Judge Bruce G. Iwasaki, Case Number: 22STCV19219, Date: 2024-06-14 Tentative Ruling

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

This is an employment case brought by Plaintiff Jennifer Walske (Plaintiff) against her employer, Regents of the University of California (Regents), and her former supervisors, Defendants Alfred Osborne (Osborne), Antonio Bernardo (Bernardo), and Sanjay Sood (Sood) (jointly, Defendants).

The Complaint, the operative pleading, alleges claims for: (1.) discrimination based on sex; (2.) retaliation in violation of FEHA; (3.) sexual harassment; (4.) failure to prevent discrimination, (5.) hostile work environment in violation of FEHA, (6.) retaliation in violation of Labor Code section 1102.5; (7.) retaliation in violation of Government Code Section 8547.10; (8.) intentional infliction of emotional distress and (9.) negligent infliction of emotional distress.

On a September 9, 2022 ruling on a demurrer, the Court sustained Defendant Regent’s demurrer to the ninth cause of action for negligent infliction of emotional distress.

Now, Defendants move for summary judgment, or in the alternative, summary adjudication. Plaintiff opposes the motion.

On April 18, 2024, Plaintiff dismissed the eighth cause of action for Intentional Infliction of Emotional Distress as to all Defendants. Thus, the motion for summary adjudication of this cause of action (Issues Nos. 14-17 as to Regents, Issues Nos. 23-25 as to Defendant Osborne, Nos. 30-32 as to Defendant Sood, and Issues Nos. 37-39 as to Defendant Bernardo) is moot.

Plaintiff’s objections to the declaration of Osborne is ruled as follows: Nos. 1-2, 4-6, 8-10 are overruled, No. 3(1) is sustained in part, and No. 7(1) is sustained. Plaintiff’s objections to the declaration of Sood is ruled as follows: Nos. 1-4, 9-10, 12, 14, 15 are overruled, No. 5(1) is sustained in part, No. 6(1) is sustained in part, No. 7(1) is sustained in part, No. 8(1) is sustained in part, No. 11(1) is sustained in part, No. 13(1) is sustained in part, No. 14(2)-(4) is sustained in part, and No. 16 is sustained. Plaintiff’s objections to the declaration of Bernardo is ruled as follows: Nos. 1-6 are overruled, and No. 7 is sustained.

Defendants’ objections to Plaintiff’s evidence is ruled as follows Nos. 1, 6 -7, 10-13, 17-22, 24, 26-36, 38-46, 49, 51-53, 55, 57-61, 63, 64, 68-71, 76, 82-84, 86, 90-95, 97-121 are overruled and Nos. 2, 3-5, 8-9, 14-16, 23, 25, 37, 47, 50, 54, 62, 65, 66-67, 72-75, 77-81, 85, 87-88, 96, 161 are sustained.[1]

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

Defendants move for summary judgment on the grounds that Plaintiff cannot establish all the elements of her claims and there are no triable issue of material fact in dispute.

In support of the motion for summary judgment and summary adjudication, Defendants argue Plaintiff cannot show any of the purported adverse employment actions were the result of discrimination and retaliation and it had a non-discriminatory reason for its adverse employment decisions. Defendants also argue there is no evidence to support the existence of harassment or a hostile work environment.

Defendant Regent moves for summary adjudication of the first cause of action on the grounds that Plaintiff cannot show an adverse employment action based on her sex/gender.

FEHA prohibits an employer from discriminating against any employee based on race, age, sex or other protected characteristics. (Gov. Code, § 12940, subd. (a).) To prevail on such a claim, the plaintiff must sufficiently plead and prove all elements of a discrimination cause of action: (1) that she was a member of a protected class; (2) that she was adequately performing the essential functions of her position; (3) that she suffered an adverse employment action; and (4) that the circumstances suggest a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; see also De Jung v. Superior Court (2008) 169 Cal.App.4th 533, 551 [requiring causal relationship between discriminatory animus and adverse employment action].)

“California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment,” known as the McDonnell Douglas test. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) Under the McDonnell Douglas test, “the plaintiff [first] has the burden of establishing a prima facie case of discrimination. Second, if the plaintiff meets this burden, the employer must offer a legitimate nondiscriminatory reason for the adverse employment decision. Third, and finally, the plaintiff bears the burden of proving the employer's proffered reason pretextual.” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)

“‘A defendant employer's motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings.’” (Scotch, supra, 173 Cal.App.4th at p. 1005.) To prevail on summary judgment, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment.” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247.)

