Filed 10/8/26 Rodriguez-Guzman v. The Accelerated Schools CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
HILDA RODRIGUEZ-GUZMAN, B338902, B338906
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV25735)
v.
THE ACCELERATED SCHOOLS
et al.,
Defendants and Respondents.
APPEALS from a judgment and an order of the Superior
Court of Los Angeles County, Thomas D. Long, Judge. Reversed
with directions.
Law Offices of Maryann P. Gallagher and Maryann P.
Gallagher for Plaintiff and Appellant.
McCune & Harber, Stephen M. Harber and Antony R.
Pizarro for The Accelerated Schools and Johnathan Williams
Defendants and Respondents.
___________________________
INTRODUCTION
Hilda Rodriguez-Guzman worked as a health service
coordinator for The Accelerated Schools (TAS). When TAS could
no longer accommodate Rodriguez-Guzman’s restrictions in her
existing office, TAS put her on leave and told her she could return
in three months after TAS remodeled and created a larger office
for her. While Rodriguez-Guzman was on leave, TAS eliminated
her position and terminated her employment.
Rodriguez-Guzman filed this action against TAS and its former
chief executive officer, Johnathan Williams, for disability and age
discrimination, retaliation, and harassment in violation of the
Fair Employment and Housing Act (Gov. Code, § 12900 et seq.
(FEHA))1; retaliation in violation of Labor Code section 1102.5;
wrongful termination in violation of public policy; and related
causes of action.
The trial court granted a motion by TAS and Williams for
summary judgment. The trial court ruled that, because the
Public Employment Relations Board (PERB) held an
administrative hearing and found TAS terminated Rodriguez-
Guzman’s employment for a legitimate, nondiscriminatory and
nonretaliatory reason, most of Rodriguez-Guzman’s statutory
causes of action were barred by issue preclusion. The trial court
also ruled that Rodriguez-Guzman could not pursue any causes of
action based on Williams’s sexual harassment because she filed
her administrative complaint with the Department of Fair
Employment and Housing (now the Civil Rights Department)
more than one year after the last alleged incident of misconduct;
1 Undesignated section references are to the Government
Code.
2
that the undisputed evidence showed Rodriguez-Guzman could
not perform the essential functions of her job; and that, as a
public entity, TAS was not liable for wrongful termination or for
punitive damages.
We conclude the trial court erred in granting the motion for
summary adjudication on the ground issue preclusion barred
Rodriguez-Guzman’s causes of action under FEHA and Labor
Code section 1102.5. We also conclude that, because Rodriguez-
Guzman created triable issues of material fact regarding whether
she could perform the essential functions of her job and whether
TAS reasonably accommodated her, the trial court erred in
granting the motion for summary adjudication on
Rodriguez-Guzman’s causes of action for disability
discrimination, failure to accommodate, and failure to prevent
discrimination. We conclude, however, that TAS and Williams
were entitled to summary adjudication on Rodriguez-Guzman’s
sexual harassment cause of action and that Rodriguez-Guzman
forfeited her challenge to the trial court’s rulings on her tort
causes of action and her claim for punitive damages. Therefore,
we reverse with directions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Rodriguez-Guzman Works at TAS and Complains
About Williams
In 2007 Rodriguez-Guzman began working as a health
office aide for TAS, which operated three charter schools. In 2012
she became the health services coordinator. Rodriguez-Guzman’s
duties included administering first aid and medication and caring
for ill, medically fragile, or injured children. Rodriguez-Guzman
was also responsible for ensuring TAS had a signed health
3
history form for every new student, making sure students’
immunization records were up-to-date, entering those records
into TAS’s system, and printing the records on immunization
record cards. The health services coordinator position required
CPR and first-aid certificates; it did not require a college degree
or a license.
In 2014 Rodriguez-Guzman made four complaints about
Williams to TAS’s board president. Rodriguez-Guzman stated
that, in her role as union steward, she and another classified
employee met with TAS’s human resources director about the
employee’s grievances against Williams. Rodriguez-Guzman
complained that, after the meeting, Williams came to her office
and said, “‘Hilda, I’m fucking tired of this shit! I’m tired of you
all talking about me!’” and “‘You could’ve [given] me the courtesy
of talking to me first!’” Rodriguez-Guzman also stated that, after
she complained about Williams, he retaliated against her by
asking her supervisor about her attendance and work
performance and by stating he would attend her son’s
IEP meeting after previously stating he did not believe
Rodriguez-Guzman’s son had a learning disability.2 TAS
conducted an investigation, sustained some of Rodriguez-
Guzman’s allegations, determined Williams did not retaliate
against Rodriguez-Guzman for exercising her grievance rights,
and concluded Williams and Rodriguez-Guzman “would benefit
2 IEP stands for “‘individualized education program.’”
(American Nurses Assn. v. Torlakson (2013) 57 Cal.4th 570, 576.)
“An IEP is an education plan designed to meet a disabled child’s
unique needs. An IEP is designed by the school district, in
consultation with the child’s parents, after the child is evaluated
as eligible for special education services.” (In re Marriage of
Drake (2015) 241 Cal.App.4th 934, 937, fn. 2.)
4
from efforts to improve their communication, which has been
poor.”
In 2016 Rodriguez-Guzman complained Williams and other
TAS employees harassed and retaliated against her for filing
complaints. She claimed that TAS failed to establish school site
councils at its three schools, as the Education Code required, and
that TAS prevented her from becoming a classified member of the
school site councils. TAS conducted an investigation and
concluded that TAS was complying with the Education Code and
that no corrective action was necessary.
Rodriguez-Guzman also complained Williams sexually
harassed her and other TAS employees. In 2011 or 2012
Rodriguez-Guzman and her supervisor were sitting in a car in the
parking lot after returning from a store, and Williams asked
whether they were “‘fondling each other.’” In 2014 Williams told
Rodriguez-Guzman she needed to “‘speak to those bitches’”
(referring to female teachers). In 2017 a teacher told
Rodriguez-Guzman that Williams had inappropriately touched
her breast. At a meeting of the TAS Board of Trustees in 2018
Williams apologized to Rodriguez-Guzman for “butt dialing” her;
when Rodriguez-Guzman said she “doubt[ed] his butt dialed” her,
Williams became “irate” and called her a “‘butt/ass.’” The next
day Rodriguez-Guzman complained to the board chair.
In November 2018 Rodriguez-Guzman submitted a formal
complaint against Williams to TAS’s human resources manager,
Asha Marshall. Rodriguez-Guzman stated Williams recently
escalated “his discriminatory, intimidating, sexual harassment”
and “threatening[ ] and hostile behavior.” Rodriguez-Guzman
also stated she had previously complained to her supervisor,
TAS’s previous human resources director, the board of trustees,
and Williams.
5
In December 2018 Rodriguez-Guzman read the board of
trustees an “open letter” to Williams. The letter stated: “We are
parents, school workers, and community members at [TAS].
Many of us have children attending TAS schools and some of us
are even founding parents. We care deeply about our school and
its vision of creating a supportive learning environment.
However, Mr. Williams, we are concerned that you have strayed
from this mission and, through your increasingly disrespectful
and threatening behavior, are undermining the success of our
school and creating a hostile environment in our community.” In
February 2019 the TAS Board of Trustees removed Williams
from his position as chief executive officer. In March 2019 the
board appointed Williams president of the office of development
and government affairs.
