Judge: Alison Mackenzie, Case: 20STCV46719, Date: 2025-03-12 Tentative Ruling
Case Number: 20STCV46719 Hearing Date: March 12, 2025 Dept: 55
NATURE OF PROCEEDINGS: Motion for Summary Judgment (Defendant LADWP),
Motion for Summary Judgment (Defendant Henning), Motion for Summary Judgment
(Defendant Woodard)
Defendant LADWP’s Motion for Summary Judgment is
GRANTED.
Defendant Henning’s Motion for Summary Judgment is
GRANTED.
Defendant Woodard’s Motion for Summary Judgment is
GRANTED.
Background
Plaintiff
Edith Williams is currently employed as the Director of Supply Chain Services
at Defendant Los Angeles Department of Water and Power (“LADWP”). Plaintiff was supervised during her tenure as
an employee by Defendants Erin Henning and Leticia Woodard (as well as other individuals
who were prior defendants in this case before being removed from the operative
Second Amended Complaint). Plaintiff alleges that she suffered discrimination due
to her race, gender, age and disability.
Plaintiff suffers from back pain and severe anemia. Plaintiff alleges Defendants retaliated
against her after she complaint about the discrimination she suffered due to
these characteristics.
Plaintiff’s
SAC alleges claims for (1) retaliation in violation of Government Code
§12940(h); (2) disability discrimination in violation of Government Code
§12940(a); (3) race discrimination in violation of Government Code §12940(a);
(4) age discrimination in violation of Government Code §12940(a); (5) whistleblower
retaliation Labor Code §1102.5; (6) hostile work environment in violation of
Government Code §§12923, 12940(j); (7) Civil Rights Violation; (8) Failure to
Prevent Harassment, Discrimination and Retaliation in violation of Government
Code §12940(k); (9) IIED; and (10) violation of Equal Pay Act, Labor Code
§1197.5.
Standard on Summary Judgment
Summary
judgment is proper “if all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” (Code of Civil Procedure §437c(c).) From commencement to
conclusion, the party moving for summary judgment bears the burden of
persuasion that there is no triable issue of material fact and that he is
entitled to a judgment as a matter of law. 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 v. Atlantic Richfield Company
(2001) 25 Cal.4th 826, 855.)
Pursuant
to Code of Civil Procedure §437c(f)(1), a party may properly seek summary
adjudication of one or more causes of action, one or more affirmative defenses,
the issue of punitive damages or the issue of duty. (Code of Civil Procedure §437c(f)(1).) “A
motion for summary adjudication shall be granted only if it completely disposes
of a cause of action, an affirmative defense, a claim of damages or an issue of
duty.” (Id.)
Where
a defendant seeks summary judgment or adjudication, he must show that either
“one or more elements of the cause of action, even if not separately pleaded,
cannot be established, or that there is a complete defense to that cause of
action.” (Code of Civil Procedure
§437c(o)(2).) A defendant may satisfy
this burden by showing that the claim “cannot be established” because of the
lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995)
31 Cal.App.4th 574, 590.) Once the
defendant meets this burden, the burden shifts to plaintiff to show that a
“triable issue of one or more material facts exists as to that cause of action
or defense thereto.” (Id.)
“A
party is entitled to summary judgment only if it meets its initial burden of
showing there are no triable issues of fact and the moving party is entitled to
judgment as a matter of law. This is true even if the opposing party fails to
file any opposition. The court's assessment of whether the moving party has
carried its burden—and therefore caused a shift—occurs before the court's
evaluation of the opposing party's papers. Therefore, the burden on the motion
does not initially shift as a result of what is, or is not, contained in the
opposing papers.” (Mosley v. Pacific
Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s
failure to address issue of whether they were aware of their tenant’s marijuana
growing operation was not grounds to grant summary judgment where moving party
failed to satisfy its initial burden as to the issue); Thatcher v. Lucky
Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant
summary judgment based merely on lack of opposition; court must first determine
if the moving party has satisfied its burden).)
In
addition, the evidence and affidavits of the moving party are construed
strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct.
(2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the
motion (whether there is any issue of material fact [Code of Civil Procedure] §
437c) are to be resolved in favor of the party opposing the motion (i.e., a
denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004)
116 Cal.App.4th 497, 502.)
Analysis
(1) Defendant LADWP Motion for Summary
Judgment, or Adjudication
Evidentiary
Objections and Requests for Judicial Notice
Plaintiff’s
Request for Judicial Notice—DENIED. The
arbitrator’s award and grievance that Plaintiff filed do not fall within any of
the categories of judicially noticeable documents under Evidence Code §§451,
452 or 453.
Plaintiff’s
Objections to Zewdu Dec.—OVERRULE.
Plaintiff’s
Objections to Linard Dec.—OVERRULE.
Plaintiff’s
Objections to D’Andrea Dec.—OVERRULE.
LADWP’s
Objections to Plaintiff’s Evidence—SUSTAIN as to Objection Nos. 1-12, 16, 20-30;
OVERRULE as to Objection No. 13-15.
Parties’
Positions
Defendant
LADWP moves for summary judgment, or in the alternative summary adjudication of
each cause of action.
Defendant
LADWP argues Plaintiff’s claims based on conduct preceding January 1, 2019 are
barred by the FEHA statute of limitations.
LADWP argues the limitations period applicable to conduct occurring
before January 1, 2019 is one year and this action was filed on December 7,
2020. Defendant argues the continuing
violations doctrine also does not apply, because the conduct alleged prior to
January 1, 2019 is not sufficiently similar or related to the alleged
misconduct occurring after January 1, 2019.
LADWP argues the pre-January 1, 2019 alleged misconduct was carried out
by different individuals without common purpose or motivation. LADWP argues in the alternative that the acts
attributable to specific supervisors became permanent once that supervisor was
changed.
Defendant
LADWP also argues Plaintiff cannot establish her discrimination claims. LADWP argues the only discriminatory acts
alleged against it that are timely are (1) denying Plaintiff’s request to
attend a training program; (2) denying her request for MEA time; (3) requiring
her to submit overtime slips; (4) denying her promotion to Supply Services
Manager II in October 2020; and (4) investigating her gate card usage. LADWP argues Plaintiff was ultimately
promoted and the evidence establishes that she was not similarly situated with
other candidates who received the promotion in October 2020. LADWP argues the denial of her request to
attend training did not adversely affect Plaintiff and cannot qualify as an
adverse employment action. LADWP argues
Plaintiff was ultimately promoted to Supply Services Manager II two years
later.
Defendant
LADWP further argues there were legitimate business reasons for the allegedly
discriminatory acts. Defendant argues
Plaintiff was denied a promotion to SSM II in October 2020 because unbiased
raters rated her lower than the candidates who were ultimately promoted. Defendant argues Plaintiff’s low interview
scores are a legitimate, nondiscriminatory reason for denying her the
promotion.
Defendant
LADWP argues the investigation into her gate card use was due to Woodard’s
observation that Plaintiff was working unapproved overtime and her refusal to
submit an overtime slip even after being directed to do so. Plaintiff was not disciplined as a result of
the investigation. Defendant argues
Plaintiff’s request to use MEA time was denied because she was required to
request the time in advance.
Defendant
LADWP argues Plaintiff cannot establish whistleblower retaliation under FEHA or
Labor Code §1102.5. Defendant argues
there is no evidence of whistleblowing activity. Defendant argues the grievances and workplace
complaints were internal personnel matters involving a particular employee and
supervisor, not disclosure of a legal violation. Defendant argues there is also no evidence
connecting Plaintiff’s complaints about her own personnel situation and the
denial of her promotion to SSM II in October 2020.
Defendant
LADWP argues the investigation into Plaintiff’s gate card use was not based on
the anonymous complaint she made against Woodard. Defendant argues the decision to investigate
was made by Henning, not Woodard, and Henning had no knowledge of any
whistleblower complaint against Woodard.
Defendant
argues there were legitimate reasons for the alleged retaliatory actions. Defendant argues there is no evidence to find
these reasons to be pretextual.
Defendant
argues Plaintiff’s hostile work environment claims are based on the same acts
as the discrimination and retaliation claims.
Defendant argues the hostile work environment claims fails of the same
reasons. Defendant argues the acts were
commonplace personnel decisions and they were not sufficiently severe or
pervasive to alter the conditions of employment.
Defendant
argues the 42 USC 1983 claim fails, because LADWP did not have a policy not to
promote her. Defendant argues the
two-year limitations period applies to her 42 USC §1983 claim, and Plaintiff
cannot recover for any alleged violations that took place before December 18,
2018. Defendant also argues the 42 USC
1983 claim fails for the same reason as the discrimination claims. Defendant argues the actions alleged against
it were motivated by legitimate non-discriminatory reasons.
