Filed 4/13/17 Scott v. Silverado-Modjeska Recreation & Park Dist. CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


JENNICE SCOTT,

Plaintiff and Appellant,

v.

SILVERADO-MODJESKA RECREATION & PARK DISTRICT,

Defendant and Respondent.


G052929

(Super. Ct. No. 30-2014-00728742)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed.
Gould & Associates, Michael A. Gould and Aarin A. Zeif for Plaintiff and Appellant.
Walsh & Associates, Dennis J. Walsh and Alice H. Chung for Defendant and Respondent.
* * *
Jennice Scott, a former employee, sued the Silverado-Modjeska Recreation & Park District (the District) for employment discrimination and related claims, alleging employment discrimination, failure to accommodate, and failure to engage in the interactive process in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) Scott alleged she was terminated after she fell on the job, suffering various injuries, and her injuries were a substantial factor in the District’s decision to terminate her. The District argued, in sum, that the decision to terminate Scott’s employment was made prior to her injury, and was the result of budget difficulties.
The District moved for summary judgment, and the trial court concluded Scott had failed to raise a triable issue of material fact as to any relevant issue. We agree. The undisputed evidence demonstrated the District’s budget problems were very significant and pressing, and Scott failed to demonstrate this was a mere pretext. We also reject Scott’s argument that the trial court’s decision to change the hearing date on the District’s motion for summary judgment requires reversal. Accordingly, we affirm the judgment.
I
FACTS
Scott worked at the Silverado Children’s Center (the Center) for 13 years, through April 25, 2014. The Center is part of the District, and provides preschool and after-school care to children ranging from two to twelve years old. Scott worked as a teacher, but from August 2013 through March 2014, she also performed office duties, including preparing the staff schedule.
The job of “teacher” encompassed more than classroom duties. According to the job description, it also included “[r]endering staff support (working as a team) to all programs and staff when necessary” and “[a]ssisting Acting director when needed in general housekeeping chores, [at] discretion of director.” Teachers were to arrange “time off, or leaving early with the director.”
The Center began experiencing a downward trend in student enrollment, which Scott believed was due to the closure of an adjacent elementary school in 2009, and could not produce sufficient revenue to cover its monthly expenses. The District began loaning thousands of dollars a month to the Center from the period between September 2013 and December 2014 to cover its expenses, including payroll. Scott believed this amount was between $5,000 and $7,000 per month. The loans totaled $23,200 between September 2013 and April 2014, and increased to $126,000 by December 2014. The District’s Board of Directors, according to Scott, discussed closing the Center at public meetings.
Scott’s own hours decreased as a result of the enrollment decline. During the period where she was responsible for making the schedule, she cut her own hours to give them to other teachers. She went from working between 34 and 38 hours a week in the fall of 2013 to less than 20 hours in February 2014. Around this time, she applied for unemployment insurance benefits with the Employment Development Department.
On March 14, 2014, the director of the Center at the time, Lindy Lane-Epstein, counseled Scott regarding her use of e-mail, specifically, that she showed “a lack of judgment in sending out mass emails to [the Center] families and the community. This has included sending an email using the [Center’s] e-mail account with the Director’s auto-signature.” The counseling statement indicated that Scott was to receive approval from the director for such communications in the future. Scott signed the statement, but submitted a rebuttal. She contested the factual basis of the statement, asserting she had not sent out mass e-mails, but had only sent one e-mail on the school account. She had sent a separate e-mail to members of the community about a public meeting “voicing my concerns as a citizen and member of the public, as well as identifying myself as a teacher at the school.” She believed the statement was issued in retaliation for exercising her freedom of speech and expressing her views as guaranteed by the First Amendment.
In March 2014, Laurie Briggs became the Program Director at the Center. Her role was to manage daily operations and direct the staff, including Scott. Briggs testified that she planned to make changes at the Center because its income was insufficient to meet expenses, and she did not want the Center to close.
As of April 2014, there were five staff members to watch over approximately 12 students. Briggs testified she decided to eliminate one position and reduce the total number of staff hours. She stated she chose to terminate Scott because she worked the fewest hours, and Briggs perceived her to be inflexible when it came to working more or different hours. Scott testified she refused such a request on at least one occasion. She had also refused a request by Briggs to take a deposit to the bank.
At the same time, Briggs wanted to increase consistency for the children by having fewer staff members work more hours. Briggs testified she made this decision on April 11. She planned to terminate Scott on April 25 and removed Scott’s name from a preliminary schedule for the week.
The schedules had apparently been an issue between Briggs and Scott. After Briggs took over the responsibility for scheduling, Scott changed some of the schedules without Briggs’s permission.
On April 16, Scott went to the Center in the afternoon to address an administrative issue; she had not been scheduled to work that day. Scott testified that when she arrived, she was near the computer and the screen turned on when a chair bumped the desk. She saw a future schedule on it, and her name was not included. She printed the schedule out. All other current staff members were listed on the schedule.
When Briggs arrived at the Center, she was approached by Scott, who asked her why she was not on the schedule. Because others were present, Briggs testified, she did not inform Scott of her pending termination, but stated the schedule was not final. According to Briggs, she asked Scott to return the schedules to her, but Scott refused. Briggs believed that Scott had printed the schedules from the Center’s computer, which she had apparently used without authorization.
Briggs thought Scott left shortly thereafter, but according to Scott, she went into a classroom to turn off a light in a utility room. She tripped over what she called “a concealed area” on the classroom floor. Scott testified there was an indentation in the floor covered by a throw rug that caused her to trip. She hurt her hip, back, knee, and wrist. She did not inform anyone at the Center of her fall before she left.
Scott called in sick to work the next day, a Friday, stating she was in pain from a fall at the Center the day before. Briggs e-mailed Scott an injury report form later than day. Scott replied that she thought the form was “excessive,” but complied and wrote that she may be much better by Monday. The report stated she had injured her knee and lower back.
On the following Monday, Scott came to work. She was using a crutch. According to Briggs, she asked Scott “if she was doing okay, if she needed anything, and how long she thought she might need the crutch.” According to Scott, all Briggs asked at the time was “how long are you going to be using that thing,” although Briggs did ask her how her back was feeling during a different conversation. She did not remember asking anyone on the staff for assistance that day, although she did recall two of the children carrying a snack tray for her. Briggs did not recall Scott asking for help either. Accordingly, Briggs testified, she did not believe Scott needed assistance or accommodation.
Scott did appear on the final schedule for what would turn out to be her last week. She was scheduled for Monday and Friday morning. On Friday morning, April 25, Briggs asked Scott to stop by Briggs’s office before she left. A human resources consultant was present at the Center that day at Briggs’s request. Scott’s final check had also been prepared and was in Briggs’s possession. According to Briggs, Scott left approximately 10 minutes early that day, and did not stop by Briggs’s office before she left. Briggs prepared a letter informing Scott of her termination and sent it via overnight mail. Scott received the letter the next day.
In June 2014, Scott filed the instant lawsuit, alleging three claims under FEHA: employment discrimination, failure to accommodate, and failure to engage in the interactive process. The District moved for summary judgment. After briefing and a hearing, the court granted the motion, concluding that Scott had not demonstrated the existence of any triable issues of material fact. Judgment was entered, and she now appeals.
II
DISCUSSION
A. Standard of Review and Relevant Law
“‘On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]’ [Citation.] A motion for summary judgment is properly granted ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ [Citation.]” (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813; see Code Civ. Proc., § 437c, subd. (c).)
“‘“A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to that cause of action. [Citations.] The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. [Citations.] Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. [Citation.]” [Citation.]’ [Citation.]” (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1443.)
“Appellate courts (1) take the facts from the record that was before the superior court when it ruled on the motion; (2) consider all the evidence set forth in the moving and opposing papers, unless the superior court sustained objections to that evidence; and (3) resolve doubts concerning the evidence in favor of the party opposing the motion. [Citation.]” (Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 368, 374.)

