Belletto v. Bd. of Trustees of the Cal. State U. CA2/2

Filed 11/5/26 Belletto v. Bd. of Trustees of the Cal. State U. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO VINCENT BELLETTO, B348578 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 23STCV16821) v. ORDER MODIFYING OPINION AND DENYING BOARD OF TRUSTEES OF THE PETITION FOR REHEARING CALIFORNIA STATE UNIVERSITY et al., [Change in Judgment] Defendants and Respondents. THE COURT: The opinion herein filed on October 14, 2026, is modified as follows: At page 17, in the Disposition, delete the last sentence and replace it with: The parties shall bear their own costs on appeal. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 947– 951.) Appellant’s petition for rehearing is denied. There is a change in the judgment. ___________________________________________________________ LUI, P. J. CHAVEZ, J. RICHARDSON, J. Filed 10/14/26 Belletto v. Bd. of Trustees of the Cal. State U. CA2/2 (unmodified opn) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO VINCENT BELLETTO, B348578 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 23STCV16821) v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Bradley S. Phillips, Judge. Affirmed. Law Offices of Andy Katz and Andy Katz for Plaintiff and Appellant. Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Austin J. Cattermole and Gregory Call, Deputy Attorneys General, for Defendants and Respondents. ______________________________  In this action alleging violations of the California Fair Employment and Housing Act (FEHA; Gov. Code,1 § 12900 et seq.) and other California employment laws, Plaintiff Vincent Belletto appeals the grant of summary judgment in favor of Defendants the Board of Trustees of the California State University and Daniel O’Connor. Because the trial court correctly concluded there were no triable issues of material fact, we affirm. FACTUAL BACKGROUND I. Belletto’s Appointments as a Temporary Part-time Lecturer Belletto was a temporary part-time lecturer in California State University Long Beach’s (CSULB) Anthropology Department during the 2021-2022 academic year. Because Belletto had taught in consecutive semesters, he received a one- year contract for the 2022-2023 academic year. However, as explained to Belletto by Scott Wilson, the Anthropology Department Chair, “right to work” rules required Wilson to offer courses to certain lecturers first, such as those with more seniority. Accordingly, although Belletto had an “entitlement” to courses moving forward, that was contingent on availability of courses Belletto was qualified to teach. For the fall 2022 semester, Belletto received temporary part-time lecturer appointments in the Anthropology Department and the Human Development (HDEV) Department. His contracts stated the appointments were for the fall 2022 semester only and they did “not establish consideration for subsequent appointments or any further appointment rights.” 1 Undesignated statutory references are to the Government Code. 2 II. Belletto’s Removal from the HDEV Class During the start of the fall 2022 semester, Belletto began experiencing classroom management challenges in the HDEV class. According to Belletto, his HDEV students interrupted his lectures, formed a thread on the social media platform Discord calling him names and encouraging other students to undermine his authority2, and sent him threatening e-mails. One of the e- mails stated, “I have never once since I transferred to CSULB not completed an assignment. I am an honor student and I have never felt more proud of how hard I have worked to get to this point with my education. I am scheduled to graduate this spring. I will pass your class, but I am paralyzed in completing Lab 2 . . . .” Belletto considered the e-mail threatening because he found the statement, “I will pass your class,” to be “aggressive” and “intimidating” as it used “active voice assertions for things that are not foregone outcomes.” On September 12, 2022, Belletto e-mailed his concerns about the Discord thread and student disruption to Karen Quintiliani, the HDEV Department Chair. Belletto described how he had been handling disruptions up to that point, which included talking with the students after class and explaining their behavior was inappropriate. In response, Quintiliani told Belletto that he handled the situation productively and that she would check in to provide support. Quintiliani later met with Belletto and advised him he could dismiss class if he felt threatened. On September 20, 2022, Belletto ended his HDEV class early after students disrupted class. According to Belletto, a 2 Belletto did not print out the Discord thread, and it is not part of the record. 