Here, Defendant seeks to show both that Plaintiff cannot establish one of the prima facie elements of the FEHA claim, and there was a legitimate, nondiscriminatory reason for any adverse employment action.

In the Complaint (and opposition), Plaintiff identifies three events that she contends constitute adverse actions: (1) Defendants’ decision to appoint Delmas as Permanent Director, instead of Plaintiff; (2) the change in her course schedule and resulting reduction in salary; and (3) not renewing her appointment contract.

First, Defendant argues that – notwithstanding the allegations in the Complaint – Plaintiff has only identified one adverse employment action – the decision not to renew Plaintiff’s employment appointment contract in 2022. Defendant’s argument on this point is not well taken.

“[T]he FEHA's discrimination provision addresses only explicit changes in the ‘terms, conditions, or privileges of employment’ (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. [Citation.]” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Such official action by an employer with respect to an employee includes “hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” (Ibid.)

Here, the challenged adverse employment actions constitute – in effect – a denial of a promotion and a reduction in salary – which both meet the definition of a change to the conditions and privileges of employment.

Defendant also argues that there is no evidence showing a discriminatory animus based on sex/gender as the cause for these adverse employment decisions. In particular, Defendant notes that the only person who Plaintiff alleges perpetrated any gender bias was Defendant Osborne and the evidence pertaining to Osborne showing discriminatory animus is insufficient. (DSS 28, 29-46.)

In opposition, Plaintiff submits evidence to support the discriminatory motive. Specifically, she states that Defendant Osborne made “gendered comments to her” about the way she dressed and he engaged in an inappropriate relationship with his female subordinate – Elaine Hagan (Hagan), the Executive Director of the Price Center – that influenced his decisions in treating Plaintiff differently than her male counterparts.

Although Plaintiff makes this argument, the underlying evidence is insufficient to raise a triable issue of material fact as to discriminatory animus based on sex/gender.

First, as to the comment on Plaintiff’s clothing, the undisputed evidence is that Osborne, on a single occasion, relayed to Plaintiff that students made comments about her clothing being too expensive and that it was “tone deaf” given the social impact nature of the courses she taught. (DSS 28 [Osborne Decl., ¶ 16].) Notably, Osborne merely repeated the concerns raised by students and these concerns were not gender-specific.

Further, there is no evidence that the alleged relationship[2] between Osborne and Hagan had any gender/sex specific impact on Plaintiff. The only discriminatory animus evidence pertaining to this relationship is that Plaintiff informed Brett Trueman, a UCLA Anderson professor and faculty representative for UCLA’s Office of Equity, Diversity & Inclusion, about her “concerns that her immediate supervisor and UCLA Anderson’s then Interim Dean Osborne, made inappropriate gendered comments to her, treated male faculty differently and more favorably, and appeared to be engaged in an improper romantic relationship with a female subordinate, resulting in a hostile work environment for those female faculty and staff who were not in a relationship with him.” (PAF 1 [Walske Decl., ¶ 4].)

However, neither her report nor any other evidence shows any disparate impact based on gender that could lead to inference of discriminatory animus. That is, there no evidence at all as to how – if this relationship existed – it negatively impacted Plaintiff because of her gender.[3]

The only other evidence was Plaintiff’s comments to “Lilian Hsu as part of UCLA’s second ‘Climate Assessment’ of the faculty at UCLA Anderson—at the behest of UCLA’s Provost—focusing on, among other issues, the treatment of female faculty [wherein] [Plaintiff] described for Ms. Hsu that, among other seemingly discriminatory conduct, Osborne had made gendered comments to her in the context of personnel-related discussions and decisions, i.e., that Dr. Walske was told that she was promoted to permanent Faculty Director as she had been promised but then demoted because of the way she dresses, only to be promoted and demoted again.” (PAF 22.)

Based on the foregoing, there is no triable issue of material fact showing that any adverse employment decision by Osborne was the result of gender/sex discrimination. Thus, Plaintiff’s claim that Osborne’s gender discrimination also impacted decisions made by Defendants Bernado and Sood also fail.

There is no evidence creating a triable issue of material fact in dispute. The motion for summary adjudication of the first cause of action (Issue No. 1) is granted.

