Judge: Elaine Lu, Case: 20STCV35197, Date: 2022-10-19 Tentative Ruling

Case Number: 20STCV35197    Hearing Date: October 19, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On September 15, 2020, Plaintiff Amirrez Baghkhani (“Plaintiff”) filed the instant discrimination action against Defendant the State of California, Department of Transportation (“Defendant”).  The Complaint asserts five causes of action for (1) Discrimination Based on National Origin/Ancestry and Religion in violation of the Fair Employment and Housing Act (“FEHA”), (2) Discrimination Based on Gender in violation of FEHA, (3) Retaliation in violation of FEHA, (4) Harassment in violation of FEHA, and (5) Failure to Prevent Discrimination, Harassment and Retaliation in violation of FEHA.

On November 9, 2021, Defendant filed the instant motion for summary judgment or in the alternative summary adjudication.  On December 23, 2021, pursuant to the parties stipulation, the instant motion was continued from January 26, 2022 to October 19, 2022.  (Minute Order 12/23/21.)  On October 5, 2022, Plaintiff filed an opposition.  On October 13, 2022, Defendant filed a reply.

Allegations of the Operative Complaint

The Complaint alleges that:

            “Plaintiff began his employment with defendant on October 31, 2018. Initially, he reported to Kenny Yi, a Senior Transportation Engineer Surveyor. Plaintiff reported to Kenny Yi for two days, and was then sent to Sacramento for training for one week.”  (Complaint ¶ 8.)

“Upon plaintiff's return from Sacramento, Labell Washington, the Supervisor of Drafting Services, approached plaintiff and informed him that she was his new supervisor. Ms. Washington was terse and dismissive with plaintiff, demonstrating that she held some form of animosity against plaintiff.”  (Ibid.)

“Initially, Ms, Washington wanted nothing to do with plaintiff, and told him that he would continue to report to her but that she was loaning him out to two different Senior TEs working on complex projects, who did not have any direct reports. During the period of November 2018 to August 2019, plaintiff was assigned to approximately 70 different projects by these Senior TEs, all of which projects he finished with distinction. During said period, Ms. Washington only assigned plaintiff approximately five assignments, all of which were clerical.” (Ibid.)  

“Plaintiff was commended for the success of his efforts on the approximately 70 projects he was assigned by the other Senior TEs, by management. After receiving said recognition, in August of 2019, Ms. Washington began to assign plaintiff drafting projects under her control for the first time. Plaintiff had never performed the duties Ms. Washington was assigning, nor had he ever been trained on said duties, nor was he hired to perform said duties. On several occasions, plaintiff requested to be trained in the same manner that his co-workers not sharing his protected characteristics were trained. Ms. Washington at times ignored plaintiff’s requests and at other times refused said requests.”  (Ibid.)

“Ms. Washington then began to assign plaintiff jobs that were progressively more difficult, with unreasonably short deadlines. For example, plaintiff's typical hours were between 6:30 a.m. to 3:00 p.m. Ms. Washington would email plaintiff a work assignment after the end of plaintiff's workday and demand the assignment be completed that day. Plaintiff was then reprimanded by Ms. Washington! for not completing the assignment that he was unaware of, because it was assigned after the end of his workday, until he checked his email the following day.”  (Ibid.)  

“In addition, Ms. Washington engaged in the following discriminatory conduct: asking inappropriate questions and/or making inappropriate comments with regard to plaintiffs national origin and/or religion; failing to give plaintiff timely probationary reviews as required under defendant’s policies and procedures; yelling at plaintiff; speaking to plaintiff in a demeaning manner; placing special rules on plaintiff, for example, including, but not limited to treating plaintiff differently than plaintiff's non-Iranian, non-Muslim co-workers with regard to break time, lunch time, persons with whom he could eat lunch, where he could eat lunch, how his desk must appear, when he could use the bathroom, etc.; making unwarranted threats of discipline; assigning plaintiff difficult tasks with short notice in an unfair manner; subjecting plaintiff to poor treatment and placing plaintiff in a false light with his peers and management in an attempt to wrongly impair the manner in which plaintiff's job performance was viewed and/or to interfere with plaintiff's prospects for advancement and| promotion; ignoring plaintiff's complaints about the unfair and differential treatment he was being subjected to; and otherwise subjecting plaintiff to unequal terms, conditions and privileges of employment.”  (Ibid.) 

“The treatment directed at plaintiff became so severe that plaintiff's co-worker complained to Otto Jarquin, the Supervising Transportation Surveyor, and Ms. Washington’s supervisor. Mr. Jarquin stated that plaintiff was going to pass probation, although Mr. Jarquin did not stop Ms. Washington from placing plaintiff in a false light when she falsely claimed plaintiff was a poor, unreliable worker, who engaged in improper conduct. Mr. Jarquin further indicated! that Ms. Washington believed that Iranian people do not like women, and that Iranian males want to be superior and do not want to work for women.”  (Ibid.) 

