Judge: Gail Killefer, Case: 21STCV07957, Date: 2023-09-13 Tentative Ruling

Case Number: 21STCV07957    Hearing Date: December 15, 2023    Dept: 37

HEARING DATE:                 Friday, December 15, 2023

CASE NUMBER:                   21STCV07957

CASE NAME:                        Karen Majovski v. City of Los Angeles

MOVING PARTY:                 Defendant City of Los Angeles

OPPOSING PARTY:             Plaintiff Karen Majovski

TRIAL DATE:                        6 February 2024

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion for Summary Judgment or Summary Adjudication in the Alternative

OPPOSITION:                        1 November 2023

REPLY:                                  7 December 2023

TENTATIVE:                         Defendant’s Motion for Summary Judgment is granted.

Background

On March 1, 2021, Karen Majovski (“Plaintiff”) filed a Complaint against the City of Los Angeles (“Defendant”).

The operative First Amended Complaint (“FAC”) alleges seven causes of action: (1) Discrimination based on Gender or Sex in Violation of the Fair Employment and Housing Act (“FEHA”), (2) Associational Discrimination based on Gender or Sex; (3) Retaliation for Engaging in Protective Activity in Violation of the FEHA, (4) Failure to Prevent Discrimination, Harassment, or Retaliation in Violation of the FEHA, (5) Violation of Labor Code § 1102.5, (6) Violation of Labor Code §§ 1197.5, et seq. (Equal Pay Violation), and (7) Unfair Competition in Violation of Bus. & Prof. Code § 17200 et seq.

The seventh cause of action was voluntarily dismissed on July 16, 2021.

On July 14, 2023, Defendant filed a Motion for Summary Judgment, or Summary Adjudication in the alternative. Plaintiff filed opposing papers on November 1, 2023. Defendant filed a reply on November 21, 2023. The matter is now before the court.

Motion for summary judgment or summary ADJUDICATION, in the alternative

I.         Legal Standard

The purpose of a motion for summary judgment or summary adjudication “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. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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.) Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (CCP, § 437c(f).)¿¿¿¿¿¿¿¿ 

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A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (CCP, § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at pp. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿ 

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“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿¿¿¿ 

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Defeating summary judgment requires only a single disputed material fact. (See CCP, § 437c(c) [a motion for summary judgment “shall 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.”] [emphasis added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿¿ 

II.        Plaintiff’s Evidentiary Objections

Plaintiff’s evidentiary objections to Nos. 1 to 17 to Declaration of Leela Kapur are overruled.

Plaintiff’s evidentiary objection Nos. 18 to 20 to the Declaration of Ray Ilgunsas are overruled.

Plaintiff’s evidentiary objections Nos. 21 to 25 to the Declaration of Kathleen Kenealy are overruled.   

Plaintiff’s evidentiary objections Nos. 26 to 29 to the Declaration of David Villegas are overruled.

Plaintiff’s Objections Nos. 30, 31, and 34 - 38 are overruled.

III.      Defendant’s Evidentiary Objections

Objections Nos. 1- 8, 16 - 20, 27 - 30, 33 - 34, 44, 46, 50, 51, are overruled.

Objections Nos. 10 - 15, 21 - 26, 31 - 32, 35 - 43, 45, 47 - 49, 52 - 55 are sustained.

IV.       Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

On reply, Defendant requests judicial notice of the following:

1)     Exhibit 1: City of Los Angeles Administrative Code, Article 5, Section 4.91 (attached) Salary Step Placement on Assignment to a Different Position in City Services.

2)     Exhibit 2: The following attorneys' date of admission to the California State Bar: Cynthia Gonzalez December 4, 2011, Farhad Khadem June 4, 2012, Daniel Lee December 13, 2011, John Prosser December 2, 2011, Rolando Reyes December 1, 2006, Mark Ross December 2, 2009, Sireen Sawaf June 1, 2011, George Sami December 9, 2010.

Defendant’s request for judicial notice is granted.

