Judge Holly J. Fujie, Case Number: 22STCV16192, Date: 2024-05-31 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This is a wrongful termination action. On March 8, 2023, Plaintiff Ramez Wissa (“Plaintiff”) filed the operative Third Amended Complaint (“TAC”) against Defendants Deloitte Consulting LLP (“Deloitte”); Brett McCoy (“McCoy”) (collectively, “Defendants”); and Does 1 through 20, inclusive for: (1) Employment Discrimination in Violation of FEHA (Gov. Code §12940(a)); (2) Failure to Accommodate in Violation of FEHA (Gov. Code §12940(m)); (3) Failure to Engage in a Timely & Good Faith Interactive Process in Violation of FEHA (Gov. Code §12940(n)); (4) Harassment in Violation of FEHA (Gov. Code §12940(j)); (5) Retaliation in Violation of FEHA (Gov. Code §§12940(h)(m)); (6) Failure to Prevent/Remedy Discrimination, Harassment and/or Retaliation in Violation of FEHA (Gov. Code §12940(k)); (7) Wrongful Discharge in Violation of Public Policy; and (8) Intentional Infliction of Emotional Distress.

On November 17, 2023, Defendant Deloitte filed the instant Motion for Summary Judgment (the “Motion”). On May 17, 2024, Plaintiff filed an opposition to the Motion and on May 24, 2024, Defendant Deloitte filed a reply.

In support of the moving papers, Defendant Deloitte submits an Appendix of Evidence. Plaintiff objects to portions of the Declaration of Alicia Carberry attached as Exhibit C and Exhibit 28. The Court rules on the objections as follows:

In support of the opposition, Plaintiff submits an Exhibit List. Defendant Deloitte objects to exhibits attached to the Declaration of Jonathan Ebrahimian, portions of the Declaration of Ramez Wissa, certain portions of the Declaration of Karem Takla, and certain portions of the Deposition of Alicia Carberry. The Court rules on the objections as follows:

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.) The Code of Civil Procedure § 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿¿

As to each cause of action as framed by the complaint, the defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2); see also 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.)¿¿

Defendant Deloitte moves for an order granting summary judgment, or alternatively, summary adjudication of the first, second, third, fifth, sixth, and seventh causes of action[1] of the TAC on the ground that they fail as a matter of law.

Government Code section 12940, subdivision (a) states in relevant part, “[i]t is unlawful employment practice…[f]or an employer, because of the…physical disability, mental disability…of any person…to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)

“Generally, the plaintiff must provide evidence that (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.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

Defendant Deloitte contends there is no evidence linking Plaintiff’s three-day hospitalization in July 2019 or alleged disability to his termination.

Here, the proffered declarations of Brian Siegel, Alicia Carberry, Jacob Gustafson, Bard Woltman and Andrew Satenberg; Deloitte Code of Ethics and Professional Conduct; Plaintiff’s Responses to Form Interrogatories; Office of Security Incident Report; Security Badge Report; and TAC are sufficient to satisfy Defendant Deloitte’s initial burden to show that a triable issue of material fact does not exist as to whether Plaintiff was discharged and discriminated against because of his July 2019 hospitalization and disability. The proffered evidence suggests that Plaintiff’s supervisor did not prohibit Plaintiff from being assigned on client engagements due to any hospitalization or any disability. The evidence further mentioned a medical issue but did not give details about his condition. The evidence proffered also indicates that Plaintiff was discharged due to purported theft of Deloitte’s property.

The burden now shifts to Plaintiff to show that a triable issue of material fact does exist as to whether Plaintiff was discharged and discriminated against because of his July 2019 hospitalization and disability. Plaintiff has not, however, shown that a triable issue of material fact does exists as to whether he was discharged and discriminated against because of his disability. The proffered evidence merely demonstrates that Defendant Deloitte was informed about Plaintiff’s hospitalization in 2019 due to medical issues, not the specifics of why he was hospitalized or his disability. The proffered evidence further simply indicates that Plaintiff notified HR he needed further accommodations for relocation to California. Also, the proffered evidence merely suggests that Plaintiff was actively trying to get on projects and providing updates to his supervisor on the status of those projects. As such, Plaintiff has not provided substantial responsive, admissible evidence beyond speculation to support the first cause of action.

Therefore, the motion for summary judgment as to the first cause of action is GRANTED.

Government Code section 12940, subdivision (m) states in relevant part, “[i]t is unlawful employment practice…[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940, subd. (m)(1).)

Defendant Deloitte contends that it granted the exact accommodations Plaintiff requested, which was time-off during his hospitalization and to relocate to California.

