Judge: Gregory Keosian, Case: 19STCP02828, Date: 2024-03-28 Tentative Ruling

Case Number: 19STCP02828    Hearing Date: March 28, 2024    Dept: 61

Defendant County of Los Angeles’ Motion for Summary Judgment or Adjudication is DENIED.

Plaintiff to provide notice.

I.                   OBJECTIONS

Plaintiff Krista Perez objects to portions of the materials submitted by Defendant County of Los Angeles in support of its motion for summary judgment. However, most of these objections are not objections to the admissibility of any evidence submitted by Defendant, but are rather recitals of the arguments made in Plaintiff’s opposition to Defendant’s separate statement, regarding its characterization of the evidence cited in support of the propositions contained therein. These objections are OVERRULED.

Defendant’s objections to Plaintiff’s evidence submitted in opposition to the motion are more substantive. The declarations submitted by Plaintiff are replete with conclusory and speculative attributions of discriminatory and retaliatory motive to Defendant employees offered without evident basis in personal knowledge.

Objections No. 1–3 to the declaration of Julio Garcia are SUSTAINED, because although Garcia may testify to the transfer and replacement of Hispanic employees, he provides no basis for his knowledge of their relative qualifications, or how Banuelos treated Hispanic employees after Garcia was transferred from the facility.

Objection No. 1 to the declaration of Maurice F. Allmond is SUSTAINED as to Allmond’s relation of the hearsay statements of Avila and Hernandez as to why they were crying when he spoke to them.

Objection No. 1 to the declaration of Asuncion Jimenez is OVERRULED, as Jimenez’s testimony concerning Bryant’s state of “bother” when he requested FMLA leave is supported by his testimony concerning her outward behavior.

Defendant’s objections to the declaration of Javier Rodriguez are SUSTAINED, as Rodriguez offers no basis in personal knowledge for the facts offered in the declaration.

Objections No. 2, 5, and 6 to the declaration of James Juarez are SUSTAINED, as Juarez offers no foundation for his diagnosis of a ”long history of discrimination against Hispanic employees in the terms and conditions of their employment” save a conclusory statement that he has “observed” the phenomenon. The other objections are OVERRULED, as Juarez may testify to an incident in which he was undeservedly disciplined, and to his own performance history.

Defendant’s Objections No. 1–5, 7, 9, 10, 15–17, 23, 24, 27, 30–32, and 34 to the declaration of Krista Perez are SUSTAINED as to Plaintiff’s consistent imputation of discriminatory and retaliatory motives to the actions of her supervisors. Defendant’s Objection No. 36, 40, and 42 are also SUSTAINED as to Plaintiff’s lack of personal knowledge of the matters concerned, i.e. a matter regarding the disciplining of an employee named Rodriguez, and her conclusory invocation of a history of discrimination in the probation department. Objection No. 39 is also SUSTAINED, as to Plaintiff’s secondhand knowledge of Bryant’s behavior at another facility, which is based on hearsay.

However, Defendant’s other objections to the Perez declaration are OVERRULED, including Plaintiff’s testimony concerning how Bryant’s treatment of her and other Hispanic women employed at the facility differed from her treatment of other groups. Plaintiff offers foundation for this testimony, given that she “had to interact with Bryant several times every day, every time [she] had to come up to the main administrative building.” (Perez Decl. ¶ 48.)

II.                SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that 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 a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere 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 that cause of action or a defense thereto.  (Ibid.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant County of Los Angeles (Defendant) moves for summary judgment or adjudication on Plaintiff Krista Perez’s claims for employment discrimination, retaliation, and harassment. Defendant argues that Plaintiff’s claims for discrimination fail because Plaintiff was not subjected to any adverse employment actions, and because Plaintiff lacks evidence that her alleged harasser, Sheila Bryant, targeted her for any protected characteristic. (Motion at pp. 4–5.) Defendant continues that Plaintiff cannot establish a harassment claim because Bryant did not harass her based on a protected characteristic, and further that the alleged harassment was not severe or pervasive. (Motion at pp. 6–7.) Defendant’s argument against Plaintiff’s retaliation claims mimic its argument on the discrimination claims, in that it argues that Plaintiff was not subject to an adverse employment action, or for any impermissible reason. (Motion at pp. 8–9.) Finally, Defendant argues that Plaintiff cannot establish a claim for failure to prevent discrimination or harassment because Plaintiff’s harassment complaints were addressed by the transfer of Bryant to another facility. (Motion at pp. 9–10.)

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.) If the employer offers evidence of a legitimate, nondiscriminatory reason for the action, “the plaintiff bears the burden of proving the employer's proffered reason was pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4^th 228, 236.)

In order to establish a prima facie case of retaliation under this section, 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.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244, internal quotation marks omitted.)