V.        Discussion

A.        Statement of Facts

The following facts are undisputed unless otherwise noted by citation to the record. Plaintiff graduated from the University of San Francisco School of Law in 2013 and was admitted to the State Bar of California as a licensed attorney in December 2013. (Undisputed Material Fact (“UMF”) 1.) Plaintiff began working for Defendant on May 19, 2014, as a Deputy City Attorney (“DCA”) 1, Step A, at the City’s Workers’ Compensation Division (“WCD”). (UMF 2.) During Plaintiff’s employment, at WCD there were four different classifications – I, II, III, and IV. In November 2016, Plaintiff applied and was transferred from the WCD to a position in the Employment Litigation Division (“ELD”). (Defendant’s Compendium of Evidence (“DCOE”) Ex. 104.) Despite Plaintiff alleging that her transfer to the ELD was a promotion, Plaintiff’s payroll records classify the change to a new division as a transfer rather than a promotion. (DCOE Ex. 104.) Plaintiff’s salary before her transfer from WCD to ELD was $82,058.40. (UMF 10.)

i.          November 2016 Request for a Pay Increase

Upon her transfer to the ELD, Plaintiff asserts that she was promised that she would be paid equally as other Deputy City attorneys in that division, who were DCA III and DCA IV, and that she was led to believe that she would receive a salary jump from DCA I to DCA III. (DCOE Ex. I [Majovski Depo. at pp. 22:7-25:4, 27:14-22].) Thom Peters (“Peters”), Chief Assistant City Attorney for Civil Litigation, of which ELD is part, emailed Leela Kapur (“Kapur”), former Chief of Staff for the Office of the City Attorney for Defendant, to inquire about Plaintiff’s possible promotion. (DCOE Ex. A [Kapur Decl. ¶¶ 1, 14, 15] Ex. 3.)

Kapur declined to grant the pay increase by promoting Plaintiff to a higher classification and salary step for two reasons.  One, Plaintiff had no experience practicing litigation, let alone employment law.  Two, the other lawyers in the ELD were experienced litigators and had been brought into the ELD at higher DCA classification because of their experience in a specialized field of law. Kapur stated that if Plaintiff proved to be a strong litigator, she could be considered for early promotion through the Office’s Performance Recognition Programs (“PRPs”). (DCOE Ex. A [Kapur Decl. ¶ 14], Ex. 3.) Kapur states that a jump from DCA I, Salary Step C, reflecting a Plaintiff’s pay of $82,058.40 to DCA III, Salary Step A, with a pay of $129,957.12 would result in a 58% pay increase at a time when Plaintiff had not yet shown herself to be an effective civil litigator. (DCOE Ex. A [Kapur Decl. ¶ 17].)

Despite the representation made to Plaintiff, Peters did not have the authority to increase Plaintiff’s pay classification, and any salary adjustment over five and half percent had to be approved by the highest level of the City Attorney’s Office, such as the Chief of Staff. (DCOE Ex. I [Majovski Depo. at p. 27:14-22]; Plaintiff’s Compendium of Evidence (“PCOE”) Ex. 10 [Villega Depo. at pp. 70:13-71:5].)

ii.         May 2018 Request for a Pay Increase

In May 2018, Kapur again heard from Peters that after a year and a half working as a litigator in ELD, Plaintiff was again seeking to be promoted from a DCA I to a DCA III. (DCOE Ex. A [Kapur Decl. ¶ 22], Ex. 105.) Kapur states that increasing Plaintiff’s then-current pay as a DCA 1, Step 11 earning $109,745.28 to that of a DCA III, Step 1 earning $130,980.24, would have resulted in a 19% pay increase. (DCOE Ex. A [Kapur Decl. ¶ 23], Ex. 2 at Appendix C.) Kapur states that as Plaintiff had only been practicing law for four years, and civil litigation for a year and a half, it would be irregular to promote an attorney with that experience from a DCA I to a DCA III. (DCOE Ex. A [Kapur Decl. ¶ 24].) Instead, Plaintiff was promoted or received a “salary adjustment” from DCA 1, Salary Step 12 (the classification she had after her anniversary hire date) to DCA II, Step 7, effective July 1, 2018. (DCOE Ex. A [Kapur Decl. ¶ 25, Ex. 13.)

iii.       September 2018 Transfer to LAWA, 2019-2020 PRP Promotion Application, and LAWA’s Refusal to Fill DCA III Vacancy

On or about September 2018, Plaintiff applied and was selected for a position as an attorney at the City’s Los Angeles World Airport Division (“LAWA”). (UMF 53, 59.) Defendant classified Plaintiff’s change of division as a transfer, not as a promotion. (DCOE Ex. 106A.) The parties do not dispute that Peters told Plaintiff that she would be promoted to DCA III regardless of whether she worked in LAWA or continued in ELD. (UMF 54.)

