 2 warned Horton on several occasions that if they could not find a reasonable accommodation for 3 his condition, medical separation might be the result; Horton responded to these warnings with 4 threats to sue Nelson and Narbaitz. See id. Exs. 5, 25, 39.3 5 On October 23, 2021, the SFPUC sent Horton a letter informing him that it was 6 recommended that he be medically separated. Shapiro Decl. Ex. 43. On November 1, 2021, right 7 before an interactive process meeting was scheduled to start, Horton emailed Narbaitz, stating: 8 “Please know I have filed DFEH and EEOC complaints against you.” Shapiro Decl. ¶ 47, Ex. 45. 9 This was the first time that Horton notified Narbaitz that he had filed a complaint against her with 10 DFEH and EEOC. Id. Ex. 1 at 361:6-365:4. Shortly thereafter, Horton filed internal complaints 11 against Narbaitz. See Shapiro Decl. Exs. 46-47 (emails from Horton to Narbaitz stating that 12 Narbaitz had been “extremely abusive and inconsiderate of rights”). 13 On November 30, 2021, the City medically separated Horton. See id. Ex. 48 (Notice of 14 Medical Separation, stating “[t]his letter is to inform you that you are hereby medically separated 15 from your employment with the City and County of San Francisco . . . [as a PCS Engineer] with 16 the [SFPUC]”). He had been on leave since his FMLA leave began in December 2020; he had 17 been on an extended leave of absence for nearly nine months. During Horton’s leave, he did not 18 earn any time that could be credited toward his probationary period. See Gardunio Decl. ¶ 4. 19 On February 4, 2022, Horton filed an administrative complaint with the EEOC, asserting 20 two allegations: (1) that he was “denied the interactive process and reasonable accommodations,” 21 see Shapiro Decl. No. 49 (EEOC Complaint, Allegation 1); and (2) that he was retaliated against 22 for requesting accommodations for his disability, id. (Allegation 2). 23 Horton filed this action on May 31, 2022. After three amended complaints, the only 24 remaining defendants are the City and County of San Francisco and the SFPUC. The City moved 25 for summary judgment on the 13 remaining claims. See Motion for Summary Judgment 26 3 In the TAC, Horton says that on August 19, 2021, he filed a complaint against Narbaitz alleging 27 that she had denied him participation in the interactive process and was discriminating against him 1 (“Motion”) [Dkt. No.107]. 2 LEGAL STANDARD 3 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 4 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 5 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 6 the absence of a genuine issue of material fact with respect to an essential element of the non- 7 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 8 persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has 9 made this showing, the burden then shifts to the party opposing summary judgment to identify 10 “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary 11 judgment must then present affirmative evidence from which a jury could return a verdict in that 12 party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). 13 On summary judgment, the court draws all reasonable factual inferences in favor of the 14 non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility 15 determinations, the weighing of the evidence, and the drawing of legitimate inferences from the 16 facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony 17 does not raise genuine issues of fact and is insufficient to defeat summary judgment. See 18 Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 19 When a plaintiff is proceeding pro se, the court has an obligation to construe his motions 20 and pleadings liberally. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001); see also 21 Christensen v. CIR, 786 F.2d 1382, 1384 (9th Cir. 1986).4 22 23 24 25 4 Horton has represented himself through much of this action. I appointed counsel through the Federal Pro Bono Program to assist him in drafting an amended complaint and to represent him in 26 a settlement conference. Counsel helped amend the complaint, defended against the City’s motion to dismiss, and participated in an unsuccessful mediation. After he completed his limited 27 representation, the Pro Bono Program was unable to locate another counsel for Horton for the 1 DISCUSSION 2 I. ADA AND FEHA DISABILITY CLAIMS 3 To establish a prima facie case under the Americans with Disabilities Act (“ADA”) and 4 survive summary judgment, Horton “must show: (1) [he] is a qualified individual with a disability; 5 (2) [he] was denied a reasonable accommodation that he needs in order to enjoy meaningful access 6 to the benefits of public services; and (3) the program . . . is a public entity.” Csutoras v. Paradise 7 High Sch., 12 F.4th 960, 968–69 (9th Cir. 2021) (quoting A.G. v. Paradise Valley Unified Sch. 8 Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016)). To establish a prima facie case for failure to 9 make reasonable accommodations under the California Fair Employment and Housing Act 10 (“FEHA”), Horton must show that, (1) he has a disability under the FEHA; (2) he is qualified to 11 perform the essential functions of the position; and (3) the City failed to reasonably accommodate 12 his disability. Scotch v. Art Inst. of Cal.