Defendant has failed to satisfy its initial burden in moving for summary adjudication on Plaintiff’s discrimination or retaliation claims. Although Defendant argues that Plaintiff has not undergone any adverse employment actions, it in fact acknowledges that she has. Defendant argues that she applied to one promotion but never took the prerequisite test, and did not appear for an interview prerequisite to one of her transfer applications. (Motion at p. 5.) But Defendant acknowledges that Plaintiff made two other transfer applications which were denied. (Motion at p. 5.) Defendant argues in cursory fashion that a failure to transfer cannot constitute an adverse employment action, but the argument is unsupported. (Motion at p. 5.)

Defendant’s arguments as to the absence of any retaliatory or discriminatory motive is also unavailing, because Defendant does not present any evidence or argument regarding the reasons for the adverse employment actions described above. Defendant rather focuses on the behavior of Sheila Bryant in relation to Plaintiff and her purported lack of overt statements of bigotry toward women or Hispanic people. (Motion at pp. 4–5.)

This argument fails, as Plaintiff presents evidence creating triable issues of fact as to Bryant’s motives for her alleged harassment. Although Plaintiff did not report to Bryant, Bryant occupied a superior position as Assistant Director at the facility at which Plaintiff worked. (Opposition Exh. 7 at pp. 27–29.) Plaintiff states that although Bryant did not write her evaluations, “she could give me directions that I had to follow.” (Perez Decl. ¶ 57.) Plaintiff worked with Bryant every day, and “interact[ed] with Bryant several times every day, every time [she] had to come up to the main administrative building.” (Perez Decl. ¶ 48.) Plaintiff describes Bryant’s demeanor toward her and other Hispanic women employees as “rude, sarcastic, condescending, and cruel.” (Perez Decl. ¶ 20.) Bryan would “scream, berate, and bully at an unbearable volume,” speak “sarcastically” and “condescending[ly],” and curse at Plaintiff, particularly when the director of the facility was absent. (Perez Decl. ¶¶ 30–35.) Plaintiff states that Bryant treated her with “extreme disdain and disgust” in “every conversation I had with her.” (Perez Decl. ¶ 35.) At one point Bryant approached Plaintiff while she was sitting, and began to yell and shove papers at her, causing Plaintiff to feel such discomfort that she got to her feet and entered a defensive stance. (Perez Decl. ¶¶ 37–39.) When Plaintiff complained, Bryant said that “people were too sensitive” and needed to “toughen up around here.” (Perez Decl. ¶ 43.)

Plaintiff states that she never observed Bryant treating white people or African-American women in the manner she treated Plaintiff or other Hispanic women. (Perez Decl. ¶¶ 35, 39, 41, 47.) Indeed, other Hispanic women in Plaintiff’s department reported Bryant’s harassing conduct to her. (Perez Decl. ¶ 46.) These employees —Grace Landaverde, Lupe Puente, and Jessica Hernandez — have testified in this action to Bryant’s unprofessional conduct directed to them. (Opposition Exh. 6 at pp. 20–22 [Landaverde]; Exh. 3 at pp. 19–20 [Puente]; Exh. 5 at pp. 17–24 [Hernandez].) Plaintiff observed Bryant speak in friendly terms to African-American management in positions above hers, but on one instance saw her scream and yell at a female Hispanic director. (Perez Decl. ¶¶ 59, 75.)

The above evidence creates triable issues of fact as to the discriminatory motive for Bryant’s behavior. Plaintiff states, based on her everyday interactions with Bryant and supervision of other employees at the same facility, that Bryant engaged in a pattern of abrasive behavior directed toward Hispanic women that she did not direct to other employees. Defendant identifies one African-American male who was the subject of Bryant’s abrasive behavior, Maurice Allmond. (Motion at p. 5.) Plaintiff acknowledges that Bryant harassed Allmond based on his age, complaining to her that he was “too fucking old to be working in this dorm,” and falsely claiming that Allmond could not see or hear. (Perez Decl. ¶ 66.) Allmond was the subject of a CPOE complaint that Plaintiff filed on his behalf. (Perez Decl. ¶¶ 67–68.) The existence of an instance of age-related discrimination does not obviate the existence of potential bias on the basis of ethnicity or gender.

Additionally, Perez testifies that Bryant’s conduct against her increased in intensity after she made complaints about Bryant’s behavior, specifically including Bryant’s refusal to sign Plaintiff’s reports. (Perez Decl. ¶¶ 43, 69.)

Defendant’s argument that Plaintiff’s supervisor, Bertha Mendez, promptly acted to separate Bryant and Plaintiff and direct that they communicate only by email, and one year later encouraged Bryant to apply for a transfer. (Motion at p. 7.) But as triable issues exist whether Bryant was a “supervisor” under FEHA, this creates triable issues as to whether Defendant is liable for harassment. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042.)

The motion is therefore DENIED.