Peters later told Plaintiff that she would only be promoted to DCA III if she remained in ELD. (UMF 56.) On November 19, 2018, Plaintiff began working at LAWA with her existing classification of DCA II, Step 7. (UMF 59.) Plaintiff received an anniversary pay adjustment increase from DCA II, Step 7 to DCA II, Step 8 on July 1, 2019. (UMF 62.)

In October 2019, the City announced an upcoming Performance Recognition Program (“PRP“) whereby the City's attorneys could apply for pay increases and/or promotions. (UMF 63.) Thirteen LAWA attorneys applied -- 10 females and 3 males -- but only four females and one male received promotions via PRP. (UMF 65, 66.) Plaintiff did not receive the 2019-2020 PRP promotion. (UMF 68, 69.) In total, 364 attorneys from the City Attorney’s Office -- 190 females, and 174 males -- applied for the 2019-2020 PRP. (UMF 72.) Only 93 (50 female and 43 male) received either a promotion or a pay step increase.  In other words, 26.3% of female applicants received a promotion or step increase, while 24.7% of male applicants received a promotion or step increase. (UMF 72.)

A LAWA female attorney, Christina Checel (“Checel”), admitted into the bar in 1998, was selected via the PRP for a promotion from DCA III to DCA IV but left for another job in January 2020. (UMF 73, 76.) Plaintiff then assumed most of Checel’s duties at LAWA. (UMF 77.) In response to the COVID-19 pandemic and the drop in air travel, LAWA experienced a dramatic loss of revenue. (DCOE Ex. C [Ilgunas Decl. ¶ 14].)

Accordingly, Tatina Starostina (“Starostina”), LAWA’s Chief Financial Officer, was not willing to provide funding to backfill Ms. Checel’s former position. (DCOE Ex. B [Starostina Decl.  ¶ 4]; Ex. C [Ilgunas Decl. ¶ 18], Ex. 116.) On March 24, 2020, Starostina issued a memorandum to all LAWA managers and supervisors, notifying them that, effective immediately, no new positions would be approved for Fiscal Year 2020-2021 and that no requests to fill current vacancies would be approved until further notice. (DCOE Ex. B [Starostina Decl. ¶ 7], Ex. 108A, 108B.) Starostina states that the reason for this order was because legal services provided to LAWA by attorneys at the LAWA Division are paid out of LAWA’s budget as opposed to the City’s General Fund. (DCOE Ex. B [Starostina Decl. ¶ 8].) According to Defendant, the City Attorney’s Office requested various hiring freeze exemptions, including the DCA III position left vacant by Checel, but LAWA opposed the exemption given the hiring freeze and LAWA’s budgetary concerns. (DCOE Ex. A [Kapur Decl. ¶¶ 58, 59], Ex. 115, Ex. 116, Ex. 108C, Ex. B [Starostina Decl. ¶ 11]; PCOE Ex. 116.)

On her work anniversary of July 1, 2020, Plaintiff received an anniversary salary step increase  from DCA II, Step 8 to DCA II, Step 9, and, on July 1, 2021, another annual step increase from DCA II, Step 9 to DCA II, Step 10. (UMF 85.) In August 2020, Plaintiff requested she be placed in Checel’s former position, with a pay similar to Checel’s. (UMF 86; DCOE Ex. 117A; PCOE Ex. 20.) Raymound Ilgunas, General Counsel for LAWA, and Tim Daze obtained letters and emails from LAWA executives advocating for Plaintiff’s promotion to DCA III or IV, with the request being sent to the new Chief Deputy City Attorney, David Michaelson. (DCOE Ex. C [Ilgunas Decl. ¶¶ 21, 22].) Kapur responded by stating that there was a “a very hard hiring and promotion freeze,” and that approval would be limited as the priority of the office was to seek hiring authority to fill the many current and anticipated vacancies. (DCOE Ex. 34, Ex. J [Kapur Depo. at pp. 238:4-19, 269:3-276:16.) Accordingly, Plaintiff was not promoted to DCA III despite taking over Checel’s job duties.