-Orange Cnty., Inc., 173 Cal. App. 4th 986, 1009-10 13 (2009) (citation omitted). “Reasonable accommodation” means a “modification or adjustment to 14 the workplace that enables a disabled employee to perform the essential functions of the job held 15 or desired.” Nadaf–Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 974 (2008). 16 The undisputed facts show that Horton cannot prevail on his ADA and FEHA claims. 17 When the City became aware of his disability, it engaged him in the interactive process in an 18 attempt to provide him with reasonable accommodations. Nothing in the record supports that the 19 City or its employees discriminated against him based on his disability or otherwise treated him in 20 a disparate fashion. 21 A. Claims 3, 5, 11-12: Failure to Provide Reasonable Accommodation and Disability Discrimination 22 Horton argues that the City failed to provide a reasonable accommodation after he 23 requested it first on August 17, 2020, and then again on February 21, 2021. See Claims 3, 5 24 (ADA); Claims 11-12 (FEHA). The record does not support him for two distinct reasons. First, he 25 did not inform his employer of his non-obvious disability until February 10, 2021, at the earliest, 26 so claims relating to the accommodation processes prior to that date fail as a matter of law. 27 Second, after he did claim to be disabled, his employer engaged him in the interactive process in 1 an attempt to find reasonable accommodations. 2 1. The City Was Not Aware of Horton’s Disability Until February 2021 3 “The ADA treats the failure to provide a reasonable accommodation as an act of 4 discrimination if the employee is a ‘qualified individual,’ the employer receives adequate notice, 5 and a reasonable accommodation is available that would not place an undue hardship on the 6 operation of the employer’s business.” Snapp v. United Transportation Union, 889 F.3d 1088, 7 1095 (9th Cir. 2018) (internal quotations omitted) (emphasis added). “The Ninth Circuit has held 8 that notifying an employer of a need for an accommodation triggers a duty to engage in an 9 interactive process through which the employer and employee can come to understand the 10 employee’s abilities and limitations, the employer’s needs for various positions, and a possible 11 middle ground for accommodating the employee.” Id. (internal quotations omitted) (emphasis 12 added). California courts, applying federal ADA law to FEHA, have held that “[w]here the 13 disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, 14 and apparent to the employer, . . . the initial burden rests primarily upon the employee . . . to 15 specifically identify the disability and resulting limitations, and to suggest the reasonable 16 accommodations.” Scotch v. Art Inst. of California, 173 Cal. App. 4th 986, 1013 (2009) (quoting 17 Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 166 (5th Cir. 1996)). 18 The City’s duty to engage in an interactive process and provide a reasonable 19 accommodation for Horton’s disability was triggered in February 2021, when Horton first 20 informed his supervisors at the SFPUC that he had been diagnosed with PTSD in the aftermath of 21 the August 12, 2020, attack. Horton argues that the City became aware of his disability as early as 22 August 17, 2020, which is when he informed Mabutas of the attack. See TAC ¶¶ 77-78. But he is 23 conflating his requests for safety accommodations with his requests for the SFPUC to reasonably 24 accommodate his disability. 25 After Horton told Mabutas that he had been attacked, she informed the SFPUC Deputy 26 General Manager, the Program Manager, Security Manager, and Health and Safety Managers, so 27 that safety accommodations could be made. See Mabutas Decl. Exs. 5-6. Nothing in the record 1 the aftermath of the August 12, 2020, attack, the City had any reason to know that he was 2 disabled. Indeed, Horton acknowledged that he did not understand himself to be suffering from 3 PTSD until long after August 17, 2020. See Shapiro Decl. Ex. 13 (February 21, 2021, email from 4 Horton to Mabutas seeking accommodation and stating in relevant part, “I didn’t realize I was 5 suffering from trauma until having time to process these events and take preliminary tests[.]”). 6 2. After February 2021, the City Engaged in the Interactive Process; Horton Arguably Did Not 7 After the City became aware of Horton’s disability, it engaged in the interactive process in 8 an effort to provide a reasonable accommodation. “The interactive process requires (1) direct 9 communication between the employer and employee to explore in good faith the possible 10 accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation 11 that is reasonable and effective.