Judge: Armen Tamzarian, Case: 21STCV33995, Date: 2023-01-30 Tentative Ruling
Case Number: 21STCV33995 Hearing Date: January 30, 2023 Dept: 52
Defendant Bluebridge Professional Services,
Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication
Defendant
Bluebridge Professional Services, Inc. moves for summary judgment or, in the alternative,
summary adjudication on each cause of action and on plaintiff Akira Mejia’s
claim for punitive damages.
Evidentiary
Objections
Defendant makes 42 objections to
plaintiff’s declaration. Objection Nos.
2, 3, 7, 9-11, 20, 29, 32, and 34 are sustained. Objection Nos. 1, 4-6, 8, 12-19, 21-28, 30,
31, 33, and 35-42 are overruled.
Summary
Judgment or Adjudication
Courts
grant summary judgment or adjudication where no triable issues of fact exist
and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th
733, 741.) A defendant moving for summary judgment must show “that one or more
elements of the cause of action… cannot be established, or that there is a
complete defense to the cause of action.”
(Code Civ. Proc., § 437c, subd. (p)(2).)
Once the defendant does so, the burden shifts to the plaintiff to show a
triable issue of at least one material fact.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
849.) Courts “liberally construe
the evidence in support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.” (Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
Plaintiff’s
complaint alleges five causes of action: (1) violation of Labor Code § 1102.5,
(2) violation of Labor Code § 6310, (3) retaliation in violation of the Fair
Employment and Housing Act (FEHA), (4) failure to prevent violation of FEHA,
and (5) wrongful termination in violation of public policy. The court will begin by addressing the
second, third, and fifth causes of action, which are subject to the same
standard on summary judgment.
2nd,
3rd, and 5th Causes of Action: Retaliation and Wrongful Termination
For
employment discrimination and retaliation claims (other than those under Labor
Code § 1102.5), “California follows the burden shifting analysis of McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792 … to determine whether
there are triable issues of fact for resolution by a jury.” (Loggins v. Kaiser Permanente Internat. (2007)
151 Cal.App.4th 1102, 1109 (Loggins).)
First, “[i]f the employee successfully establishes [the] elements and
thereby shows a prima facie case exists, the burden shifts to the employer to
provide evidence that there was a legitimate, nonretaliatory reason for the
adverse employment action. If the employer produces evidence showing 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 provide substantial responsive evidence that the employer’s
proffered reasons were untrue or pretextual.”
(Ibid., citations and internal quotes omitted.)
A.
Plaintiff’s Initial Burden of Showing a Prima Facie Case
Plaintiff
presents sufficient evidence to meet her initial burden for the second, third,
and fifth causes of action. Plaintiff’s
second, third, and fifth causes of action allege retaliatory termination. They share the same basic elements. “ ‘To establish a prima facie case of
retaliation, a plaintiff must show that she engaged in a protected activity,
that she was thereafter subjected to adverse employment action by her
employer, and there was a causal link between the two.’ ” (Muller v. Automobile Club of So.
California (1998) 61 Cal.App.4th 431, 451 (Muller), disapproved
on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29
C4th 1019, 1031, fn. 6.) Retaliation
must be a substantial motivating reason for termination. (Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 232 [FEHA]; Diego v. Pilgrim United Church of Christ (2014)
231 Cal.App.4th 913, 920 [Lab. Code, § 6310 and common law wrongful
termination].)
The
second and third causes of action require different protected activity. Labor Code section 6310 prohibits
discrimination “because of the employee’s complaints about unsafe work
conditions.” (Touchstone Television
Productions v. Superior Court (2012) 208 Cal.App.4th 676, 681.) FEHA prohibits discrimination “against any
person because the person has opposed any practices forbidden under” FEHA (Gov.
Code, § 12940, subd. (h)) and prohibits retaliation “against a person for
requesting accommodation” for a disability (Gov. Code, § 12940, subd. (m)(2).)
For
the fifth cause of action for common law wrongful termination, the plaintiff
must be discharged “in violation of public policy,” such as statutes including
FEHA and Labor Code section 6310. (Muller,
supra, 61 Cal.App.4th at p. 450.)
