Judge Holly J. Fujie, Case 19STCV43993 2023-03-01 Tentative Ruling

MOVING PARTIES: Defendants Antelope Valley Transit Authority (“AVTA”) and Transdev Services, Inc. (“Transdev”) (collectively, Moving Defendants”)

This action arises out of an employment relationship. The currently operative second amended complaint (the “SAC”) alleges: sexual harassment in violation of the Fair Employment and Housing Act (“FEHA”); (2) sexual assault, battery and ratification; (3) failure to investigate and prevent in violation of FEHA; (4) violation of Civil Code section 43; (5) violation of Civil Code section 51.7; (6) violation of Civil Code section 52.4; (7) violation of Civil Code section 52.1; (8) false imprisonment; (9) intentional infliction of emotional distress; and (10) negligent infliction of emotional distress.

In relevant part, the SAC alleges that on July 13, 2019, while working as a bus operator for Moving Defendants, Plaintiff was sexually assaulted by her supervisor Robert L. Taylor (“Taylor”) during a training. (See SAC ¶¶ 17-25.)

Moving Defendants filed separate motions for summary judgment/adjudication (the “AVTA Motion” and the “Transdev Motion,” respectively) (collectively, the “Motions”) to the SAC.

Transdev’s objections to the Transdev’s objections to the Declaration of Sheryl L. Marx (“Marx Decl.”) numbers 1-3 are OVERRULED. Transdev’s objections to the Marx Declaration numbers 4-5 are SUSTAINED.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) California Code of Civil Procedure (“CCP”) section 437c, subdivision (c) requires the trial judge to grant summary judgment if 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. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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. 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.)

To evaluate whether an entity is an employer for FEHA purposes, courts consider the totality of circumstances and analyze several factors, principal among them the extent of direction and control possessed and/or exercised by the employer over the employee. (Jimenez v. U.S. Continental Marketing, Inc. (2019) 41 Cal.App.5th 189, 193.) In the particular case of temporary-staffing, factors under the contractual control of the temporary-staffing agency (such as hiring, payment, benefits, and timesheets being handled by a temporary-staffing agency) are not given any weight in determining the employment relationship with respect to the contracting employer. (Id.) The inquiry with respect to the contracting employer is considered individually, not in relation to that of the direct employer. (See id.) The key is that liability is predicated on the allegations of harassment or discrimination involving the terms, conditions, or privileges of employment under the control of the employer, and that the employment relationship exists for FEHA purposes within the context of the control retained. (Id.)

AVTA is a public agency tasked with providing public transport in the cities of Lancaster and Palmdale. (Separate Statement of Undisputed Material Facts (“UMF”) 3.) Transdev is an international company that contracts with government entities and private companies to operate their transit systems. (UMF 4.) AVTA and Transdev have separate executives and directors as well as separate human resources (“HR”), accounting, payroll, legal and customer services departments. (UMF 2.)

On or about November 10, 2011, AVTA and Transdev entered into an agreement entitled the “Operation and Maintenance of Fixed Route Transit Services Agreement” (the “Operation Agreement”) which provided that Transdev would operate AVTA’s fixed route transit services. (UMF 5.) The Operation Agreement was in effect at all relevant times during the events underlying the SAC. (UMF 6.)

“The Contractor shall be solely responsible for the satisfactory work performance of all its employees as described in this Agreement or in any reasonable performance standard established by AVTA; for compliance with all applicable laws regarding employee compensation, safety, and related matters; and for compliance with its approved Staffing Plan and Training Program.

Except as otherwise provided in Subsection D, AVTA shall have no role in the determination of wages, benefits, or other terms and conditions of employment. Without any additional expense to AVTA, the Contractor shall comply with the requirements of employee liability, worker's compensation, unemployment insurance, social security, and the Americans with Disabilities Act. The Contractor shall hold AVTA harmless from any liability, damages, claims, costs, and expenses of any nature arising from alleged violations of personnel practices or of statutory, regulatory, or contractual obligations to employees. (Declaration of Judy Vaccary-Fry (“Fry Decl.”), Exhibit G at §9 (A)(1)-(2).)

“The AVTA Executive Director shall have the right to demand the removal from services under this Agreement, for just cause only, any Key Personnel or any other individual (whether in a management or a non-management position) furnished by the Contractor. The individuals supplied to AVTA by the Contractor are employees of the Contractor, and whereas AVTA has no right to terminate Contractor's employees. It is understood that all mandatory subjects of bargaining under the law regarding terms and conditions of employment (including wages, benefits, and working conditions) affecting employees represented by the Union will be negotiated between the Union and the Contractor for bargaining unit work performed for AVTA.” (Fry Decl., Exhibit J.)