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 12 2002). Importantly, the employer is not required to provide the exact accommodation that an 13 employee requests, so long as they provide “some reasonable accommodation.” Id. 14 Construing the facts in the light most favorable to Horton, the earliest that the City could 15 have been aware of Horton’s disability is February 10, 2021, which is when Horton sent his first 16 worker’s compensation request to Larcina and Mabutas. The DWC-1 form he attached indicates 17 that after the attack in August 2020, he suffered “lower back, right hand pain, psychological 18 trauma, nightmares, depression, anxiety, numbness, insomnia, blackouts.” Shapiro Decl. Ex. 36. 19 Although Horton had not yet explicitly declared that he was disabled, he did indicate that he was 20 suffering from a number of symptoms that his employer could have interpreted as making his 21 disability “open, obvious, and apparent”. See Scotch, 173 Cal. App. 4th at 1013. Then, on 22 February 22, 2021, Horton explicitly requested an ADA reasonable accommodation request form 23 from Nelson and filed it that same day. See Shapiro Decl. Ex. 15. 24 Horton was on leave at the time. His employer regularly communicated with him about 25 his options. Early on in the accommodation process, Horton asked to do his work “100% remote.” 26 See Shapiro Decl. Exs. 13-15. However, entirely remote work was not possible given his job 27 description. See Mabutas Decl. ¶¶ 2-7 (explaining that Horton’s job required some in-person 1 attendance). Nelson and Narbaitz instead urged Horton to submit a note from his doctor 2 specifying what work restrictions he had so that they might determine what accommodations 3 could be made available to him. See Shapiro Decl. Exs. 5, 16-17, 26, 28, 32, 35, 40, 42-43. 4 Nelson told Horton that the City would be able to evaluate him for other jobs if and when Horton 5 submitted medical documentation indicating what work restrictions he had beyond simply being 6 unable to return to work. See id. Ex. 5 at 66:5-67:16, 68:1-70:6, 98:7-99:16; see id. Exs. 16 7 (medical note from 2016), 26 (email from Nelson to Horton explaining what medical information 8 he needed to evaluate Horton for other positions), 28 (email from Nelson to Horton explaining that 9 he “can’t put [Horton] in a job search that might result in placing you in a job” when he was 10 placed “completely off work by [his] doctor”), 32 (email from Horton to Nelson following up on a 11 phone conversation between the two of them, indicating that Horton did not want to be 12 “pressured” to return to work), 35 (email from Narbaitz to Horton extending his leave of absence 13 from through August 18, 2021 to through September 29, 2021). 14 Despite the requests for more detailed information, Horton’s medical notes continued to 15 offer no indication of what modified work Horton might have been able to do. See Shapiro Decl. 16 Exs. 19, 21, 23, 25, 29, 30, 32, 34. What Horton was seeking, functionally, was indefinite leave 17 from work. The Ninth Circuit has held that “recovery time of unspecified duration may not be a 18 reasonable accommodation (primarily where the employee will not be able to return to his former 19 position and cannot state when and under what conditions he could return to work at all).” Dark v. 20 Curry Cnty., 451 F.3d 1078, 1090 (9th Cir. 2006); see also Samper v. Providence St. Vincent Med. 21 Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (holding that accommodation that exempts a plaintiff 22 from an essential function of his job is not reasonable).5 The City extended Horton’s leave of 23 absence six times between when Horton first indicated he was disabled and his medical separation. 24 Under the circumstances, it was under no obligation to do more. 25 Horton’s reluctance to work with the City to find a reasonable accommodation is another 26 5 The City points out that Horton could have potentially been granted some telework, but, as I 27 stated before, he never submitted medical documentation that would have allowed the City to 1 problem he cannot overcome. To move forward with a FEHA interactive process claim, Horton 2 must show that he “was willing to participate in an interactive process to determine whether a 3 reasonable accommodation could be made,” and that defendants “failed to participate in a timely 4 good-faith interactive process.” California Civil Jury Instructions (“CACI”) No. 2546. In a FEHA 5 failure-to-accommodate claim, an employer can prevail at summary judgment if it can show that it 6 “did everything in its power to find a reasonable accommodation, but the informal interactive 7 process broke down because the employee failed to engage in discussions in good faith.” Jensen v. 8 Wells Fargo Bank, 85 Cal. App. 4th 245, 262–63 (2000). 9 With respect to Horton’s ADA claim, damages are not available for failure to 10 accommodate claims “where the covered entity demonstrates good faith efforts, in consultation 11 with the person with the disability who has informed the covered entity that accommodation is 12 needed, to identify and make a reasonable accommodation[.]” 42 U.S.C. § 1981a(a)(3); see also 13 Damian Raffele v. VCA, Inc., 2020 WL 5875029 (C.D. Cal. Jul. 15, 2020) (discussing good faith 14 defense against ADA reasonable accommodation claims). The City has shown that it made good 15 faith efforts to accommodate Horton, but he disrupted the interactive process. 