For
the second cause of action regarding complaints of unsafe work conditions, plaintiff
testified that between October and November 2020, she complained about lack of
sanitation in response to the COVID-19 pandemic. (Ex. C, Mejia Depo., 60:18-25.) She complained about “masking and not talking
face-to-face to each other” and “cleaning.”
(Id., 62:11-15.) Plaintiff’s
direct supervisor, Erin Beck, testified that plaintiff made “complaints about
properly cleaning the office, in the face of the COVID-19 pandemic,” and “it
was a frequent conversation” in 2021.
(Ex. D, Beck Depo., 104:15-105:10.)
For
the third cause of action for FEHA retaliation, plaintiff testified she
requested to work from home as a reasonable accommodation for her asthma. (Ex. C, Mejia Depo., 36:12-37:21, 44:22-45:12,
63:8-14; Mejia Decl., ¶ 27.) With
limited exceptions (Mejia Depo., 76:25-77:9), defendant did not permit that
accommodation (Mejia Depo., 36:18-23, 37:6-21, 44:22-45:5; Mejia Decl., ¶¶
28-29).
As
for an adverse employment action, it is undisputed that defendant terminated
her on August 16, 2021.
Finally,
plaintiff presents sufficient circumstantial evidence of a causal link between
her complaints and her termination.
Making a prima facie case has “minimal requirements.” (St. Mary's Honor Center v. Hicks (1993)
509 U.S. 502, 506; accord Texas Dept. of Community Affairs v. Burdine (1981)
450 U.S. 248, 253 [“The burden of establishing a prima facie case of disparate
treatment is not onerous”].) “Both
direct and circumstantial evidence can be used to show an employer’s intent to
retaliate. ‘Direct evidence of
retaliation may consist of remarks made by decisionmakers displaying a
retaliatory motive.’ ” (Colarossi v.
Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 (Colarossi).) “Circumstantial evidence typically relates to
such factors as the plaintiff’s job performance, the timing of events, and how
the plaintiff was treated in comparison to other workers.” (Ibid.)
Plaintiff
presents evidence supporting an inference of causation. The close “timing of events” (Colarossi,
supra, 97 Cal.App.4th at p. 1153) supports an inference of causation. As discussed above, plaintiff testified she
made complaints about safety and requested reasonable accommodation under FEHA
multiple times within the year before her termination. Plaintiff states Michael Craig, who owns
defendant Bluebridge Professional Services, Inc., “put [her] in a smaller
office,” “would verbally taunt [her] for wearing a mask,” and would send her
“to a suite across from the main office area” whenever she “would make a COVID-related
complaint.” (Mejia Decl., ¶ 21.) She further states, “This treatment was not
present prior to me voicing of [sic] concerns related to COVID-19.” (Ibid.)
Evidence
of Craig’s responses to plaintiff’s complaints also supports an inference of
causation. Plaintiff’s supervisor, Erin
Beck, testified she “recall[ed] Michael Craig exhibiting frustration or
annoyance towards Akira Mejia about concern[s] she raised in regards to COVID-19
precautions.” (Ex. D, Beck Depo.,
58:2-5.) Craig “shut[] her down” and
“would be annoyed with her.” (Id.,
58:14-15.) Beck stated she “observe[d]
Michael Craig exhibiting anger towards Akira Mejia for her bringing up issues
surrounding COVID-19.” (Id.,
59:11-14.)
Beck
further testified, “[I]f you brought up the corona[virus], there was
confrontation with that subject” with Craig.
(Beck Depo., 62:14-15.) Mejia and
Craig “did argue over it.” (Id.,
62:21-63:1.) Beck agreed that
“[g]enerally, in 2021,” she “observe[d] Akira Mejia and Michael Craig arguing
specifically as to the topic of COVID-19 concerns that Akira Mejia rose to
Michael Craig.” (Id.,
65:3-7.) She also agreed that Craig
“continue[d] to exhibit frustration towards Akira Mejia up until the point of
her termination in regards to COVID-19 concerns that she would raise.” (Id., 66:21-67:2.)
The
same evidence also meets plaintiff’s initial burden on her fifth cause of
action for wrongful termination in violation of public policy. (See Muller, supra, 61 Cal.App.4th at
pp. 450-451 [statutes can serve as fundamental public policy].)
B.
