Judge Daniel M. Crowley, Case Number: 23STCV05678, Date: 2023-07-20 Tentative Ruling

Defendant United Brotherhood of Carpenters and Joiners of America’s demurrer to the complaint of Plaintiff Joshua Baum a/k/a Shoshana Baum is sustained with 20 days leave to amend.

Defendant United Brotherhood of Carpenters and Joiners of America (“UBC”) (“Defendant”) demurs to the 1st (gender discrimination in violation of the Gov. Code §§12940 et seq.), 2nd (gender harassment in violation of Gov. Code §§12940 et seq.), 3rd (wrongful termination in violation of public policy), 4th (negligent supervision, hiring, and retention), 5th (failure to take all reasonable steps to prevent harassment and discrimination in violation of §§12940(j)(1), (k)), and 6th (intentional infliction of emotional distress) causes of action in the complaint (“Complaint”) of Plaintiff Joshua Baum a/k/a Shoshana Baum (“Baum”) (“Plaintiff”). (Demurrer, pg. 4.)

Plaintiff filed her[1] operative Complaint on March 3, 2023, against Defendants UBC and Non-moving Defendant Southwest Regional Council of Carpenters (“SRCC”) (collectively, “Defendants”). UBC filed the instant demurrer on April 21, 2023. Plaintiff filed her opposition on July 7, 2023. UBC filed its reply on July 13, 2023.

UBC’s 7/13/23 request for judicial notice (1) that Exhibit A was filed by or on behalf of UBC and that it is the latest LM-2 filed by or on behalf of UBC for the period from 01/01/2022 to 12/31/2022; (2) Section 12 of Exhibit A does not list “Joshua Baum” or “Shoshana Baum” as an employee for the relevant time period; (3) that Exhibit B was filed by or on behalf of Defendant Southwest Mountain States Regional Council of Carpenters (“The Council”) and is comprised of the latest LM-2’s filed by or on behalf of the SWMSRC, for the time periods of 04/01/2021 to 03/31/2022 and 04/01/2022 to 06/30/2022; and (4) Section 12 of Exhibit B lists “Joshua Baum” or “Shoshana Baum” as an employee for the relevant time period, is granted. (Decl. of Obeid, Exhs. A, B.)

Plaintiff alleges SRCC is a large and politically powerful labor union based in Los Angeles. (Complaint ¶19.) Plaintiff alleges on or about March 25, 2022, Defendants hired Plaintiff as a Research Analyst in Defendants’ Downtown Los Angeles office. (Complaint ¶20.) Plaintiff alleges she worked in the Contract Administration Department, which was responsible for performing Defendants’ core functions. (Complaint ¶20.) Plaintiff alleges her direct supervisor was Steve Araiza (“Araiza”), Defendants’ Director of Contract Administration. (Complaint ¶20.) Plaintiff alleges at the time of her hire and during the early months of her employment with Defendants, she presented as a cisgender male. (Complaint ¶21.) Plaintiff alleges to her knowledge, all her co-workers in Defendants’ Contract Administration Department were cisgender heterosexual. (Complaint ¶21.)

Plaintiff alleges throughout her employment, she worked diligently and tirelessly for Defendants and was passionate about the organization’s mission and proud of its achievements. (Complaint ¶22.) Plaintiff alleges she was praised for the quality of her work and enjoyed a warm working relationship with her colleagues. (Complaint ¶22.)

Plaintiff alleges everything changed when she began visibly presenting as genderqueer and gender nonconforming. (Complaint ¶23.) Plaintiff alleges on Monday, June 6, 2022, she arrived at Defendants’ workplace with a professional manicure with red nail polish from the West Hollywood Pride weekend. (Complaint ¶23.) Plaintiff alleges she also put up a LGBTQ flag at her desk, which remained there visible for the duration of her employment. (Complaint ¶23.) Plaintiff alleges she spoke openly with her colleagues that she lived in West Hollywood, had attended West Hollywood Pride events, and was passionate about LGBTQ issues. (Complaint ¶24.) Plaintiff alleges she thought she would be safe to live authentically at an employer that claimed to stand for worker’s rights and progressive values, and that she was wrong. (Complaint ¶25.)

Plaintiff alleges shortly thereafter, her workload was significantly reduced. (Complaint ¶26.) Plaintiff alleges she did not receive any new assignments for over a month and stopped receiving any new training or feedback on her work. (Complaint ¶26.) Plaintiff alleges she was also informed, abruptly, that, moving forward, she was required to communicate exclusively with Kaycee Diaz (“Diaz”), a project manager with Defendants, and not to communicate with Araiza anymore. (Complaint ¶26.) Plaintiff alleges not communicating with her supervisor directly made it more difficult for her to perform her job. (Complaint ¶26.)

