Judge: David A. Hoffer, Case: 30-2019-1105504, Date: 2022-11-28 Tentative Ruling
The motion for summary judgment, or in the alternative, summary adjudication filed by Defendant, City of San Clemente (“City”) as to the Third Amended Complaint filed by Plaintiff, Margaret Hamer (“Plaintiff”) is GRANTED, in part, and DENIED, in part.
Motions for summary judgment or adjudication filed by employers in employment discrimination cases are subject to a unique set of rules adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
After an initial prima facie showing of discrimination from the employee (which is not at issue in this case), the employer, as the moving party, has the burden to present admissible evidence showing either that: (1) one or more elements of plaintiff’s prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscriminatory factors. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 357.)
If the employer’s moving papers satisfy this burden, the burden shifts to the employee to “demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)
A. First Cause of Action – Age Discrimination Under FEHA
As an initial matter, the Court notes that the City requests summary adjudication on each claimed act of age discrimination (see Notice of Motion). However, individual discriminatory acts that do not completely dispose of the cause of action (employment discrimination) cannot be summarily adjudicated. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251, fn. 1; see also, C.C.P. § 437c(f)(1)—“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.”.)
The City cites Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855, in support of its position that it has properly attacked each claimed act of discrimination. In Lilienthal, the plaintiff sued defendants for legal malpractice in connection with two separate and distinct legal matters, which had nothing to do with each other, and the court concluded that the two matters involved separate and distinct causes of action regardless of how pled in the complaint. (Id. at p. 1854.) The court held that where a plaintiff had alleged within one “cause of action” two separate and distinct obligations relating to two separate and distinct claims, the trial court could not refuse to rule on the merits of a motion for summary adjudication filed by defendants which related only to one of the obligations.
Unlike the claims in Lilienthal, which were completely separate and distinct, the claim for age discrimination here is based on an interrelated set of facts and circumstances. If any one or more of the facts would support a claim for age discrimination, then summary adjudication is not available to eliminate from trial other facts relating to said claim. (See Nazir v. United Airlines, Inc., supra, at 251, fn. 1.)
Turning to the merits of the motion, in order to make out a prima facie case of age discrimination under the Fair Employment and Housing Act (“FEHA”), a plaintiff must present evidence that the plaintiff “(1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)
As the City concedes, Plaintiff has made out a prima facie case of age discrimination under FEHA because she was over the age of 40 when the City selected a younger employee instead of her for the provisional and permanent Recreation Manager and Aquatics Supervisor and she was over 40 when the City decided not to select her for short-term Recreation Manager. (See Mtn. at 15:25-28; City’s Separate Statement of Undisputed Material Facts (“UMF”) 2, 3, 19, 62, 76.)
The City has also met its initial burden of producing evidence showing that the adverse employment actions were based upon legitimate, nondiscriminatory factors. (See UMF 4, 7-8, 33-34, 40, 73, 77.) Plaintiff’s arguments related to credibility of the City’s declarations are not well-taken. The Court does not find that the City has given “fundamentally different justifications” for its actions. The declarations are consistent in asserting the City’s contention that overall the City believed Ms. Wylie to be better qualified for the positions and to have done better during the interviews. (See Plt Response to UMF 7.2, 7.3; see also, Sund Declarations at Exs. 27 and 28 to Plt. Notice of Lodging [“PNOL”].)
The burden then shifts to Plaintiff to demonstrate a triable issue of material fact. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) Here, Plaintiff has met that burden.
It is undisputed that the City did not select Plaintiff for the positions of Provisional and Permanent Recreation Manager and Aquatics Supervisor and, instead, selected someone significantly younger than Plaintiff for all three of those positions. (UMF 2, 3, 19, 62; Decl. of Margaret Hamer ¶ 2; Deposition of Samantha Wylie, Depo Tr. at p.8:14 -15, Ex. 1 to PNOL; Villavicencio Depo Tr. at 46: 18 - 48:13, Ex. 10 to PNOL.) There is no argument made by the City that Plaintiff was not performing satisfactorily in her job or that she was otherwise unqualified for the promotional opportunities she sought. The evidence shows that Plaintiff was performing well in her job and was receiving good performance reviews. (See Exs. 5, 7, 25 to PNOL.)
Plaintiff also presented evidence showing that other employees of the City made claims of age discrimination by the City and specifically by Assistant City Manager, Erik Sund, whom Plaintiff alleges engaged in discriminatory conduct toward her. Sharon Heider testified that she was presented a separation agreement by Mr. Sund without prior discussion and that she believed she was removed from her employment with the City because she was an older female (over 40) and that she believed “he wanted someone young and pliable.” (Heider Depo Tr. at p. 27:20-28:9, 33:7-19, Ex. 3 to PNOL.) Additionally, evidence was presented that employee Carol Gibson, then 58 years old, made an age discrimination complaint to the City, similar to Plaintiff’s complaint, regarding the selection of the younger Samantha Wylie to the Provisional Recreation Manager position. (Gibson Depo. Tr. at pp. 42:16 - 43:12, 65:3-7, Ex. 2 to PNOL; Ex. 20 to PNOL.) This evidence sets out factual scenarios by employees of the City that are sufficiently similar to the claim presented by Plaintiff. As Plaintiff points out, such “me too” evidence of the same type of discrimination “can be admissible to show intent or motive, which could establish that the employer’s stated reason was a pretext.” (Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 760.)
The above evidence of similar employee complaints of age discrimination taken in conjunction with the evidence showing that Plaintiff had been performing well at her job and that on three occasions the City selected a younger employee over Plaintiff for promotional opportunities can support a reasoned inference of discriminatory animus. In ruling on a motion for summary adjudication, the court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom (CCP § 437c(c)) and must view the evidence and inferences “in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; see Ragland v. U.S. Bank Nat'l Ass'n (2012) 209 Cal.App.4th 182, 199; see also, Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541.) Further, “summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94-95, citing Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.)