Defendant
argues the failure to prevent discrimination and retaliation are derivative of
the underlying claims for discrimination and retaliation. Defendant argues these derivative claims
fail, because the underlying claims fail.
Defendant
argues Plaintiff’s cause of action for violation of the Equal Pay Act fails,
because Plaintiff is alleging that her pay as an SSM I is less than that of an
SSM II. Defendant argues Plaintiff’s
claim that she was working out of class does not satisfy the EPA’s requirement
that Plaintiff show she was paid less than a person who was performing work
under similar working conditions.
Defendant
argues Plaintiff’s IIED claim is based on the same personnel management
activity that formed the basis of her other claims. Defendant argues such activity cannot form
the basis of an IIED claim. Defendant
argues the alleged rude remarks are merely insults that do not rise to the
level of outrageous conduct as a matter of law.
In
opposition, Plaintiff argues her claims are not time barred as to events
occurring before January 1, 2019.
Plaintiff argues the continuing violation doctrine applies. Plaintiff argues the discriminatory acts
against her included repeated refusals to promote her, denial of training time,
denial of a request to use MEA and retaliatory investigations. Plaintiff argues these acts are all sufficiently
similar to apply the continuing violations doctrine.
Plaintiff
argues all of these adverse employment actions were carried out with
discriminatory intent. Plaintiff argues
she is now a Director Supply Chain Services at LADWP, evidencing her competence
and qualifications for the positions she was denied throughout her 23 years of
employment.
Plaintiff
argues her whistleblower retaliation claims are based on protected
activity. Plaintiff argues she was
retaliated against after she filed multiple grievances against Woodard for
denial of her MEA time, denial of her promotional opportunity and denial of
support staff. Plaintiff argues she
reasonably believed at the time that she was being discriminated against, and
as such, the complaints she filed are therefore protected conduct for purposes
of a retaliation claim.
Plaintiff
argues the gate card investigation into her overtime was initiated by Woodard
and Woodard sat on the interview panel that denied her promotion in October
2020. Plaintiff argues Woodard was retaliating against Plaintiff for filing
multiple grievances against her.
Plaintiff
argues these same acts also establish workplace harassment and hostile work
environment. Plaintiff argues these acts
of harassment were beyond common personnel management decisions.
Plaintiff
argues she will prevail on the derivative claims for failure to prevent
discrimination, harassment and retaliation.
Plaintiff argues she can establish that these wrongful acts took place
and therefore Defendant’s failure to prevent those wrongful acts.
Plaintiff
argues Defendant violated the Equal Pay Act by paying her as an SSM I while
requiring her to perform the duties of an SSM II. Plaintiff argues the issue of
her working out of class was submitted to arbitration and she prevailed.
Plaintiff argues she was awarded 15 months of backpay by the arbitrator. Plaintiff argues this is prima facie evidence
that Defendant violated the equal pay act.
Plaintiff
argues the alleged wrongful acts were discriminatory, harassing and
retaliatory. Plaintiff argues the IIED
claim is based on those same acts.
Plaintiff argues she will prevail on her IIED claim for this reason.
On
reply, Defendant argues the continuing violations doctrine does not apply. Defendant argues the continuing violations
doctrine does not apply to discrete adverse employment actions such as failures
to promote, denials of transfers or disciplinary actions. Defendant argues that each promotion for
which Plaintiff was denied also became permanent once another candidate was
hired for that position. Defendant
argues each pre-2019 incident was not similar or reasonably frequent, because
the alleged mistreatment varied.
Defendant argues the mistreatment alleged was by different supervisors
without any common motivation or purpose, along with multi-year gaps between
them.
Defendant
argues Plaintiff also fails to submit any evidence of a discriminatory or
retaliatory motive. Defendant argues
Plaintiff fails to submit any evidence that she was denied promotions despite
purportedly superior qualifications, nor does Plaintiff submit any admissible
evidence that she was treated differently from similarly situated employees
regarding overtime, use of MEA time and denial of trainings. Defendant argues Plaintiff’s evidence to this
effect is speculative and lacking in foundation.
Defendant
argues that the decision not to remove Woodard from the interview panel for the
SSM II position is not evidence of discrimination and at best, would be
evidence of retaliation. However,
Defendant argues that Woodard’s presence on the interview panel did not affect
the outcome, because the two other interviewers also gave Plaintiff the same
ratings on her interview. Defendant
argues the investigation into Plaintiff’s overtime did not result in any
discipline or other employment action and therefore cannot constitute an
adverse employment action. Defendant
maintains that the complaints against Woodard are not protected conduct under
the whistleblower statutes, because they only involved internal personnel matters
involving her supervisor and herself, rather than a legal violation.
Defendant
argues Plaintiff was legitimately denied a promotion in 2020, because all three
of the rater scored her lower than the successful candidates. Defendant argues there is no evidence that
the legitimate reasons given for denying Plaintiff the promotion were
pretextual.
Defendant
argues Plaintiff’s workplace harassment claim also fails, because personnel
management actions and comments unrelated to her protected classifications
cannot be the basis of a hostile work environment claim. For the same reason, Defendant argues this
conduct cannot form the basis of an IIED claim.
Defendant
argues Plaintiff’s Equal Pay Act claim fails to establish payment of different
wages to employees of the same classification.
Defendant argues Plaintiff was working as an SSM I and cannot claim
unequal pay by comparing herself to SSM II employees. Defendant argues it ultimately paid Plaintiff
“out of class pay” to compensate her for performing some, but not all, duties
of the higher classification.
Defendant
argues Plaintiff failed to address the seventh cause of action for civil rights
violations under 42 USC 1983. Defendant
argues Plaintiff has therefore abandoned that claim.
Statute
of Limitations and Conduct before January 1, 2019
Prior
to January 1, 2020, FEHA “provided that no administrative complaint alleging a
violation of its provisions could be filed with the DFEH after the expiration
of one year form the date upon which the alleged unlawful practice or refusal
to cooperate occurred.” (Pollock v.
Tri-Modal Distribution Services (2021) 11 Cal.5th 918,
931.) After January 1, 2020, the
limitations period was extended to three years.
(Gov. C. §12960(e)(3).)
Plaintiff
filed a her EEOC Charge of Discrimination on August 25, 2020 and obtained an
immediate right to sue letter. Plaintiff
does not dispute that the one-year limitations period applies to any alleged
acts that occurred prior to January 1, 2019.
Instead, Plaintiff argues the continuing violation doctrine applies,
i.e. that the pre-January 1, 2019 acts are part of a pattern or practice of
conduct that continued into the limitations period. As the party asserting an exception to FEHA’s
one-year statute of limitations, Plaintiff has the burden of demonstrating each
element of the continuing violations doctrine.
“Essentially,
the continuing violation doctrine comes into play when an employee raises a
claim based on conduct that occurred in part outside the limitations
period.” (Richards v. CH2M Hill, Inc.
(2001) 26 Cal.4th 798, 812.) A violation
is “a continuing violation if the employer's unlawful actions are (1)
sufficiently similar in kind—recognizing, as this case illustrates, that
similar kinds of unlawful employer conduct, such as acts of harassment or
failures to reasonably accommodate disability, may take a number of different
forms; (2) have occurred with reasonable frequency; (3) and have not acquired a
degree of permanence.” (Id. at
823.) “Permanence…should properly be
understood to mean the following: that an employer's statements and actions
make clear to a reasonable employee that any further efforts at informal
conciliation to obtain reasonable accommodation or end harassment will be
futile.” (Id.)
The
alleged wrongful acts that occurred prior to January 1, 2019 are not
sufficiently similar in kind to those acts within the limitations period and/or
they achieved a degree of permanence.
The alleged acts of discrimination prior to January 1, 2019 are (1) the
2011 refusal of supervisor Davis to
allow her to go to a training in San Diego; (2) the 201l decision to skip her
over as a manager; (3) the 2011 refusal to accommodate her disability by
providing her with a larger office; (4) alleged mistreatment by her former
supervisor Dan Davis in 2011 and her former supervisor Janet Dunham in 2012;
(5) the failure to promote her to the Supply Services Manager I position in
2013; (6) the 2015 failure to promote her to the Supply Services Manager I
position in 2015; (7) the incident in 2015 when her supervisor at the time,
Williams, yelled at her to speak up and (8) the incident in 2016 when Williams
removed her from a list of employees who were to be recognized at a
luncheon. (SAC, ¶¶12-43; Defendant’s UMF
Nos. 10-13, 18-20, 23, 76-79, 86-87, 107-108; Plaintiff’s Response to
Defendant’s UMF Nos. Nos. 10-13, 18-20, 23, 76-79, 86-87, 107-108.)