Thereafter, and approximately 11 months after plaintiff started his position, on October 3, 2019, plaintiff received his first probationary report, in violation of defendant’s policies and procedures which state that an employee on probation is to receive three periodic probationary reports during the probation period. The report, which was riddled with untruths, was very negative. Ms. Washington also informed plaintiff she was not going to approve his merit salary increase.”  (Ibid.) 

“Plaintiff immediately complained to Mr. Jarquin that Ms. Washington had given plaintiff a poor probationary report and again complained that he was being treated less well and differently than his coworkers not sharing his protected characteristics, and that such treatment was unfair. Ms. Washington’s hostility increased and plaintiff complained to defendants’ EEO Department, causing Ms. Washington to tell plaintiff to no longer speak to her. One week later, on October 29, 2019, two days before plaintiff’s probation was set to end, plaintiff was wrongfully terminated by defendants from his position, apparently at Ms. Washington’s request, despite the fact that said termination was unwarranted and despite the fact that the persons with whom he had worked for most of his probationary period had determined his work and work habits to be more than satisfactory.”  (Ibid.) 

Undisputed Material Facts

Defendant and Plaintiff have each submitted Undisputed Material Facts, which the court will reference as “DMF” for Defendant’s Undisputed Material Facts and “PMF” for Plaintiff’s Undisputed Material Facts.[1]

            “Plaintiff was hired as a probationary employee through Caltrans’ mass hiring program on October 31, 2018.”  (DMF 1.)[2] “Plaintiff’s job title was Transportation Engineering Technician (‘TET’).”  (DMF 2.)  “Plaintiff was not a professional land surveyor and he failed the Land Surveyor-in-Training (LSIT) exam.”  (DMF 3.) 

            “Plaintiff was originally assigned to supervisor Kenny Yi.”  (DMF 4.)  “Mr. Yi gave plaintiff a duty statement on his first day of work, but Plaintiff cannot recall if he signed and returned it to his supervisor.”  (DMF 5.)  “Plaintiff was given a second duty statement on October 10, 2019 and a staff expectation memorandum on September 24, 2019.”  (DMF 6.) 

            “Ms. Washington has thirty-one (31) years of drafting experience at Caltrans and has been a supervisor for twelve (12) years.”  (DMF 8.)  “During the Plaintiff’s year of probation, Ms. Washington also supervised four permanent employees, Anne Contreras, Albert Manabat, Stacy Tran, and Clarita Leuterio all of whom had 20+ years of experience at Caltrans.”  (DMF 12.)  “Plaintiff was Ms. Washington’s first probationary employee.”  (DMF 13.) 

            “In November 2018, Plaintiff flew to Sacramento for a four-to-five day Civil 3D Survey training.”  (DMF 14.)  “In March 2019, Plaintiff flew to Sacramento again for a one-week Survey Academy training.”  (DMF 15.)  “In March 2019, Plaintiff received Introduction to Microstation training.”  (DMF 16.)

            “Drafting review consisted of checking fonts, texts, symbols, cells, levels, information on the seal, dates, page numbers and saving and retrieving files in their accurate locations.”  (DMF 20.)

            “Plaintiff also received tasks and training from Senior Transportation Surveyors, Mike Dean and James White.”  (DMF 26.)  “Mr. Dean and Mr. White had Plaintiff review construction layout plans to check that the right-of way lines were (1) drawn on the plans and (2) were drawn correctly.”  (DMF 27.)  “Additionally, Plaintiff was supposed to prioritize Ms. Washington’s duties over assisting Mr. Dean and Mr. White.”  (DMF 29.)  “Mr. Dean felt that Plaintiff’s skills were good for a trainee, but were not exceptional.”  (DMF 31.)  “Neither Mr. White nor Mr. Dean knew if Plaintiff performed his duties for Ms. Washington in a satisfactory manner.”  (DMF 32.) 

            “The first time he failed to refuel his rental car, Plaintiff testified that he was unaware of this requirement.”  (DMF 41.)  “He was counseled by his supervisor to return the rental car with a full tank of gas on future trips.”  (DMF 42.)  “Plaintiff was personally served the Notice of Rejection on Probation on October 29, 2019.”  (DMF 47.) 

            “An EEO officer contacted Plaintiff on November 1, 2019 to schedule an intake interview.”  (DMF 50.)  “The EEO officer interviewed Plaintiff on November 4, 2019.”  (DMF 51.)  “During the interview, Plaintiff complained that he was wrongfully terminated because of his national origin and religion but he did not mention gender.”  (DMF 52.) 

“Plaintiff alleges that Ms. Washington asked him ‘where are you from’.”  (DMF 53.)  “He could not recall how many times she asked him ‘where are you from,’ but it was less than ten times.”  (DMF 54.)  “Plaintiff alleges Ms. Washington asked him ‘what religion are you?’”  (DMF 58.)  “Plaintiff alleged he responded ‘Muslim.’”  (DMF 59.)  “Plaintiff could not recall how many times she asked him this, or when she asked them this.”  (DMF 60.)  “He alleged that they were always alone when she would ask him ‘what religion are you?’ so there are no witnesses.”  (DMF 61.) 

