Judge Gregory Keosian, Case 20STCV21377 2022-08-04 Tentative Ruling

Defendant Los Angeles Unified School District’s Motion for Summary Judgment or Adjudication is GRANTED as to the second cause of action for FEHA Discrimination, and DENIED as to the first, third, and fourth causes of action.

Defendant object to the evidence submitted by Plaintiff in opposition to this motion. Defendant objects to the admission of Exhibits 1–4, on the grounds that they were not previously produced in discovery, despite requests for production of documents related to Plaintiff’s claims. Yet this furnishes no basis to exclude the evidence in a summary judgment proceeding: failure to produce evidence generally “would not ordinarily justify the exclusion of evidence in the absence of a willful violation of an order for disclosure.” (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1349.) As no such order has been entered here, Objection No. 1 is OVERRULED.

Defendant objects to text messages included in Exhibit 1, as these are not authenticated. The objection is SUSTAINED, as Plaintiff’s declaration provides no authentication for the messages. (Charles Decl. ¶ 2.)

Defendant objects to Plaintiff’s claim that Waters threatened that the principal, Sean Gaston, would punish anyone who complained about Waters. This objection is SUSTAINED as hearsay with respect to the truth of the assertion that Gaston would retaliate against Plaintiff (Evid. Code § 1200), but is OVERRULED as to the fact that Waters made this threat. Defendant’s objection that this statement contradicts Plaintiff’s prior deposition testimony is unpersuasive, as Defendant presents no contradictory deposition testimony, but merely claims that Plaintiff never mentioned the matter during deposition. (Supp. Grable Decl. ¶ 3; see Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521 [rule against admitting declarations that conflict with deposition testimony is “limited to instances where ‘credible [discovery] admissions ... [are] contradicted only by self-serving declarations of a party’”].) Objection No. 4, which objects to a statement of Plaintiff made on the same basis, is likewise OVERRULED.

Objections No. 5 and 6 are SUSTAINED, as they concern testimony by Plaintiff that Waters and Principal Gaston were friends outside of school, and concerning when various officers of Defendant became aware of Plaintiff’s complaint, as these statements are offered without foundation or personal knowledge.

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.)

“‘[California's] Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) . . . explicitly prohibits an employer from harassing an employee on the basis of race, sex or [ethnicity.]’ . . . To prove a claim under Title VII, the harassment must be ‘sufficiently severe or pervasive “to alter the conditions of [the victim's] employment and create an abusive working environment.”’ [Citation.]” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 35.)

Defendant moves against this first cause of action on two grounds. First, it claims that because it addressed the harassment by “immediate and appropriate corrective action” when it launched an investigation into Waters’s harassment, which resulted in Waters’s resignation. (Motion at pp. 7–8, citing Sarro v. City of Sacramento (E.D. Cal. 1999) 78 F.Supp.2d 1057, 1061–1062.)

This argument is unpersuasive, because immediate and appropriate corrective action does not immunize employers from liability for harassment in all circumstances. The relevant statutory language states that harassment “by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(1), italics added.) It follows that an employer is “strictly liable for harassment by a supervisor.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041.) Here, Defendant has offered no facts to show that Waters was merely Plaintiff’s co-employee, when the Complaint in fact alleges that Waters was Plaintiff’s “immediate supervisor.” (FAC ¶ 54.) What’s more, the evidence that Defendant presents supports an inference that Waters, as an assistant principal, occupied a supervisory relationship with Plaintiff, particularly when Wendy Monroy, another assistant principal, testifies that she supervised Plaintiff on a day-to-day basis. (Monroy Decl. ¶ 4.) Defendant has not established the predicate facts necessary to show that its corrective action ought to preclude liability here, and the evidence submitted suggests those facts are adverse to it.

The evidence also supports a triable issue of fact as to whether the harassment that Plaintiff experienced was severe or pervasive. Sufficiency in the harassment context means sufficient “to alter the conditions of the victim's employment.” (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 160–161.) Defendant cites a number of cases in which repeated verbal harassment, consisting of racial or sexual epithets, was held to be insufficiently severe or pervasive. (Motion at p. 9, citing Etter v. Veriflo Corp. (1998) 67 Cal.App.4^th 457.) But the conduct alleged here was not merely verbal, but graphic and physical. Plaintiff alleges several instances in which Waters summoned Plaintiff to his office to masturbate in front of her, and in two cases physically blocking her from exiting the office until he ejaculated onto the carpet. (FAC ¶¶ 21–25.) Forcing an employee to watch as their superior masturbates, and physically blocking them when they try to leave, may constitute severe harassment. (See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 280 [describing how “physical harassment may include assault, impeding or blocking movement, or any physical interference with normal work or movement”].)

Defendant attempts to argue that the harassment could not have been that severe, as Plaintiff waited until July 2018 to make a complaint, when the harassment had started months earlier. (Motion at p. 9.) But Defendant presents no authority for the proposition that this delay warrants a finding that the harassment is insufficiently severe as a matter of law.[1] Defendant also attempts to argue that there was no harassment after Plaintiff filed her Complaint. (Motion at pp. 9–10.) But once again, no authority suggests that this assertion would preclude a trier of fact from finding in Plaintiff’s favor as a matter of law, given the other harassment that she alleges.

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.) Once again, 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.)

Defendant argues that there are no facts supporting the fourth element of a prima facie gender discrimination claim, as there are no facts suggesting that gender played a role in any adverse actions taken against Plaintiff. (Motion at p. 11.) Defendant also argues that it apportioned fewer funds to Plaintiff’s program before any decision-maker learned of her complaint, and further that the reason for the reduction in funds was to ensure funding for other programs. (Motion at pp. 12–13.) Additionally, Defendant argues that no decision-makers involved have said or done anything to suggest that Plaintiff’s gender played a role in any determination as to her program. (Motion at pp. 11–12.)