Defendant’s Burden of Showing a Legitimate Reason for Termination
Defendant meets its burden of producing
evidence showing it terminated plaintiff for a legitimate reason. Defendant presents evidence of three
incidents where plaintiff engaged in unprofessional or insubordinate behavior. First, in October or November 2020, she used
foul language while on a conference call with a client. (UMF Nos. 5-6, Mejia Depo., 70:20-71:15;
Craig Depo., 43:2-14.) The client
“immediately called” Craig “following that meeting and” asked him “to never
allowed her anywhere near their patients under any circumstance.” (UMF No. 7, Craig Depo., 43:15-18.) Craig admonished her. (Mejia Depo., 73:2-21.)
Second, defendant presents evidence that
in “February or March 2021, Plaintiff had an outburst regarding her supervisor
Erin Beck, coming into owner Michael Craig’s office and yelling/screaming.” (UMF No. 9, Craig Depo., 22:11-23:2.) Craig testified he warned her “that if it
were to happen again, she would be terminated.”
(UMF No. 10, Craig Depo., 23:11-14.)
Finally, defendant presents evidence
that on the day of her termination, plaintiff had another confrontation with
Craig. (UMF No. 12; Craig Depo.,
16:13-20.:25.) Craig testified that
plaintiff “was being belligerent in my office for a second time after I had
warned her previously not to be. And I
terminated her immediately on the spot.”
(Id., 17:2-5.) He further
testified she “was uncontrollably angry, screaming and shouting about her
supervisor as she came into my office. I
asked her to please step out of my office and take 20 to 30 minutes I believe
is what I said to get yourself together.
She was unable to. And she
continued.” (Id., 17:22-18:8.)
At her deposition, plaintiff testified
about the same incident. She testified,
“I was not yelling, but I was trying to speak to [Craig] because he didn’t even
hear what I was trying to say. And in
the process he yelled at me. And yes, I
did raise my voice at him. I just said
he wasn’t listening.” (Mejia Depo., 81:10-14.) Craig “yelled at [her] to go take a
break.” (Id., 81:20.) “[H]e escalated his voice and said, ‘Akira,
go take a break.’ And I said, ‘You don’t
talk to me like that.’ And then he said
again, ‘Akira, go take a break’ with more escalation into his voice. And then I said, ‘Who are you talking to? You don’t raise your voice at me.’ So, you know, I did escalate my voice but I
wasn’t – yes, my voice escalated.” (Id.,
82:5-11.) She testified she did not
“take the break he asked [her] to.” (Id.,
82:13-15.) Craig “said, ‘Give me the
keys’ ” and called another employee “and said, ‘Get me Akira’s final paycheck.’
” (Id., 82:20-22.)
Under
McDonnell Douglas, defendant’s evidence shifts the burden back to plaintiff.
C.
Plaintiff’s Ultimate Burden
Plaintiff
meets her ultimate burden of showing triable issues of fact via “substantial
responsive evidence that the employer’s proffered reasons were untrue or
pretextual.” (Loggins, supra, 151 Cal.App.4th at p. 1109, internal
quotes and citation omitted.) She
provides substantial evidence disputing defendant’s evidence of what happened
just before Michael Craig fired her.
At her deposition, Erin Beck
testified plaintiff did not refuse to leave Craig’s office: “Q. Did Ms. Mejia refuse to take a walk and did
she continue to yell, based on what you observed? A. No, she gathered her items, and she left
the office. I mean, like I said, she was – she was upset when she was leaving,
but it’s not like – she wasn't like, ‘No, I'm not going.’ Like, she picked up
her stuff and left.” (Beck Depo., 98:10-17.)
Beck
further testified: “Q … [O]n the day of her termination, did Akira go into
Michael’s office and yell at him? A. Like I said, she was, like, more, like,
crying, cry-yelling. I don’t know what
you want to call that. Not yelling like
‘I'm mad at you’ yelling. More like
hysterical cry-yelling. … But it was not
an angry sort of, like, you know, ‘Screw you’ sort of yelling. It was ‘This isn't fair’ sort of thing.” (Beck Depo., 138:21-139:7.)
Defendant
also relies in part on substantially disputed evidence: the declaration of
plaintiff’s coworker Charlie Lopez. Lopez
states she witnessed the final confrontation and corroborates Craig’s depiction
of events. (Lopez Decl., ¶ 4.) Beck, however, testified, “I am pretty sure Charlie
was not there in the office that day at all because the confrontation between”
Lopez and plaintiff “was so – so bad and so intense that I, as a manager, could
not have and did not want to have a conversation with Akira with Charlie in
office. I wanted privacy. … I think
Charlie was on a consult.” (Beck Depo.,
99:4-8.)