Plaintiff alleges in or about December 2022, she proudly changed her pronouns in her work email signature to “They/Them,” which communicates that she is gender nonconforming. (Complaint ¶27.) Plaintiff alleges all work emails that she sent thereafter included these pronouns. (Complaint ¶27.) Plaintiff alleges she also began presenting more visibly genderqueer and transfeminine, including wearing makeup, colorful gel nail polish, and women’s tops and shoes. (Complaint ¶28.) Plaintiff alleges she also grew out her hair, styled her hair in a commonly feminine style, and pierced her ears. (Complaint ¶28.) Plaintiff alleges as she presented more visibly transfeminine, she experienced a harsh and unwelcoming reaction from her co-workers and supervisors, including Araiza. (Complaint ¶29.) Plaintiff alleges she felt isolated and humiliated when Araiza would completely ignore her around the office and would refuse to acknowledge or respond to virtually every work email that she sent him. (Complaint ¶29.) Plaintiff alleges Araiza also suddenly began excluding her from meetings that involved planning and other areas of Plaintiff’s focus. (Complaint ¶29.)

Plaintiff alleges Araiza also began ignoring her requests to attend work or community events on behalf of Defendants but invited and welcomed cisgender employees to attend events on behalf of Defendants. (Complaint ¶30.) Plaintiff alleges earlier in her employment before Defendants learned about her gender identity, Plaintiff was routinely invited and welcomed to attend events on behalf of Defendants. (Complaint ¶30.)

Plaintiff alleges other co-workers would whisper and laugh around her, put on headphones or put their heads down to ignore speaking with her at the office, intentionally misgender her, and close office doors when she was near. (Complaint ¶31.) Plaintiff alleges Araiza and Diaz also began singling out Plaintiff for unreasonable work assignments and baseless and unfair criticism. (Complaint ¶32.) Plaintiff alleges she complained to Araiza and Diaz that she felt she was being isolated and treated unfairly. (Complaint ¶33.)

Plaintiff alleges on Valentine’s Day, February 14, 2023, she proudly arrived to work with a more obviously feminine-appearing appearance, including combing her hair in a more feminine style and wearing makeup, women’s clothes, and dark red gel nail polish. (Complaint ¶34.) Plaintiff alleges when she arrived at a training session in the conference room with her colleagues, Diaz abruptly kicked her out of the meeting and locked the door behind her. (Complaint ¶35.) Plaintiff alleges she felt shocked, humiliated, and dehumanized. (Complaint ¶35.)

Plaintiff alleges she increasingly shared her gender identity with friends and colleagues at work, including how much LGBTQ rights matter to her. (Complaint ¶36.) Plaintiff alleges she shared with a few colleagues and friends that she was LGBTQ and was planning to “come out” publicly and undergo electrolysis and other gender-affirming care. (Complaint ¶36.) Plaintiff alleges none of her colleagues in the Contract Administration Department expressed any support or warmth about her gender identity. (Complaint ¶36.)

Plaintiff alleges three days later, on February 17, 2023, she arrived to work to find a pink woman’s SRCC jacket at her desk. (Complaint ¶37.) Plaintiff alleges she felt that she was being mocked and singled out. (Complaint ¶37.) Plaintiff alleges later that morning, without any warning or justification, Araiza terminated her employment. (Complaint ¶38.) Plaintiff alleges despite the fact she never once received a negative evaluation, write-up, discipline, or performance improvement plan of any kind throughout her entire employment, Araiza claimed she was fired because of her “lack of skills.” (Complaint ¶38.)

“California has adopted the three-stage burden-shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. ‘This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.’” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307, internal citations omitted.)

“At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled. While the plaintiff’s prima facie burden is ‘not onerous’, he must at least show ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion.’” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355, internal citations omitted.)

“If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. This presumption, though ‘rebuttable,’ is ‘legally mandatory.’ Thus, in a trial, ‘[i]f the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.’ [¶] Accordingly, at this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [¶] If the employer sustains this burden, the presumption of discrimination disappears. The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Id. at pgs. 355-356, internal citations omitted.)

