Judge Elaine Lu, Case 19STCV41321 2022-08-10 Tentative Ruling

On November 15, 2019, plaintiff Ida Gomez Llanos (“Plaintiff”) filed the instant action against defendants Delta Air Lines, Inc. (“Delta”), Delta F-Care Retirement Trust, Delta Master Retirement Trust, Jennifer Kao (“Kao”), Pamela Paul (“Paul”), Andrea Misserian (“Misserian”), Barbara Lau (“Lau”), Ann Marie Ognovic (“Ognovic”), Sharon Redden (“Redden”), Jeffrey Weese (“Weese”), and Jake Jesse (“Jesse”). The complaint alleges ten causes of action: (1) Discrimination in Violation of the Fair Employment and Housing Act (“FEHA”), (2) Harassment in Violation of FEHA, (3) Retaliation in Violation of FEHA, (4) Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA, (5) Intentional Infliction of Emotional Distress (“IIED”), (6) Negligent Hiring, Supervision, and Retention, (7) Wrongful Termination in Violation of Public Policy, (8) Whistle-Blower Retaliation in Violation of Labor Code § 1102.5, (9) Breach of Express Oral Contract Not to Terminate Employment without Good Cause, and (10) Breach of Implied-in-Fact Contract Not to Terminate Employment without Good Cause.[1]

On September 21, 2021, Plaintiff filed a stipulation to dismiss defendants Delta F-Care Retirement Trust and Delta Master Retirement Trust without prejudice and to dismiss defendants Andrea Misserian, Jeffrey Weese and Jake Jesse with prejudice. On July 6, 2022, Plaintiff orally moved to dismiss Ann Marie Ognovic from the complaint, which the Court granted. (Minute Order 7/6/22.)

On July 16, 2021, Defendant Delta filed the instant motion for summary judgment or in the alternative summary adjudication. On August 9, 2021, the Court continued the hearing on the instant motion to July 8, 2022. (Minute Order 8/9/21.) On June 24, 2022, Plaintiff filed an opposition to the instant motion. On June 23, 2022, Plaintiff filed a request for dismissal of the second cause of action for harassment based on sex as to Defendants Lao, Kau, Redden, and Paul, which the Court entered on the same day. (Request for Dismissal 6/23/22.) On July 1, 2022, Defendant Delta filed a reply.

Plaintiff has been an outstanding flight attendant at Delta throughout her 56 years of employment, receiving numerous awards. (Complaint ¶¶ 11-12.) Plaintiff was Delta’s number one flight attendant in Los Angeles and fifth in the company at age 78. (Id. ¶ 14(a).) As the most senior flight attendant, Plaintiff earned coveted work-related privileges that other employees coveted, such as the first right to choose her flight routes and to take on additional flights for extra work hours. (Id. ¶ 14(b).) This in turn created resentment by other flight attendants who would falsify reports to management, which Delta encouraged and welcomed in order to justify the termination of senior flight attendants. (Id. ¶¶ 14(b-c).)

On February 5, 2018, Plaintiff was issued her first write-up in 55 years, for alleged policy violations based on two incidents on September 17, 2017 and November 23, 2017. (Id. ¶ 14(e).) The first incident arose out of an accusation by a coworker (Richard Hamrich) that Plaintiff paid another flight attendant (Kimberly Reicks) $100.00 “to reach tall bins while working at the galley.” (Id. ¶ 14(f).) This allegation was not true. Reicks did assist Plaintiff, but Plaintiff did not pay Reicks $100.00. (Ibid.) Moreover, Hamrich made this accusation after Plaintiff witnessed him “sexually assault another male flight attendant by grabbing the other flight attendant’s crotch.” (Ibid.) Hamrich later recanted this accusation and directly apologized for the false accusation. (Ibid.) Plaintiff’s manager Misserian assured Plaintiff that Defendants would remove the write-up from Plaintiff’s file, but Defendants failed to do so. (Ibid.)

“The second incident, in the February 5, 2018 write-up, alleged that [Plaintiff] failed to work at her designated position on November 23, 2017.” (Id. ¶ 14(g).) This allegation was also untrue. “[Plaintiff] refused to sign the write-up because of the numerous fabrications therein.” (Ibid.)

The February 5, 2018 write-up damaged Plaintiff’s employment. For 18 months, “[Plaintiff] became ineligible for transfer, promotion, or special assignment outside in-flight services and ineligible to participate in the purser program.” (Id. ¶ 14(h).)

“On February 9, 2018, [Plaintiff] again received a positive review for her excellent work ethic, customer service, and adherence to company policy.” (Id. ¶ 14(j).) Shortly after the positive review on February 9, 2018, younger flight attendants including defendants Kao, Lau, and Ognovic treated Plaintiff negatively and aggressively. (Id. ¶ 14(k).) “On several occasions, these defendants verbally harassed [Plaintiff] by screaming at her in front of passengers. A co-worker informed [Plaintiff] that defendant Ognovic announced to other flight attendants, ‘I [defendant Ognovic] am trying to get her [Plaintiff] fired any way I can!’ Additionally, defendant Kao had expressed the same sentiment to another flight attendant, saying she was ‘trying to get her [Plaintiff] fired.’ In furtherance of their plan, defendants Ognovic and Kao claimed that [Plaintiff] could not arm and/or disarm doors, maliciously imputing such alleged incapacity to her age and sex. Moreover, defendant Ognovic circulated pictures of [Plaintiff] in another attempt to defame her. [Plaintiff] had no issues with performing her tasks and received rave performance reviews throughout her tenure at Delta.” (Id. ¶ 14(l).)

Defendants Kao, Lau and Ognovic also spread rumors “that [Plaintiff] had stolen items from aircrafts for personal use (repeatedly made by Kao, Lau and Ognovic from 2017 to the time of termination), that she was stealing chocolate, that she was eating food before serving passengers (a false statement made by Kao in or around late 2018), that she was stopped by U.S. customs agents who discovered the stolen items and that she was suspended for two weeks for stealing (Ognovic made this false accusation in or around 2018 of which was untrue). Another employee of Delta (name unknown at this time) also falsely stated that [Plaintiff] put Bailey’s Irish Cream in her coffee during a flight (this occurred in or around 2018).” (Id. ¶ 14(m).)

Plaintiff requested that defendant Ognovic stop spreading these rumors. In response “Ognovic pulled out pictures she had of [Plaintiff] with her head down as an intimidation tactic, demanding that [Plaintiff] ‘back off!’” (Id. ¶ 14(o).) Plaintiff complained about the numerous rumors to the in-flight manager and the base manager, who did nothing. (Ibid.)

“On April 11, 2018, [Plaintiff] lodged a written complaint with defendants’ manager Ann Johnson, recounting the bullying and slander she had endured thus far from defendants.” (Id. ¶ 14(p).) In response, “[o]n April 29, 2018, [Plaintiff] received an informal oral coaching warning for purportedly ‘creating crew conflict with gossiping.’” (Id. ¶ 14(q).)

“[D] efendants Kao and Lau continued to target [Plaintiff] with malicious conduct, including spreading rumors that she often stopped service to passengers so she could eat herself, all the while circulating old pictures of [Plaintiff] on flights.” (Id. ¶ 14(s).)

On May 8, 2018, Plaintiff filed another written report about harassment and bullying by co-workers. Specifically, “flight attendant defendant Redden, with whom [Plaintiff] had no history, unforeseeably verbally abused [Plaintiff] with such hostility that another flight attendant could not understand how [Plaintiff] was able to remain so calm during the attack.” (Id. ¶ 14(t).) Plaintiff reasonably believed that these unwarranted attacks stemmed from other flight attendants’ resentment of Plaintiff for the privileges that accompanied her age and seniority. Plaintiff’s complaint was again ignored. (Ibid.)

“On June 1, 2018, [Plaintiff] received an unfounded disciplinary action for purportedly removing catering items from the aircraft.” (Id. ¶ 14(u).) During a three-day international flight, on September 28, 2018, defendant Kao verbally harassed Plaintiff by “hostilely screaming at [Plaintiff] without provocation.” (Id. ¶ 14(w).) Upon returning to the U.S., defendant Kao filed a false complaint against Plaintiff. (Ibid.) A week later, defendant Kao assaulted Plaintiff “by throwing a large bag full of covers directly at her head.” (Id. ¶ 14(x).)

On October 23, 2018, Plaintiff was singled out to receive an informal oral coaching compliance warning for failing to adhere to the bag and room policy. (Id. ¶ 14(y).) On January 22, 2019, Plaintiff was written up for alleged “unprofessional interactions with a crew member” for the conduct during the September 28, 2018 flight. (Id. ¶ 14(z).) “When presented with this write-up, defendants did not consult [Plaintiff] to hear her side of the story.” (Ibid.) Rather, these defendants readily took the falsely made accusation as true. (Ibid.) Due to this write-up, Plaintiff was placed on a three-year period of probation. (Id. ¶ 14(aa).) At a meeting regarding the write up, Plaintiff’s manager at the time (Anne Johnson) read the write-up to Plaintiff, and Weese “just remained silent, assenting to Ms. Johnson’s write up and Kao’s complaints.” (Ibid.)