The
alleged acts of discrimination after January 1, 2019 are as follows: (1) Woodard denied her the ability to attend
training in October 2019 and suggested that she attend on another date; (2)
Woodard denied her support staff; (3) the investigation into Plaintiff’s
overtime in 2020 requested by Woodard and conducted by; (4) the denial of
Plaintiff’s request to use MEA time; (5) Woodard’s demeaning statements about
Plaintiff; and (6) the failure to promote Plaintiff to Supply Services Manager
II by an interview panel consisting of her supervisor Woodard, Andrew Linard
and Simon Zewdu. (SAC, ¶¶44-52;
Defendant’s UMF Nos. 32, 34-39, 46-52, 109; Plaintiff’s Response to Defendant’s
UMF Nos. 32, 34-39, 46-52, 109.)
The
pre-January 1, 2019 acts based on denial of promotions achieved a degree of
permanence once they were filled by other candidates. (Willis v. City of Carlsbad (2020) 48
Cal.App.5th 1104, 1127 (defendant’s independent promotion decisions
each became permanent when a different applicant was put in the position).) Plaintiff alleges that the positions she
applied for in 2013 and 2015 were filled with other persons, and she does not
dispute Defendant’s evidence of these facts.
(UMF Nos. 16, 20; Plaintiff’s Response to UMF Nos. 16 and 20.) As such, the 2013 and 2015 failures to
promote achieved a degree of permanence prior to January 1, 2019 and the
continuing violations doctrine does not apply.
With
regard to the other allegations of wrongdoing prior to January 1, 2019, they
are insufficiently similar or related to the acts committed after January 1,
2019. The acts committed prior to
January 1, 2019 were committed by an entirely different set of supervisors. In
2011, Dunham disparaged her as a “troublemaker” and “entitled princess.” (UMF No. 87.)
Williams purportedly told her to “speak up, I can’t hear you” during a
training and removed her from the Christmas list of employees to be recognized
at lunch. (UMF Nos. 107-108.) In 2020, a full nine years after Dunham made
similar remarks, Woodard allegedly told other employees that Plaintiff was an
“entitled princess,” “would be one to give us trouble,” and Woodard would “take
food off of Plaintiff’s plate.”
(Defendant’s UMF No. 109.) These
remarks were discrete, did not occur with reasonable frequency and were
insufficiently similar and related in time to be considered part of a
continuing course of violative conduct.
Dunham
denied Plaintiff’s request to attend a training in 2011. Eight years later, in October 2019, Woodard
denied her request to attend a training on a specific date and suggested she
attend on another date. These were
dissimilar because Dunham denied her request to attend the training, while
Woodard suggested she attend on another date.
More importantly, these two incidents were eight years apart and involved
two different supervisors.
In
addition, there were large spans of time between the incidents, such as three
years between the last wrongful act attributed to Williams in 2016 (removal
from Christmas list of employees to be recognized) and the first wrongful act attributed to
Woodard in October 2019. (Defendant’s
UMF Nos. 32, 107-108.)
Based
on the undisputed facts, a reasonable jury applying the law correctly could not
reasonably conclude that the continuing violations doctrine applies. Plaintiff’s claims are therefore time-barred
to the extent based on pre-January 2019 claims.
Thus, the only incidents at issue on summary judgment are those acts
committed after January 1, 2019.
FEHA
Discrimination claims (Second through Fourth Causes of Action)
“At
trial, the McDonnell Douglas test places on the plaintiff the initial
burden to establish a prima facie case of discrimination…Generally, the
plaintiff must provide evidence that (1) he was a member of a protected class,
(2) he was qualified for the position he sought or was performing competently
in the position he held, (3) he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.
If, at trial, the plaintiff establishes a prima facie case, a
presumption of discrimination arises.
This presumption, though rebuttable, is legally mandatory.” (Guz v. Bechtel Nat. Inc. (2000) 24
Cal.4th 317, 354–56.)
The
burden then “shifts to the employer to rebut the presumption by producing
admissible evidence, sufficient to raise a genuine issue of fact and to justify
a judgment for the employer, that its action was taken for a legitimate,
nondiscriminatory reason. If the
employer sustains this burden, the presumption of discrimination
disappears” (Id.)
Where
a defendant employer moves for summary judgment on a discrimination claim, the
initial burden rests with the employer to show that no unlawful discrimination
occurred. (Guz v. Bechtel Nat’l, Inc.
(2000) 24 Cal.4th 317, 354-355; see Jones v. R.J. Donovan Correctional
Facility (2007) 152 Cal.App.4th 1367, 1379.)
“The burdens and order of proof therefore shift under the McDonnell
Douglas test when an employer defendant seeks summary judgment. An employer defendant may meet its initial
burden on summary judgment, and require the employee plaintiff to present
evidence establishing a triable issue of material fact, by presenting evidence
that either negates an element of the employee's prima facie case, or
establishes a legitimate nondiscriminatory reason for taking the adverse
employment action against the employee.”
(Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th
954, 966.)
Defendant
satisfies its burden as moving party by either demonstrating a legitimate
business reason as to each of the remaining acts of alleged discrimination that
occurred after January 1, 2019 or negating an element of Plaintiff’s prima
facie case:
·
Defendant submits evidence that Woodard
asked that Plaintiff not attend the October 2019 training because her presence
was needed in the office. (Defendant’s
Appendix of Evidence, Ex. 3, 397:10-398:13; Ex. F, Woodard Dec., ¶6; Ex.
37.) Defendant submits evidence that
Plaintiff was selected to attend a training conference in Canada just prior to
the October 2019 training with Woodard and Tanesha Smith. (Defendant’s Appendix of Evidence, Ex. 3,
397:10-398:13; Ex. F, Woodard Dec., ¶6.)
·
Defendant did not deny Plaintiff support
staff without legitimate business reasons.
Defendant submits evidence that it gave the Supply Utility Buyer
position to another manager, Hector Lucero, because he had also written a
justification for the position.
(Defendant’s Appendix of Evidence, Ex. F, Woodard Dec.) Defendant’s evidence also establishes that
James Thomas was apparently the decision maker and no allegations of
discrimination are made against him.
Defendant also submits evidence that Carlos Aguilar, who was hired by
Plaintiff, was assigned to another manager, Thuy Mauge to ensure that each
SSM’s personnel needs were adequately met.
(Defendant’s Appendix of Evidence, Ex. E, Henning Dec., ¶5.)
·
Defendant submits evidence that Plaintiff
was not selected for the promotion in October 2020, because she scored lower
than the successful candidates on the interview portion of the process. (Defendant’s UMF Nos. 65-69; Defendant’s
Appendix of Evidence, Ex. F, Woodard, ¶11.)
Although Plaintiff claims Woodard was biased against her, there were two
other interviewers on the panel and an observer from the City’s EEO present
during the interviews. (Defendant’s
Appendix of Evidence, Ex, 5, 50-51, 60-61; Ex. B, ¶20; Ex. Ex. C, ¶7; Ex. D,
¶6.) Woodard, Linard and Zewdu scored
Plaintiff’s interview at 87, 87 and 86 respectively, and Plaintiff admitted she
has no reason to believe either Linard or Zewdu were biased against her. (Defendant’s UMF Nos. 66-67; Defendant’s
Evidence, Plaintiff’s Depo. I (Exhibit “1”), pp. 138:13-139:8; Ex. C, Linard
Decl., ¶¶ 9, 12; Ex. D, Zewdu Decl., ¶¶ 8, 11).)
·
Defendant submits evidence that the
investigation into Plaintiff’s overtime, which included examining her gate card
usage, was triggered by legitimate business reasons. The investigation was initiated after Woodard
saw Plaintiff working overtime without preapproval and asked that she submit an
overtime slip. (Defendant’s UMF No.
38.) Defendant submits evidence that (1)
Plaintiff was working overtime without preapproval; (2) she refused to submit
an overtime slip; (3) LADWP policy requires non-exempt employees to obtain
preapproval before working any overtime; (4) LADWP is subject to liability if a
supervisor becomes aware of an employee working overtime but does nothing about
it; (5) Plaintiff admits she would likewise expect persons under her chain of command
to request preapproval prior to working overtime; and (6) she would direct
persons working under her to submit an overtime slip. (Defendant’s UMF Nos. 40-50.) Defendant also submits evidence that the
investigation determined that Plaintiff had in fact worked 123 hours of
unapproved overtime, but no disciplinary action was ever taken against
her. (Defendant’s UMF No. 51.)
·
Defendant submits evidence of a legitimate
business reason for denying Plaintiff’s request for Management Employees
Association time (“MEA time”). Under the
MEA policy, three calendar days advance notice may be required for all time
requested. (Defendant’s UMF No. 53;
Defendant’s Appendix of Evidence, Ex. 14.)