3 group of five to eight students then surrounded him and yelled insults at him. The students disbanded after Belletto took a picture of them with his phone. That evening and the next day, Belletto e-mailed Quintiliani about the incident and indicated it made him fear for his safety. On September 22, 2022, Quintiliani replied to Belletto’s e- mails and informed him that she and O’Connor, the Associate Dean for the College of Liberal Arts, agreed that Quintiliani should meet with the HDEV class to stress that disrespectful behavior would not be tolerated. As for how to handle further disruptions, Quintiliani reminded Belletto of the Campus Assessment, Response and Evaluation for Students (CARES) team, which handled student misconduct. In response to the plan to have Quintiliani address the class, Belletto stated he did not want to bring in his direct reports because it might be detrimental to student morale and undermine his position in the classroom. Around 8:30 p.m. on September 22, 2022, Belletto received an e-mail from a student whose name he did not recognize. The e- mail, with subject line “Elena Fisher-Wikipedia,” contained a graphic of a woman holding a gun pointing downward. The next day, Belletto forwarded the e-mail to Quintiliani, stated he believed the image to be a direct threat from a student, and indicated he was not comfortable going back into the classroom. Quintiliani replied: “I want you to know that I take your safety and your concerns seriously. You have described that students attacked you verbally and physically threatened you. Under no circumstances are threats of or actual violence allowable or sanctioned in the class or outside of class. Because of the seriousness of your report, I stated that contacting the campus experts (CARE[S] Team) about the incident (and behaviors beforehand) is needed. I feel strongly that getting campus experts 4 involved is critical to address the safety concerns, which are beyond my expertise in addressing.” On September 26, 2022, Belletto met with O’Connor and Quintiliani to discuss the ongoing issues with the HDEV students and the gun image. According to Belletto, when O’Connor saw the gun image, he joked that it looked like it came from a video game. Belletto then reiterated he had safety concerns and disclosed he had a disability. When O’Connor asked what Belletto’s disability was, Belletto informed him that he had Asperger’s Syndrome and that the students’ combative behavior gave him anxiety and panic attacks. In response, O’Connor told Belletto to submit a CARES report if he still felt unsafe. Belletto then told O’Connor and Quintiliani that he had spoken to the University Police Department (UPD), which prompted O’Connor and Quintiliani to say that reporting students to the police would be “ ‘problematic’ due to ‘issues of race’ as well as other ‘political and ethical implications.’ ” Belletto claimed O’Connor also threatened it would not be good for him if he pressed charges. After the meeting, Quintiliani e-mailed Belletto informing him that she and O’Connor approved of Belletto changing the modality of his class lectures, labs, and office hours from in person to online for the rest of the semester. Belletto accordingly changed the mode of instruction to fully remote. Meanwhile, Belletto reported the gun image e-mail to UPD. Police officers promptly investigated and determined it was mistakenly sent by one of Belletto’s former anthropology students, someone Belletto did not remember, but who received one of the highest grades in the course. The student confirmed that the photograph was of an actress who played a video game character in a live action movie and he did not intend to send it to 5 Belletto. Belletto met with the student on September 30, 2022, and was satisfied with his apology. Belletto also reported his safety concerns regarding the HDEV students to the CARES team and Office of Student Conduct and Ethical Development (OSCED). After receiving Belletto’s report, OSCED issued charge notices and opened conduct cases for each of the students named by Belletto. OSCED investigators individually met with Belletto and the students, reviewed the evidence provided by the parties, and concluded Belletto’s accusations were unsubstantiated. After Belletto began teaching the HDEV class remotely, he continued to feel that students were disruptive and displayed intimidating behavior towards him. According to Belletto, CSULB should have accommodated him by transferring the disruptive students out of his class to another section or professor’s class. Belletto claimed that CSULB’s refusal to provide these accommodations forced him to continue having intimidating interactions with students. One such interaction was an e-mail from a student asking to meet over Zoom after she had experienced a computer error. By early October 2022, Belletto began cancelling classes and failing to teach online lectures synchronously (in real time). On October 9, 2022, Belletto was involved in a car accident. This caused him to take time off from October 10 to 14, and October 25 to 27. Other than taking these periods off, Belletto did not request any other accommodation for the car accident. Meanwhile, on October 11, 2022, Belletto e-mailed O’Connor, Quintiliani, and OSCED to follow up on his concerns regarding the HDEV students. Belletto claimed CSULB was not responding to his safety concerns and again mentioned the e-mail with the image of the woman holding the gun. He further 6 declared that “[a]s a gay man with Asperger’s, I am left feeling very threatened and largely unsupported,” and demanded to know “[w]hat measures is [CSULB] going to take to discipline these students?” After receiving Belletto’s e-mail, O’Connor requested that various administrators meet to address the issues raised in the e- mail. O’Connor explained, “It is pretty clear to me that this is a matter that may result in litigation in the future and it would be good for our various efforts to be coordinated.” According to O’Connor, after meeting with administrators from UPD and OSCED, he understood that they had found that Belletto’s allegations were unsubstantiated. On