Here, proffered declarations of Brian Siegel, Alicia Carberry, Jacob Gustafson, Bard Woltman, and Andrew Satenberg; Deloitte Code of Ethics and Professional Conduct; Plaintiff’s Responses to Form Interrogatories; emails exchanges between staff and Plaintiff; and TAC are sufficient to satisfy Defendant Deloitte’s initial burden to show that a triable issue of material fact does not exist as to whether it failed to make reasonable accommodations for Plaintiff’s known disability. The evidence proffered indicates it is common for a consultant to be unassigned to client engagements/projects for a period of time. The evidence also demonstrates the consultant is paid full salary and benefits even when unassigned. The proffered evidence also indicates that multiple staff members worked to get Plaintiff on projects. Furthermore, the proffered evidence showcases that Plaintiff was granted relocation to California. Similarly, the evidence indicates Plaintiff was given time-off due to hospitalization. The proffered evidence further suggests that Plaintiff did not disclose his medical condition, disability, or reason for being hospitalized.

The burden now shifts to Plaintiff to show that a triable issue of material fact does exist as to whether Defendant Deloitte failed to make reasonable accommodations for Plaintiff’s known disability. Plaintiff has not, however, shown that a triable issue of material fact does exist as to whether Defendant Deloitte failed to make reasonable accommodations for Plaintiff’s known disability. The proffered evidence indicates that Defendant Deloitte was only informed that Plaintiff was hospitalized with serious medical issues. Furthermore, the evidence does not indicate that Plaintiff formally requested time-off due to hospitalization and was denied. Moreover, the evidence suggests that Plaintiff requested relocation to California and it was approved. As such, Plaintiff has not provided substantial responsive, admissible evidence beyond speculation to support the second cause of action.

Therefore, the motion for summary judgment as to the second cause of action is GRANTED.

Government Code section 12940, subdivision (n) states in relevant part, “[i]t is unlawful employment practice…[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).)

As discussed above, Defendant Deloitte contends Plaintiff cannot show that it failed to engage in the interactive process because it granted the exact accommodations requested by Plaintiff.

Here, proffered declarations of Brian Siegel, Alicia Carberry, Jacob Gustafson, Bard Woltman, and Andrew Satenberg; Deloitte Code of Ethics and Professional Conduct; Plaintiff’s Responses to Form Interrogatories; emails exchanges between staff and Plaintiff; and TAC are sufficient to satisfy Defendant Deloitte’s initial burden to show that a triable issue of material fact does not exist as to whether it failed to engage in a good faith interactive process with Plaintiff in response to his request for reasonable accommodations. The proffered evidence showcases Plaintiff expressed interest in working on a project in California. The evidence also demonstrates that Plaintiff’s request for relocation to California was granted. The evidence proffered further suggests that Plaintiff was given time off for his hospitalization.

The burden now shifts to Plaintiff to show that a triable issue of material fact does exist as to whether Defendant Deloitte failed to engage in a good faith interactive process with Plaintiff in response to his request for reasonable accommodations. Plaintiff has not, however, shown that a triable issue of material fact does exist as to whether Defendant Deloitte failed to engage in a good faith interactive process with Plaintiff in response to his request for reasonable accommodations. As explained above, the proffered evidence demonstrates that Plaintiff requested relocation in July 2019. The proffered evidence also indicates this request was approved. Moreover, the proffered evidence showcases that Plaintiff only informed Deloitte staff that he was hospitalized for serious medical issues. The evidence does not suggest Defendant Deloitte denied any request for time-off. As such, Plaintiff has not provided substantial responsive, admissible evidence beyond speculation to support the third cause of action.

Therefore, the motion for summary judgment as to the third cause of action is GRANTED.

Government Code section 12940, subdivision (h) states in relevant part, “[i]t is unlawful employment practice…[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) Also, it is unlawful employment practice “[f]or an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.” (Gov. Code, § 12940, subd. (m)(2).)

“Past California cases hold that in order to establish a prima facie case of retaliation under the 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. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant Deloitte contends the fifth cause of action fails for the reasons set forth above because it is wholly derivative of the first, second and third causes of action. Defendant Deloitte also contends that Plaintiff cannot demonstrate that its legitimate reasons for termination were a pretext for retaliating against Plaintiff based on concerns that he raised about staffing eleven months before.

Here, the proffered declarations of Brian Siegel, Alicia Carberry, Jacob Gustafson, Bard Woltman, and Andrew Satenberg; Deloitte Code of Ethics and Professional Conduct; Plaintiff’s Responses to Form Interrogatories; Office of Security Incident Report; Security Badge Report; and TAC are sufficient to satisfy Defendant Deloitte’s initial burden to show that a triable issue of material fact does not exist as to whether it retaliated against Plaintiff for requesting reasonable accommodations. The evidence proffered indicates staff members tried to get Plaintiff on projects. The proffered evidence further demonstrates that Plaintiff’s request for time-off due to his hospitalization. The evidence also showcases that Plaintiff did not tell anyone at Deloitte what disability is or his reason for being in the hospital. Furthermore, the evidence proffered indicates Plaintiff’s request for relocation to California was granted. Moreover, the evidence suggests that Plaintiff was terminated for purported theft of Deloitte’s property, entering into Deloitte office with approval during the pandemic, and lying to Deloitte’s investigation staff about the alleged incident.

