Judge: Bruce G. Iwasaki, Case: 20STCV30728, Date: 2023-05-04 Tentative Ruling

Case Number: 20STCV30728    Hearing Date: May 4, 2023    Dept: 58

Judge Bruce G. Iwasaki

Hearing Date:             May 4, 2023

Case Name:                Melvon George v. Board of Trustees of the California State University, et al.

Case No.:                    20STCV30728

Matter:                        Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Moving Party:             Defendants Board of Trustees of the California State University, California State University, and California State University, Northridge

Tentative Ruling:      The Motion for Summary Judgment is granted.

This is an employment action in which the Plaintiff Melvon George (“Plaintiff”) alleges that he was terminated for taking time off following the birth of his son in April 2019. Plaintiff filed this action on August 13, 2020, alleging causes of action for associational disability discrimination in violation of FEHA, associational sex discrimination in violation of FEHA, failure to accommodate in violation of FEHA, failure to prevent discrimination in violation of FEHA, retaliation in violation of FEHA, failure to engage in interactive process in violation of FEHA, and wrongful termination in violation of public policy against Defendants Board of Trustees of the California State University, California State University, and California State University, Northridge (collectively “Defendants”).

Defendants move for summary judgment or in the alternative, summary adjudication. 

Plaintiff George was not, as he maintains, “fired.”  His temporary contract ended.  As discussed below, discrimination for taking time off had nothing to do with it. Plaintiff fails to raise an issue of material fact.  Defendants’ motion for summary judgment is granted.

Evidentiary Objections

The Court rules as follows regarding Defendants’ evidentiary objections:

Declaration of Melvon George.  The Court sustains Defendants’ objections nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 26, 27, 28, 30, 31, 32, 33, 34, and 42. 

The Court overrules objections nos. 3, 17, 24, 25, 29, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 49, and 50.

Deposition Testimony of Erika Baron.  The Court sustains all of the objections to the deposition testimony of Erika Baron.

Declaration of Marina Serrano.  The Court overrules all of the objections to the declaration of Marina Serrano.

Preliminary Issues

Defendants’ Motion fails to comply with multiple provisions of the California Rules of Court. First, “[i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (CRC Rule 3.1350(b).) Defendants are seeking summary adjudication in the alternative, but the specific causes of action stated in their notice for the Motion are not repeated verbatim in their Separate Statement. Defendants’ notice simply says, “In the alternative, for the reasons above, Defendants is entitled to summary adjudication…” (Notice, 2:19-10.) Defendants’ Separate Statement on the other hand spells out each specific issue. Defendants’ Motion fails to comply with Rule 3.1350(b) of the California Rules of Court.

Second, “(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:  (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (CRC Rule. 3.1350)(d)(1).) Defendants’ Separate Statement lumps multiple causes of action together in connection with the proffered material facts, such as the first and second causes of action and then the third and the fourth. It also incorporates by reference many other proffered material facts from preceding causes of action. Defendants’ Separate Statement therefore fails to comply with Rule 3.1350(d)(1).

Third, “[t]he separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (CRC Rule 3.1350(d)(2).) Nevertheless, Defendants’ Separate Statement contains 173 purportedly material facts. Many of the purportedly material facts are not material. For example, “The CSU system is the largest four-year public university system in the United States and CSUN is of the larger campuses in the CSU system,” (UMF No. 2), or, “In 2015, Plaintiff enrolled in a graduate program at CSUN and he obtained his Masters in Artis in 2017,” (UMF No. 4.) Defendants’ Separate Statement contains many other purportedly material facts which are not material and thereby fails to comply with Rule 3.1350(d)(2) of the California Rules of Court.

Plaintiff’s Separate Statement fails to respond to Defendants’ proffered material facts from Numbers 100 onward. While the remainder of it does contain responses, the numbers do not correspond with those proffered by Defendants. To the extent the proffered facts are repeats of the 99, the Court will consider Plaintiff’s Separate Statement.

Motion for Summary Judgment

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc., § 437c,¿subd. (a).)  “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)  

The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).)  A Defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, plaintiff cannot establish at least one element of the cause of action.  (Code Civ. Proc., § 437c(p)(2).)  

