Judge: Daniel S. Murphy, Case: 21STCV08782, Date: 2023-03-03 Tentative Ruling

Case Number: 21STCV08782    Hearing Date: March 3, 2023    Dept: 32

BACKGROUND

            On March 5, 2021, Plaintiff Stephen Wilk initiated this action against Defendant County of Los Angeles for age discrimination and retaliation. The operative First Amended Complaint was filed on January 6, 2022, asserting (1) age discrimination, (2) failure to prevent, (3) FEHA retaliation, and (4) whistleblower retaliation in violation of Labor Code section 1102.5.          

Plaintiff began his employment with Defendant in 1981 and allegedly made it to the position of a Level 1 Reserve (L1). Plaintiff was issued a reserve officer certificate in 1984. In 2019, Plaintiff applied for a full-time deputy position that was only available to L1 reserves. Plaintiff was allegedly denied the promotion and also demoted to Level 2 Reserve status (L2), purportedly for failing to meet the qualifications for L1. Plaintiff alleges that this was actually because of his age. Plaintiff was 62 at the time. After reporting the demotion as age discrimination, Plaintiff was removed from the Mental Evaluation Team (MET) where he worked and was unable to obtain a position in the Homeless Outreach Services Team (HOST). Plaintiff alleges that this was retaliation for his reporting age discrimination.

On May 3, 2022, Defendant filed the instant motion for summary judgment or adjudication in the alternative, arguing that the actions against Plaintiff were taken for legitimate reasons and not age bias. Specifically, Defendant argues that Plaintiff was not qualified for L1 and violated department policy by abusing his badge.

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:

• Declaration of Boris Koron
• The following objections are sustained: 2-9.
• The following objections are overruled: 1.
• Declaration of Stephen Wilk
• Defendant’s objections are overruled.  

DISCUSSION

I. FEHA 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.)

Where a plaintiff seeks to establish discrimination through circumstantial evidence, the McDonnell-Douglas framework applies: (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. Adverse Employment Action

            Defendant argues that Plaintiff did not suffer an adverse employment action. An adverse employment action is any “course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.)

            Defendant argues that Plaintiff was never rejected for the deputy position because he placed his application on hold. (Def.’s Statement of Undisputed Facts (UF) 13.) However, the deputy position was only open to L1 reserves, and Plaintiff was being demoted to L2, disqualifying him from the deputy position. (Plntf.’s Resp. to UF 13.) Plaintiff avers that if he had remained as an L1, he would have continued to pursue the deputy position. (Wilk Decl. ¶ 17.) Plaintiff’s demotion to L2, which disqualified him from the deputy position, could be considered an adverse employment action. Defendant claims that Plaintiff requested a hold on his application before he was demoted to L2. Defendant cites no evidence specifically showing when Plaintiff made the hold request. Plaintiff testified about an October 2019 email discussing the hold (Def.’s Ex. A at p. 65), but Plaintiff was notified of his demotion before that, in September 2019 (Plntf.’s Ex. 13). Also, Plaintiff could have made the hold request in anticipation of an imminent demotion even if he had not been actually demoted yet.  

            Defendant argues that Plaintiff was merely “requalified” from L1 to L2 with no material change in employment conditions. Defendant points out that all reserve deputies, regardless of level, are paid the same nominal salary of one dollar per year. (UF 42.) However, L2 reserves have fewer policing powers. (Plntf.’s Statement of Additional Facts (AF) 80.) Since becoming L2, Plaintiff has not been able to patrol or make arrests, and has worked fewer hours. (AF 81-82.) Records from the Commission on Peace Officer Standards and Training (POST) specifically identify Plaintiff’s reclassification as a “Demotion” even though “Status Change” and “Correction to Record” were available options. (Plntf.’s Ex. 14.) Although salary is not the only relevant measure, becoming L2 meant that Plaintiff was disqualified from the deputy position, which would have come with a better salary. (AF 79.) Even if Plaintiff could return to L1 by completing additional training, that does not mean the demotion did not occur. Thus, there is a triable issue over whether Plaintiff suffered an adverse employment action.

            Defendant argues that Plaintiff not being selected for HOST is not an adverse employment action because Defendant assisted Plaintiff with finding a job at HOST. (UF 15.) However, Plaintiff was not contacted about working at HOST until nearly two years after being removed from MET. (Wilk Decl. ¶ 23.) Moreover, the evidence suggests that Defendant was not responsive to Plaintiff’s inquiries about working at HOST, and Plaintiff ultimately never worked at HOST. (Plntf.’s Ex. 31, 32; Wilk Decl. ¶ 23.) A reasonable jury may find that Defendant refused to hire Plaintiff for HOST, constituting an adverse employment action.

            b. Discriminatory Motive

            Defendant argues that the actions taken against Plaintiff were not based on his age because age was not mentioned during the process, and Plaintiff was never told that he was too old for any position. (UF 14.) However, shortly after Plaintiff applied for the full-time deputy position, Lt. John Gannon, Plaintiff’s direct supervisor at MET, texted Plaintiff asking for his birthday. (Wilk Decl. ¶ 9; Plntf.’s Ex. 28.) It is a factual issue why Gannon asked for this information, but on summary judgment, a liberal interpretation of Plaintiff’s evidence suggests the question was meant to ascertain Plaintiff’s age.

