Judge: Daniel S. Murphy, Case: 20STCV45820, Date: 2023-05-01 Tentative Ruling

Case Number: 20STCV45820    Hearing Date: May 1, 2023    Dept: 32

 

joseph cartwright,

                        Plaintiff,

            v.

 

LOS ANGELES COMMUNITY COLLEGE DISTRICT, et al.

                       

                       Defendants.

 

  Case No.:  20STCV45820

  Hearing Date:  May 1, 2023

 

     [TENTATIVE] order RE:

defendants’ motion for summary judgment or adjudication

 

 

BACKGROUND

            On May 4, 2021, Joseph Cartwright (“Plaintiff”) filed the operative First Amended Complaint (“FAC”) against Los Angeles Community College District (“LACCD”), Albert Roman (“Roman”), and Mercedes Gutierrez (“Gutierrez”) (collectively “Defendants”), alleging seven causes of action for discrimination, harassment, retaliation, failure to accommodate, failure to prevent FEHA violations, and violation of equal pay. Plaintiff alleges that LACCD rejected his application for the position of Director of Employee-Employer Relations (ELR) because he is African-American. Plaintiff also alleges that Roman and Gutierrez created a hostile working environment for the same reason.

            On July 11, 2022, Defendants filed the instant motion 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:

Defendants’ Objections to Plaintiff’s Evidence:

DISCUSSION

I. Statute of Limitations

            Effective January 1, 2020, Assembly Bill 9 extended the statute of limitations for a FEHA claim from one to three years. (See Gov. Code, § 12960(e)(5).) However, the expanded limitations period does not apply retroactively to claims that have already lapsed. (See Quarry v. Doe I (2012) 53 Cal.4th 945, 957.)

Defendants argue that certain allegations pertaining to the FEHA claims are time-barred because the events occurred more than one year before Plaintiff filed his DFEH complaint. Defendants argue that claims based on conduct prior to January 1, 2019 are barred. Plaintiff filed his DFEH complaint on November 30, 2020.

However, the harassment, discrimination, and retaliation allegedly occurred over time. Plaintiff complains about a course of conduct, not singular incidents. (See Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 325 [an employer may be liable for “conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period”].) The continuing violation doctrine applies not just to harassment claims, but also to discrimination and retaliation claims. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1057.) The continuing violation doctrine applies whenever “the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation . . . .” (Id. at p. 1058.) An aggrieved employee is not required to rush to file a lawsuit based on discrete acts that “the employee may not yet recognize as part of a pattern of retaliation . . . .” (Ibid.)

Defendants argue that the alleged retaliatory and discriminatory acts reached a degree of permanence sufficient to begin the running of the statute prior to January 2019. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 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.” (Ibid.) “[T]he statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Ibid.)

Here, Plaintiff alleges a course of discriminatory and retaliatory conduct beginning outside the statute of limitations and continuing within. Plaintiff has not been terminated nor has he resigned, and Defendants do not cite any evidence demonstrating that Plaintiff was on notice of the futility of ending the unlawful conduct informally. Therefore, the claims are not barred by the statute of limitations.

 

II. Discrimination

Government Code section 12940, subdivision (a) prohibits an employer from discriminating against an employee based on a protected characteristic. 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.)

Under the McDonnell-Douglas framework, (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.) This framework does not affect the procedural rule that imposes on a defendant the initial burden when the party seeks summary judgment. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.) To satisfy this initial burden in an employment discrimination case, 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. (Ibid.)

a. Plaintiff’s Qualifications

Defendants argue that Plaintiff was not qualified to be Director of ELR because he did not have the requisite five years of experience. The Director of ELR position required the following qualifications: “[f]ive years of recent, full-time, paid, professional-level experience in a senior human resources management position with responsibilities for managing a multi-faceted agency/corporate-wide employee and labor relations program for an organization employing 500 or more employees.” (Def.’s Stmnt. of Undisputed Facts (UF) 240.) Plaintiff’s role as Assistant Director of ELR was considered a qualifying experience, but because Plaintiff only served in that position for 4.5 years, it was deemed insufficient to meet the 5-year minimum. (UF 244.) Plaintiff’s prior experience as legal counsel was deemed insufficiently related to the qualifications. (Ibid.)

 On the other hand, the description for the Director position was changed to include the requirement for overseeing a labor relations program, such that Plaintiff’s prior legal experience in HR matters no longer counted. (AF 599-600.) This change was made without consulting the Classified Management Association as would normally be done for such changes. (AF 602.) Roman is the one who requested the reactivation of the Director position and typically consults on the creation and requirements for this kind of position. (Delahoussaye Decl. ¶ 13; Plntf.’s Depo. Vol. IV 429:13-25.) Therefore, there is a triable issue that Plaintiff was qualified for the Director position, but the requirements were deliberately changed to exclude him. Based on the facts suggesting that Roman was involved in the reactivation of the Director position and harbored racial animus (discussed below), a reasonable jury may find that Plaintiff’s rejection from the Director position was racial discrimination.