During a flight on March 13, 2019, Plaintiff was pulled away from completing her customs form to retrieve another glass of wine for a passenger. (Id. ¶ 14(bb).) Unbeknownst to Plaintiff, during this flight, the flight attendant defendants “intentionally placed Delta food products near her bag and took pictures to create the artificial impression that [Plaintiff] was stealing from the company.” (Id. ¶ 14(cc).) While Plaintiff was retrieving the glass of wine for the passenger, “a large plastic bin flew out of the chiller and hit [Plaintiff] on the forehead, causing her head to swell and leaving her dazed.” (Id. ¶ 14(bb).) Plaintiff attended to her injury and served her passenger. In filling out the customs form, Plaintiff “had inadvertently made a mistake on the form by failing to mark ‘yes’ under ‘animal products’ when she was rushing to serve the passenger and complete the form after the injury to her forehead[.]” (Id. ¶ 14(dd).) Upon arrival, Plaintiff was chosen for a random customs check during which Plaintiff orally corrected the error on her customs form by orally declaring that she had brought a small carton of milk. (Id. ¶ 14(dd).) Plaintiff had purchased the small carton of milk prior to the flight and had not taken the milk from the aircraft. Despite her oral declaration, Plaintiff was fined as “[a]pparently, the milk [Plaintiff] purchased was not sufficiently marked with the country of origin and, unlike defendant Delta’s catering items, would not be allowed through customs.” (Ibid.)

On April 15, 2019, Plaintiff was pulled into a meeting with Weese and a field service manager about this customs incident. (Id. ¶ 14(ee).) When interrogated during this meeting, Plaintiff admitted that she had taken the milk from the plane.[2] Previously, Misserian had advised Plaintiff that she would not get into trouble for taking milk off a plane, but that it might look bad. (Id. ¶ 14(ee).) Management ignored the fact that Plaintiff bought her own milk and pegged her as a thief and a liar. (Id. ¶ 14(ee).)

Later that day, Plaintiff “approached [] Misserian on April 15, 2019 to ask why she was being reprimanded for allegedly taking milk off the plane when Misserian had advised her that this was not a disciplinary offence.” (Id. ¶ 14(ff).) Misserian then lied and denied ever saying such a thing. (Ibid.)

The following day, on April 16, 2019, Plaintiff was summoned to a meeting with field service manager defendant Jesse, base director Weese, and another field service manager (Mark Liv). (Id. ¶ 14(gg).) “During this meeting, [Plaintiff] corrected her previous statement that she had taken milk off the aircraft by honestly stating that she had purchased the milk at a supermarket prior to her flight. Defendants refused to believe her because of alleged inconsistencies and even accused her of stealing nine (9) bowls of cereal provided for the flight.” (Ibid.) Defendant Paul had falsely accused Plaintiff of taking nine cereal bowls from the flight and milk from storage, falsely stating that “she [defendant Pamela] asked her [plaintiff] to take it out of her bag but she [plaintiff] refused.” (Ibid.) However, the individual in charge had confirmed that they were in fact short of these catered items at the beginning of the flight. (Ibid.) Plaintiff informed defendants that the accusations were false. However, defendants framed her complaints as diversions and ignored them. (Id. ¶ 14(hh).) At the end of the meeting, defendants informed Plaintiff that she was suspended without providing her with a reason for the suspension. (Id. ¶ 14(ii).)

On April 19, 2019, Plaintiff called Jesse to reiterate her complaints of harassment and of the false accusations against her. Jesse characterized Plaintiff’s complaints as a distraction. (Id. ¶ 14(kk).) Plaintiff sent multiple written reports detailing the false accusations against her on April 20, 2019, April 22, 2019, and April 23, 2019. (Id. ¶¶ 14(ll, nn, pp).) Plaintiff also forwarded an email from Misserian to demonstrate that Misserian had told her to just take milk off the plane. (Id. ¶¶ 14(kk, mm).)

“On April 22, 2019, defendants privately reached the decision to compel Ms. Gomez’s resignation and, if she refused, to terminate her employment.” (Id. ¶ 14(oo).) On April 26, 2019, another flight attendant confirmed that Plaintiff had not taken milk from the aircraft as all items were accounted for, but Defendants ignored this information. (Id. ¶ 14(qq).) “To make matters worse, defendants, and each of them, started spreading malicious rumors about the incident to the detriment of plaintiff’s reputation.” (Id. ¶¶ 14(rr).)

“On April 30, 2019, defendants submitted a summary of their investigation “falsely determined that [Plaintiff] stole two cartons of milk, two (or nine) of ten (or 12) bowls of cereal, two (or three) bags of chocolates, yogurt, all of the espresso, and an entire pizza, all during a single flight.” (Id. ¶¶14(ss).) Despite the absence of evidence, defendants decided that “after a spotless 56 years, Ms. Gomez had suddenly transformed into a thief who needed to be fired.” (Ibid.)

On May 8, 2019, Plaintiff sent a written complaint of this ongoing harassment to Goswani Rajan of Delta, which was ignored. (Id. ¶¶ 14(tt-uu).) “On May 23, 2019, defendants issued an ultimatum to [Plaintiff]: retire, or suffer employment termination and the loss of her pension.” (Id. ¶ 14(vv).) “On May 29, 2019, [Plaintiff] lodged another written complaint, asking if the decision to terminate her employment were because of her age.” (Id. ¶ 14 (ww).) On June 6, 2019, Plaintiff was fired. (Id. ¶ 14(xx).) “As a result of the sudden and wrongful termination of her employment, [Plaintiff] has suffered and continues to suffer severe emotional distress, including emotional distress, anxiety, and mental suffering.” (Id. ¶ 14(zz).)

In opposition, Plaintiff submits twenty-six objections to Defendant’s separate statement submitted in support of the instant motion. Many of these objections are improper under California Rules of Court, Rule 3.1354. Rule 3.1354 requires that the objecting party:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

As noted below, many of Plaintiff’s objections fail to comply with Rule 3.1354 and are objections directed at Defendant Delta’s proposed material facts – not to evidence. A court must rule on individual objections only when they are timely and in the proper form. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578.)

1-26: Plaintiff’s Objections 1-26 are not directed at evidence, but rather, undisputed material facts within Defendant Delta’s Separate Statement. Defendant Delta’s’ Separate Statement does not constitute evidence. As Plaintiff’s objections 1-26 are not proper evidentiary objections, the Court need not rule on these objections. In any event, if the Court were to rule on the merits, Plaintiff’s Objections 1-26 would be overruled.

In reply, Defendant Delta objects to the declaration of Daniel B. Henderson, the declaration of Ida Gomez Llanos, the declaration of Carolyn Petersen, the declaration of Catherine Kavanaugh, the declaration of Sylvia Towney-Peeler, the declaration of Patrick Lee Graham, the declaration of Alan Knapp, the declaration of Maureen Lang, the declaration of Laura Kauffman, the declaration of Denise Nelson, and the declaration of Michael Christopher Douglas.

In opposition, Plaintiff requests that the Court take judicial notice of the following:

An individual’s LinkedIn Profile Page is not a proper subject for judicial notice. Information on websites can reasonably be subject to dispute. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 888; Huitt v. Southern Cal. Gas Co. (2010) 188 Cal.App.4th 1586, 1605 n.10 [“Simply because information is on the Internet does not mean that it is not reasonably subject to dispute”]; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194 [“Nor may we take judicial notice of the truth of the contents of the Web sites and blogs, including those of the Los Angeles Times and Orange County Register. . . The contents of the Web sites and blogs are ‘plainly subject to interpretation and for that reason not subject to judicial notice. [Citation omitted]’].) Accordingly, Plaintiff’s request for judicial notice is DENIED.

Defendant Delta and Plaintiff have each submitted Undisputed Material Facts, which the court will reference as “DMF” for Defendant Delta’s Undisputed Material Facts and “PMF” for Plaintiff’s Undisputed Material Facts.

“In February 2018, [Plaintiff] received a written coaching due to her failure to work the position assigned to her during a flight and her payment to a co-worker to work her position (although the coworker returned the money). [Plaintiff] admits that the actions alleged against her would be a policy violation.” (DMF 6, 77, 106, 139, 172, 205, 238, 271, 298.) “The written coaching issued to [Plaintiff] in February 2018 specifically stated that ‘immediate and lasting improvement’ was required of [Plaintiff] and that ‘Any further misconduct or any infraction of Company policy or failure to meet Company requirements may result in further corrective action’.” (DMF 7, 78, 107, 140, 173, 206, 239, 272, 299.)

“In January 2019, [Plaintiff] received a Final Corrective Action Notice, which is the most serious form of discipline at Delta shy of termination. The Final Corrective Action Notice stated that ‘immediate and lasting improvement in’ her job performance was needed. The Final Corrective Action Notice also stated that failure to improve, or any infraction of Company policy or failure to meet Company standards may result in a recommendation for termination of employment.” (DMF 8, 79, 108, 141, 174, 207, 240, 273, 300.) “During the investigation, [Plaintiff] admitted that she had told Jenny Kao that she ‘looked like an angry pig because her nostrils were flaring and she was screaming.’” (DMF 12, 83, 112, 145, 178, 211, 244, 277, 304.)

“In March 2019, following a flight to Sydney, [Plaintiff] received a customs' fine for bringing prohibited items (i.e., milk) into the country.” (DMF 19, 90, 119, 152, 185, 218, 251, 284, 311.)

“Delta flight attendants have an hourly pay scale that tops out at 12 years of service.” (DMF 30, 130, 163, 196, 229, 262.) “Kao is 49 years old and has nearly 30 years of seniority as a flight attendant.” (DMF 34.) “[Plaintiff] is not LOD qualified and cannot bid for that position on international flights, regardless of her seniority. Kao does not recall there ever being a situation where she was outbid for a position on a flight by [Plaintiff].” (DMF 36.) “[Plaintiff] admitted she told Kao during the flight that she ‘looked like an angry pig because her nostrils were flaring.’” (DMF 42.) “[Plaintiff] did not make any attempts to stop flying with Kao after she claims Kao was harassing her.” (DMF 47.) “Jenny Kao did not work on either the March 2019 flight to Sydney nor the April 2019 flight to Shanghai.” (DMF 27, 98, 127, 160, 193, 226, 259, 292, 319.)

