Judge: Daniel S. Murphy, Case: 20STCV23682, Date: 2022-09-14 Tentative Ruling

Case Number: 20STCV23682    Hearing Date: September 14, 2022    Dept: 32

BACKGROUND

            On June 23, 2020, Plaintiff Marc A. Taylor initiated this employment discrimination action against Defendant City of West Covina. The operative First Amended Complaint, filed November 19, 2020, alleges a single cause of action for age discrimination based on Plaintiff’s termination from the Police Chief position.

            Plaintiff was fired as Police Chief after a vote of no confidence by the Police Officer’s Association (“POA”). Plaintiff claims that his termination was actually motivated by age discrimination. Various members of the City Council had made comments to Plaintiff about his age prior to the termination. Plaintiff contends that Defendant replaced its City Manager, Chris Freeland, with someone who was more willing to terminate Plaintiff, David Carmany. Carmany was the one who made the ultimate decision to terminate Plaintiff. Defendant maintains that there is no evidence of discriminatory animus and that Plaintiff’s termination resulted solely from the POA’s vote of no confidence. Accordingly, Defendant presently moves for summary judgment or adjudication in the alternative.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

EVIDENTIARY OBJECTIONS

Plaintiff’s Objections to Defendant’s Evidence:

• Plaintiff’s objections are overruled.

Defendant’s Objections to Plaintiff’s Evidence:

• The following objections are sustained: 1, 3-6, 11-13.
• The following objections are overruled: 2, 7-10.

DISCUSSION

I. Discrimination

Government Code section 12940, subdivision (a) prohibits an employer from discriminating against an employee based on a protected characteristic. The McDonnell-Douglas test imposes a three-step burden-shifting framework for establishing discrimination: (1) the plaintiff must initially establish a prima facie case of discrimination, (2) the defendant must then articulate a legitimate nonretaliatory explanation for its acts, and (3) in response, the plaintiff must show that this explanation is pretextual. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) Therefore, on summary judgment, the defendant employer must either (1) undermine an element of the plaintiff’s prima facie case or (2) provide a legitimate nonretaliatory reason for the adverse employment action. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.)

a. Plaintiff’s Prima Facie Case

In order to establish a claim of discrimination, Plaintiffs must prove: (1) they are in a protected class; (2) an adverse employment action was taken against them; (3) at the time of the adverse action they were satisfactorily performing their jobs; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel (2000) 24 Cal. 4th 317, 355.)

For purposes of this motion, Defendant does not dispute the first three elements, arguing only that Plaintiff lacks evidence of a discriminatory motive. (See Mtn. 9:21-26.) Defendant acknowledges that Plaintiff testified to age-based comments made by various City Council members. (Mtn. 10:4-10.) These comments consist of the following: (1) Tony Wu suggested to Plaintiff that he should dye his hair to look younger (Def.’s Undisputed Facts (“UF”) 54); (2) Mike Spence questioned Plaintiff’s reason for returning to work at his age (UF 55); and (3) Dario Castellanos asked what year Plaintiff graduated and whether Plaintiff went to his doctor for regular checkups (UF 56).

Defendant first argues that these comments are irrelevant because the councilmembers did not have authority to terminate Plaintiff. (Mtn. 10:12-17.) According to Defendant, the Chief of Police could only be terminated by the City Manager, who at the time was Carmany. (UF 24, 38.) Plaintiff testified that Carmany had not made any disparaging age-related remarks to him. (UF 67.) Plaintiff testified that he was not aware of any evidence that the City Council directed Carmany to terminate him. (UF 62, 63.) Plaintiff testified that he could only speculate that other city officials besides Carmany participated in his termination. (UF 65.)

However, it is not dispositive that the councilmembers had no direct authority to terminate Plaintiff or that Carmany himself did not harbor discriminatory animus. Under the “cat’s paw” theory, even if an ultimate decisionmaker acts for a lawful purpose, “that actor may be found to have operated as a mere instrumentality or conduit for others who acted out of discriminatory or retaliatory animus, and whose actions were a but-for cause of the challenged employment action.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113.) Here, the councilmembers may have acted out of discriminatory animus and used Carmany as their conduit to effectuate Plaintiff’s termination. Plaintiff contends that the City Council fired Freeland after Freeland refused to terminate Plaintiff, then hired Carmany as City Manager after confirming that Carmany would be willing to fire a popular department head. (Opp. 12:23-13:4.) If true, a reasonable jury may find that the councilmembers’ actions were a “but for” cause of Plaintiff’s termination even if the councilmembers could not directly terminate Plaintiff. (See Reeves, supra, 121 Cal.App.4th at p. 113.)