Plaintiff began working for Transdev on November 19, 2018. (UMF 33.) Plaintiff reported to and was supervised solely by Transdev employees. (See UMFs 47-51.) Taylor worked for Transdev between October 2017 and July 2019. (UMF 52.) Taylor solely reported to supervisors that worked for Transdev. (See UMFs 55-58.)

AVTA was not involved with the Transdev hiring or training processes. (See UMFs 16, 19.) Transdev paid its employees for their work under the Operation Agreement; AVTA did not pay or provide benefits to Transdev employees. (UMFs 23, 25.) Transdev disciplined its own employees. (UMF 26.) Transdev had its own HR department to support its Operation Agreement-related personnel needs. (UMF 29.) Only Transdev employees monitored the day-to-day job performance of Transdev employees. (UMF 32.) Transdev developed and implemented a standard personnel plan for its employees providing services to AVTA pursuant to the Operation Agreement. (UMF 69.) Transdev maintained and implemented procedures to respond to road incidents that occurred within the AVTA transit system. (UMF 28.)

AVTA has met its burden to show that it was not Plaintiff or Taylor’s employer because it did not exert control over their work. Plaintiff argues that triable issues of fact exist because, as stated the Operating Agreement authorized AVTA to establish a “reasonable performance standard” and because the Operating Agreement authorized AVTA to demand the removal of Transdev employees. The portion of the Operating Agreement cited to by Plaintiff to support this argument states: “The Contractor shall be solely responsible for the satisfactory work performance of all its employees as described in this Agreement or in any reasonable performance standard established by AVTA.” Plaintiff provides no evidence, however, that AVTA issued a “reasonable performance standard” outside of the terms articulated in the Operating Agreement itself. Nor does Plaintiff provide evidence that AVTA took wrongful action with respect to the Executive Director’s authority to demand that Transdev remove an employee providing services for AVTA. The undisputed evidence establishes that Plaintiff and Taylor were both hired, overseen, paid, trained and disciplined solely by Transdev. All of the wrongful acts complained of in the SAC concern “terms, conditions, or privileges of employment” that were solely under Transdev’s control. (See Jimenez v. U.S. Continental Marketing, Inc. (2019) 41 Cal.App.5th 189, 193.) The Court therefore finds that Plaintiff has not met her burden to raise a triable issue of fact as to whether AVTA acted as her employer such that it may be held vicariously liable for Taylor’s alleged wrongdoing. The Court therefore GRANTS the AVTA Motion in full.

Transdev argues that it is entitled to summary judgment/adjudication because Taylor was not a supervisor and it did not know nor should it have known of Taylor’s conduct.

Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract 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).)

A “supervisor” under FEHA means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (Gov. Code § 12926, subd. (t).)

A hostile work environment claim requires the following elements: (1) the plaintiff belongs to a protected group; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment complained of was based on protected status; (4) the harassment complained of was sufficiently pervasive to alter the conditions of employment and create an intimidating, hostile or offensive work environment; and (5) defendants are liable for the harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)

It is an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code § 12940, subd. (k).) To establish this claim, a plaintiff must establish the defendant’s legal duty of care, breach of duty, legal causation, and damages to the plaintiff. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 286-87.) Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 701.) The measures need to include immediate corrective action that is reasonably calculated to: (1) end the current harassment; and (2) deter future harassment. (Id.)

Taylor was initially hired as a bus operator before becoming a “Road Supervisor” in 2018. (See UMF 2.) For a limited time, road supervisors had the authority to issue discipline to bus operators. (Declaration of Ray E. Boggess (“Boggess Decl.”) ¶5, Exhibit C at 160:8-11.) In late 2018, the Road Supervisors at Transdev’s Lancaster facility wanted to join the Teamsters Local 848 (the “Union”). (UMF 3.) Because the Union had a policy that bargaining unit members could not have authority to supervise or discipline other bargaining unit members, the “Road Supervisor” position was dissolved and transmuted into a new “Quality Controller” position. (UMFs 4-5.) Quality Controllers were not authorized to have access to personnel files or issue discipline; instead, Quality Controllers responded to incidents in the field, prepared reports based on their observations, and provided this information to the Operations Supervisors or Safety and Training Team for their consideration regarding any potential discipline and/or required trainings. (See UMFs 7, 9-10, 16.) Quality Controllers periodically performed bus operators’ re-trainings if instructed to do so by the Safety and Training Team. (UMF 11.) Quality Controllers had no authority to hire, suspend or terminate employees, or to determine employee pay. (UMFs 17-18.) Nor did Quality Controllers have the authority to control drivers’ schedules or routes. (UMF 20.)