16 Steffes v. Stephan, 144 F.3d 1070 (7th Cir. 1998) is on point. There, the court noted that 17 the employee plaintiff had caused a breakdown in the interactive process by failing to attempt to 18 provide specifics and detail about her work restrictions or provide helpful information about the 19 work she could do with her disability. The Seventh Circuit explained that the plaintiff’s 20 contributions to the breakdown was partial justification for granting summary judgment for the 21 defendants. See Steffes, 144 F.3d at 1072-74. Here, Horton submitted what was essentially the 22 same doctor’s note several times in a row, each time stating that he was “unable to attend work 23 and carry out his regular job duties,” or something very like that statement. See e.g. Shapiro Decl. 24 Exs. 19, 21, 23, 30. This was despite Nelson’s repeated requests that Horton provide more 25 information about his restrictions so that Nelson could consider Horton for other jobs that might 26 accommodate his disability. Horton never provided that information.6 27 1 For all the reasons stated above, Horton’s ADA and FEHA failure to accommodate and 2 disability discrimination claims cannot prevail, and the City is entitled to summary judgment on 3 Claims 3, 5, 11, and 12. 4 B. Claim 4: ADA Disparate Treatment 5 Horton’s disparate treatment claim arises from what he claims was the mishandled 6 allocation of parking passes. After he was attacked in August 2020, Horton asked Mabutas what 7 the SFPUC was doing to help ensure his safety coming to and from work. See Oppo. Ex. 18; 8 Mabutas Decl. Exs. 5-6. Mabutas explained that, among other things, she was working on getting 9 Horton access to a temporary parking spot and a parking pass to go with it. Mabutas Decl. Ex. 5. 10 Horton thanked her for her response. Mabutas Decl. Ex. 6. 11 Horton states that other employees were provided with parking passes, and he was not. He 12 contends that his disability was the motivating factor behind this disparity. See TAC ¶¶s 88, 89. 13 But this is not a cognizable ADA claim because at the time that Horton requested the parking 14 passes, he was not known (either to himself or the City) to be disabled. He was requesting safety 15 accommodations, not disability accommodations. See discussion supra Section I(A)(1). 16 Accordingly, any dispute over whether and to what extent the City made parking passes available 17 to him in the aftermath of the August attack is immaterial. 18 Moreover, the record shows that the SFPUC attempted to provide Horton with a parking 19 pass. Larcina testified that he offered Horton the parking pass, but Horton rejected it, saying “he 20 didn’t want to drive into work.” Shapiro Decl. Ex. 4 at 37:4-21. Horton admitted that he was 21 offered the parking pass and that he told “[his] employer” that he thought driving to work would 22 be an “enormous expense.” See id. Ex. 1 at 278:11-279:3, 292:25-293:5. This was Horton’s 23 prerogative, but it does not enable him to complain about disparate treatment because the SFPUC 24 provided parking passes to other employees. For these reasons, the City is entitled to summary 25 judgment on Claim 4. 26 27 II. HOSTILE WORK ENVIRONMENT UNDER TITLE VII 1 Horton’s Title VII hostile work environment claim (Claim 1) fails for two independant 2 reasons. Horton did not file an administrative complaint with the EEOC or DFEH that asserted a 3 hostile work environment or race discrimination or anything reasonably related to either claim. 4 And nothing in the record supports that the City created or perpetuated a hostile work 5 environment. 6 A. Failure to Exhaust Administrative Remedies 7 Horton’s hostile work environment cause of action is predicated on his allegation that 8 “[d]efendants subjected [him],” a Black man, to “unwelcome conduct by forcing him, as a term 9 and condition of his employment, to endure unwanted racial epithets, harassment, physical 10 violence . . . [and a] harmful working environment and re-traumatization.” TAC ¶ 67. But his 11 administrative complaint, filed in February 2022 after these incidents occurred, makes no mention 12 of either the racially motivated epithets themselves or his employer’s alleged failure to address 13 them. 14 “Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely 15 charge with the EEOC, or the appropriate state agency, thereby affording the agency an 16 opportunity to investigate the charge.” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 17 2002) (citing 42 U.S.C. § 200e-5(b)). A plaintiff does not need to specifically raise an issue in an 18 EEOC charge to have the issue considered exhausted if the issue is “like or reasonably related to” 19 the administrative allegations. See id. “Incidents of discrimination not included in an EEOC 20 charge may not be considered by a federal court unless the new claims are like or reasonably 21 related to the allegations contained in the EEOC charge.” Shelley v. Geren, 666 F.3d 599, 606 (9th 22 Cir. 2012) (quoting Green v. L.A. Cty. Superintendent of Schs., 883 F.2d 1472, 1476 (9th Cir. 23 1989)). In determining whether issues are “reasonably related,” the court considers “whether the 24 original EEOC investigation would have encompassed the additional charges.” Id. (holding that 25 newly alleged incidents were “reasonably related” to the EEOC charge because the incidents were 26 “part of the same course of conduct” investigated by the EEOC). 