Judge: Gregory Keosian, Case: 22STCV04816, Date: 2023-04-11 Tentative Ruling
Case Number: 22STCV04816 Hearing Date: April 11, 2023 Dept: 61
Defendant
James Jacoby’s Motion for Summary Judgment or Adjudication is GRANTED as to the
second cause of action for retaliation, and DENIED as to the third cause of
action for FEHA harassment.
I.
OBJECTIONS
Defendant James Jacoby
objects to several items of evidence submitted in opposition to his motion for
summary judgment. One segment or objections, No. 55–82, are directed not to any
item of evidence, but the way that evidence is framed in Plaintiff Paula
Bawden’s separate statement, and as such are OVERRULED. (CRC Rule 3.1350, subd.
(d).) Defendant’s objections to Plaintiff’s declaration are likewise OVERRULED.
Plaintiff’s declaration is founded upon her own personal knowledge, Defendant
Plains All American’s verified discovery responses, or Jacoby’s own
out-of-court statements, which are admissible against him as party admissions under
Evidence Code § 1220. And although Defendant objects to the exhibits offered
with the declaration of Plaintiff’s counsel, these objections take issue only
with inadequate authentication of the documents presented, an issue which may
easily be remedied before dispositive relief is granted. (See Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519,
1527–28 [“The court should have allowed Ambriz's counsel to attempt to remedy
the perceived failings before ruling against Ambriz on a dispositive motion.”].)
Plaintiff objects to one
portion of a declaration of Defendant’s counsel, which characterizes
Plaintiff’s discovery response related to her therapy as evasive. This
objection is OVERRULED.
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 James
Jacoby (Defendant) moves for summary judgment or adjudication of the claims
asserted against him, specifically the second cause of action for FEHA
retaliation, on the grounds that he cannot be personally liable for such a
claim, and third cause of action for FEHA harassment, on the grounds that there
is no evidence he engaged in any actions severe or pervasive enough to
constitute harassment, or did so for bias held against Plaintiff’s age or sex.
Plaintiff
Paual Bawden (Plaintiff) in opposition concedes the merit of Defendant’s
argument as to the retaliation claim. (Opposition at p. 2, fn. 1; see Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423, 1428 [holding no personal
liability for retaliation actions under FEHA].) Accordingly, the motion is
GRANTED as to the second cause of action for retaliation against Defendant
Jacoby.
This leaves the fourth cause of action for harassment on
the basis of sex or age. “To establish a prima facie case of harassment, [a
plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected
to unwelcome harassment; (3) the harassment was
based on her
protected status;
(4) the harassment
unreasonably interfered with her work performance
by creating an intimidating, hostile, or offensive work
environment; and (5) defendants are
liable for the harassment.” (Galvan v. Dameron Hospital Assn. (2019) 37
Cal.App.5th 549, 563.) Defendant argues that the conduct that Plaintiff
complains of was not sufficiently severe or pervasive to create a hostile or
offensive work environment, and that any such actions were taken for the
managing of personnel, which does not constitute harassing conduct under FEHA.
(Motion at pp. 7–11, citing Janken v. GM Hughes Electronics (1996) 46
Cal.App.4th 55, 64.) Additionally, Defendant argues that Plaintiff lacks
evidence that Defendant acted against her for her sex or age, rather than in
retaliation for her complaint of unequal pay. (Motion at pp. 10–11.)
Here is the evidence that Plaintiff presents of her alleged
harassment. Plaintiff is a 60-year old woman, who began working for Defendant
Plains All American GP in 2006. (Bawden Decl. ¶ 2.) In Fall 2016, Defendant
informed Plaintiff that he was being made to bring in a new employee: Michael
Eidman, a 24-year old man. (Opposition Exh. 1 at p. 51.) Defendant expressed no
enthusiasm for the move to Plaintiff; after Eidman came aboard Defendant
complained to Plaintiff of Eidman’s work habits, and asked Plaintiff to offload
tasks onto Eidman so he would have something to do. (Bawden Decl.