iv.        November 2020 Complaint of Discrimination and Retaliation

On November 10, 2020, Defendant began investigating Plaintiff’s complaints of discrimination and retaliation.  Denise Kattan (“Kattan”) from the Human Resources Department conducted the investigation. (DCOE Ex. C [Ilgunas Decl. ¶ 26], Ex. 118, Ex. 118A, Ex. D [Kattan Decl. ¶¶ 2-11], Ex. 118B, Ex. 118C; PCOE Ex. 16.) Kattan concluded her investigation on May 18, 2021, and found no evidence of discrimination or retaliation against Plaintiff and concluded “that Plaintiff had no entitlement to promotions outside the pay adjustments provided for in the applicable MOUs, and that her non-selection for promotion in the 2019-2020 PRP was based on her relative lack of experience as compared to other attorneys in her Division and the limited number of promotions available.” (DCOE Ex. D [Kattan Decl. ¶ 11], Ex. 118C.) By the time Kattan’s investigation had concluded, Plaintiff had already filed this action on March 1, 2021. (Majovski Decl. ¶ 33; PCOE Ex. 17.)

Plaintiff asserts that Kattan’s investigation was flawed because she did not interview Thom Peters or Jim Clark.  Both no longer worked for Defendant.  Kattan had the discretion to have the investigation conducted by an outside agency or law firm but did not exercise that discretion. (PCOE Ex. 10 [Villegas Depo. at pp. 58-59].) Plaintiff fails to identify what evidence of discrimination or retaliation the interviews of Thom Peters and Jim Clark would have uncovered that Kattan failed to find.

Plaintiff also alleges that Kapur was involved in Plaintiff’s investigation, based on hearsay evidence in her declaration wherein Kattan told Plaintiff that she would communicate Plaintiff’s concerns of a perceived conflict with the City Attorney’s Office investigating itself and members of the Front Office, and Kattan’s response that she would discuss the matter with Kapur. (Majovski Decl. ¶ 37.) Plaintiff offers no other evidence that Kapur was involved in Kattan’s investigation.

On August 11, 2021, the City passed a “Fiscal Year (FY) 2021-22 Unfreeze Resolution” and effective August 28, 2021, Plaintiff received a salary adjustment from DCA II, Step 10 to DCA II, Step 15. (DCOE Ex. H [Reznik Decl. ¶ 4], Ex. 127, Ex. A [Kapur Decl. ¶ 61].) The adjustment would put Plaintiff in the position of DCA III, within one year of the adjustment. (DCOE Ex. A [Kapur Decl. ¶ 61], ex. 117, 119.) On June 17, 2022, Plaintiff was promoted or received a pay adjustment (pursuant to a PRP) to DCA III, Step 10. (UMF 96.)

Defendant now moves for summary judgment, or, alternatively, summary adjudication as to all the causes of action in Plaintiff’s FAC.

B.        Sixth Cause of Action - Violation of Labor Code § 1197.5, et seq. (Equal Pay Violation)

Labor Code § 1197.5 states, in relevant part, as follows:

(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates:

(1) The wage differential is based upon one or more of the following factors:

(A) A seniority system.

(B) A merit system.

(C) A system that measures earnings by quantity or quality of production.

(D) A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. For purposes of this subparagraph, “business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.

Defendant asserts that Plaintiff cannot establish that she was paid less than the rate paid to employees of the opposite sex for substantially similar work and that any differential between Plaintiff and any employee of the opposite sex is the result of bona fide factors such as the number of years the employees have practiced law and has practiced in any relevant specified field of law.

Defendant presents Plaintiff’s deposition testimony where Plaintiff admits that when she applied to the ELD she only had two and half years of experience doing worker’s compensation litigation and no civil litigation experience. (DCOE Ex. I [Majovski Depo. at p. 47:6-14].) Defendant also presents Exhibit 124, which is a spreadsheet showing all DCAs who were in the ELD from November 2016 to November 2018, along with their hire date, years practicing law, and years of experience as employment litigators at the time they joined ELD, and the pay classification and pay step at the time they joined ELD. (DCOE Ex. F [Villegas Decl. ¶¶6-11], Ex. 124.) Exhibit 124 shows that Plaintiff had been practicing law for less time than other DCAs ranked II and III at the ELD and that she had no employment litigation experience when she was hired, such that it was appropriate that she be labeled a DCA I.

