Judge: Gail Killefer, Case: 20STCV09483, Date: 2022-08-17 Tentative Ruling
Case Number: 20STCV09483 Hearing Date: August 17, 2022 Dept: 37
HEARING DATE: August
17, 2022
CASE NUMBER: 20STCV09483
CASE NAME: Rene Nieves v. State of California –
Department of Corrections and Rehabilitation, a government entity and Lavonne
Pryor
TRIAL DATE: January
10, 2023
PROOF OF SERVICE: OK
MOTION: Defendants’
Motion for Summary Judgment and/or Summary Adjudication in the alternative
MOVING PARTIES: Defendants,
State of California – Department of Corrections and Rehabilitation and Lavonne
Pryor
OPPOSING PARTY: Plaintiff
Rene Nieves
OPPOSITION: August
3, 2022
REPLY: August 10,
2022
TENTATIVE:
Defendants’
motion for summary judgment is granted. Defendants are to give notice.
Background
This action arises out of the employment of Rene
Nieves’ (“Plaintiff”) with Defendant California Department of Corrections and
Rehabilitation (“CDCR”) as a Registered
Correctional Nurse for a limited term, with the opportunity of being hired for
a permanent position. Plaintiff alleges that he was hired by CDCR on September
18, 2016 and was supervised by Defendant Lavonne Pryor (“Pryor”) during his
employment. Plaintiff alleges that throughout his employment, Pryor called him
sexualized nicknames, denied him sick leave, and otherwise created a hostile
work environment. Plaintiff also alleges that Pryor systematically attempted to
prevent Plaintiff from becoming a permanent employee. Plaintiff alleges that he
was wrongfully terminated on September 18, 2018.
Plaintiff’s operative First Amended Complaint (“FAC”)
alleges ten causes of action: (1) discrimination in violation of the Fair
Housing Employment 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) failure to provide
reasonable accommodations in violation of FEHA, (6) failure to engage in a good
faith interactive process in violation of FEHA, (7) violation of California
Family Rights Act, (8) declaratory judgment, (9) negligent supervision and
retention, and (10) intentional infliction of emotional distress. Only the
second and tenth causes of action are alleged against Pryor.
On January 28, 2021, CDCR’s demurrer
was sustained as to the ninth cause of action and Pryor’s demurrer was
sustained as to the tenth cause of action. On February 17, 2021,
Plaintiff filed the Second Amended Complaint. (“SAC”) The SAC alleges the same
ten causes of action. On June 2, 2021, Defendants’ demurrer was
sustained as to the tenth cause of action.
On July 2, 2021, Plaintiff filed the
operative Third Amended Complaint (“TAC”). The TAC alleges the same ten causes
of action.
Defendants now
move for summary judgment or, in the alternative, summary adjudication as
follows:
1. Plaintiff’s
first cause of action for discrimination in violation of FEHA fails as a matter
of law;
2. Plaintiff’s
second cause of action for harassment in violation of FEHA fails as a matter of
law;
3. Plaintiff’s
second cause of action for harassment in violation of FEHA fails as a matter of
law also as to Pryor;
4. Plaintiff’s
third cause of action for retaliation in violation of FEHA fails as a matter of
law;
5. Plaintiff’s
fourth cause of action for failure to prevent discrimination, harassment, and
retaliation in violation of FEHA is without merit;
6. Judgment
should be granted in favor of CDCR as to Plaintiff’s Fifth Cause of Action
because it is without merit;
7. Judgment
should be granted in favor of CDCR as to Plaintiff’s Sixth Cause of Action
because it similarly lacks merit;
8. Judgment
should be granted in favor of CDCR as to Plaintiff’s Seventh Cause of Action
because Plaintiff’s claims are without merit;
9. Judgment
should be granted in favor of CDCR as to Plaintiff’s Eighth Cause of Action
because it is similarly without merit;
10. Judgment
should be granted in favor of CDCR as to Plaintiff’s Ninth Cause of Action
because it is without merit;
11. Judgment
should be granted in favor of CDCR as to Plaintiff’s Tenth Cause of Action
because it similarly lacks merit; and
12. Judgment
should be granted in favor of Pryor as to Plaintiff’s Tenth Cause of Action because
it is without merit.
Defendants’
notice of motion does not comply with CCP § 437c(f)(1) which provides: “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.” Defendants’ noticed issues either address multiple
causes of action within one issue, or one cause of action is addressed across
multiple issues. Thus, the court will address the motion pertaining to each
cause of action.