¶¶ 18–19.) Eidman was often away from his office, and Defendant complained
to Plaintiff of Eidman leaving work early. (Bawden Decl. ¶ 21.)
Eidman was treated with greater laxity than Plaintiff.
Eidman often wore headphones or read articles on his work computer, while
Plaintiff was reprimanded for wearing headphones or reading the newspaper on
her lunch break. (Bawden Decl. ¶ 22.) Defendant took Eidman out to lunch for a
work anniversary, which he did not do for Plaintiff for any work milestone. (Ibid.)
In early 2019, Plaintiff learned that Eidman was being paid
more than her for performing substantially similar work from his hire in 2016.
(Bawden Decl. ¶¶ 25–27.) When Plaintiff complained to Defendant about the
disparity in pary for Eidman’s doing of her “left-over” and “overflow work,”
Defendant told her that Eidman was in a different classification, while
Plaintiff was “admin.” (Bawden Decl. ¶ 27.) Defendant told Plaintiff that
she made good money, and that he himself had often been paid less but was “just
glad to have a job,” which Plaintiff took as an implied warning that Plaintiff
could lose her job if she pursued the complaint. (Bawden Decl. ¶ 28.)
Plaintiff heard back about her complaint in September 2019.
(Bawden Decl. ¶ 39.) In the meantime Defendant continued to complain about
Eidman, and yet continued to remove assignments from Plaintiff to Bawden for
the reason that management had instructed Defendnat to “load him up.” (Bawden
Decl. ¶¶ 34–39.) In September 2019, Plaintiff was informed that her pay would
be upgraded through a retroactive lump sum payment and a new pay rate at the top
of her classification’s range. (Bawden Decl. ¶ 39.) This new compensation,
however, still placed her below Eidman’s. (Bawden Decl. ¶¶ 40–41.) So Plaintiff
filed a complaint with the Department of Fair Employment and Housing. (Bawden
Decl. ¶¶ 43–45.)
Defendant thereafter, in several instances, negatively
commented on Plaintiff’s complaints, saying he did not understand them or why
she was pursuing them. (Bawden Decl. ¶¶ 50–51.) Defendant’s behavior toward
Plaintiff became more hostile and brusque. (Bawden Decl. ¶ 53.) On more than
two occasions in 2020, Plaintiff was speaking to Becky Sitton, a contract
worker in their department, when Defendant barged in and demanded to know what
they were talking about. (Bawden Decl. ¶¶ 54–55.) On one such occasion Defendant’s
entry was so sudden that he struck Plaintiff with the door as he opened it.
(Bawden Decl. ¶ 55.) Despite Defendant’s complaints about Eidman’s work ethic,
Eidman and other male colleagues were not subject to similar treatment for
their discussions; Plaintiff rather saw Defendant pull up a chair and join
their conversations. (Bawden Decl. ¶ 54.)
Defendant has engaged in other belittling conduct.
Defendant has demanded to know why Plaintiff closes her office door during
lunch, even when he sees Plaintiff eating her lunch. (Bawden Decl. ¶ 56.) On
three occasions Defendant physically blocked Plaintiff’s path to prevent her
from walking out of the office. (Bawden Decl. ¶ 57.) When the department was
changing offices, Defendant questioned whether Plaintiff knew “what’s
important” with respect to what should be discarded during the move. (Bawden
Decl. ¶ 58.)
In March 2021, Plaintiff complained for receiving a smaller
bonus, based on what she believed was retaliation for her complaints. (Bawden
Decl. ¶ 59.) She had a testy exchange with Defendant regarding the complaints,
for which she denies raising her voice or banging her fist. (Bawden Decl. ¶
59.) Soon after, Plaintiff was summoned into a meeting with Defendant and an HR
person for what she believed to be a discussion of her complaints, but which
she learned was a disciplinary meeting to reprimand her for her behavior during
the prior encounter with Defendant. (Bawden Decl. ¶¶ 63–64.) The reprimand
was for her “agreesively confront[ing]” Defendant, and further directed her not
to refer to Eidman as “the little prince,” an epithet she had used to refer to
Eidman before in Defendant’s presence, and for which he had expressed
amusement. (Bawden Decl. ¶¶ 48, 64; Jacoby Decl. ¶ 18, Exh. B.)