In moving for summary adjudication of the harassment and hostile work environment causes of action, the parties rely on similar arguments and evidence as the discrimination claim.

FEHA’s “prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461.) A hostile work environment sexual harassment claim requires a plaintiff employee to show: (1) he or she was subjected to unwelcome sexual advances, conduct or comments; (2) the harassment was based on sex; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279; Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 202–203.) To be a hostile work environment, it “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 787; ANA Maria Soares v. California (E.D. Cal., June 28, 2016, No. CV21600128WBSEFB) 2016 WL 3519411, at *2.)

In opposition, Plaintiff argues that her claim for hostile work environment harassment is based on sexual favoritism by a supervisor – citing Miller v. Department of Corrections (2005) 36 Cal.4th 446 – and the “gendered comment” Osborne made about Plaintiff’s designer clothing.

Generally, under California law, “a romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim under either the FEHA or the public policy of the state.” (Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1631.) Favoritism of a romantic partner “may be unfair, but it does not discriminate against women or men..., since both are disadvantaged for reasons other than their genders.” (Nielsen v. Trofholz Technologies, Inc. (E.D. Cal. 2010) 750 F.Supp.2d 1157, 1165-1166 [citing Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1630] [emphasis added].)

Our Supreme Court has explained that “an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.)

But Miller is distinguishable from the facts here. In Miller, a male corrections officer engaged in sexual relationships with three subordinate female employees. (36 Cal. 4th at 466.) He promoted these women and awarded them with job benefits, while denying advancement opportunities to the plaintiffs, who did not have sexual contact with him. (Id.) The Miller plaintiffs also observed the officer engaging in sexual activity in the workplace and claimed that he touched some of them inappropriately. (Id. at 467.)

The Miller court explained that “when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management.” (Miller, supra, 36 Cal.4th at p. 451.) The Miller court stated such a demeaning atmosphere may be actionable by both men and women. (Id. at pp. 464, 470.)

The Supreme Court later characterized the nature of the harassment in Miller as the “offensive sex-biased message that the supervisor conveyed.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 708 [emphasis in original].)

Here, Plaintiff has alleged that a rumored romantic relationship between Professor Osborne and his subordinate, Hagan—about which Plaintiff had a belief but no actual knowledge—created a hostile work environment that altered the conditions of her employment. However, Plaintiff submits no evidence of how she experienced an abusive work environment based on this alleged relationship. She offers no foundation for her belief and cites nothing more than departmental gossip. Moreover, there is no evidence that Hagan experienced special treatment at the expense of Plaintiff – that is, Hagan did not receive the title of Faculty Director, or received the teaching schedule Plaintiff wanted. Plaintiff also does not present any evidence that suggests that her male colleagues suffered any less than her or her female co-workers because of Osborne’s alleged preferential treatment of Hagan. In fact, there is no evidence of any differential treatment suffered by Plaintiff as result of Osborne’s alleged relationship with Hagan. Thus, to the extent that Plaintiff’s harassment claims are based on this theory, they are not actionable.

In fact, even in Miller, the court noted that the plaintiffs had viable claims because they “alleged far more than that a supervisor engaged in an isolated workplace sexual affair and accorded special benefits to a sexual partner. They proffered evidence demonstrating the effect of widespread favoritism on the work environment, namely the creation of an atmosphere that was demeaning to women.” (Miller, supra, 36 Cal.4th at p. 470.)

No evidence, including Plaintiff's own declaration, suggests that she was subjected to a hostile work environment caused by sexual favoritism in the workplace.

Finally, Osborne’s comment on Plaintiff’s clothing alone are insufficient to create a hostile work environment. That is, Osborne’s alleged comment about Plaintiff’s clothes was neither severe nor pervasive conduct. Osborne made a single comment about Plaintiff’s clothes to Plaintiff around March 2019, noting that students had complained to Osborne that Plaintiff’s expensive clothes were “tone deaf” because she was teaching courses on benefitting underserved communities. (Osborne Dec. ¶ 16.) Even if Osborne should not have relayed these comments and this comment could be treated as gender based, the comment was not severe enough alone to create a hostile environment. (Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 364, 283.) In fact, as the Court noted above, even Plaintiff’s characterization of this comment as a “gendered comment” is questionable.