(1)  Associational Disability Discrimination in Violation of FEHA

The Fair Employment and Housing Act provides a cause of action for associational disability discrimination. (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1036, citing Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 656-657 The elements of a claim for associational disability discrimination are:

(1) the defendant was an employer;

(2) the plaintiff was an employee of the defendant;

(3) plaintiff had an association or a relationship with someone who had a disability;

(4) the disabled person’s disability was costly to the defendant or the defendant feared association with the disabled person or the plaintiff was somewhat inattentive at work because the disabled person’s disability required the plaintiff’s attention, but not so inattentive that to perform to the defendant employer’s satisfaction would need an accommodation or some other basis for associational discrimination;

(5) the plaintiff was able to perform essential job duties;

(6) the defendant discharged, refused to hire, or took other adverse employment action against the plaintiff or the defendant employer subjected the plaintiff to an adverse employment action or that the plaintiff was constructively discharged;

(7) the plaintiff’s association with the disabled person was a substantial motivating reason for the defendant employer’s decisions to discharge, refuse to hire, or take other adverse employment action against the plaintiff;

(8) the plaintiff was harmed; and

(9) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.

(CACI No. 2547.)

Defendants contend that Plaintiff is unable to establish a prima facie case of discrimination by Defendants towards those who take family leave. Defendants contend Plaintiff’s only proffered evidence of hostility from his former supervisor, Teiana Jones (“Jones”), were some text messages she sent him regarding his emergency hire contract ending, and promising him a position following a short break in employment in April 2019 but not being able to find a position he could fill at that time. Defendants contend Plaintiff otherwise does not recall any hostile conduct or statements from Jones. Defendants further contend that any evidence from Erika Baron (“Baron”) is insufficient and unreliable because Baron failed to identify a single discriminatory statement made by Jones and that Baron’s belief of Jones’ discriminating against Plaintiff was based on unwarranted inferences regarding a co-worker, Hernandez, following Hernandez’s maternity leave.

Defendants further contend that even if Plaintiff is able to establish a prima facie case of associational discrimination, Plaintiff’s claim ultimately fails because Defendants had a valid non-discriminatory purpose. Specifically, Plaintiff’s position was temporary and was scheduled to expire on April 8, 2019, which just happened to be around the time Plaintiff took paternity leave. Because his temporary position was scheduled to expire then, Plaintiff was not “terminated” – that is, removed from a position that he continued to hold. There were no other emergency hire positions available at that time and all the other positions required a formal recruitment process. Defendants also contend that Plaintiff cannot point to any evidence of pretext sufficient to counter Defendants’ non-discriminatory purpose.

The Court finds that Defendants have established the absence of a triable issue of material fact with respect to the first cause of action for associational disability discrimination. Defendants have established that the reason Plaintiff’s job ended was because it was a temporary position that was set to expire on April 8, 2019. (De La Vega Decl., Ex. K.) Plaintiff was also given paternity leave pay for the last days he worked until his job ended on April 8, 2019. (SSF #21.) Additionally, Plaintiff’s job ending due to its limited term is not an adverse employment action. The burden of proof now shifts to Plaintiff to establish the existence of a triable issue of material fact.

Plaintiff’s opposition brief notes that Plaintiff’s start date was in December 2018, but elides the express “appointment end date” of April 8, 2019.  This effort to ignore inconvenient facts does not permit it to avoid summary judgment.

The Court finds that Plaintiff has failed to establish the existence of a triable issue of material fact. Plaintiff contends that Jones had promised him his position was being extended into a permanent position. However, this is insufficient, as Plaintiff has not presented any reliable evidence establishing that Jones had the authority to unilaterally offer him a permanent position. (De La Vega Decl., Ex. L [“It was inappropriate for [Jones] to make such a promise to you as she was not in a position to make such an assertion.”]) In fact, Plaintiff knew that Jones was working on paperwork and needed approval for Plaintiff to be hired for another position. (Rubiner Decl., Ex. “A”, George Depo. 165:20-166:4.)

