Judge: Gregory Keosian, Case: 20STCV33369, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCV33369    Hearing Date: September 29, 2022    Dept: 61

Defendants County of Los Angeles and Cynthia Cole-Robles’s Motion for Summary Judgment or Adjudication is DENIED.

I.                   OBJECTIONS

Plaintiff Vevelyn Eileen Jones (Plaintiff) submits objections to the evidence that Defendants County of Los Angeles and Cynthia Cole-Robles offer in their motion. Plaintiff’s objections to paragraphs 7 and 9 of the declaration of Defendant Robles are SUSTAINED, insofar as the statements relayed to Robles of Plaintiff’s conduct as submitted for the truth of the matters stated, but OVERRULED insofar as such evidence is relayed only to show the motivations for Robles’s actions. The objection to paragraph 13 of the Liza Zavala declaration, concerning who prepared Plaintiff’s 2019 performance evaluation, is also SUSTAINED, as Zavala presents no foundation in personal knowledge concerning the authorship of the document. Plaintiff’s other objections are OVERRULED.

Defendant submits objections to the evidence submitted by Plaintiff in opposition. Objections No. 23 and 24 to Plaintiff’s declaration are SUSTAINED, based on hearsay concerning who prepared her evaluation, and are otherwise OVERRULED. Defendants’ objections to the declaration of Luz Maria Gomez are SUSTAINED as to Objections No. 8–10, 28, and 29 (for lack of foundation and hearsay), and are otherwise OVERRULED. Defendants’ objections to the declaration of Angela Bagmanian are SUSTAINED as to Objection No. 6, 8–10, which concerns hearsay relayed to Bagmanian about Robles’s conduct. Defendants’ objections to the declaration of Samantha Manuel are OVERRULED. Defendants’ objections to the declaration of Dorothy Cole are SUSTAINED as to Objections No. 7, 8, and 10 for hearsay. And Defendants’ objections to the declaration of Kimala Green-Carter are SUSTAINED as to Objections No. 11, 15, and 20–23 for lack of foundation and hearsay.

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.)

Defendants County of Los Angeles and Cynthia Cole-Robles argue that no triable issues of fact exist for any of Plaintiff’s causes of action for discrimination, harassment, or failure to prevent the same. They argue that no discrimination claim may lie because Plaintiff suffered no adverse employment action, let alone actions motivated by discriminatory bias. (Motion at pp. 14–17.) Defendants also argue that Plaintiff did not suffer harassment of a severe or pervasive quality necessary to establish liability under FEHA for a hostile work environment. (Motion at pp. 17–19.) Finally, Defendants argue that they investigated Plaintiff’s complaints and therefore cannot be liable for failure to prevent FEHA violations. (Motion at pp. 19–20.)

To establish a FEHA discrimination claim, a plaintiff 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.)

Defendants argue that Plaintiff suffered no adverse employment action under the above elements because the only adverse action taken was a “competent” performance review, which Defendant Robles, the alleged wrongdoer, was not even responsible for. (Motion at pp. 14–15.) Yet Defendants immediately undercut this argument by acknowledging that several of Plaintiff’s job duties were removed or reassigned once Robles began her tenure as supervisor, and that Robles thereafter began a practice of preferential overtime assignments to younger “neighborhood workers” rather than permanent county employees like Plaintiff. (Motion at pp. 15–16.) Defendants make no attempt to argue that these acts do not constitute adverse employment actions, as such actions quite plainly “materially affect the terms and conditions of employment.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051 fn. 9.)

The real argument that Defendants advance is not that these actions never took place, or that they did not affect Plaintiff’s job, but that they were motivated by a sincere desire to spread assignments around in an effort to give opportunities to less experienced workers. (Motion at pp. 15–17.) In the FEHA context, if the employer offers evidence of a legitimate, nondiscriminatory reason for the adverse employment 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.)

Defendants have presented some evidence showing the absence of a discriminatory motive. Robles testifies that she removed Plaintiff from procurement responsibilities based on complaints from vendors about Plaintiff’s alleged practice of demanding free bonus goods for the center employees. (Robles Decl. ¶ 7.) Robles claims that she apportioned overtime to younger “neighborhood” workers because they make minimum wage and therefore stand to benefit more from the opportunity. (Robles Decl. ¶ 12.) Liza Zavala, the regional manager for the center, further states that Robles began changing daily tasks for staff to allow these same workers to develop their skills. (Zavala Decl. ¶ 11.)