Marshall investigated Rodriguez-Guzman’s November 2018
complaint and completed a report on May 16, 2019, Marshall’s
last day at TAS. Marshall concluded some of Rodriguez-
Guzman’s allegations were true, including that Williams
“admitted to improper speech”; that TAS failed to provide
Rodriguez-Guzman with documents and information she
requested; and that the board president failed to respond to
Rodriguez-Guzman’s complaints. Marshall recommended that
TAS employees take workplace harassment training and that
Williams take a course on “Workplace Etiquette/Professional
Decorum.”
B. Rodriguez-Guzman Requests Accommodations, and
TAS Places Her on Leave
In July 2017 Rodriguez-Guzman requested “permanent
modified restrictions of no lifting, pushing or pulling any more
than 10 lbs.; no repetitive bending (limit to once an hour); and
6
alternate between sitting, standing and walking as needed.” She
met with a human resources director (not Marshall) and the
principal, and they agreed to accommodate Rodriguez-Guzman by
purchasing a file cabinet. In April 2018 Rodriguez-Guzman filed
a disability discrimination complaint with the Department of
Fair Employment and Housing stating that TAS had agreed to
provide a file cabinet, but that she had “not received this
accommodation.” TAS purchased a file cabinet, but it “did not fit
the medical cards.”
In October 2018 a student cut his leg on a wire, and
Rodriguez-Guzman could not find anyone else to help, so she bent
down and applied pressure to stop the bleeding. When
Rodriguez-Guzman got up from the floor, she injured herself.
She injured herself again in March 2019 when she was getting
into an ambulance to ride with a student. Rodriguez-Guzman
was off work for a couple of days and returned to work with her
arm in a sling. After that injury Rodriguez-Guzman had trouble
writing health records by hand.
On March 26, 2019 Rodriguez-Guzman met with Marshall
and the principal about accommodations. Rodriguez-Guzman
said that the file cabinet TAS purchased was incorrect and that
she needed a new file cabinet that would not require her to bend
down. They discussed reconfiguring Rodriguez-Guzman’s office
to accommodate her. In April 2019 Marshall told
Rodriguez-Guzman that TAS could no longer accommodate her
restrictions, that TAS would put her on leave, that TAS would
remodel a health center space and move her office there, and that
she could return in July 2019.
7
C. TAS Eliminates Rodriguez-Guzman’s Position and
Terminates Her Employment
In March 2019 TAS surveyed parents about their
“priorities and concerns.” TAS stated 16 out of 84 survey
respondents “provided unprompted comments that they would
like a school nurse.” TAS also stated that, in an April 2019
survey, “several unsolicited comments were again made by
parents regarding the need to upgrade services in the Front
Office, which includes Health Services.” In response to the
survey, TAS decided to eliminate the health services coordinator
position and to hire a registered nurse. In July 2019, while
Rodriguez-Guzman was on leave, TAS’s new director of human
resources told Rodriguez-Guzman by email that TAS had decided
to hire a full-time registered nurse, that TAS was eliminating her
position, and that TAS was terminating her employment.
D. The Public Employment Relations Board Conducts a
Hearing on Unfair Practice Charges and Issues a
Decision
Between December 2018 and October 2019 Rodriguez-
Guzman’s union, Service Employees International Union
Local 99, filed with the California Public Employment Relations
Board (PERB) four unfair practice charges against TAS on her
behalf. Local 99 alleged TAS violated the Educational
Employment Relations Act (§ 3543.5 (EERA)) by interfering with
employees’ rights. The alleged acts of interference were:
(1) Williams “removed Local 99 leaflets from the staff lounge
while questioning the content and placement of the leaflets”;
(2) Williams “monitored and surveilled a Local 99
representative’s campus presence”; (3) TAS created the registered
nurse position, eliminated the health services coordinator
8
position, laid off Rodriguez-Guzman, and transferred the health
services coordinator’s duties to the registered nurse “without
providing Local 99 notice and an opportunity to meet and
negotiate the decision or the effects of the decision”; and
(4) TAS retaliated against Rodriguez-Guzman by eliminating her
position and terminating her employment.
PERB consolidated the four cases and conducted an
eight-day formal hearing before an administrative law judge
between July 2021 and January 2022. On the first two charges
the administrative law judge found TAS interfered with
employees’ rights when Williams removed the pamphlets and
when he monitored the Local 99 representative. On the third
charge the administrative law judge found TAS violated
section 3543.5 when it unilaterally eliminated the health service
coordinator position, created the registered nurse position, laid
off Rodriguez-Guzman, and transferred work from the health
services coordinator position to the registered nurse position
without providing Local 99 adequate notice or an opportunity to
meet and negotiate over the change.
On the fourth charge, retaliation, the administrative law
judge found Local 99 made a prima facie showing TAS retaliated
against Rodriguez-Guzman for engaging in protected activity
under the EERA, including participating in the Local 99
organizing campaign, serving on the negotiating team, helping
employees to file workplace grievances, distributing leaflets,
filing unfair practice charges, and advocating for classified
employees to participate in TAS’s parent survey. The
administrative law judge, however, found TAS proved it would
have terminated Rodriguez-Guzman’s employment for a
non-retaliatory reason—because parents wanted a full-time
school nurse—even if she had not engaged in protected activity.
9
The administrative law judge issued a proposed decision
requiring TAS to cease and desist from engaging in the unfair
labor practices; negotiate with Local 99 over the effects of its
decision to create the registered nurse position, eliminate the
health service coordinator, and lay off Rodriguez-Guzman;
provide backpay to Rodriguez-Guzman; and post a notice of
PERB’s order. Local 99, on Rodriguez-Guzman’s behalf, appealed
the proposed decision by filing exceptions to, among other things,
the administrative law judge’s decision on the retaliation claim.
After reviewing the proposed decision, the parties’ arguments,
and the record, PERB issued a final decision upholding the
administrative law judge’s decision. PERB concluded
“a preponderance of the evidence shows that TAS would have
reached the same decisions even had Rodriguez-Guzman not
engaged in protected activity.”
E. Rodriguez-Guzman Files This Action, and the Trial
Court Grants a Motion by TAS and Williams for
Summary Judgment
Rodriguez-Guzman filed this action against TAS and
Williams, asserting causes of action against TAS under FEHA for
sexual harassment, disability discrimination, associational
discrimination and retaliation, failure to prevent harassment and
retaliation, retaliation, age discrimination, and failure to
accommodate. She also asserted causes of action against TAS for
intentional infliction of emotional distress; wrongful termination
in violation of public policy; negligent hiring, supervision, and
retention; and violation of Labor Code section 1102.5.
Rodriguez-Guzman asserted causes of action against Williams for
sexual harassment and intentional infliction of emotional
distress.
10
TAS and Williams moved for summary judgment or, in the
alternative, for summary adjudication on each of
Rodriguez-Guzman’s causes of action and on her claim for
punitive damages. The trial court granted the motion for
summary judgment. The trial court ruled collateral estoppel
barred Rodriguez-Guzman’s causes of action for violation of
Labor Code section 1102.5, disability discrimination,
associational discrimination, retaliation, and age discrimination.