Plaintiff otherwise contends, with no corroborating evidence, that his temporary position was converted to a permanent position.  The Staff Appointment Letter clearly limited the duration of Plaintiff’s term of employment for that position and did not extend Plaintiff’s term of employment. The excerpt Plaintiff quotes in the Separate Statement omits material terms: “Separation from temporary employment may occur on or before the date above. We will generally notify you at least 10 days prior to an early separation, or a reappointment of an additional period of temporary employment.” (De La Vega Decl., Ex. K.) If anything, this shows that Plaintiff did not even have a guarantee of employment to April 8, 2019. To the extent Plaintiff contends he did not receive this Staff Appointment Letter, there is no evidence to support that except Plaintiff’s own declaration, which is insufficient to create a triable issue of material fact. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [uncorroborated and self-serving declarations do not create triable issues of material fact].) Additionally, it is inconsistent for Plaintiff to claim on the one hand that he never received the Staff Admission Letter but then use it to claim that his position was not temporary.

Furthermore, the evidence Plaintiff has presented generally fails to show that Defendants discriminated against him by virtue of his wife’s pregnancy. At most, all Plaintiff can show is that his job ended just a few days after he took paternity leave and inquired about paternity pay. This is insufficient given that Plaintiff’s job was scheduled to end by April 8, 2019. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353 [“temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination.”])

Finally, the evidence Plaintiff has presented regarding his alleged lack of paternity pay does not support this claim. All Plaintiff has presented is evidence that he made an inquiry regarding paternity pay, not that he never received it. (SSF #21.) Defendants explained to Plaintiff in a letter dated February 18, 2020 that there had not been a denial of paternity pay, but rather there was a mistake in data entry treating his time off as vacation time and personal holiday when it should have been labeled as paternity leave and that the entry would be corrected. (De La Vega Decl., Ex. L.) Defendants have not only presented evidence indicating that Plaintiff received paternity pay, but they have also presented evidence that Plaintiff was not even entitled to paternity pay in the first place. (De La Vega Decl., ¶ 7.) While Plaintiff has presented evidence that he may have been entitled to parental leave, this is not the same as parental pay. (Serrano Decl., Ex. D, Morris Depo. 144:12-20.) Additionally, it should be noted that the Barrett Morris’ deposition transcript is ambiguous as to what it means when he said, “He’s entitled to it,” (Serrano Decl., Ex. D, Morris Depo. 144:12-20.) which is insufficient to create a triable issue of material fact. (F. Burden of Proof on Motion, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 10-F, quoting Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 857, fn. 27 [‘[W]hen the evidence is in equipoise on a matter that [plaintiff] must establish by a preponderance of the evidence, summary judgment will be granted against [plaintiff]’ because a reasonable trier of fact could not find for the plaintiff..) [emphasis added].

Therefore, the Court finds that no triable issue of material fact exists as to this cause of action for associational disability discrimination.

(2)  Associational Sex Discrimination in Violation of FEHA

The Court notes that there does not appear to be any direct legal authority providing that an associational discrimination claim may be made on the basis of sex. Nevertheless, even if there were, the analysis appears that it would be the same with respect to associational disability discrimination analyzed above. The Court accordingly applies the same analysis here and finds that no triable issue of material fact exists as to this cause of action for associational sex discrimination.

(3)  Failure to Accommodate in Violation of FEHA

The elements of a claim for failure to accommodate in violation of the FEHA are:  (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff can perform the essential functions of the position; and (3) the defendant failed to reasonably accommodate that disability. (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1107.)

Defendants contend Plaintiff cannot state a claim for failure to accommodate because there is no evidence Plaintiff had a disability. Plaintiff having a newly born child or having a pregnant spouse do not qualify as disabilities, and that being associated with a disabled person is not recognized as a disability. Defendants further contend that there is no evidence Plaintiff requested an accommodation. To the extent Plaintiff requested an accommodation, he was given paternity pay for the time he took off before his position ended on April 8, 2019.

The Court finds that Defendants have established the absence of a triable issue of material fact. If Plaintiff made any accommodation request, Defendants provided it by giving Plaintiff time off during the last few days of his position and also gave him paternity pay. (SSF #21.) The burden of proof now shifts to Plaintiff to establish the existence of a triable issue of material fact.

