Judge: Barbara M. Scheper, Case: 23STCV10783, Date: 2024-11-22 Tentative Ruling

Case Number: 23STCV10783    Hearing Date: November 22, 2024    Dept: 30

Dept. 30

Calendar No.

Doukoure vs. Los Angeles Community College District, et. al., Case No. 23STCV10783

Tentative Ruling re:  Defendant’s Motion for Summary Judgment

Los Angeles Community College District (Defendant) moves for summary judgment against Fatoumata Doukoure (Plaintiff). Defendant argues that one or more elements of each of Plaintiff’s causes of action cannot be established, and that all of Plaintiff’s claims are precluded by Plaintiff’s separate workers’ compensation claims. Plaintiff contends that triable issues of material fact exist as to each cause of action, and that Plaintiff’s workers’ compensation claims do not bar claims under the Fair Employment and Housing Act (FEHA). The Court grants summary judgment.

Plaintiff’s Late Opposition

Defendant argues that the Court should disregard Plaintiff’s late opposition. The opposition papers to a motion for summary judgment shall be served and filed no less than 14 days preceding the date of hearing, unless the court finds good cause for such a delay. (Code Civ. Proc., § 437c, subd. (b)(2).) The court may, in its discretion, refuse to consider a late filed paper. (Cal. Rules of Court, rule 3.1300(d).) Defendant needed to file their opposition by November 5, 2024, to meet this deadline. Instead, Defendant filed their opposition on November 12. Defendant’s counsel blames his tardiness on a family emergency, a legal assistant’s illness, and a resulting calendaring error. (Opiaenwemuche Decl. ¶¶ 5–8.) The Court exercises its discretion to consider Plaintiff’s filing regardless.

Legal Standard

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 claim or defense 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.) 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, a moving defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that 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 the cause of action.” (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 defendant has met that burden, the burden shifts to the opposing plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) 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.)

Defendant moves for summary judgment on the basis that no triable issues of material fact exist to support Plaintiff’s three remaining causes of action. Additionally, Defendant argues that Plaintiff’s action has no merit because her only remedy is through workers’ compensation statutes. The Court will first address the workers’ compensation defense before turning to each cause of action.

Plaintiff’s workers’ compensation claims do not bar her FEHA claims.

Defendant argues that Plaintiff’s claims are precluded by California’s workers’ compensation statutes. (Lab. Code, §§ 3600 et seq.) Where certain conditions of compensation occur, relief under the workers’ compensation statutes is the “sole and exclusive remedy of the employee,” subject to a few exceptions. (Id., §§ 3600, subd. (a), 3602, subd. (a).) Exceptions include cases where the employee’s injury is caused by a willful physical assault of the employer, where the injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with employment, and where the injury is caused by a defective product manufactured by the employee. (Id., § 3602, subd. (b).)

It is Defendant’s burden to show that Labor Code section 3602 provides a complete defense to the present action. Plaintiff is currently pursuing a workers’ compensation action claim against Defendant related to physical injuries. (Ex. 23.) Plaintiff also alleges physical injury in the current action resulting from Defendant’s discrimination, harassment, and retaliation. (Compl. ¶¶ 43, 53, 63.) However, “unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain” as separate from the normal employment relationship. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 100–101.)  Thus, allegations of FEHA discrimination and retaliation are exceptions to workers’ compensation exclusivity under section 3602. (Id. at p. 101.) Citing no contradictory authority, Defendant has failed to demonstrate that section 3602 acts as a complete defense to the present action. Accordingly, the Court does not grant summary judgment on this basis.

Plaintiff’s first cause of action fails, and no triable issues of material fact exist.

Defendant argues that Plaintiff has failed to establish some required elements and that no triable issues of material fact exist as to Plaintiff’s first cause of action for retaliation and harassment in violation of FEHA. It is unlawful for an employer to discharge a person from employment or discriminate against the person in compensation or in terms, conditions, or privileges of employment, because of their race. (Gov. Code, § 12940, subd. (a).) It is also unlawful for an employer to discharge, expel, or otherwise discriminate against any person because they have opposed any discriminatory practices forbidden under section 12940, or filed a complaint, testified, or assisted in any proceeding to that effect. (Id., § 12940, subd. (h).) To establish a prima facie case of retaliation under 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.’” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380.)

Defendant argues that Plaintiff has not demonstrated that she engaged in any protected activity. Plaintiff believed that Ley did not follow proper procedure in assisting Plaintiff with an unruly student in 2019. (Doukoure Decl. ¶ 6.) Plaintiff filed a complaint concerning Ley’s conduct with the Dean on December 13, 2019. (Id. ¶ 7.) After the filing of the complaint, Plaintiff has been subjected to different terms and conditions of employment than other employees, including being denied seniority hours. (Id. ¶ 10.) The reporting of unruly students does not constitute protected activity. Plaintiff’s complaint filed with the Dean did not allege any sort of discriminatory practices forbidden under FEHA; rather, it concerned a workplace dispute regarding the management of a student. (Id. ¶ 7, Ex. 105.) Plaintiff has not produced evidence demonstrating that a triable issue of material fact exists as to Plaintiff having engaged in protected activity that resulted in retaliatory harassment.

