Judge: Barbara M. Scheper, Case: 21STCV45066, Date: 2023-09-19 Tentative Ruling
Case Number: 21STCV45066 Hearing Date: September 19, 2023 Dept: 30
Dept.
30
Calendar
No.
Sattley,
et. al. vs. Davis, et. al., Case No. 21STCV45066
Tentative Ruling re: Defendant’s Motion for Summary Judgment
Defendant City of Beverly Hills (Defendant) moves for
summary judgment against Plaintiff Josh Sattley (Plaintiff). The motion is
granted.
The function of a motion for summary judgment or
adjudication is to allow a determination as to whether an opposing party can
show evidentiary support for a pleading or claim and if not to enable an order
of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic
Richfield).) Code of Civil Procedure Section 437c, subdivision (c)
“requires the trial judge to grant summary judgment if all the evidence submitted,
and ‘all inferences reasonably deducible from the evidence’ and uncontradicted
by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp.
(1992) 7 Cal.App.4th 1110, 1119.)
As to each claim as framed by the complaint, the
defendant moving for summary judgment must satisfy the initial burden of proof
by presenting facts to negate an essential element, or to establish a defense.
(Code Civ. Proc, § 437c, subd. (p)(2).) 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.)
Once the moving party has met that burden, the
burden shifts to the opposing party to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto. To
establish a triable issue of material fact, the party opposing the motion must
produce substantial responsive evidence. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
The
Court’s “role on summary judgment is simply to decide whether the parties
possess evidence requiring the fact-weighing procedures of a trial. (Soto v.
County of Riverside (2008) 162 Cal.App.4th 492, 496.) “The purpose of the
summary judgment procedure is not to try the issues, but merely to
determine whether there are issues to be tried.” (Orser v. George
(1967) 252 Cal.App.2d 660, 668.)
On August 12, 2021, the Los Angeles
County Health Officer issued an order requiring health care workers, including
EMTs and paramedics, to be vaccinated against COVID-19 by September 30, 2021.
(Undisputed Material Facts (UMF) 1.) Plaintiff was a firefighter for Defendant
at this time, and so was required to be certified as an EMT or paramedic. (UMF
2.) Plaintiff submitted a request for religious accommodation seeking exemption
from the vaccine order, which was denied by Defendant on September 30, 2021.
(Defendant’s Evidence (DE), Ex. E.) Because Plaintiff did not receive the
vaccine, Defendant placed him on administrative leave on October 1, 2021, for
which he was later fully compensated. (Ovrom Decl. ¶ 7; DE, Ex. O [119].) On
March 9, 2022, Fire Chief Greg Barton sent Plaintiff a Notice of Termination,
notifying him that he would be terminated on March 11, 2022, due to his failure
to comply with the vaccine order. (DE, Ex. D.)
Plaintiff’s
remaining cause of action is for Retaliation in violation of FEHA. Plaintiff
alleges that he “was engaged in protected activity when he asserted a religious
objection to Covid vaccination . . . [and] when he criticized the City
Council’s Covid polices and filed this lawsuit.” (SAC ¶ 131.) Defendant
retaliated against Plaintiff for his protected activity by “suspending
[Plaintiff] without pay and firing him for being unvaccinated while it allowed
every other unvaccinated firefighter in Beverly Hills to keep working.” (SAC ¶
132.)
Defendant
first argues that Plaintiff has failed to exhaust his administrative remedies
for his retaliation claim. The Court agrees.
Before filing a civil complaint under FEHA, a plaintiff must exhaust administrative remedies by
filing a complaint with the Department of Fair Employment and Housing (DFEH)
and obtaining a right-to-sue notice. (Govt. Code §§ 12960, 12965; see Rojo v. Kliger (1990) 52 Cal.3d 65,
83.) “[T]he right-to-sue letter is a prerequisite to judicial action.” (Rojo,
52 Cal.3d at 83.) The administrative complaint must be filed within one
year after the alleged unlawful act occurred. (Govt. Code § 12960; Acuna v.
San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412.)