UBC argues Plaintiff’s Complaint fails to allege facts describing the relationship between UBC and SRCC, per Carbon Fuel Co. v. United Mine Workers (1979) 444 U.S. 212, 218. (Demurrer, pg. 1, citing Moore v. Local Union 569 of International Brotherhood of Electrical Workers (9th Cir. 1993) 989 F.2d 1534, 1543.) The question decided in Carbon Fuel was whether an international union, which neither instigates, supports, ratifies, nor encourages ‘wildcat’ strikes engaged in by local unions in violation of a collective-bargaining agreement, may be held liable in damages to an affected employer if the union did not use all reasonable means available to it to prevent the strikes or bring about their termination. (Carbon Fuel Co., 444 U.S. at pg. 213.) The U.S. Supreme Court applied the common-law agency test and common-law doctrine of respondeat superior to determine that to hold an international union liable for the acts of a local union, a Plaintiff must present evidence that the International Union “instigated, supported, ratified, or encouraged” the acts of the local. (Id. at pg. 218.)

California has yet to address the issue of whether Carbon Fuel applies to employment discrimination claims. “Because . . . FEHA . . . has the same nature and purpose as the federal law, California courts frequently look to federal case law for guidance in interpreting the FEHA.” (Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 737, citing Mixon v. Fair Employment & Housing Commission (1987) 192 Cal.App.3d 1306, 1316-1317.) Accordingly, the Court looks to federal cases for guidance on application of Carbon Fuel to FEHA discrimination cases.

In Moore v. Local Union 569 of International Brotherhood of Electrical Workers, (9th Cir. 1993) 989 F.2d 1534, the Ninth Circuit adopted Carbon Fuel’s test of an agency relationship between an international union and its local chapter. (Id. at pg. 1543.) While there are no cases on point in Federal Courts in California pertaining to FEHA, federal courts outside California have applied Carbon Fuel to similar claims. (See Miller v. United Brotherhood of Carpenters and Joiners of America (E.D. Mo., Sept. 30, 2021, No. 4:20-CV-00175-SEP) 2021 WL 4527453 [applying Carbon Fuel to age discrimination claim]; Kendel v. Local 17A United Food & Commercial Workers (N.D. Ohio 2010) 748 F. Supp. 2d 732 [applying Carbon Fuel to sexual harassment claim].)

Here, Plaintiff’s Complaint fails to allege the relationship between UBC and SRCC and fails to allege UBC “instigated, supported or ratified” the conduct of SRCC. (See Complaint ¶¶5-10; Miller, 2021 WL 4527453, at *3 [“Here, Plaintiff has not alleged that UBC actually exercised any of the reserved powers granted to it by the UBC constitution. Further, Plaintiff points to the fact that UBC is responsible for ensuring compliance with its constitution and bylaws. Even if that is true in theory, Plaintiff has not alleged that UBC actually exercised that authority.”]; Kendel, 748 F.Supp.2d at pg. 743 [finding Plaintiff’s evidence of International Union’s actual control over local union insufficient to constitute agency relationship].)

UBC asks this Court to sustain its demurrer without leave to amend based on the argument that Plaintiff cannot make a viable claim that she was an employee of UBC. (Reply, pgs. 5-7.) UBC argues case law prevents Plaintiff from alleging UBC and SRCC are the same legal entity. (United Brotherhood of Carpenters & Joiners of America v. Operative Plasterers’ & Cement Masons’ International Association of the United States (D.C Cir. 2013) 721 F.3d 678, 684 [stating UBC SRCC “two unions”].) However, such a legal basis does not foreclose Plaintiff from amending her pleading to allege additional facts that could meet the pleading standard necessitated by Carbon Fuel, while avoiding a legally erroneous allegation that UBC and SRCC are one entity.

Based on the foregoing, Defendant’s demurrer to the 1st cause of action is sustained with 20 days leave to amend.

Gender Harassment in Violation of FEHA; Wrongful Termination in Violation of Public Policy; Negligent Supervision, Hiring, and Retention; Failure to Prevent Harassment, Discrimination, and Retaliation; & Intentional Infliction of Emotional Distress (“IIED”) (2nd, 3rd, 4th, 5th, and 6th COAs)

UBC presents the same arguments in support of its demurrer to Plaintiff’s remaining causes of action, which also apply in the context of the allegations in the other causes of action, such as IIED. (See Baird v. Holway (D.C.D.C. 2008) 539 F. Supp. 2d 79, 94 [dismissing several torts claims alleged against parent entity for lack of showing of agency between it and subordinate labor organization].)

Accordingly, Defendant’s demurrer to the 2nd, 3rd, 4th, 5th, and 6th causes of action is sustained with 20 days leave to amend.

UBC’s demurrer to the 1st, 2nd, 3rd, 4th, 5th, and 6th causes of actions in Plaintiff’s Complaint is sustained with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes the Complaint uses “she/her” pronouns to refer to Plaintiff. As such, the Court assumes Plaintiff uses “she/her” pronouns and applies these pronouns to this tentative. In the event the Court’s assumption is incorrect, the Court means no disrespect to Plaintiff and welcomes clarification.