Judge: Gregory Keosian, Case: 20STCV13763, Date: 2023-03-16 Tentative Ruling

Case Number: 20STCV13763    Hearing Date: March 16, 2023    Dept: 61

Defendant City of Los Angeles’s Motion for Summary Judgment is GRANTED.

I.                   MOTION FOR 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 City of Los Angeles (Defendant) moves for summary judgment against Plaintiff Adrienne Rico-Garcia’s (Plaintiff) claims for FEHA discrimination and retaliation alleged in the Second Amended Complaint (SAC). Defendant argues that Plaintiff cannot prevail on any claim based on a failure to promote, because Plaintiff did not pass or did not appear for the civil service examinations that were necessary to obtain the promotions that she sought. (Motion at pp. 13–14.) Defendant also argues that Plaintiff cannot show any discrimination arising from lack of overtime or training, as the availability of overtime and training is the same for all employees within her classification (Communications Information Representative, or CIR). (Motion at pp. 14–16.) Defendant also argues that Plaintiff’s claims for racial discrimination are primarily based on Defendant’s overtime practices, the claims for which have already been dismissed, and she has confirmed that the supervisor assigning overtime made no comments demonstrating racial animus. (Motion at pp. 14–17.) Defendant also argues that Plaintiff’s age-discrimination claim fails because Plaintiff has testified that she did not believe her supervisor discriminated on the basis of age. (Motion at p. 17.) Defendant finally argues that Plaintiff’s retaliation claims fail because Plaintiff’s alleged adverse actions were suffered by the CIR classification as a whole, or else, in the case of denied overtime, were supported by legitimate business reasons. (Motion at pp. 18–20.)

To begin, it’s useful to summarize the allegations made in the SAC. Plaintiff, a Seventh Day Adventist, is unable to work overtime from Friday sunset to Saturday sunset. (SAC ¶¶ 12–13.) Because of the way overtime is apportioned, accommodating Plaintiff’s schedule of religious observance results in her being less likely to be selected for overtime at other times. (Ibid.) From December 2018 to March 2019, Plaintiff was called to work shorter and less convenient shifts than others. (SAC ¶¶ 18–19.) When Plaintiff complained to her supervisor, Rosa Madrid (Madrid), in March 2019 about the problem, Madrid continued to deny Plaintiff overtime opportunities through October 2019. (SAC ¶¶ 20–28.) When a co-worker asked Madrid why she was depriving Plaintiff of overtime opportunities, she responded that “Plaintiff thinks she was entitled to overtime.” (SAC ¶ 23.)

Plaintiff also applied for and was denied promotion to the Senior Operator position in 2016 and 2018, and was denied a position as shift representative on a “JLM Committee” in August and September 2018. (SAC ¶¶ 14, 17.) No African American employees were promoted to the Senior Operator position. (SAC ¶ 14.)  At a January 2020 meeting, Plaintiff complained about a lack of promotional opportunities for African American employees, the lack of training, and unequal payment. (SAC ¶ 15, 29.) After this meeting, Plaintiff was afforded no further overtime opportunities, and was denied “Article 33” pay in January 2020. (SAC ¶ 32.) When the COVID-19 pandemic came to a head in March 2020, other departments were afforded the opportunity and equipment to work remotely, but not Plaintiff’s predominantly African-American department. (SAC ¶ 33.)

The facts that Defendant presents in its motion are these. To gain promotion to a permanent entry level position at the Department of Water and Power (DWP), where Plaintiff works, an employee must pass a civil service examination. (Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 25.) Plaintiff has thrice attempted the examination for promotion to Senior Administrative Clerk, but has not passed. (PUMF No. 28.) Plaintiff also failed the test for a System Aide promotion in July 2020, and the test for Senior Communications Operator in December 2018. (PUMF No. 32, 38.)

Although Plaintiff alleges that African-American employees were not given updated equipment to do their jobs, Defendant argues that Plaintiff was given an ergonomic chair, mouse, and keyboard at her request in 2017, that everyone in the Voice Operations Center was given new computer monitors in 2020, and that no CIRs received a laptop to do remote work during the pandemic. (PUMF No. 39–43.) And although Plaintiff alleges that African-American employees were not eligible to telework, Defendant argues that the no-telework policy was universally applicable to CIRs. (PUMF No. 51–53.)

Defendant further argues that although Plaintiff’s claims stem in large part from the actions of her supervisor Madrid, but that Plaintiff acknowledged in deposition that Madrid made no comments about Plaintiff’s race. (PUMF No. 61.)[1] Plaintiff complains of race discrimination based on Madrid’s failure to approve her for Article 33 pay — a kind of pay where CIRs can temporarily fill the position of a more highly classified employee if minimum staffing levels are not met  — Plaintiff could not recall any dates in which Article 33 pay was denied her, and stated that any such decision was not based on Plaintiff’s race. (PUMF No. 66, 69.) Plaintiff also received Article 33 pay on several occasions. (PUMF No. 70.)

