Filed 7/24/15 Chaudhry v. Cal. Dept. of Corrections CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



ASHFAQ CHAUDHRY,

         Plaintiff and Appellant,                                        E059366

v.                                                                       (Super.Ct.No. RIC1113593)

CALIFORNIA DEPARTMENT OF                                                 OPINION
CORRECTIONS AND
REHABILITATION,

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni

and Dallas Holmes, Judges. Affirmed.

         Law Offices of Zulu Ali, Zulu Ali, and Maleha Khan-Avila for Plaintiff and

Appellant.

 Judge Perantoni presided over the April 26, 2013, hearing on the motion for summary
judgment and signed the June 4, 2013, order granting said motion. Judge Holmes is a
retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution and signed the August 15, 2013,
judgment granting the motion.


                                                             1
       Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney

General, and Chris A. Knudsen and Terry R. Price, Deputy Attorneys General, for

Defendant and Respondent.

                                   I. INTRODUCTION

       Plaintiff and appellant, Ashfaq Chaudhry, is a Sunni Muslim and a correctional

officer employed by defendant and respondent, California Department of Corrections and

Rehabilitation (CDCR). After he requested and was denied a shift change to allow him to

attend Taraweeh prayers during the Muslim Holy Month of Ramadan, he sued CDCR for

violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940.)

CDCR moved for summary judgment based on grounds, among others, that Chaudhry

could not establish a prima facie case of discrimination because there was no conflict

between Chaudhry’s religious observance and his work requirements. CDCR also

asserted that if Chaudhry could establish a prima facie case, CDCR reasonably

accommodated his religious observance.

       Following a hearing, the trial court granted CDCR’s motion. The court found that

CDCR met its burden of showing that Chaudhry could not establish a prima facie case for

discrimination and could not establish the existence of triable issues of material fact.

       Reviewing the case de novo, we conclude, as the trial court did, that there are no

triable issues of material fact as to the existence of a conflict between Chaudhry’s

religious observance and his work requirements and, if there was, CDRC reasonably

accommodated his religious observance. We therefore affirm the judgment.


                                              2
                                   II. BACKGROUND

A. Undisputed Facts

       Chaudhry is a born and raised Sunni Muslim. In July 1995, he began employment

as a correctional officer for CDCR. CDCR has at all times been aware of Chaudhry’s

religious beliefs.

       Sunni Muslims perform five prayers each day: before sunrise; between noon and

2:00 p.m.; an hour before sunset; right after sunset; and between 8:00 p.m. and 10:00

p.m. or until midnight. The prayers last about five minutes. Chaudhry routinely offers

these five prayers at work, taking five minutes to clean himself appropriately, find a quiet

place, and offer his prayers.

       As a practicing Sunni Muslim, Chaudhry is obligated to observe the month of

Ramadan and its corresponding religious practices. The Holy Month of Ramadan consists

of daily fasting from dawn until dusk, praying five times a day, and participating in an

additional prayer called Taraweeh. The Taraweeh prayer takes place inside a mosque

after sunset. Sunni Muslims may be excused from performing his or her Taraweeh

prayer only under extreme circumstances. The Taraweeh prayer starts after the last of the

five usual prayers and lasts about one hour.

       Since 1996, Chaudhry has been assigned to the California Rehabilitation Center

(CRC) and Patton State Hospital (PSH). Chaudhry is a member of a correctional

officer’s union and is subject to the terms of a collective bargaining agreement (CBA)




                                               3
with the State of California. A CBA expired on July 2, 2006, and a subsequent CBA

became effective April 1, 2011.

       At CRC, the first watch was from 10:00 p.m. to 6:00 a.m.; the second watch was

from 6:00 a.m. to 2:00 p.m.; and the third watch was from 2:00 p.m. to 10:00 p.m.

During the time Chaudhry was assigned to PSH, the first watch was from midnight to

8:00 a.m.; the second watch was from 8:00 a.m. to 4:00 p.m.; and the third watch was

from 4:00 p.m. to midnight. The second watch was the preferred shift for almost 99

percent of the correctional officers. PSH now follows the same watch schedule as CRC.

       Most correctional officer positions are filled by a “post and bid” system by which

correctional officers bid for open positions based on their seniority. The most desirable

positions get filled by officers with the most seniority. The post and bid procedure is a

part of the CBA. It operates whenever there is a vacant position. Approximately every

two or three years, there is a “Big” post and bid where most or all positions, vacant or

not, are subject to an open bidding process for eligible correctional officers. Under the

CBA, correctional officers are not eligible to participate in any post and bid process

during the period in which they are under disciplinary action.