“‘Shahs of Sunset’ is a reality TV show on the Bravo network.”  (DMF 64.)  “Plaintiff testified Ms. Washington said it was one of her favorite shows and it is about Iranian culture.”  (DMF 65.)  “He testified that several of his friends (whom he can’t remember their names), told him that ‘Shahs of Sunset’ was a very offensive show because it depicted men in positions of power.”  (DMF 67.)

“Plaintiff alleges Ms. Washington denied him trainings.”  (DMF 71.)  “Plaintiff alleges his friend Mostafa Vessali told plaintiff, that Mr. Jarquin told Mr. Vessali that Ms. Washington believes Plaintiff does not respect her because Muslim, Iranian men do not respect women.”  (DMF 72.) 

“Plaintiff alleges Ms. Washington yelled at him for permanently moving his cubicle.”  (DMF 74.)  “Plaintiff alleges that Ms. Washington gave him projects that were more difficult and complex than his coworkers and that the deadlines that were too short.”  (DMF 76.)  “According to Plaintiff, it could have been as little as one project, or up to seven projects.”  (DMF 78.)  “He testified that he recalled deadlines would range from four days to three weeks.”  (DMF 79.)  “He did not know what duties Ms. Washington’s other employees were assigned or their workload.”  (DMF 83.)  “Ms. Washington gave her permanent employees a significantly higher workload than plaintiff.”  (DMF 84.)  “Ms. Washington also charged Mr. Manabat with training Plaintiff.”  (DMF 85.) 

“Plaintiff is alleging that Ms. Washington was stricter with him on his breaks and lunch periods than with her other employees.”  (DMF 86.)  “He testified that his coworker, Ms. Contreras had a 30-minute lunch break, but he did not know how long Ms. Washington’s other employees’ lunch breaks were or what their schedules were.”  (DMF 87.)  “Plaintiff is alleging that Ms. Washington once made ‘a face’ at a potluck lunch when another Muslim employee was eating fish.”  (DMF 88.) 

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  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.)

“If the defendant meets this burden, then the burden of production shifts to the plaintiff to establish the existence of a triable issue of material fact.  [Citation.]”  (Donohue v. AMN Services, LLC (2018) 29 Cal.App.5th 1068, 1077.)  “A triable issue of material fact may not be created by speculation or a ‘stream of conjecture and surmise.’  [Citations.]  Instead, the plaintiff must produce ‘substantial responsive evidence.’  [Citation.]”  (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 221.)  “There is 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.]’  [Citation.]”  (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1282.)

Discussion

            Defendant moves for summary judgment or in the alternative summary adjudication of the claims remaining alleged against them – i.e., the first through fifth causes of action.

First and Second Causes of Action: Discrimination in Violation of FEHA

Defendant contends that the first and second causes of action discrimination fails because (1) Plaintiff cannot establish a prima facia case of discrimination, and (2) Defendant had a legitimate nondiscriminatory reason for terminating Plaintiff.

“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 p.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.”].)

Defendant’s Moving Burden: Whether there was a Legitimate Non-Discriminatory Reason for Termination

Here, Defendant asserts that Plaintiff cannot establish a prima facie case for discrimination and that there was a legitimate non-discriminatory reason for termination because Plaintiff was on probation and was not competently performing his job.

Plaintiff was hired by Defendant on October 31, 2018 through Defendant’s mass hiring program.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.14:10-15:4]; Washington Decl. ¶ 9.)  Plaintiff was hired as a Transportation Engineering Technician.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at p.21:20-22].)  As noted by Plaintiff in his deposition, Plaintiff was originally assigned to Kenny Yi for orientation.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at p.20:16-19].)  On Plaintiff’s first day, Kenny Yi showed Plaintiff his cubical and gave Plaintiff the duty statement of the job and sign it and give it back to him.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.20:24-21:6].)  Plaintiff testified that he believed that he signed provided the duty statement back to Kenny Yi.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at p.21:7-16].)  Plaintiff also confirmed with Labell Washington on August 22, 2019 that he had received a duty statement on the first day.  (Washington Decl. ¶ 10.)

Within a few weeks of starting, Plaintiff was reassigned to work for Labell Washington, a Supervisor of Drafting Services in the division of Right-of-Way Engineering.  (Washington Decl. ¶ 1; Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.27:2-28:4].)  As noted by Washington’s supervisor, Washington was the supervisor of Plaintiff from November 2018 through October 2019.  (Jarquin Decl. ¶ 4.)  In addition to supervising Plaintiff, Washington supervised four permanent employees – Anne Contreras, Albert Manabat, Stacy Tran, and Clarita Leuterio.  (Washington Decl. ¶ 7.) 

Washington has worked for Defendant for thirty-one years and has been a supervisor for twelve years.  (Washington Decl. ¶¶ 1, 4.)  During this time, Washington has never been accused of discrimination, retaliation, or harassment by anyone other than Plaintiff.  (Washington Decl. ¶ 64; Jarquin Decl. ¶ 22.)  In fact, Washington has been in numerous leadership positions in putting on Defendant’s annual Diversity Day event and provided education and awareness for multiple cultures.  (Washington Decl. ¶ 5.)