27 The only administrative complaint in the record was filed on February 4, 2022, after 1 Horton was medically separated. In it, Horton alleges that he experienced disability 2 discrimination and that he had been retaliated against for requesting a disability related 3 accommodation. See Shapiro Decl. Ex. 49 (EEOC Complaint filed February 4, 2022, alleging 4 “discrimination” and “retaliation”). The EEOC complaint explained that the discrimination 5 Horton experienced was related to what Horton perceived to be his employer’s failure to engage in 6 the interactive process about his accommodation requests. See id. at p. 2. It stated that the 7 retaliation he experienced was related to his request for a disability accommodation. See id. The 8 EEOC complaint does not assert racial harassment or a hostile work environment, nor does it 9 contain allegations that are “reasonably related” to hostile work environment allegations. This is 10 fatal to his Title VII claim. It fails.7 11 B. The Merits 12 Even if Horton had administratively exhausted his Title VII claim, it fails on the merits. 13 The claim conflates the harassment Horton endured at the hands of third parties with what he 14 perceives to be harassment and discrimination that he endured at the hands of his employers. 15 Title VII is violated where the “workplace is permeated with ‘discriminatory intimidation, 16 ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s 17 employment and create an abusive working environment.’” Harris v. Forklift Systems, Inc., 510 18 U.S. 17, 21 (1993) (cleaned up). In determining if an environment is so hostile as to violate Title 19 VII, the court must consider whether, in light of “all the circumstances,” the harassment is 20 “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an 21 abusive working environment.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112–13 (9th Cir. 22 2004) (internal citations omitted). 23 An employer is not only liable for harassment or discrimination undertaken by itself or its 24 employees; it may be held liable for “actionable third-party harassment of its employees,” but only 25 where the employer “ratifies or condones the conduct by failing to investigate and remedy it after 26 27 7 Horton does not dispute that he never included allegations about race discrimination or 1 learning it.” Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005). As to harassment by 2 persons who are not supervisors, plaintiff must show that “management knew or should have 3 known of the harassment and failed to take reasonably prompt, corrective action.” Swinton v. 4 Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001) (cleaned up). 5 Horton alleges that he was subjected to harassment by his supervisor Larcina and by the 6 facilities director, Mabutas, because of his race. He does not allege that Larcina or Mabutas 7 themselves harassed him; rather, he contends that they “subjected” him to “unwelcome conduct” 8 by “forcing him . . . to endure unwanted racial epithets, harassment, physical violence … [a] 9 harmful working environment and re-traumatization.” TAC ¶ 66. The conduct he endured was 10 perpetrated by third parties who “called [Horton] the N-word” and “threat[end] ‘murder the 11 monkey’ in Spanish.” Id. ¶ 68. That Horton endured such foul language, especially within the 12 same year that he suffered a physical attack, is regrettable. But the City’s conduct was not. 13 Horton informed his employer about these continuing incidents of harassment for the first 14 time on February 21, 2021, when he submitted the second worker’s compensation claim. See 15 Shapiro Decl. Ex. 37. His first claim did not indicate that he was being harassed at work. See 16 Recino Decl. Ex. 2. After Horton submitted the second one, the City extended his leave of 17 absence at least six times; Horton did not work in-person from the time he first went on family 18 medical leave in December 2020 until he was medically separated in November 2021. See 19 Shapiro Decl. Exs. 20, 22, 24, 31, 33, 35. 20 Horton states in the TAC that “Mabutas and Larcina refused to take steps needed to 21 prevent or limit” his harassment, “despite having it being a known dangerous area, plaintiff filing 22 police reports, restraining orders with the DA, multiple incidents, complaints, and accommodation 23 requests to improve safety[.]” TAC ¶ 68. Horton says that he found his work environment to be 24 “hostile and heavily charged with physical violence, threats and discrimination,” and that the 25 defendants “did not exercise reasonable care to prevent the creation of a hostile work environment 26 charged with racial epithets, physical violence, disability discrimination and did not exercise 27 reasonable care to rescind current practices.” Id. ¶ 70. But once he did alert his supervisors to the 1 a result, they extended his leave of absence several times. 