The Court finds that Plaintiff has not established the existence of a triable issue of material fact. Plaintiff’s primary argument for failure to accommodate in his opposition is based on case law that is no longer good law. Plaintiff cites to Castro-Ramirez v. Dependable Highway Express, Inc.  (2016) 246 Cal.App.4th 180, 192-193 to contend that an employer has an affirmative duty under the FEHA to provide reasonable accommodations to an employee who is associated with a disabled person. This opinion was subsequently vacated in Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028. This subsequent opinion in Castro-Ramirez expressly held that it was not deciding whether the FEHA establishes a separate duty to reasonably accommodate employees who associate with a disabled person. (Id. at p. 1038.) The Court further finds that Plaintiff’s arguments in his opposition fails to cite to the record to support his argument that he was not provided an accommodation.

Therefore, the Court finds that no triable issue of material fact exists as to the failure to accommodate cause of action.

(4)  Failure to Prevent Discrimination in Violation of FEHA

Government Code section 12940(j)(1) requires an employer to take reasonable steps to prevent discrimination from occurring. (Gov. Code § 12940(j)(1).) A claim for failure to prevent discrimination under the FEHA requires the Plaintiff having proved actual discrimination. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282.)

Defendants contend that Plaintiff’s claim for failure to prevent discrimination fails because his underlying claim for discrimination fails. Defendants further contend that even if Plaintiff could show discrimination, Defendants took reasonable steps to prevent discrimination, as evidenced by CSUN promptly and thoroughly investigating Plaintiff’s internal complaints. (SSF #138-146.) CSUN has a procedure for handling discrimination complaints per Executive Order 1098 and the investigation into Plaintiff’s discrimination allegations, conducted by the Office of Equity and Compliance was paused when Plaintiff’s counsel contacted Barrett Morris (“Morris”), the employee who conducted the investigation. (SSF # 146, 147.)

The Court finds that Defendants have established the absence of a triable issue of material fact as to this cause of action. Defendants have provided evidence showing that two investigations were conducted into Plaintiff’s claims, one of which was completed, (De La Vega Decl., Ex. L), and the other of which could not be completed due to Plaintiff’s failure to respond to communications from the Office of Equity and Compliance and Morris having been contacted by Plaintiff’s attorney. (Serrano Decl., Ex. D, Barrett Depo. 123:3-124:2.)

More importantly, Plaintiff has failed to establish an underlying claim for discrimination for the reasons set forth above regarding the first and second causes of action. Accordingly, the burden now shifts to Plaintiff to establish the absence of a triable issue of material fact.

Plaintiff contends the investigations were inadequate. Plaintiff recites the history of how the investigations proceeded, asserting that he has not been notified of the conclusion of Morris’ investigation and that February 18, 2020 letter from CSUN regarding the other investigation is evidence that Defendants admitted Plaintiff’s employment was being extended but that they attempted to excuse Plaintiff’s termination by claiming that Jones was not authorized to make those promises. Plaintiff otherwise asserts in a conclusory manner that he was subjected to discrimination.

The Court finds these are insufficient to establish the existence of a triable issue of material fact. Morris stated in his deposition that he could not complete the investigation into Plaintiff’s complaint because he did not receive further responses from Plaintiff during the investigation and was contacted by Plaintiff’s attorney. (Serrano Decl., Ex. D, Barrett Depo. 123:3-124:2.) Furthermore, the February 18, 2020 letter shows that an investigation was completed. Plaintiff’s disagreement with its findings does not show that the evidence was inadequate.

Therefore, the Court finds that no triable issue of material fact exists as to the cause of action for failure to prevent discrimination.

(5)  Retaliation in Violation of FEHA

The elements of a claim for retaliation are: (1) the plaintiff 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. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.)

Defendants contend that Plaintiff’s claim fails because his job had ended April 8, 2019, but he did not file a complaint until September 2019 and this lawsuit was not brought until August 2020. Defendants contend that Plaintiff’s employment ended for a non-retaliatory purpose, namely that his job position was temporary and scheduled to expire on April 8, 2019.  Defendants further contend there is no evidence of pretext because Plaintiff cannot demonstrate substantial evidence that Defendants’ non-retaliatory purpose was pretextual.

