Judge: Armen Tamzarian, Case: 22STCV28654, Date: 2023-11-30 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV28654    Hearing Date: November 30, 2023    Dept: 52

Defendant Los Angeles Unified School District’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication

            Defendant Los Angeles Unified School District summary judgment or, in the alternative, summary adjudication of all three of plaintiff Alma Fonseca’s causes of action.

Evidentiary Objections

            Plaintiff makes two objections to defendant’s evidence.  Both objections are overruled.   

Defendant makes eight objections to plaintiff’s evidence.  All eight objections are overruled.

Legal Standard

Summary judgment should be granted where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.)  Courts use a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

Plaintiff’s Complaint

Plaintiff brings three causes of action: (1) whistleblower retaliation, (2) retaliation under the Fair Employment and Housing Act (FEHA), and (3) failure to prevent discrimination or retaliation under FEHA. 

First and Second Causes of Action for Retaliation

In employment discrimination or retaliation cases, “[a]n 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.)  Once the defendant does so, the plaintiff “need only present evidence establishing a triable issue on the specific element the [defendant] challenges.”  (Id. at p. 968.)

For whistleblower retaliation claims under Labor Code section 1102.5, the plaintiff bears the initial burden at trial “to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action.”  (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Lawson).)  “Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.”  (Ibid.)  “[A] plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual.  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.”  (Id. at pp. 715-716.)

The elements of retaliation under FEHA are “ ‘(1) the employee’s engagement in a protected activity ...; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.’ ”  (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1105.)

A. Adverse Employment Action

Defendant argues that plaintiff cannot prevail on her first two causes of action because she cannot establish the element of an adverse employment action.  The court rejects this argument because defendant does not meet its initial burden of negating this element.

“To prove a claim of retaliation …, the plaintiff ‘must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment.’ ”  (Francis v. City of Los Angeles (2022) 81 Cal.App.5th 532, 540–541.)  “ ‘Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.’ ”  (Id. at p. 541.)

“The ‘materiality’ test of adverse employment action … looks to ‘the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,’ and the test ‘must be interpreted liberally ... with a reasonable appreciation of the realities of the workplace... .’ ”  (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389, overruled on other grounds by Lawson, supra.) 

Defendant argues plaintiff did not suffer an adverse employment action because she “was paid her entire salary … and kept all her benefits.”  (Motion, p. 15.)  That is insufficient.  Laws prohibiting discrimination and retaliation are “not limited to adverse employment actions that impose an economic detriment.”  (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.)  “[A] job reassignment may be an adverse employment action when it entails materially adverse consequences,” even if the “plaintiff ‘ “suffers no diminution in pay or benefits.” ’ ”  (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1279.)  The Court of Appeal has noted that “administrative leave may constitute an adverse employment action.”  (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 367.)  Defendant fails to address the materiality test. 

Here, the potential adverse employment action was that defendant sent plaintiff home and prohibited her from working, a practice it calls “housing” an employee.  In other words, defendant put her on administrative leave.  Prohibiting plaintiff from working at all did not merely adversely affect her job performance.  It eliminated her job performance.  A reasonable factfinder could conclude that doing so would naturally impede her opportunities for advancement.  There is a triable issue of material fact as to whether “housing” plaintiff constituted an adverse employment action. 

B. Causation

Defendant argues that plaintiff cannot meet her burden of showing a prima facie case because she does not have evidence of a causal link between plaintiff’s complaints and defendant’s adverse employment action.  The court rejects this argument.

Triable issues of material fact on this element preclude summary adjudication of the first two causes of action.  Defendant attempts to show it “housed” plaintiff for a legitimate reason: violating Policy Bulletin 6887.1, which concerns disclosure and privacy of student records.  As plaintiff’s opposition notes, defendant never provides a meaningful explanation of what part of this policy bulletin (or the Education Code or the federal Family Education Rights and Privacy Act) plaintiff supposedly violated.  Defendant’s reply responds to this argument with conclusory statements and evidence that do little more than point to pages 2 through 8 of the policy bulletin, large portions of several statutes, and one provision merely describing the policy behind the chapter of the Education Code on pupil records (Ed. Code, § 49060(a)).  (Reply, p. 5.)  Defendant does not quote any provision plaintiff violated. 

