Judge: Curtis A. Kin, Case: 21STCV26623, Date: 2023-05-02 Tentative Ruling
Case Number: 21STCV26623 Hearing Date: May 2, 2023 Dept: 72
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
FOR SUMMARY ADJUDICATION
Date: 5/2/23
(9:30 AM)
Case: Gloria Haro v. City of Bell
Gardens et al. (21STCV26623)
TENTATIVE
RULING:
Defendants City of Bell Gardens and William Koholokula’s
Motion for Summary Judgment or, in the Alternative, for Summary Adjudication of
Issues is GRANTED IN PART.
Defendants’ requests for judicial notice are GRANTED. (Ordlock
v. Franchise Tax Bd. (2006) 38 Cal.4th 897, 912, fn. 8 [taking judicial
notice of records of administrative agency pursuant to Evidence Code § 452(c)].)
Defendants’ evidentiary objections are OVERRULED.
ISSUE NO. 1: Whether The Third Cause of Action For
Sexual Harassment In Violation of the FEHA Is Time-Barred Because No Actionable
Conduct Took Place Within the Statutory FEHA Limitations Period. (UMF 1-14)
Defendants City of Bell Gardens (“City”) and William
Koholokula maintain that, with respect to the third cause of action for sexual
harassment, no actionable conduct took place within the statutory limitations
period.
The statute of limitations to file a complaint with the
Department of Fair Employment and Housing (“DFEH”) changed from one year to
three years as of January 1, 2020. (Cf. Former Gov. Code § 12960(d),
Stats. 2017, ch. 799, § 13; Gov. Code, § 12960(e)(5).) Accordingly, for conduct
occurring before January 1, 2020, plaintiff Gloria Haro had one year to file
the DFEH complaint. For conduct occurring January 1, 2020 and after, plaintiff
had three years to file the DFEH complaint.
Plaintiff previously filed a DFEH Complaint on June 16, 2017,
but she did not file a complaint within one year of receiving the right-to-sue
letter, as required by Government Code § 12965(c)(1)(C). (UMF 1, 2.)
Plaintiff filed a second DFEH complaint on July 20, 2020. (UMF 3.) Based on the
filing date for the second DFEH complaint and the applicable statute of
limitation set forth above, any conduct occurring from July 20, 2019 (i.e.,
one year before, using the strictest statute of limitations possible) to July
20, 2020 (i.e., the date of filing of the DFEH complaint) is indisputably
actionable.
With respect to the third cause of action for sexual
harassment, defendants admit that, in November 2019, defendant William Koholokula
leaned into plaintiff from behind her, put his hand on her shoulder, and
whispered in her ear. (UMF 11.) On April 4, 2020, Koholokula exposed and rubbed
his chest and stomach in plaintiff’s presence. (UMF 12, 13.) These actions,
which occurred between July 20, 2019 and July 20, 2020, are sufficiently severe
and pervasive to establish a triable issue concerning the sexual harassment
cause of action. Even if these instances were five months apart, “[a] single
incident of harassing conduct is sufficient to create a triable issue regarding
the existence of a hostile work environment if the harassing conduct has
unreasonably interfered with the plaintiff’s work performance or created an
intimidating, hostile, or offensive working environment.” (Gov. Code §
12923(b).) “Harassment cases are rarely appropriate for disposition on summary
judgment.” (Id. § 12923(e).)