2 Horton argues that he reported these incidents to his supervisors when they happened but 3 provides no evidence to back up his claim. See Oppo. at p. 4-5. He says that he filed “multiple 4 internal complaints with the security officers”; that may be true, but those security officers were 5 San Francisco Police Department sheriffs who do not report directly to Horton’s supervisors. 6 SFPUC policies state that incidents like these should be reported to a supervisor, which Horton did 7 not do. Declaration of Michael Ho (“Ho Decl.”) [Dkt. No. 107-60] ¶¶ 5-8, Ex. 2 at CCSF_5177, 8 Ex. 3 at CCSF_05100, Ex. 4, Ex. 5.8 While he may have expected the security guards to report the 9 incidents of racial harassment by third parties to his supervisors, see Shapiro Decl. Ex. 1 (Horton 10 Deposition) 291:1-15, that did not happen, and nothing in the record suggests it should have as a 11 matter of policy.9 12 What Horton endured at the hands of third parties was unfortunate. But there is nothing in 13 the record that supports the elements of a Title VII claim for a hostile work environment. The 14 City and its employees did not harass Horton. Once the City was made aware of the third-party 15 harassment, Horton was on a leave of absence that the City extended multiple times. For these 16 reasons, defendants are entitled to summary judgment on Claim 1. 17 III. LABOR CODE SECTION 6311 18 Horton asserts a claim under California Labor Code section 6311, alleging that defendants 19 retaliated against him for refusing to work in violation of health and safety standards (Claim 17). 20 Section 6311 provides that “[n]o employee shall be laid off or discharged for refusing to perform 21 8 Horton included in his Opposition two reports that he wrote about telephone conversations he 22 had with San Francisco Police Department officers Wong and Dong about his experiences with racial harassment at the hands of third parties while at work. See Oppo. Exs. 6-7; see also 23 Plaintiff’s Ex Parte Request for Assistance from Court [Dkt. No. 110]. These reports are hearsay and cannot be considered as evidence. That said, nothing in those reports would change my 24 analysis of any claims in this case. Horton’s ex parte motion regarding the officers is DENIED as moot. 25 9 In the TAC, Horton also alleges that he was “informed from another supervisor and senior 26 employees retiring that Black Americans were not being treated fairly, targeted and to be careful of termination while [sic] temporary status.” Id. ¶ 68. If he received such warnings, there is no 27 evidence of them in the record. And assuming the allegation is true, that has no bearing on 1 work . . . where [a workplace safety] violation would create a real and apparent hazard to the 2 employee or their fellow employees.” Cal. Lab. Code § 6311. The undisputed facts show that the 3 City medically separated Horton because it could not reasonably provide the accommodation that 4 he sought for his disability, not because he refused to work in violation of health and safety 5 standards. 6 The letter of medical separation that the SFPUC sent to Horton on November 30, 2021, 7 explains that he had been on leave since December 4, 2020, with personal medical leave starting 8 on March 4, 2021. See Shapiro Decl. Ex. 48 (Letter of Medical Separation, sent by Dennis J. 9 Herrera, General Manager, SFPUC). The letter states that indefinite leave was not a reasonable 10 accommodation and that Horton had not provided any medical documentation suggesting he could 11 return to work by a certain date despite repeated requests for that information. Id. It also states 12 that Horton had failed to engage in the interactive process in good faith. Id. Nothing in the letter 13 indicates that Horton was terminated because he expressed an unwillingness to work in a 14 dangerous workplace environment. 15 In addition, to prevail on a section 6311 claim Horton would have to show, among other 16 things, that there was a violation of a health and safety standard that “would create a real and 17 apparent hazard to the employee or their fellow employees.” Cal. Lab. Code § 6311. It is not 18 enough that Horton reasonably believed that his workplace, or the area immediately surrounding 19 it, was unsafe. See Hentzel v. Singer, 138 Cal. App. 3d 290, 299-300 (1982); Frazier v. United 20 Parcel Serv., Inc., 2005 WL 1335245, at *12 (E.D. Cal. May 3, 2005). Because section 6311 21 “protects the more drastic conduct of refusing to work where some occupational safety or health 22 standard . . . will be violated,” the statute requires a plaintiff to show that a real and apparent 23 hazard objectively existed. Hentzel, 138 Cal. App. 3d at 299-300; see also Frazier, at *12. 