Request
for Judicial Notice
CDCR requests that the court take judicial notice of
the following in support of its demurrer to the FAC:
1. Plaintiff’s
operative Third Amended Complaint filed in this matter. (Exhibit A).
2. Plaintiff’s
DFEH Complaint, filed on July 10, 2018, DFEH Inquiry 480-2018-02496. (Exhibit
B).
3. Plaintiff’s
Right to Sue Letter issued by the DFEH on July 10, 2018. (Exhibit C).
4. Plaintiff’s
DFEH Complaint filed on August 9, 2019, DFEH Inquiry 201908-07159609. (Exhibit
D).
5. Department
of General Services Government Claim file regarding a claim submitted by
Plaintiff Rene Nieves on August 9, 2019, marked Government Claim Number
19007311, and letter granting the late claim application. (Exhibit E).
CDCR’s request is granted. The existence and legal
significance of this document is a proper matter for judicial notice. (Evid.
Code § 452(h).) However, the court may not take judicial notice of the truth of
the contents of the documents. (Herrera
v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366,
1375.) Documents are only judicially
noticeable to show their existence and what orders were made. The truth of the facts and findings within
the documents are not judicially noticeable.
(Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001)
91 Cal.App.4th 875, 885.)
Evidentiary Objections
Plaintiff’s Objections to Defendants’
Declarations, Material Facts, and Evidence
Overruled: All
This court notes that, in
violation of Cal. Rules of Court, Rule 3.1354, Plaintiff submitted evidentiary
objections without following one of the two allowed formats—namely, Plaintiff failed
to number the objections and instead, has objected broadly to entire documents
without explaining the basis of the objection. As such, Plaintiff failed to accurately refer
to each objection individually for the court’s review.
Defendants’ Objections to
Plaintiff’s Declarations, Material Facts and Evidence
Overruled: 1-2, 6, 17, 25
Sustained in Part: 4-5,
14
Sustained: 3, 7, 8-13,
15-16, 18-24, 26-34
Discussion
I.
Legal Authority
“The purpose of the law of summary judgment is to
provide courts with a mechanism to cut through the parties' pleadings in order
to determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) CCP § 437c(a)
provides:
A party
may move for summary judgment in any action or proceeding if it is contended
that the action has no merit or that there is no defense to the action or
proceeding. The motion may be made at
any time after 60 days have elapsed since the general appearance in the action
or proceeding of each party against whom the motion is directed or at any
earlier time after the general appearance that the court, with or without
notice and upon good cause shown, may direct….
The motion shall be heard no later than 30 days before the date of
trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the
time within which a party must otherwise file a responsive pleading.
A motion for summary judgment may be granted “if all
the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law.” (CCP § 437c(c).)
“The motion shall be supported by affidavits,
declarations, admissions, answers to interrogatories, depositions, and matters
of which judicial notice shall or may be taken.
The supporting papers shall include a separate statement setting forth
plainly and concisely all material facts that the moving party contends are
undisputed. Each of the material facts
stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a sufficient
ground for denial of the motion.” (CCP §
437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In analyzing motions for summary judgment, courts must
apply a three-step analysis: “(1) identify the issues framed by the pleadings;
(2) determine whether the moving party has negated the opponent's claims; and
(3) determine whether the opposition has demonstrated the existence of a
triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294 (Hinesley).) CCP § 437c(p)(2) provides:
A
defendant or cross-defendant has met his or her burden of showing that a cause
of action has no merit if the party has shown that one or more elements of the
cause of action, even if not separately pleaded, cannot be established, or that
there is a complete defense to the cause of action. Once the defendant or cross-defendant has met
that burden, the burden shifts to the plaintiff or cross-complainant to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto. The
plaintiff or cross-complainant shall not rely upon the allegations or denials
of its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.
The court must “view the evidence in the light most
favorable to the opposing party and accept all inferences reasonably drawn
therefrom.” (Hinesley, 135 Cal.App.4th
at p. 294; Dore v. Arnold Worldwide, Inc.
(2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.”].) A
motion for summary judgment must be denied where the moving party’s evidence
does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d
462, 475) or where the opposition is weak (Salasguevara
v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
II.
Analysis
A. McDonnell
Douglas Test and Summary Judgment
“In analyzing an employee’s claim for unlawful discrimination
under the FEHA, California courts have adopted the three-stage, burden-shifting
test the United States Supreme Court established in McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson
v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).)
“This so-called 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.” (Swanson, 232 Cal.App.4th at
p. 964.)