The Court finds that Defendants have established the absence of a triable issue of material fact. Defendants have presented evidence establishing that Plaintiff’s job ended because it was a temporary position set to expire on April 8, 2019. (De La Vega Decl., Ex. K.) Accordingly, the burden now shifts to Plaintiff to establish the existence of a triable issue of material fact.

The Court finds that Plaintiff has not established the existence of a triable issue of material fact. Plaintiff contends in a conclusory manner without citing to any facts in his opposition to support his claim that he engaged in a protected activity. Plaintiff contends that he was terminated, which constitutes an adverse employment action. The Court disagrees. Plaintiff was not terminated; his job ended on April 8, 2019, which is the date he was told it would end per the Staff Admission Letter. (De Le Vega Decl., Ex. K.) Even assuming for the sake of argument that there was an adverse employment action, Plaintiff also contends the causal link here is that he was terminated within a week of taking time off for the birth of his child. However, temporal proximity alone is insufficient when there is evidence of a non-retaliatory purpose for the termination. (See Arteaga, supra, 163 Cal.App.4th at p. 353.)

Therefore, the Court finds that no triable issue of material fact exists as to this cause of action for retaliation.

(6)  Failure to Engage in Interactive Process in Violation of FEHA

“[T]o succeed on a cause of action for failure to engage in an interactive process, ‘an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.’” (Shirvanyan v. Los Angeles Cmty. Coll. Dist. (2020) 59 Cal.App.5th 82, 96) [internal citations omitted].)

Defendants’ arguments with respect to this cause of action were combined with their arguments regarding failure to accommodate. To reiterate, Defendants contend that Plaintiff did not request an accommodation and did not have a disability, so CSUN was not required to engage in the interactive process. Even if CSUN was required to do so, CSUN accommodated Plaintiff by giving him paid time off for the birth of his child until his temporary position ended.

The Court finds that Defendants have established the absence of a triable issue of material fact. Defendants have presented evidence that they gave Plaintiff a reasonable accommodation in the form of time paid off from the birth of his child until the expiration of his employment on April 8, 2019. (De La Vega Decl., ¶ 7, Ex. K, Ex. L.) The burden of proof now shifts to Plaintiff.

The Court finds that Plaintiff has not established the existence of a triable issue of material fact. Plaintiff contends, without citing any evidence in the record, that Defendants failed to provide Plaintiff a reasonable accommodation in the form of time off due to his wife’s pregnancy. Defendants further contend that Defendants never told him he was not eligible for parental leave or made any attempt to determine whether Plaintiff’s wife’s condition qualified as a disability under the FEHA.

Plaintiff’s contentions are not supported by the record. Plaintiff alleged in the Complaint that he took time off following the birth of his child. (Compl., ¶ 10 [“Shortly after Plaintiff took time off work for the birth of his child…”]; Id., ¶ 11 [“On or about April 8, 2019, only days after Plaintiff took time off from work for the birth of his child…”].) Plaintiff’s job ended a few days later on April 8, 2019, (Compl., ¶ 11), which is the date he was told it would end in the Staff Admission Letter, (De La Vega Decl., Ex. K.) Plaintiff also has failed to rebut Defendants’ evidence that he was given paternity pay. (De La Vega Decl., ¶ 7, Ex. L.) All Plaintiff has presented is evidence that he made an inquiry regarding paternity pay, not that he never received it. (SSF #21.) Plaintiff otherwise fails to create a triable issue of material fact for the reasons set forth above with respect to the third cause of action for failure to accommodate.

Therefore, the Court finds that no triable issue of material fact exists as to this cause of action for failing to engage in an interactive process.

(7)  Wrongful Termination in Violation of Public Policy

Plaintiff concedes that no triable issue of material facts exists as to this cause of action. (Opp. 1:17-18, fn. 1.)

Conclusion

The Court grants Defendants’ Motion for Summary Judgment.