Plaintiff asked for the MEA time the day of her absence. (Defendant’s UMF No. 55.) Woodard’s insistence that Plaintiff provide
an explanation for her claimed MEA absence was also based on a legitimate
business reason, as MEA time was restricted to certain uses and excluded sick
time. (Defendant’s Appendix of Evidence,
Ex. F, ¶7.; Ex. 15.) Woodard was also
acting in conformity with the guidance provided by the Labor Relations’ office
and general counsel’s office, both of which noted that Plaintiff’s MEA leave
amounted to approximately 100 hours in 2019.
(Defendant’s Appendix of Evidence, Ex. F, ¶7.)
The
burden therefore shifts to Plaintiff to establish a triable issue of material
fact. “[T]he employee must produce
substantial responsive evidence that the employer’s showing was untrue or
pretextual thereby raising at least an inference of discrimination. (Hersant v. Ca. Dept. of Social Services
(1997) 57 Cal.App.4th 997, 1004-1005.)
The employee “must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons.”
(Horn v. Cushman & Wakefield Western, Inc. (1999) 72
Cal.App.4th 798, 807.)
Plaintiff
fails to do so. Plaintiff fails to
dispute any of the material facts to the discrimination claim. Those facts that Plaintiff indicates are
“disputed” only argue collateral or immaterial facts.
·
Plaintiff does not submit any
circumstantial or direct evidence that would call into question the legitimate
business reasons given for each alleged adverse employment action. Plaintiff’s evidence disputing that Defendant
Woodard denied her request the October 2019 training due to personnel needs is
identical to Defendant’s evidence in support of this fact. (Plaintiff’s Response to UMF No. 32.) A review of that evidence does not support
any claim that Woodard’s reasons were pretextual.
·
Plaintiff does not submit any evidence
that Defendant did not support her staffing needs. Plaintiff disputes that Hector Lucero also
submitted a written justification for a new staff member. However, she relies on her testimony merely
stating that Lucero did not write a justification without laying any foundation
as to why she would have such knowledge.
(Plaintiff’s Response to Defendant’s SSUMF No. 32.)
·
Plaintiff also fails to raise a triable
issues as to whether the investigation into her overtime was motivated by a
legitimate business reason. Plaintiff
admits all material facts relevant to this claim or fails to submit admissible
evidence submitting her dispute.
(Plaintiff’s Response to SSUMF Nos. 38-51.) Plaintiff admits that Defendant’s policy is
that all overtime must be preapproved and an overtime slip submitted, but she
claims the practice did not require adherence to these formalities. Plaintiff claims she was the only one
subjected to these requirements, but she relies solely on her deposition
testimony that working overtime without approval “had happened probably many
times before from others,” but no one “said anything but only me. I was the only one that she was targeting for
anything.” (Plaintiff’s Compendium of
Evidence, Ex. 2, 301:19-21.) Plaintiff’s
testimony regarding the alleged disparate treatment is speculative, lacking in
foundation and inadmissible.
·
Plaintiff does not dispute any of the
material facts regarding the legitimate business reasons for denying her MEA
time requests and Woodard’s inquiries regarding the reason for her
request. (Plaintiff’s Response to SSUMF
Nos. 52-55, 57-60.) Plaintiff admits she
did not request the MEA time three days in advance, that she requested it the
day of her absence, that the MEA time policy restricts usage to certain events
and that advance notice could be required.
Plaintiff’s Additional Material Fact (“AMF”) No. 60 claims it was common
practice for MEA time not to be questioned.
(Plaintiff’s AMF No. 60.) The
deposition testimony relied upon by Plaintiff for AMF No. 60 does not support
this fact. Nowhere in the cited
deposition testimony does she so state, nor does the testimony lay any
foundation for such a claim. The Court
also notes that one page of the deposition testimony cited by Plaintiff is not
included in her Compendium of Evidence but was included in Defendant’s
evidence. (Plaintiff’s AMF No. 60.)
·
Plaintiff does not dispute any of the
relevant, material facts to her claim that she was wrongfully denied a
promotion to SSM II in 2020.
(Plaintiff’s Response to SSUMF Nos. 65-69.) Plaintiff’s disputes are collateral or
unsupported by evidence. Plaintiff cites
to her depo testimony to support her claim that Woodard influenced Linard’s and
Zewdu’s ratings, but the cited testimony does not indicate that either was
influenced by Linard and Zewdu nor does it provide circumstantial or direct
evidence of pretext. (Plaintiff’s
Evidence, Ex. 1, 138:13-16.) In
Plaintiff’s AMF No. 70, Plaintiff indicates she requested that Woodard be
removed from the panel. (AMF No.
70.) However, her request that she be
removed does not establish that the legitimate business reasons given for
denying her request for promotion was pretextual. There were two other interviewers who
independently scored Plaintiff within the 86 to 87 range. Plaintiff does not submit any evidence that
these two interviewers were biased against her for any reason.
Based
on the undisputed facts, Defendant’s alleged wrongful acts were motivated by
legitimate business reasons. Plaintiff
fails to submit substantial responsive evidence that these reasons were
pretextual. No triable issues of fact
remain as to Plaintiff’s discrimination claims and summary adjudication is
properly granted as to these claims.
FEHA
and Labor Code 1102.5 Retaliation claims (First and Fifth Causes of Action)
Pursuant
to Labor Code §1102.5(c), “[a]n employer, or any person acting on behalf of the
employer, shall not retaliate against an employee for refusing to participate
in an activity that would result in a violation of state or federal statute, or
a violation of or noncompliance with a local, state, or federal rule or
regulation.”
“It
is an unlawful employment practice…[f]or any employer, labor organization,
employment agency, or person to discharge, expel, or otherwise discriminate
against any person because the person has opposed any practices forbidden under
this part or because the person has filed a complaint, testified, or assisted
in any proceeding under this part.” (Gov.
Code, §12940(h).)
“[I]n
order to establish a prima facie case of retaliation under the FEHA, a
plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment action, and (3) a
causal link existed between the protected activity and the employer's
action.” (Yanowitz v. L’Oreal USA,
Inc. (2005) 36 Cal.4th 1028, 1042.)
The burden-shifting analysis of the McDonell Douglas test applies to a
retaliation case based on circumstantial evidence. (Id.)
“Once an employee establishes a prima facie case, the employer is
required to offer a legitimate, nonretaliatory reason for the adverse
employment action. If the employer produces
a legitimate reason for the adverse employment action, the presumption of
retaliation “drops out of the picture,” and the burden shifts back to the
employee to prove intentional retaliation.”
(Id.)
As
discussed above, when a defendant moves for summary judgment where the McDonnell
Douglas test applies, the defendant has the initial burden of either
attacking an element or elements of the plaintiff’s prima facie case and/or
presenting a legitimate reason for the adverse employment action. (Swanson, supra, 232
Cal.App.4th at 966.)
Plaintiff’s
retaliation claims are based on the exact same wrongful acts as her
discrimination claims. As discussed in
connection with her discrimination claims, Defendant presents legitimate
business reasons for each alleged retaliatory act, supported by admissible
evidence. Plaintiff fails to raise a
triable issue of fact with substantial evidence that the reasons were
pretextual.
Defendant’s
request for adjudication of the retaliation claims is granted.
Workplace
Harassment Claim (Sixth Cause of Action)
“The
law prohibiting harassment is violated when the workplace is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an
abusive working environment…And the issue of whether an employee was subjected
to a hostile environment is ordinarily one of fact.” (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 263–64; Galvin v. Dameron
Hospital Assn. (2019) 37 Cal.App.5th 549, 564 (citing Miller v. Dept. of
Corrections (2005) 36 Cal.4th 446, 462. “Whether an employee was subjected
to a hostile work environment is ordinarily a question of fact.” (Rehmani v. Superior Court (2012) 204
Cal.App.4th 945, 959.) An adverse
employment action may consist of a series of subtle, yet damaging injuries,
rather than one swift blow. (Horsford,
supra, 132 Cal.App.4th at 374 (police lieutenant removed from chain of
command, then removed from law enforcement duties, then transferred to job for
which he has no training and is expected to fail, as “set-up” for termination).)
“In
many cases, a single offensive act by a co-employee is not enough to establish
employer liability for a hostile work environment. But where that act is
committed by a supervisor, the result may be different.” (Dee v. Vintage Petroleum, Inc. (2003)
106 Cal.App.4th 30, 36.) A harassment
claim may be established by demonstrating the discriminatory intimidation,
ridicule and insult is sufficiently severe or pervasive. (Nazir, supra, 178 Cal.App.4th at
263-264.) Thus, there is no “magic”
number of harassing incidents that gives rise to liability or must be met in
order to state a harassment claim. (Dee, supra, 106 Cal.App.4th at 36
(noting that in 7th Cir., single use of unambiguous racial epithet by
supervisor in presence of subordinates can qualify as hostile work
environment).)