In May 2018, after Plaintiff had been practicing law for four years, and civil litigation of a year and a half, Defendant did not promote Plaintiff because such a promotion would have resulted in a 19% pay increase. Instead, Plaintiff received a salary adjustment, which applied to all employees based on Defendant’s Memorandum of Understanding. (DCOE Ex. A [Kapur Decl. ¶¶ 4-5].)

When Plaintiff transferred to LAWA, she continued to receive her work anniversary pay adjustments. (UMF 62.) Defendant further asserts that during the 2019-2020  PRP, Plaintiff cannot show that she was wrongfully denied a promotion due to her gender. Moreover, Defendants also present evidence that there was a hiring and promotion freeze at LAWA that prevented Plaintiff from being promoted to DCA III despite taking over the duties of the previous female DCA III. (DCOE Ex. A [Kapur Decl. ¶¶ 58, 59], Ex. 115, Ex. 116, Ex. 108C, Ex. B [Starostina Decl. ¶ 11]; PCOE Ex. 116.) After the hiring freeze was over, Plaintiff received further pay adjustments that eventually led her to having a classification of a DCA III.

Regardless of what Plaintiff was promised when she transferred to ELD and prior to transferring to LAWA, it is undisputed that Peters did not have the authority to make Plaintiff a DCA II or III. Even if Peters’ representations about making Plaintiff a DCA II or III were false, Plaintiff is not suing for misrepresentation but for violations of the Equal Pay Act and gender discrimination. Therefore, Defendant has met its initial burden of showing that when Plaintiff transferred to the ELD, there was no violation of the Equal Pay Act because Defendant set Plaintiff’s pay according to her years practicing law and, specifically, employment litigation, not her gender.

Similarly, when Plaintiff left ELD for LAWA, Plaintiff failed to show that an equal pay violation occurred because Peters told Plaintiff she would be promoted to a DCA III if she stayed at ELD. (UMF 56.) The burden has shifted to  Plaintiff to show triable issues of fact exist. Plaintiff fails to identify male DCAs with fewer years of practicing law and fewer years of employment litigation experience who were classified or promoted to a higher step than female employees who had similar, or more experience practicing law and employment litigation. Absent such evidence, Plaintiff cannot show a violation of the Equal Pay Act.

Plaintiff’s declaration states that her two and half years in Workers’ Compensation should have been taken into consideration as litigation experience because the work she did “paralleled the work performed in the Employment Litigation Division (“ELD”) (e.g., conducting depositions conducting discovery, and trying matters to adjudication).” (Majovski Decl. ¶ 7.)  For this to be evidence of a violation of the Equal Pay Act, however, Plaintiff must show that males who applied for a position in the City Attorney’s office received credit for litigation work that was not related to civil or employment litigation, while females did not. That Plaintiff felt that her two and half years working on workers’ compensation issues should have been counted as employment litigation experience is not by itself evidence of unequal pay -- unless Plaintiff can show that Defendant credited similar work done by males, but not females, in determining the salary adjustment of employees.

Plaintiff also fails to present evidence that the 2019-2020 PRP promotion was conducted in a discriminatory manner, where males with less experience were promoted at a higher rate than females with more experience. Plaintiff fails to show that the 2020-2021 Fiscal Year hiring and promotion freeze was pretextual and was used to hire and promote male employees but not female employees. Plaintiff fails to identify any LAWA vacancies or promotions that were filled by male employees while LAWA refused to fund Plaintiff’s promotion.

Plaintiff also states that evidence of a wage disparity can be found in the fact that she received a salary adjustment from DCA II, Step 10 to DCA II, Step 15 “to bring her into pay parity with an individual with a similar experience level who was being brought into the Office at the time.” (Plaintiff’s Undisputed Material Fact (“PUMF”) 93.) Plaintiff’s evidence only shows that she received the salary adjustment, not that the adjustment was the result of Defendant trying to bring her pay to parity with a male employee of similar experience. (DCOE Ex. A [Kapur Decl. ¶ 61].)  That Defendant made a pay adjustment is not evidence of a violation of the Equal Pay Act unless Plaintiff can show that Defendant failed to make such adjustments previously, whenever a male employee with a similar experience level as Plaintiff was hired.