Moreover, when Plaintiff was informed that he had violated department policy (six months after being removed from MET), Plaintiff texted Lt. Gannon to express his concerns. (Wilk Decl. ¶ 22.) In response, Lt. Gannon suggested that Plaintiff could retire instead of facing an investigation into the purported policy violations. (Plntf.’s Ex. 50.) Again, why Lt. Gannon made this comment is a factual issue, and a reasonable jury may find that Gannon was referring to Plaintiff’s age. Although someone else may have made the final decision to demote or remove Plaintiff, the evidence does not preclude a triable issue over Lt. Gannon’s involvement. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113 [describing “cat’s paw” theory of liability].)

Lastly, all of the deputies selected for the full-time position are younger than Plaintiff. (Plntf.’s Ex. 33.) These facts support a reasonable inference that Defendant’s actions towards Plaintiff were motivated by age bias.

            c. Legitimate Reason

            Defendant contends that Plaintiff was reclassified from L1 to L2 because Plaintiff could not demonstrate that he had completed the requisite training for L1. Plaintiff’s file, as maintained by POST, indicates that he did not complete a required Basic Course. (UF 145.) According to Defendant, Plaintiff’s training as indicated in his POST profile qualifies him for L2. (UF 146.) Lt. David Buckner of the Reserve Forces Bureau investigated Plaintiff’s qualifications and notified Plaintiff that he would be reclassified as L2 because the department could not locate any documentation proving Plaintiff’s L1 qualifications. (Plntf.’s Ex. 13.)

Internal communications indicate that Lt. Buckner sought information such as a certification document, attestation letter, or other indication that Plaintiff should be L1. (Plntf.’s Ex. 11.) Plaintiff acquired a Reserve Officer Certificate from POST in January 1984, had a memorandum from a captain of the Reserve Forces Bureau, and attestations from training officers verifying Plaintiff’s training and qualifications for L1. (AF 14.) Defendant’s internal records consistently identified Plaintiff as an L1 reserve. (Plntf.’s Ex. 21-27.) Lt. Buckner acknowledged in deposition that the certificate and attestations satisfy the types of information he was searching for. (Plntf.’s Ex. 39 at pp. 51-56.) Lt. Buckner confirmed that “as of August 6, 2019, every document that was in Stephen Wilk’s file with the sheriff’s department had him classified as a Level 1 reserve.” (Id. at 55:11-17.) Lt. Buckner was unaware of any documents identifying Plaintiff as L2. (Id. at 56:1-5.) Lt. Buckner stated that after reviewing the documentation, he would change his conclusion as to Plaintiff’s level and agreed that Plaintiff was properly trained to be an L1 reserve. (Id. at 56:19-57:3.)

Furthermore, Defendant conducted audits to verify reserve level status and training standards. (Plntf.’s Ex. 35 at 19:5-15.) These audits revealed the names of officers who were missing the required training. (Id. at 20:3-14.) Plaintiff was not identified in the audits as an officer whose qualifications were inadequate or needed to be updated. (Ibid.) Nicholas Rampone, who was responsible for ensuring that training records were up to date and handled Plaintiff’s file specifically, testified that Plaintiff had the proper training to be an L1 reserve and should have maintained his L1 status. (Id. at pp. 21-23, 28.)

While Defendant relies on the POST report and insists that Plaintiff was unqualified, other evidence indicates that Plaintiff completed the requisite training and was not informed of any issues with his qualifications until he applied for a full-time deputy position at age 62. Additionally, POST relies on information provided by Defendant, and Defendant did not provide POST with Plaintiff’s certificate or attestations. (Plntf.’s Ex. 39 at pp. 57-58.) Combined with evidence of the inquiry into Plaintiff’s age and suggestion that Plaintiff retire, a reasonable jury may find that age discrimination was the actual reason behind Plaintiff’s demotion rather than any concern about his qualifications. Therefore, there is a triable issue over Defendant’s proffered justification.