B. Ex Parte Order Changing Hearing Date
A motion for summary judgment must be served on the opposing party at least 75 days before the hearing and must be heard no later than 30 days before the trial, date absent a showing of good cause. (Code Civ. Proc., § 437c, subds. (a)(2), (3).)
The District filed and personally served its motion for summary judgment, and the accompanying papers, on July 2, 2015. At the time the motion was filed, the trial date was set for October 19. To meet the 75-day requirement, the hearing on the motion could not be set prior to September 15. To meet the 30-day requirement, the motion could not be heard after September 18, a Friday (the actual thirtieth day fell on a Saturday). The relevant department, however, only heard motions on Tuesdays.
At the time the motion was filed, the court was not available for a hearing on September 15. The District reserved the first date available, October 6, 13 days prior to trial, and listed it on the motion as the hearing date.
On July 8, shortly after filing the motion, the District filed an ex parte application seeking to advance the hearing date to September 15, or alternatively, to continue the trial. Scott was served with the application in a timely manner, and the court granted the application the following day. According to Scott, she received notice of the new hearing date on July 10, eight days after she was originally served with the motion.
Scott now claims the trial court abused its discretion by advancing the hearing date. Her argument on this point relies on a number of cases with significantly different factual situations. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1262; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 760, 763-764; McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 117-118.) All the while Scott ignores the most important and distinguishing fact – unlike the complaining parties in each of those cases, she was actually served with the motion and its accompanying papers on July 2, 75 days before the hearing on September 15. She offers no argument how the change in dates a week after the motion was filed prejudiced her, nor is there any logical argument to be made in this respect. Scott filed an extensive opposition on the merits, which never mentioned the notice issue. She had the full 75 days the law guarantees between the notice of the motion and the hearing. Accordingly, this issue is without merit.

