Judge: Douglas W. Stern, Case: 21STCV16667, Date: 2023-10-13 Tentative Ruling

Case Number: 21STCV16667    Hearing Date: October 13, 2023    Dept: 68

Motion for Summary Judgment

Linda Baek vs. County of Los Angeles, 21STCV16667

Moving Party: Defendant County of Los Angeles

I.                   Background

Plaintiff Linda Baek (Plaintiff) filed a complaint on May 5, 2021, alleging causes of action for discrimination, retaliation, and other such issues against Defendant County of Los Angeles (Defendant). Defendant’s motion for summary judgment, or in the alternative, summary adjudication, filed on June 10, 2022, addressed all six of Plaintiff’s causes of action.

Over a year has passed since the motion was originally filed, as the hearing on the motion has been moved several times. In that time, discovery has been conducted. In Plaintiff’s opposition to the motion for summary judgment filed on September 7, 2023, she indicated that she only intends to pursue her Second and Sixth Causes of Action and voluntarily dismisses Causes of Action One, Three, Fourt, and Five. (Opposition at p. 13.) Plaintiff’s Second Cause of Action is for FEHA retaliation. Plaintiff’s Sixth Cause of Action is for failure to prevent harassment, discrimination, and retaliation. Issue Nos. 1, 6, and 12 of Defendant’s motion for summary judgment are applicable to Plaintiffs Second and Sixth Causes of Action.

Factual Background:

Plaintiff has been a District Attorney working for Defendant. In her complaint, she alleges that back in 2014, she was subject to sexual harassment from another employee. She appears to allege that this began a series of events that ultimately led to adverse employment action against her.

After the harassment incident, Plaintiff told another employee what happened. It is unknown if this employee ever told anyone else what Plaintiff told her, and she did not even remember the incident when later asked about it. Following this, Plaintiff took a year-long leave of absence to care for her daughter.

Upon returning to work, Plaintiff would often work remotely. She alleges that this put her at odds with Mr. Schirn, another employee in the DA’s office. There were a couple incidents where she was supposed to be in the office when he visited the office, but she was not there. After this, their relationship grew more strained, ultimately culminating in Plaintiff sending an email on June 5, 2019, about his conduct. On June 11, 2019, an anonymous CPOE complaint was filed with the County pertaining to concerns between Plaintiff and Mr. Schirn; Plaintiff did not file this complaint. (UMF 86-87.) Plaintiff also claims that Mr. Schirn caused her reputational damage.

In 2018, Plaintiff applied for a promotion from the DDA III position to the DDA IV position. Plaintiff was denied the promotion. She alleges that she was denied the promotion in retaliation for the complaints that she made and the complaints made about her. However, it is worth noting that the CPOE complaints Plaintiff filed herself were filed in October 2020, long after she had applied for the promotion.

II.                Analysis

a.      Standard for Summary Judgment and Adjudication

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.) CCP Section 437c(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.)¿ 

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.)¿ 

When interpreting § 437c, courts have held that a three-step analysis is required: (1) Identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading; (2) Determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor; and (3) Determine whether the opposition demonstrates the existence of a triable, material factual issue. (AARTS Production, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)¿¿ 

Summary Judgment may be granted only where all the supporting and opposition papers show there is no triable issue as to any material fact and the moving party is entitled to judgment “as a matter of law.” (CCP § 437c(c).)¿¿ 

As a result, the Plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, fns. omitted; Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 562-563.)¿¿ 

The Defendant need only show the existence of a triable issue of material fact. (Union Bank v. Super Ct. (Demetry) (1995) 31 Cal.4th 573, 590; see Lopez v. SuperCt. (Friedman Bros. Invest. Co.) (1996) 45 Cal.4th 705, 713; Leslie G. v. Perfy & Assocs. (1996) 43 Cal.4th 472, 482.) Summary judgment would not be proper where the facts support a triable issue of fact.¿ 

b.      Issues for Summary Adjudication

                                                              i.      Issue No. 1

Defendant moves for summary adjudication on each of Plaintiff’s causes of action on the basis that they fail to the extent Plaintiff premises the claim on alleged wrongful conduct outside the statutes of limitations. (Cal. Govt. Code § 12960(b), (d).)

In order for FEHA claims to be timely, a plaintiff is required to file a complaint with the DFEH within one year of the alleged illegal conduct. (Cal. Govt. Code § 12960(b), (d).) The timely filing of an administrative complaint is a jurisdictional prerequisite to an action under the FEHA. (Cal. Govt. Code § 12960(b), (d); Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479, 492 (holding that a DFEH complaint may not be filed “after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred”).) Importantly, the statute of limitations begins to run from the date of the alleged unlawful act, and an employer is entitled to judgment as a matter of law when an employee does not timely exhaust her administrative remedies within one year. (See Romano, 14 Cal.4th at 493; Williams v. City of Belvedere (1999) 72 Cal. App. 4th 84, 89, 94 (affirming summary judgment for employer where employee did not exhaust administrative remedies within one year).)