As a new employee, Plaintiff was a probationary employee.  “‘Article VII of the California Constitution provides that, generally, the civil service includes “every officer and employee of the State” (id., art. VII, § 1, subd. (a)) and that permanent appointment and promotion in the civil service “shall be made under a general system based on merit ascertained by competitive examination” (id., art. VII, § 1, subd. (b)).’”  (Carrasco v. State Personnel Board (2021) 70 Cal.App.5th 117, 133.)  “Under the State Civil Service Act (§ 18570 et seq.), a probationary civil service employee (a probationer) enjoys less protection than a regular incumbent to provide the appointing power the ability to test his or her fitness.”  (Id. at p.134.)

“‘The object and purpose of a probationary period is to supplement the work of the civil service examiners in passing on the qualifications and eligibility of the probationer. During such period the appointive power is given the opportunity to observe the conduct and capacity of the probationer, and if, in the opinion of that power, the probationer is not fitted to discharge the duties of the position, then he [or she] may be discharged by the summary method provided for in the Civil Service Act before he acquires permanent civil service status.’”  (Ibid.)

As a supervisor, Plaintiff was Washington’s first probationary employee.  (Washington Decl. ¶ 8.)  As a probationary employee, Washington was supposed to provide Plaintiff with a 3 month and a 6-month probationary report.  (Washington Decl. ¶¶ 23-24.)  However, as Plaintiff had been hired through the mass hiring program, Washington did not receive automatic notifications to provide the probation reports.  (Washington Decl. ¶ 23.)  “By the time [Washington] realized that [she] forgot to provide [Plaintiff] with a 3 or 6-month probationary report, [Washington] was extremely busy with [her] projects, as two of [her] employees, Mr. Manabat and Ms. Leuterio were retiring. [Washington] was unable to find the time to provide [Plaintiff] with more than one probationary report.”  (Washington Decl. ¶ 23.)  However, while recommended, three probation reports were not required to fail an employee on probation.  (Washington Decl. ¶ 24.)  Moreover, Washington provided Plaintiff constant written and in person feedback on his job performance and workplace behavior.  (Washington Decl. ¶ 24.)

In addition to the constant feedback, during Plaintiff’s year of probation Plaintiff was provided extensive training.  (Washington Decl. ¶¶ 18-19, Exh. 6 [Plaintiff’s Training History].)  “In November 2018, [Plaintiff] was flown to Sacramento for a weeklong Civil 3D Survey training. In March 2019, [Plaintiff] was flown to Sacramento again for a one-week Survey Academy training. In March 2019, [Plaintiff] received Introduction to Microstation training.”  (Washington Decl. ¶ 18, Exh. 6 [Plaintiff’s Training History].)  In addition, Washington provided approximately four-to-five hours of one-on-one training to Plaintiff.  (Washington Decl. ¶ 19.)  Washington also instructed one of her other employees – Albert Manabat – to train Plaintiff.  (Washington Decl. ¶ 20.)

Washington assigned Plaintiff “to read and familiarize himself with Chapter Six of the Caltrans’ Right-of-Way manual; to learn the basics of Microstation [Caltrans’ drafting software], and to perform elementary portions of drafting reviews. Drafting review consisted of checking fonts, texts, symbols, cells, levels, information on the seal, dates, page numbers and saving and retrieving files in their accurate locations. When [Washington’s] staff had a drafting review project, [Washington] would assign Mr. Baghkhani a small portion of the drafting review, such as checking a single level or making a simple edit.”  (Washington Decl. ¶ 12.) 

However, Washington states that Plaintiff was unable to adequately fulfill job duties.  On August 8, 2019, Plaintiff “submitted project submittal plans for project Expenditure Authorization 302501 that contained numerous errors.”  (Washington Decl. ¶ 42.)  This is critical as “[p]recision and accuracy are extremely important when reviewing drafts, even at the beginner level. Additionally, the review must be conducted in the correct order to ensure accuracy. Skipping steps will result in errors.”  (Washington Decl. ¶ 14.)  On “August 27, 2019, [Plaintiff] was unable to print two plan sheets after [Washington] asked him to. This is a basic function of his position.”  (Washington Decl. ¶ 47.)  On September 20, 2019, Plaintiff failed to follow instructions regarding project Expenditure Authorization 309101.  (Washington Decl. ¶ 53.)  Plaintiff was asked to write down the instructions but refused to stating that he would remember but then submitted the project in the wrong format and failed to highlight any edits made as instructed.  (Washington Decl. ¶ 53.)  Plaintiff became loud and argued with Washington about the assignment.  (Washington Decl. ¶ 54.)  On September 23, 2019, Plaintiff repeatedly gave an incorrect Expenditure Authorization number when asked.  (Washington Decl. ¶ 55.)  On “October 9, 2019, [Plaintiff] didn’t follow [Washington’s] instructions on how to complete a drafting review of project Expenditure Authorization 316901. [Washington] instructed [Plaintiff] to change the seals individually as he worked through the plan sheets, but instead, he changed all the seals at once, causing confusion for his coworkers.”  (Washington Decl. ¶ 58.)  Finally, on October 11, 2019, Plaintiff “did not compare digital plan sheets to his corresponding hard copy plan sheets while reviewing project Expenditure Authorization 316901.”  (Washington Decl. ¶ 59.)