In any event, the failure to hire Plaintiff for Director is not the only alleged adverse action. Defendants acknowledge that they also denied Plaintiff’s rating-in request for higher pay, placed Plaintiff on administrative leave, issued a termination notice, and placed Plaintiff on a performance improvement plan. (Mtn. 25:3-9.) These other employment actions also form the basis of Plaintiff’s discrimination claim, even if Plaintiff was unqualified for the Director position.

            b. Discriminatory Motive

            Defendants argue that no employees or supervisors made disparaging comments regarding Plaintiff’s race. (UF 158-159, 322-323.) However, Plaintiff testified that Roman expressed particular disdain for two other LACCD employees who were also African-American. Specifically, in Plaintiff’s presence, Roman stated that the two employees were incompetent and lazy. (Plntf.’s Ex. I, Ex. 1 therein (Plntf.’s Depo. Vol. I) 35:4-18.) Defendants admit that Roman expressed the same opinion about Plaintiff, though they claim it was based on Plaintiff’s job performance. (See UF 300.) Roman complained about the accent of another African-American supervisor and commented on the incompetence of that person’s staff, who are majority African-American. (Plntf.’s Depo. Vol. IV at 465:2-21.)

The fact that Roman made similar comments about laziness and incompetence regarding multiple African-American employees raises an inference of racial bias. In Hammond v. County of Los Angeles (2008) 160 Cal.App.4th 1579, 1586, 1600, comments about African-American employees not having “any sense,” were “dumb,” and were unintelligible because they spoke “Ebonics,” constituted “independent evidence of racial animus.” Therefore, there is a triable issue over whether Defendants’ actions were racially motivated.   

            c. Legitimate Reason

            Defendants argue that Plaintiff’s lack of qualifications and performance issues constitute valid justification for the adverse actions against him. However, as discussed above, Plaintiff may have been qualified. Additionally, Fong Tse, the Director of ELR who was hired over Plaintiff and supervised him, avers that Plaintiff was always professional and hardworking. (Plntf.’s Ex. H ¶¶ 4, 23, 36.) Tse was told by Roman and Gutierrez that Plaintiff would be lazy and challenging to work with but found that to be untrue upon interacting with Plaintiff. (Id., ¶¶ 2, 9, 21.) Gutierrez told Tse that he “should find reasons to terminate Mr. Cartwright.” (Id., ¶ 8.) However, Tse never saw Plaintiff being abusive to his coworkers or acting unprofessionally. (Id., ¶¶ 24-27.)

            Furthermore, after investigating complaints about Plaintiff, Roman immediately recommended Plaintiff’s termination instead of imposing progressive discipline in accordance with LACCD policy. (UF 192, 206.) This was a “procedural defect” that “would constitute a denial of the due process defined in the PC and ER Handbooks.” (UF 207.) Evidence “that the employer significantly deviated from its ordinary personnel procedures in the aggrieved employee's case, might well be relevant to support (or negate) an inference of retaliation.” (Kotla v. Regents of University of California (2004) 115 Cal.App.4th 283, 294, fn. 6.)

This evidence contradicts Defendants’ proffered basis for their actions against Plaintiff and suggests that Defendants unfairly targeted Plaintiff, thus raising a triable issue.

III. Harassment

            Harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) “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).)

            Defendants argue that personnel decisions cannot constitute harassment. However, “in some cases the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim.” (Roby, supra, 47 Cal.4th at p. 708.) As discussed above, the actions against Plaintiff may have been motivated by racial bias. Those actions arguably created an intolerable environment that interfered with Plaintiff’s work. Therefore, there is a triable issue over the harassment claim.

IV. Retaliation

            To establish a prima facie case of FEHA retaliation, Plaintiff must show: (1) he engaged in a protected activity; (2) the employer subjected him to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244.) An employee engages in protected activity when they have “opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA]” or requested an accommodation. (Gov. Code, § 12940(h), (l)(4), (m)(2).)

            Defendants argue that requesting reconsideration of the rating-in denial, applying for Director of ELR and appealing a denial of the interview, and requesting payroll records are not protected activities because they did not oppose practices forbidden under FEHA. However, it is undisputed that Plaintiff reported discrimination to the Office of Diversity, Equity, and Inclusion (ODEI), which is a protected activity.  