However, Plaintiff presents evidence that these reasons are a pretext for discrimination against older employees. Plaintiff and other employees testify that they observed Robles being cold to older employees, including Plaintiff, specifically by excluding them from meetings and center-wide notices, and instead giving gifts, treats, and cheerful greetings to employees under the age of forty. (Jones Decl. ¶¶ 25–33; Gomez Decl. ¶¶ 4, 10, 15–16; Cole Decl. ¶¶ 4–8; Green-Carter Decl. ¶¶ 5–7; Manuel Decl. ¶ 5.) Luz Maria Gomez, a community health worker at the senior center, testifies that Robles at one point remarked to her, concerning older Title V workers, that she intended to hire “younger” workers and that she generally didn’t care for workers of “that generation,” because younger workers were more willing to learn and were more motivated, whereas older workers were set in their ways and did not like to grow. (Gomez Decl. ¶ 15.) This evidence supports an inference that Defendants’ stated reasons for adverse acts directed against Plaintiff are pretext for discrimination on the basis of age. Thus triable issues of fact remain as to Plaintiff’s discrimination claim.

Defendants further argue that, even if discrimination occurred, there has been no harassment against Plaintiff. (Motion at pp. 17–19.) To carry liability under FEHA, harassment must be so “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.) Defendants argue that once one parses away the alleged personnel management actions — which they claim do not constitute harassment — there are no insults or improprieties that would furnish a trier of fact basis to find severe or pervasive harassment here. (Motion at pp. 18–19.)

But Plaintiff presents evidence sufficient to raise triable issues of fact as to the existence of pervasive harassment against her. First, the court notes, as described above, that there is evidence to support an inference that the actions taken against her were motivated by discriminatory bias against seniors. As for the acts constituting the harassment itself, there is evidence that Robles told other employees not to speak to Plaintiff, and that they obliged, leaving her isolated to the point of tears. (Gomez Decl. ¶ 5; Green-Carter Decl. ¶¶ 6–7.) Robles herself, Plaintiff’s supervisor, while friendly to younger staff, ignored or cut off Plaintiff when she tried to make herself known. (Jones Decl. ¶¶ 16, 33; Manuel Decl. ¶ 6; Cole Decl. ¶ 8.) A daily campaign of ostracism and silent derision orchestrated by one’s supervisor may constitute pervasive harassment, even in the absence of outright insults. (Cf. El-Hakem v. BJY Inc. (9th Cir. 2005) 415 F.3d 1068, 1074 [holding that employee could establish pervasive racial harassment based on CEO’s frequent practice of calling Plaintiff “Manny” instead of his given Arabic name of “Mamdouh”].) And contrary to Defendants’ argument, this evidence of harassment cannot be considered in isolation from evidence of adverse personnel management activities, which may contribute to a hostile work environment. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705 [holding that evidence of personnel management activity could constitute evidence to support a harassment claim].) Accordingly, triable issues remain as to Plaintiff’s claim for age-based harassment.

Defendants’ final argument against Plaintiff’s failure to prevent claim is similarly unpersuasive. They argue that the County’s Policy of Equity (CPOE) states that discrimination and harassment are not tolerated, and that this same policy creates a mechanism for investigating and redressing workplace wrongdoing. (Motion at pp. 19–20.) In this case, after Plaintiff complained, the County interviewed her. (Motion at p. 20.)

Triable issues of fact remain as to the failure-to-prevent claim. This is because the remedy offered to Plaintiff (and other employees complaining about the same matter) after submitting CPOE complaints was an offer to transfer the employees to other senior centers in the county, generally located an impracticable distance away. (Jones Decl. ¶ 52; Manuel Decl. ¶¶ 24, 26–27; Gomez Decl. ¶¶ 13, 20.) Accordingly, a trier of fact may conclude that the remedies offered by the county were not adequate to deter violations of FEHA or its own CPOE.

The motion is therefore DENIED.