       In August 2007, Chaudhry was involved in a dispute with Sergeant Johnny

Morales and Sergeant Linda Aguilar regarding Chaudhry not wearing his safety vest. On

November 13, 2007, Chaudhry was served with a Notice of Adverse Personnel Action

based on his insubordination, discourteous treatment, and failure of good behavior in his

interactions with Sergeants Morales and Aguilar; the official reprimand became effective


                                             4
as of November 25, 2007, and ended November 24, 2010. As a result, Chaudhry was not

eligible to participate in any post and bid process during that time.

        Chaudhry appealed the adverse action to the State Personnel Board (SPB). On

December 15, 2008, the SPB issued a decision, which sustained the adverse action,

resulting in Chaudhry remaining on first watch at PSH until March 1, 2010. Chaudhry

did not file any other claims or further appeals on the adverse action.

        On March 3, 2008, while assigned to first watch at PSH, Chaudhry sent a

memorandum to PSH Watch Commander Lieutenant J. Cleland requesting an assignment

to second watch and to have Thursdays and Fridays off to observe his “religious

obligation.” On March 7, 2008, Lieutenant Cleland informed Chaudhry that he already

had Thursdays and Fridays off, and that his request for second watch with Thursdays and

Fridays off could not be granted because there were no available positions that met that

criteria.

        On June 24, 2008, Chaudhry sent Lieutenant Cleland another memorandum

requesting the same accommodation of assignment to second watch with Thursdays and

Fridays off for Ramadan 2008. Lieutenant Cleland responded on July 25, 2008,

reiterating that Chaudhry already had Thursdays and Fridays off and there were no vacant

second watch positions.

        Chaudhry filed an appeal with SPB alleging he was denied reasonable

accommodation for his religious practices for the 2008 time period. On March 25, 2010,

SPB denied the appeal. Chaudhry was afforded no monetary or nonmonetary relief and


                                              5
SPB ordered CDCR not to take any further accommodative action. SPB found:

Chaudhry attended all the services at his mosque during Ramadan that he wanted to

attend; Chaudhry did not establish a prima facie case of religious discrimination based on

failure to accommodate his religious observances; and CDCR did not fail to provide

Chaudhry with a reasonable accommodation.

      On August 5, 2009, Chaudhry attended an SPB hearing regarding his religious

accommodation requests for Ramadan 2009. The administrative law judge (ALJ) ordered

and obtained reports that there were no available second watch vacancies that satisfied

Chaudhry’s request. The ALJ did not order any further accommodation or action by

CDCR.

      On August 10, 2009, Chaudhry submitted another request for accommodation of

his religious practices to Captain A.C. Hernandez at PSH. Specifically, he requested a

transfer to any second watch position at PSH and to be exempt from working overtime

between August 21 and September 21, 2009—the month of Ramadan. The next day,

Captain Hernandez informed Chaudhry that there were no available second watch

positions, that the ALJ did not order CDCR to take any further accommodation, and that

he would “welcome any interaction with [Chaudhry] in an effort to facilitate

[Chaudhry’s] request to be exempt from mandatory overtime.”

      On August 19, 2009, Chaudhry sent a handwritten memorandum to Captain

Hernandez to inquire whether he had “swap privileges,” which would allow him to swap

shifts with other officers. On August 24, 2009, Captain Hernandez informed Chaudhry


                                            6
he did have swap privileges. Chaudhry was also granted a temporary exemption from

mandatory overtime and told he could make any shift swaps with other officers he felt

were necessary.

      On March 1, 2010, the earliest date on which Chaudhry could participate in post

and bid positions, he bid for and was assigned to a second watch position at CRC.

B. Chaudhry’s Complaint

      In March 2012, Chaudhry filed his second amended complaint against CDCR

alleging a single cause action for violation of FEHA due to CDCR’s refusal to

accommodate his religious practices during Ramadan 2009. In the complaint, Chaudhry

alleged the following: he was a correctional officer employed by CDCR and a practicing

Sunni Muslim obligated to observe the month of Ramadan; the Taraweeh prayer is

performed during Ramadan after sunset, lasts roughly two to four hours, and is held at the

mosque every night; during Taraweeh prayers, recitations of the entire Quran, the Muslim

holy book, are completed over the month; under FEHA, he has a right to perform his

mandatory religious duties and CDCR is required to accommodate his religious

observances so long as it incurs no undue hardship on CDCR.