The motion for summary adjudication of the third cause of action for harassment (Issue 4) and the fifth cause of action for hostile work environment (Issue No. 7) is granted as to Regents. The motion for summary adjudication of these causes of action (Issue No. 18-19.) are also granted as to Defendant Osborne for the same reasons.[4]

Plaintiff alleges three separate retaliation causes of action – (1) retaliation pursuant to FEHA; (2) retaliation pursuant to Labor Code section 1102.5; and (3) retaliation pursuant to Government Code section 8547.10.

Government Code Section 12940, subdivision (h) “makes it an unlawful employment practice for an employer ‘to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ ” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1035 (Yanowitz).) Likewise, an employer may be liable for its failure to prevent unlawful retaliation. (Gov. Code, § 12940, subd. (k).)

FEHA discrimination and retaliation claims continue to adhere to the McDonnell Douglas “three-stage burden-shifting test.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Department of Corrections & Rehabilitation v. State Personnel Bd. (2022) 74 Cal.App.5th 908, 924.)

“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. The employer's mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor. Thus, citing 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.’ ” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [italics omitted].)

“Generally in cases involving affirmative adverse employment actions, pretext may be demonstrated by showing ‘ “the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594.) “ ‘ “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case . . ..” ’ ” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309.)

Labor Code section 1102.5 provides that “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.” (Labor Code, § 1102.5, subd. (b).)

To establish a prima facie case of retaliation under section 1102.5(b), a plaintiff “ ‘must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.’ ” (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.) An employee engages in protected activity under section 1102.5, subdivision (b), when he or she discloses to a governmental agency or employer reasonably based suspicion of illegal activity. (McVeigh, supra, at p. 469; Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 821-822 [Section 1102.5(b) “requires that to come within its provisions, the activity disclosed by an employee must violate a federal or state law, rule or regulation. [Citation.]”].)

Labor Code section 1102.6 provides the framework for evaluating a claim of whistleblower retaliation under section 1102.5: “Once an employee-whistleblower establishes by a preponderance of the evidence that retaliation was a contributing factor in the employee’s termination, demotion, or other adverse action, the employer the bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action ‘for legitimate, independent reasons.’” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 707.) Thus, unlike the FEHA claim, “[u]nder section 1102.6, 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 p. 716.)

“In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power 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 protected disclosures or refused an illegal order.”

The “language in Government Code section 8547.10 mirrors the language of Labor Code section 1102.6, which states that ‘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 alleged prohibited action against the employee, 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.’ ” (Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 915-916.)

For a Labor Code section 1102.5 whistleblower claim and a claim under Government Code section 8547.10, a plaintiff must show by a preponderance of the evidence that: (1) plaintiff complained about activities that she reasonably believed violated a state or federal statute, rule, or regulation; (2) she suffered a contested employment action; and (3) her complaint was a contributing factor in the contested employment action. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718; Lab. Code, §§ 1102.5, 1102.6; Gov. Code, § 8547.10, subd. (e).)

Relevant to the retaliation claims, in early April 2019, Plaintiff met with Brett Trueman (Trueman), a UCLA Anderson professor and faculty representative for UCLA’s Office of Equity, Diversity & Inclusion, to discuss with him her gender discrimination concerns regarding Defendant Osborne. (PAF 1.) On June 19, 2019, Defendant Osborne learned of Plaintiff’ gender discrimination complaint against him. (PAF 30.)

Further, on August 15, 2019 Lillian Hsu advised Plaintiff that she “reported the incident [Plaintiff] described involving [Defendant] Osborne to the Title IX Office.” (PAF 26.) On August 24, 2019, Plaintiff informed Defendant Bernardo of her Title IX complaint against Defendant Osborne. (PAF 27.)

Then, on August 28, 2019, Defendant Bernardo made the decision not to appoint Plaintiff as the permanent Faculty Director by specifically informing Plaintiff that he had selected someone else as Faculty Director for Impact@Anderson. (PSS 6.)

Further, Bernardo sought and received input from several individuals in making this decision. (PAF 8-23.) This input is the basis for Plaintiff’s “cat’s paw” theory, where she attempts to establish the element of causation by showing that any of the persons involved in bringing about the adverse action held the requisite animus, provided that such person’s animus operated as a ‘but-for’ cause, i.e., a force without with the adverse action would not have happened.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App.4th 95, 108.) Specifically, she argues that Professor Osborne’s retaliatory animus can be imputed onto Dean Bernando.