Freeland was the one who selected Plaintiff to serve as Police Chief. (Freeland Decl. ¶ 2.) Afterwards, Councilman Wu made multiple requests to Freeland asking him to fire Plaintiff, which Freeland rejected each time. (Ibid.) Freeland was terminated in March 2019. (Id., ¶ 1.) Councilman Wu had approached Carmany and encouraged him to apply for the position after Freeland’s firing. (Plntf.’s Ex. 10 at 22:3-16.) Carmany confirmed in his deposition that prior to his selection, he was asked whether he would be willing to fire a popular department head. (Plntf.’s Ex. 11 at 48:20-23.) Plaintiff was a department head who was very involved in the community. (Taylor Decl. ¶ 11.) After Carmany terminated Plaintiff, the City Council voted to uphold his decision. (Plntf.’s Ex. 10 (Vol. I) at 111:1-21.) Councilman Wu acknowledged in his deposition that the Council had the authority to overturn Carmany’s decision. (Id. at 111:2-6.) Out of the four councilmembers who voted to affirm the termination, two had made age-based comments to Plaintiff: Wu and Castellanos. (See UF 54, 56; Plntf.’s Ex. 10 (Vol. I) at 112:3-12.)

In sum, the City Council, having made age-based comments to Plaintiff, terminated the City Manager who appointed and refused to fire Plaintiff, then selected another City Manager who they confirmed would be willing to fire a popular department head. The City Council then voted to uphold the City Manager’s decision to terminate Plaintiff. The person who replaced Plaintiff as Police Chief is approximately 10 years younger than Plaintiff. (UF 83; Plntf.’s Additional Facts (“AF”) 42.) When interpreted liberally in Plaintiff’s favor, this evidence allows a reasonable jury to find that the councilmembers harbored discriminatory animus and effectuated Plaintiff’s termination based on that animus. (See Reeves, supra, 121 Cal.App.4th at p. 113 [explaining cat’s paw theory].) A reasonable jury may also find that the councilmembers directly participated in Plaintiff’s termination by voting to affirm Carmany’s decision.

Defendant also argues that the comments made to Plaintiff are nonactionable because they are stray remarks unconnected to the adverse employment action. (Opp. 10:18-27.) However, the very case cited by Defendant for this proposition actually acknowledges that “the Supreme Court recently clarified that California courts are not to apply the stray remarks doctrine because ‘its categorical exclusion of evidence might lead to unfair results.’” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 320 [citing Reid v. Google, Inc. (2010) 50 Cal.4th 512, 517].) The comments made to Plaintiff were based on his age and could be interpreted to reflect discriminatory animus. It should be for a jury to decide whether the councilmembers harbored age bias and whether such bias influenced Plaintiff’s termination.

            b. Legitimate Justification

            Defendant argues that it had a legitimate reason for terminating Plaintiff’s employment because the POA held a vote of no confidence. (Mtn. 11:25-14:19.) In April 2019, the POA held a vote of no confidence in which 92.5% of members voted “no confidence” against Plaintiff. (UF 33, 34.) Afterwards, Carmany met with the POA to discuss the vote and the POA’s discontent with Plaintiff’s leadership as Police Chief. (UF 35.) According to Carmany, he made his decision to terminate Plaintiff based on the vote of no confidence. (UF 36.) If true, this presents a legitimate, nondiscriminatory reason for Plaintiff’s termination. Thus, Defendant has satisfied its initial burden on summary judgment. (See Cornell, supra, 18 Cal.App.5th at p. 926.)

            In the face of a nondiscriminatory reason, the plaintiff must offer “substantial evidence” allowing a reasonable conclusion that “the employer engaged in intentional discrimination.” (Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1007.) “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, internal citations omitted.) “[T]he same evidence can be used both to set forth a prima facie case of discrimination, and to demonstrate the existence of a triable issue of fact on the issue of pretext.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 554.)

            As discussed above, Plaintiff has nonspeculative evidence that various city councilmembers harbored age bias against Plaintiff and that the council effectuated or participated in Plaintiff’s termination. Thus, despite the vote of no confidence, a reasonable jury may find that Plaintiff’s termination was in fact motivated by discrimination. (See also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1007 [“a complainant need not prove that discriminatory animus was the sole motivation behind the challenged action . . .”].) Additionally, Plaintiff was given a positive performance review by Freeland in which he was rated as exceeding requirements in all categories and described as reliable, effective, and invaluable. (Taylor Decl., Ex. A.) This casts doubt on the proposition that Plaintiff was terminated for performance issues or leadership failures.

            Lastly, Defendant argues that Plaintiff conceded he was terminated for a legitimate reason when he acknowledged that Carmany informed him of the POA’s vote and acknowledged that Carmany needed to take action to address the vote. (Mtn. 12:18-13:24.) However, the fact that Plaintiff acknowledged the given reason for his termination does not mean that was the actual reason for his termination and is certainly not a concession that Defendant had a legitimate reason for terminating Plaintiff. (See Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1098 [although “plaintiff admitted that defendant underwent . . . restructuring and layoffs . . . she did not admit, there or ever, that this had been the actual, motivating reason for her discharge”].)

In sum, there is a triable issue over both Plaintiff’s prima facie case and Defendant’s proffered justification. Therefore, summary judgment is inappropriate.

CONCLUSION

            Defendant’s motion for summary judgment or adjudication is DENIED.