24 Horton cannot show that. Horton testified to “unsafe activities,” and “homeless encampments” 25 around 525 Golden Gate, but nothing more acute than that. I am familiar with this area, as our 26 courthouse is located at 450 Golden Gate Avenue. Not only has Horton not alleged a plausible 27 section 6311 claim, there is no way that he could do so. For all of these reasons, the City is IV. TITLE VII, ADA, FEHA, AND LABOR CODE SEC. 1102.5 RETALIATION 1 For the same reasons that Horton’s section 6311 claim fails, his retaliation claims brought 2 under Title VII, the ADA, FEHA, and Cal. Labor Code § 1102.5 (Claims 2, 6, 13, and 15) also 3 fail. The undisputed evidence shows that Horton was medically separated after the SFPUC 4 extended his leave of absence six times because no reasonable accommodation could be found. 5 See discussion supra Sections I, III. Nothing in the record supports that Horton was terminated 6 for a retaliatory reason. 7 The McDonnell-Douglas burden shifting framework applies to retaliation claims under 8 Title VII, ADA, and FEHA. See Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987) (Title 9 VII), Kelly v. Boeing Co., 400 F. Supp. 3d 1093, 1107 (D. Or. 2019) (ADA); Ruiz v. RSCR 10 California, Inc., 683 F. Supp. 3d 1079, 1099 (C.D. Cal. 2023) (FEHA). Once the plaintiff 11 establishes a prima facie case of retaliation, the burden then shifts to the defendant to provide a 12 legitimate, non-discriminatory reason for its decisions. See Yartzoff, 809 F.2d at 1376. Then the 13 burden shifts back to the plaintiff to show why that reason is pretextual.10 14 First, it is questionable whether Horton could establish a prima facie case. He requested 15 reasonable accommodation and accused Mabutas of discriminating against him in February 2021. 16 See Mabutas Decl. Ex. 8; Shapiro Decl. Ex. 15. He later accused Nelson of misconduct in May 17 2021. Shapiro Decl. Ex. 25. He was not terminated until November 30, 2021. In the intervening 18 time, after he had engaged in protected activity but before he was medically separated, his leave of 19 absence (first issued in response to his disability accommodation request) was issued and extended 20 six times. Too many intervening factors separate his protected activity (requesting reasonable 21 accommodation and later accusing Mabutas of discrimination) from the allegedly retaliatory 22 action (medical separation). 23 But if the burden shifts, the City has shown that it had legitimate nondiscriminatory 24 25 10 In the section 1102.5 context, the plaintiff must show that retaliation was a “contributing factor” 26 to the termination. See Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703, 718 (2022). At that point, the burden shifts to the employer to show by “clear and convincing evidence,” that it 27 would have terminated the plaintiff for a legitimate, unrelated reason even if the plaintiff had not 1 reasons for terminating Horton—reasons that Horton cannot meaningfully contest as pretextual. 2 See discussion supra Sections I, III. The SFPUC attempted to engage Horton in the interactive 3 process over the course of seven months, and during that time, Horton provided no medical 4 information illuminating how he could return to work even in a diminished capacity. See 5 discussion supra Section I(A)(2). The only accommodation to which he appeared amenable was 6 “100% telework,” which was incompatible with his job description. See id.; see also Section III. 7 Horton has provided no rebuttal to the City’s reasoning and has not shown why it was a pretext for 8 retaliation. 9 For these reasons, the City is entitled to summary judgment on Claims 2, 6, 13, and 15. 10 V. FAILURE TO PREVENT HARASSMENT AND DISCRIMINATION 11 Claim 14 asserts failure to prevent discrimination and harassment in violation of FEHA. 12 Failure to prevent under FEHA requires predicate claims of discrimination and harassment. 13 Horton’s predicate claims fail. See supra Section II. Accordingly, Claim 14 also fails. 14 VI. SKELLY CLAIM 15 Horton also asserts a claim for violations of Skelly procedures (Claim 9).11 A due process 16 claim under Article I, Section 7 of the California Constitution requires: (1) the deprivation of a 17 protected property or liberty interest, and (2) the denial of adequate procedural protections. See 18 Skelly v. State Personnel Bd, 15 Cal.3d 194, 206, 208 (1975) (considering whether the discharged 19 employee had a property interest in his employment and whether the discharged employee 20 received adequate procedural safeguards). 21 To prevail on a Skelly claim, Horton must first show that he was deprived of a protected 22 property interest. To show that he had a property interest in his employment, he must establish 23 that he was a permanent employee rather than a probationary employee. “The California civil 24 service employment scheme confers upon permanent employees ‘a property interest in the 25 26 11 “Skelly procedures” refers to the case Skelly v. State Personnel Bd., 15 Cal. 3d 194 (1975). There, the California Supreme Court held that an employer cannot take away a permanent public 27 employee’s property rights (i.e., their vested right to continued employment) without following 1 continuation of [their] employment which is protected by due process.’” Roe v. State Personnel 2 Bd., 120 Cal. App. 4th 1029, 1040 (2004) (quoting Skelly, 15 Cal. 3d at 206). But non-permanent 3 employees “serve at the will of the employer and therefore do not possess any property interest in 4 their continued employment.” Mendoza v. Regents of University of California, 78 Cal. App. 3d 5 168, 173 (1978); accord Walls v. Central Contra Costa County Transit Authority, 653 F.3d 963, 6 968 (9th Cir. 2011) (stating that non-permanent employees in California can be terminated at any 7 time subject only to the limits of public policy). 