Here, Plaintiff submits evidence that, in April 2019, Professor Osborne learned of Plaintiff’s report of gender discrimination and hostile work environment brought against him to Brett Trueman, a UCLA Anderson professor and faculty representative for UCLA’s Office of Equity, Diversity & Inclusion. Less than a month later, on May 17, 2019, Professor Osborne provided a less than positive review of Plaintiff’s performance as Interim Faculty Director to be used in connection with her Fourth Year Appraisal, which—according to UCLA Anderson—was “a necessary precursor to a promotion to Adjunct Associate Professor.” (PAF 7-16.) This, in turn, caused Plaintiff’s Fourth Year Appraisal to change from “favorable” to “favorable with reservations.” (PSS 8 [Ex. 46].) Specifically, Professor Osborne provided a “secret review” to the Faculty Evaluation Committee (FEC) less than a month after he and Hagan were advised by Professor Trueman of Plaintiff’s complaints about them both. (PSS 8.)

Here, Plaintiff’s protected activity are her complaints involving gender discrimination. Although the Court found she has not shown gender discrimination, the claims do not require actual illegal activity – only that Plaintiff had a reasonable belief that their employer was engaged in the illegal activity to qualify for protection under either statute. (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 731; Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 719.) Retaliation for her good faith discrimination claim is sufficient.

Further, the purported retaliatory acts occurred after the protected activity, as required by law. (Kourounian v. California Dept. of Tax & Fee Administration (2023) 91 Cal.App.5th 1100, 1113-14.)

Plaintiff Walske’s evidence is insufficient to raise a triable issue of material fact in dispute with respect to the retaliation claims.

The proximity in time between the protected activity and the adverse employment action is sufficient to raise an inference of a causal link between these two events to make a prima facie showing. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69 [“ ‘The causal link may be established by an inference derived from circumstantial evidence, “such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” ’ ”].)

However, to rely solely on temporal proximity to establish a prima facie case, the proximity must be “ ‘very close.’ ” (Zirpel v. Alki David Productions, Inc. (2023) 93 Cal.App.5th 563, 578; see e.g. Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110, fn. 6 [nine months does not qualify as a “ ‘relatively short time’ ”].) Moreover, it is well established that, while evidence of temporal proximity is relevant as to pretext, it is not sufficient to raise a triable issue of fact. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353 [“But 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.”]; see Chen v. County of Orange (2002) 96 Cal.App.4th 926, 931 [“Mere sequence is not enough—that would be the classic logical fallacy of ‘post hoc ergo propter hoc’ (after the fact, therefore because of the fact.”].)

In the face of the legitimate non-retaliatory reason for the adverse employment action, Plaintiff has failed to raise a triable issue of material fact as to these retaliation claims as to Bernardo and Osborne.

As to Osborne, he had legitimate, non-retaliatory business reasons for his decision not to allow Plaintiff to remove “interim” from her title. First, the then-Permanent Director was still employed by Defendant. (DSS 3 [Osborne Dec. ¶ 6, Exs. 24, 27].) Second, Osborne, who was then serving as Interim Dean while the search for new dean was underway, wanted the new permanent Dean to select the new Permanent Director. (DSS 27 [Osborne Dec. ¶¶ 8, 10].)

With respect to Bernardo, he appointed Delmas as Faculty Director over Walske because Delmas, also female, had more experience in the field, had been at Anderson longer, and because he considered her a superior candidate. (DSS 34.)

On September 15, 2019, Plaintiff contacted the Office of the President (UCOP) regarding a whistleblower complaint. (PAF 23.) However, due to “long gaps in communication”, Plaintiff did not file a whistleblower retaliation complaint until May 4, 2020, alleging retaliation for reporting Osborne’s alleged relationship with Hagan. On June 24, 2020, Plaintiff signed and returned her contract for the 2020/2021 academic year. (DSS 23; PSS 23; PAF 31.) In August 2020, Osborne learned of Plaintiff’s Title IX. (DSS 66; PSS 66.)

On October 8, 2020, Defendant Sood, Faculty Chairman, announced to the members of the Investment Committee, including Plaintiff, that he would like to nominate Professor Osborne to serve on the committee. (PAF 32.) Plaintiff responded to Professor Sood, saying “I don’t feel comfortable having [Professor Osborne] join the [Investment Committee] at this time, given the ongoing Title IX investigation. This seems to have come out of nowhere as it hasn’t previously been discussed.” (PAF 33.)