Assuming defendant met its initial burden of showing a legitimate reason for “housing” plaintiff, plaintiff presents sufficient evidence to establish triable issues of fact.  “The central issue is … whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.”  (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.)  “[C]iting a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employee’s showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employee’s favor.”  (Ibid.)

Plaintiff presents evidence casting doubt on the legitimacy of defendant’s explanation.  “Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.)  Plaintiff presents evidence she only disclosed student records to people permitted to see them.  She showed copies of student records to Principal Trinidad when she “confronted” her (Fonseca Decl., ¶ 10) and to Instructional Director Eduardo Solorzano (id., ¶ 25).  She states she “brought printed transcripts to the meeting to show Mr. Solorzano how Principal Trinidad had changed the grades from ‘Fs’ to ‘Ds.’ ”  (Ibid.)      

Defendant’s own evidence also undermines its reasons for “housing” plaintiff.  Human resources representative Krishna Nunnally describes plaintiff’s meeting with Solorzano.  She states, “Plaintiff had taken these [student] records from Mission HS by accessing the students’ records on her school computer and then downloading the records and taking the records off campus.”  (Nunnally Decl., ¶ 4.)  But plaintiff took the records to another LAUSD location to meet with Instructional Director Eduardo Solorzano.  (Ibid.)  A trier of fact could reasonably conclude that a district employee printing student records to show a superior is a harmless and minor violation of the rules governing confidentiality of student records.         

Plaintiff’s evidence of the timing of events further supports a reasoned inference of retaliation.  “ ‘Close proximity in time of an adverse action to an employee’s resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive.’ ”  (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1344; accord Zirpel v. Alki David Productions, Inc. (2023) 93 Cal.App.5th 563, 578.)  Plaintiff presents evidence she disclosed potential violations of law by Principal Trinidad on October 28, 2019 (Fonseca Decl., ¶ 10), on January 13, 2020 (id., ¶ 24), January 23 (id., ¶ 25), January 29 (id., ¶ 28), and February 2 (id., ¶ 29).  Defendant “housed” plaintiff on February 4, 2020.  This close temporal proximity supports the inference that defendant did so in retaliation for plaintiff’s protected activity.

The record also includes evidence casting doubt on the fairness of defendant’s process in disciplining plaintiff.  A biased or otherwise problematic investigation of the reason for disciplining the plaintiff may constitute evidence of pretext.  (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 277, 280, 287; accord Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1344.)  Defendant presents an “incident report form” dated February 18, 2020.  (Grable Decl., Ex. 1-A [ex. 5 to plaintiff’s deposition].)  It states, “On or around December 10, 2019, I was informed by Staff Relations Krishna Nunnally that [plaintiff] may be copying student records for personal use and/or removing from school site.”  (Id., p. 2.)  But the document indicates it was created on February 4, 2020.  (Id., p. 3.)  The delay between administrators learning of the supposed violation and creating an “incident report” suggests plaintiff’s violation was not serious.  

Moreover, plaintiff remained “housed” for over two years.  (Nunnally Decl., ¶¶ 7-9.)  The facts supporting defendant’s decision to “house” plaintiff (and never return her to work) arose from events from December 2019 to February 2020.  Defendant explains the long delay by stating the COVID-19 pandemic caused “an unprecedented strain on the disciplinary system.”  (Id., ¶ 6.)  Even so, a reasonable factfinder could conclude that someone who committed a violation of district policy or education law warranting serious discipline would not remain on payroll without working for over two years.    

Plaintiff presents sufficient evidence to support a reasoned inference that defendant subjected her to an adverse employment action in retaliation for her protected activity.  The evidence in the record is consistent with the conclusion that defendant retaliated against her.  Plaintiff disclosed information that, if true, would constitute serious wrongdoing by Principal Trinidad.  Soon after, defendant disciplined plaintiff for a relatively minor infraction in how she reported Principal Trinidad’s alleged misconduct.  The court cannot find that, as a matter of law, plaintiff’s evidence is too weak to support a rational inference that defendant retaliated against her. 

3rd Cause of Action: Failure to Prevent Discrimination and Harassment

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(k).)  Defendant relies on authority that this claim cannot stand on its own without an underlying claim for violating FEHA.  (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1309; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)  But since the court concludes there are triable issues of material facts relating to plaintiff’s underlying FEHA claim, this cause of action also survives summary adjudication.

Disposition

            Defendant Los Angeles Unified School District’s motion for summary judgment or summary adjudication is denied.