As
explained in Reno v. Baird (1998) 18 Cal.4th 640, 647, harassment claims
are based “on actions outside the scope of job duties which are not of a type
necessary to business and personnel management.” (Reno, supra, 18 Cal.4th at 647.) Thus, a harassment claim may not be based on
“commonly necessary personnel management actions, such as hiring and firing,
job or project assignments, office or work station assignments, promotion or
demotion, performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and who will not
attend meetings, deciding who will be laid off…” (Id. at 646–647.) Thus, work-related criticisms and personnel management
decisions are not actionable as a matter of law. (Janken v. GM Hughes Electronics (1996)
46 Cal.App.4th 55, 62-63.) “Actionable harassment consists of more than
annoying or merely offensive comments in the workplace…” (Cornell v. Berkeley Tennis Club
(2017) 181 Cal.App.5th 908, 940.)
Plaintiff’s
workplace harassment claim is based on actions that are commonly necessary
personnel management decisions. (Reno,
supra, 18 Cal.4th at 645-646.)
As discussed in connection with Plaintiff’s discrimination claims, these
actions were taken for legitimate business, personnel management reasons. Woodard’s two alleged comments that Plaintiff
was an entitled princess and that she would not last with a different employer
are also not sufficiently severe or pervasive to support a harassment
claim. (Hughes v. Pair (2008) 46
Cal.4th 1035, 1048.)
Plaintiff fails to dispute any of the relevant material facts or
establish that these acts were harassing, as opposed to common place personnel
decisions.
Defendant’s
request for adjudication of the sixth cause of action for workplace harassment
claim is granted.
42
USC 1983 Claim (Seventh Cause of Action)
To
succeed on a 42 U.S.C. §1983 claim, a plaintiff must prove that her federal
constitutional rights were violated and that the violation was caused by a
person acting under color of law. (West
v. Atkins (1988) 487 U.S. 42, 48.) A
municipality can only be held liable for those acts that it officially
sanctioned or ordered. (Monell v.
Dept. of Soc. Servs. Of City of N.Y. (1978) 436 U.S. 658, 691.) Personal injury claims, including those
brought under 42 U.S.C. §1983, are subject to the two-year statute of
limitations. (Shalabi v. City of
Fontana (2019) 35 Cal.App.5th 639, 642.)
The
seventh cause of action for violation of 42 U.S.C. §1983 is based on the exact
same facts as the discrimination, retaliation and workplace harassment
claims. Applying the two-year
limitations period, any acts that took place before December 18, 2018 would be
excluded. This would encompass the exact same post-January 1, 2019 acts upon
which the state claims are based.
Because the undisputed facts establish that the acts alleged against
Defendant were not discriminatory, retaliatory or harassing, the seventh cause
of action for violation of civil rights under 42 U.S.C. §1983 likewise
fails. Plaintiff fails to raise a
triable issue of fact, as her opposition is silent as to the seventh cause of
action.
Defendant’s
request for adjudication of the seventh cause of action is granted.
Failure
to Prevent Harassment, Discrimination and Retaliation (Eighth Cause of Action)
The
failure to prevent claims depends on the underlying claims for harassment,
discrimination and retaliation. Because
the undisputed facts establish that Defendant did not harass, discriminate or
retaliate against Plaintiff, the derivative claim for failure to prevent also
fails.
Defendant’s
request for adjudication of the failure to prevent claim is also granted.
IIED
claim (Ninth Cause of Action)
The
elements of a cause of action for intentional infliction of emotional distress
are (1) outrageous conduct by the defendant, (2) intention to cause or reckless
disregard of the probability of causing emotional distress, (3) severe
emotional suffering, and (4) actual and proximate causation of the emotional
distress. “Conduct is extreme and
outrageous when it exceeds all bounds of decency usually tolerated by a decent
society, and is of a nature which is especially calculated to cause, and does
cause, mental distress. Liability does
not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” (Fisher
v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)
The
California Supreme Court has held that a defendant’s actions could be
characterized as "outrageous" for purposes of tort liability for
intentional infliction of emotional distress, if he “(1) abuses a relation or
position which gives him power to damage the plaintiff's interest; (2) knows
the plaintiff is susceptible to injuries through mental distress; or (3) acts
intentionally or unreasonably with the recognition that the acts are likely to
result in illness through mental distress.”
(Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other
grounds].)
Whether
conduct is sufficiently outrageous to state a c/a for IIED is ordinarily a
question of fact. (Alcorn v. Anbro
Engineering, Inc. (1970) 2 Cal.3d 493, 499 (African-American defendant
whose supervisor used racial epithets when firing him stated a c/a for
IIED).) However, where no reasonable
mind could find the conduct alleged to be outrageous that it becomes a question
of law. (Id.; see Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 534 (affirming order sustaining demurrer to IIED
cause of action without leave to amend based on failure to allege outrageous
conduct).)
Plaintiff’s
claim for IIED is based on the alleged acts of harassment, retaliation and
discrimination, which she alleges were outrageous. Defendant establishes that no harassment,
retaliation or discrimination took place based on the undisputed evidence. Based on the undisputed evidence, Defendant
did not engage in the outrageous conduct required for IIED.
Defendant’s
request for adjudication of the ninth cause of action for IIED is granted.
Violation
of Equal Pay Act (Tenth Cause of Action)
“An
employer shall not pay any of its employees at wage rates less than the rates
paid to employees of another race or ethnicity for substantially similar work,
when viewed as a composite of skill, effort, and responsibility, and performed
under similar working conditions, except where the employer demonstrates:
(1) The wage differential is based upon one or more of
the following factors:
(A) A
seniority system.
(B) A
merit system.
(C) A
system that measures earnings by quantity or quality of production.
(D) A
bona fide factor other than race or ethnicity, such as education, training, or
experience. This factor shall apply only if the employer demonstrates that the
factor is not based on or derived from a race- or ethnicity-based differential
in compensation, is job related with respect to the position in question, and
is consistent with a business necessity. For purposes of this subparagraph,
“business necessity” means an overriding legitimate business purpose such that
the factor relied upon effectively fulfills the business purpose it is supposed
to serve. This defense shall not apply if the employee demonstrates that an
alternative business practice exists that would serve the same business purpose
without producing the wage differential.
(2) Each factor relied upon is applied reasonably.
(3) The one or more factors relied upon account for
the entire wage differential.
(4) Prior salary shall not justify any disparity in
compensation. Nothing in this section shall be interpreted to mean that an
employer may not make a compensation decision based on a current employee's
existing salary, so long as any wage differential resulting from that
compensation decision is justified by one or more of the factors listed in this
subdivision.” (Labor Code §1197.5(b).)
Defendant
establishes that Plaintiff cannot establish a violation of the Equal Pay Act
based on race, because the two comparison classes alleged by Plaintiff are the
SSM I position and the SSM II position.
The differential in pay between the two positions is based on a “bona
fide factor other than race or ethnicity, such as education, training, or
experience.” It is undisputed based on
Plaintiff’s complaint that the SSM II position is a promotion from an SSM I
position. Based on Plaintiff’s own
allegations and claims of backpay, the SSM II position would be higher paying
than the SSM I position because it is a promotion.
In
addition, as discussed in Hall v. County of Los Angeles (2007) 148
Cal.App.4th 318, 324, Plaintiff was required to show not only that
she was paid lower than a comparator of a different race for equal work but
also that “she has selected the proper comparator.” (Hall, supra, 148 Cal.App.4th
at 324.) Thus, in Hall, the
plaintiff, who complained of an EPA violation based on her sex, could not “make
a comparison of one classification composed of males and females with another
classification of employees also composed of males and females.” (Id. at 324-325.) “The EPA does not require perfect diversity
between the comparison classes, but at a certain point, when the challenged
policy effects [sic] both male and female employees, there can be no EPA
violation.” (Id.)
Here,
Plaintiff alleges an Equal Pay Act violation based on her wage rate as an SSM I
compared to the wage rate of an SSM II of a different racial background. (SAC, ¶195.)
Plaintiff claims she performed the same responsibilities as an SSM II
for approximately four years while being compensated as an SSM I. (Id.)
As Defendant points out, performing the same job responsibilities as an
SSM II while an SSM I does not qualify as worked “performed under similar
working conditions.” Plaintiff was an
entirely different classification of employee.
In order to establish a violation of the EPA based on race as opposed to
job classification, Plaintiff would have to establish, for example, that SSM II
employees of the same race as Plaintiff were paid a different rate from SSM II
employees of a different race. Plaintiff
could have also alleged that SSM I employees, who like her were performing the
duties of an SSM II, were being paid more or at the rate of an SSM II. The SSM I and SSM II job classifications are
not proper comparison classes.