“[Plaintiff] believes that Lau was jealous of her seniority, but admits Lau never told her that.” (DMF 55.) “[Plaintiff] could see who was flying a particular flight, but even after she claims Barbara Lau harassed her, [Plaintiff] still chose to work with Barbara Lau.” (DMF 56.)

“Sharon Redden is seventy years old and has over forty-five (45) years of seniority.” (DMF 57.) “Redden does not recall ever having been outbid for a flight by [Plaintiff].” (DMF 58.)

“Pamela Paul is sixty-three (63) years old and has over forty-two (42) years of seniority.” (DMF 64.) “Paul was working in the Purser position on the flight, which is a supervisory position for purposes of the flight.” (DMF 67.)

“[Plaintiff]’s first, second, third and fourth causes of action are based on Government Code section 12900 et seq.” (DMF 99.)

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 § 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.)

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. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.)

Defendant Delta moves for summary judgment or in the alternative summary adjudication of the claims raised against them. Specifically, Defendant Delta moves for summary adjudication of each of Plaintiff’s first through tenth causes of action.

Defendant Delta contends that the first through fourth causes of action fail because Plaintiff failed to exhaust her administrative remedies.

Government Code section 12960 governs employment discrimination claims and requires, among other things, that the plaintiff file an administrative complaint before bringing a legal suit. Section 12960 limits claims to those that occurred, at most, one year before the filing of the administrative complaint. (Gov. Code § 12960(b)-(d).)^{^[3]}Thus, “[b]efore maintaining a legal action, a plaintiff must exhaust the administrative remedy of filing a timely complaint with the DFEH and obtaining permission to pursue legal remedies. [Citation.] The one-year period specified in the statute begins to run when the administrative remedy accrues, which is the occurrence of the unlawful practice.” (Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th 940, 945.) “Exhaustion of these procedures is mandatory; an employee may not proceed in court with a FEHA claim without first obtaining a right-to-sue letter.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 106.)

“The purpose of FEHA's administrative exhaustion requirement is to ensure DFEH is provided the opportunity to resolve disputes and eliminate unlawful employment practices through conciliation.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 156.) “It is plaintiff's burden to plead and prove the timely filing of the DFEH complaint.” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.)

“To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) “The law is quite clear that if an employee fails to file an administrative charge specifically identifying the alleged discrimination, and within one year of its occurrence, the subsequent lawsuit will be barred.” (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 631 disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019.) “Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.” (Gov. Code, § 12960(c).) However, “what 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.)

“The failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect. Thus, instead of abating an action as premature, a trial court must grant summary judgment and dismiss the suit upon a finding that a party has not exhausted his or her administrative remedies.” (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890.)

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) On a motion for summary judgment, or adjudication, a defendant need only “negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493.)

Here, Plaintiff alleges in the complaint that she filed a timely administrative complaint with DFEH and received a DFEH right-to-sue letter. (Complaint ¶ 19.) As noted above, to sue on a FEHA claim, Plaintiff had to receive a DFEH right-to-sue letter. (McDonald, supra 45 Cal.4th 88, at p.106.) Defendant Delta contends that Plaintiff did not file a complaint with DFEH and did not receive a right-to sue letter.

A defendant moving for summary judgment must show either that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) This means that if the plaintiff bears the burden of preponderance of the evidence at trial, then the defendant in a summary adjudication motion “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, [the defendant] 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 (Aguilar).) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Id. at p.854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p.855.)

In support of its motion for summary adjudication, Defendant Delta cites to the deposition of the Plaintiff. During her deposition, Plaintiff was asked if she has “ever filed a Department of Fair Employment & Housing complaint.” (Findley Decl. ¶ 3, Exh. A. [Gomez Depo. at p.163:22-23].) Plaintiff responded, “What kind of complaint? Obviously, I haven’t if I don’t know what it is. What is it? . . .Not that I know of, but I’ve been surprised by other things, so –.” (Findley Decl. ¶ 3, Exh. A, [Gomez Depo. at pp.163:24-164:5].) While this deposition demonstrates Plaintiff’s confusion about DFEH, it does not definitively prove Plaintiff did not file an administrative complaint with DFEH. At best, this testimony demonstrates Plaintiff’s unfamiliarity with the legal system. Earlier in the deposition, Plaintiff was similarly confused about what a “complaint” is, asking “What complaint? Was there a complaint about me?” (Findley Decl. ¶ 3, Exh. A, [Gomez Depo. at p.163:9-10.) After it was clarified that the complaint was filed on her behalf, Plaintiff responded, “Oh, oh, oh. Oh, I see. I’m the plaintiff. Okay. What exactly is FEHA?” (Findley Decl. ¶ 3, Exh. A, [Gomez Depo. at p.163:13-14.) Defendant fails to demonstrate that Plaintiff’s confusion about FEHA affirmatively proves that Plaintiff failed to file a complaint with the DFEH.

Defendant also presents a declaration from Defendant’s attorney Amy Wintersheimer Findley, who states that Defendant submitted a Request for Production of Documents “which in any way evidence, relate, or otherwise pertain to any other formal complaints filed by [Plaintiff], or filed by others on [Plaintiff’s] behalf including but not limited to any lawsuits, state or federal, administrative complaints.” (Findley Decl. ¶ 13, Exh DD [Request for Admission 4].) Findley states that despite this request, Plaintiff’s counsel did not produce a DFEH complaint or a Right to Sue letter from the DFEH. (Findley Decl. ¶ 13, Exh DD [Request for Admission 4].)

Findley’s declaration and the request for admission response fail to prove that as a matter of law, Plaintiff did not file a DEFH complaint. As noted above, merely pointing to the absence of Plaintiff’s DFEH complaint is insufficient to meet the burden of proof set forth in a summary judgment motion. To meet its moving burden, Defendant Delta would need to put forth evidence which shows that Plaintiff is incapable of providing the DFEH complaint and right-to-sue letter. However, Defendant Delta fails to do so.

Accordingly, Defendant Delta fails to meet its moving burden in showing that the FEHA claims are barred by Plaintiff’s failure to exhaust administrative remedies.

Even if Defendant Delta were successful in meeting its moving burden, Plaintiff demonstrates a triable issue of fact by submitting her DFEH right-to-sue notice and DFEH right-to-sue amended notices. (Henderson Decl. ¶¶ 80-81, Ex. 52 [DFEH Right to Sue Notice and DFEH Amended Right to Sue Notice].)

Accordingly, Defendant Delta’s motion for summary adjudication of the first through fourth causes of action on the ground that Plaintiff failed to timely exhaust administrative remedies is DENIED.

Defendant Delta asserts that the first cause of action for disability discrimination fails because there was a legitimate, non-discriminatory reason for Plaintiff’s termination.

“In analyzing claims of discrimination under FEHA, California courts have long used the three-stage burden-shifting approach established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, (McDonnell Douglas) for the analysis of Title VII (42 U.S.C. § 2000e et seq.) employment discrimination claims. [Citations.] The McDonnell Douglas test ‘reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.’ [Citations.]” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181; see also Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108–1109 [“When a plaintiff alleges retaliatory employment termination either as a claim under the FEHA or as a claim for wrongful employment termination in violation of public policy, and the defendant seeks summary judgment, California follows the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, to determine whether there are triable issues of fact for resolution by a jury.”].)

“Under the McDonnell Douglas test a plaintiff may establish a prima facie case for unlawful discrimination by providing evidence that ‘(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some circumstance suggests discriminatory motive.’ [Citations.]” (Husman, supra, 12 Cal.App.5th at 1181.)

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at p.355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at pp.355-356.) As the Supreme Court explained in Guz v. Bechtel, “‘legitimate’ reasons [citation] … are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]” (See id. at 358 (italics in original and footnote omitted).) “While the objective soundness of an employer’s proffered reasons supports their credibility . . . the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.” (Guz, supra, 24 Cal.4th at p.358.) The employer’s “reasons need not necessarily have been wise or correct.” (Id.) In other words, as long as the employer honestly believed in the facially unrelated reason, it is irrelevant whether the employer’s reason is trivial, (See Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147, 1157 [professor’s tenure denied based on “academic politics”]), or even completely untrue (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [driver accused of falsifying timecard]).

Finally, if the defendant meets its burden, “the presumption of discrimination disappears.” (Guz, supra, 24 Cal.4th at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely a pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee’s job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that 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.” (Id.)

On a motion for summary judgment, the employer must present admissible evidence that under the undisputed material facts, (1) one or more elements of the plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In other words, the initial burden on summary judgment remains with the moving party at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432; Arteaga, supra, 163 Cal.App.4th at p.344 [“in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue... In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.”].)

As a preliminary matter, the Court notes that a “cause of action is based on the injury to the plaintiff, not on the legal theory or theories advanced to characterize it. Thus, if a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action. On the other hand, if a plaintiff alleges that the defendant's single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.” (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364.) Thus, when plaintiffs plead by combining their causes of action, the defendant “remains entitled to present summary adjudication motions that dispose of allegations which would have formed a single cause of action if properly pleaded.” (Exxon Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1688, Fn. 11.)

Here, the first cause of action for discrimination is two separate causes of action for discrimination: one for discrimination based on age and a second for discrimination based on sex. As a result, the facts underlying Plaintiff’s claim for discrimination based on age would be different than those based on sex if Plaintiff had properly pled the action as two separate causes of action. Thus, Defendant Delta may separately move for summary adjudication of the claim for discrimination based on age and also move for summary adjudication of the claim for discrimination based on sex.