Washington states that all of her employees had a 30-minute lunch break with two 15-minute breaks and instructed her employees to be mindful of their time and to not eat at their desks to avoid getting food on project plans.  (Washington Decl. ¶ 17.)  As conceded by Plaintiff in deposition, Plaintiff only had a designated lunch of 30 minutes but most of the time took 45 minutes to an hour for lunch.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at p.125:2-19]; Washington Decl. ¶¶ 39-41, 45, 50-52, 57; White Decl. ¶ 16.)  Moreover, even after being told by Washington to limit his lunch break to 30-minutes, Plaintiff still took longer lunch breaks.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.125:2-130:4]; Washington Decl. ¶¶ 39-41, 45, 50-52, 57.)  James White, a Senior Transportation Surveyor states that “[i]n the months near the end of [Plaintiff’s] probation, [White] noticed [Plaintiff] was often away from his desk, he was taking long lunches, and he was difficult to find during the work day.”  (White Decl. ¶¶ 1, 16.)  Accordingly, White told his direct reports who regularly went out to lunch with Plaintiff to discourage Plaintiff from taking long lunches so Plaintiff would have a better chance of passing probation.  (White Decl. ¶ 17.)   Moreover, on August 20, 2019, when confronted by Washington to adhere to the lunch schedule, Plaintiff yelled at Washington and spoke over her stating that being away from his desk was not reasons that he was not doing a good job.  (Washington Decl. ¶ 44.)

Washington, White, and Mike Dean – a former Senior Transportation Surveyor – frequently observed that Plaintiff was away from his desk throughout the day.  (Washington Decl. ¶¶ 39-41, 45, 50-52, 57; Dean Decl. ¶ 14; White Decl. ¶ 16.)  For example, on August 7, 2019, Plaintiff was away from his desk from 10:25am to 1:25pm and when asked where he was Plaintiff lied and claimed that he had been at his desk the entire time.  (Washington Decl. ¶ 40.)  Moreover, Plaintiff in deposition concedes that he received emails and was verbally told by Washington criticizing Plaintiff for being away from his cubical.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at p.123:8-22].) 

Plaintiff repeatedly would use his personal cell phone at work for personal reasons such as texting, making calls, and surfing the internet.  (Washington Decl. ¶¶ 27-28, 30-33, 43-46, 48, 52.)  Moreover, Plaintiff concedes in his deposition that he did use his personal cell phone multiple times to take calls, use apps, text, and read things online.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.137:7-139:2].) 

On November 18, 2018, when traveling to Sacramento, Plaintiff failed to refuel his state-assigned rental vehicle resulting in additional charges to Defendant.  (Washington Decl. ¶ 25.)  Washington informed Plaintiff that he needed to refuel the state-assigned rental vehicle before returning it to the rental company.  (Washington Decl. ¶ 25.)  However, on March 19, 2019, Plaintiff again failed t refuel his state-assigned rental vehicle before returning it to the rental company.  (Washington Decl. ¶ 26.)  In deposition, Plaintiff admits that he did not fill up the rental car the first time but states that he was unaware of the refuel policy.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.147:9-151:24].)  As to the second incident Plaintiff claims that he did refill the car but drove between 10 and 20 miles after refilling resulting in a failure to refill charge.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.147:9-151:24].)

On October 3, 2019, Washington provided Plaintiff her “Report of Performance for Probationary Employee and reviewed the contents with him and warned him that he was in jeopardy of not passing his probation.”  (Washington Decl. ¶ 56, Exh. 7 [Report of Performance for Probationary Employee].)  The report details the above stated conduct over fourteen pages and provides that Plaintiff’s work performance was unacceptable.  (Washington Decl. ¶ 56, Exh. 7 [Report of Performance for Probationary Employee].)  “During the performance appraisal discussion, Mr. Baghkhani repeatedly yelled at me ‘Okay! Okay! Okay!’ or words to that effect. When discussing his poor performance [Plaintiff] talked over [Washington] and yelled, ‘“It’s my fault, I know! Give me two weeks and I will be excellent.”’ [Plaintiff] also told [Washington] that he doesn’t see me as his boss, but that [Washington] [is] like his mom or sister or friend, or words to that effect.”  (Washington Decl. ¶ 56.)  Before Plaintiff received the probation report, Plaintiff testified that he was pretty happy with Washington as his supervisor.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.146:24-147:2].) 

In October 2019, Washington and Jarquin decided that Plaintiff did not perform competently enough to pass probation.  (Washington Decl. ¶ 61; Jarquin Decl. ¶¶ 11, 20.)  On October 29, 2019, Plaintiff was personally served the Notice of Rejection on Probation, ending Plaintiff’s employment with Defendant.  (Washington Decl. ¶ 62, Exh. 8 [Notice of Rejection on Probation].) 