California courts have recognized that the McDonnell
Douglas test was originally developed for use at trial, not in summary
judgment proceedings. (Swanson, 232 Cal.App.4th at p.
965.) “California’s summary judgment law places the initial burden on a
moving party defendant to either negate an element of the plaintiff’s
claim or establish a complete defense to the claim.” (Id. at
pp. 965-966.) “The burdens and order of proof therefore shift under
the McDonnell Douglas test when an employer defendant seeks
summary judgment. [Citations.] An employer defendant may
meet its initial burden on summary judgment, and require the employee plaintiff
to present evidence establishing a triable issue of material fact, by
presenting evidence that either negates an element of the employee's prima
facie case, or establishes a legitimate nondiscriminatory reason for taking the
adverse employment action against the employee.” (Id. at p.
966.) “[T]o avoid summary judgment [on the second of these two
grounds], an employee claiming discrimination must offer substantial evidence
that the employer's stated nondiscriminatory reason for the adverse action was
untrue or pretextual, or evidence the employer acted with a discriminatory
animus, or a combination of the two, such that a reasonable trier of fact could
conclude the employer engaged in intentional discrimination.” (Ibid.)
B. Failure
to Produce Material Documents
As a preliminary matter,
Plaintiff contends Defendants’ motion should be denied pursuant to CCP
§ 437c(h) because “Defendant still failed to produce documents and identify all
witnesses before filing its MSJ. After finally being able to take the depositions
of witnesses identified in Defendant’s MJS for the first time, Plaintiff
learned of material documents that have not been produced.” (Opp., 11-12.)
Defendants
in their reply contend “Plaintiff was provided with three additional months to
conduct the discovery he claimed he needed to meaningfully oppose the motion.”
(Reply, 3-4.) Defendants further explain numerous depositions were taken in
June 2022 and discussed document requests during these depositions. (Id.)
However, following the depositions, Plaintiff’s counsel never responded to
inquire about any requested documents. (Id.) “Defendants’ counsel has
been actively participating in discovery in good faith, and Plaintiff has had
every opportunity to conduct discovery and informally request the information
needed to oppose this motion.” (Id.)
The
court agrees. This court does not find sufficient grounds to deny the motion
outright for any alleged discovery failures, as the parties mutually agreed to
another three months of discovery before this motion was heard. The court continues
with the merits of the claims.
C. Exhaustion
of Administrative Remedies
“Exhaustion of administrative remedies is a jurisdictional
prerequisite to resort to the courts.”¿ (Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 70.) A civil action must be brought
“within one year after the filing of a complaint” with the DFEH.¿ (Gov. Code §
12965.)¿ A DFEH complaint must be filed within one year of the alleged wrongful
conduct.¿ (Gov. Code § 12960(d).)¿
A party making an administrative complaint must “set forth the particulars” of the
alleged unlawful practices.¿ (Gov. Code § 12960(b).) “After the filing of any
complaint alleging facts
sufficient to constitute a violation of any of the provisions of
this part, the department shall make prompt investigation in connection
therewith.”¿ (Gov. Code § 12963.)¿ The purpose of the charge is to supply fair
notice of the facts, sufficient to permit investigation.”¿ (Hobson v.
Raychem Corp. (1999) 73 Cal.App.4th 614, 630 disapproved of on other
grounds by Colmenares v. Braemar Country Club, Inc. (2003)
29 Cal.4th 1019.)¿
Gov. Code § 12960 requires an employee bringing a claim to first file an
administrative complaint with the Department of Fair Employment and Housing
(“DFEH”) within one year of the date the alleged unlawful action occurred.¿
(Gov. Code, § 12960, subd. (d).)¿¿“The timely filing of an administrative complaint
is a prerequisite to the bringing of a civil action for damages under the
FEHA.”¿ (Romano v. Rockwell¿(1996) 14 Cal.4th 479, 492 (Romano).)¿
Furthermore, “the FEHA provides that no complaint for any violation of its
provisions may be filed with the Department ‘after¿the expiration of one
year from the date upon which the alleged¿unlawful practice¿or refusal
to cooperate¿occurred,’¿with an exception for delayed discovery. . . .”¿
(Ibid.,¿emphasis in original.)¿¿“Where exhaustion of an administrative
remedy is mandatory prior to filing suit,¿equitable¿tolling¿is automatic.” (McDonald
v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 101.)
Pursuing an employer’s internal grievance procedures may qualify for equitable
tolling when internal procedures may serve to “minimize or eliminate entirely
the need for further judicial proceedings.” (Id.)