To the extent certain actions by Koholokula occurred outside
of any claimed limitations period (UMF 7-10), plaintiff sufficiently
demonstrates a triable issue concerning the application of the continuing
violations doctrine. Under the continuing violation doctrine, “an employer is
liable for actions that take place outside the limitations period if these
actions are sufficiently linked to unlawful conduct that occurred within the
limitations period.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1056.) A continuing violation occurs where the “employer’s unlawful
actions are (1) sufficiently similar in kind…; (2) have occurred with
reasonable frequency; (3) and have not acquired a degree of permanence.” (See
Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)
Koholokula’s alleged comments concerning his haircut in
three places in 2015 or 2017 (UMF 7), the ability of plaintiff and her mother
to watch pornography on the iPad in 2010 or 2011 (UMF 8), and asking whether
there was “something there” while pointing at plaintiff’s breasts in 2015 or
2016 (UMF 10) are sufficiently similar in kind to the incidents occurring in
November 2019 and April 2020 and reasonably frequent, as a reasonable juror
could find that all five incidents were based on plaintiff’s sex or gender. (See
Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 202 [citing
elements of sexual harassment cause of action].) With respect to a degree of
permanence, a reasonable juror could credit plaintiff’s averment that she
complained many times believing that the City would resolve the matter
informally. (PAMF 8, 23; Richards, 26 Cal.4th at 823 [“permanence” means
that “an employer's statements and actions make clear to a reasonable employee
that any further efforts at informal conciliation to obtain reasonable
accommodation or end harassment will be futile”].)
The motion as to Issue No. 1 is DENIED.
ISSUE NO. 2: Whether The Fourth Cause of Action for
Discrimination Based on Sex in Violation of the FEHA is Barred Because
Plaintiff Lacks Evidence of Discrimination Based on Sex. (UMF 15)
Defendants contend that plaintiff has no evidence that she
was treated differently in the terms and conditions of her employment because
of her sex or gender. (Pollock v. Tri-Modal Distribution Services, Inc.
(2021) 11 Cal.5th 918, 931 [discrimination addresses official action taken by
the employer].)
When hostility is pervasive, it can effectively change the
conditions of employment. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
710.) In addition to the instances discussed with respect to the sexual
harassment action, plaintiff also presents evidence that Koholokula reviewed
plaintiff’s performance for a period of seven years, which was abnormal (Haro
Decl. ¶¶ 12, 13 & Ex. 2 [review period from 5/1/09 to 3/2/17]), and that
plaintiff was given negative performance reviews in August 2017, placed on a
Performance Improvement Plan in 2018, and written up in 2020 for complaining
about the cleanliness of the bathroom. (Resp. to UMF 15.) In their totality,
along with his sexual comments, a reasonable juror could find that Koholokula’s
continual reprimands of plaintiff created a pervasive atmosphere of hostility
against plaintiff that discriminated against her based on plaintiff’s sex or
gender.
The motion as to Issue No. 2 is DENIED.
ISSUE NO. 3: Whether The First Cause of Action For
Discrimination Based on Age in Violation of the FEHA is Barred Because
Plaintiff Lacks Evidence of Any Discrimination Based on Her Age. (UMF 16)
Defendants contend that plaintiff has no evidence that any
adverse treatment was because of her age.
Selene Olivares, an Account Technician over the age of 40,
declares that both she and plaintiff were questioned by their supervisor Koholokula
about their time-off requests, whereas younger employees were not questioned.
(Olivares Decl. ¶¶ 2, 5, 7.) Haro also declares that Koholokula made comments
to plaintiff that he would like to see plaintiff retire in 2017 and 2019, and
on May 7, 2020. (Haro Decl. ¶ 29.) Based on these averments in combination with
Koholokula’s reprimands of plaintiff, discussed above, a reasonable juror could
find that Koholokula created a continuing and pervasive atmosphere of hostility
against plaintiff that was based on plaintiff’s age. Interpreting the evidence
in the light most favorable to plaintiff, as the Court must do on summary
judgment, a reasonable juror could find that Koholokula had a discriminatory
motive based on plaintiff’s age. A reasonable juror could also find that
Koholokula’s reprimands of plaintiff, both outside and within the FEHA
limitations period, were motivated based on plaintiff’s age, thereby creating a
triable issue concerning the applicability of the continuing violations
doctrine.
The motion as to Issue No. 3 is DENIED.