Since this meeting, Defendant has placed interposed himself
in conversations between Plaintiff and a female co-worker, making “mocking,
hissing, whispering sounds.” (Bawden Decl. ¶ 67.) Defendant has also begun
tracking when Plaintiff swipes her badge to enter the building. (Bawden decl.
¶¶ 67–68.) Defendant has discussed Plaintiff’s appearance, forbidding her from
wearing t-shirts in the office, despite the fact that Plains does not require
employees to wear business attire. (Bawden Decl. ¶ 72.) After the relocation of
their office, Plaintiff has been assigned to a closet-sized room near an exit
door. (Bawden Decl. ¶ 73.) Although Plaintiff often uses the conference room to
perform tasks, on one day in 2021 Defendant cross-examined her on why she was
using the conference room. (Bawden Decl. ¶ 70.) Defendant has limited
Plaintiff’s involvement in projects, chastises Plaintiff for performing tasks
she has performed since she began work at Plains, and questions her reasons for
taking initiative or having conversations with coworkers. (Bawden Decl. ¶ 71.)
Plaintiff also presents the testimony of another woman who
worked in the same department during the same period, Becky Sitton. Sitton in
her deposition stated that when she asked Defendant to be assigned to projects
she was qualified to undertake, he told her to “stay in your box,” since she
was already busy doing other assignments. (Opposition Exh. 4 at p. 76.) Sitton
corroborates Plaintiff’s testimony that Defendant often asked them both to find
tasks for Eidman to perform. (Opposition Exh. 4 at p. 26.) Sitton testified
that Defendant gave one of her assignments — attending meetings for a certain “Pier
B” project — to Eidman, while still expecting Sitton to give Eidman certain
information necessary to prepare him for the meetings. (Opposition Exh. 4 pp.
42-43.)
Plaintiff has presented sufficient evidence to create a
triable issue of fact as to whether Defendant acted against Plaintiff because
she was a woman. Although Plaintiff submits no overtly sexist comments made by
Defendant, discriminatory motive may be proved not merely by offensive
utterances but by “[e]vidence that an employer treated
similarly situated
employees outside the plaintiff's protected class more favorably.” (Gupta v.
Trustees of California State University (2019) 40 Cal.App.5th 510, 519,
internal quotation marks omitted.) Here, Plaintiff has presented evidence that
Defendant treated a similarly situated male employee, Eidman, more favorably
than female employees with respect to the assignment of work tasks and the
relative freedom they were afforded in the office.
Triable issues of fact also exist as to the pervasiveness
of the harassment that Plaintiff claims to have experienced. Plaintiff
describes a number of instances in which Defendant engaged in overbearing
supervision of women workers that he did not extend to male employees under his
supervision. This includes interrupting various conversations being held
between Plaintiff and other female coworkers, including one instance in which
Defendant inadvertently caused a door to strike Plaintiff. Plaintiff describes
other instances in which Defendant physically blocked Plaintiff from leaving
the office. Although Defendant argues that personnel management actions cannot
constitute harassment, they may still, in conjunction with other non-management
activity, constitute evidence of a hostile work environment if that conduct “is
relevant to prove the communication of a hostile message” in the workplace. (Roby
v. McKesson Corp. (2009) 47 Cal.4th 686, 708.) Thus the reprimand issued to
Plaintiff and Defendant’s monitoring of Plaintiff’s badge entries and attire,
may likewise be considered part of the alleged hostile work environment.
Defendant notes that Plaintiff’s primary characterization
of Defendant’s conduct is that it was a reaction to her complaints of
discrimination, rather than the product of FEHA-prohibited bias. (Reply at pp.
5–6.) But as set forth above, the evidence of bias is sufficient to support the
existence of triable issues of fact on the question, even if evidence exists of
a more direct retaliatory explanation for the conduct.
The motion is therefore DENIED as to the third cause of action for
harassment.