Plaintiff applied to the DDA IV position in 2018, but she did not file her DFEH complaint until April 2021. Under the statute of limitations, Plaintiff’s claims for any adverse employment actions prior to January 1, 2019, would be time-barred. Plaintiff claims that her application made her eligible for promotion between March 15, 2019, to March 14, 2020. However, Plaintiff has not provided any evidence to support this claim. Plaintiff claims that she also suffered adverse employment action when Defendant refused to meaningfully investigate Plaintiff’s complaints that commenced with her June 5, 2019, email regarding Mr. Schirn, though an investigation did occur. She also claims that the alleged failure to provide Plaintiff with meaningful work commensurate with her skills and experience was an adverse employment action.

While Plaintiff’s claims regarding the failure to promote may be time-barred, the Court will also address the substantive arguments regarding Plaintiff’s retaliation causes of action.

                                                            ii.      Issue No. 6

Defendant moves for summary adjudication on Plaintiff’s Second Cause of Action for FEHA retaliation on the basis that it fails because Plaintiff cannot establish a prima facie case of retaliation.

When analyzing FEHA retaliation claims, courts utilize a three-prong, burden-shifting approach. (See Flait v. North Am. Watch Corp. (1992) 3 Cal. App. 4th 467, 475-76.) Under this approach, the plaintiff has the initial burden of establishing a prima facie case, and must demonstrate that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the protected activity and the employer’s action. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Loggins v. Kaiser Perm. Int’l (2007) 151 Cal.App.4th 1102, 1108-09.) Additionally, “if the adverse decision is a failure to hire or promote, the plaintiff has, as part of his or her prima facie case, the burden of producing evidence that he or she was qualified for the employment or the promotion.” (Hastings v. Dept. Of Corr. (2003) 110 Cal. App. 4th 963, 972.)

Plaintiff has argued that the adverse employment action that she suffered was a failure to promote her to the position of DDA IV. Defendant argues that Plaintiff has not demonstrated that she was even qualified for this position. Defendant argues that Plaintiff’s application shows that she received zero credits for her jury trial experience. Plaintiff stated in her deposition that she had not tried a case since 1997, and has only tried 11 cases throughout her career as a district attorney. (Plaintiff’s Dep. 31:4-14.) Further, Plaintiff stated that she was not aware of any deputy district attorney who was promoted to DDA IV who has less jury trial experience than her. (Plaintiff’s Dep. 471:4-473:12.)

Plaintiff has also not provided any evidence that the failure to promote was linked to a protected activity. Plaintiff claims that the failure to promote could have been related to her reporting of sexual harassment in 2014, or to a 2019 email regarding disparate treatment, or to various complaints and interviews she has had over the years. However, she has provided no evidence directly linking any of those things to the failure to promote.

Plaintiff testified at her deposition that she does not know the process for promotion to a DDA IV or why she has not been promoted. (Plaintiff’s Dep. 341:15-18; 478:11-14.) Further, Defendant has submitted evidence that just over half of the applicants (128 of 242 applicants) who scored in the same band as Plaintiff were not promoted from DDA III to DDA IV. (Supp. Decl. of Berkowitz, ¶ 3, Ex. C.)

Without evidence of a causal connection between Plaintiff’s protected activity and the adverse employment action, Plaintiff cannot establish a prima facie case for retaliation as a matter of law, meaning that there is no triable issue of material fact.

Defendant’s motion for summary adjudication is granted for Plaintiff’s Second Cause of Action.

                                                          iii.      Issue No. 12

Defendant moves for summary adjudication on Plaintiff’s Sixth Cause of Action for failure to prevent harassment, discrimination, and retaliation on the basis that it fails because it is derivative of Plaintiff’s Second Cause of Action, and therefore, fails for the same reasons.

Because the Court granted summary adjudication for Defendant on the FEHA retaliation cause of action, then summary adjudication is appropriate for this cause of action, as well. If Plaintiff cannot establish a prima facie case for retaliation, then she cannot demonstrate that there was a failure to prevent retaliation, and there is no triable issue of material fact.

Defendant’s motion for summary adjudication is granted for Plaintiff’s Sixth Cause of Action.

III.             Order

Defendant’s motion for summary judgment is granted for Plaintiff’s Second and Sixth Causes of Action.