The court concluded that, because PERB found “TAS based its
decision to eliminate [Rodriguez-Guzman’s] position on
legitimate, nondiscriminatory and nonretaliatory reasons,” TAS
and Williams “met their initial burden of showing that collateral
estoppel applies,” and Rodriguez-Guzman “failed to show the
existence of a triable issue of material fact regarding collateral
estoppel.”
On Rodriguez-Guzman’s causes of action for disability
discrimination and failure to accommodate, the trial court ruled
TAS and Williams met their initial burden to show that
Rodriguez-Guzman could not perform the essential functions of
her position and that TAS reasonably accommodated
Rodriguez-Guzman’s restrictions. The court ruled
Rodriguez-Guzman did not dispute she could not perform some of
the essential functions of her position.
On Rodriguez-Guzman’s causes of action for sexual
harassment and negligent hiring, supervision, and retention, the
trial court ruled TAS and Williams met their initial burden to
show Rodriguez-Guzman did not exhaust her administrative
remedies because she did not file an administrative complaint
within one year of the last alleged incident of sexual harassment.
The court ruled Rodriguez-Guzman did not “create a triable issue
of material fact regarding the timing of Williams’s actual
11
harassment” to justify applying the continuing violation doctrine.
The trial court also ruled that, because TAS and Williams were
not liable for harassment or retaliation, they could not be liable
for failure to prevent harassment or retaliation.
On Rodriguez-Guzman’s cause of action for intentional
infliction of emotional distress, the trial court ruled that TAS’s
actions of placing Rodriguez-Guzman on leave and eliminating
her position was not outrageous conduct. The trial court also
ruled that, to the extent Rodriguez-Guzman based her cause of
action on Williams’s conduct, she failed to timely exhaust her
administrative remedies. The trial court also ruled section 815
barred Rodriguez-Guzman’s cause of action for wrongful
termination against TAS because TAS was a public entity.
Finally, the trial court ruled Rodriguez-Guzman could not recover
punitive damages because she could not establish an underlying
cause of action and because under section 818 a public entity is
not liable for punitive damages.
The court entered judgment in favor of TAS and Williams.
Rodriguez-Guzman timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
“Summary judgment is proper if the papers submitted show
there is no triable issue as to any material fact and the moving
party is entitled to prevail on a cause of action as a matter of
law.” (Landis’ Labyrinth, Inc. v. Whitaker (2025) 116 Cal.App.5th
724, 734; see Code Civ. Proc., § 437c, subd. (c); Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
618.) “A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
12
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense.” (Sabetian v. Exxon Mobil
Corp. (2020) 57 Cal.App.5th 1054, 1068; see Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850.)
If “the defendant moves for summary judgment on the
grounds that one or more elements of the plaintiff’s [cause of
action] cannot be established, the defendant must present
evidence that either ‘conclusively negate[s] an element of the
plaintiff’s cause of action’ or ‘show[s] that the plaintiff does not
possess, and cannot reasonably obtain,’ evidence needed to
establish an element . . . .” (White v. Smule, Inc. (2022)
75 Cal.App.5th 346, 354; see Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at pp. 853-855; Doe v. Roman Catholic
Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 668.)
“‘Only after the defendant carries that initial burden does the
burden shift to the plaintiff “to show that a triable issue of one or
more material facts exists as to the cause of action . . . .”’”
(Campbell v. FPI Management, Inc. (2024) 98 Cal.App.5th 1151,
1162; see Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849-
850.) “There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar, at
p. 850; see Landis’ Labyrinth, Inc. v. Whitaker, supra,
116 Cal.App.5th at p. 735.)
“‘“‘“We review the trial court’s decision de novo, considering
all the evidence set forth in the moving and opposing papers
except that to which objections were made and sustained.”’
[Citation.] We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning
13
the evidence in favor of that party.”’” (Hampton v. County of
San Diego (2015) 62 Cal.4th 340, 347; see Wawrzenski v. United
Airlines, Inc. (2024) 106 Cal.App.5th 663, 684 (Wawrzenski).)
B. Issue Preclusion Did Not Bar Any of
Rodriguez-Guzman’s Causes of Action
Rodriguez-Guzman argues the trial court erred in ruling
collateral estoppel barred her FEHA causes of action for
disability discrimination, associational discrimination,
retaliation, and age discrimination, and her cause of action for
whistleblower retaliation under Labor Code section 1102.5.
Rodriguez-Guzman is correct. PERB’s finding—that TAS would
have terminated Rodriguez-Guzman’s employment even if she
had not engaged in protected activity under the EERA—did not
dispose of any of her causes of action.
1. Issue Preclusion
California courts now “use ‘issue preclusion’ in place of
‘direct or collateral estoppel.’” (Samara v. Matar (2018) 5 Cal.5th
322, 326.) “Issue preclusion prohibits the relitigation of issues
argued and decided in a previous case, even if the second suit
raises different causes of action.” (DKN Holdings LLC v. Faerber
(2015) 61 Cal.4th 813, 824, italics omitted; see Castillo v. City of
Los Angeles (2001) 92 Cal.App.4th 477, 481.) “[I]ssue preclusion
applies: (1) after final adjudication (2) of an identical issue
(3) actually litigated and necessarily decided in the first suit and
(4) asserted against one who was a party in the first suit or one in
privity with that party.”3 (DKN Holdings, at p. 825; see Landis’
3 Rodriguez-Guzman does not argue she was not in privity
with Local 99.
14
Labyrinth, Inc. v. Whitaker, supra, 116 Cal.App.5th at p. 737.)
“Issue preclusion is not limited to barring relitigation of court
findings. It also ‘bars the relitigating of issues which were
previously resolved in an administrative hearing by an agency
acting in a judicial capacity.’” (Castillo, at p. 481; see Henderson
v. Newport-Mesa Unified School Dist. (2013) 214 Cal.App.4th
478, 503.)
2. Issue Preclusion Did Not Bar Rodriguez-
Guzman’s Cause of Action for Violation of
Labor Code Section 1102.5
Labor Code section 1102.5 “prohibits employers from
retaliating against employees for ‘disclosing information’
concerning suspected violations of the law either internally or to
government or law enforcement agencies.” (People ex rel.
Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, 720-721; see
Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703,
709.) Labor Code section 1102.5, subdivision (b), “prohibits an
employer from retaliating against an employee for sharing
information the employee ‘has reasonable cause to believe . . .
discloses a violation of state or federal statute’ or of ‘a local, state,
or federal rule or regulation’ with a government agency, with a
person with authority over the employee, or with another
employee who has authority to investigate or correct the
violation.” (Lawson, at p. 709.)
Under Labor Code section 1102.6 the plaintiff must first
“‘demonstrate[ ] by a preponderance of the evidence’ that the
employee’s protected whistleblowing was a ‘contributing factor’ to
an adverse employment action. [Citation.] Then, once the
employee has made that necessary threshold showing, the
employer bears ‘the burden of proof to demonstrate by clear and
15
convincing evidence’ that the alleged adverse employment action
would have occurred ‘for legitimate, independent reasons’ even if
the employee had not engaged in protected whistleblowing
activities.” (Lawson v. PPG Architectural Finishes, Inc., supra,
12 Cal.5th at p. 712.) To meet its initial burden on summary
judgment, TAS had to show it would have terminated
Rodriguez-Guzman’s employment even if she had not engaged in
activities protected by Labor Code section 1102.5. (Lab. Code,
§ 1102.6; see Lawson, at pp. 713-714.)