That Plaintiff’s salary was adjusted after the filing of this action is also not material unless Plaintiff can show that before filing this action, she was entitled to a salary adjustment and Defendant failed to make such adjustments until she filed this action. The evidence presented by Defendants shows that Plaintiff did receive salary adjustments as outlined in the Memorandum of Understanding 29 between the City and The Los Angeles City Attorney. Moreover, the fact that Plaintiff earned a PRP promotion after she filed this action, is at best coincidental and not material, unless Plaintiff can show that the previous PRP process was conducted in a discriminatory manner that favored male applicants over female applicants irrespective of experience or skill.

Plaintiff also cites a report by the City, entitled “City of LA Controller’s Gender Equity – Workforce Analysis Report.” In the report, the City noted that “When looking at gross annual pay, women averaged $90,058, compared to an average of $118,454 for men; in other words, the average woman’s paycheck is about 76% that of the average man’s paycheck.” (PCOE Ex. 24.) While this evidence shows wage disparity amongst male and female City employees, it is not evidence of wage discrimination or violations of the Equal Pay Act existing at the City Attorney’s Office. Plaintiff fails to show she was “paid lower wages than a male comparator for equal work,” and that “she has selected the proper comparator.” (Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324.) In other words, Plaintiff fails to show that she or other females at ELD and LAWA did not receive equal pay for equal work as male employees despite practicing law for the same number of years and in the same relevant field for the same amount of time.

Finally, Plaintiff fails to show that the fact she saw her male coworker, George Sami (“Sami”), DCA I parked at City Hall East (“CHE”), is evidence of a violation of the Equal Pay Act. Plaintiff fails to rebut Defendant’s evidence that Sami was not provided with permanent parking under CHE. (DCOE Ex. G [Aleksanian Decl. ¶ 11].) Moreover, Plaintiff was provided with parking under the CHE when she needed to prepare for trial or when she specifically requested it. (DCOE Ex. I [Majovski Depo. at p. 87:6-18].) Furthermore, Sami had an electric vehicle and could park at CHE due to the Special Parking Memorandum of Understanding that provided a separate parking preference for electric vehicles, which Plaintiff did not have. (PCOE Ex. 8 [Lyon Depo. at p. 83:5-15]; DCOE Ex. 104A [Art. 4(A)(8)].) In reply, Defendant points out that Plaintiff was aware of “the electric car parking policy” but that she had already signed a three-year lease for a non-electric vehicle so that the policy did not apply to her. (DCOE Ex. 4A [6-22-17 Majovski-Song email].) There is no evidence that Plaintiff was denied parking privileges, and that any such denial was because she was female. The fact that a male employee with a DCA I classification had an electric vehicle and was seen parking at CHE is not a material fact and is not evidence of an Equal Pay Act violation or discrimination based on gender.

As Plaintiff fails to show that a triable issue of fact exists as to the sixth cause of action for Violation of the Equal Pay Act, the court grants summary adjudication as to the sixth cause of action.

C.        First Cause and Second Causes of Action – Discrimination and Associational Discrimination Based on Gender and Sex

“To state a prima facie case for discrimination in violation of the FEHA, a plaintiff must establish that (1) she was a member of a protected class, (2) she was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 577.) Discrimination based on an employee’s association with a person who is (or is perceived to be) disabled is an unlawful employment practice under the FEHA. (Gov. Code, § 12926(o).)

For claims alleging discrimination, the plaintiff bears the initial burden of establishing a prima facie case for discrimination at trial. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) “The McDonnell-Douglas framework is modified in the summary judgment context. In a summary judgment motion in ‘an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ (Citation.)” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861)¿ 

“If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’” (Serri, supra, 226 Cal.App.4th at p. 861 [italics original], citing Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [italics original].)

Defendant asserts that Plaintiff's first and second causes of action fail because Plaintiff cannot show as a matter of law that she was subject to discrimination based on her gender and gender association. Defendant asserts that evidence shows that Plaintiff was paid less than the more experienced male and female DCAs. (DCOE Ex. I [Majovski Depo. at p. 47:6-14]; RJN Ex. 1 and 2.) Defendant argues that Plaintiff cannot show discrimination based on sex or gender because Plaintiff cannot show she was entitled to a higher pay adjustment of DCA II or III when she had less experience than DCAs II and III at ELD and LAWA, despite doing the same work.  Defendant also presents evidence that there were more women than men in higher DCA III and IV classification and that female DCAs received more promotions than male DCAs during the relevant time period. (DCOE Ex. F [Villegas Decl. ¶¶ 16, 17, 18], Ex. 126.) Thus, the burden shifts to Plaintiff to show discrimination based on sex or gender.

