Ross v. Cnty. of Riverside

• Decision Date: 20 June 2019
• Docket Number: D075106
• Citation: Ross v. Cnty. of Riverside, 36 Cal.App.5th 580, 248 Cal.Rptr.3d 696 (Cal. App. 2019)
• Court: California Court of Appeals
• Parties: Christopher ROSS, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, Defendant and Respondent.

36 Cal.App.5th 580

248 Cal.Rptr.3d 696

Christopher ROSS, Plaintiff and Appellant,

v.COUNTY OF RIVERSIDE, Defendant and Respondent.

D075106

Court of Appeal, Fourth District, Division 1, California.

Filed June 20, 2019

Gusdorff Law, Janet Gusdorff, Westlake Village; Sottile Baltaxe, Timothy B. Sottile, Westlake Village, Michael F. Baltaxe, Woodland Hills, Jeremy D. Scherwin, and Payam I. Aframian, Westlake Village, for Plaintiff and Appellant.

Woodruff, Spradlin & Smart, Daniel K. Spradlin and Cynthia W. Kole, Costa Mesa, for Defendant and Respondent.

McCONNELL, P. J.

IINTRODUCTION

Christopher Ross appeals from a summary judgment granted in favor of the County of Riverside on Ross's claims for violation of Labor Code section 1102.5 and for violation of the provisions in the Fair Employment and Housing Act ( Gov. Code, § 12900 et seq. ; FEHA) prohibiting disability discrimination, failure to reasonably accommodate, failure to engage in the interactive process, and failure to prevent disability discrimination.¹ Because we conclude there are triable issues of material fact on the questions of whether Ross engaged in protected activity under Labor Code section 1102.5 and whether Ross had a physical disability under the FEHA, we reverse the judgment as to these claims and remand the matter for further proceedings consistent with this decision.

IIBACKGROUND²

A

Ross worked for the County as a deputy district attorney. He was assigned to the homicide prosecution unit and was "responsible for however many cases were assigned to [him] by [his] supervisor." In addition to trying the cases, his duties included filing complaints and informations; conducting preliminary hearings; appearing at trial readiness conferences, settlement conferences, and motion hearings; and preparing for trial, including turning over discovery, interviewing witnesses, and conducting further investigation. Among the cases assigned to him were death penalty cases, which were considered the most difficult cases in the office.

In July or August 2011, an assistant district attorney assigned him a case initially handled by another attorney. The attorney told the assistant district attorney she believed the defendant was innocent. Although the defendant had admitted committing the crime, the attorney believed the defendant's confession was coerced.

In late November 2011, the attorney provided Ross with a memorandum in which she recommended dismissing the case because the defendant was innocent. She previously recommended dismissing the case more than a year earlier during a meeting about the case because she believed the case lacked inculpatory evidence. However, the district attorney and assistant district attorney took no action at the time.

In December 2011, Ross e-mailed his supervisor and the assistant district attorney about the case. He informed them he did not believe the district attorney's office could prove the case beyond a reasonable doubt. He recommended conducting further DNA testing.

Two days later, Ross sent additional evidence out for DNA testing. The same day he e-mailed his supervisor and the assistant district attorney and again informed them he did not believe the district attorney's office could prove the case beyond a reasonable doubt. He recommended dismissing the case.

Ross believed the district attorney's office was violating the defendant's due process rights by engaging in a malicious prosecution against the defendant. However, he never expressly informed his supervisor or the assistant district attorney he believed the district attorney's office was violating state or federal law.

About five months later, in May 2012, Ross received the results from the DNA testing. The results exculpated the defendant and Ross turned the results over to defense counsel. Based on the DNA test results, Ross believed there was no longer probable cause to continue prosecuting the case against the defendant.

A year later, in May 2013, Ross received "corrected" results from the DNA testing. The results exculpated the defendant with further certainty and Ross turned the results over to defense counsel.

Ross informed his supervisor and the assistant district attorney about the DNA results and again recommended dismissing the case. The assistant district attorney told him not to turn the results over to defense counsel and appeared upset when Ross indicated he had already done so.