As noted above, “the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto, supra, 181 Cal.App.4th at p.74.) Here, the pleadings in relevant part allege that Plaintiff’s sex and age were the motivating factors in Delta’s decision to terminate and not retain Plaintiff. (Complaint ¶ 22.) The complaint does not identify any other specific adverse actions taken by Defendant Delta. Thus, the adverse action alleged is the termination of Plaintiff.

Defendant Delta asserts that there was a non-discriminatory reason for Plaintiff’s termination – i.e., that Plaintiff was terminated for engaging in various misconduct and policy violations.

Andrea Misserian – the General Manager, IFS Field Operations for Los Angeles and San Francisco – states that Plaintiff was the most senior flight attendant based at LAX in 2019. (Misserian Decl. ¶ 3.) “Flight attendants are assigned to flights based on a monthly bid process. Delta publishes a flight schedule of all scheduled flights for the next month. Bids are submitted by the flight attendants, typically by the 15th of the month prior. It is a seniority system, meaning that the requests of the most senior flight attendants are awarded first. In this initial bid process, flight attendants are given flight assignments that total a maximum of between 80 - 95 hours per month.” (Misserian Decl. ¶ 4.)

Plaintiff typically bid on three to four round trip flights to Shanghai, Tokyo (Haneda), and Sydney, which assignments Plaintiff would typically receive due to her seniority at Delta. (Misserian Decl. ¶ 6.) Moreover, Plaintiff was qualified to bid for Purser positions on international flights until February 2018. (Misserian Decl. ¶ 10.) “The Purser position is an important one on a flight and is a position that requires special training and qualifications and for which Delta pays the flight attendant a higher rate of pay.” (Misserian Decl. ¶ 13.)

In December 2015, Delta management received photos depicting Plaintiff asleep on a jump seat in her flight uniform. (Misserian Decl. ¶ 12.) The base manager, Micky McCormick-Jamison investigated the incident and concluded that due to the fact that there were no witness, dates, or times and due to Plaintiff’s clean file, Plaintiff was to be given an Informal Verbal Coaching. (Misserian Decl. ¶ 12, Exh. E.)

In fall of 2017, Misserian was informed that Plaintiff had not worked her Purser position in the main cabin for an international flight on September 17, 2017 and instead had paid another flight attendant to work it. (Misserian Decl. ¶ 13.) At her deposition, Plaintiff testified that she had “no doubt whatsoever” that Rick Hammrich was the individual who reported that Plaintiff allegedly switched positions on the September 17^th flight. (Findley Decl. ¶ 3, Exh. A. [Gomez Depo. at p.198:6-14].) Misserian spoke with Plaintiff on November 23, 2017 and informed Plaintiff that she needed to work her position in the main cabin and that having someone else work her position was against company policy. (Misserian Decl. ¶ 13, Exh. G [February 5, 2018, Written Coaching].) During her deposition, Plaintiff agreed that the conduct of which Plaintiff was accused, if true, would be a policy violation. (Findley Decl. ¶ 3, Exh. A. [Gomez Depo. at p.198:23-25].) Misserian states that after the November 23, 2017 flight, Misserian learned that Plaintiff did not work her position on the November 23, 2017 flight. (Misserian Decl. ¶ 13.) On February 5, 2018, Plaintiff was given written coaching that removed Plaintiff from the Purser program and prevented Plaintiff’s assignment as a Purser for 18 months. Plaintiff was informed in the written coaching that “[a]ny further misconduct or any infraction of Company policy or failure to meet Company requirements may result in further corrective action.” (Misserian Decl. ¶ 13, Exh. G [February 5, 2018, Written Coaching].)

Plaintiff’s direct supervisor – Ann Johnson – states that in early 2018, Johnson was informed that Plaintiff may have taken dishware off an aircraft and was using the dishware in the flight attendant lounge. (Johnson Decl. ¶ 6, Exh. D [Portion of Performance Development Details].) Plaintiff stated she felt that people were out to get her fired and denied taking any dishware off any flight but was given an Informal Verbal Coaching. Plaintiff was informed that because Plaintiff was seen using Delta dishware in the lounge, it appeared as though Plaintiff had taken such dishware. (Johnson Decl. ¶ 6, Exh. D [Portion of Performance Development Details].) Johnson states that she gave her a flowered coffee mug so Plaintiff could use that instead in the lounge. (Johnson Decl. ¶ 6, Exh. D [Portion of Performance Development Details].) Johnson also discussed with Plaintiff recent pictures that had been submitted to Delta showing Plaintiff sleeping on an aircraft in her flight attendant unform. (Johnson Decl. ¶ 7, Exh. D [Portion of Performance Development Details].)

Plaintiff’s supervisor notes that in 2018, Delta had a room to store bags for all 1,600 to 1,700 flight attendants stationed at LAX. (Johnson Decl. ¶ 4.) Given the number of flight attendants and the limited space, only a limited number of personal items were permitted while Flight Attendants were traveling. (Johnson Decl. ¶ 4.) However, in violation of the bag room policy, Plaintiff would store three luggage type bags and numerous other plastic bags. (Johnson Decl. ¶ 4.) On June 2, 2018, Johnson spoke with Plaintiff about adhering to the bag room policy. (Johnson Decl. ¶ 4, Exh. B [Portion of Performance Development Details and Emails Regarding Bag Policy].) On September 28, 2018, October 9, 2018, and October 22, 2018 Plaintiff was again addressed about having too many bags in the bag room and needing to remove them. (Johnson Decl. ¶ 4, Exh. B [Performance Development Details and Emails Regarding Bag Policy].) On October 23, 2018, Plaintiff received an Informal Verbal Coaching for Plaintiff’s failure to adhere to the bag room policies. (Johnson Decl. ¶ 4, Exh. B [Portion of Performance Development Details and Emails Regarding Bag Policy].) During her deposition, Plaintiff admitted that she had one too many bags in the bag room and tote bags in the bag room. (Findley Decl. ¶ 3, Exh. A. [Gomez Depo. at pp.179:1-184:12].)

Following international flights to and from Shanghai in late September 2018, Jenny Kao contacted Misserian to discuss a verbal altercation with Plaintiff and concerns about Plaintiff during that flight. (Misserian Decl. ¶ 14, Exh. I [Email from Kao to Misserian].) Kao accused Plaintiff of telling Kao to “shut up”, calling Kao “fat, ugly, evil,” “garbage”, and telling her to “zip-it” during the flights and in front of passengers. (Misserian Decl. ¶ 14, Exh. I [email from Kao to Misserian].) In addition, Kao accused Plaintiff of being slow with service and constantly not being at her cart. (Misserian Decl. ¶ 14, Exh. I [Email from Kao to Misserian].)

Jeffrey Weese, the Base Director, and Ann Johnson, Plaintiff’s supervisor, conducted an investigation of Kao’s accusations against Plaintiff. (Misserian Decl. ¶ 14; Johnson Decl. ¶ 9.) During this investigation, Johnson interviewed multiple flight attendants who were witnesses. (Johnson Decl. ¶ 10, Exh. J [Investigation Summary – Crew Conflict].) They interviewed a total of ten flight attendants, including Kao. (Johnson Decl. ¶ 10, Exh. J [Investigation Summary – Crew Conflict].) Of these ten flight attendants, two stated that they did not see anything. The other eight flight attendants confirmed Kao’s allegations of Plaintiff’s statements, that Plaintiff left her cart unattended, that Plaintiff failed to follow safety instructions from the pilot, and that Plaintiff had taken items off of the aircraft. (Johnson Decl. ¶¶ 9-10, 12, Exh. J [Investigation Summary – Crew Conflict].) During this investigation, Johnson also obtained Plaintiff’s written responses to various issues. In her written responses, Plaintiff claimed that Kao was harassing Plaintiff. (Johnson Decl. ¶ 10, Exh. K [Plaintiff’s Witness Statements].) However, Johnson did not find any flight attendants to support Plaintiff’s contentions. (Johnson Decl. ¶ 10.) In addition, during the investigation, Plaintiff was told to keep the investigation confidential; however, Johnson was informed that Plaintiff had been discussing the details of the investigation with uninvolved co-workers. (Johnson Decl. ¶ 11, Exh. L [Gomez Statements Involving Disclosure of Investigation].)

While this investigation was ongoing, in November 2018, Johnson had an Informal Verbal Coaching with Plaintiff regarding uniform compliance because Plaintiff did not have a required outer garment when leaving for an international trip on November 1, 2018. (Johnson Decl. ¶ 5, Exh. C [Portion of Performance Development Details].)

Johnson prepared an executive summary detailing the investigation of Kao’s allegations concluding that “[Plaintiff] is not meeting Delta's expectations and continually creates an unprofessional work environment with coworkers. [Plaintiff] does accept responsibility for her actions as evident in her conflicting statements. [Plaintiff] violated Delta polices, by storing Delta service items before serving customers and removing catering items, along with not respecting confidentiality by sharing specifics regarding this investigation with other co-workers.” (Johnson Decl. ¶ 13, Exh. M [Executive Summary].) Johnson further concluded that Plaintiff removed catering items off the aircraft. Plaintiff admitted to removing milk off the aircraft, which is in violation of Delta’s policy prohibiting employees from taking catering items intended for customers. (Johnson Decl. ¶ 13, Exh. M [Executive Summary]; Misserian Decl. ¶ 19, Exh. FF [The Way We Fly].) After a review with HR of comparable cases and Plaintiff’s seniority, “the base recommendation [was] a Final Corrective Action Notice.” (Johnson Decl. ¶ 13, Exh. M [Executive Summary].)