In
response, Plaintiff argues she partially prevailed at arbitration on her claim
that she was working out of class from 2017 to 2021. Plaintiff was awarded 15 months of
backpay. Plaintiff argues this is
evidence that she was paid unequal wages for equal work. Plaintiff’s evidence establishes that she
worked out of class and was paid the lower SSM I wage rate while doing so. However, it does not establish that this was
due to her race.
Defendant’s
request for adjudication of the tenth cause of action is granted.
Summary
judgment proper
Defendant
establishes entitlement to summary adjudication on all causes of action. For that reason, no triable issues of fact
remain as to the entire action and summary judgment is properly granted.
Conclusion
Defendant
LADWP’s Motion for Summary Judgment is GRANTED.
(2) Defendant Henning Motion for Summary
Judgment, or Adjudication
Evidentiary
Objections and Request for Judicial Notice
Plaintiff’s
Objections—OVERRULE as to 1-2 and 4, SUSTAIN as to 3
Defendant’s
Objections—OVERRULE all objections (1-10)
Plaintiff’s
RJN—DENIED. Plaintiff requests judicial
notice of an arbitrator award that is irrelevant to the issues raised in the
MSJ.
Parties’
Positions
Defendant
Henning is named as a defendant in the sixth cause of action for hostile work environment/harassment,
seventh cause of action for civil rights violations under 18 U.S.C. §1983, and the
ninth cause of action for IIED. Defendant
Henning moves for summary judgment, or in the alternative, summary adjudication
of the sixth, seventh and ninth causes of action alleged against her.
Defendant
Henning argues Plaintiff’s claims against her fail, because all of the acts
alleged against her qualify as commonly necessary personnel management
activities. Defendant Henning also
argues that the acts alleged against her were not based on Plaintiff’s
disabilities, race, gender or age. Henning
argues there is no evidence that she ever made negative comments about these
characteristics or that she engaged in any negative conduct towards persons
with these characteristics. Henning
argues the alleged conduct was also not severe or pervasive. Henning argues there were only four personnel
actions attributable to her over two years.
Henning argues Plaintiff’s derivative claims for violation of civil
rights under 42 USC §1983 and for IIED fail, because there is no evidence that
Henning ever harassed or discriminated against Plaintiff. Henning argues that Plaintiff’s claim for
punitive damages fails, because there is no evidence that she engaged in
conduct with malice, oppression or fraud towards Plaintiff.
In
response, Plaintiff argues Henning’s acts were discriminatory and were so
pervasive and severe that it changed the conditions of Plaintiff’s employment. Plaintiff argues Henning knew that Plaintiff
filed a complaint for being denied reasonable accommodations for her
disability, that Plaintiff was the oldest manager under Henning and that
Plaintiff identified as an African American woman. Plaintiff argues Henning harassed her by
singling her out, bullying her, allowing another supervisor to bully her and
failing to act when Plaintiff asked that Henning protect her from that other
supervisor. Plaintiff argues Henning
should have investigated that other supervisor.
Plaintiff argues Henning’s conduct was not motivated by any legitimate
business decision. Plaintiff argues
Henning’s conduct was both subjectively and objectively offensive. Based on these same facts and evidence,
Plaintiff argues the motion for summary judgment of the IIED and punitive
damages claims must be denied.
In
reply, Defendant Henning argues Plaintiff has produced no evidence of any
discriminatory harassment. Defendant
Henning argues she is therefore entitled to summary judgment of Plaintiff’s sixth
cause of action for harassment and the derivative claims for IIED and violation
of 42 U.S.C. §1983, as well as the punitive damages claim.
Sixth
Cause of Action for Workplace Harassment
Defendant
Henning satisfies her burden as moving party by establishing that (1) the acts
of alleged harassment were commonplace personnel decisions and (2) acts were
not acts of harassment based on discriminatory or retaliatory motive. In discovery, Plaintiff identified Henning’s
acts of harassment as (1) assigning a new employee, Carlos Aguilar, who was
hired by Plaintiff to a different Supply Services Manager (UMF Nos. 49-51.);
(2) approving investigation into Plaintiff’s alleged unreported overtime hours
(UMF Nos. 58 and 60); (3) doing nothing about Woodward’s harassing inquiry into
Plaintiff’s overtime hours (UMF Nos. 60-62); (4) denying Plaintiff’s request to
remove Woodward from the interview panel for the open SSM II position that
Plaintiff applied for in September 2020 (UMF No. 67); and (5) Plaintiff’s
failure to obtain the SSM II position in October 2020 (UMF Nos. 72 and 73).
Henning
establishes that these actions were personnel decisions motivated by legitimate
business reasons. Henning testifies that
she assigned Aguilar to the workgroup of another Supply Services Manager, Thuy
Mauge, to ensure that each Supply Services Manager’s personnel needs were
adequately met. (Henning Dec., ¶5.)
Henning
testified during deposition that she approved Leticia Woodward’s request to investigate Plaintiff’s
unauthorized overtime. (Henning Notice
of Lodgment of Exhibits, Ex. 4, 77:6-13 and 78:6-17.) Woodward wanted to verify that Plaintiff worked
the claimed overtime. (Henning Notice of
Lodgment of Exhibits, Ex. 4, 77:6-13 and 78:6-17.) The investigation ultimately revealed 123
hours of overtime that was not preapproved based on Plaintiff’s gate card
use. (Id., Ex. 2, 348:11-25-349:1-21.)
Henning
establishes that she responded to Plaintiff’s complaints of harassment by
Woodward in January 2020. Henning instructed
Edna Bernal, a Human Resources staff member, to investigate Plaintiff’s
complaints of harassment by Woodward. (Henning
Notice of Lodgment of Exhibits, Ex. 3, 566:15-567:8, 568:14-569:1; Ex. 4,
Henning Depo., 36:7-37:5; Henning Dec., ¶6.)
In addition to initiating an investigation into Plaintiff’s January 2020
complaint of harassment by Woodard, Henning informed Woodard of the complaint
and instructed her to treat all staff in a professional manner. (Henning Notice of Lodgment, Ex. 4,
41:15-20.) The investigation found
Plaintiff’s allegations of Woodard’s harassment unsubstantiated. (Henning Notice of Lodgment, Ex. 3, 569:2-4;
Ex. 4, 36:17-37:3, 39:7-40:20; Henning Dec., ¶6.)
In
response to Plaintiff’s request that Woodard be removed from the interview
panel for the Supply Services Manager II position, Henning consulted LADWP
Labor Relations. (Henning Notice of
Lodgment, Ex. 4, 52:16-19.) Labor
Relations determined Woodard should remain on the panel due to her status as
supervisor of the vacant position. (Id.) Defendant LADWP denied Plaintiff’s
application for the Supply Services Manager II position because she scored in
fifth place among the applicants.
(Notice of Lodgment, Ex. 8; Henning Dec., ¶8.)
Henning
did not know of Plaintiff’s back condition or anemia. (Henning Dec., ¶33.) Plaintiff did not recall Henning ever making
negative comments or engaging in negative conduct towards her or other based on
Plaintiff’s protected characteristics. (Notice
of Lodgment, Ex. 3, pp. 564, 573, 576.)
Henning’s
evidence establishes that the harassment alleged against her were commonplace
personnel decisions under Reno.
Henning’s evidence also establishes that he alleged acts of harassment
were not motivated by discriminatory animus but by legitimate business
reasons. Henning also consulted Labor
Relations regarding Plaintiff’s request to remove Woodard from the interview
panel, outsourcing the decision.
Henning
satisfies her burden as moving party.
The burden therefore shifts to Plaintiff to raise a triable issues of
material fact with admissible evidence.
Plaintiff fails to do so.
Plaintiff does not dispute the material facts upon which Henning relies
to satisfy her burden. (Plaintiff’s
Response to Separate Statement UMF Nos. 1-20, 22, 24-46.) Plaintiff fails to present any evidence to
challenge Henning’s evidence that the alleged harassment was motivated purely
by legitimate business reasons. For
example, Plaintiff claims she interviewed Aguilar using questions tailored to
her group. (Response to Defendant’s UMF
No. 9; Plaintiff’s Additional Material Fact No. 17.) Plaintiff’s Compendium of Evidence,
565:8-22.) Even if this fact is accepted
as true, it is irrelevant, because it is not probative of the reasons for
assigning him to the other group. Use of
interview questions tailored to Plaintiff’s work group does on establish that Aguilar
was assigned to another group for discriminatory reasons, nor does it challenge
Henning’s evidence that the units personnel needs justified assigning him to
the other team.
