Judge: Daniel S. Murphy, Case: 21STCV09900, Date: 2024-02-21 Tentative Ruling

Case Number: 21STCV09900    Hearing Date: February 21, 2024    Dept: 32

BACKGROUND

            On March 12, 2021, Plaintiff Hovannes Artunyan filed this action against Defendants Los Angeles Department of Water and Power (LADWP), City of Los Angeles (City), and Fenton Williams (Williams). Plaintiff filed the operative First Amended Complaint (FAC) on August 2, 2021, asserting causes of action for (1) discrimination, (2) harassment, and (3) retaliation.

            Plaintiff alleges that in August 2018, he was hired by LADWP into its electrical apprentice program but was subjected to discrimination, harassment, and retaliation by Williams and other employees, which culminated in his termination in February 2020. Plaintiff alleges that he was terminated based on Williams’ false claim that he had cheated during a written examination. 

            On December 8, 2023, Defendants filed the instant motion for summary judgment or adjudication in the alternative. Plaintiff filed his opposition on February 7, 2024. Defendants filed their reply on February 16, 2024.  

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

Defendants’ Objections to Plaintiff’s Evidence:

• The following objections are sustained: 8.
• The following objections are overruled: 1, 4-6, 13-15.
• The remaining objections are not pertinent to the Court’s ruling on the motion. (See Code Civ. Proc., § 437c(q).)  

DISCUSSION

I. 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, a plaintiff 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.) 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. Prima Facia Case

For purposes of this motion, Defendants concede that Plaintiff was in a protected racial class (Armenian) and that Plaintiff suffered an adverse employment action (termination). However, Defendants argue that Plaintiff was not competently performing his job and cannot demonstrate discriminatory motive.

            1. Plaintiff’s Competence

Defendants argue that Plaintiff was not competent at his job because he engaged in conduct consistent with cheating. Defendants admit that “up until the December 2, 2019 incident, Plaintiff performed in a satisfactory manner.” (Mtn. 10:17-18.) Defendants contend, however, that a single instance of cheating is grounds for expulsion under the standards governing the apprenticeship program. (Def.’s Undisputed Facts (UF) 15-16.) During the investigation, Plaintiff submitted a written statement admitting that he was looking around during the examination, which created an impression that he was looking at another trainee’s exam. (UF 26-29.) Therefore, a majority of the Committee concluded that Plaintiff had cheated and should be terminated. (UF 30-31, 34.) Defendants argue that the accuracy of their determination is not at issue because FEHA does not punish employers for making mistaken or unwise decisions, only unlawful ones. (See Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 155.)

Because Defendants’ only basis for challenging Plaintiff’s competence is the cheating incident, a dispute as to that fact would result in a triable issue over Plaintiff’s competence. Plaintiff does indeed dispute that he cheated. Plaintiff denies copying anyone else’s answers on the exam and avers that the other examinee was sitting too far away for him to see the answers. (Artunyan Decl. ¶¶ 20-21.) Plaintiff felt pressured to submit the written statement and could not express himself accurately due to his limited English proficiency. (Id., ¶¶ 29-30.) Because there is a factual dispute over whether Plaintiff cheated, there is a triable issue over Plaintiff’s competence. To the extent that Defendant held an honest but mistaken belief that Plaintiff cheated, that goes to Defendant’s legitimate justification rather than Plaintiff’s competence.  

2. Discriminatory Motive

             Defendants argue that Plaintiff has nothing beyond his own speculation to demonstrate that Williams acted out of discriminatory motive when he accused Plaintiff of cheating. According to Defendants, Plaintiff has only identified isolated instances where Williams rejected his suggestions or laughed at him. (UF 44-45.) Defendants further point out that Williams did not participate in the vote that determined Plaintiff’s termination, nor did the Committee ask for Williams’ opinion. (UF 32-33.) 

            However, Plaintiff did not testify that the rejected suggestion or laughing were the only instances of abuse by Williams, nor did Plaintiff admit that he had no evidence of racial animus. Plaintiff’s evidence tends to show that Williams did not like immigrants or those who could not speak English fluently. For example, Cristopher Martinez, another employee who filed a discrimination complaint against Williams, personally observed Williams complaining that Plaintiff did not speak English and questioning why LADWP hired people who could not speak English. (AF 62.) Martinez observed Williams, an African-American, being more opinionated in his criticism of people of different races than the same race. (AF 68.) Martinez observed Williams acting differently around African-American employees and treating African-American trainees more favorably. (AF 71.) Interpreting the evidence in Plaintiff’s favor, this raises a triable issue on discriminatory animus.