II. FEHA Retaliation

FEHA makes it unlawful for an employer to retaliate against an employee who opposes harassment or discrimination. (Gov. Code, § 12940(h).) To establish a prima facie case of retaliation under the FEHA, a plaintiff must show that he: (1) engaged in a protected activity; (2) the employer subjected him to an adverse employment action, and (3) a causal link exists between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Plaintiff alleges that he was removed from MET and rejected from HOST as retaliation for complaining about age discrimination. Defendant argues that Plaintiff did not suffer an adverse employment action, cannot demonstrate causation, and cannot rebut Defendant’s legitimate reasons.

a. Adverse Employment Action

As discussed above, Plaintiff’s demotion to L2 and rejection from HOST may constitute adverse employment actions. Defendant does not dispute that Plaintiff’s removal from MET constitutes an adverse employment action.

b. Causation

Defendant claims that there is no evidence that the actions against Plaintiff were caused by his protected activity. Plaintiff was summoned to Lt. Buckner’s office for questioning as to his L1 qualifications in April 2019. (AF 66-67.) According to Plaintiff’s declaration, during that meeting, Plaintiff complained to Buckner that his age was the reason he was being scrutinized. (AF 68.) Plaintiff testified in deposition that Lt. Buckner did not mention his age during this meeting. (Def.’s Ex. A at 77:17-24, 168:23-169:2.) However, Plaintiff did not testify that he himself never mentioned age nor admit that he never reported age discrimination. Therefore, Plaintiff’s declaration—claiming to report age discrimination during the meeting—does not contradict his deposition. On summary judgment, the evidence must be liberally interpreted in Plaintiff’s favor. (Dore, supra, 39 Cal.4th at p. 389.)

In sum, the evidence supports a finding that Plaintiff reported age discrimination in April 2019, was removed from MET in August 2019, and demoted to L2 in September 2019. (Plntf.’s Ex. 13, 18.) The temporal proximity between Plaintiff’s reporting and the adverse employment actions raises an inference of retaliation. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.) Because a reasonable jury could find retaliation, summary judgment is inappropriate.

c. Legitimate Reason

Defendant argues that Plaintiff was removed from MET as discipline for violating department policies. Specifically, Defendant alleges that Plaintiff abused his authority by removing an inmate from the Inmate Reception Center because the inmate’s family paid him to do so. (UF 26.)

However, the evidence leaves open a triable issue as to whether this was Defendant’s true motivation for removing Plaintiff from MET. Lt. Gannon avers that Plaintiff was removed from MET in November 2019. (Gannon Decl. ¶ 4.) However, Defendant’s records indicate August 16, 2019 as Plaintiff’s last day at MET. (Plntf.’s Ex. 18.) This is supported by an email from September 3, 2019 calling for a replacement to fill in Plaintiff’s former squad car. (Plntf.’s Ex. 19.) If Plaintiff was removed from MET in November 2019, it is unclear why Defendant would seek to fill his squad car in September, or why there are no records indicating Plaintiff’s service at MET between August and November. Notably, the email to fill Plaintiff’s squad car was sent on the same day that Plaintiff was informed of his demotion to L2. (See Plntf.’s Ex. 13.)

Although Plaintiff’s demotion to L2 (supposedly based on his qualifications) should have no relation to his removal from MET (supposedly based on policy violations), the temporal proximity of the two events raises a reasonable inference that they were part of a “course or pattern of conduct” motivated by similar reasons—Plaintiff’s age and/or reporting of age discrimination. (See Holmes, supra, 191 Cal.App.4th at p. 1063.)

Furthermore, the investigation into Plaintiff’s purported violations did not occur until April 2020, five months after Defendant claims Plaintiff was removed from MET. (Plntf.’s Ex. 20.) Defendant does not dispute that the investigation began in April 2020. Thus, regardless of whether Plaintiff was removed in August or November 2019, the removal still occurred months before an investigation began. The fact that Plaintiff was removed from MET before an investigation had even begun suggests that the policy violation was not the actual reason for Plaintiff’s removal. This is further bolstered by Lt. Gannon suggesting that Plaintiff retire to avoid the investigation, indicating that Plaintiff’s age may have been the true reason. Therefore, there is a triable issue over Defendant’s proffered justification.

III. Failure to Prevent

            Government Code section 12940, subdivision (k) attaches liability to an employer when they fail to take all reasonable steps necessary to prevent discrimination, harassment, or retaliation from occurring. Defendant argues that this claim fails because Plaintiff has failed to establish the underlying retaliation and discrimination. However, as discussed above, there are triable issues as to those claims. Therefore, the failure to prevent claim survives as well.

IV. Labor Code Retaliation

Labor Code section 1102.5, subdivision (b) makes it unlawful for an employer to retaliate against an employee for reporting a perceived violation of a local, state, or federal statute or regulation. “[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.” (Patten v. Grant Joint Union High School (2005) 134 Cal.App.4th 1378, 1384.) As the California Supreme Court recently clarified, the traditional McDonnell-Douglas framework does not apply, and the plaintiff is not required to rebut with evidence of pretext. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712; Lab. Code, § 1102.6.)

All of the same facts and analysis established above with regards to FEHA retaliation apply equally to this claim, with the exception that Plaintiff is not required to show pretext. However, as discussed above, Plaintiff has raised a triable issue as to pretext even under the stricter McDonnell-Douglas test. Therefore, Plaintiff has certainly raised a triable issue as to this claim.

CONCLUSION

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