On January 22, 2019, Plaintiff was issued a Final Corrective Action Notice, which provided that “[i]mmediate and lasting improvement in [Plaintiff’s] job performance is needed. Failure to improve this area of [Plaintiff’s] performance, or any infraction of Company policy or failure to meet Company standards may result in a recommendation for termination of [Plaintiff’s] employment.” (Misserian Decl. ¶ 14, Exh. H [Final Corrective Action Notice].)

In March 2019, following an international flight from Sydney, Plaintiff was detained and fined for not declaring milk on entry into Australia. (Findley Decl. ¶ 3, Exh. A. [Gomez Depo. at p.369:20-370:24]; Misserian Decl. ¶ 16, Exh. N [Statements Regarding Customs Incident]; Findley Decl. ¶ 4, Exh. R [Weese Depo. at pp.32:5-8, 56:2-16].) The detention caused the entire flight crew to be delayed 45min to 1 hour following the flight from LAX to Sydney. (Misserian Decl. ¶ 16, Exhs. P-Q [Emails and Summary Regarding Customs Incident]; Findley Decl. ¶ 4, Exh. R [Weese Depo. at p. 56:2-16].) Jeffrey Weese, Defendant Delta’s Base Director for LAX, and Jake Jesse, Plaintiff’s Field Service Manager at the time, investigated this incident. (Misserian Decl. ¶ 16.) Weese and Jesse found that because Plaintiff described taking the milk off of the plane, Plaintiff was continuing to remove catering items from the aircraft despite the prior notice warning Plaintiff not to do so. (Misserian Decl. ¶ 16, Exh. O [Executive Summary].) Weese and Jesse concluded that Plaintiff should be suspended with review for continued employment. (Misserian Decl. ¶ 16, Exh. O [Executive Summary].)

While this investigation was ongoing, Pamela Paul submitted another report of misconduct regarding Plaintiff taking milk off an aircraft during an April 2019 flight, missing cereal, and two cereal bowls full of cereal found on top of Plaintiff’s bag. (Misserian Decl. ¶ 17, Exhs. T-U, [Email Report from Pamela Paul and Notes Summarizing a discussion with Pamela Paul regarding the allegations].)

“At the conclusion of the investigation and after review and consultation with Human Resources, the decision was made to terminate [Plaintiff]’s employment because of her continued failure to follow Company policy, despite repeated coaching and counseling. [Plaintiff] was given the option to resign in lieu of termination or to retire. [Plaintiff] declined these options and accordingly her termination was effective in June 2019.” (Misserian Decl. ¶ 18, Exh. V [Termination Letter].)

In sum, Defendant Delta’s evidence details multiple years of mostly minor misconduct culminating in a verbal altercation, failing to perform Plaintiff’s job, and allegations of stealing milk arising during a flight to and from Shanghai, resulting in a final warning. After receiving a final warning, Plaintiff was held in customs for failing to declare milk that Plaintiff purportedly admitted to Weese and Jesse was taken from the aircraft, which caused an hour-long delay for the flight crew. Delta subsequently received allegations that Plaintiff had again stolen milk and cereal from the aircraft. This evidence does sufficiently show that Defendant Delta terminated Plaintiff based on a pattern and series of reported misconduct and not based on protected characteristics such as age or sex such that Delta meets its moving burden in showing that it is entitled to judgment as a matter of law. Accordingly, the burden shifts to Plaintiff to show pretext.

Once an employer satisfies its initial burden of proving the legitimacy of its reason for termination, the discharged employee seeking to avert summary judgment must present specific and substantial responsive evidence that the employer's evidence was in fact insufficient or that there is a triable issue of fact material to the employer's motive. [Citations.] In other words, plaintiff must produce substantial responsive evidence to show that [the employer]'s ostensible motive was pretextual; that is, “that a discriminatory [or retaliatory] reason more likely motivated the employer or that the employer's explanation is unworthy of credence.” [Citation.]

While we must liberally construe plaintiff's showing and resolve any doubts about the propriety of a summary judgment in plaintiff's favor, plaintiff's evidence remains subject to careful scrutiny. [Citation.] We can find a triable issue of material fact “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” [Citation.] Moreover, plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations. [Citation.] And finally, plaintiff's evidence must relate to the motivation of the decision makers to prove, by nonspeculative evidence, an actual causal link between prohibited motivation and termination. [Citation.]

“Pretext may also be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination.” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479.) “An employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the reasons offered by the employer for the employment decision that a reasonable trier of fact could rationally find the reasons not credible, and thereby infer the employer did not act for the stated nondiscriminatory purpose.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1007.)

Here, Plaintiff presents sufficient evidence from which a reasonable juror could find that Delta’s purported reason for terminating Plaintiff was pretextual and that age discrimination was the actual motivation for Plaintiff’s termination. First, Plaintiff notes in her declaration that she never received any discipline from Delta until 2016 -- when she was 75 years old. (Llanos Decl. ¶ 2.) Five former flight attendants and a Captain who flew with Plaintiff during her last few years with Delta state that Plaintiff provided excellent customer service and “ran circles” around other flight attendants. (Peterson Decl. ¶ 9; Kavanaugh Decl. ¶ 18; Peeler ¶ 5; Graham Decl. ¶¶ 4-5; Knapp Decl. ¶ 5; Lang Decl. ¶¶ 7-8.) Even during the time that Plaintiff was receiving informal verbal coaching, in 2017, Plaintiff received a commendation luncheon for the top 1% of flight attendants for customer compliments. (Henderson Decl. ¶ 7, Exh. 55 [Misserian Depo. at pp.38:16-40:4].)

Second, there is evidence indicating that the conduct for which Plaintiff was purportedly terminated was insufficient to motivate discharge or event discipline against other flight attendants under similar circumstances. Carolyn Peterson, a flight attendant for Delta from 1990 to 2020 who worked primarily from LAX, noted that she “regularly saw flight attendants take items off Delta aircraft including but not limited to wine, dishes, glasses, food, snacks, drinks, amenity kits and Oshibori towels. [Peterson] do[es] not recall flight attendants ever being told they could not take perishable food items off aircraft and [Peterson] believed it was permissible to take perishable food off an aircraft.” (Peterson Decl. ¶¶ 2, 7.)

Catherine Kavanaugh, another long-term former flight attendant for Delta who retired in 2020, “personally saw both flight attendants and pilots place food and beverage items in their backpacks or luggage and saw these pilots and flight attendants walk off flights [Kavanaugh] worked. [Kavanaugh] recall[s] seeing flight attendants and/or pilots take San Pellegrino Sparkling Water, cartons of milk, bottles of water, bottles of wine, crew snacks and meals, used Oshibori towels, nuts, cereal and other food items off flights. This practice in [Kavanaugh’s] experience was known by supervisors at Delta and a majority of the flight attendants and crew. Very seldom was anyone ever disciplined for the practice of taking items off aircraft as it was common knowledge at Delta that this occurred.” (Kavanaugh Decl. ¶ 3.) Kavanaugh noted that if a flight attendant was disciplined or terminated, that is something that she would learn usually through gossip. (Kavanaugh Decl. ¶ 4.) Kavanaugh saw flight attendants eat in the aisles without being disciplined, saw verbal arguments amongst flight attendants in front of passengers without being disciplined, was on flights were crew members were delayed going through customs without discipline, saw flight attendants leave meal carts unattended for short periods without discipline, and regularly witnessed flight attendants flight attendants not having meal carts ready in a timely fashion without discipline. (Kavanaugh Decl. ¶¶ 5-6, 8-10.) Moreover, Kavanaugh states that she has seen multiple flight attendants swap positions with other flight attendants; “[i]t was a daily practice that flight attendants did not work their bid position on the pre-flight bid sheet.” (Kavanaugh Decl. ¶ 11.) Moreover, this practice regularly happened without discipline. (Kavanaugh Decl. ¶ 11.) In fact, Kavanaugh states that she personally paid – the difference for working as a Purser B – and swapped with another flight attendant to work the Purser B position on a flight because Kavanaugh was unfamiliar with the role, and the other flight attendant had volunteered and regularly worked the Purser B position. The Purser A recommended the switch to provide the best customer service possible because the Purser B position was regularly assigned to the most senior person regardless of qualifications. (Kavanaugh Decl. ¶¶ 12-13.)

Alan Knapp, a former long-term flight attendant of Delta, stated that he knew of many employees that had taking food items without any discipline. (Knapp Decl. ¶¶ 1, 8.)

Maureen Lang, a former lead Flight Attendant with Delta from 1989 to 2012 (Lang Decl. ¶¶ 2-4), “personally observed – on a regular basis – numerous flight attendants and crew specifically removing milk containers, water bottles, and other similar airline provisions from the flights for their own personal use. [Lang] saw flight attendants consuming such products on the airplanes. [Lang] saw flight attendants taking such provisions from the airplanes and consuming them later while off work. Never – not once – did any of these flight attendants get reprimanded – much less suspended, demoted, or discharged for these actions.” (Lang Decl. ¶ 10.)

Laura Kauffman a former flight attendant for Delta for 18 years “recall[s] flight attendants and staff being allowed to eat provisions from in-flight services, as the food would be disposed of at the end of the flight regardless.” (Kauffman Decl. ¶¶ 3, 7.) Based on Kauffman’s experience “[t]his behavior was not frowned upon, but was rather commonplace in our industry and practice[.]” (Kauffman Decl. ¶ 7.)

Denise Nelson a former flight attendant Purser A noted that “[i]n all [her] years working as a flight attendant, and throughout [her] employment with Delta, [Nelson] have never seen a scenario where an employee had been terminated over utilizing provisions from onboard a flight, including milk, as it was the norm for flight crew to utilize these provisions. Milk in particular was difficult to purchase in countries internationally so this was an act that occurred with quite regularity, and was never frowned upon.” (Nelson Decl. ¶¶ 3, 12.)