            It is not dispositive that Williams did not vote on Plaintiff’s termination and was not asked for his opinion. Williams was the one who reported Plaintiff for cheating, thus leading to the committee vote that ultimately terminated Plaintiff. (UF 25.) Williams’ involvement in the termination process may be sufficient to impute liability to the employer under the cat’s paw theory. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113.) Additionally, Plaintiff’s evidence shows that Williams specifically requested Plaintiff’s termination, even if he did not participate in the vote. (Plntf.’s Resp. to UF 33.)

            In sum, Plaintiff has sufficiently raised triable issues as to his prima facie case.

b. Legitimate Justification

“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.) 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.)

As discussed above, Defendant argues that it terminated Plaintiff because a single instance of cheating warrants termination. However, the Training Facility General Rules did not mandate automatic termination as a punishment for cheating. (Plntf.’s Resp. to UF 16 [“Cheating on any written exams, quizzes and assignments may result in immediate dismissal from the program”].) Instead, Martinez’s practice, when he was in Williams’ position, was to give a verbal warning. (Ibid.) Examinees would be “called out” immediately for looking at another’s papers, but not automatically fired. (Ibid.) This suggests that merely looking at another employee’s exam papers was normally not sufficient to warrant discharge. It also suggests that Defendants deviated from their normal practice of giving a verbal warning for such infractions. Lastly, the evidence discussed above regarding Williams’ potential racial animus suggests that the true motivation behind the discharge was discrimination.  

Taken together, the evidence raises a triable issue on Defendants’ proffered justification. Because there are triable issues of fact pertaining to Plaintiff’s prima facie case and Defendants’ proffered reason, summary adjudication is not warranted on the discrimination claim.

II. Harassment

a. Administrative Exhaustion

Defendants argue that Plaintiff failed to meet the administrative exhaustion requirement as it pertains to his harassment claim because his DFEH complaint only alleged discrimination. (UF 41.) However, a civil complaint may encompass allegations that are “like or reasonably related to” allegations in a DFEH charge. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1614-15.) “[W]hat is submitted to the DFEH must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.) Racial discrimination correlates with harassment based on race. The same set of facts and evidence can form the basis for both claims. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) In other words, a reasonable investigation into the DFEH charge alleging racial discrimination would have uncovered evidence of racial harassment as well. (See Okoli, supra, 36 Cal.App.4th at p. 1615; Nazir, supra, 178 Cal.App.4th at p. 268.) This is sufficient to meet the exhaustion requirement.

b. Pervasive Conduct

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, subd. (b).)  

Defendants argue that Plaintiff cannot demonstrate pervasive conduct arising to the level of harassment because he only identifies a few isolated incidents unrelated to his race. However, Plaintiff has testified that instructor Rongzhen Chen questioned his ability to understand the material and laughed at him at least ten times in front of the class. (UF 46.) Additionally, supervisor Cesar Sanchez made fun of Plaintiff’s accent and laughed at the way he spoke on two or three occasions. (UF 47.) A reasonable trier of fact may find these incidents to be race-related and sufficiently pervasive to constitute harassment. This precludes summary adjudication on the harassment claim.

III. Retaliation

            a. Administrative Exhaustion

            As with the harassment claim, Defendants argue that Plaintiff failed to exhaust his administrative remedies because his DFEH complaint only mentioned discrimination. For the same reasons discussed above, Plaintiff’s retaliation claim is reasonably related to his discrimination claim.

            b. Prima Facie Case

            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.)

            Defendants argue that they could not have retaliated against Plaintiff for his protected activity because Plaintiff filed his government tort claim and DFEH complaint after his termination. However, the filing of the government claim and DFEH complaint are not the protected activities forming the basis of the retaliation claim. Rather, Plaintiff alleges that he complained about “discriminatory conduct, safety violations, unsafe working conditions, and a hostile work environment” during his employment. (FAC ¶ 92.) For example, Plaintiff reported instructor Chen’s harassing conduct to Williams. (Artunyan Decl. ¶ 3.) Defendants do not address at all the protected activity that Plaintiff engaged in prior to his termination. Defendants cite no evidence establishing as a matter of law that the only protected activity Plaintiff engaged in was the filing of the government claim and DFEH complaint. Therefore, Defendants have failed to carry their initial burden on summary judgment.

CONCLUSION

            Defendants’ motion for summary judgment or adjudication is DENIED. Plaintiff’s request for a continuance under Code of Civil Procedure section 437c(h) is denied as moot.