PERB’s decision did not bar Rodriguez-Guzman’s Labor
Code section 1102.5 cause of action because “protected activity”
under that statute is not the same as “protected activity” under
the EERA. The EERA “governs employer-employee relations for
public schools . . . .” (Coachella Valley Mosquito & Vector Control
Dist. v. California Public Employment Relations Bd. (2005)
35 Cal.4th 1072, 1084.) The EERA gives public school employees
“the right to form, join, and participate in the activities of
employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations.”
(§ 3543, subd. (a).) Under the EERA a public school employer
may not “[i]mpose or threaten to impose reprisals on employees,
to discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by” the EERA. (§ 3543.5,
subd. (a); see Visalia Unified School Dist. v. Public Employment
Relations Bd. (2024) 98 Cal.App.5th 844, 864.)
PERB found TAS would have terminated
Rodriguez-Guzman’s employment even if she had not engaged in
activity protected by the EERA, such as serving as Local 99’s
chief steward, assisting Local 99 in filing unfair practices
charges, and distributing union pamphlets. PERB did not
16
consider or decide whether TAS would have terminated
Rodriguez-Guzman’s employment even if she had not engaged in
whistleblower activities protected by Labor Code section 1102.5.4
Even if there were some overlap between the two categories
of protected activity, Rodriguez-Guzman alleged TAS violated
Labor Code section 1102.5 by retaliating against her for some
activities not protected by the EERA: She alleged she
complained about “sexual harassment on behalf of others and
herself,” TAS’s “failure to provide training and policies regarding
preventing sexual harassment,” and TAS’s violation of “laws
against bullying.” PERB did not consider or decide whether TAS
terminated Rodriguez-Guzman’s employment because she
complained about sexual harassment or bullying. Therefore,
whether TAS retaliated against Rodriguez-Guzman for protected
whistleblower activity was not the identical issue litigated in the
PERB proceeding, and issue preclusion did not apply. (See
Cheveldave v. Tri Palms Unified Owners Assn. (2018)
4 PERB’s decision does not preclude Rodriguez-Guzman’s
Labor Code section 1102.5 cause of action for an additional
reason: Labor Code section 1102.6 imposes a higher standard of
proof (clear and convincing evidence) on the employer to show the
adverse employment action would have occurred for legitimate,
independent reasons. (See The Grubb Co., Inc. v. Department of
Real Estate (2011) 194 Cal.App.4th 1494, 1503 [“collateral
estoppel does not apply when the factual finding in the prior
proceeding was arrived at based on a lower standard of proof
than the one required in the subsequent proceeding”]; see also
Bennett v. Rancho California Water Dist. (2019) 35 Cal.App.5th
908, 918-919 [issue preclusion “does not apply when a party
obtains a favorable finding based on a lesser burden of proof in a
prior proceeding than the party would bear in the subsequent
proceeding,” initial capitalization omitted].)
17
27 Cal.App.5th 1202, 1219 [issue preclusion does apply where the
issues are not identical].)
TAS argues that, even if issue preclusion did not bar
Rodriguez-Guzman’s Labor Code section 1102.5 cause of action,
TAS demonstrated “by clear and convincing evidence as a matter
of law” it would have terminated Rodriguez-Guzman’s
employment even if she had not engaged in protected activity
under Labor Code section 1102.5. Because TAS moved for
summary adjudication on Rodriguez-Guzman’s Labor Code
section 1102.5 cause of action only on the ground of issue
preclusion, however, TAS forfeited this argument. (See Doe v.
Roman Catholic Archbishop of Los Angeles, supra,
70 Cal.App.5th at p. 672 [defendant forfeits arguments on appeal
by not making them “in its motion for summary judgment”];
Jackpot Harvesting Co., Inc. v. Superior Court (2018)
26 Cal.App.5th 125, 155 [“arguments not raised in summary
judgment proceedings” are forfeited].)
3. Issue Preclusion Did Not Bar Rodriguez-
Guzman’s FEHA Causes of Action
a. Applicable Law
FEHA makes it unlawful for an employer “to discharge
[a] person from employment . . . or to discriminate against the
person . . . in terms, conditions, or privileges of employment”
because of the person’s race, gender, or disability. (§ 12940,
subd. (a).) FEHA also makes it unlawful for an employer “to
discharge . . . or otherwise discriminate against a person because
the person has opposed any practices forbidden under” FEHA.
(§ 12940, subd. (h).) “‘In evaluating claims of discrimination
under FEHA, California courts apply the burden-shifting
18
approach set forth in McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792.’” (Wawrzenski, supra, 106 Cal.App.5th at p. 684;
see Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214;
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) Courts
also apply the McDonnell Douglas approach in evaluating claims
of retaliation under FEHA. (See Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1042; Zamora v. Security Industry
Specialists, Inc. (2021) 71 Cal.App.5th 1, 63; Cornell v. Berkeley
Tennis Club (2017) 18 Cal.App.5th 908, 942.)
Under the McDonnell Douglas approach the plaintiff has
the initial burden to establish a prima facie case of
discrimination or retaliation. (See Harris v. City of Santa
Monica, supra, 56 Cal.4th at p. 214; Yanowitz v. L’Oreal USA,
Inc., supra, 36 Cal.4th at p. 1042.) “To state a prima facie case of
discrimination under FEHA, the plaintiff must show (1) she was
a member of a protected class; (2) she was qualified for the
position she sought or was performing competently in the
position she held; (3) she suffered an adverse employment action;
and (4) some other circumstance suggests discriminatory motive.”
(Wawrzenski, supra, 106 Cal.App.5th at p. 684; see Guz v. Bechtel
National, Inc., supra, 24 Cal.4th at p. 355.) “To establish a prima
facie case of retaliation under FEHA, an employee must show
that (1) she engaged in a ‘protected activity,’ (2) the employer
subjected her to an adverse employment action, and (3) a causal
link existed between the protected activity and the employer’s
action.” (Bailey v. San Francisco Dist. Attorney’s Office (2024)
16 Cal.5th 611, 636; see Yanowitz, at p. 1042; Zamora v. Security
Industry Specialists, Inc., supra, 71 Cal.App.5th at p. 63.)
“A prima facie case establishes a presumption of
discrimination [or retaliation]. The employer may rebut the
presumption by producing evidence that its action was taken for
19
a legitimate, nondiscriminatory [and nonretaliatory] reason. If
the employer discharges this burden, the presumption of
discrimination [or retaliation] disappears. The plaintiff must
then show that the employer’s proffered . . . reason was actually a
pretext for discrimination [or retaliation], and the plaintiff may
offer any other evidence of discriminatory [or retaliatory] motive.”
(Harris v. City of Santa Monica, supra, 56 Cal.4th at pp. 214-215;
see Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.)
“‘An employer may meet its initial burden in moving for
summary judgment by presenting evidence that one or more
elements of a prima facie case are lacking, or the employer acted
for a legitimate, nondiscriminatory [and nonretaliatory] reason.’”