October 24, 2022, Belletto met with O’Connor and another administrator to address his ongoing concerns with the HDEV students. According to Belletto, at this meeting, O’Connor minimized his safety concerns and mocked his disability. Belletto claimed, among other things, that O’Connor (1) “indicated with a stern voice” that Belletto’s “concerns over student misconduct and personal safety were ‘being exaggerated’ ”; (2) laughed at him for being scared of a cartoon; (3) said he should file for workers’ compensation if his anxiety was that bad; and (4) diminished his Asperger’s Syndrome by “requiring [him] to meet with the offending students during office hours . . . .” After this meeting, Belletto e-mailed O’Connor thanking him for his “ongoing concern. Belletto, however, also reiterated his belief that CSULB should discipline the students and stated that changing the mode of instruction had not been sufficient to address his complaints. Around this time, Quintiliani and O’Connor had been speaking to students after they complained about Belletto’s class cancellations, class management, and lack of instruction in the course. O’Connor ultimately concluded Belletto was not providing 7 the HDEV students required instruction or performing other essential job duties and that he needed to be replaced as instructor. On October 26, 2022, O’Connor notified Belletto of the decision to relieve him as instructor for the HDEV class. O’Connor explained that Belletto would continue to be paid for the course through the remainder of the semester but that he was being removed because the school no longer had confidence in Belletto’s “ability to manage [the] course and deliver instruction in a manner that will allow for the success of the students.” III. The Expiration of Belletto’s Appointments Although Belletto was removed as the instructor for the HDEV class, he continued to teach his anthropology class for the rest of the fall 2022 semester. On November 30, 2022, Belletto informed Wilson that he needed to take a medical leave of absence for the next two months. The same day, Belletto submitted a form requesting medical leave from November 30 to December 31, 2022. A few days later, Belletto submitted a signed medical certification indicating that the condition for which Belletto was seeking leave, which was unspecified, would have a probable duration of six months. CSULB approved the leave request and placed Belletto on medical leave from November 30 to December 23, 2022, the last day of the semester. On January 4, 2023, Wilson notified Belletto he did not have any classes to offer Belletto for the spring 2023 semester. Wilson explained the downturn in enrollment and changes in the general education pattern resulted in fewer available courses, and those courses had to be assigned to faculty members with more seniority. 8  PROCEDURAL HISTORY On July 18, 2023, Belletto commenced the instant action. In the operative first amended complaint, Belletto alleged six FEHA violations: (1) discrimination based on disability (Gov. Code, § 12940, subd. (a)); (2) failure to participate in the interactive process to determine a reasonable disability accommodation (id., §§ 12926.1, subd. (e), 12940, subd. (n)); (3) failure to accommodate disability (id., § 12940, subd. (m)); (4) hostile work environment harassment (id., subd. (j)(1)); (5) retaliation (id., subd. (h)); and (6) failure to prevent discrimination, harassment, and retaliation (id., subd. (k)). He also alleged a violation of the California Family Rights Act (CFRA) and retaliation in violation of Labor Code sections 6310 and 1102.5. Defendants moved for summary judgment, or alternatively, summary adjudication of a number of issues. Belletto opposed. The trial court granted the motion for summary judgment. After judgment was entered, Belletto timely appealed. DISCUSSION We review de novo the trial court’s order granting the motion for summary judgment. (Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th 317, 334.) We view the evidence in the light most favorable to the nonmoving party and decide whether there is a triable issue of any material fact. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) I. Failure to Accommodate and Failure to Engage in the Interactive Process Belletto argues there are triable issues of fact as to whether Defendants accommodated his disability, Asperger’s Syndrome, 9 and whether they engaged in the interactive process.3 We disagree. A. Law “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009–1010 (Scotch).) “While the reasonableness of an accommodation is ordinarily a question of fact [citations], FEHA does not require employers to eliminate essential functions of a job to accommodate a disabled employee.” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 719.) “ ‘The “interactive process” required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.’ ” (Scotch, supra, 173 Cal.App.4th at p. 1013.) However, “the employee must be able to identify an available accommodation the interactive process should have produced.” (Id. at p. 1018.) “[A]n employer cannot be held liable for failure to engage in the interactive process where the employee is unable to identify a reasonable accommodation that would have been available had the parties engaged in the interactive process.” (Miller v. Department of Corrections & Rehabilitation (2024) 105 Cal.App.5th 261, 282–283 (Miller).) 