Nelson Serieux, a current long term flight attendant with Delta, testified at deposition that flight attendants regularly take leftover food, milk, snacks, and sodas off of flights in violation of Delta’s policy. (Henderson Decl. ¶ 15, Exh. 63 [Serieux Depo. at pp.26:2-29:5].) Serieux has repeatedly seen flight attendants leave meal carts more than the FAA-regulated distance away without discipline. (Henderson Decl. ¶ 15, Exh. 63 [Serieux Depo. at p.34:5-24].) Similarly, Serieux is aware of flight attendants not setting up meal and beverage carts in a timely manner, but there was no discipline for such practice. (Henderson Decl. ¶ 15, Exh. 63 [Serieux Depo. at pp.37:21-38:13.) Further, Serieux noted getting delayed in customs happened a few times without any discipline by Delta. (Henderson Decl. ¶ 15, Exh. 63 [Serieux Depo. at pp.44:11-45:23, 47:12-22].) Serieux even noted that in 2021, a flight attendant was delayed in customs in Sydney for bringing yogurt but was not disciplined. (Henderson Decl. ¶ 15, Exh. 63 [Serieux Depo. at pp.44:11-45:23, 47:12-22].) In addition, Plaintiff points to further depositions by current and former flight attendants attesting to the same facts. (See e.g., Henderson Decl.¶ 13, Exh. 61, [Whitley Depo at pp.12:11-20:24]; Henderson Decl. ¶ 25, Exh. 74, [Russo Depo at pp.12:20-14:4, 20:2-21:20, 24:8-30:17].) In addition, Plaintiff’s supervisor, Misserian, admitted at her deposition that taking milk off an aircraft alone would not justify termination. (Henderson Decl. ¶ 7, Exh. 55 [Misserian Depo. at p.114:6-8].)

Third, Plaintiff has presented evidence from which a reasonable juror could infer that Delta had a discriminatory motive in terminating Plaintiff. For example, Jennifer Martin – Delta’s managing director of IFS hiring – stated in an email to Susan Judson – Delta’s managing director of in-flight services overseeing all Flight Attendants – that “[Plaintiff] is 50+ yr FA. No FA likes her or enjoys flying her anymore. Hi flyer. People recirculate photos of her sleeping on is to get her in trouble. Suspected of taking things of aircraft. HR has said we can't make her retire and seniority makes it so we give her slaps on the wrist.” (Henderson Decl. ¶ 65, Exh. 37 [March 7, 2019 email] [italics added].) On April 15, 2019, Judson emailed Martin “Did you brief Allison [Plaintiff’s] FCAN in Jan?”. (Henderson Decl. ¶ 66, Exh. 38 [April 15, 2019 Email].) In response, Judson stated that “[n]o I think because it didn’t go as far as we wanted it to and stopped with FCAN … [n]ow with a Govt fine we should have a leg to stand on across the board and move her to retire, post suspension.” (Henderson Decl. ¶ 66, Exh. 38 [April 15, 2019 Email], [italics added].)

On April 26, 2019 – prior to Plaintiff’s termination -- there was a call including Brian Bourdreau, Susan Judson, Andrea Misserian, Tawana Wilder, Tracy Gallegos, and Mary Wisniewski about Plaintiff. (Henderson Decl. ¶ , Exh. 35 [Mandatory Call].) On May 8, 2019, Susan Judson emailed Mary Wisniewski, Tracy Gallegos, Andrea Misserian, and Brian Bourdreau regarding Plaintiff’s termination that “we reframe this to complaints vs taking milk off the a/c. If we have TSA statements about [Plaintiff] brining [sic] items into US without declaring – that is a positive. Let’s talk.” (Henderson Decl. ¶ 70, Exh. 42 [May 9, 2019 Email].)

As Jake Jesse notes, nearly all of these individuals were directly involved with the determination to terminate Plaintiff. The notice of termination is signed by Jake Jesse. (Misserian Decl. ¶ 18, Exh. V [Termination Letter].) Jesse testified that Brian Bourdreau, Andrea Misserian, Jeffrey Wesse, Tray Gallegos or Tawana Wilder, and Jesse were involved in the decision to terminate Plaintiff. (Henderson Decl. ¶ 5, Exh. 56, [Jesse Depo. at pp.58:2-59:15].)

In sum, Plaintiff’s evidence raises a clear triable issue of fact. Plaintiff’s exemplary performance and being awarded for exemplary performance as a Flight Attendant while at the same time being punished for conduct that would otherwise be insufficient to motivate discharge are indicators of pretext. (Hanson, supra, 74 Cal.App.4th at p.224.) Similarly, the emails between Jennifer Martin and Susan Judson – in the light most favorable to Plaintiff – indicate that Delta was attempting to force Plaintiff into retirement – another indication of age discrimination. (See Gov. Code, § 12942(a).) This is especially so given that Judson – a high level executive – was in contact and discussing how to frame Plaintiff’s termination with nearly every direct decision maker who decided to terminate Plaintiff. Accordingly, a reasonable juror could find that Delta terminated Plaintiff based on her age. Therefore, as there is a triable issue of fact, Defendant Delta’s motion for summary adjudication of the first cause of action for age discrimination is DENIED.

As to sex discrimination, Plaintiff makes no argument in the memorandum and fails to present any evidence showing that Delta discriminated against Plaintiff based on sex. Accordingly, Plaintiff fails to show a triable issue of fact as to Plaintiff’s claim for sex discrimination. Therefore, Defendant Delta’s motion for summary adjudication of the first cause of action for sex discrimination is GRANTED.

“‘[I]n order to establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.’ [Citation.] The requisite ‘causal link’ may be shown by the temporal relationship between the protected activity and the adverse employment action. [Citations.]” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 90–91.) “If any employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas burden-shifting analysis to the employee’s claim. [Citation.]” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244.)

Defendant Delta contends that the third cause of action for retaliation under FEHA fails because Plaintiff was terminated for a legitimate, nonretaliatory reason. As discussed in detail above with the first cause of action, Defendant Delta meets its moving burden.

As noted in detail with the first cause of action, Plaintiff presents evidence showing that the claimed basis for termination was insufficient to motivate discharge and that Plaintiff was an excellent employee. With regard to evidence of retaliation, on May 5, 2018 Plaintiff filed a handwritten complaint with her supervisor Ann Johnson. (Llanos Decl. ¶ 7, Exh. 6, [May 5, 2018 Complaint].) The May 5, 2018 complaint stated that Plaintiff is being bullied and maliciously slandered by several flight attendants with the worst being Ann Marie Ognovic. (Llanos Decl. ¶ 7, Exh. 6, [May 5, 2018 Complaint].) Plaintiff alleged that these flight attendants are trying to get Plaintiff fired by spreading rumors that Plaintiff was stealing items, putting sleeping drugs in her coffee, and then immediately taking pictures of Plaintiff if her head droops. (Llanos Decl. ¶ 7, Exh. 6, [May 5, 2018 Complaint].)

On November 4, 2018, Plaintiff submitted another handwritten complaint to Ana Johnson and Jeffrey Weese regarding the Shanghai flights in late September. (Llanos Decl. ¶ 8, Exh. 7 [November 4, 2018 Complaint].) Plaintiff alleged that Jenny Kao had been screaming and yelling at her in front of passengers and disputed the allegations raised by Kao and others as slander and unsupported. (Llanos Decl. ¶ 8, Exh. 7 [November 4, 2018 Complaint].) In 2018, Plaintiff submitted another complaint to Delta asking Delta to address the rumors about her putting Bailey’s Irish Cream in her coffee despite Plaintiff not drinking alcohol. (Llanos Decl. ¶ 9, Exh. 9 [2018 Complaint].)

On April 14, 2019, Plaintiff submitted a handwritten complaint in response to being suspended. (Llanos Decl. ¶ 11, Exh. 14 [April 14, 2019 Complaint].) Plaintiff stated in the complaint that Andrea Misserian had told Plaintiff that Plaintiff could not get in trouble for taking a small carton of milk but that it just did not look good. (Llanos Decl. ¶ 11, Exh. 14 [April 14, 2019 Complaint].) Plaintiff then stated that Jenny Kao and Barbara Lau had been making lies about her and that the harassment from other flight attendants was based on Plaintiff’s seniority. (Llanos Decl. ¶ 11, Exh. 14 [April 14, 2019 Complaint].) On April 20, 2022, Plaintiff submitted a complaint that the allegations against Plaintiff were being made by Flight Attendants who were jealous of Plaintiff’s bidding position and gave witnesses that would collaborate Plaintiff’s claims that she had been harassed for a long time. (Llanos Decl. ¶ 14, Exh. 18 [April 20, 2019 Complaint].) On April 22, 2022, Plaintiff submitted a complaint noting that Kao had hurled a bag at Plaintiff’s head in September 2018 and that none of the allegations by Kao against Plaintiff were true. (Llanos Decl. ¶ 15, Exh. 19 [April 22, 2019 Complaint].) On April 23, 2022, Plaintiff submitted another handwritten complaint restating that Andrea Misserian told Plaintiff that taking milk off the aircraft could not get Plaintiff in trouble. (Llanos Decl. ¶ 16, Exh. 20 [April 23, 2019 Complaint].) Plaintiff restated that the allegations against her was false indicating to withdrawn claims by other flight attendants indicating as such and restating the allegation that Kao harassed Plaintiff on the late September 2018 flights. (Llanos Decl. ¶ 16, Exh. 20 [April 23, 2019 Complaint].)