(Wawrzenski, supra, 106 Cal.App.5th at p. 685; see Guz v. Bechtel
National, Inc., supra, 24 Cal.4th at p. 357 [employer satisfied its
initial burden on summary judgment where the employer “set
forth competent, admissible evidence [citations] of its reasons,
unrelated to [prohibited] bias,” for its employment decisions].) If
the employer makes either showing, “‘“the employer will be
entitled to summary judgment unless the plaintiff produces
admissible evidence which raises a triable issue of fact material
to the defendant’s showing.”’” (Arteaga v. Brink’s, Inc. (2008)
163 Cal.App.4th 327, 344, italics omitted; see Zamora v. Security
Industry Specialists, Inc., supra, 71 Cal.App.5th at p. 32.)
b. The Issues Were Not Identical
As stated, the trial court granted the defendants’ motion for
summary adjudication on Rodriguez-Guzman’s causes of action
20
for disability discrimination, associational discrimination,5
retaliation, and age discrimination based on the preclusive effect
of PERB’s finding TAS had “legitimate, nondiscriminatory and
nonretaliatory reasons for its actions.” Even if PERB’s finding
satisfied TAS’s initial burden, it did not preclude
Rodriguez-Guzman from creating a triable issue of material fact
by presenting evidence TAS’s reasons were pretextual.6 (See
Wawrzenski, supra, 106 Cal.App.5th at p. 685 [“‘If the employer
puts forth a legitimate basis for the adverse employment action,
the burden of production shifts to the plaintiff to present evidence
creating a triable issue of fact showing the employer’s stated
reason was a pretext for unlawful animus in order to avoid
summary judgment.’”]; see also Ortiz v. Dameron Assn. (2019)
37 Cal.App.5th 568, 577-578; Soria v. Univision Radio
Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591.)
5 FEHA defines “sex” and “physical disability” to include “a
perception that the person is associated with a person who
has . . . those characteristics.” (§ 12926, subd. (o)(3).)
Rodriguez-Guzman alleged TAS discriminated against her based
on “her association with members of the protected class, women,
and for standing up against harassment of those women.”
Rodriguez-Guzman also alleged TAS discriminated against her
based on her association with her son, who had a learning
disability, but the trial court struck that allegation.
6 The trial court ruled Rodriguez-Guzman “failed to show the
existence of a triable issue of material fact regarding collateral
estoppel.” The court did not decide whether Rodriguez-Guzman
failed to create a triable issue of material fact regarding whether
TAS’s stated reasons were pretextual.
21
PERB found TAS would have terminated
Rodriguez-Guzman’s employment even if she had not engaged in
union activity protected by the EERA. But in that proceeding
Rodriguez-Guzman did not have an opportunity to present
evidence TAS discriminated against her on the basis of disability,
age, or her association with people in a protected class, and
PERB did not decide whether TAS’s stated reason was a pretext
for discrimination on any of those grounds.
Nor did Rodriguez-Guzman have an opportunity in the
PERB proceeding to present evidence TAS’s stated reason was a
pretext for retaliation under FEHA. In her cause of action for
retaliation under FEHA, Rodriguez-Guzman alleged TAS
retaliated against her for complaining internally about Williams’s
“continuous, harassing and abusive behavior directed at her and
other female employees.” She also alleged TAS retaliated against
her for filing complaints with the Department of Fair Housing
and Employment based on TAS’s disability discrimination and
failure to implement a sexual harassment policy or training.
PERB did not hear any evidence in support of these allegations,
and it did not decide whether TAS would have terminated
Rodriguez-Guzman’s employment even if she had not opposed
what she reasonably believed was unlawful disability
discrimination and sexual harassment. (See Kaur v. Foster
Poultry Farms LLC (2022) 83 Cal.App.5th 320, 350-351 [Workers’
Compensation Appeals Board’s finding the employer did not
discriminate against the employee “on account of the industrial
nature of her injury” in violation of Labor Code section 132a did
not dispose of the employee’s FEHA cause of action, where the
employee alleged the employer “discriminated against her on the
basis of disability because, rather than providing her with an
available, reasonable accommodation for her physical
22
restrictions, it terminated her”]; Henderson v. Newport-Mesa
Unified School Dist., supra, 214 Cal.App.4th at pp. 487, 503
[administrative law judge’s decision a school district had good
cause to terminate the plaintiff’s employment “within the process
of implementing layoffs” did not have preclusive effect on the
plaintiff’s cause of action for racial discrimination under FEHA].)
TAS’s reliance on Castillo v. City of Los Angeles, supra,
92 Cal.App.4th 477 is misplaced. In Castillo the city dismissed
the plaintiff for “repeated unauthorized absences and tardiness.”
(Id. at p. 479.) The plaintiff appealed his discharge to the Civil
Service Commission, where the city “alleged unauthorized
absences and [the plaintiff] alleged disparate treatment and
discrimination.” (Id. at pp. 479, 482.) The hearing examiner
“made two findings: the evidence established [the plaintiff’s]
continued unsatisfactory attendance and failure to improve, and
[the plaintiff’s] discharge was appropriate.” (Id. at p. 481.) The
plaintiff sued the city, alleging discrimination based on age, race,
and national origin, in violation of FEHA. (Id. at p. 480.) In
affirming the trial court’s order granting the city’s motion for
summary judgment based on issue preclusion, the court in
Castillo held that the allegations in the two proceedings were
identical and that the “rejection of any claim of pretext” was
necessarily decided in the administrative proceeding. (Id. at
p. 482.)
Castillo is distinguishable. In the administrative hearing
in Castillo the employee had the opportunity to, and did, present
evidence showing disparate treatment and discrimination. In
Castillo the plaintiff sued the employer under FEHA based on
the same theory—that the employer’s stated reason for
dismissing him was a pretext for discrimination. Here, in
contrast, the PERB hearing focused on whether TAS retaliated
23
against Rodriguez-Guzman for activity protected by the EERA,
not whether TAS retaliated against her for opposing unlawful
practices under FEHA or whether TAS’s stated reasons for
terminating her employment were a pretext for age or disability
discrimination.7
C. The Trial Court Did Not Err in Granting the Motion
by TAS and Williams for Summary Adjudication on
Rodriguez-Guzman’s Cause of Action for Sexual
Harassment
Rodriguez-Guzman argues the trial court erred in ruling
she did not timely exhaust her administrative remedies for her
cause of action for sexual harassment. The trial court did not err.
Before bringing an action under FEHA, an employee must
exhaust administrative remedies by filing a complaint with the
Civil Rights Department and obtaining a notice of right to sue.
(Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th
918, 931; Wawrzenski, supra, 106 Cal.App.5th at p. 694.) “‘The
timely filing of an administrative complaint’ before the
[Department] ‘is a prerequisite to the bringing of a civil action for
damages.’” (Pollock, at p. 931; see Wawrzenski, at p. 694.) Until
the end of 2019, the plaintiff had to file a complaint with the
7 In its motion for summary adjudication on
Rodriguez-Guzman’s causes of action for associational
discrimination, retaliation, and age discrimination, TAS relied
primarily on issue preclusion, but also argued in one sentence
Rodriguez-Guzman “cannot produce evidence sufficient to create
a triable issue of fact regarding Defendants’ legitimate proffered
reasons for its actions.” TAS does not argue we should affirm on
this alternative ground, which the trial court did not reach.