In sum, Defendant provides ample detail evidencing that Plaintiff was not performing tasks correctly, not following instructions, using his personal cell phone at work, taking long lunches, being away from his desk for hours, and failing to refill rental vehicles despite being informed to do so.  This evidence sufficiently shows that Plaintiff was terminated for a legitimate non-discriminatory purpose – i.e., that Plaintiff was on probation as a new employee and did not competently perform his job.  Accordingly, Defendant meets its moving burden in showing a legitimate non-discriminatory reason for terminating Plaintiff.  The burden shifts to Plaintiff to show a triable issue of fact.

Plaintiff’s Burden: Whether there was a Legitimate Non-Discriminatory Reason for Termination

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.]

(King, supra, 152 Cal.App.4th at pp.433-434.)

“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, there is sufficient evidence that a reasonable jury could find that Defendant’s purported reason for terminating Plaintiff was pretextual and based on National Origin/Ancestry, Religion, and/or Gender.

            As noted by Washington’s supervisor in deposition, as Plaintiff was a probationary employee, Washington was supposed to provide three probation evaluation reports.  (McIntyre Decl. ¶ 2, Exh. J [Jarquin Depo. at p.19:11-25].)  However, Washington only provided one report on October 3, 2019 less than a month before the probation ended stating that his work performance was unacceptable.  (Baghkhani Decl. ¶ 35; Washington Decl. ¶ 56, Exh. 7 [Report of Performance for Probationary Employee].)  Plaintiff noted that this was surprising as Washington had previously told him that he was doing well.  (Baghkhani Decl. ¶ 35.)  Moreover, Plaintiff was told that he had no time to change the unacceptable behavior.  (Baghkhani Decl. ¶ 36.)

Plaintiff states that “[a]t various times after [Plaintiff] was hired and Ms. Washington became [his] supervisor, [Plaintiff] asked her if she was going to provide [Plaintiff] with the probation evaluation reports, three of which [Plaintiff] understood were to be provided at intervals during [Plaintiff’s] one year probation. [Plaintiff] made these requests on at least three occasions, during the period after [he] had worked there over three months until [he] had been there for six or seven months. Ms. Washington did not provide [Plaintiff] with the intermediary probation reports which [Plaintiff] understood [he] was to receive, telling [Plaintiff] that [he] did not need to worry about it and that [he] was doing fine.”  (Baghkhani Decl. ¶ 24.)

On summary judgment, the Court must “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.)  Liberally construed in Plaintiff’s favor, the evidence here shows that the purported reason for terminating Plaintiff based on the unfavorable probation report is implausible.  Washington did only one probation report right before the end of Plaintiff’s probation period after declining to do previous reports in violation of policy, stating that Plaintiff’s work was satisfactory and that the probation reports were unnecessary.  Moreover, other employees of Defendant thought that Plaintiff was doing satisfactory. 

In declaration Plaintiff states that he was initially assigned to the Caltrans Right-Of-Way Division under Senior Transportation Surveyor Kenny Yi.  (Baghkhani Decl. ¶ 5.)  “Approximately two weeks later [Plaintiff] was told that [his] supervisor was going to be Labell Washington, the Supervisor of Drafting Services. At that time [Plaintiff] was told, however, that [Plaintiff] would be performing projects for James White and Mike Dean, both of whom were Senior Transportation Surveyors.”  (Baghkhani Decl. ¶ 5.)  For the first three months with Defendant, Plaintiff did projects for White and Dean.  (Baghkhani Decl. ¶ 8.)  For the next six to seven months Plaintiff worked almost exclusively on projects for Dean.  (Baghkhani Decl. ¶ 8.)

Dean and White both noted that Plaintiff was doing a good job on the projects that they assigned to Plaintiff.  (Baghkhani Decl. ¶ 9.)  Plaintiff’s supervisor, Washington, only provided a few projects during this time.  (Baghkhani Decl. ¶ 10.)  During the last few months, Plaintiff was told that he would no longer be doing any assignments for Dean or White but would be working exclusively with the drafting unit under Washington’s supervision.   (Baghkhani Decl. ¶ 14.)   Moreover, Jarquin never received any negative feedback about Plaintiff from Dean or White.  (McIntyre Decl. ¶ 2, Exh. J [Jarquin Depo. at p.19:1-6].)

Further, while working on assignments for Washington, Plaintiff worked with Anne Contreras – a Senior Delineator who reported to Washington – as the lead on the projects.  (Baghkhani Decl. ¶ 11.)  Contreras, who had 20 years’ experience in the field, “indicated that [Plaintiff] was performing [his] functions properly, and although she assisted in answering my questions, she never indicated in any way that [Plaintiff] was not performing my duties in other than a satisfactory manner.”  (Baghkhani Decl. ¶ 11.)