C. Summary Judgment on the Merits
We address the most substantive of Scott’s claims first, which is disability discrimination. Under the standard burden-shifting test, Scott is first required to establish a prima facie case of discrimination. Once she does so, the burden then shifts to the employer to articulate a legitimate reason for its actions. The burden then returns to the plaintiff to prove by a preponderance of the evidence that the employer’s stated reason was a mere pretext for discrimination. “‘“[T]he ultimate burden of persuading the trier of fact that the defendant engaged in intentional discrimination remains at all times with the plaintiff.”’” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 343.)
A plaintiff bringing a claim under FEHA for disability discrimination “‘can establish a prima facie case by proving that: (1) [he or she] suffers from a disability; (2) [he or she] is a qualified individual; and (3) [he or she] was subjected to an adverse employment action because of the disability.’” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254, fn. omitted.) There is no material issue as to the first two parts of the test here; the only question is whether Scott was terminated because of the disability.
What does causation mean in this context? Put another way, a plaintiff must establish more than that discrimination was simply a motivating factor, he or she must show that it was a “substantial factor.” This “effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time . . . proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) While a plaintiff may be expected to rely on inferences to establish a triable issue as to discriminatory intent, the inferences the court is asked to draw must be reasonable. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1529-1530.)
Discrimination can be proved by using direct or indirect evidence. Scott focuses her argument on indirect evidence, thereby conceding there was little, if any, direct evidence of discrimination. Other than the question about her crutch, Scott points to nothing that could reasonably suggest intentional discrimination. “Stray remarks,” however, are not sufficient evidence of discrimination. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540-542.) Further, while Scott claims she was “offended” by this question, she testified that Briggs did not tell her she could not use the crutch or did not want her at work while she was using it. Briggs testified she asked about the crutch to determine if Scott needed assistance.
In support of her claim that she presented a prima facie case by indirect evidence, Scott argues: “[She] was disabled at the time she was fired, Briggs knew [she] was disabled at the time she was terminated, [she] was performing her job as a teacher at the time she was terminated, and [she] was terminated due to her disability.” All these statements except the last are undisputed. Scott cites to 11 different pages in the record in support of these statements, but none of the evidence she points to supports the contention she was “terminated due to her disability.”
The only fact we can point to in order to establish Scott’s prima facie case is the temporal one – her termination took place soon after the disability occurred. Courts have held this is sufficient to satisfy the plaintiff’s burden at this stage of the analysis. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112.)
Assuming the temporal element is sufficient to satisfy Scott’s requirement to present a prima facie case of discrimination, the burden then shifted to the District, who argued primarily that Scott was fired due to the District’s institutional needs based primarily on its budget but also on other factors. There is ample and undisputed evidence to support the contention that the budget was a serious issue at the Center.
Scott testified that she knew the District was giving the Center $5,000 to $7,000 per month, beginning in September 2013, mostly to meet payroll. This agrees with the evidence provided by the District, which demonstrated that it loaned $23,200 to the Center during the period between September 2013 and April 2014. The District’s treasurer testified that the loans, which increased to over $120,000 by December 2014 and had not been paid back by July 2015, were used to meet monthly expenses. In the treasurer’s opinion, it did not make fiscal sense for the District to continue operating the Center if it could not meet its expenses. None of these facts were contested by Scott.
Indeed, the Center’s fiscal situation was supported by Scott’s testimony. She had noticed a downward trend in student enrollment that she felt was correlated with the closure of an adjacent elementary school in 2009. By the fall of 2013, 18 to 20 students were enrolled, a decline from 30 or more students in the past. Scott attended the District board meetings between November 2013 and February 2014 at which the Center’s finances were discussed. She recalled the Board discussing closing the Center. She stated: “They [the District] were thinking it wasn’t getting enough use as a preschool and they could use it for other community interest groups. . . . [¶] . . . [¶] We didn’t have as high of an enrollment as we had . . . .”
Scott also testified that when making the schedule had been one of her responsibilities, “I was giving a lot of my own hours to teachers so they wouldn’t leave because their hours were getting cut as well.” Scott testified she went from working between 34 and 38 hours a week in the fall of 2013 to less than 20 hours in February 2014.
As to why Scott was specifically chosen for termination, Briggs testified that it was within her purview to adjust the staff or programs to stop the Center from running at a deficit. She felt the Center was overstaffed as of April 2014, with five people working there, some as few as 10 hours per week. Those five staff members watched over approximately 12 students. Briggs testified she chose Scott because she worked the fewest hours, and because she perceived her to be inflexible about her own hours and the schedule in general. She had decided to terminate Scott before her fall, as evidenced by the fact that she did not include Scott’s name on the preliminary schedule for the week she intended to terminate her. Briggs did not inform Scott of this when Scott confronted her about the schedule, because she was in the presence of other staff, instead telling her the schedule was incomplete. Terminating Scott’s employment reduced the Center’s payroll. The District thus met its burden to present a legitimate, nondiscriminatory reason for Scott’s termination.