On May 24, 2021, the Title IX office issued its report of the investigation of Plaintiff’s complaints about Professor Osborne. (PAF 41.) On June 10, 2021, Patty Gonzalez Johnson, Senior Manager of Academic Services & Operation, emailed Professor Sood, stating, “I just wanted to circle back on Jennifer Walske because I recall sometime back you had asked for us to hold-off moving anything. Please let me know if I can proceed with scheduling her courses and moving her winter course to Fall.” (PAF 42.) On June 11, 2021, Professor Sood responded to Ms. Johnson, stating, “I’m still working on this so let’s hold off for now.” (PAF 43.) As of June 18, 2021, Professor Sood had a draft contract for Plaintiff’s for 2021-2022 academic year: 100% Fall and Winter, 56.25% Spring, Total compensation: $159,729.12. (PAF 47.)

Then, on June 23, 2021, Mohammed Cato, Title IX Director, advised Defendant Sood that the Title XI investigation determined “there was INSUFFICIENT EVIDENCE to find Dr. Osborne responsible for a violation of the Non Discrimination Policy, APM 015 and APM 035.” (PAF 55.) Less than a month later, on July 20, 2021, Plaintiff received her contract for the 2021-2022 academic year, reflecting a 50% reduction in pay and reduced course load: 50% Fall, 56.25% Winter, 50% Spring, Total compensation: $97,395.84. (PAF 63.) On September 9, 2021, Defendant issued yet another proposed contract for Plaintiff for the 2021-2022 academic year, which further reduced her course load and pay: 50% Fall, 25% Winter, 50% Spring, Total compensation: $77,916.68. (PAF 74.)

Although the timeline of events is somewhat convoluted, there is arguably some temporal proximity between Plaintiff’s protected activity and the adverse employment actions. However, the temporal proximity evidence is seriously undermined by the fact that that Defendant’s first renewal of her appointment, issued on November 8, 2019 (after her alleged protected disclosures), included more opportunities to teach with a significant overload compensation. (DSS 36 [Sood Decl., ¶ 10, Ex. 11].) Further, Plaintiff requested to reduce her courseload multiple times and her schedule and compensation were adjusted accordingly. (DSS 37 [Sood Decl., ¶¶ 11-12, Exs. 12-15].) In fact, one course she was scheduled to teach was cancelled due to low student enrollment. (DSS 39-40 [Sood Decl., ¶ 13, Ex. 16].)

In AY 2020-2021, Plaintiff’s courseload was reduced because she received poor student evaluations, was not teaching in the manner directed, and because she refused to teach at all in Fall 2021 and Winter 2022. (DSS 41 [Sood Dec. ¶¶ 16-18, Ex. 26].) Plaintiff’s refusal to teach led to Sood’s decision to not renew her appointment. (DSS 46 [Sood Decl., ¶ 20].)

Again, the temporal proximity from the conclusion of certain protected activity and the adverse action is weak; even assuming it is sufficient to raise an inference of causal connection between the two events, it is insufficient to overcome the clear and convincing evidence of legitimate, non-retaliatory reasons for the adverse action.

The motion for summary adjudication of the second, sixth and seventh causes of action is granted.

Based on the Court’s ruling to summarily adjudicate the causes of action for discrimination and retaliation, the cause of action for failure to prevent discrimination must also fail. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 [“Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.”].)

Therefore, the motion or summary adjudication of the fourth cause of action (Issue No. 5) is granted.

The motion for summary adjudication of the issue of punitive damages has been rendered moot based on the Court’s ruling to grant summary adjudication as to all underlying causes of action.

[1] Objections to certain exhibits were overruled on hearsay grounds where it was unclear that the exhibit was being used for the truth of the matter contained therein.

[2] There is not even admissible evidence that such a relationship even existed. “[S]peculation is not evidence.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 289.) Thus, this evidence does not raise a triable issue of material fact. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 415 [“‘[R]esponsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.’ ”].)

[3] To the extent Plaintiff relies on her sexual favoritism theory of discrimination arising from Miller v. Department of Corrections (2005) 36 Cal.4th 446, the Court addresses this theory below.

[4] The sexual harassment claims are asserted only against Defendants Regents and Osborne, and not against Defendants Sood or Bernardo.