Likewise,
Plaintiff’s deposition testimony that no other managers were treated the way
she was lacks foundation. According to
Plaintiff, she was the only one being “badgered” for working without
preapproval” and “that had happened probably many times before from
others…” (Plaintiff’s Compendium of
Evidence, Ex. 2, 301:19-22.) Plaintiff
also admits that the investigation was triggered by her overtime work and her “refusal
to submit slips.” (Plaintiff’s
Additional MF No. 34.) There is
therefore not dispute that she was not submitting overtime request slips or
that the overtime was unauthorized.
Plaintiff submits no evidence comparing the response to her failure to
submit overtime request slips and how other similar instances of such conduct
were treated.
Although
Plaintiff objects to Henning’s testimony that she consulted Labor Relations
about Plaintiff’s request to remove Woodard from the interview panel, Plaintiff
relies on Henning’s exact same testimony and adopts it as one of her undisputed
material facts. (Plaintiff’s UMF Nos. 29
and 30.) Plaintiff also does not dispute
that she ranked fifth among the applicants.
(Plaintiff’s Response to Defendant’s UMF No. 30.)
Plaintiff
fails to raise a triable issue of fact as to the sixth cause of action for
harassment. No triable issues of fact
therefore remain as to the sixth cause of action.
Seventh
cause of action for civil rights violation under 42 USC §1983, Ninth cause of
action for IIED and punitive damages claim
The
seventh cause of action for violation of 42 USC §1983 and the ninth cause of
action for IIED are based on the same alleged harassment as the sixth cause of
action for harassment. For the same
reasons stated in connection with the sixth cause of action, the undisputed
facts establish there was no violation of Plaintiff’s civil rights under 42 USC
§1983, as no workplace harassment took place, nor did Henning engage in
outrageous conduct as alleged in the IIED claim. For these same reasons, the undisputed facts
establish that Henning did not act with fraud, malice or oppression. No triable issues of fact therefore remain as
to the seventh and ninth causes of action and the claim for punitive damages.
Conclusion
As
such, Defendant’s Motion for Summary Judgment is GRANTED. No triable issues of fact remain as to any of
the causes of action or claims alleged against Henning.
(3) Defendant Woodward Motion for Summary
Judgment, or Adjudication
Evidentiary
Objections and Request for Judicial Notice
Plaintiff’s
Objections—SUSTAIN Objection Nos. 1, 2 and OVERRULE as to all remaining
objections.
Defendant’s
Objections—SUSTAIN as to Objection Nos. 14-23 and OVERRULE as to 1-13 and 24
Plaintiff’s
RJN—DENY
Defendant’s
RJN—GRANT
Parties’
Positions
Defendant
Woodard’s Motion for Summary Judgment mirrors Defendant Henning’s Motion for
Summary Judgment. Woodard moves for
summary judgment of the causes of action and claims alleged against her,
including (1) the sixth cause of action for harassment; (2) the seventh cause
of action for 42 U.S.C. §1983; (3) the ninth cause of action for IIED; and (4)
punitive damages.
Defendant
Woodard argues the wrongful acts alleged against her are: (1) Woodard’s denial of Plaintiff’s request
for training in October 2019; (2) Woodard’s denial of Plaintiff’s MEA leave on
February 10, 2020; (3) Woodard’s investigation into Plaintiff’s overtime, which
included investigation into her gate card use; (4) Woodard storming off in
January or February 2020; (5) Woodard’s participation in the October 2020
interview panel for SMS II positions, which Plaintiff applied for; (6) Woodard’s
denial of support staff; (7) Woodard’s
disbelief that Plaintiff was disabled; and (8) Woodard’s denial of Plaintiff’s
annual membership in ISM training.
Defendant
Woodard argues she was motivated by legitimate business reasons, not Plaintiff’s
race, age, disability and/or sex.
Defendant denies that she disbelieves that Plaintiff is disabled or that
she denied Plaintiff’s annual membership in ISM training. Defendant argues the stray alleged comments
or actions of hostility were not severe or pervasive, nor were they based on
Plaintiff’s protected characteristics. Defendant
argues Plaintiff’s harassment claims are also undermined by Plaintiff’s
decision to work under Defendant Woodard despite an opportunity to leave her team.
Defendant
argues the seventh cause of action for violation of 42 USC §1983 is barred as a
matter of law. Defendant argues verbal
harassment alone is insufficient to establish a section 1983 violation. Defendant argues age discrimination also
cannot be the basis of a section 1983 claim arising from violation of the 14th
Amendment. Defendant argues any claim
based on age discrimination must be based on the ADEA. Defendant argues the section 1983 claim fails,
because she would have made the same decisions regardless of the impermissible
criterion.
Defendant
argues Plaintiff’s IIED claim is also barred for failure to comply with the
government tort claims requirement.
Defendant argues Plaintiff’s government claim is the complaint filed in
her other lawsuit, which did not allege a claim for IIED. Defendant argues the conduct alleged against
her does not amount to extreme and outrageous conduct. Defendant argues the IIED claim is also
barred by worker’s compensation.
Defendant
argues the punitive damages claim fails.
Defendant argues the comments, decision and actions attributed to her were
not motivated by discrimination, harassment or retaliation and cannot support a
claim for punitive damages.
In
opposition, Plaintiff argues a workplace harassment claim is not amenable to
resolution on summary judgment.
Plaintiff argues Woodard engaged in harassing conduct, including
refusing to grant her permission to attend trainings, having her work SSM II
duties without the title or pay and launching a baseless investigation into
Plaintiff’s overtime. Plaintiff argues
the legitimate business reasons for these actions were objectively poor
business decisions. Plaintiff argues
Woodard also called Plaintiff an entitled princess and claimed she would “be
the one to cause us problems.” Plaintiff
argues Woodard’s conduct was severe and pervasive, particularly since a single
incident could qualify as sufficiently severe.
Plaintiff argues the harassment was both subjectively and objectively
offensive.
Plaintiff
argues these same facts establish her IIED claim. Plaintiff argues worker’s compensation is not
the exclusive remedy for her IIED claim, because Woodard’s conduct violated
fundamental public policy. Plaintiff
argues the alleged outrageous conduct was outside the normal part of the
employment relationship.
Plaintiff
also argues she exhausted her administrative remedies for IIED. Plaintiff argues she filed a timely claim on
October 31, 2024 and it was received by LADWP’s claims section on December 21,
2024.
Plaintiff
argues her punitive damages claim survives.
Plaintiff argues Woodard treated Plaintiff differently from her
non-African American, younger able bodied colleagues. Plaintiff argues she was forced to work out
of class and subject to a baseless investigation.
In
reply, Defendant argues Plaintiff confirms that the alleged harassment was a
series of personnel decisions. Defendant
argues that summary judgment can be granted where the undisputed facts
demonstrate there was no harassing conduct as an issue of law. Defendant argues there is no evidence
disputing that the alleged “harassing” actions were clearly managerial tasks
within the legitimate scope of her workplace duties. Defendant argues there is no evidence that
her actions were due to Plaintiff’s race, gender, age and/or disability. Defendant argues Plaintiff does not allege or
provide any evidence that Defendant ever used any racial epithets or made any
specific comments about Plaintiff’s protected characteristics. Defendant argues the grievances filed by
Plaintiff alleging the same conduct is not evidence disputing Defendant’s stated
legitimate business reasons for her decisions.
Defendant
argues Plaintiff’s IIED claim is barred for failure to file a government tort
claim. Defendant argues the tort claim
dated October 31, 2021 and presented to the City on November 5, 2021 does not
name her, nor does it indicate that Defendant acted with the intent to inflect
emotional distress.
Defendant
reiterates there is no basis for punitive damages. Defendant argues there is a lack of any
evidence of harassing conduct. Defendant
argues the outcome of the arbitration awarding her backpay for working out of
class does not establish harassment or the requirements for punitive
damages.
Defendant
argues Plaintiff fails to respond at all to Defendant’s motion for summary
judgment of the ninth cause of action for civil rights violations under 42 USC
1983. Defendant argues no triable issues
of fact therefore remain.
Sixth
Cause of Action for Workplace Harassment
The
exact same arguments and evidence were raised by Woodard’s co-defendants and
Plaintiff in connection with LADWP and Henning’s Motions for Summary
Judgment. For the same reasons discussed
in connection with those summary judgment motions, Defendant Woodard is entitled
to summary judgment as well.
Woodard
satisfies her burden as moving party.