ISSUE NO. 4: Whether The Second Cause of Action for
Harassment Based on Age in Violation of the FEHA is Barred Because Plaintiff
Lacks Evidence of Any Harassment Based on Her Age. (UMF 17)
As discussed with respect to Issue No. 3, plaintiff
demonstrates that Koholokula made comments about wanting to see her retire,
both within and outside the limitations period, discussed in Issue No. 1. A
reasonable juror could find that these are continuing violations, that Koholokula
made such comments because of plaintiff’s age, and that such comments were
hostile and offensive. (See CACI 2521A(2), (4).)
The motion as to Issue No. 4 is DENIED.
ISSUE NO. 5: Whether The Fifth Cause of Action for
Discrimination Based on Disability in Violation of the FEHA is Barred Because
Plaintiff Lacks Evidence of Discrimination Based On A Disability. (UMF 18-20)
Defendants contend that plaintiff cannot identify any act of
discrimination based on disability within the FEHA limitations period. However,
plaintiff declares that she took medical leave due to a mental breakdown in
2017. (Haro Decl. ¶ 21.) When plaintiff returned in 2018, Koholokula increased
her workload, wrote her up, sent her after-hours text messages, and put her on
a Performance Improvement Plan. (Haro Decl. ¶ 21.) Based on this averment, a
reasonable juror could find that Koholokula discriminated against her based on
disability and that adverse events occurring within the FEHA limitations period
were a continuation of such discrimination.
The motion as to Issue No. 5 is DENIED.
ISSUE NO. 6: Whether The First, Fourth, Fifth and
Sixth Causes of Action Based on Discrimination and Retaliation Under the FEHA
Are Barred Because Plaintiff Lacks Evidence She Was Subject To Any Adverse
Employment Action Within The Statutory FEHA Limitations Period. (UMF 21-26)
Defendants contend that plaintiff lacks evidence she was
subject to any adverse employment action. For the reasons discussed with
respect to Issue Nos. 2, 3, and 5, plaintiff presents evidence that Koholokula
may have had an animus against plaintiff based on sex, age, or disability. Plaintiff
also demonstrates that Koholokula’s reprimands against her, both occurring
within and outside the limitations period, constituted continual pervasive
hostility and may have been due to plaintiff’s sex, age, or disability. (Yanowitz
v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052 [“an adverse employment
action must materially affect the terms, conditions, or privileges of
employment”]; Roby, 47 Cal.4th at 710 [pervasive hostility
constitutes change in conditions of employment].) Plaintiff thus demonstrates a
triable issue concerning whether she was subject to adverse employment actions.
The motion as to Issue No. 6 is DENIED.
ISSUE NO. 7: Whether
The Seventh Cause of Action For Whistleblower Retaliation Under Labor Code
Section 1102.5 Is Barred For Failure to Exhaust Administrative Remedies. (UMF
27)
Defendants contend
that plaintiff did not file a government tort claim, as required by Government
Code § 911.2(a). “[F]ailure to timely present a claim for money or damages to a
public entity bars a plaintiff from filing a lawsuit against that entity.” (State
of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)
Plaintiff concedes
she did not file the required government tort claim. (Resp. to UMF 27; Opp. at
1:18-20 [“Plaintiff will not oppose the summary adjudication as to her seventh
cause Action for whistleblower retaliation Labor Code Section 1102.5 based in
the exhaustion of administrative remedies argument”].)
The motion for Issue
No. 7 is GRANTED.
ISSUE
NO. 8: Whether The Seventh Cause of Action For Whistleblower Retaliation Under
Labor Code Section 1102.5 Is Barred Because Plaintiff Lacks Evidence She
Engaged in Protected Activities Under The Statute. (UMF 28-29)
Based on plaintiff’s concession of Issue No. 7, the motion
as to Issue No. 8 is DENIED as MOOT.
For the foregoing reasons, defendants’ Motion for Summary
Adjudication is GRANTED as to the seventh cause of action for Whistleblower
Relation in violation of Labor Code Section 1102.5 and is otherwise DENIED.