During her employment, Plaintiff reported to Operation Supervisors Ashley Robinson (“Robinson”) and Aitor Urionabarranechea (“Urionabarranechea”). Robinson oversaw Plaintiff’s work schedule. (UMF 25.) Plaintiff received disciplinary action and attendance notifications from Robinson and Urionabarranechea. (See UMF 29.) Safety and Training Manager William Jackson, Jr. (“Jackson”) determined that the retraining that occurred on July 14, 2019 was necessary. (UMF 32.)

All employees were provided a copy of Transdev’s Employee Handbook and Unlawful Harassment Policy. (UMF 34.) These documents provided information on unlawful harassment and how to report it. (UMF 36.) Transdev employees, including Plaintiff and Taylor, underwent sexual harassment prevention trainings when they were hired and at least on an annual basis thereafter. (UMF 38.)

On or about May 8, 2019, HR received a complaint of inappropriate sexual comments made by Taylor in the workplace from another employee. (UMF 40.) Luz Perkins (“Perkins”) thereafter began investigating the complaint. (UMF 41.) During the investigation, Perkins interviewed the complainant, and several witnesses. (See UMFs 42-43.) Perkins ultimately found that the complaint was unsubstantiated. (UMF 44.)

The morning of July 15, 2019, Plaintiff notified HR of her assault. (UMF 46.) That morning, Taylor was sent home, placed on investigative leave, and provided with a form to allow him to respond to Plaintiff’s allegations. (UMF 48.) Perkins began conducting an investigation of the allegations. (UMF 49.) Taylor resigned by email on July 17, 2019 without returning to work or completing the form. (UMF 50.) Perkins ultimately determined that she had insufficient evidence to conclude whether a sexual assault had occurred because Taylor never provided his side of the story. (UMF 52.)

The Court finds that Transdev has satisfied its burden to show that Taylor was not Plaintiff’s supervisor. Plaintiff’s evidence to the contrary is insufficient to raise an issue of fact. Plaintiff’s opposition (the “Opposition”) selectively emphasizes portions of Taylor’s testimony wherein he states that his job responsibilities did not change when his job title changed from Road Supervisor to Quality Controller, but ignores the qualifying testimony that he never had authority to discipline employees.[1]

Plaintiff argues that Taylor identified himself as a supervisor and points to the “coaching forms” filled out by Taylor that identify him as a supervisor. (See, e.g., Marx Decl., Exhibit K.) However, the evidence contained in both the Transdev Motion and Opposition indicates that these forms were outdated and had not been updated to include the proper nomenclature. Plaintiff does not provide evidence that these forms were the product of a nonclerical exercise of supervisory authority or that they were disciplinary in nature. Plaintiff fails to draw a distinction between the form describing Taylor as a “supervisor” and actual job responsibilities that place his job within the ambit of a FEHA supervisory role. Plaintiff’s argument that Taylor exercised control over her schedule when he interrupted her shift to perform the training on July 14, 2019 is also unavailing because Plaintiff does not present evidence to dispute that Taylor was sent by Jackson to implement the training.

Plaintiff’s argument that Taylor was an “ostensible” supervisor, based on the foregoing facts, is likewise unavailing because she has not presented evidence that Taylor actually carried out supervisory authority that was ratified by Transdev. The Court therefore finds that Plaintiff has not raised a triable issue of fact as to whether Taylor was a supervisor at the time of the assault.

Nor is there evidence that Transdev knew or should have known of Taylor’s conduct. While a complaint had been filed by another employee in 2019 regarding an inappropriate remark made by Taylor, the previous complaint did not concern Plaintiff and was promptly investigated by Transdev. Plaintiff’s arguments concerning the scope, effectiveness, and outcome of the investigation are not supported by a factual record that the investigation was improper or negligently conducted. When Plaintiff informed Transdev of Taylor’s conduct, Transdev immediately placed Taylor on leave and opened an investigation. Plaintiff does not dispute Transdev’s evidence that it provided sexual harassment training and information as to how to lodge complaints to its employees. The Court thus finds that there are no triable issue of fact that negligence by Transdev is a basis for holding it liable for Taylor’s conduct. The Court therefore GRANTS the Transdev Motion in its entirety.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] During his deposition, Taylor testified that he never had authority to discipline employees. (See, e.g., Marx Decl., Exhibit A at 64:18-20.)