According to Scott, however, all the District’s explanations were pretext, littered with inconsistencies and impermissible fact-finding by the trial court. This might appear true when examining only the cherry-picked, out-of-context facts and quotations Scott presents. When examined as a whole, however, they do not meet her burden to demonstrate a triable issue of fact on the issue of intentional discrimination as a substantial factor in her termination. “[T]here must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions. [Citation.]” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 361.)
Scott points to Briggs’s testimony and statements as entirely inconsistent and lacking in credibility, pointing out that she proffered a number of different explanations for her reasoning with regard to Scott’s termination. What this argument ignores is that more than one thing can be true at the same time, and none of the testimony Scott points to excludes other reasons. For example, Scott claims that one of Briggs’s proffered reasons for terminating Scott was to create more consistency for the children. She then claims this is contradicted by the statement that she hired seven individuals to work at the Center after March 2014. Thus, Scott apparently asserts this explanation could not possibly be true. But she omits Briggs’s testimony that by June 2014, the staff was reduced to two employees, plus Briggs. A number of the hires Briggs made were temporary and/or for the summer season when the Center serves more children. Thus, there is nothing inconsistent about Briggs’s stated intent and the result. Scott was not replaced after she was terminated, and the Center staff decreased.
Scott also claims that Briggs inconsistently testified that Scott’s termination was recommended by a consultant, on the one hand, and that she “randomly” woke up one day and decided to terminate Scott. That does not accurately reflect Briggs’s testimony. She did not use the word “random,” and testified that the idea of terminating Scott, which she decided on April 11, had been “‘swishing around’” because she needed to make serious decisions about what needed to be done, and what changes needed to be made. This testimony was not at all inconsistent with the statement that a consultant recommended Scott’s termination. Scott offers other “contradictions” of a kind with these – contradictions that turn out to be logically consistent once the context is considered. For example, she wonders how she could be terminated for a lack of available hours when there were still hours to be worked. Briggs testified she needed fewer employees working more hours – which appears to be exactly what happened after Scott’s termination. Further, Scott offered no evidence to dispute these facts.
Claiming discriminatory animus, Scott claimed Briggs made “derogatory” comments about her and expressed a lack of belief about her injury. Even if we were to assume this is true, it is insufficient to establish pretext once the larger context of the Center’s financial woes is considered. The inferences Scott asks the court to make to conclude discrimination is the motive here are simply not reasonable ones. The evidence of the Center’s financial problems is overwhelming, while a reasonable inference of discrimination cannot be drawn based on a question about using a crutch. Even if we accept Scott’s version of Briggs’s wording and tone, it simply is not enough to establish animus.
Scott also argues the Center failed to follow its own policies in terminating her, arguing that Scott was only to be terminated upon good cause. The trial court sustained the District’s objection to the handbook upon which Scott relies upon, as it was undated and unauthenticated. Scott did not raise this issue in her opening brief; in her reply brief, she asserts that she authenticated it. She did not. Her testimony on this point is far from clear, and she was unable to provide a date when the handbook was provided to her or updated. Further, it is unclear from the document itself that it applies to her. It states that the disciplinary provisions applied only to “permanent, full-time employees” and she did not provide a record citation to support an assertion that she qualified as such. Indeed, the available evidence suggests that she was not a full-time employee, working between 10 and 38 hours a week. Accordingly, we agree with the trial court that the handbook was inadmissible.
Taken together, contrary to Scott’s assertions, the trial court did not engage in impermissible fact-finding. Rather, it evaluated the uncontradicted evidence to determine if there was a rational inference of discrimination, thereby creating a triable issue of fact. Scott failed to present evidence sufficient to raise a triable issue of fact, and accordingly, summary judgment was appropriate.

D. Accommodation and Interactive Process Claims
Because the trial court properly granted summary judgment on the discrimination claim, there were no triable issues of fact with respect to Scott’s claims about the District’s purported failure to accommodate her disability or to engage in an interactive process. She claims she asked for two accommodations – use of the crutch and leave time. There is no triable issue as to whether she was allowed to use the crutch for the two shifts she worked after her fall – it is undisputed that she was. Her request for leave time was mooted once she was terminated for other reasons, as was the need to engage in an interactive process to accommodate the disability.
III
DISPOSITION
The judgment is affirmed. Plaintiff shall pay costs on appeal.



MOORE, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.