On May 8, 2019, Plaintiff submitted another handwritten note to Delta complaining that Kao and Lau were bragging about making up lies to get Plaintiff on probation and fired. (Llanos Decl. ¶ 17, Exh. 21 [May 8, 2019 Complaint].)

On May 23, 2019, within less than a month Plaintiff was terminated. (Misserian Decl. ¶ 18, Exh. V [Termination Letter].) Given the relative short proximity of Plaintiff’s repeated claims – predating most if not all of the alleged policy violations – that Plaintiff was being harassed by other flight attendants. The temporal proximity of the complaints from Plaintiff’s termination – in the light most favorable to Plaintiff – do indicate that Plaintiff may have been terminated for making these repeated complaints of harassment by other flight attendants.

In Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, the Court of Appeal found that “temporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action, does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer's articulated reason was untrue and pretextual.” (Id. at p.1112.) In Loggins, an anonymous complaint was made against the plaintiff employee for misusing work materials. Three days later, Plaintiff made a complaint. Within a week, Plaintiff was put on suspension based on the allegation of misusing work materials. (Id. at p.1106.) The Court of Appeal found that the temporal proximity alone of the complaint to the suspension was insufficient to rebut the asserted legitimate business reason for Plaintiff’s termination. (Id. at p.1112.)

In Arteaga, supra, 163 Cal.App.4th 327, the Court of Appeal similarly found that “temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination.” (Id. at p.353.) In Arteaga, the plaintiff was an armored vehicle messenger responsible for replenishing ATMs and take taking out deposits. Plaintiff was investigated for shortages in and missing deposits. (Id. at pp.336-337.) The plaintiff was informed of this ongoing investigation. (Id. at p.337.) Sixteen days later, the plaintiff told his employer for the first time that he had a disability. (Ibid.) One week later, the plaintiff was terminated for the missing deposits; as the messenger, Plaintiff was responsible for the missing money. (Id. at p.338.) The Court of Appeal found that the temporal proximity alone of the complaint to the termination was not enough to rebut the asserted legitimate business reason. (Id. at pp.354-355.)

Unlike in Loggins and Arteaga, there is more than just temporal proximity alone. As discussed in detail there is evidence that Plaintiff was an outstanding employee while still receiving discipline and that the stated basis for termination was insufficient to motivate discharge. Accordingly, a reasonable juror could conclude that Plaintiff was terminated for making the numerous complaints regarding being harassed by other flight attendants. Therefore, Defendant Delta’s motion for summary adjudication of the third cause of action is DENIED.

FEHA prohibits harassment of an employee. (Cal. Gov't Code § 12940(j).) “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Thus “‘the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment.’” (Ibid.) Harassing acts “consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Reno v. Baird (1998) 18 Cal.4th 640, 646.) While “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment,” (Gov. Code, § 12923(b)), “[t]o prevail on a hostile work environment claim under California's FEHA, an employee must show that the harassing conduct was ‘severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [disability].’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 [internal citations omitted].)

“The words ‘severe’ and ‘pervasive’ have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.” The verb ‘pervade” is defined as “to become diffused throughout every part of.’” (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 38 [internal citations omitted].) The totality of the circumstances are considered when determining whether conduct is severe or pervasive such as “[¶] (a) The nature of the conduct; [¶] (b) How often, and over what period of time, the conduct occurred; [¶] (c) The circumstances under which the conduct occurred; [¶] (d) Whether the conduct was physically threatening or humiliating; [¶] (e) The extent to which the conduct unreasonably interfered with an employee’s work performance.’ (CACI No. 2524.)” (Caldera, supra, 25 Cal.App.5th at pp.38–39.)

“A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.” (Gov. Code, § 12923(b).) “Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues ‘not determinable on paper.’” (Gov. Code, § 12923(e).) According to CACI jury instruction number 2521A, a plaintiff claiming harassment based on gender must show that the harassing conduct by the defendant created a work environment that was reasonably considered hostile, intimidating, offensive, oppressive, or abusive. (CACI No. 2521A.) Further, CACI jury instruction number 2523 describes “harassing conduct” as conduct that may include, but is not limited to 1) verbal harassment, 2) physical harassment, 3) visual harassment, 4) unwanted sexual advances, or 5) other forms of harassment. (CACI No. 2523.)

“The elements of such a cause of action are: ‘(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome [] harassment; (3) the harassment complained of was based on [the protected characteristic]; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.’ [Citation.]” (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 202–203.)

As a preliminary matter, as discussed with the first cause of action, this action is also improperly combined as it properly states two causes of action for harassment. The first based on age harassment, the second based on sex.

Defendant Delta contends that the second cause of action for harassment fails because Plaintiff has insufficient evidence of harassment. “Delta incorporates the authority, arguments, and evidence set forth in the Motion for Summary Judgment or Adjudication filed by individual defendants Jenny Kao, Barbara Lau, Sharon Redden and Pamela Paul on July 9, 2021,as if set forth in full herein.” (Motion at p.21:25-27; see also Order 8/5/22 [Addressing Defendant Kao, Lau, Redden, and Paul’s motion for summary judgment or in the alternative summary adjudication].)

As noted above, “the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto, supra, 181 Cal.App.4th at p.74.)

Here, the complaint alleges that Kao stated that she was trying to get Plaintiff fired. (Complaint ¶ 14(l).) Kao stated that Plaintiff could not arm or disarm doors due to Plaintiff’s age and sex. (Ibid.) Kao made allegations that Plaintiff stole from Delta, that Plaintiff stole chocolate, and that Plaintiff ate food before serving passengers. (Id. ¶ 14(m).) Kao spread rumors that Plaintiff stopped service to passengers to eat herself, and Kao circulated old pictures of Plaintiff on flights. (Id. ¶ 14(s).) Kao screamed at Plaintiff on a three-day international trip then filed a false complaint against Plaintiff. (Id. ¶ 14(w).) A week later, Kao threw large bags at Plaintiff’s head. (Id. ¶ 14(y).)

Plaintiff alleges that Lau harassed her by making false allegations Plaintiff stole from Delta, that Plaintiff stole chocolate, and that Plaintiff ate food before serving passengers and spreading rumors of such. (Complaint ¶14(m).) Lau also verbally harassed Plaintiff in front of passengers. (Id. ¶ 14(l).)

Plaintiff alleges that Redden “verbally abused [Plaintiff] with such hostility that another flight attendant could not understand how [Plaintiff] was able to remain so calm during the attack.” (Complaint ¶ 14(t).)

As to Defendant Paul, the complaint alleges that Paul “falsely accused plaintiff of taking

nine cereal bowls from the flight, even though the person in charge verified that they were, in

fact, short of these catered items at the beginning of the flight. Paul also accused Plaintiff of

taking milk from the storage and falsely asserted that “she [Defendant Pamela] asked her

[Plaintiff] to take it out of her bag but she [Plaintiff] refused.’” (Complaint ¶ 14(gg).) Plaintiff

also alleges that Defendant Paul deliberately lied to set Plaintiff up for disciplinary action and/or

However, the Complaint also alleges that Ann Marie Ognovic verbally harassed Plaintiff and stated that she was trying to get Plaintiff fired. (Complaint ¶ 14(l).) Ognovic stated that Plaintiff could not arm or disarm doors due to Plaintiff’s age and sex. (Ibid.) Ognovic made false accusations that Plaintiff stole from Delta. (Id. ¶ 14(m).) When Plaintiff asked Ognovic to stop spreading rumors, Ognovic pulled out pictures of Plaintiff with her head down and demanded that Plaintiff back off. (Id. ¶ 14(o).) Ognovic spent more time trying to get Plaintiff fired than performing her duties and constantly tried to take pictures of Plaintiff in seemingly compromising positions. (Id. ¶ 14(r).)

While Ann Marie Ognovic was dismissed in her personal capacity from the Complaint, (see Minute Order 7/6/22), there was no dismissal of Delta for the alleged actions of Ann Marie Ognovic through respondeat superior. No evidence is cited in the separate statement addressing the allegations for the harassing conduct by Ognovic. (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, Fn. 4, [“ ‘[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.’ ”].) Similarly, the memorandum fails to cite any affirmative evidence showing that the claims against Ognovic fail. (See Cal. Rules of Court, Rule 3.1113(b).)^{^[4]} Accordingly, Defendant Delta fails to meet its moving burden in showing that it is entitled to judgment as a matter of law as to the second cause of action for harassment. Therefore, Defendant Delta’s motion for summary adjudication of the second cause of action is DENIED.

Fourth Cause of Action: Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA

“The FEHA makes it a separate unlawful employment practice for an employer to ‘fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.’ (§ 12940, subd. (k).)” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040, italics added.) “But courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k). [Citation.]” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)

Here, Defendant Delta contends that Plaintiff cannot establish discrimination, harassment, or retaliation. However, as noted in the discussion above of the first, second, and third causes of action, Plaintiff shows a triable issue as to discrimination and retaliation. Accordingly, Defendant Delta’s motion for summary adjudication of the fourth cause of action is DENIED.

An employee has a common law right to sue for wrongful termination “when he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 (overruled on other grounds).) “‘The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.’” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-35 (quoting Yau v. Allen (2014) 229 Cal.App.4th 144, 154).) “A discharge is actionable as against public policy if it violates a policy that is: ‘(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) ‘substantial’ and ‘fundamental.’’” (Id. at 1238-39 [quoting Carter v. Escondido Union High School District (2007) 148 Cal.App.4th 922, 929].)

Here, Defendant Delta contends that the seventh cause of action for whistleblower retaliation fails because Delta had a legitimate nondiscriminatory and nonretaliatory reason for termination. However, as noted above with the first and third causes of action, Plaintiff shows a triable issue of fact as to whether the termination was discriminatory and/or retaliatory. Accordingly, Defendant Delta’s motion for summary adjudication of the seventh causes of action is DENIED.