24
Department of Fair Employment and Housing within one year of
the alleged misconduct. (See § 12960, former subd. (d); Pollock,
at p. 931; Wawrzenski, at p. 694.) Effective January 1, 2020 the
Legislature amended section 12960 to change this deadline to
three years, but the legislation that extended the limitations
period stated it “shall not be interpreted to revive lapsed claims.”
(Assem. Bill No. 9 (2019-2020 Reg. Sess.) § 3.)
In her complaint Rodriguez-Guzman alleged Williams
harassed her and other women beginning in 2008 and continuing
“until the time [she] was terminated in July 2019.” On May 8,
2020 Rodriguez-Guzman filed an administrative complaint with
the Department of Fair Employment and Housing alleging sexual
harassment. Therefore, any allegations based on misconduct
occurring before May 8, 2019 were untimely.
Rodriguez-Guzman, however, did not submit any evidence
of sexual harassment within the limitations period. (See Roman
v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054 [“It is
fundamental that to defeat summary judgment a plaintiff must
show ‘specific facts’ and cannot rely on allegations of the
complaint.”].) Rodriguez-Guzman presented evidence of incidents
that occurred between 2011 and August 2018. In her declaration
Rodriguez-Guzman stated Williams’s harassment lasted until
April 2019, when she went on leave. None of that evidence
placed any misconduct within the one-year limitations period.
(See Kaur v. Foster Poultry Farms LLC, supra, 83 Cal.App.5th at
p. 356 [trial court did not err in granting the defendant’s motion
for summary adjudication on the plaintiff’s causes of action for
“race/nationality discrimination based on” conduct occurring
more than one year before the plaintiff filed her administrative
complaint].)
25
Rodriguez-Guzman argues she timely exhausted her
administrative remedies under the continuing violation doctrine.
“Under that doctrine, an employer is liable for actions that take
place outside the limitations period if these actions are
sufficiently linked to unlawful conduct that occurred within the
limitations period.” (Yanowitz v. L’Oreal USA, Inc., supra,
36 Cal.4th at p. 1056; see Wawrzenski, supra, 106 Cal.App.5th at
pp. 694-695.) “The continuing violation doctrine requires proof
that ‘(1) the defendant’s actions inside and outside the limitations
period are sufficiently similar in kind; (2) those actions occurred
with sufficient frequency; and (3) those actions have not acquired
a degree of permanence.’” (Wawrzenski, at p. 695; see Yanowitz,
at p. 1059.)
The continuing violation doctrine does not help
Rodriguez-Guzman because it requires some “unlawful conduct
that occurred within the limitations period.” (Yanowitz v. L’Oreal
USA, Inc., supra, 36 Cal.4th at p. 1056, italics added; see
Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390,
1402 [“continuing violation doctrine permits a plaintiff to recover
for unlawful practices occurring outside the limitations period if
the practices continued into that period,” italics added].)
Rodriguez-Guzman did not present evidence of misconduct within
the limitations period.8
8 Citing her declaration, Rodriguez-Guzman argues the
“hostile work environment continued until [she] was terminated”
in July 2019. Rodriguez-Guzman’s declaration, however, does not
say that; it says the harassment continued “until I last worked at
[TAS] in April 2019.”
26
D. The Trial Court Erred in Granting TAS’s Motion for
Summary Adjudication on Rodriguez-Guzman’s
Cause of Action for Disability Discrimination
FEHA “‘prohibits employers from refusing to hire,
discharging, or otherwise discriminating against employees
because of their physical disabilities.’” (Atkins v. City of
Los Angeles (2017) 8 Cal.App.5th 696, 714; see § 12940,
subd. (a).) To prevail on a cause of action for disability
discrimination under FEHA, the plaintiff must show he or she
“(1) suffered from a disability, (2) was otherwise qualified to do
his or her job, and (3) was subjected to adverse employment
action because of the disability.” (Nealy v. City of Santa Monica
(2015) 234 Cal.App.4th 359, 378; see Zamora v. Security Industry
Specialists, Inc., supra, 71 Cal.App.5th at pp. 37-38.)
TAS argues Rodriguez-Guzman could not establish the
second element of the cause of action—that she was qualified to
do her job. A plaintiff is qualified to do his or her job if “he or she
can perform the essential functions of the job with or without
reasonable accommodation.” (Green v. State of California (2007)
42 Cal.4th 254, 260; accord, Furtado v. State Personnel Bd. (2013)
212 Cal.App.4th 729, 744; see Nadaf-Rahrov v. Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 962 [“an employee bears
the burden of showing . . . he or she could perform the essential
functions of the job with or without accommodation”].)
“‘“Essential functions” means the fundamental job duties of the
employment position the individual with a disability holds or
desires. “Essential functions” does not include the marginal
functions of the position.’” (Nealy v. City of Santa Monica, supra,
234 Cal.App.4th at p. 373; see § 12926, subd. (f).) “‘“Marginal
functions” of an employment position are those that, if not
performed, would not eliminate the need for the job or that could
27
be readily performed by another employee or that could be
performed in an alternative way.’” (Nealy, at p. 373; see Cal.
Code Regs., tit. 2, § 11065, subd. (e)(3).) A “function may be
essential because of the limited number of employees available
among whom the performance of that job function can be
distributed.” (§ 12926, subd. (f)(1)(B).)
TAS relied on Rodriguez-Guzman’s deposition testimony
she could not perform two of her job duties: writing health
records and taking students’ temperatures. Rodriguez-Guzman
testified that, after she injured her hand in March 2019, she was
“struggling to write health records by hand” and that, because
TAS was short-staffed, no other employees were available to
perform this task. Rodriguez-Guzman also testified she could not
take temperatures. With this evidence, TAS met its initial
burden on summary judgment to show Rodriguez-Guzman could
not perform two of the essential functions of her job. (See Miller
v. Department of Corrections & Rehabilitation (2024)
105 Cal.App.5th 261, 276 [employer met its initial burden on
summary adjudication on a cause of action for disability
discrimination by presenting expert medical testimony and the
plaintiff’s testimony her permanent restrictions rendered her
incapable of performing the essential duties of her position].)
Rodriguez-Guzman conceded she had trouble writing, but
disputed whether manually writing health records was an
essential function. She testified she had to create health records
only when new students arrived at the school, which “didn’t
happen every day or all the time.” Regarding taking
temperatures, Rodriguez-Guzman argued TAS could have
reasonably accommodated her by having another employee
perform that task. She testified there were two employees in the
main office who could take a student’s temperature. This
28
evidence created a triable issue of material fact regarding
whether Rodriguez-Guzman could perform the essential functions
of her job with or without reasonable accommodation.
Citing her deposition testimony, TAS argues
Rodriguez-Guzman “admitted that writing health records was an
essential function of her position.” Though in her deposition
testimony Rodriguez-Guzman agreed writing health records was
“an essential function” of her job, that term has a specific
meaning in the FEHA disability discrimination context that is
not necessarily the same as a layperson’s understanding of the
term. Indeed, Rodriguez-Guzman also testified she had to write
health records only when new students arrived, which was “[n]ot
often.” (See § 12926, subd. (f)(2)(C) [evidence whether a function
is essential includes the “amount of time spent on the job
performing the function”].)