Plaintiff filed his initial EEOC charge, dual-filed with the DFEH,
on November 18, 2021. The charge alleged that Defendant discriminated against
Plaintiff based on his religion by denying his religious accommodation request
and placing him on administrative unpaid leave of absence. (Defendant’s
Evidence (DE), Ex. I.) On March 25, 2022, following his termination, Plaintiff
filed a First Amended Complaint in this action that added the cause of action
for retaliation in violation of FEHA. Plaintiff reasserted the retaliation
claim in his Second Amended Complaint, filed August 9, 2022.
On November 9, 2022, Plaintiff filed a second EEOC charge, again
dual-filed with the DFEH, alleging that he was terminated for not receiving his
COVID vaccine, and thereby was discriminated and retaliated against for
protected activity in violation of Title VII. (DE, Ex. J.) Plaintiff stated in
his discovery responses that he has not obtained a right-to-sue letter based on
this second charge. (DE, Ex. K [75].) Given Plaintiff’s undisputed failure to
obtain a right-to-sue letter for his retaliation claim, the claim fails as a
matter of law.
The facts here closely resemble those in Okoli v. Lockheed
Technical Operations Co. (1995) 36 Cal.App.4th 1607. In Okoli, the
plaintiff employee obtained a DFEH right-to-sue letter based on allegations
that he was subject to racial harassment and denied promotion. (Id. at
1609-10.) The plaintiff subsequently filed suit against his employer for racial
discrimination, racial harassment, and retaliation under FEHA. (Ibid.)
The Court of Appeal found that “the trial court had no jurisdiction to hear Okoli’s retaliation cause of action [as] Okoli never filed a charge with the DFEH mentioning
retaliation.” (Id. at 1612.) The court noted, “[t]o exhaust his or her administrative
remedies as to a particular act made unlawful by the Fair Employment and
Housing Act, the claimant must specify that act in the administrative
complaint, even if the complaint does specify other cognizable wrongful acts.
[Citation.]” (Ibid.)
The Court of Appeal also specifically
rejected the argument that Plaintiff makes here, that the retaliation cause of
action was properly exhausted by the initial complaint of discrimination
because “the scope of the complaint is limited
not by the EEOC charge, but rather by ‘the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge of discrimination.’
” (Id. at 1615 [quoting Sanchez v. Standard Brands, Inc. (5th
Cir. 1970) 431 F.2d 455].)
The
court explained, “[t]he purpose of a charge of discrimination . . . is to
‘trigger the investigatory and conciliatory procedures of the EEOC.’
[Citation.] Essentially, if an investigation of what was charged in
the EEOC would necessarily uncover other incidents that were not charged, the
latter incidents could be included in a subsequent action. This is because the
policy interests embodied in title VII, i.e., ‘the resolution of disputes and
elimination of unlawful employment practices by conciliation.’ ” (Ibid.)
Thus, courts have concluded that later-filed claims are encompassed within a
prior administrative complaint when “it is reasonable that an investigation of
the allegations in the original DFEH complaint would lead to the investigation
of subsequent discriminatory acts undertaken by respondents in retaliation for
appellant's filing an internal grievance.” (Id. at 1616.) For the Okoli
plaintiff, “the unlawful retaliation, which occurred after the
filing of the DFEH charge, would not reasonably have been uncovered in an
investigation of the charges that were made, i.e., why Okoli had not been
promoted . . . and whether on at least two occasions, Okoli's supervisor . . . made
derogatory comments about Okoli's national origin.” (Id. at 1617.)
Here,
similarly, Defendant’s alleged retaliation took place after Plaintiff’s filing
of his initial EEOC/DFEH charge, on March 9, 2022. (DE, Ex. D.) Only in
Plaintiff’s second charge, filed three months after the Second Amended
Complaint, did Plaintiff allege that he was discharged due to his filing of the
first discrimination charge and for not receiving the COVID vaccine. (DE, Ex.
