Judge: Gregory Keosian, Case: 22STCV21271, Date: 2024-02-29 Tentative Ruling

Case Number: 22STCV21271    Hearing Date: February 29, 2024    Dept: 61

Defendant Air-Sea Forwarders, Inc.’s Motion for Summary Judgment or Adjudication is GRANTED.

Defendant to give notice.

I.                   OBJECTIONS

Plaintiff Beena Raman’s objections to the declarations of Paul Talley and Todd Hinkley are OVERRULED, as these witnesses may testify to the reasons for their decision to terminate Plaintiff.

Defendant Air-Sea Forwarders, Inc.’s objections to the declaration of Beena Raman are OVERRULED, as Plaintiff’s testimony as to the time in which she verbally complained to Hinkley does not contradict her deposition testimony. At her deposition, she stated that she could not recall the year of her complaint; her declaration offers a deduction of a range of years based on the timing of the complaint in relation to the pandemic. The court likewise construes Plaintiff’s statement that a written complaint was made in January 2021 as a typo, as the complaint attached states it was made in January 2022, as this is the date the email referenced states, and is the date referenced in the opposition papers. (Opposition Exh. G.)

Defendant’s objections to the declaration of Donna Pritchett are SUSTAINED. Pritchett offers no foundation for her understanding of the “office manager” position, which did not exist while she was present at the company. She provides no basis in personal knowledge for what use the cameras set up in the office were put. Her testimony concerning an instance of racist language used by another manager is based on secondhand, hearsay reports. And she offers no foundation for her testimony that Talley treated men and women employees differently.

Defendant’s objections to the declaration of Ryan Fowler are OVERRULED. These objections are based on Fowler’s failure to properly authenticate documents evidently produced in discovery. Any such defect is easily curable. When evidence material to a dispositive motion fails for an easily rectified procedural reason, it is appropriate for the court to allow the party an opportunity to remedy the failings before granting dispositive relief. (See Ambriz v. Kelegian (2007) 146 Cal.App.4^th 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.”].) Indeed, the relatively minor procedural infirmity that Defendant identifies would not prevent this court from considering the declaration, as the testimony is otherwise “evidence which is competent, relevant and not barred by a substantive rule.” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947 [discussing evidence considerable in hearing an anti-SLAPP motion].)

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 Air-Sea Forwarders, Inc. (Defendant) moves for summary judgment or adjudication on Plaintiff Beena Raman’s claims for employment discrimination (based on gender and national origin) and retaliation, on the grounds that Plaintiff was discharged from her employment with Defendant based on legitimate staff-reduction measures undertaken in 2021. (Motion at pp. 4–12.)

Plaintiff worked at Defendant’s Inglewood office from 1989 onward as an administrative assistant and alternative security coordinator. (Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 1.)[1] Plaintiff was promoted to the alternate security coordinator in 2012 on the recommendation of her supervisor Paul Talley. (PUMF No. 4.) Plaintiff reported to Talley and Todd Hinkley from 2013 on. (PUMF No. 5.) Plaintiff’s duties did not include the supervising of other employees. (PUMF No. 6.)[2]

In 2021, Hinkley and Talley decided to close Defendant’s Los Angeles warehouse, resulting in the layoff of two warehouse employees and the transfer of the warehouse manager to another position. (PUMF No. 8–9.) Defendant also laid off a receptionist, an employee in its Los Angeles MIS department. (PUMF No. 12–13.) In 2021, Defendant laid off six employees, five of whom worked in Los Angeles, four of whom were male. (PUMF No. 16.)

Talley testifies that the warehouse closure reduced Plaintiff’s job duties to the point that her position was no longer viable. (Talley Decl. ¶¶ 14­–15.) Plaintiff disputes that the warehouse closure meaningfully affected her job duties. (Opposition Exh. N at pp. 88–89.) It was originally assumed that Plaintiff would take over the newly vacant receptionist position, but Talley contends that the existence of an automatic switchboard obviated the need for a new receptionist. (Talley Decl. ¶ 16.) Plaintiff notes, however, that the automatic phone system had been in place since 2017. (Opposition Exh. N at p. 89.) Talley informed Plaintiff of her termination on October 12, 2021, with her final day of work to take place in January 2022. (PUMF No. 38.)

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.)

Defendant argues that it has presented evidence of a legitimate nondiscriminatory motive for Plaintiff’s termination, namely an overall reduction in staff that left Plaintiff with no duties to fulfill.

Plaintiff in opposition presents the following evidence suggestive of discriminatory motive. Plaintiff testifies that Talley spoke “nicely” when talking to men, and that he talked “down” to women in a way he did not speak to his male colleagues. (Opposition Exh. N at p. 52.) Plaintiff once heard Talley refer to another female employee as a “bitch.” (Opposition Exh. N at p. 115.) Plaintiff claims that she witnessed Talley’s dismissive treatment of a third-party vendor who was represented by a woman, and that he told Plaintiff that he didn’t like the way the representative talked. (Opposition Exh. N at pp. 50–52, 115.) Plaintiff also identified one instance during or after the COVID pandemic in which Talley sent home a female employee for coughing, when he did not send a male employee home for coughing. (Motion Exh. A at pp. 129–131.)