      Chaudhry further alleged: since 2006, CDCR engaged in unlawful employment

practices at CRC by creating an uncomfortable and unaccommodating work environment

for minority employees, including Muslim employees; CDCR has engaged in a pattern or

practice of denying reasonable religious accommodations for mandatory religious

practices; higher ranking officers and supervisors singled out Chaudhry, who had been


                                            7
subjected to humiliation and ridicule based on his religion; and CDCR failed to

adequately respond to, and denied, requests for reasonable accommodation. In particular,

Chaudhry alleged facts regarding his August 10, 2009, request for a shift change to

accommodate his religious practices during the month of Ramadan 2009, CDCR’s denial

of that request, his further request on August 19, 2009, and CDCR’s failure to respond to

that request due to its “neglect and indifference.” Chaudhry sought declaratory and

injunctive relief, as well as damages.

C. Motion for Summary Judgment

         CDCR filed its motion for summary judgment in February 2013. CDCR asserted

that Chaudhry failed to establish the prima facie element of a conflict between a religious

belief and an employment requirement and, if there was a conflict, CDCR reasonably

accommodated him.

         In his opposition, Chaudhry asserted that there was a conflict and he was not

reasonably accommodated, any accommodation was not appropriate because there was

no CBA in place, and the SPB did not adjudicate the same religious accommodation

claim.

         Following a hearing, the court found that Chaudhry could not establish a prima

facie case for discrimination based on a failure to accommodate Chaudhry’s religious

practice and granted CDCR’s motion. Chaudhry appealed.




                                              8
                                     III. DISCUSSION

A. Applicable Law

       1. Failure to Accommodate Religious Observance Under FEHA

       Under FEHA, an employer may not discriminate against an employee “in

compensation or in terms, conditions, or privileges of employment” based on “religious

creed.” (Gov. Code, § 12940, subd. (a); California Fair Employment & Housing Com. v.

Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011 (Gemini).) Furthermore, an

employer may not discriminate “because of a conflict between the person’s religious

belief or observance and any employment requirement, unless the employer . . .

demonstrates that it has explored any available reasonable alternative means of

accommodating the religious belief or observance, including the possibilities of excusing

the person from those duties that conflict with his or her religious belief or observance or

permitting those duties to be performed at another time or by another person, but is

unable to reasonably accommodate the religious belief or observance without undue

hardship . . . on the conduct of the business of the employer . . . .” (Gov. Code, § 12940,

subd. (l).) “Religious belief or observance . . . includes, but is not limited to, observance

of a Sabbath or other religious holy day or days . . . .” (Ibid.)

       “Because of the similarity between state and federal employment discrimination

laws, California courts look to pertinent federal precedent when applying our own

statutes.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) California has

adopted the burden-shifting test established by the United States Supreme Court for


                                               9
trying claims of discrimination based on a theory of disparate treatment. (Ibid.)

“‘Disparate treatment’ is intentional discrimination against one or more persons on

prohibited grounds.” (Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014)

226 Cal.App.4th 886, 893.)

       Under this burden-shifting process, the plaintiff has the initial burden of

establishing a prima facie case of discrimination. (Harris v. City of Santa Monica (2013)

56 Cal.4th 203, 214.) There are three elements to a prima facie case of failing to

accommodate an employee’s religious practices under Government Code section 12940,

subdivision (l): “[T]he employee sincerely held a religious belief; the employer was

aware of that belief; and the belief conflicted with an employment requirement.”

(Gemini, supra, 122 Cal.App.4th at p. 1011.) Of these, CDCR challenges only the third:

that there was a conflict between Chaudhry’s belief and an employment requirement.

       If the employee establishes a prima facie case, the burden shifts to the employer to

establish that “‘it initiated good faith efforts to accommodate or no accommodation was

possible without producing undue hardship. [Citations.]’” (Gemini, supra, 122

Cal.App.4th at p. 1011, quoting Soldinger v. Northwest Airlines, Inc. (1996) 51

Cal.App.4th 345, 370.) The defendant “bears the burden of proving by a preponderance

of the evidence the existence of legitimate, nondiscriminatory reasons for the

employment action . . . .” (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S.

248, 252.) To do this, the defendant must clearly set forth, through admissible evidence,

the reasons for the employment action that are “legally sufficient to justify a judgment for


                                             10
the defendant.” (Id. at p. 255.) If the defendant does so, the plaintiff must show that the

proffered reasons are a pretext for discrimination, or produce other evidence of a

discriminatory motive. (Harris v. City of Santa Monica, supra, 56 Cal.4th at pp. 214-

215.) “The ultimate burden of persuasion on the issue of discrimination remains with the

plaintiff.” (Id. at p. 215.)