Plaintiff’s second cause of action fails, and no triable issues of material fact exist.

Defendant argues that Plaintiff has failed to establish some required elements and that no triable issues of material fact exist as to Plaintiff’s second cause of action for race discrimination in violation of FEHA. It is unlawful for an employer to discharge a person from employment or discriminate against the person in compensation or in terms, conditions, or privileges of employment, because of their race. (Gov. Code, § 12940, subd. (a).) To state a prima facie case for race discrimination, Plaintiff must establish that: (1) she was a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) some other circumstances suggest discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

Defendant does not contest that Plaintiff has established the first two elements -- that Plaintiff is African American and qualified to teach cosmetology courses. (Compl. ¶¶ 12–13.) Thus, she is part of a protected class and qualified for her position.

Defendant contends that Plaintiff has not established that she suffered an adverse employment action. An adverse employment action is one that “materially affects the terms, conditions, or privileges of employment.” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 734.) This includes not only ultimate employment actions such as termination or demotion, but also those actions reasonably likely to adversely and materially affect an employee’s performance or opportunity for advancement. (Ibid.) Still, “[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054 (Yanowitz).) 

Defendant has shown that Plaintiff cannot establish this element through the testimony of Ley. She testifies that she has not done anything to harm Plaintiff. (Ley Decl. ¶¶ 23–24.) Thus, Plaintiff must offer evidence of an adverse employment action to show a triable issue of material fact and survive summary judgment as to this cause of action. First, Plaintiff points to instances when Ley observed Plaintiff’s class uninvited and provided handwritten notes of her observations to Plaintiff. (Doukoure Decl. ¶ 15.) Further, Ley mentioned that Plaintiff was “hired to walk the aisle.” (Id. ¶ 18.) This had no direct effect on Plaintiff’s employment aside from being upsetting or potentially angering behavior of the kind considered in Yanowitz. Additionally, Ley would often refer to Plaintiff as “helping” or “assisting” other instructors. (Id. ¶ 18.) Once again, while such a mischaracterization could have been upsetting to Plaintiff as a co-teacher, it did not affect her employment in violation of FEHA. Finally, Plaintiff argues that Ley has inaccurately determined Plaintiff’s seniority hours and has offered assignments to other instructors on the allegedly pretextual basis that Plaintiff lacked classroom management skills. (Id. ¶ 24.) Refusing to give Plaintiff assignments and improperly assigning seniority hours arguably constitutes an adverse employment action affecting Plaintiff’s opportunity for advancement. Thus, Plaintiff has raised a triable issue of material fact as to the third element.

Defendant also argues that Plaintiff cannot establish the fourth element requiring a showing of discriminatory motive, offering the testimony of Ley. She claims that she is not against Plaintiff and has not treated her badly. (Ley Decl. ¶ 24.) Thus, Plaintiff must offer evidence of circumstances suggesting a discriminatory motive. Such a motive may be discernible from stray remarks unrelated to the adverse employment action. (Jorgensen v. Loyola Marymount University (2021) 68 Cal.App.5th 882, 886.) The probative value of a stray remark increases when the declarant might influence the adverse employment action. (Ibid.) Here, Plaintiff offers evidence that Ley, a person with authority over her employment outcomes, said that Plaintiff was hired “to walk the aisle” or “work the aisle,” and that she was “helping” or “assisting” other instructors rather than acting as a co-teacher. (Doukoure Decl. ¶ 18.) It is unclear how these stray remarks demonstrate or even suggest a racially discriminatory motive. Plaintiff does not explain her understanding of the phrase walk the aisle or work the aisle and she offers no suggestion as to why these comments evidence a discriminatory motive based on Plaintiff’s race.  A charge of helping or assisting another teacher does not show discriminatory motive either. Thus, Plaintiff has not met her burden of demonstrating that a triable issue of material fact exists as to the fourth element.

Plaintiff’s third cause of action fails, and no triable issues of material fact exist.

Defendant argues that Plaintiff has failed to establish a required element and that no triable issues of material fact exist as to Plaintiff’s third cause of action for failure to prevent retaliation, discrimination, and harassment in violation of FEHA. It is unlawful for an employer to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) A necessary element of this cause of action is a showing of discrimination or harassment by the Defendant. The Court having found that no evidence presented by Plaintiff raises a triable issue of material fact as to her claims for retaliation, discrimination, or harassment, summary judgment is granted as to this cause of action as well.