Defendant has satisfied its burden to show the absence of triable issues as to Plaintiff’s gender discrimination claim, because no evidence suggests that any action was taken against Plaintiff with a discriminatory motive. Defendants submit the declarations of various decision-makers and supervisors of Plaintiff, each of whom testifies that they have never made any disparaging statements related to gender. (Gaston Decl. ¶ 15; Puri Decl. ¶ 10; Soliman Decl. ¶ 9; Monroy Decl. ¶ 10.) Plaintiff disputes this contention only on the grounds that these figures’ subsequent actions with regard to her program are retaliatory. (Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 49;.) Plaintiff in opposition only contends that her alleged adverse employment acts occurred shortly after her complaint of harassment. (Opposition at p. 11.) But this is to argue only that Plaintiff suffered retaliation for making a complaint, not that she suffered discrimination because of her sex or gender.

Plaintiff argues that the motion should be continued to allow her to take the deposition of Waters. (Opposition at pp. 6–8.) Said deposition was first noticed on October 30, 2020, but has been continually delayed, and Plaintiff has filed a motion to compel deposition on May 26, 2022, a few days after Defendant filed the present motion. (Opposition at pp. 6-8.)

If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

(Code Civ. Proc. § 437c, subd. (h).) “To demonstrate good faith, the party seeking a continuance must submit an affidavit or declaration showing that “ ‘(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 656.) “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show facts essential to justify opposition may exist.” (Ibid.)

It is unnecessary to await the deposition of Waters to adjudicate this claim for sex discrimination. Plaintiff does not contend that Waters played a deciding role in any alleged adverse acts committed against her after his dismissal. The probable value of Waters’ deposition, as framed in Plaintiff’s opposition, lay in Plaintiff’s harassment and retaliation claims, such as in the nature of the harassment committed, the reasons for Waters’ termination, and his relationship with Principal Gaston. (Opposition at pp. 6–7.) This deposition is unlikely to shed light of Plaintiff’s gender discrimination claim.

The motion is therefore GRANTED as to the second cause of action for FEHA discrimination.

In order to establish a prima facie case of retaliation under this section [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.

(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244, internal quotation marks omitted.)

Defendant argues that the retaliation claim fails for much the same reason as Plaintiff’s discrimination claim: no adverse employment actions were taken against her, there are no circumstances suggestive of a retaliatory motive, and Defendant had a legitimate reason for taking the actions that it did. (Motion at p. 14.)

Triable issues exist as to whether Defendant committed adverse employment actions against Plaintiff. Such actions include “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.) Here, Defendant acknowledges that funding for Plaintiff’s programs were cut from the 2017-2018 school year to the 2018-2019 school year, the year after Plaintiff made her complaint. (Gaston Decl. ¶ 13.) Plaintiff herself testifies to excessive “write-ups” from Assistant Principal Monroy following her complaint. (Charles Decl. ¶¶ 33–34, 37.) Plaintiff also testifies about the nature of her program funding, and states that Gaston forbade her from hiring consultants necessary to secure outside grants, and further forbade her from soliciting funds to secure a $1.5 million grant for a new facility for her program, once more after she made her complaint against Waters. (Charles Decl. ¶¶ 38, 43.) Although Defendant contends that the “write-ups” were not disciplinary in nature, they are written on the same formal “interoffice correspondence” letterhead that notified Waters of the investigation pending against him. (Motion Exhs. A (Sub-exh. 5), C.)

Evidence also supports a basis for finding circumstances suggestive of retaliatory motive, as Plaintiff made her complaint in July 2018, Principal Gaston learned of it in August 2018, and the adverse actions complained of above occurred in August 2018 or later. (Gaston Decl. ¶ 8; see Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4^th 327, 353 [temporal proximity between disclosure of disability and adverse action supported prima facie case of discrimination].)

And Defendant’s proposed legitimate reason for its actions —that the reduction in funding for Plaintiff’s CTE program was caused by a desire to equalize funding with other needy programs who shared in the school’s budget — is contradicted by Plaintiff’s testimony. She states that the funding for her program was not within Principal Gaston’s ordinary budgetary control, but was rather secured by outside grants solicited primarily by herself. (Charles Decl. ¶ 11.) Some of this funding required approval of stipends for consultants, which Gaston denied through 2018 and 2019, resulting in funds drying up for Plaintiff’s program. (Charles Decl. ¶¶ 38–40.) Plaintiff also testifies that Gaston was uncooperative in securing a $1.5 million grant for the creation of a new CTE facility, resulting in the failure of that grant as well. (Charles Decl. ¶ 43.) Defendant’s own witnesses acknowledge the importance of grant funding for Plaintiff’s program and her own role in securing those same funds, meaning she is in a position to dispute the budgeting narrative that Gaston provides. (Soliman Decl. ¶ 6; Puri Decl. ¶ 7.) Plaintiff has thus offered evidence to show that the proffered budgetary reasons for Defendant’s actions are an incomplete explanation for the reduction of funds available to Plaintiff’s program, and to suggest that Defendant’s explanation is pretextual.

Accordingly, the motion is DENIED as to the third cause of action for retaliation.

Defendant’s argument as to the fourth cause of action for failure to prevent discrimination rely upon the dismissal of Plaintiff’s other claims. (Motion at p. 15.) As Plaintiff’s harassment and retaliation claims survive, so too does the fourth cause of action. The motion is DENIED as to the fourth cause of action.

[1] Plaintiff testifies that Waters talked up his relationship with the Principal, and told her that anyone who complained about his behavior would be punished. (Charles Decl. ¶ 17.)