Plaintiff stated that once she complained to Todd Hinkley of Talley’s behavior, specifically his habit of departing the office and walking by her desk without greeting her or informing her of whether and when he will return.  (Opposition Exh. N at pp. 45–46.) When Plaintiff told Hinkley that she believed Talley was treating her dismissively because she was a woman, Hinkley laughed. (Opposition Exh. N at pp. 48–49.) Talley’s behavior afterward did not change, but Hinkley started contacting Plaintiff to inform her when Talley would be in the office. (Opposition Exh. N at p. 48.) Plaintiff also submits the declaration of Donna Pratchett, who worked with Talley and Plaintiff before leaving Defendant in April 2018, who testifies that despite having a business degree (which Talley lacked), when she offered advice on business matters, Talley told her that her opinions didn’t count. (Pritchett Decl. ¶ 4.)

Plaintiff also notes that, although Defendant offered her the receptionist position in 2021 as an alternative to laying her off (Opposition Exh. K at p. 84.), Talley posted a job opening for a “receptionist” in October 2021, shortly after notifying Plaintiff of her termination. (Opposition Exh. B.)

Defendant has satisfied its initial burden on summary judgment to show both the absence of triable issues on Plaintiff’s prima facie case of discrimination, and to show the existence of a legitimate, nondiscriminatory motive for Plaintiff’s termination. As to Plaintiff’s prima facie case, Plaintiff identifies various instances in which Talley was critical of or cold toward women he worked with, and one instance in which he used the term “bitch” to describe another woman. However, the singular use of such an epithet has been held insufficient to constitute evidence of discriminatory motive. (Kriss v. Sprint Communications Co., Ltd. Partnership (8th Cir. 1995) 58 F.3d 1276, 1282; cf. Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 205 [“T]he term ‘bitch’ is not so sex-specific and derogatory that its mere use necessarily constitutes harassment because of sex.”).) Plaintiff’s corroborating instances of Talley’s cold treatment of other women are also insufficient to create triable issues of fact on the existence of sex-bias in her termination decision, as these other instances are, like “stray remarks,” remote in time and circumstance from the termination of Plaintiff’s position, and moreover lack any context indicating bias on the basis of sex or gender, as opposed to dislike toward a particular person. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 867 [“A ‘stray’ discriminatory remark that a court determines is unconnected to the adverse employment action is insufficient evidence of a discriminatory motive, as a matter of law, and may be wholly disregarded by the court.”].)

Any inference that could be created from such facts is further vitiated by evidence that the same decisionmaker charged with taking adverse employment actions toward Plaintiff because of her sex was also the decisionmaker responsible for prior, favorable employment actions taken in her favor. “[W]here the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 808.) Talley was the supervisor who recommended Plaintiff for the alternate security coordinator position in 2012. (Talley Decl. ¶ 5.) Talley also hired a woman to occupy the receptionist position in 2021, the same year Plaintiff alleges she was denied the receptionist position because of her gender. (Opposition Exh. L at pp. 100–102.)

Although a discrimination plaintiff can show circumstances evidencing discriminatory motive for a discharge by showing that she was “replaced by a person outside the protected class” (Vincent v. Brewer Co. (6th Cir. 2007) 514 F.3d 489, 494), no such replacement occurred here. Plaintiff has presented evidence that her ordinary duties of purchasing office supplies and overseeing certain TSA compliance tasks were transferred following her termination to John Cohn, it is undisputed that Cohn occupied a different position with different responsibilities in addition to those formerly borne by Plaintiff, including supervising the entire Los Angeles staff. (Motion Exh. B at p. 81.)  As Defendant notes, this is analogous to the situation discussed in Foroudi v. Aerospace Corporation (2020) 57 Cal.App.5^th 992, 1008 in which “[the defendant] Aerospace eliminated [the plaintiff] Foroudi’s position and gave his duties to Nuth,” another employee. (Reply at p. 5.) The court held:

Aerospace, in other words, essentially created a new position that combined Foroudi's and Nuth's former duties. It is not enough, therefore, for Foroudi to show he was more qualified than Nuth for his former position. Instead, to raise an inference of discrimination, he must show, at the very least, that he was as qualified as Nuth for the new, combined position. Foroudi makes no attempt to do so.

(Id. at p. 1008–1009.) The situation here is similar, in that Plaintiff does not contend that she was qualified to occupy Kohn’s position, only that she was qualified to undertake certain of the duties that Kohn absorbed.

The same facts support the absence of triable issues as to Defendant’s legitimate reason for Plaintiff’s termination, i.e. the elimination of her position in conjunction with other layoffs as the Los Angeles office. Although Plaintiff notes that a job listing was made for a receptionist after she was notified of her termination, the undisputed evidence is that this position has never been filled. (Opposition Exh. L at p. 91.)

The same facts cited above establish the absence of triable issues as to Plaintiff’s claim for national origin discrimination. Plaintiff’s showing of circumstances evidencing bias based on national origin consists of the declaration of Donna Pritchett, who testifies to hearing secondhand of an incident in which a company executive was overheard to call a black temporary employee as “a monkey.” (Pritchett Decl. ¶ 6.) Pritchett offers no basis however for her knowledge of the facts of this incident, save hearsay. Likewise, the sole basis for Plaintiff’s retaliation claim is the temporal proximity between her complaint to Hinkley, which at her deposition she could not pin to a particular date or year. (Motion Exh. A at pp. 46–47.) Although Plaintiff in opposition presents a declaration stating that the complaint was made some time between 2018 and 2020 (Beena Decl. ¶ 3), this evidence once more does not rebut the legitimate, nonretaliatory reason proffered by Defendant for plaintiff’s termination. (See Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141 [stating that a defendant may rebut a prima facie showing of retaliation with “a legitimate, nonretaliatory explanation for its acts”].)

The motion is therefore GRANTED.