As stated above, the fact that Plaintiff’s two and half years doing workers’ compensation did not count as civil litigation work upon Plaintiff’s transfer to ELD is not evidence of discrimination unless Plaintiff can show that the decision was applied in a discriminatory manner. Plaintiff also fails to show instances of male employees having less experience than her, being promoted, or receiving a pay adjustment higher than Plaintiff. Plaintiff also fails to show that when she was entitled to a salary adjustment due to her work anniversary, Defendant failed to make the adjustment.

Also as explained above, the fact that Sami was also a DCA I, but was seen parking at the CHE, is not a material fact because Plaintiff also parked at the CHE and Sami had an electric vehicle that was subject to a different parking policy than Plaintiff who drove a gas vehicle. (PCOE Ex. 8 [Lyon Depo. at p. 83:5-15]; DCOE Ex. 104A [Art. 4(A)(8), Ex. 4A [6-22-17 Majovski-Song email].) Moreover, Plaintiff fails to rebut Defendant’s evidence that hundreds of male and female DCAs were not afforded permanent parking in CHE. (DCOE Ex. G [Aleksanian Decl. ¶¶ 1-6], Ex. I [Majovski Depo. at p. 55:20-56:20], Ex. 104A, Ex. 104B.) That Plaintiff felt that it was unfair and unsafe that she had to park elsewhere is not evidence of discrimination because other DCAs also had to park offsite, regardless of whether they were male or female.

Plaintiff also alleges that Kattan’s investigation into Plaintiff’s complaints about gender discrimination and retaliation was flawed because she failed to interview Jim Clark, Thom Peters, and Mike Feuer. Plaintiff fails to identify, however, what evidence interviews of Clark, Peters, and Feuer would uncover that would show evidence of gender or sex discrimination or evidence of retaliation. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163 [“[I]n order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing”].) Plaintiff fails to show that Kattan failed to exercise the proper discretion in not referring the investigation to a third party because the City was not required to refer the investigation to a third party. (PCOE Ex. 10 [Villegas Depo. at pp. 57:13-22; 58:1-59:19].) More importantly, Plaintiff fails to show how the outcome of the investigation would have been different if the investigation had been conducted by a third party. In other words, Plaintiff fails to show that Kattan’s investigation was substantively or procedurally flawed. (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440.)

“While the investigation was not perfect, it was appropriate given that it was conducted ‘under the exigencies of the workaday world and without benefit of the slow-moving machinery of a contested trial.’ [Citation.]” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 275.) Here, Plaintiff fails to present evidence that Kattan’s investigation was so flawed it failed to uncover evidence of gender or sex discrimination and that such evidence does in fact exist.

“ ‘An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions' [citation], or mere possibilities [citation].’ ” [Citation.] A genuine issue of material fact exists if, and only if, the evidence would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. [Citation.]” (Spinner v. American Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 183 [internal citation omitted].) Without identifying what evidence Kattan failed to uncover, Plaintiff’s assertion that Kattan’s investigation was flawed and that discrimination based on sex and gender occurred remains speculative.

As Plaintiff fails to show that she was entitled to the salary adjustment to DCA II or III when she made the requests, that the PRP promotions were done in a discriminatory manner, or that she was paid less than male counterparts with similar time practicing law and similar experience practicing employment litigation, Plaintiff’s discrimination claim fails. As Plaintiff fails to show that a triable issue of material fact exists, summary adjudication is granted as to the first and second causes of action.

D.        Fourth Cause of Action - Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of the FEHA

The FEHA makes it unlawful employment practice “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (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]” (Scotchv. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)

As Plaintiff’s first and second causes of action for discrimination and associational discrimination based on gender or sex fail, so does Plaintiff’s fourth cause of action. Therefore, summary adjudication is granted as to the fourth cause of action.