3 Belletto initially also argued Defendants failed to accommodate him after his October 9, 2022 car accident. In his reply brief, Belletto concedes the only accommodation he needed after the car accident was some time off, which Defendants granted. 10  B. Analysis Belletto cannot show Defendants failed to accommodate his Asperger’s Syndrome or failed to engage in the interactive process. After Belletto shared his difficulties managing the HDEV class and concerns for his personal safety, CSULB administrators met with him multiple times to address his concerns and investigated his accusations that students had been threatening him and disrupting class. After Belletto informed O’Connor on September 26, 2022, that he had Asperger’s Syndrome and that the students’ behavior gave him anxiety and panic attacks, Defendants approved of Belletto changing the modality of his class lectures, labs, and office hours from in person to online for the rest of the semester. Quintiliani also attempted to attend class with Belletto to support him, but Belletto declined the offer because he believed it might undermine his classroom authority. Despite receiving these accommodations, Belletto could not perform his essential functions as a lecturer. He cancelled classes and failed to teach online lectures synchronously, causing students to complain about the lack of instruction and O’Connor to conclude that Belletto needed to be removed. According to Belletto, there was one other accommodation Defendants could have provided: the removal of the allegedly disruptive HDEV students from his class. But no reasonable trier of fact could conclude this was a reasonable accommodation. As Belletto admitted in his deposition, “being able to manage student disruption in class is an essential duty of a college lecturer,” and it is well settled that the “elimination of an essential function is not a reasonable accommodation.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375.) Defendants, having provided Belletto with all reasonable accommodations they could, cannot be liable because they 11 declined a request for an unreasonable accommodation. (See Miller, supra, 105 Cal.App.5th at pp. 282–283.) Belletto’s arguments do not support a contrary conclusion. First, he argues the remarks made by the trial court at the summary judgment hearing indicated it employed the wrong legal standard to assess his accommodation arguments. Specifically, he asserts the court’s questions as to whether he could prove O’Connor made his allegedly disparaging comments because of Belletto’s disability, and whether he could prove the students knew he had Asperger’s Syndrome, meant the court required him to prove more than was required under the law. But the court did not pose these questions in connection with the accommodation and interactive process causes of action. In any event, the court’s comments at oral argument do not warrant reversal because its written analysis of these causes of action employed the correct legal standard. (Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 667, fn. 9 [“[A] trial judge’s oral remarks or opinions, not embodied in the written findings or judgment, may not be used to impeach the findings or judgment”].) Second, citing Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, Belletto argues the trial court erroneously endorsed circular reasoning advanced by Defendants. Specifically, he argues employers cannot deny an employee an accommodation and then terminate them for failing to perform essential work functions without the requested accommodation. Belletto’s argument, however, presumes the requested accommodation was reasonable. (See id. at p. 971 [the defendant presented no evidence that the plaintiff’s requested accommodation was not a reasonable accommodation].) As already explained, no reasonable trier of fact could conclude 12 Belletto’s desired accommodation, the removal of certain HDEV students, was reasonable. Finally, he argues in reply that Defendants’ ability to arrange for independent study for one of the disruptive students after Belletto’s removal demonstrates that “individual student accommodations were feasible within existing university resources.” Because Belletto did not make this argument in his opposition below or in his opening brief, it is “doubly forfeited.” (People v. Morales (2020) 10 Cal.5th 76, 98.) II. Disability Discrimination Employment discrimination under FEHA can be proven by either “direct or circumstantial evidence.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 549.) When a plaintiff proffers circumstantial evidence, California courts apply the McDonnell Douglas4 burden shifting test. (DeJung, at p. 549.) When a plaintiff proffers direct evidence, “evidence which, if believed, proves the fact or discriminatory animus without inference or presumption,” there is no need to employ the McDonnell Douglas test. (DeJung, at p. 550.) Here, there is no direct evidence of disability discrimination; Defendants removed Belletto from the HDEV class and declined to extend his temporary part-time lecture appointments for reasons unrelated to his Asperger’s Syndrome. Thus, to pursue his cause of action for disability discrimination, Belletto was required to demonstrate he can satisfy the McDonnell Douglas test. Although Belletto’s briefing suggests he believes he has a cause of action for disability discrimination, he does not directly argue the trial court erred in summarily adjudicating his 4 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. 