Although Plaintiff alleges that she did not receive overtime from January 2020 to the present, Defendant argues that the evidence shows that Plaintiff worked hundreds of hours of overtime each year during that period, and indeed worked more overtime than any other CIR. (PUMF No. 93–96.) As to the particular instances in which Plaintiff alleges she was denied overtime, Defendant argues as follows:

·         The alleged denial of overtime on April 3, 4, and 14, 2019, is false, as Plaintiff received overtime on April 3, and was sick on the other days, (PUMF 106–108.)

·         The alleged denial of overtime on December 10, 2018, is false, as Plaintiff worked overtime on that date, but showed up later than the call time. (PUMF No. 98.)

·         The alleged denial of overtime on March 6, 2019, is also false, as Plaintiff was called in for a 7 a.m. shift but arrived at 9 a.m. (PUMF No. 99–100.)

·         The alleged denials of overtime on March 7 and 14, 2019, are false because Plaintiff was not called in because the minimum staffing requirements were already met. (PUMF No. 102–104.)

·         The alleged denial of overtime on August 16, 2019, in which a day-shift worker called out sick and had their shift covered in halves by two other workers, rather that Plaintiff, was an “oversight” on the part of Madrid. (PUMF No. 88–89.)

Plaintiff in opposition makes one primary argument: that she and other employees classified as CIRs suffered discrimination and lost opportunity for overtime and promotion by virtue of the classification of the position as “clerical” rather than “technical.”  (Opposition at pp. 5–6, 8–9.) Plaintiff presents the declarations of other DWP employees working in the Voice Operation Center (VOC), Judith Thompson and Jeffrey Buford. Thompson testifies that she was denied promotional opportunities and Article 33 pay, and that CIRs like her and Plaintiff are denied promotional opportunities because the department refuses to provide training. (Thompson Decl. ¶¶ 5–9.) Buford testifies to his IT qualifications and success on relevant examinations, and yet he was denied the opportunity to apply to higher-level positions. (Buford Decl. ¶¶ 4–7.)

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.).

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant has satisfied its initial burden to show the absence of triable issues of fact as to the absence of any racial or other animus related to the adverse employment actions that ground Plaintiff’s claims. Specifically, it is undisputed that Plaintiff was not promoted because she did not pass or did not attend the civil service exams made requisite to higher-level positions. (PUMF No. 25, 28, 32, 38.) Plaintiff was thus not qualified for the position sought. Moreover, Defendant has presented evidence that Madrid never made any racial comments to Plaintiff, to suggest that any actions taken as to Plaintiff’s overtime, telework, or Article 33 pay, were made as a result of racial animus.[2] Defendant has presented evidence that its actions related to the provision of equipment or to its telework policies were not made in relation to the race of the employees, but were made by virtue of the CIR classification.  (PUMF No. 39–43, 51–53.)

Plaintiff’s response is to embrace a new theory of the case not articulated in the SAC or earlier DFEH complaints: that Defendant’s policies as they relate to the CIR position have a disparate impact on African-American employees, particularly by virtue of the wrongful classification of CIRs as “clerical” rather than “technical” employees. (Opposition at pp. 5–6, 8–9.) This argument fails for several reasons. First, the claim is not pleaded in the SAC, which as the operative pleading “set[s] the boundaries of the issues to be resolved at summary judgment.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Nor was any such claim pleaded in Plaintiff’s original or amended DFEH complaint. (RJN Exhs. 2, 4; Foroudi v. Aerospace Corporation (2020) 57 Cal.App.5th 992, 1003 [holding that plaintiff had failed to exhaust administrative remedies with respect to a disparate impact claim].) And finally, Plaintiff has not presented evidence to establish the existence of a disparate impact. A disparate impact plaintiff must “allege and prove, usually through statistical disparities, that facially neutral employment practices adopted without a deliberately discriminatory motive nevertheless have such significant adverse effects on protected groups that they are in operation functionally equivalent to intentional discrimination.” (Mahler v. Judicial Council of California (2021) 67 Cal.App.5th 82, 113, internal quotation marks and alterations removed.) No such evidence is presented in either the Thompson or Buford declarations.

Plaintiff’s claims for age discrimination and retaliation also fail. Plaintiff acknowledged in deposition that Madrid did not treat her differently because of her age. (PUMF No. 112.) Plaintiff did not obtain promotion because she did not pass the relevant examination. Plaintiff did not face technological hurdles that were different from anyone else in the CIR position. (PUMF No. 51–53.) Plaintiff cannot recall when Article 33 pay was denied to her (PUMF No. 66, 69), and each instance in which Plaintiff claims that overtime pay was denied her has a non-retaliatory explanation, which Plaintiff does not rebut in opposition to this motion. (PUMF No. 88–108.) There is no evidence that any action was taken against Plaintiff because of her age or because she engaged in protected activity.