Case Number:CGC17557549


Court Date:FEB-07-2018 09:30 AM

Calendar Matter:MOTION FOR SUMMARY JUDGMENT , Or In The Alternative, Summary Adjudication

Rulings:The matter is on calendar for Wednesday, February 7, 2018, Line 9, DEFENDANT CITY AND COUNTY OF SAN FRANCISCO’S MOTION FOR SUMMARY JUDGMENT, Or In The Alternative, Summary Adjudication, Defendant City and County of San Francisco’s motion for summary judgment is denied and its alternative motion for summary adjudication is granted as to the second and fourth causes of action for denial of reasonable accommodation and failure to engage in the interactive process and denied as to the first, third and fifth causes of action for disability discrimination, retaliation and wrongful termination in violation of public policy. There is a triable dispute whether Mr. Dayton’s termination from his probationary position in the Water Department was substantially motivated by discriminatory bias based on Mr. Dayton’s hearing impairment and whether that termination was done in retaliation against Mr. Dayton’s inquiring about an accommodation. A reasonable trier of fact could find in favor Mr. Dayton on his discrimination, retaliation and Tameny claims based on: 1) the remarks by Mr. McIntyre that Mr. Dayton should turn up his hearing aids that were made in a disparaging manner; 2) Mr. Dayton’s declaration and deposition testimony disputing that he had job performance problems; 3) the short period of time between the inquiry about an accommodation and the termination of probationary status, 4) the statement by Mr. Dayton’s supervisor in response to a question about the reasons for the termination of probation that Mr. Dayton should not have contacted the general manager inquiring about an accommodation but should have gone through the regular channels. The City is entitled to summary adjudication on the failure to accommodate cause of action because the undisputed evidence shows that Mr. Dayton neither sought nor was denied an accommodation for his hearing impairment. The City is entitled to a summary adjudication on the failure to engage in interactive process cause of action because the undisputed evidence shows that the City engaged in the interactive process by providing accommodation forms to Mr. Dayton which he did not complete and Mr. Dayton has not shown the availability of a reasonable accommodation for his disability. Any party who contests a tentative ruling must send an email to with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. Counsel for the City is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must bring it to the hearing or email it to prior to the hearing even if the tentative ruling is not contested.