Here, the Court finds that the evidence discussed above, taken as a whole, could support a reasonable inference of discriminatory intent. The fact that the City selected younger employees over Plaintiff on three occasions coupled with the evidence that other employees experienced similar complaints of age discrimination can reasonably suggest that the City’s treatment of Plaintiff was the result of discriminatory animus towards older workers.
Thus, Plaintiff has sufficiently rebutted the City’s evidence of nondiscriminatory intent. Accordingly, a triable issue exists as to whether Plaintiff was subjected to age discrimination when she was not selected for the positions of Provisional and Permanent Recreation Manager and Aquatics Supervisor.
Based on the above finding, the Court need not reach the parties’ arguments related to other alleged discriminatory acts. (See Nazir v. United Airlines, Inc., supra, at 251, fn. 1.)
Accordingly, the motion is DENIED as to the first cause of action.
B. Third Cause of Action – Failure to Prevent Discrimination and Harassment Under FEHA
When a plaintiff seeks to recover damages based on a claim of failure to prevent discrimination and harassment pursuant to Section 12940(k), she must show three essential elements: (1) the plaintiff was subjected to discrimination, harassment, or retaliation; (2) the defendant failed to take all reasonable steps to prevent discrimination, harassment, or retaliation; and (3) this failure caused the plaintiff to suffer injury, damage, loss, or harm. (Goins v. County of Merced (2016) 185 F.Supp.3d 1224, 1234.)
The City makes no argument related to the second or third prong of the prima facie case of failure to prevent discrimination, but argues only that said claim fails because Plaintiff was not subjected to age discrimination. As discussed above, Plaintiff’s age discrimination claim survives the motion for summary adjudication. Because the underlying discrimination claim is viable and the City has set forth no argument related to any other element of the cause of action for failure to prevent discrimination, the Court finds the City has failed to meet its burden on this claim.
Accordingly, the motion is DENIED as to the third cause of action.
C. Fourth Cause of Action – Whistleblower Retaliation Under Labor Code Section 1102.5
The City has shown that the fourth cause of action is time barred because Plaintiff’s complaint was not filed within six months of the date that the City mailed her notice of rejection of her government claim. The City is correct that, before bringing a Labor Code section 1102.5 action against a public entity, a plaintiff must present a government claim. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 245, [failure to comply with the government claims act bars a cause of action alleging violations of section 1102.5].)
Government Code section 945.6 requires that “any suit brought against a public entity on a cause of action for which a claim is required to be presented” is to be commenced no more than six months after the date written notice of rejection of the claim in accordance with Gov. Code section 913 is “personally delivered or deposited in the mail.” (Gov. Code § 945.6(a)(1).)
Here, Plaintiff presented her government claim to the City on January 22, 2019, claiming discrimination and retaliation as a basis for her claim. (UMF 83.) On March 20, 2019, the City rejected Plaintiff’s claim. (UMF 84-85.) The written notice of rejection complies with the requirements of Gov. Code §§ 913 and 915.4. (See City’s Notice of Lodging (“NOL”) Ex. 28 [Plaintiff’s Govt. Claim] and Ex. 27 [Notice of Rejection].) Further, the proof of service attached to the Notice of Rejection shows that the notice was deposited in the mail on March 20, 2019. (Ex. 29 to NOL.) The City also submitted a declaration of Johanne Thordahl authenticating the Notice of Rejection. (Thordahl Decl. ¶ 11.) Plaintiff does not dispute that the Notice of Rejection was mailed to Plaintiff on March 20, 2019. Thus, Plaintiff had six months, or until September 20, 2019, to file her suit against the City. (Gov. Code § 945.6(a)(1).) Plaintiff filed her initial complaint in this matter on October 17, 2019. (Ex. 34 to NOL.) Plaintiff’s claim for whistleblower retaliation was not alleged until the filing of the Third Amended Complaint on April 1, 2022 (see Ex. 1 to NOL).
Plaintiff’s sole argument in opposition to the City’s contention that the Labor Code 1102.5 claim is time barred is that the fourth cause of action is based on the same set of facts as asserted in the original complaint and thus the fourth cause of action relates back to the filing of the original complaint. While Plaintiff may be correct that the relation-back doctrine may apply here (see Roe v. County of Lake (2000) 107 F.Supp.2d 1146, 1154), this argument does not help Plaintiff. Plaintiff’s cause of action for whistleblower retaliation under Labor Code section 1102.5 is still time barred because her original complaint was filed more than six months after written notice of rejection was deposited in the mail.
Failure to comply with the Government Claims Act six-month time limitation for a lawsuit against a public entity mandates dismissal of the lawsuit. (Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1487 fn 14; see also, Edgington v. San Diego (1981) 118 Cal.App.3d 39, 47—trial court properly granted county’s summary judgment motion on the ground that the complaint was barred under Gov. Code § 945.6.)
Accordingly, the motion is GRANTED as to the fourth cause of action. Based on the above ruling, the Court does not reach the City’s other grounds for summary adjudication as to this claim.
The City’s Request for Judicial Notice (ROA 238) is GRANTED as to the existence of the documents but not as to the truth of any disputed facts asserted therein. (Ev. Code §452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)
The City’s evidentiary objections (ROA 331) are SUSTAINED as to objection nos. 1-5, 9-10 and 18 as to lack of foundation; 12, 14 and 22 as to hearsay; 19 and 21 as to relevancy; and 23 in its entirety; and OVERRULED as to objection nos. 6-8, 11, 13, 15-18 and 20.
The moving party is ordered to give notice of this ruling.