J.) It is undisputed that Plaintiff has not obtained a right-to-sue notice
relating to that second charge. (DE, Ex. K.) Defendant’s unlawful termination
of Plaintiff and the protected activity allegedly leading to it would not have
been uncovered by an investigation of the allegations in Plaintiff’s initial charge,
which concerned only the denial of Plaintiff’s request for accommodation. The
first charge did not “specify that [retaliatory] act in the
administrative complaint, even if [it did] specify other cognizable wrongful
acts.” (Okoli, 38 Cal.App.4th at 1613.) Consequently, Plaintiff’s
initial right-to-sue letter did not exhaust his administrative remedies as to
the retaliation cause of action. Because “in the context of the FEHA, exhaustion of the
administrative remedy is a jurisdictional prerequisite to resort to the courts,” summary judgment is granted for
Defendant. (Okoli
at 1613.)
Even if Plaintiff had
exhausted his administrative remedy, the Court would still grant the motion.
“[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.
[Citations.] Once an employee establishes a prima facie case, the employer is
required to offer a legitimate, nonretaliatory reason for the adverse
employment action. [Citation.] 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.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1042.)
Plaintiff
alleges that he “was engaged in protected activity when he asserted a religious
objection to Covid vaccination . . . [and] when he criticized the City
Council’s Covid polices and filed this lawsuit.” (SAC ¶ 131.) Defendant
retaliated against Plaintiff for his protected activity by “suspending
[Plaintiff] without pay and firing him for being unvaccinated while it allowed
every other unvaccinated firefighter in Beverly Hills to keep working.” (SAC ¶
132.)
Defendant first argues that Plaintiff’s retaliation claim
fails because Plaintiff did not engage in protected activity. At his
deposition, Plaintiff testified that he believed his social media posts
criticizing Defendant’s COVID policies were the sole reason for his
termination. (DE, Ex. O, p. 130 [120].) But when asked to, Plaintiff could not
identify any specific social media post.
Plaintiff argues that his social media posts challenging the
City’s COVID policies constituted protected activity under FEHA, because his
posts involved “some
degree of opposition to or protest of the employer's conduct or practices based
on the employee's reasonable belief that the employer's action or practice is
unlawful.” (Dinslage v. City
and County of San Francisco (2016) 5 Cal.App.5th 368, 382.) But Plaintiff
has presented no evidence of any specific social media post he made, nor of any
statement he made in those posts. Plaintiff cites only his own declaration
setting forth his belief that “the City fired me because of my intense
criticism of the City’s COVID policies during the fall of 2021, including the
criticism I posted on Instagram . . . and through my radio/TV appearances.”
(PE, Tab 1, ¶ 16 [9].) This fails to create any triable dispute as to whether
Plaintiff engaged in protected activity under FEHA. The fact that a plaintiff “opposed what he viewed as unwise or even
improper actions . . . is not enough to
make his opposition a protected activity. Again, to be protected, an employee's
actions ‘must oppose activity the employee reasonably believes
constitutes unlawful discrimination[.]’ ” (Dinslage, 5 Cal.App.5th at
382.) Given the absence of any evidence of the content of Plaintiff’s social
media posts, Plaintiff has not shown any triable dispute as to whether, in
those posts, he was opposing activity he reasonably believed was unlawful under
FEHA.
While Plaintiff’s request for a religious exemption did
constitute protected activity under FEHA, Plaintiff’s Opposition does not
attempt to premise his retaliation claim on his request for accommodation.
Because Plaintiff has not identified any specific social
media post he made, Plaintiff has failed to show that any post was sufficiently
close in time to his termination to support a prima facie showing of causation.
Furthermore, even assuming that Plaintiff establishes a prima facie case,
Plaintiff has presented no evidence that Defendant’s purported legitimate,
non-retaliatory reason for terminating Plaintiff was pretextual. Defendant’s
evidence indicates that Plaintiff was terminated because he could not be a
paramedic or EMT, which was a requirement for Defendant’s firefighters. (DE,
Ex. D; Barton Decl. ¶ 14.) In his Opposition, Plaintiff questions Defendant’s
denial of his request for religious accommodation, but cites no evidence
suggesting that his termination was in fact due to his social media criticism
of Defendant’s policies. (Opposition p. 21.) Plaintiff also states in his
declaration that Defendant’s retaliatory animus “was corroborated by former
City Council candidate Vera Markowitz, a friend of Fire Chief Barton, who told
a reporter that I was fired not because of the COVID vaccine policy but due to
a ‘personality’ dispute.” (PE, Tab 1, ¶ 16 [9].) However, in addition to being
inadmissible hearsay, Markowitz’s alleged statement that Plaintiff was
terminated due to a “personality” dispute fails to show any connection to
Plaintiff’s COVID-related social media posts.