Under the continuing
violation doctrine, an employer’s allegedly discriminatory
acts or failure to eliminate a hostile work environment
targeting the protected status of an employee, “is a continuing violation if the
employer’s unlawful actions are (1) sufficiently similar in
kind—recognizing … that similar kinds of unlawful employer conduct,
such as acts of harassment or failures to reasonably accommodate disability,
may take a number of different forms [citation]; (2) have occurred with
reasonable frequency; (3) and have not acquired a degree of permanence.”
(Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 (Richards).)
“Permanence,” in this context, “should properly be understood to
mean the following: that an employer’s statements and actions make clear
to a reasonable employee that any further efforts at informal conciliation to
obtain reasonable accommodation or end harassment will be futile.” (Ibid.) A plaintiff’s allegations that she
suffered numerous distinct acts of discrimination, harassment, or retaliation
is alone insufficient to establish that the acts are “sufficiently similar in
kind” to constitute a continuing violation. (See Richards, supra, 26
Cal.4th at pp. 823-824.)
In
Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402 (“Acuna”),
an aggrieved employee filed suit against her former employer, San Diego Gas
& Electric (“SDG&E”), following the employee’s termination. Her
complaint included three FEHA causes of action: “(1) disability discrimination;
(2) racial discrimination; and (3) wrongful retaliation.” (Acuna, supra
217 Cal.App.4th at 1411.) Plaintiff filed her first DFEH complaint against her
employer on March 16, 2006 alleging racial discrimination, harassment, and
retaliation, and received a right-to-sue letter on March 27, 2006. Plaintiff
filed a second DFEH complaint on February 23, 2007, alleging disability
discrimination for failure to accommodate, and received a right-to-sue letter
on February 19, 2008. (Acuna, supra 217 Cal.App.4th at 1413.) Plaintiff
was then terminated by her employer on July 11, 2008. Subsequently, Plaintiff
filed a third DFEH complaint on October 23, 2008 which alleged “various
wrongful acts, including her alleged retaliatory termination,” and received a
right-to-sue letter on November 7, 2008. Plaintiff filed her lawsuit in court
on November 5, 2009. (Acuna, supra 217 Cal.App.4th at 1413.)
The
trial court concluded that Plaintiff’s FEHA claims “were barred by the
applicable statute of limitations and Acuna failed to sufficiently state a
cause of action on her remaining claims.” (Acuna at 1406.) On appeal,
Plaintiff argued in part that the trial court erred in concluding that her FEHA
claims were time-barred. The appellate court affirmed the trial court on all
FEHA claims except retaliation. As to her disability discrimination claim,
Plaintiff argued that “she had a mental health disability relating to stress
and depression and that SDG&E repeatedly denied her requested accommodations
for this disability,” and that “the time period for filing her DFEH claim for
this discrimination was tolled under the continuing violations doctrine.” (Acuna
at 1414.) The appellate court concluded that the continuing violations
doctrine did not apply to toll Plaintiff’s disability discrimination claim,
finding that Plaintiff’s allegations “establish that a reasonable person would
have understood that SDG&E had denied her requests for accommodation no
later than February 2007,” when she filed her DFEH complaint regarding
disability. (Id.) Specifically, court noted that by “retaining counsel
and filing a DFEH complaint,” Plaintiff “manifested an understanding that
further attempts at informal, rather than formal, resolution of the disability
accommodation process would not be successful and were futile.” (Id. at
1415.)
As to
Plaintiff’s racial discrimination cause of action, the appellate court also
determined that it was time-barred, and that the continuing violation doctrine
did not apply. (Acuna at 1417.) Specifically, the court noted that
Plaintiff’s allegations specifically regarding her employer’s racial
discrimination occurred in 2005 and 2006 and were the subject of her DFEH
complaint filed in 2006. Plaintiff received her corresponding right-to-sue
letter in March of 2006, but failed to file her lawsuit until 2009. (Id.) The
court noted that Plaintiff “cannot revive these expired claims many years after
the alleged racial discrimination took place.” (Id.)
As
to the third FEHA cause of action, wrongful retaliation, the court noted that
“the section 12960 cause of action accrues and the statute of limitations runs
from the time of actual termination.” (Acuna at 1419.) Plaintiff had
filed her DFEH complaint in October of 2008, received a right-to-sue letter on
November 7, 2008, and filed suit on November 5, 2009. Thus, the court held that
that it could not conclude that the cause of action was time-barred because
Plaintiffs “retaliation claim [was] based on SDG&E's conduct in terminating
her for alleged retaliatory motives in July 2008…” (Acuna at 1420.)