Here, viewing the evidence in favor of Plaintiff, given that Washington only did one probation report right before the end of Plaintiff’s probation period, other employees believed that Plaintiff was doing satisfactory work, and there is some evidence that Washington told Plaintiff that the prior probation reports were unnecessary as Plaintiff was doing a satisfactory job, a reasonable jury could conclude that Plaintiff was satisfactorily performing his job and that the October 3, 2019 probation evaluation report was merely a pretext to fire Plaintiff.  As noted above, the final report found that Plaintiff’s work performance was nearly across the board unacceptable.  Given that it was the policy to have three reports and the indication of good performance by other employees and by Washington, it is inconsistent to only do a single report right before the end of the probationary period finding that Plaintiff’s work performance was completely unacceptable.  Moreover, there is evidence that Washington may have had a discriminatory animus against Plaintiff for his National Origin, Religion, and Gender.

As noted in Plaintiff’s declaration and deposition, Washington repeatedly asked Plaintiff “where are you from?” and “what is your religion?” despite knowing that Plaintiff was from Iran.   (Baghkhani Decl. ¶ 22; McIntyre Decl. ¶ 2, Exh. G [Baghkhani Depo. at pp.83:1-85:12].)  Washington prohibited Plaintiff from having lunch with Mostafa Vessali – who is also an Iranian Muslim – but Washington did not prohibit Plaintiff from having lunch with Vu or Tan who were other non-Iranian persons whom Plaintiff would regularly eat lunch with.  (Baghkhani Decl. ¶ 16.)  Further, Washington talked about “The Shah’s of Sunset” and claimed to regularly watch it as it showed Iranian culture.  (Baghkhani Decl. ¶ 23.)  While Plaintiff was not aware of it at the time, “The Shah’s of Sunset” is a reality show that “reinforce[s] a negative and unrealistic portrayal of ordinary Iranians and their culture, with an emphasis on Iranian's purported disrespect for women and belief that they should not occupy positions outside of the home or hold positions of authority.”  (Baghkhani Decl. ¶ 23.)  Based on this evidence – taken in the light most favorable to Plaintiff – a reasonable jury could conclude that Washington had a discriminatory animus towards Plaintiff based on his National Origin, Religion, and Gender.  Moreover, coupled with the inconsistency of the probation report discussed above, a reasonable jury could conclude that the probation report – which served as the basis for termination – was pretextual and that Washington terminated Plaintiff based on a prohibited bias.

Accordingly, as Plaintiff shows a triable issue of fact, summary adjudication of the first and second causes of action is DENIED.

Third Cause of Action: Retaliation under FEHA

Defendant asserts that the third cause of action for retaliation fails because Plaintiff did not complain until after he was terminated and thus could not have been retaliated against.

“‘[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’s Moving Burden: Lack of Retaliation

“[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.)

The complaint alleges in relevant part that “[a]t various times in 2019 plaintiff complained to his management and to defendants’ EEO Department concerning the discrimination to which he was subjected as hereinabove alleged.”  (Complaint ¶ 27.)  Specifically, Plaintiff alleges that after he received the negative probation report, “Plaintiff immediately complained to Mr. Jarquin that Ms. Washington had given plaintiff a poor probationary report and again complained that he was being treated less well and differently than his coworkers not sharing his protected characteristics, and that such treatment was unfair. Ms. Washington’s hostility increased and plaintiff complained to defendants’ EEO Department, causing Ms. Washington to tell plaintiff to no longer speak to her.”  (Id. ¶ 18.) 

Jarquin states that Plaintiff never made any complaint that Washington made any comments or discriminated Plaintiff based on national origin, gender, or religion.  (Jarquin Decl. ¶¶ 26-28.)  Further, as noted by Chole Doyle – who worked as EEO Analyst in Caltrans’ Equal Employment Opportunity Program (EEOP) office in Sacramento, California and conducted the intake interview for Plaintiff’s report – Plaintiff called to make a complaint with the EEOP on October 30, 2019 and on November 1, 2019 the EEOP contacted Plaintiff to set up an interview for November 4, 2019.  (Doyle Decl. ¶¶ 1-3, Exh. 1 [Doyle’s November 14, 2019 Email to Plaintiff].)  There is no record of any call made to the EEOP by Plaintiff before the October 30, 2019 call.  (Doyle Decl. ¶ 6.)   However, as discussed above with the first and second causes of action, Plaintiff’s probation was rejected and Plaintiff was terminated on October 29, 2019.  (Washington Decl. ¶ 62, Exh. 8 [Notice of Rejection on Probation].)  This is one day before Plaintiff made the complaint to the EEOP.  Therefore, as Plaintiff had already been terminated, Plaintiff could not have been retaliated for making this complaint with the EEOP. 

            In addition, Plaintiff never informed Jarquin or Washington that he had made a complaint to the EEOP.  (Schele Decl. ¶ 2, Exh. 9 [Baghkhani Depo at pp.109:18-110:2].)  Moreover, Washington and Jarquin state that they first learned of Plaintiff’s complaint to the EEOP well after Plaintiff had been terminated.  (Jarquin Decl. ¶ 29; Washington Decl. ¶ 69.)