Lastly, Plaintiff has offered no evidence that Chief Barton, who
made the decision to terminate Plaintiff, even saw any particular social media
post or considered it in making his decision.
Plaintiff argues that the motion should be denied under Code of Civil Procedure section 437c,
subdivision (h) because Plaintiff has
not been able to conduct the necessary discovery to find facts and evidence to
oppose the merits of the motion if discovery is allowed.
CCP
Section 437c(h) provides: “If it appears
from the affidavits submitted in opposition to a motion for summary judgment or
summary adjudication, or both, that facts essential to justify opposition may
exist but cannot, for reasons stated, be presented, the court shall deny the
motion, order a continuance to permit affidavits to be obtained or discovery to
be had, or make any other order as may be just.”
The declaration or affidavit in support of the request to
continue must describe the discovery that is necessary to resist the
motion. (See Frazee v. Seeley
(2002) 95 Cal.App.4th 627, 634-635.)
It is not sufficient merely to indicate that further discovery or
investigation is contemplated. (Bahl
v. Bank of America (2001) 89 Cal.App.4th 389, 396-397.) The declaration or affidavit must also make a
good faith showing demonstrating that a continuance is necessary to obtain
essential facts to oppose the motion. The
declaration should show (1) facts that establish a likelihood that
controverting evidence may exist and why the information sought is essential to
opposing the summary judgment motion, (2) specific reasons why this evidence
cannot be presented at the present time, (3) an estimate of the time necessary
to obtain this evidence, and (4) the specific steps or procedures that the
party opposing the summary judgment motion intends to use to obtain this
evidence. (Johnson v. Alameda County.
Med. Ctr. (2012) 205 Cal.App.4th 521, 532.)
In exercising discretion under CCP Section 437c(h), a
judge may properly consider the extent to which the requesting party’s failure
to secure the contemplated evidence results from this party’s lack of
diligence. (Rodriquez v. Oto
(2013) 212 Cal.App.4th 1020, 1038.)
A good faith showing that further discovery is needed to oppose summary
judgment requires some justification as to why this discovery was not completed
sooner. (Cooksey v. Alexakis
(2004) 123 Cal.App.4th 246, 257; Bushling v. Fremont Med. Ctr.
(2004) 117 Cal.App.4th 493, 511-512; Braganza v. Albertson’s LLC (2021)
67 Cal.App.5th 144, 156.)
Plaintiff
does not meet the requirements of Section 437c, subdivision (h) to obtain a
continuance. Plaintiff filed the instant
action on December 10, 2021. After
Plaintiff was terminated on March 9, 2022, Plaintiff filed a First Amended
Complaint on March 25, 2022. The
operative Second Amended Complaint was filed on August 9, 2022. The trial date of October 23, 2023 was set on
December 5, 2022. Plaintiff’s counsel
declares that the parties spent several
months at the outset of the case litigating constitutional issues and
then focused on litigating the claims against the City and Councilman
Mirish. Plaintiff’s counsel then states
in conclusory fashion that the City and Sattley did not commence discovery
until the Spring of 2023 and describes the action as in the early stages of
discovery. This is utterly insufficient.
Plaintiff’s counsel offers no explanation as to why he failed to
initiate any discovery regarding Plaintiff’s claims for over eighteen
months. Moreover, none of the proposed
discovery could rebut Plaintiff’s failure to exhaust his administrative
remedies.
It
appears to the Court that Plaintiff has failed to conduct any meaningful
discovery even as the trial date looms.
Plaintiff proposes no plan for how all of this discovery can be
conducted before the discovery cut-off or why it was not sought sooner.
Based
on the foregoing, the Court denies Plaintiff’s request to deny or continue the
instant motion pursuant to CCP Section 437c(h).