Here, Defendants contend that all FEHA causes of
action in the TAC fail because Plaintiff has failed to exhaust his
administrative remedies and further, the continuing violations doctrine does not
apply. (Motion, 16-17.) Defendants contend that since Plaintiff filed a first
DFEH Right to Sue Letter on July 10, 2018, the claims in that first DFEH Right
to Sue Letter were time barred after July 10, 2019. (Id.; RJN Exh. B.)
“The statute of limitations period had run for all claims in the July 2018 DFEH
complaint pursuant to Gov. Code §
12965(d) and the claims are untimely.” (Id.) Defendants also contend the
continuing violations doctrine does not apply here as in Acuna, where
Plaintiff here filed a first Right to Sue letter which had lapsed before
Plaintiff filed a second DFEH Right to Sue letter. (Motion, 17-18.)
In opposition, Plaintiff contends that this court’s
ruling on Defendants’ demurrers should hold weight as to the validity of the
statute of limitations argument raised by Defendants. (Opp., 12-13.) As the
demurrer stage involves a different inquiry by this court, the court disregards
this contention. Plaintiff also contends “[w]ith respect to the continuing
violations doctrine, this argument again fails because it relies on the July
10, 2018 date, which is not the date of Plaintiff’s DFEH complaint.” (Id.)
The court disagrees, as the first DFEH Right to Sue letter clearly states
“CDCR” as Plaintiff’s employer and is dated as July 10, 2018. (RJN Exh. B.)
Lastly, Plaintiff contends “Plaintiff’s allegations are clear that he suffered
from various forms of discrimination due to his race and disability and
harassment from Pryor and other superiors at CDCR during his entire tenure with
CDCR, which did not reach a level of permanence until he was terminated before
resolution of the complains [sic].” (Opp., 13.) However, Plaintiff fails
to distinguish from Acuna and fails to explain how the filing of the
first DFEH Complaint did not establish “permanence,” as the Acuna court
and other supporting authorities have found.
Viewing the evidence in the light most favorable to the
nonmoving party, the court finds that Plaintiff’s claims until the July 10,
2018 DFEH Complaint are time barred and the continuing violations doctrine does
not apply. Taking guidance from Acuna, the court finds there are no
factual disputes that Plaintiff indeed filed the first DFEH Complaint alleging
many of the same violations he now alleges in the TAC, that these allegations
are now time-barred by statute, and the filing of the first DFEH complaint
established permanence as needed to show the continuing violations doctrine
does not apply. Thus, the allegations which precede the July 10, 2018 Complaint
are now time-barred and the court continues its analysis by looking at all
conduct after the first DFEH Right to Sue letter.
D. First
and Second Causes of Action: Discrimination & Harassment under FEHA
To establish a prima facie case for discrimination
under the FEHA, a plaintiff must show that “(1) [she] was a member of
a protected class, (2) [she] was qualified for the
position [she] sought or was performing competently in the
position [she] held, (3) [she] suffered an adverse
employment action, such as termination, demotion, or denial of an available
job, and (4) some other circumstance suggests discriminatory motive.” (Guz v.
Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) FEHA
liability for discrimination requires proof that the discrimination was a
substantial factor in an employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)
To establish a prima facie case of¿harassment, an
employee must show (1) he was an employee; (2)¿he was subjected to unwanted
harassing conduct based on her protected status; (3) the harassing conduct was
severe or pervasive; (4) a reasonable person in the employee's circumstances
would have considered the work environment to be hostile or abusive; (5) he
considered the work environment to be hostile or abusive; (6) that a supervisor
engaged in the conduct and/or the employer knew or should have¿known of the
conduct and failed to take immediate and appropriate corrective action; (7) the
employee was harmed; and (8) the conduct was a substantial factor in causing
the employee's harm.¿(Thompson v. City of Monrovia¿(2010) 186
Cal.App.4th 860, 876)¿Further, pursuant to Gov. Code § 12923(b), “A single
incident of harassing conduct is sufficient to create a triable issue regarding
the existence of a hostile work environment if the harassing conduct has
unreasonably interfered with the plaintiff’s work performance or created an
intimidating, hostile, or offensive working environment.”
Defendants contend that Plaintiff’s first cause of
action, and remaining FEHA causes of action, are without merit as Plaintiff did
not suffer any adverse employment action or severe and pervasive harassment. (Motion,
18-19.) Defendants further contend, “Plaintiff was not subjected to a
substantial adverse change in the terms and conditions of his employment.