E. The Trial Court Erred in Granting the Motion for
Summary Adjudication on Rodriguez-Guzman’s
Cause of Action for Failure To Accommodate
Section 12940, subdivision (m)(1), makes it an unlawful
employment practice to “fail to make reasonable accommodation
for the known physical or mental disability” of an employee.
“‘The essential elements of a failure to accommodate claim are:
(1) the plaintiff has a disability covered by the FEHA; (2) the
plaintiff is a qualified individual (i.e., he or she can perform the
essential functions of the position); and (3) the employer failed to
reasonably accommodate the plaintiff’s disability.’” (Cuiellette v.
City of Los Angeles (2011) 194 Cal.App.4th 757, 766; see Nealy v.
City of Santa Monica, supra, 234 Cal.App.4th at p. 378.)
TAS argues Rodriguez-Guzman cannot establish the third
element—that TAS did not reasonably accommodate her
29
disability.9 “A reasonable accommodation is a modification or
adjustment to the work environment that enables the employee
to perform the essential functions of the job he or she holds or
desires.” (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th
at p. 373; see Wentworth v. Regents of University of California
(2024) 105 Cal.App.5th 580, 597.) FEHA does not require an
employer to make an accommodation if it would produce “undue
hardship,” meaning “significant difficulty or expense.” (§§ 12940,
subd. (m)(1), 12926, subd. (u).)
TAS presented evidence Rodriguez-Guzman had a
permanent restriction that prevented her from performing
“repetitive bending.” Rodriguez-Guzman testified that she could
not bend down to reach files in the bottom file cabinet and that
she asked for an additional file cabinet she could reach without
bending. She testified that her office was too small to store all
her files and that, though TAS purchased a cabinet, it was “the
wrong one.” She testified that in April 2019 Marshall told
Rodriguez-Guzman that she was putting Rodriguez-Guzman on
leave, that TAS would remodel the health center space while
Rodriguez-Guzman was away, and that she would move into a
larger office in the remodeled space when she returned in July.
With this evidence, TAS met its initial burden to show it
reasonably accommodated Rodriguez-Guzman’s disability.
But Rodriguez-Guzman disputed whether placing her on
leave was a reasonable accommodation. Rodriguez-Guzman
9 TAS also argues Rodriguez-Guzman cannot establish she
was a qualified individual, but, as discussed, Rodriguez-Guzman
created a triable issue of material fact regarding whether she
could perform the essential functions of her position with or
without accommodation.
30
testified TAS could have accommodated her bending restriction
by removing a file cabinet that was not being used to make room
for a new accessible file cabinet in her current office. This
evidence created a triable issue of material fact regarding
whether TAS reasonably accommodated Rodriguez-Guzman by
placing her on leave.
TAS argues that a “temporary leave” was a reasonable
accommodation and that “TAS was not obligated to choose the
best accommodation or an accommodation that
[Rodriguez-Guzman] requested.” However, when “an employee
can work with a reasonable accommodation other than a leave of
absence, an employer may not require that the employee take a
leave of absence.” (Cal. Code Regs., tit. 2, § 11068, subd. (c); see
Zamora v. Security Industry Specialists, Inc., supra,
71 Cal.App.5th at p. 45; Wallace v. County of Stanislaus (2016)
245 Cal.App.4th 109, 134.) TAS also argues that, because
Rodriguez-Guzman “did not identify any accommodation that
would have addressed her admitted physical limitations; namely,
her inability to write health records or perform basic medical
tasks essential to her position . . . , her only option until her office
was renovated was leave.” As discussed, however, Rodriguez-
Guzman created a triable issue of material fact regarding
whether other employees could take students’ temperatures and
whether writing health records was an essential task. And in
any event, TAS proposed renovating Rodriguez-Guzman’s office
to accommodate her restriction on bending, not to address her
inability to take temperatures or manually write health records.
TAS does not argue bending down to access lower file cabinets
was an essential function.
In addition, though TAS argues it put Rodriguez-Guzman
on leave “pending a remodel to put her into a bigger office,” it was
31
undisputed TAS did not create a bigger office for
Rodriguez-Guzman; TAS terminated her employment while she
was on leave. Even if placing Rodriguez-Guzman on a temporary
leave until her new office was ready were a reasonable
accommodation, Rodriguez-Guzman presented sufficient evidence
to raise a triable issue of material fact regarding whether TAS
reasonably accommodated her by placing her on temporary leave
and then terminating her employment.
F. The Trial Court Erred in Granting TAS’s Motion for
Summary Adjudication on Rodriguez-Guzman’s
Cause of Action for Failure To Prevent Discrimination
and Harassment
Section 12940, subdivision (k), requires an employer “to
take all reasonable steps necessary to prevent discrimination and
harassment from occurring.”10 The trial court granted TAS’s
motion for summary adjudication on Rodriguez-Guzman’s cause
of action for failure to prevent discrimination and harassment
because the court ruled there were no triable issues of material
fact regarding the causes of action for discrimination and sexual
harassment. Because we reverse the court’s ruling on
Rodriguez-Guzman’s causes of action for disability
discrimination, associational discrimination, and age
discrimination, and because TAS does not argue we should affirm
the trial court’s order on any other ground, we reverse the order
granting TAS’s motion for summary adjudication on
10 Though Rodriguez-Guzman alleged TAS violated
section 12940, subdivision (k), by failing to prevent “harassment
and retaliation,” that provision requires an employer to take
steps to prevent discrimination and harassment.
32
Rodriguez-Guzman’s cause of action for failure to prevent
discrimination and harassment. (See Wawrzenski, supra,
106 Cal.App.5th at p. 704; Kaur v. Foster Poultry Farms LLC,
supra, 83 Cal.App.5th at p. 354.)
G. Rodriguez-Guzman Has Not Shown the Trial Court
Erred in Granting the Motion for Summary
Adjudication on Her Cause of Action for Intentional
Infliction of Emotional Distress or for Negligent
Hiring, Supervision, and Retention
An employee “may pursue a claim for intentional infliction
of emotional distress in the employment context where the
conduct at issue violates FEHA and also satisfies the elements of
the claim.” (Light v. Department of Parks & Recreation (2017)
14 Cal.App.5th 75, 101, accord, Cornell v. Berkeley Tennis Club,
supra, 18 Cal.App.5th at p. 945.) The elements of intentional
infliction of emotional distress are: “‘“‘“(1) extreme and
outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the
emotional distress by the defendant’s outrageous conduct.”’”’”
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1050; see Safechuck v.
MJJ Productions, Inc. (2023) 94 Cal.App.5th 675, 697.)
The trial court granted TAS’s motion for summary
adjudication on Rodriguez-Guzman’s cause of action for
intentional infliction of emotional distress on the ground
Rodriguez-Guzman did not create a triable issue of material fact
regarding whether TAS’s or Williams’s conduct was extreme and
outrageous. The trial court ruled that Rodriguez-Guzman did
“not dispute that she did not timely exhaust her administrative
33
remedies for [Williams’s] conduct” and that TAS’s “personnel
actions” were insufficient to establish intentional infliction of
emotional distress. (See Janken v. GM Hughes Electronics (1996)
46 Cal.App.4th 55, 80 [“personnel management decisions,” even if
undertaken with discriminatory motive, cannot support a cause
of action for intentional infliction of emotional distress].)