            As Plaintiff was terminated before the complaint was made and Jarquin and Washington were not aware of any complaint until after Plaintiff had been terminated, Defendant meets its moving burden in showing that Defendants did not retaliate against Plaintiff.  Accordingly, the burden shifts to Plaintiff to show a triable issue of fact.

            Plaintiff’s Burden: Whether Defendant Retaliated Against Plaintiff

            In opposition, Plaintiff contends that there is a triable issue of fact because Plaintiff states he made a complaint earlier and a few days later Washington treated Plaintiff even more hostile than before.  Plaintiff states in declaration that, despite the EEOP office having no record of any prior call, “[a]pproximately two or three weeks before my probation was to be up, [Plaintiff] called the Caltrans EEO office in Sacramento and spoke with a person who took down my name, phone number and the general nature of [his] discrimination and harassment complaint. This person indicated that the information will be passed along, but did not seek any lengthy details.”  (Baghkhani Decl. ¶ 40.)  Plaintiff then states that a few days later, he went to Washington’s cubicle with a question and was to “don't ask me anything. Don't come to my cubicle anymore. Go to your cubicle until the end of your probation.”  (Baghkhani Decl. ¶ 41.)  Plaintiff claims that this level of hostility did not exist before the complaint and then speculates that Washington must have been aware of Plaintiff’s unrecorded complaint with the EEOP.

            However, Plaintiff own evidence shows that this contention is without merit.   As noted in Plaintiff’s declaration, after Plaintiff received the October 3, 2019 probation report finding that Plaintiff’s work was unacceptable, “[Plaintiff] asked Ms. Washington if [he] had time to change whatever it was she found unacceptable about my performance and she said no.”  (Baghkhani Decl. ¶ 36.)  The only reasonable interpretation of this evidence is that Plaintiff was essentially terminated on October 3, 2019 when he received the probation report as there was no way to improve the review to pass probation.  Thus, the complaints by Plaintiff afterwards to the EEOP could not serve as a basis for termination as Washington had already decided to terminate Plaintiff before the complaints were made. 

            Thus, as there is no triable issue of fact, Defendant’s motion for summary adjudication of the third cause of action is GRANTED.

Fourth Cause of Action: Harassment

Defendant contends that the fourth cause of action for harassment fails because Plaintiff cannot show that the alleged conduct is sufficiently severe or pervasive. 

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.) 

Defendant’s Moving Burden: Severe or Pervasive

Here, Plaintiff alleges that Washington repeatedly asked Plaintiff where he was from and what religion are you, made comparisons of Iranian culture to a reality tv show, and made faces at Iranian food. (Complaint ¶ 18; 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1211, [“Although a party cannot rely on its own pleadings on summary judgment, a party seeking or opposing summary judgment under these circumstances can rely on admissions of material fact made in the opposing party's pleadings.”].)  Defendant contends that Plaintiff cannot show that the alleged conduct was sufficiently severe or pervasive. The Court disagrees.

“Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances.”  (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870.)  For example, in Serri, the Court of Appeal concluded that the Plaintiff failed to show severe or pervasive harassment because it involved three comments over six years showing that the harassment was not pervasive and the remarks were more innocuous statements such as there “are nice places to eat around here” such that they were not severe.  (Id. atp.871.)

In Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, the Court found that the plaintiff failed to show a claim for harassment based on thirteen instances of mostly brief isolated comments over a two-to-three-year period.  (Id. at pp.384-385.)  Here, Defendant fail to show any similar circumstances.  Here, the alleged conduct took place over the period of months not years and the alleged remarks are not as innocuous remarks as in Serri but rather remarks clearly tied to national origin and religion.  Moreover, since Serri and Haberman the State Legislature has amended the application of laws about harassment explicitly noting that “[h]arassment cases are rarely appropriate for disposition on summary judgment.”  (Gov. Code, § 12923(e).)  Defendant fails to present any evidence in the separate statement or memorandum showing that the alleged conduct is not pervasive and is not severe.  (City of Pasadena, supra, 228 Cal.App.4th at p.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.’ ”]; See Cal. Rules of Court, Rule 3.1113(b).) 

As Defendant fails to meet its moving burdening in showing that it is entitled to judgment as a matter of law as to the fourth cause of action, Defendant’s motion for summary adjudication of the fourth cause of action is DENIED.

Fifth 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 contends that because Plaintiff cannot prove any discrimination, harassment, or retaliation the claim for failure to prevent fails as a derivative claim.  However, as discussed above, Plaintiff does show a triable issue as to the claims for discrimination. Accordingly, Defendant’s motion for summary adjudication of the fifth cause of action is DENIED.

Conclusion and ORDER

Based on the foregoing, Defendant the State of California, Department of Transportation’s motion for summary judgment is DENIED.  Defendant’s motion for summary adjudication is GRANTED IN PART as to the third cause of action and otherwise DENIED.

            Moving Party is to give notice and file proof of service of such.

DATED:  October 19, 2022                                        ___________________________

Elaine Lu

                                                                              Judge of the Superior Court