Plaintiff was hired in September 2016 for a limited term of one year, was then
extended for an additional 12 months in September 2017, which concluded in September
2018. Plaintiff remained in his position and was never subjected to any adverse
actions during his employment.” (citations omitted) (Id.) Defendants
thus contend that Plaintiff’s “failure to obtain a permanent position” was due to
a legitimate non-discriminatory business reason “since Plaintiff scored below
other individuals at those interviews.” (Motion, 19-20.) Defendants further
explain that Plaintiff’s limited term employment was governed by statute, and
could not be changed into a permanent position due to any “bureaucratic
mistakes.” (Motion, 20; citing Jenkins v. County of Riverside (2006) 138
Cal.App.4th 593, 609–616.) Thus, Defendants contend Plaintiff worked his entire
term, and “was not selected for a position after being interviewed by a panel
of people and being deemed non-competitive.” (Motion, 21.)
Defendants also contend the harassment cause of action
fails because Plaintiff cannot show any severe or pervasive conduct. (Motion,
21-22.) Defendants contend the words “baby,” “Honey,” or “sweetie” are not
severe enough to trigger liability, especially because those terms were also
directed towards other employees and more specifically other male employees.
(MF 19.) (Id.; citing Hughes v. Pair (2009) 46 Cal.4th 1036, 1043.)
Defendants further contend the August 13, 2018 conversation when Plaintiff
claims he overheard Pryor say “yeah, get that crazy fucking Mexican out of
here,” lacks merit because Plaintiff could not have heard this conversation and
as such, there are no material facts to support a claim for harassment.
(Motion, 23-24.)
In opposition, Plaintiff contends that the first cause
of action has merit by making conclusory allegations “Plaintiff’s protected
statuses as a Hispanic male with mental and physical disabilities were
substantial motivating reasons for Defendant’s decisions, including because he
was terminated in the midst of an FMLA leave and after numerous complaints, because
of the blatant discriminatory comments listed above, as well as Pryor’s email
complaining of Plaintiff calling off work too much.” (Opp., 14.) Plaintiff then
contends that under the McDonnell Douglas framework, the burden does not
shift to Plaintiff because “an email from Oblonsky instructing to continue
Plaintiff’s employment,” shows the termination to not be “validly and fairly
devised.” (Id.; citing California Fair Employment & Housing Com.
v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1022.) However, this
appears to be a mischaracterization of the evidence, as the cited email from
Oblonsky instructing to continue Plaintiff’s limited term employment is dated
December 11, 2017. Thus, the court struggles to comprehend the temporal and
causal inference Plaintiff draws between this email and Plaintiff’s
termination, some months later. Therefore, the burden shifting framework
applies here.
Plaintiff also contends that the November 9, 2018
application shows Plaintiff “was approved and offered the permanent full time
position.” (Opp., 15.) Plaintiff further contends
“the comments were severe and pervasive, given the
nature of the comments listed above, which directed addressed Plaintiff gender
(honey, baby, etc), race (crazy fucking Mexican, etc), and disabilities (you are
going to sedate yourself, you call out sick way too much, you call off on FMLA
too much, and spreading rumors about Mr. Nieves being on drugs) [sic].”
(Opp., 16.)
In reply, Defendants contend Plaintiff misrepresents
evidence to create a factual question. (Reply, 6-7.) Defendants also correctly
point out that the November 9, 2018 Memorandum clearly states:
“The position you have been appointed to is limited
term. In order to appoint you
permanent, the [CDCR] must verify your eligibility. If
all requirements are met to
appoint you to permanent, the [CDCR] will process your
change with your
acknowledgement indicated below. If you are in
agreement, please complete the
appropriate portion below and return with the updated
forms listed.” (Id.; Exh. 16.)
As such, Defendants contend Plaintiff was a limited
term employee and his limited term ended, which is not an adverse employment
action. (Reply, 7-8.) Defendants further reiterate that no pervasive or severe
conduct can be shown; “even if we assume Plaintiff’s allegation is true, a
reasonable jury could not possibly find that using terms of endearment for a
month created an intimidating and hostile work environment based on Plaintiff’s
gender.” (Reply, 8-9.)
Viewing the evidence in a light most favorable to the
nonmoving party, the court finds Plaintiff has not shown an adverse employment
action or pervasive and severe conduct after the July 2018 DFEH Complaint.