The burden now shifts to Plaintiff to show that a triable issue of material fact does exist as to whether Defendant Deloitte retaliated against Plaintiff for requesting reasonable accommodations. Plaintiff has not shown, however, that a triable issue of material fact does exist as to whether Defendant Deloitte retaliated against Plaintiff for requesting reasonable accommodations. The evidence proffered merely demonstrates Plaintiff was trying to get on projects while waiting for approval of his request for relocation to California. The evidence also indicates that Plaintiff was approved for a project in California. Furthermore, the evidence proffered suggests that Plaintiff was removed from a project because the client was limiting cross-country travel. As such, Plaintiff has not provided substantial responsive, admissible evidence beyond speculation to support the fifth cause of action.

Therefore, the motion for summary judgment as to the fifth cause of action is GRANTED.

Sixth Cause of Action for Failure to Prevent/Remedy Discrimination and/or Retaliation

Government Code section 12940, subdivision (k) states in relevant part, “[i]t is unlawful employment practice…[f]or 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).)

Defendant Deloitte contends the sixth cause of action fails for the reasons set forth above because it is wholly derivative of the first, second and third causes of action.

Here, the proffered declarations of Brian Siegel, Alicia Carberry, Jacob Gustafson, Bard Woltman, and Andrew Satenberg; Deloitte Code of Ethics and Professional Conduct; Plaintiff’s Responses to Form Interrogatories; Office of Security Incident Report; Security Badge Report; and TAC are sufficient to satisfy Defendant Deloitte’s initial burden to show that a triable issue of material fact does not exist as to whether it failed to take all reasonable steps necessary to prevent or remedy discrimination and/or retaliation against Plaintiff. As explained above, the proffered evidence indicates that Deloitte granted the exact accommodations requested by Plaintiff. The evidence further suggests Deloitte staff were not aware of Plaintiff’s disability and the reason he was hospitalized. The evidence proffered also demonstrates Deloitte staff attempted to get Plaintiff on projects and still paid him the full salary and benefits while unassigned to any projects.

The burden now shifts to Plaintiff to show that a triable issue of material fact does exist as to whether Defendant Deloitte failed to take all reasonable steps necessary to prevent or remedy discrimination and/or retaliation against Plaintiff. Plaintiff has not, however, shown that a triable issue of material fact does exist as to whether Defendant Deloitte failed to take all reasonable steps necessary to prevent or remedy discrimination and/or retaliation against Plaintiff. As previously mentioned, Plaintiff proffered no admissible evidence indicating Plaintiff was removed from projects or not assigned projects due to his hospitalization and/or disability. The proffered evidence demonstrate that Defendant Deloitte and staff were not aware of Plaintiff’s disability. The proffered evidence also suggest that Plaintiff was removed from a project because the client was limiting cross-country travel. As such, Plaintiff has not provided substantial responsive, admissible evidence beyond speculation to support the sixth cause of action.

Therefore, the motion for summary judgment as to the sixth cause of action is GRANTED.

“To support a common law wrongful discharge claim, the public policy ‘must be: (1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.’” (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1338.)

Defendant Deloitte contends the seventh cause of action fails for the reasons set forth above because it is wholly derivative of the first, second, and third causes of action.

Here, the proffered declarations of Brian Siegel, Alicia Carberry, Jacob Gustafson, Bard Woltman, and Andrew Satenberg; Deloitte Code of Ethics and Professional Conduct; Plaintiff’s Responses to Form Interrogatories; Office of Security Incident Report; Security Badge Report; and TAC are sufficient to satisfy Defendant Deloitte’s initial burden to show that a triable issue of material fact does not exist as to whether it wrongfully terminated Plaintiff. As previously discussed, the proffered evidence suggests Deloitte staff were unaware of Plaintiff’s disability and reason for being hospitalized. Further, the evidence proffered indicates Plaintiff was terminated due to purported theft of Deloitte’s property, entering Deloitte’s office without approval during the pandemic, and allegedly lying about this conduct.

The burden now shifts to Plaintiff to show that a triable issue of material fact does exist as to whether Defendant Deloitte wrongfully terminated him. Plaintiff has not, however, shown that a triable issue of material fact does exist as to whether Defendant Deloitte wrongfully terminated him. The proffered evidence simply indicates Plaintiff informed Defendant Deloitte and staff about his hospitalization and requested relocation to California. The proffered evidence also merely suggests that Plaintiff was provided approval to enter the Deloitte office in 2020. As such, Plaintiff has not provided substantial responsive, admissible evidence beyond speculation to support the seventh cause of action.

Therefore, the motion for summary judgment as to the seventh cause of action is GRANTED.

As the Court finds that summary judgment is appropriate as to all remaining causes of action of the TAC, the Motion for Summary Judgment is granted in its entirety.

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] On June 9, 2023, the Court granted Deloitte’s Demurrer to the Fourth Cause of Action of the TAC without leave to amend.