            Plaintiff filed the ODEI complaint on January 24, 2017. (Cartwright Depo. Vol. V, Ex. 26.) Plaintiff was placed on administrative leave from February 2017 to September 2018. (AF 332.) “Close proximity in time of an adverse action to an employee’s resistance or opposition to unlawful conduct is often strong evidence of retaliatory motive.” (Taylor v. Los Angeles DWP (2006) 144 Cal.App.4th 1216, 1235.) In February 2018, while still on leave, Plaintiff received a Statement of Charges, a Notice of Intent to Dismiss, and a Notice of Unsatisfactory Service. (AF 358.) Upon returning from leave, Plaintiff had to share his calendar with Roman and Gutierrez even though he was unaware of other employees having to do the same. (AF 505-506.) Plaintiff was required to have his camera and audio on during Zoom meetings even though others did not. (AF 676.) Plaintiff was issued a reprimand after complaining to Gutierrez that he was being singled out for not having his camera on. (AF 398.) Roman falsely accused Plaintiff of being sexist, called Plaintiff into meetings on short notice which made Plaintiff look unprepared, and took credit for Plaintiff’s work product. (Plntf.’s Depo. Vol. IV at pp. 451-54.) This supports a reasonable inference that Defendants subjected Plaintiff to a retaliatory course of conduct that adversely affected Plaintiff’s work conditions.

Defendants claim that the administrative leave occurred outside the statute of limitations and was imposed for legitimate reasons. However, as discussed above, actions outside the statute of limitations may relate to those within, and there are triable issues over the legitimacy of Defendants’ proffered reasons. Therefore, there are triable issues regarding the retaliation claim.     

V. Accommodation and Interactive Process

            To establish a FEHA accommodation claim, Plaintiff must prove he: (1) is disabled; (2) was able to perform the essential functions of his job; and (3) the District failed to reasonably accommodate his disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) A failure to engage in the interactive process claim requires a showing the employer failed “to engage in a timely, good faith, interactive process with the employee…to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee…with a known . . . disability or known medical condition.” (Gov. Code, § 12940(n).)  

            It is undisputed that after Plaintiff reported suffering from a mental disability, LACCD granted Plaintiff medical leave in response. (UF 310-316.) Plaintiff remains on medical leave to date. (UF 317.) Plaintiff argues that Defendants were required to go further than granting leave and ensure that he was not subjected to racism in the workplace. FEHA has a separate claim for an employer’s failure to address discrimination. Plaintiff cites no authority for the proposition that a failure to prevent racial discrimination can be considered a failure to accommodate a mental disability. Plaintiff does not identify a reasonable accommodation beyond medical leave.

Plaintiff also argues that Defendants interfered with his leave by contacting him about his evaluation and about returning his computer, and by refusing to provide him with payroll and tax information. However, Plaintiff told LACCD that he could be reached during his leave and provided his phone number. (UF 315.) Minor contacts about administrative matters do not constitute a failure to accommodate. As to the tax and payroll information, Plaintiff was the one who contacted LACCD to request copies. (UF 319.) It is undisputed that LACCD responded to Plaintiff’s requests and asked Plaintiff to fill out certain forms to process the requests. (UF 320.) It is undisputed that Plaintiff did not submit the required paperwork. (UF 321.)

Ultimately, the undisputed evidence shows that Defendant responded to Plaintiff’s disability by granting a reasonable accommodation. Defendants also checked in with Plaintiff to see if he needed to extend his leave or needed accommodations upon returning, thereby sufficiently engaging with Plaintiff. (See Plntf.’s Ex. 20-21.) Therefore, no triable issue exists as to the failure to accommodate and interactive process claims.

VI. Equal Pay Act

            “An employer shall not pay any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions . . . .” (Lab. Code, § 1197.5(b).)

            Plaintiff’s equal pay claim is based on the allegation that he was underpaid while working as Assistant Director of ELR because he performed the functions of Director. However, Plaintiff simultaneously admits that the Director position was vacant at the time. (Plntf.’s Ex. A ¶ 3.) Even if Plaintiff was underpaid, Plaintiff does not identify a non-African-American employee to compare with, which renders the EPA inapplicable. Plaintiff vaguely references “other employees holding Director positions” without identifying the positions, their salaries, job descriptions, or the race of the person holding the position. (Id., ¶ 13.) Therefore, the equal pay claim fails as a matter of law.  

CONCLUSION

            Defendants’ motion for summary judgment is DENIED. Defendants’ alternative motion for summary adjudication is GRANTED only as to the causes of action for failure to accommodate, failure to engage in the interactive process, and equal pay.