In her opening brief Rodriguez-Guzman states Williams’s
conduct was “extreme and outrageous conduct which lasted for
years,” but she does not address the trial court’s ruling that
personnel actions cannot support a cause of action for intentional
infliction of emotional distress or that she failed to timely
exhaust her administrative remedies. Therefore, she has not
demonstrated the trial court erred. (See Vasquez v. Department
of Pesticide Regulation (2021) 68 Cal.App.5th 672, 685 [“Although
we independently consider whether summary judgment was
properly granted, ‘“it is the appellant’s responsibility to
affirmatively demonstrate error,”’ and ‘review is limited to issues
adequately raised and supported in the appellant’s brief.’”];
Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 301 [“‘On review
of a summary judgment, the appellant has the burden of showing
error, even if he [or she] did not bear the burden in the trial
court.’”].)
Nor has Rodriguez-Guzman demonstrated the trial court
erred in granting TAS’s motion for summary adjudication on her
cause of action for negligent hiring, supervision, and retention.
The trial court granted the motion on that cause of action on the
ground that, “because [Rodriguez-Guzman] failed to timely
exhaust administrative remedies,” she “cannot use [Williams’s
alleged] conduct to establish her harm due to TAS’s alleged
34
negligence.”11 In her opening brief Rodriguez-Guzman repeats
verbatim her argument from her opposition to the motion for
summary judgment, but she does not address the trial court’s
ruling or cite any legal authority (and in her reply brief she does
not discuss either cause of action at all).
H. Rodriguez-Guzman Forfeited Her Argument the Trial
Court Erred in Granting TAS’s Motion for Summary
Adjudication on Her Cause of Action for Wrongful
Termination
The trial court granted TAS’s motion for summary
adjudication on Rodriguez-Guzman’s cause of action for wrongful
termination, ruling section 815 bars an action for wrongful
termination in violation of public policy (sometimes called a
Tameny action)12 against a public entity. (See § 815, subd. (a)
[“Except as otherwise provided by statute,” a “public entity is not
liable for an injury, whether such injury arises out of an act or
omission of the public entity or a public employee or any other
person.”]; Miklosy v. Regents of University of California (2008)
11 We express no opinion on the correctness of the trial court’s
ruling Rodriguez-Guzman’s failure to timely exhaust her
administrative remedies under FEHA barred her cause of action
for intentional infliction of emotional distress or her cause of
action for negligent hiring, supervision, and retention.
12 See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167,
170 (“when an employer’s discharge of an employee violates
fundamental principles of public policy, the discharged employee
may maintain a tort action and recover damages traditionally
available in such actions”).
35
44 Cal.4th 876, 900 [“section 815 bars Tameny actions against
public entities”].)
Rodriguez-Guzman’s opening brief contains one section
heading that refers to the trial court’s ruling granting TAS’s
motion for summary adjudication on her cause of action for
wrongful termination. That section heading (with capitalization
omitted) reads: “Plaintiffs [sic] wrongful termination claims
survive since they are derivative of her FEHA claims and
governments are not immune for violation of statutory claims.”
Under that heading are two sentences that say nothing about
Rodriguez-Guzman’s wrongful termination cause of action:
“Plaintiff respectfully requests this Court to deny Defendants’
motion for summary judgement [sic] and summary adjudication
for the reason stated herein. Defendants failed to establish that
several of Plaintiff’s claims are precluded by collateral estoppel,
Defendants failed to negate one or more elements on several of
Plaintiff’s claims, Plaintiff’s claims are no [sic] untimely as the
continuing violation doctrine applies, and there are considerable
genuine issues of material fact that warrant the Court denying
Defendants’ motion.” That is Rodriguez-Guzman’s entire briefing
on whether the trial court erred in granting TAS’s motion for
summary adjudication on her wrongful termination cause of
action (she does not discuss the issue in her reply brief).
By failing to make a reasoned argument, supported by
citations to relevant authority, why the trial court erred,
Rodriguez-Guzman forfeited any argument she may be making
that the trial court erred in granting TAS’s motion for summary
adjudication on her wrongful termination cause of action. (See
Jogani v. Jogani (2026) 118 Cal.App.5th 823, 840 [“We may treat
as forfeited any point that the appellant does not support with
reasoned argument and legal authority.”]; Siskiyou Hospital, Inc.
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v. County of Siskiyou (2025) 109 Cal.App.5th 14, 39 [“conclusory
assertion of legal error, without citation and application of
pertinent authority, results in forfeiture of the claim”]; Lee v. Kim
(2019) 41 Cal.App.5th 705, 721 [appellant’s “burden on appeal
‘includes the obligation to present argument and legal authority
on each point raised’”].)
I. Rodriguez-Guzman Forfeited Her Argument the Trial
Court Erred in Granting the Motion for Summary
Adjudication by TAS and Williams on Her Claim for
Punitive Damages
The trial court granted the motion by TAS and Williams for
summary adjudication on Rodriguez-Guzman’s claim for punitive
damages on the grounds that Rodriguez-Guzman “cannot
establish an underlying claim upon which punitive damages may
be awarded” and that, under section 818, a public entity is not
liable for punitive damages. (See § 818 [“Notwithstanding any
other provision of law, a public entity is not liable for damages
awarded under Section 3294 of the Civil Code or other damages
imposed primarily for the sake of example and by way of
punishing the defendant.”].)
Rodriguez-Guzman does not address the trial court’s ruling
section 818 bars an award of punitive damages against TAS.
Therefore, she has not demonstrated the trial court erred in
granting TAS’s motion for summary adjudication of her claim for
punitive damages. (See Vasquez v. Department of Pesticide
Regulation, supra, 68 Cal.App.5th at p. 685 [appellant must
affirmatively demonstrate error].) Because we affirm the trial
court’s order granting Williams’s motion for summary
adjudication on the two causes of action Rodriguez-Guzman
asserted against Williams—for sexual harassment and for
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intentional infliction of emotional distress—we also affirm the
order granting Williams’s motion for summary adjudication of
Rodriguez-Guzman’s claim for punitive damages.
DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its order granting the motion by TAS and Williams for
summary judgment. The trial court is directed to enter a new
order (1) denying TAS’s motion for summary adjudication on
Rodriguez-Guzman’s causes of action for violation of Labor Code
section 1102.5, disability discrimination, associational
discrimination and retaliation, failure to prevent discrimination
and harassment, retaliation, age discrimination, and failure to
provide reasonable accommodations; (2) granting TAS’s motion
for summary adjudication on Rodriguez-Guzman’s causes of
action for sexual harassment, intentional infliction of emotional
distress, wrongful termination in violation of public policy, and
negligent hiring, supervision, and retention; (3) granting TAS’s
motion for summary adjudication on Rodriguez-Guzman’s claim
for punitive damages; (4) denying TAS’s motion for summary
judgment; and (5) granting Williams’s motion for summary
judgment. The trial court is also directed to enter judgment in
favor of Williams on the complaint. Williams is to recover his
costs on appeal. TAS and Rodriguez-Guzman are to bear their
costs on appeal.
SEGAL, J.
We concur:
MARTINEZ, P. J. STONE, J.
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