13 discrimination cause of action or engage with the McDonnell Douglas test. Instead, he conflates the discrimination cause of action with the accommodation and interactive process causes of action, contending aspects of these causes of action are “analytically inseparable.” To the extent Belletto’s discrimination cause of action is derivative of the other two causes of action, the trial court appropriately dismissed the discrimination cause of action for the reasons stated in part I., ante, of the Discussion. To the extent Belletto disagrees that the causes of action rise and fall together, his failure to separately develop the discrimination argument forfeits the issue. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived”].) III. Hostile Work Environment Harassment Belletto argues there are triable issues of fact as to whether Defendants created a hostile work environment after he disclosed his disability on September 26, 2022. We disagree. A. Law To prevail on a cause of action for hostile work environment under FEHA, an employee must show he or she was “subjected to ‘offensive comments or other abusive conduct’ that is (1) based on a ‘protected characteristic’ (here, a claimed disability) and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his or her] employment.’ ” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736.) “ ‘The working environment must be evaluated in light of the totality of the circumstances.’ [Citations.] ‘ “These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” ’ ” (Bailey v. San Francisco Dist. Attorney’s Office 14 (2024) 16 Cal.5th 611, 628 (Bailey).) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (§ 12923, subd. (b).) “The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.” (Bailey, at p. 629.) B. Analysis We agree with the trial court that Belletto cannot show the comments O’Connor allegedly made to Belletto after he disclosed his disability constitute hostile work environment harassment. No reasonable trier of fact could conclude O’Connor made an offensive comment to Belletto based on his Asperger’s Syndrome. For example, O’Connor’s joke that the gun image looked like it came from a video game (which in fact, it did), statement that Belletto’s “concerns over student misconduct and personal safety were ‘being exaggerated,’ ” and question as to whether Belletto was scared of a cartoon made no reference to Belletto’s disability and are not objectively susceptible to interpretation as doing so. Although O’Connor told Belletto to file a worker’s compensation claim if his anxiety was so bad, there is nothing offensive or abusive about telling Belletto he could make a disability claim if he believed he could not function in the position. To create a triable issue of fact, Belletto claims O’Connor made these comments with sardonic and mocking tones. But Belletto’s subjective interpretation and reaction to O’Connor’s comments, alone, do not establish harassment. (See Bailey, supra, 16 Cal.5th at p. 629 [harassment is judged by an objective standard].) Even assuming O’Connor’s comments were objectively offensive, they would not come close to the requirement of “severe 15 or pervasive” such that a reasonable trier of fact could conclude they unreasonably interfered with Belletto’s work performance. (See Bailey, supra, 16 Cal.5th at p. 628 [“ ‘ “[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)” ’ are not sufficient to create an actionable claim of harassment”]; see also § 12923, subd. (b).) Belletto argues the trial court erroneously failed to assess whether harassment occurred from the “totality of the circumstances” because it failed to consider incidents other than his September 26 and October 24, 2022 meetings with O’Connor. For example, Belletto argues the court should have also considered O’Connor’s October 11 e-mail asking administrators to meet because Belletto’s unanswered complaints about safety concerns might result in litigation. Belletto’s opposition below, however, only asked the court to consider the September 26 and October 24 comments. Thus, there was no reason for the court to consider any other incidents, and Belletto’s argument that the court should have done so is forfeited. (See Kime v. Dignity Health, Inc. (2024) 101 Cal.App.5th 708, 721 (Kime) [arguments not raised in opposition to a motion for summary judgment are forfeited].) IV. Forfeiture of CFRA and Retaliation Arguments In Belletto’s opposition to the motion for summary judgment, he argued Defendants (1) violated the CFRA by discriminating against him on the basis of his disability and failing to provide a reasonable accommodation; and (2) retaliated against him for making “numerous written grievances in the aftermath of disruptive and hostile student encounters in September and October 2022” and submitting incident reports to CARES and OSCED. On appeal, Belletto argues for the first time that Defendants (1) interfered with his CFRA rights by limiting his 16 medical leave to 24 days and terminating him during the leave period and (2) retaliated against him for requesting an accommodation and taking a protected medical leave. Belletto’s new arguments are forfeited. (See Kime, supra, 101 Cal.App.5th at p. 721.) DISPOSITION The judgment is affirmed. Defendants are entitled to costs on appeal. RICHARDSON, J. WE CONCUR: LUI, P. J. CHAVEZ, J. 17