At Beck’s
deposition, plaintiff’s counsel also directly asked her if Lopez told the truth
in her declaration: “Q. … ‘When Akira refused to leave Michael’s office and
continued to yell, he then terminated her.’ Is that sentence a truthful statement based on
what you observed on August 16th? A. No.
No.” (Beck Depo., 102:4-8.)
Triable
issues of fact preclude summary adjudication on plaintiff’s second, third, and
fifth causes of action. Based on this
record, a reasonable factfinder could conclude retaliation was a substantial
motivating factor—even if not the only reason—for terminating plaintiff. The evidence of plaintiff’s repeated
complaints and Craig’s anger and frustration in response supports that
conclusion. Based on Beck’s testimony, a
factfinder could determine that plaintiff was upset and emotional, but not
irate or enraged. A reasonable
factfinder could therefore conclude that, though that incident may have been
the last straw, plaintiff’s complaints leading up to it were a substantial
motivating factor for her termination.
4th Cause of Action: Failure to Prevent
FEHA Violations
Triable
issues of material fact preclude summary adjudication of this cause of action. FEHA requires an employer “to take all
reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) This cause of action requires the plaintiff to
succeed on her cause of action for the underlying FEHA violation. (Trujillo v. North County Transit Dist. (1998)
63 Cal.App.4th 280, 289.)
Defendant
argues for summary adjudication of this cause of action on the grounds that
plaintiff cannot show a triable issue of material fact on her third cause of
action for retaliation under FEHA. As
discussed above, plaintiff show triable issues of material fact on that cause
of action. Her fourth cause of action therefore
also withstands summary adjudication.
1st Cause of Action: Labor Code § 1102.5
Triable
issues of material fact preclude summary adjudication of this cause of
action. Labor Code section 1102.5,
subdivision (a) provides that an employer “shall not retaliate against an
employee for” reporting or complaining about “violation of state or federal
statute, or a violation of or noncompliance with a local, state, or federal
rule or regulation.”
The
framework of burden shifting under McDonnell Douglas does not apply to this
claim. (Lawson v. PPG Architectural
Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Lawson).) Instead, “once it has been
demonstrated by a preponderance of the evidence that an activity proscribed by
Section 1102.5 was a contributing factor in” the employee’s termination, “the
employer shall have the burden of proof to demonstrate by clear and convincing
evidence that the alleged action would have occurred for legitimate,
independent reasons even if the employee had not engaged in activities
protected by Section 1102.5.” (Lab.
Code, § 1102.6.) “Even if the employer
had a genuine, nonretaliatory reason for its adverse action, the plaintiff
still carries the burden assigned by statute if it is shown that the employer
also had at least one retaliatory reason that was a contributing factor in the
action.” (Lawson, supra, 12
Cal.5th at p. 716.)
As
discussed above, triable issues of material fact preclude summary adjudication
of plaintiff’s other causes of action for retaliation. Defendant bears a higher burden on this cause
of action. Defendant does not meet it.
Punitive Damages
Defendant
does not show it is entitled to summary adjudication on plaintiff’s claim for
punitive damages. On
summary adjudication, the plaintiff must present sufficient evidence for a
triable issue under “the higher evidentiary standard” of “establishing malice,
oppression or fraud by clear and convincing evidence.” (Basich v. Allstate Ins. Co. (2001)
87 Cal.App.4th 1112, 1121.)
Even
with this heightened burden, plaintiff establishes triable issues of fact. “[W]illfully and consciously retaliate[ing]
against” employees for exercising their rights can constitute malicious or
oppressive conduct sufficient for punitive damages. (Colucci v. T-Mobile USA, Inc. (2020)
48 Cal.App.5th 442, 455.) Based on the
same evidence discussed above, a reasonable factfinder could conclude plaintiff
presented clear and convincing evidence that defendant willfully and
consciously retaliated against her.
Disposition
Defendant Bluebridge Professional
Services, Inc.’s motion for summary judgment or, in the alternative, summary adjudication
is denied.