In late September 2013, Ross learned of a new witness in the case. In early October 2013, an investigator interviewed the witness. The witness informed the investigator the defendant was innocent and implicated the defendant's roommate instead.

Ross had the investigator interview another witness and obtained recordings of phone calls the roommate made while in jail. In late October 2013, the investigator located recordings of two phone calls in which the roommate admitted to murdering the victim. By then, Ross had been transferred to the Filing Unit (see part II. B., post ). He had the investigator send the information to the assistant district attorney.

A few days later the assistant district attorney, the chief deputy district attorney, and Ross's supervisor met with the investigator to discuss the case, particularly the exculpatory effect of the most recently obtained evidence. During the meeting, the assistant district attorney told the investigator not to turn the phone call evidence over to defense counsel.

After the meeting, the assistant district attorney contacted Ross and asked whether Ross had turned the phone call evidence over to defense counsel.

Ross asked if the assistant district attorney wanted him to turn the evidence over. The assistant district attorney stated he would take care of it and handle the case. The district attorney's office dismissed the case against the defendant in February 2014.

B

In May 2013, the same month Ross received the "corrected" DNA test results, Ross learned he was exhibiting neurological symptoms that required evaluation and testing to determine whether he had a serious neurological condition. The same month or the next month, he told his supervisor he might be very seriously ill with a neurodegenerative disease and needed to undergo medical testing. He requested a transfer to another assignment during the testing. His supervisor declined his request, telling him the district attorney's office would worry about his cases and transferring him if and when he found out he could not continue in his position.

Ross also asked not to be assigned any new cases until after he completed the medical testing. His supervisor declined this request without explanation. Ross then arranged with the opposing counsel on his cases to continue court dates for several months until he had completed his medical testing.

Sometime a week or two later, the chief deputy district attorney called and asked Ross if he wanted to be transferred to the Filing Unit or to receive another accommodation. Ross declined the offer because he had already continued the court dates on his cases and no longer needed a transfer. In addition, he believed the Filing Unit's filing quota would be too stressful for him to meet because of his doctors' appointments. However, to avoid stress, he asked not to receive any new cases. The chief deputy district attorney agreed to the request.

In mid-September 2013, Ross told his supervisor multiple doctors from the out-of-state clinic where he was undergoing testing told him he could not have any stress from work as it was causing many of his symptoms and medical problems. He also told her he needed further testing because, although the doctors had ruled out two neurological diseases, they thought he might have an as yet undiagnosable autoimmune disorder as well as brain damage from multiple concussions.

The next day, Ross's supervisor assigned him a new death penalty case to work on. He told her he could not work on the case because he had further medical testing through October 2013. She told him to start work on the case and she would take it over if he could not complete it. He complained to the chief deputy district attorney about the new assignment because he believed they had an agreement he would not receive any new case assignments while he was undergoing testing. He reiterated his medical need for stress aversion and asked to speak with the chief deputy district attorney in person about the matter. When they spoke, the chief deputy district attorney assured Ross the case would be reassigned back to Ross's supervisor until Ross was finished with his medical testing. However, the reassignment never occurred.

In late September 2013, Ross met with his supervisor, the chief deputy district attorney, and the assistant district attorney to discuss transferring him from the Homicide Unit to the Filing Unit for the next three months because he was not able to go to trial or accept new cases. In the assistant district attorney's view, Ross's inability to accept new cases or go to trial in the near term made him insufficiently productive to be a member of the Homicide Unit.

Ross informed the trio he had a concussion syndrome from his work during his military service and his doctors were testing him for any possible neurological issues the syndrome may be causing. He also informed them his doctors suspected he had an unmanifested autoimmune disorder and they advised him to reduce his stress levels.

Ross followed up the meeting with a letter asking the trio to be patient until the end of November 2013 when his medical testing would be completed. He stated he did not have any cases going to trial within the next 60 days and would be able to appear in court on his cases and prepare them for trial while still being able to travel out-of-state as needed for medical appointments. He also stated being reassigned to the Filing Unit would be too stressful since he did not believe "based upon [his] current medical conditions and the limitations proscribed by [his] treating...