       2. Summary Judgment and Standard of Review

       Summary judgment is appropriate when all papers submitted show 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. (Code Civ. Proc., § 437c subd. (c); Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 850.) Summary judgment allows a party to show that material

factual claims arising from the pleadings need not be tried because they are not in

dispute. (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 604-605.)

       “When the defendant moves for summary judgment . . . the defendant must

present evidence that would preclude a reasonable trier of fact from finding that it was

more likely than not that the material fact was true [citation], or the defendant must

establish that an element of the claim cannot be established, by presenting evidence that

the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’

[Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003,

quoting Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 854.)

       If the defendant carries its burden, the burden of production shifts to the opposing

party to make a prima facie showing of the existence of a triable issue of material fact.


                                             11
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 850; Code Civ. Proc., § 437c,

subd. (p)(2).) A prima facie showing is one that is sufficient to support the position of

the party in question. (Aguilar v. Atlantic Richfield Co., supra, at p. 851.)

       “In determining whether the papers show that there is no triable issue as to any

material fact the court shall consider all of the evidence set forth . . . and all inferences

reasonably deducible from the evidence . . . .” (Code Civ. Proc., § 437c, subd. (c).)

“Although a party may rely on reasonable inferences drawn from direct and

circumstantial evidence to satisfy its burden on summary judgment, [courts] do not draw

inferences from thin air.” (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 592.)

“[I]f any evidence or inference therefrom shows or implies the existence of the required

element(s) of a cause of action, the court must deny a defendant’s motion for summary

judgment . . . because a reasonable trier of fact could find for the plaintiff.” (Smith v.

Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474.) “‘But if the court

determines that all of the evidence presented by the plaintiff, and all of the inferences

therefrom, show and imply [the existence of a required element of a cause of action] only

as likely as [its nonexistence] or even less likely, it must then grant the defendant[’s]

motion for summary judgment . . . , even apart from any evidence presented by the

[defendant] or any inferences drawn therefrom, because a reasonable trier of fact could

not find for the plaintiff.” (Ibid.)

       We review the grant of a motion for summary judgment de novo. (Buss v.

Superior Court (1997) 16 Cal.4th 35, 60.) In reviewing the trial court’s decision, we take


                                               12
the facts from the record that was before the trial court when it ruled on the motion.

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) We consider all the

evidence set forth in the moving and opposing papers, except that to which objections

were made and sustained. (Ibid.)

B. There is No Triable Issue as to Any Conflict Between Chaudhry’s Religious Practices

and His Employment

       CDCR claims the undisputed evidence establishes there was no conflict between

Chaudhry’s religious practice and his work schedule; therefore, Chaudhry could not

establish a prima facie claim of discrimination. Chaudhry claims that a triable issue of

material fact exists because his shift directly conflicted with his religious practice. We

agree with CDCR.

       “[I]n general, employees do not have ‘[a]n inflexible duty to reschedule’ their

religious ceremonies.” (Tiano v. Dillard Dept. Stores, Inc. (9th Cir. 1998) 139 F.3d 679,

682, quoting Heller v. EBB Auto Co. (9th Cir. 1993) 8 F.3d 1433, 1439.) Therefore, an

employer has the duty to accommodate upon notice that there is an actual conflict

between a religious observance and a job-related requirement. (Wilkerson v. New Media

Technology Charter School (3d Cir. 2008) 522 F.3d 315, 319.) This duty is triggered

when the employee tells the employer that he has a “religious obligation” and would be

unable to perform his job-related requirement. (Gemini, supra, 122 Cal.App.4th at p.

1016.) However, the employee must provide enough information to make the employer

aware that there is an actual conflict between the employee’s religious observance and


                                             13
the requirement for performing the job. (Equal Employment Opportunity Commission

(EEOC) Directives Transmittal No. 915.003: Religious Discrimination (July 22, 2008)

EEOC Compliance Manual, § 12-IV, p. 46.)

       As stated above, in deciding whether CDCR is entitled to summary judgment, we

must determine what any evidence submitted by Chaudhry or inference therefrom

“‘could show or imply to a reasonable trier of fact.’” (Smith v. Wells Fargo, supra, 135

Cal.App.4th at p. 1489.) “Therefore, if any evidence or reasonable inference therefrom

shows or implies the existence of the required element(s) of a cause of action, the trial

court was required to deny [CDCR]’s motion for summary [judgment] because a

reasonable trier of fact could find for [Chaudhry].” (Ibid.) “‘But if the court determines

that all of the evidence presented by [Chaudhry], and all of the inferences therefrom,

show and imply [the existence of a required element of a cause of action] only as likely as

[its nonexistence] or even less likely, it must then grant [CDCR]’s motion for summary

[judgment], even apart from any evidence presented by [CDCR] or any inferences drawn

therefrom, because a reasonable trier of fact could not find for [Chaudhry].’” (Ibid.)