Woodard provides legitimate business reasons for each of the supervisory
acts alleged against her, establishing that they were common, necessary
personnel decisions, “such as hiring and firing, job project assignments,
office or work station assignments, promotion or demotion, performance
evaluations, the provision of support, the assignment or nonassignment of
supervisory functions, deciding who will and who will not attend meetings,
deciding who will be laid off, and the like…”
(Janken v GM Hughes Electronics (1996) 46 Cal.App.5th,
64-65.) Such decisions cannot be the
basis of a harassment claim. (Reno,
supra, 18 Cal.4th at 646.)
In Roby
v. McKesson Corp. (2009) 47 Cal.4th 686, 707-708, the Supreme
Court refined the holding in Reno, explaining that discrimination and
harassment are “separate wrongs,” but “they are sometimes closely interrelated,
and even overlapping, particularly with regard to proof.” (Roby, supra, 47 Cal.4th
at 708.) Thus, both discrimination and
harassment could be based on the management decisions of a male supervisor who
consistently promotes and grants favorable job assignments to those female
employees with whom he was sexually involved.
(Id. (citing Miller v. Dept. of Corrections (2005) 36
Cal.4th 446, 461).) Such
“widespread sexual favoritism could convey a demeaning message to female
employees that they are viewed by management as sexual playthings or that the
way required to get ahead in the workplace is to engage in sexual conduct with
their supervisors or management.” (Roby,
supra, 47 Cal.4th at 707-708.)
“[H]arassment
is generally concerned with the message conveyed to an employee, and therefore
with the social environment of the workplace, whereas discrimination is
concerned with explicit changes in the terms or conditions of employment. Miller,
however, makes clear that in some cases the hostile message that constitutes
the harassment is conveyed through official employment actions, and therefore
evidence that would otherwise be associated with a discrimination claim can
form the basis of a harassment claim.” (Id.
at 708.)
Woodard
denied Plaintiff’s request to attend a training in October 2019 because she
required her support in the office.
(Defendant’s UMF No. 7.) Woodard
denied Plaintiff’s February 2020 MEA time request, and Plaintiff could not
testify as to any circumstances regarding the other members of her team to
contrast with her MEA time request.
(Defendant’s UMF No. 15.) Woodard
denied some of the MEA leaves because Plaintiff’s request was outside of the
MOU and based on instructions from the Labor Relations Board and legal
counsel. (Defendant’s UMF No. 16.) Woodard testifies that she approved
Plaintiff’s annual membership to the Institute of Supply Management. (Defendant’s UMF No. 18.) Woodard instituted an investigation into
Plaintiff’s overtime, because Woodard discovered her working after hours
without having obtained approval and Plaintiff admitted she had been working
overtime without approval over the past year.
(UMF NO. 28.) Woodard testifies
that she did not encounter any other employee working overtime without
submitting an overtime slip. (UMF No.
29.) Woodard only participated on the
October 2020 interview panel after Labor Relations denied Plaintiff’s request
that she recuse herself. (UMF NO.
35.) Woodard denies that she had any
part in the decision to assign a newly hired Senior Utility Buyer to Hector
Lucero’s team. (UMF Nos. 38-40.) Defendant also testifies that Lucero wrote a
justification for a senior utility buyer.
(UMF No. 39.) Defendant denies
that she believes Plaintiff is faking her disability. (UMF No. 42.)
In
response, Plaintiff fails to submit any evidence refuting the reasons given for
taking the actions identified above. Plaintiff
fails to establish that the decisions are not commonplace personnel decisions,
nor does she provide any admissible evidence of bias, discriminatory
retaliatory motive. As with Henning’s
and LADWP’s Motions for Summary Judgment, Plaintiff “disputes” several material
facts with claims of disparate treatment but fails to cite admissible evidence
in support. (Plaintiff’s Response to
Defendants’ SSUMF Nos. 13.) Plaintiff
claims the denial of training in October 2019 was motivated by bias or
discrimination based on protected characteristics but the evidence cited merely
establishes that Plaintiff responded to the invitation email. (Plaintiff’s Response to Defendant’s SSUMF
No. 7.) Plaintiff’s objected to assigned
of the senior utility buyer because Hector Lucero did not write a justification
for the position, but she failed to testify to any foundational facts for this
statement. (Plaintiff’s Response to UMF
Nos. 38-39.) Plaintiff fails to cite any
evidence disputing Woodard’s evidence that, as his supervisor, Woodard knew
that he had written a justification for a senior utility buyer. (Id. at 39.) Plaintiff fails to submit any evidence to
dispute Defendant’s evidence that she had never encountered another employee
working overtime without submitting an overtime slip or that she had been
working overtime without preapproval. (Id.
at 29.) Plaintiff fails to submit any
evidence disputing Defendant’s approval of her ISM membership. (Id. at 45.)
The undisputed
evidence fails to establish that Woodard’s management decisions were the method
by which a hostile message was being broadcast.
Each challenged decision is supported by an undisputed business reason. For that reason, together they do not
establish a widespread pattern of bias, as that discussed in Roby, which
broadcast the message that management personnel decisions were based on Plaintiff’s
race, age or sex. Certainly, the
evidence does not establish the pattern established in Miller, i.e. the
promotions were reserved for female employees who had six with male
supervisors.
The
remaining allegations of harassing conduct based on acts that cannot be
considered personnel decisions were not severe or pervasive. Plaintiff claims Woodard called her an
entitled princess, stated she would never have made it at JP, stated she
would’ve fired Plaintiff and that Plaintiff thought she knew everything. (UMF Nos. 25 and 26; Plaintiff’s Response to
UMF No. 26.) These four isolated comments
were objectively not severe or pervasive, and Plaintiff fails to submit
evidence that would support a finding that they were, e.g. frequency or circumstances
in which they were allegedly said. Plaintiff’s
decision to remain under Woodard also undermines any claim that Woodard had
created a hostile environment. (Defendant’s
UMF No. 41.)
Plaintiff
also claims that Defendant interacted with her in a hostile manner, but
Plaintiff provides a single email as evidence of the hostility. The email states Defendant incessantly
questioned Plaintiff regarding the reason for her MEA time off request in
February 2020. However, this is
discussed at length in connection with the LADWP motion. The reason for the MEA time was relevant to
Woodard’s determination of Plaintiff’s request for MEA time. In addition, this single time of persistent
questioning would not be objectively severe or pervasive based on the
undisputed evidence.
Moreover, the alleged harassing conduct
outside of the personnel management decisions (statements referring to
plaintiff as an “entitled princess,” criticizing Plaintiff’s competence and
“hostile” manner in connection with MEA time) does not reference Plaintiff’s
protected characteristics nor is there any evidence otherwise indicating Woodard’s
animus towards Plaintiff based on those characteristics. FEHA prohibits harassment because of a
protected characteristic. (Gov. C.
§12940(j)(1).)
Summary
judgment of a FEHA harassment claim is “rarely” appropriate. (Martin v. Board of Trustees of Cal. State
Univ. (2023) 97 Cal.App.5th 149, 173.) However, “rarely is not the same as never,
particularly in situations where there is no evidence of conduct that would
constitute actionable harassment.” (Id.) Whether conduct was sufficiently severe and
pervasive can be decided as an issue of law on summary judgment where the facts
and evidence are undisputed. (Lyle v.
Warner Brother Television Productions (2006) 38 Cal.4th 264, 286-287
(defendants satisfied burden as moving party by establishing that conduct was
not severe and pervasive harassment because of sex; plaintiff failed to raise a
triable issue of material fact based undisputed evidence that sexual antics and
discussions were not aimed at her or any other female employee but part of
writing process for the show Friends); Hughes v. Par (2009) 46
Cal.4th 1035, 1048-1049 (summary judgment of Civil Code §51.9
harassment claim subject to FEHA harassment standards was properly granted
where undisputed facts demonstrated alleged harassment was not severe or
pervasive.)
Based
on the undisputed facts, the acts alleged against Woodard are not actionable
harassment of Plaintiff due to her protected characteristics. No triable issues of fact remain as to the
sixth cause of action for harassment.
Defendant is entitled to summary adjudication of this cause of action.
Seventh
Cause of Action for Civil Rights Violation under 42 USC §1983
For
the same reasons stated in connection with the LADWP and Henning Motions for
Summary Judgment, Woodard’s motion for summary adjudication of the seventh
cause of action is granted. Plaintiff’s
opposition is likewise silent on this cause of action.
Ninth
Cause of action for IIED
For
the same reasons stated in connection with the LADWP and Henning Motions for
Summary Judgment, Woodard’s motion for summary adjudication of the IIED cause
of action is granted. The undisputed
facts establish that the acts alleged against Woodard would not qualify as
outrageous conduct as an issue of law.
Conclusion
Defendant
Woodard’s Motion for Summary Judgment is GRANTED. No triable issues of fact remain as to the
sixth, seventh and ninth causes of action, the only causes of action alleged
against Woodard, based on the undisputed evidence.