Specifically, the court finds no triable issues of material fact exist as to
whether Plaintiff was a limited term employee, whether Plaintiff’s failure to
receive a permanent position was due to a legitimate business reason, and
whether Plaintiff faced a hostile and intimidating work environment.
For these reasons, the court grants summary
adjudication as to the first and second causes of action.
E. Third
Cause of Action: Retaliation under FEHA
Courts employ the same burden-shifting analysis for
claims of retaliation under the FEHA as they do for claims of
discrimination. (Yanowitz, supra, 36 Cal.4th at p.
1042.) Thus, once the employee establishes a prima facie case of
retaliation, the burden shifts to the employer to provide a legitimate,
nonretaliatory reason for its action. If the employer sustains its
burden, the presumption of retaliation disappears, and the burden shifts back
to the employee to prove intentional retaliation. (Ibid.) A
prima facie case of retaliation under the FEHA consists of the following
elements: (1) the plaintiff engaged in a protected activity, (2) the employer
subjected the plaintiff to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s action. (Ibid.)
In their reply, Defendants correctly contend that in
order to establish a claim for FEHA retaliation, Plaintiff must show he
suffered an adverse employment action. (Reply, 7.)
As this court has found no triable issues of material
fact regarding whether Plaintiff suffered an adverse employment action, the
court further grants summary adjudication as to the third cause of action.
F. Fourth
Cause of Action: Failure to Prevent Discrimination, Harassment and Retaliation
under FEHA
The
fourth cause of action is for failure to provide an environment free from
discrimination and retaliation under Gov. Code, § 12940(k). “An
actionable claim under section 12940, subdivision (k) is dependent on a claim
of actual discrimination: ‘Employers should not be held liable to employees for
failure to take necessary steps to prevent such conduct, except where the
actions took place and were not prevented.’ [Citation]” (Scotch v.
Art Inst. of California (2019) 173 Cal.App.4th 986,
1021.)
As
the court has granted summary adjudication as to the first three causes of
action, this court further grants summary adjudication as to the fourth cause
of action here.
G. Fifth,
Sixth, Seventh Causes of Action: Failure to Provide Reasonable Accommodation
under FEHA, Failure to Engage in Interactive Process under FEHA, violation of
California Family Rights Act
As discussed above, the court also grants summary
adjudication as to the fifth, sixth, and seventh causes of action.
H. Eighth
Cause of Action: Declaratory Judgment
California courts have recognized that “[t]he existence of an
‘actual controversy relating to the legal rights and duties of the respective
parties,’ suffices to maintain an action for declaratory relief.” (Ludgate
Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592,
605.)
Plaintiff here admits the derivative nature of this
cause of action in the opposition, asserting “it is improper to dispose of the declaratory
judgment claim on summary judgment so long as any one claim survives since an
actual controversy will exist.” (Opp., 18.)
Finding this cause of action to be derivative, the
court also grants summary adjudication as to the eighth cause of action.
I. Ninth
and Tenth Causes of Action: Negligent Supervision and Retention, Intentional
Infliction of Emotional Distress
“An employer may be liable to a third person for the
employer's negligence in hiring or retaining an employee who is incompetent or
unfit. [Citation.]” (Roman Catholic Bishop v. Superior Court¿(1996) 42
Cal.App.4th 1556, 1564–1565.) Negligence liability will be imposed upon the
employer if it “knew or should have known that hiring the employee created a
particular risk or hazard and that particular harm materializes.” (Doe v.
Capital Cities¿(1996) 50 Cal.App.4th 1038, 1054.) As such, “California
follows the rule set forth in the Restatement Second of Agency section 213,
which provides in pertinent part: ‘A person conducting an activity through
servants or other agents is subject to liability for harm resulting from his
conduct if he is negligent or reckless: ... [¶] (b) in the employment of
improper persons or instrumentalities in work involving risk of harm to
others[.]’ (Ibid.)” (Evan F. v. Hughson United Methodist Church¿(1992) 8
Cal.App.4th 828, 836.)¿ Liability for negligent supervision and/or retention of
an employee is one of direct liability for negligence, not vicarious
liability.¿ (Delfino¿v. Agilent Technologies, Inc.¿(2006) 145
Cal.App.4th 790, 815.)¿
“To state a cause of action for intentional infliction
of emotional distress (“IIED”) a plaintiff must show: (1) outrageous
conduct by the defendant; (2) the defendant's intention of causing or reckless
disregard of the probability of causing emotional distress; (3) the plaintiff's
suffering severe or extreme emotional distress; and (4) actual and proximate
causation of the emotional distress by the defendant's outrageous conduct.” (Yau¿v.