       Applying this standard, we conclude a reasonable trier of fact could not infer from

the evidence that the existence of a conflict within Chaudhry’s cause of action is more

likely than its nonexistence. In his deposition, Chaudhry explained that the Taraweeh

prayer occurs during Ramadan, takes place at a mosque, starts after the last of the five

daily prayers, and lasts about one hour. He also stated that the Taraweeh prayer starts

between 8:00 p.m. and 10:00 p.m., and that his first watch started at midnight. Therefore,


                                             14
if the Taraweeh prayer begins at the latest possible start time, 10:00 p.m., it would be

completed by 11:00 p.m.—one hour before Chaudhry’s shift began at midnight.

Chaudhry does not allege or assert that he could not travel from the mosque to his place

of work in that hour. Indeed, Chaudhry admitted that he was able to complete his

Ramadan prayers and report to first watch by midnight. Although this admission was

made in response to a question about a period of time in August 2008, there is nothing in

the record from which we can reasonably infer that Chaudhry’s travel time between the

mosque and work had changed in 2009. Therefore, based on the undisputed facts, there

is no triable issue of material fact as to any conflict between Chaudhry’s religious

observations and the requirement that he report to his first watch shift by midnight.

Because Chaudhry cannot establish a prima facie case of discrimination, CDCR is

entitled to summary judgment.

C. CDCR Provided Reasonable Means of Accommodating Chaudhry’s Religious

Observance

       Even if a triable issue of fact exists with respect to a conflict between Chaudhry’s

religious practices and his work requirements, CDCR has also established that it

reasonably accommodated Chaudhry’s requests regarding Ramadan 2009 as a matter of

law.

       Once a prima face case with sufficient evidence is established by the employee,

the burden shifts to the employer to show that “‘it initiated good faith efforts to

accommodate or no accommodation was possible without producing undue hardship.


                                             15
[Citations.]’” (Gemini, supra, 122 Cal.App.4th at p. 1011, quoting Soldinger v.

Northwest Airlines, Inc., supra, 51 Cal.App.4th at p. 370; Gov. Code, § 12940, subd. (l).)

       An individual alleging denial of religious accommodation is seeking an adjustment

to a neutral work rule that infringes on the employee’s ability to practice his religion.

The accommodation requirement is “plainly intended to relieve individuals of the burden

of choosing between their jobs and their religious convictions, where such relief will not

unduly burden others.” (EEOC Directives Transmittal No. 915.003: Religious

Discrimination, supra, EEOC Compliance Manual, § 12-IV, p. 46, quoting Protos v.

Volkswagen of America, Inc. (3d Cir. 1986) 797 F.2d 129, 136.) “Reasonable

accommodation may include, but is not limited to, job restructuring, job reassignment,

modification of work practices, or allowing time off in an amount equal to the amount of

non-regularly scheduled time the employee has worked in order to avoid a conflict with

his or her religious observances.” (Cal. Code Regs., tit. 2, § 11062, subd. (a).)

       Here, there were no second watch positions open to reasonably accommodate

Chaudhry’s request for a shift change. Although an ALJ had not ordered any

accommodations, Captain Hernandez informed Chaudhry in August 2009 that he would

“welcome any interaction” with Chaudhry regarding his request to be exempted from

mandatory overtime. Later that month, Captain Hernandez responded to Chaudhry’s

inquiry about swap privileges by affirming that Chaudhry did have such privileges.

Chaudhry was also granted a temporary exemption from mandatory overtime and told he

was able to make any shift swaps with other officers he felt were necessary. These


                                             16
actions constitute good faith efforts by CDCR to accommodate Chaudhry’s requests as a

matter of law. Therefore, even if a conflict existed between Chaudhry’s religious

observance of Ramadan 2009 and CDCR’s work requirements, there are no triable issues

of material fact on this issue of reasonable accommodation and CDCR is entitled to

summary judgment.

                                     IV. DISPOSITION

       The judgment is affirmed. Each party shall bear their own costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(5).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                             KING
                                                                                          J.


We concur:

RAMIREZ
                       P. J.

HOLLENHORST
                          J.




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