E.        Third, and Fifth Causes of Action- Retaliation for Engaging in Protective Activity and Violation of Lab. Code section 1102.4

To establish a prima facie case of retaliation under FEHA, Government Code § 1940(h), Plaintiff must prove that “(1) [s]he 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) 

As explained by the California Supreme Court, Labor Code § 1102.5 “prohibits an employer from retaliating against an employee for sharing information the employee ‘has reasonable cause to believe ... discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709.)

The McDonnell Douglass burden-shifting framework does not apply to section 1102.5.  Instead, an employee-whistleblower must establish “by a preponderance of the evidence that retaliation was a contributing factor in the employee's termination, demotion, or other adverse action, the employer then bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action ‘for legitimate, independent reasons.’” (Id. at p. 707.) “Section 1102.6 requires whistleblower plaintiffs to show that retaliation was a “contributing factor” in their termination, demotion, or other adverse action. This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Id. at pp. 713-714.)

Defendant asserts that Plaintiff cannot show that she was subjected to an adverse employment action by being denied a salary adjustment to DCA III because Plaintiff cannot show that she was entitled to such an adjustment outside of the Memorandum of Understanding and the PRP promotion process. Therefore, Plaintiff cannot show she was subject to an adverse employment action due to making complaints about the salary disparity between males and females at the City Attorney’s Office. Defendant also asserts that even if Plaintiff had not complained about her pay, Defendant would still not have promoted her to DCA III outside the parameters provided by the Memorandum of Understanding.

Plaintiff states that she discussed with Chief Deputy City Attorney, James Clark (“Clark”) her concern that females were being underpaid. (DCOE Ex. I [Majovski Depo. at pp. 109:3-114:10].) Plaintiff fails to show, however, that after she made her complaints to Clark, Plaintiff was denied a promotion to DCA III or that Clark in any manner influenced Mike Feuer, the City Attorney, to deny or block Plaintiff’s promotion. Instead, after speaking with Clark, Plaintiff transferred to LAWA and received an anniversary pay step increase from DCA II, Step 7 to DCA II, Step 8 on July 1, 2019. (UMF 62.)

After taking over Checel’s duties on November 6, 2020, Plaintiff wrote an email to Tim Daze, her supervisor at LAWA, expressing that she felt that management put her “in an untenable, unfair, and unequal pay situation” and she believed that the Front Office was “intentionally choosing not to adjust [her] pay for personal, retaliatory, and gender related reasons” such that she could no longer do Checel’s work without a pay adjustment. (PCOE Ex. 17.)  Without evidence that Plaintiff was entitled to a pay adjustment to a DCA III due to her years of practicing law and experience in employment litigation, she fails to show that the fact she was not promoted is evidence of retaliation. Without such evidence, Plaintiff’s belief that she was not promoted because she was female is “mere speculation [that] cannot be regarded as substantial [evidence], and is insufficient to establish a triable issue of material fact.” (Sangster, supra, 68 Cal.App.4th at p. 163.)

Plaintiff asserts that further evidence of retaliation can be found in the fact that she reported to Peters and Eric Brown that City Councilmember Mitch Englander contacted her online and requested to follow her private Instagram account. [Majovski Decl. ¶ 20.) Plaintiff expressed that Englander’s behavior crossed a professional line and that Peters promised to address the matter but later told Plaintiff that the City Attorney’s Office declined to directly address the matter because Mike Feurer believed it to be “too politically sensitive[.]” (Majovski Decl. ¶ 20.)  Plaintiff fails to show that she was retaliated against, by not being promoted to DCA II or III, due to making complaints about Englander, because she fails to show that she was entitled to such a promotion based on her years of experience and time spent practicing employment litigation.

Even if Plaintiff was as skilled as other DCAs who held the rank of II and III and was doing similar work as DCA II and III, Plaintiff fails to show that Defendant’s employment system that rewarded seniority and years of experience practicing law, and years in the relevant area of law, was applied in a discriminatory manner to female employees.

In sum, as Plaintiff fails to show that she was subject to an adverse employment action, her third and fifth causes of action fail. Since Plaintiff fails to make a prima facie case of retaliation and fails to show that a triable issue of material fact exists, summary adjudication is granted as to the third and fifth causes of action.

Defendant’s Motion for Summary Judgment is granted.

Conclusion

Defendant’s Motion for Summary Judgment is granted.