Santa Margarita Ford, Inc.¿(2014)
229 Cal.App.4th 144.) To satisfy the “outrageous conduct” element, the
plaintiff must allege conduct “so extreme as to exceed all bounds of that
usually tolerated in a civilized community . . .¿“ (Cochran v. Cochran¿(1998)
65 Cal.App.4th 488, 494.)
Under the Government Claims Act, the general rule is
that any party with a claim for money or damages against a public entity must
first file claim directly with that entity; only if that claim is denied or
rejected may the claimant file a lawsuit. (Gov. Code §§ 905, 945.4; City of
Ontario v. Superior Court (1993) 12 Cal.App.4th 894.) This provides the public entity with an
opportunity to evaluate the claim and make a determination as to whether it
will pay on the claim. (Roberts v.
County of Los Angeles (2009) 175 Cal.App.4th 474.) Failure to timely file a tort claim renders
the complaint subject to demurrer.¿(V.C. v. Los Angeles Unified School Dist.¿(2006)
139 Cal.App.4th 499, 509, affirming trial court decision to sustain demurrer
without leave to amend because V.C.’s failure to timely comply with the
requirements of the Government Claims Act barred her action.) A complaint
subject to the Tort Claims Act must allege facts showing compliance with the
act or allege facts excusing non-compliance. (State v. Superior Court
(Bodde) (2004) 32 Cal.4th 1234, 1239.)
A claim for death or injury to person or personal
property shall be presented not later than six months after the accrual of the
cause of action.¿ (Gov. Code, § 911.2(a).)¿However, a claim “relating to any
other cause of action” “shall be presented as provided in Article 2 (commencing
with Section 915) not later than one year after the accrual of the cause of
action.” (Id.) When a claim required to be presented pursuant to
Government Code section 911.2, subdivision (a) is not presented within that
time, a written application may be made to the public entity for leave to
present that claim.¿ (Gov. Code, § 911.4(a).)¿ The application shall be
presented to the public entity within a reasonable time not to exceed one year
after the accrual of the cause of action and shall state the reason for the
delay in presenting the claim.¿ The proposed claim shall be attached to the
application.¿ (Gov. Code, § 911.4(b).)¿The application is required to include
information from the categories delineated in Gov. Code § 910.
The claim presentation requirement is “is not merely
procedural but is a condition precedent to maintaining a cause of action and,
thus, is an element of the plaintiff's cause of action.” (Perez v. Golden
Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.) A party suing a
public entity must allege compliance with this requirement, or that a
recognized exception exists. (Gong v. City of Rosemead (2014) 226
Cal.App.4th 363, 374. A party may allege compliance with this requirement by
including a general allegation that “he or she timely complied.” (Id.)
“If the plaintiff fails to include the necessary allegations, the complaint is
subject to attack by demurrer.” (Id.)
Here, Defendants contend Plaintiff’s tort claims are
barred because “Plaintiff in this case did not file a Government Claim in this
matter until August 9, 2019, and knowing it was late, included a late claim
application to the California Department of General Services.” (Motion, 27-28.)
Defendants further explain that the late claim application was denied “by
operation of law” on September 23, 2019, where Plaintiff must have filed a
petition for relief as the sole remedy. (Id.) Defendants contend that
“[i]f Plaintiff had not already filed a lawsuit, this approval may have revived
his expired claim. However, Plaintiff’s lawsuit was premature because he did
not wait for the board to take action, and failed to timely seek relief
pursuant to Gov. Code. §946.6(b).” (Motion, 28.) Defendants also contend that
the exclusive remedy provision of the workers compensation act applies to
Plaintiff’s tort claims. (Motion, 29; citing Coit Drapery Cleaners, Inc. v.
Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1606.)
In opposition, Plaintiff does not address the
government claim act requirements and instead asserts the statutes of
limitations for the tort claims. (Opp., 18.) Plaintiff also contends the
exclusive remedy provision does not apply here, but fails to provide supporting
authority as to how these circumstances do not merit the imposition of the
workers compensation act. (Opp., 19.)
Defendants in their reply point out “Plaintiff offers
no response to his failure to comply” with the Government Claim Act. (Reply,
4.)
As Plaintiff had provided no explanation for his
failure to comply with the Government Claim Act or provided supporting
authority to justify his failure to comply, the court finds no trial issues of
material facts exist as to whether Plaintiff’s claims are barred.
For these reasons, the court grants summary
adjudication as to the ninth and tenth causes of action.
Conclusion