8 Horton was a non-permanent employee when he was terminated. In pertinent part, the 9 Notice and Report of Probationary Status (“Notice”) that he signed states: 10 Part I: Notice of Probationary Status and Time of Appointment 11 Complete at time of appointment 12 Congratulations on your Permanent Civil Service (PCS) 13 appointment! 14 You are now serving your probationary period, which is used to evaluate your performance on the job. It is the final and most 15 important phase of the selection process. During your probationary period, you may be released by your appointing officer at any time in 16 accordance with Civil Service Rule 117 – Probationary Period. The duration of your probationary period is governed by provisions in the 17 Memorandum of Understanding (MOU) or ordinance covering your job code. Extensions of your probationary period are governed by 18 Civil Service Rules and provisions in the MOU or ordinance covering your job code. . . . 19 Duration of the Probationary Period (per MOU or Ordinance): 2080 20 hours. 21 Did the employee received (sic) credit for prior service?: No. Probationary Period Begin Date: 12/12/2020 22 Expected Probationary Period End Date: 12/11/2020 23 (Probation begins on the employee’s start work date in PCS status, not the certification date) 24 25 See Oppo. Ex. 1 (emphasis in original). Horton and his department head signed it on December 26 14, 2020, when he was already on FMLA leave.12 27 1 Horton argues that the Notice, signed on December 14, 2020, establishes that he had 2 completed his probationary period as of December 11, 2020, three days earlier, and so he had a 3 protected property interest when he was terminated. But that date is quite clearly a typographical 4 error. The purpose of the Notice is to describe Horton’s new work status, which requires a 5 probationary period, and to explain how the probationary period works. He received the notice at 6 the time of his appointment. Given that his probationary period was just starting, that he received 7 no credit for prior service, and that he needed to work 2080 hours (40 [hours] multiplied by 52 8 [weeks]) in order to complete his probationary period, it is obvious that the expected end date of 9 his probationary period should have read 12/11/2021, not 12/11/2020. 10 Horton contends that he started work in November 2019 and never agreed to extend his 11 probationary period. Until December 12, 2020, however, he did not have a Permanent Civil 12 Service appointment and had not accrued any hours towards completion of the probationary 13 period. He received no credit for prior service as a stationary engineer. See Gardunio Decl. ¶¶ 2- 14 4. He claims to have been a “permanent public employee who [sic] performed satisfactorily and 15 moved into the permanent position as indicated on the documents and confirmed via the MOU,” 16 Oppo. at p. 6, but that is demonstrably untrue. He states that he “successfully served his 17 probationary period . . . from 11/5/19 to 12/5/20 and was a permanent employee,” id.; the 18 Probationary Notice directly contradicts that. He was never a permanent employee. As a result, 19 he had no right to a Skelly hearing. Summary judgment for the defendants is appropriate on Claim 20 9.13 21 original on April 25, 2024, to also include “12/11/2021” in large type as the expected probationary 22 period end date, because the original Probationary Notice contained a typographical error. Defendant’s Reply Brief (“Reply”) [Dkt. No. 114] 3, n.1. I address the underlying issue in this 23 section. I will strike the City’s annotated version of the Notice and rely on Horton’s unmodified version. 24 13 Even if Horton were a permanent employee, his only argument in favor of the Skelly hearing’s 25 deficiencies is that Narbaitz was a non-neutral officer. With the benefit of a full record, I agree with the City that her presence did not so pollute the hearing as to render it ineffectual. Moreover, 26 the City is correct that courts in this district have held that employees waive their right to challenge deficiencies in pre-deprivation hearings (like Skelly hearings) when they do not invoke 27 their right to a post-termination hearing. See Zografos v. City and County of San Francisco, No. C 1 CONCLUSION 2 For the foregoing reasons, the defendants are entitled to summary judgment on all claims. 3 The clerk of the court shall enter judgment in the defendants’ favor and close the case. 4 IT IS SO ORDERED. 5 Dated: November 7, 2024 . 6 illiam H. Orrick 7 United States District Judge 8 9 10 11 12 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28 assuming, arguendo, that he was a permanent employee (which he was not), he waived his right to assert a Skelly claim when he did not request a post-termination hearing.