“ ‘ “ ‘To establish a prima facie case of retaliation, [1] a plaintiff must show that she engaged in protected activity, that [2] she was thereafter subjected to adverse employment action by her employer, and [3] there was a causal link between the two.’ ” ’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287–288.) “[Labor Code] [s]ection 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.) “Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Ibid.)

Defendant Delta contends that the eighth cause of action fails because Plaintiff was fired for a legitimate nonretaliatory reason. As discussed in detail above with the first and third causes of action, Plaintiff shows a triable issue as to whether the termination was based on retaliatory reasons. Further, for the reasons discussed above with the first and third causes of action, Plaintiff sufficiently shows that Plaintiff’s complaints of harassment were at least a contributing factor for Plaintiff’s termination.

Accordingly, Defendant Delta’s motion for summary adjudication of the eighth cause of action is DENIED.

Ninth and Tenth Causes of Action: Breach of Contract to not Terminate Without Good Cause

The elements that must be alleged for a breach of contract are “(1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “A contract is an agreement to do or not to do a certain thing.” (Civ. Code, § 1549.) The essential elements of a contract are parties capable of contracting; their consent; a lawful object; and a sufficient cause or consideration. (Civ. Code, § 1550.)

“If the reasons advanced by the employer for the discharge are trivial, capricious, unrelated to business needs or goals, or pretextual, the jury may properly find that the stated reason for termination was not a ‘fair and honest cause or reason’ regulated by good faith. In this sense, the employer does not have an unfettered right to exercise discretion in the guise of business judgment.” (Pugh v. See's Candies, Inc. (1988) 203 Cal.App.3d 743, 769–770.)

Defendant Delta contends that the ninth and tenth causes of action fail because Plaintiff was terminated for good cause. As noted above with the first cause of action, while Defendant Delta meets its moving burden that there was a legitimate reason for terminating Plaintiff, Plaintiff shows a triable issue of fact as to whether the stated legitimate basis for termination was pretextual. Accordingly, Defendant Delta’s motion for summary adjudication of the ninth and tenth causes of action is DENIED.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1)

extreme and outrageous conduct by the defendant with the intention of causing, or reckless

disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or

extreme emotional distress; and (3) actual and proximate causation of the emotional distress by

the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so

‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the

defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that

injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) With regard to the

first element, intentional infliction of emotional distress “calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.)

For “[c]onduct to be outrageous[, it] must be so extreme as to exceed all bounds of that

usually tolerated in a civilized community.” (Davidson, supra,32 Cal.3d at p.209.) “[W]hether conduct is outrageous is ‘usually a question of fact’ … [however] many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235, [internal citations omitted].) “‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . .’” (Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1122, [internal citation omitted].) “[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)

Defendant Delta contend that the alleged emotional distress is only garden variety, and thus, the alleged distress is not sufficiently severe and extreme to satisfy the elements of intentional infliction of emotional distress. Defendant Delta cites Plaintiff’s explanation of her distress as proof that none of the distress is severe and extreme. Plaintiff testified that she suffered from “[n]ot being able to sleep, feeling sad every time an airplane flies over, having my beautiful career and my job that I loved taken from me for nothing – for nothing that I did. Just basically having being slandered so badly.” (Findley Decl. ¶ 3, Ex. A [Gomez Depo. at p.499:9-13].) Delta also argues that the court should dismiss Plaintiff’s intentional infliction of emotional distress claim because Plaintiff did not seek medical treatment or take any medication. (Findley Decl. ¶ 3, Ex. A [Gomez Depo. at pp.211: 22-25, 499:19-21].)

These arguments fail to prove that as a matter of law Plaintiff did not suffer severe and extreme distress. Plaintiff’s inability to sleep, sadness every time a plane flies over, and the feeling that her career has been taken from her and that she has been slandered create a question of fact regarding the level of distress Plaintiff suffered. As stated above, grief and embarrassment may be appropriate to meet the requisite emotional distress. (Fletcher, 10 Cal.App.3d at 397.) Further, Defendant Delta fails to cite any authority that requires Plaintiff to seek medical attention in order to state a valid claim for intentional infliction of emotional distress.

Defendant Delta also contend that the alleged acts of harassment cited above do not meet the standard of being “outrageous.” In support of this contention, Defendant Delta point to the fact that the conduct occurred within the workplace. However, there is no element of intentional infliction of emotional distress requiring the extreme and outrageous conduct to occur outside of workplace interactions. The occurrence of the alleged conduct within the workplace does not preclude the conduct from forming the basis of an intentional infliction of emotion distress claim. Further, extreme and outrageous conduct is generally a question of fact. (Bock v. Hansen, 225 Cal.App.4th at 235.) For these reasons, Defendant Delta fails to meet its moving burden in showing they are entitled to summary adjudication of the fifth cause of action on the basis that alleged distress is not sufficiently severe and extreme to satisfy the elements of intentional infliction of emotional distress.

In addition, Defendant Delta contends that the fifth cause of action is barred by the Workers compensation exclusivity. The Court disagrees.

Labor Code section 3600, subdivision (a) provides that, subject to certain particular exceptions and conditions, workers’ compensation liability, “in lieu of any other liability whatsoever” will exist “against an employer for any injury sustained by his or her employees arising out of and in the course of the employment.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708.) The basis for the exclusivity rule in workers’ compensation law is the “presumed compensation bargain” pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. (Ibid.) The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort against the employer. (Ibid.) Also, under this rule, the employer is insulated from common law vicarious liability to an employee for the acts of another employee, under Labor Code section 3601, subdivision (c). (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 227.)

“[T]hese provisions establish that the liability of employers … for ‘industrial injury which results in occupational disability or death’ is limited to workers’ compensation remedies. [Citation.] Where ‘the essence of the wrong is personal physical injury or death, the action is barred by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied.’ [Citation.] In other words, the exclusivity provisions encompass all injuries ‘collateral to or derivative of’ an injury compensable by the exclusive remedies of the WCA. [Citation.] [¶] Thus, the trigger for workers’ compensation exclusivity is a compensable injury. An injury is compensable for exclusivity purposes if two conditions exist. First, the statutory conditions of compensation must concur. (See § 3600, subd. (a).) For example, if the injury arises ‘out of and in the course of the employment, the exclusive remedy provisions apply notwithstanding that the injury resulted from ... intentional conduct ... even though the ... conduct might be characterized as egregious.’ [Citation.] [¶] Second, the injury must cause a ‘disability or the need for medical treatment.’ [Citation.] ‘ “Injury” includes any injury or disease ....’ (§ 3208.) Therefore, ‘the exclusive remedy provisions apply only in cases of such industrial personal injury or death,’ and the workers’ compensation system subsumes all statutory and tort remedies otherwise available for such injuries. [Citation.]” (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813-814.)

Here, Plaintiff’s claim for wrongful termination, discrimination, harassment, and retaliation under FEHA do not arise out of the normal course of employment. (Light, supra, 14 Cal.App.5th at p.101 [“In sum, absent further guidance from our Supreme Court, we are unwilling to abandon the long-standing view that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers' compensation exclusivity.”].)

Accordingly, Plaintiff’s FEHA claims and other claims which are based on the same conduct do not fall within the workers compensation exclusivity. Therefore, Defendant Delta’s motion for summary adjudication of the fifth cause of action is DENIED.

In the memorandum and reply, Defendant Delta seeks to adjudicate the claim for punitive damages. In opposition, Plaintiff objects on the grounds that Defendant Delta failed to specify that it was seeking summary adjudication of the prayer for punitive damages.

Code of Civil Procedure section 437c(f)(1) provides that “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).) Where “summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion[.]” (Cal. Rules of Court, Rule 3.1350(b), [italics added].)

The court has the power to adjudicate claims identified in the notice of the motion. (Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 974, Fn. 4.) While the notice must identify the causes of action or defenses that the motion is directed to, it is not necessary to identify specific facts or issues within a claim or defense. (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478.)

Here, the notice for the instant motion for summary judgment or in the alternative summary adjudication does not identify the prayer for punitive damages as a matter that Defendant Delta seeks to be summarily adjudicated. As the notice fails to identify punitive damages as a matter for summary adjudication, the motion for summary adjudication of the prayer for punitive damages is DENIED.

Based on the foregoing, Defendant Delta Airlines, Inc.’s motion for summary judgment is DENIED. Defendant Delta Airlines, Inc.’s motion for summary adjudication is GRANTED IN PART as to the claim for sex discrimination only. The motion is otherwise DENIED.

[1] The complaint alleges liability against the eight individual defendants only as to the second and fifth causes of action.

[2] The Complaint is inconsistent and contradictory as it states: “In truth, Ms. Gomez had taken milk from the plane. milk she purchased from a supermarket prior to boarding the international flight to Australia.” (Id. ¶ 14(ee).)

[3] At the time of the alleged discrimination set forth in Plaintiff’s complaint, the requirement was for Plaintiff to file a complaint with DFEH within one year of the discriminatory conduct. Although AB 9 amended Government Code section 12960(e), effective January 1, 2020, to prolong that period to three years, Plaintiff’s case is governed by the one-year limitations period, and Plaintiff did in fact file with DFEH within one year. (Complaint ¶ 9.)

[4] California Rules of Court, rule 3.1113(b) provides that “[t]he memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” The Court has “no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case.” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934; see also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [where appellant's motion was supported by deficient memorandum, trial court was justified in denying the motion on procedural grounds].)

Superior Court of California

County of Los Angeles

Department 26