Judge James A. Mangione, Case 37-2021-00034254-CU-WT-CTL 2023-09-08 Tentative Ruling

Judge: James A. Mangione, Case: 37-2021-00034254-CU-WT-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023 09:00:00 AM C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2021-00034254-CU-WT-CTL KUCZEWSKI VS THE SALK INSTITUTE FOR BIOLOGICAL STUDIES SAN DIEGO CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant The Salk Institute for Biological Studies, San Diego, California's Motion for Summary Adjudication is granted.

A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.' (CCP § 437c(f)(1).) 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. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If satisfied, the burden shifts to the opposing party to make his or her own prima facie showing of the existence of a triable issue of fact. (Id.) 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' (Id.) As an initial matter, the Court exercises its discretion to grant Defendant's motion for summary adjudication based on Plaintiff's failure to reference any evidence in his separate statement in opposition. (See CCP §437c(b)(3) ('Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.').) However, even if the Court excused this error, summary adjudication is warranted on the merits.

Disparate Treatment Discrimination Claims for discrimination under FEHA are analyzed under the McDonnell-Douglas test. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) 'The specific elements of a prima facie case [of discrimination] may vary depending on the particular facts. [Citations.] 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.) 'On a defense motion for summary judgment against a disparate treatment claim, the defendant must show either that one of the[] elements [of Plaintiff's prima facie case] cannot be established or that there were one or more legitimate, nondiscriminatory reasons underlying the adverse employment action.' (Jones, 152 Cal.App.4th at 1379.) If Defendant satisfies this burden, the burden shifts back to Plaintiff to rebut the proffered reasons or show that they are merely pretexts for discrimination. (Id.) Calendar No.: Event ID: TENTATIVE RULINGS

2971546 12 CASE NUMBER: CASE TITLE: KUCZEWSKI VS THE SALK INSTITUTE FOR BIOLOGICAL 37-2021-00034254-CU-WT-CTL Here, Defendant has shown that there are no material factual disputes as to Plaintiff's inability to make a prima face showing of discrimination. The initial email from SRF was not targeted to any particular individual and did not make any disparaging comments about a particular race. While Plaintiff may have disagreed with the content of the SRF email, it was not objectively discriminatory or harassing. Plaintiff attempts to show discriminatory treatment by citing to email responses from colleagues calling out his comments as 'white privilege' and criticizing him for passing judgment 'as a white man' as evidence of discrimination. However, there is no evidence from Plaintiff showing that any official action by Defendant was related to his race. Furthermore, Defendant has shown legitimate, nondiscriminatory reasons for Plaintiff's termination. As these very emails show, Plaintiff's email was divisive, and Defendant has produced evidence showing its decision to put Plaintiff on paid administrative leave during the investigation was based on the discord the email caused among staff. Finally, Plaintiff was offered the ability to return to work following the third-party investigation. It was Plaintiff's conduct and communications relating to the Investigation Report and his refusal to sign the report that ultimately resulted in his termination. Therefore, Defendant is entitled to summary adjudication on this claim.

Harassment Plaintiff's harassment claim must allege that he (1) is a member of protected classes; (2) was subjected to unwelcome harassment (3) based on his membership in those classes; and (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment. (Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 876 (2010).) '[T]he harassment complained of must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment' to such a degree that it would interfere 'with a reasonable employee's work performance.' (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130 (quotation marks omitted 'Harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.' (Id. at 130-31.) Here, the SRF email and subsequent replies were limited to a single workday and were not inherently offensive or discriminatory. As a matter of law, this is insufficient to support a claim for harassment, and Defendant is entitled to summary adjudication on this claim.

Retaliation for Opposing Discrimination Claims for retaliation under FEHA are analyzed under the McDonnell-Douglas test. (See (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.) To establish a prima facie case of retaliation under FEHA, Plaintiff must show: (1) they engaged in a protected activity; (2) they were thereafter subjected to an adverse employment action as a result; and (3) there was a causal connection between the two. (See Cal. Gov't Code § 12940(h); Yanowitz v. L'Oreal (2005) 36 Cal.4th 1028, 1044.) Under a FEHA retaliation claim, a 'protected activity' is either (1) opposition to any practices forbidden by FEHA, or (2) filing a complaint, testifying, or assisting in any proceeding relating to a FEHA complaint. (Cal. Govt. Code § 12940(h).) Here, there is no evidence that Plaintiff engaged in a protected activity. Therefore, Defendant is entitled to summary adjudication on this claim.

Failure to Prevent The elements for failure to prevent harassment and/or discrimination are (1) plaintiff was subjected to harassment and/or discrimination in the course of employment; (2) defendant failed to take all reasonable steps to prevent the harassment and/or discrimination; (3) plaintiff was harmed; and (4) defendant's failure to take all reasonable steps to prevent harassment and/or discrimination was a substantial factor in causing plaintiff's harm. (CACI 2527; Govt. Code § 12940(k).) As discussed above and in the Court's concurrent ruling on Defendant's Motion for Judgment on the Pleadings, Plaintiff was not subjected to any harassment or discrimination. Therefore, Defendant is entitled to summary adjudication on this claim.

-- Defendant's Motion for Judgment on the Pleadings is granted.

Disparate Impact Discrimination Plaintiff alleges disparate impact discrimination in violation of Government Code § 12940(c). However, this statute only applies to individuals undergoing apprenticeships or other unpaid work experiences.

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2971546 12 CASE NUMBER: CASE TITLE: KUCZEWSKI VS THE SALK INSTITUTE FOR BIOLOGICAL 37-2021-00034254-CU-WT-CTL Plaintiff has alleged that he was employed by Defendant; consequently, the statute does not apply to him. Therefore, judgment on the pleadings is granted on this claim.

Retaliation for Reporting Discrimination To survive a demurrer for unlawful retaliation pursuant to FEHA, Plaintiffs must allege: (1) they engaged in a protected activity; (2) they were thereafter subjected to an adverse employment action as a result; and (3) there was a causal connection between the two. (See Cal. Gov't Code § 12940(h); Yanowitz v. L'Oreal (2005) 36 Cal.4th 1028, 1044.) Under a FEHA retaliation claim, a 'protected activity' is either (1) opposition to any practices forbidden by FEHA, or (2) filing a complaint, testifying, or assisting in any proceeding relating to a FEHA complaint. (Cal. Govt. Code § 12940(h).) The Second Amended Complaint fails to allege that Plaintiff engaged in a protected activity. Therefore, judgment on the pleadings is granted on this claim.

Aiding and Abetting Discrimination This claim is derivative of Plaintiff's other discrimination claims. However, as discussed above and in the Court's concurrent ruling on Defendant's Motion for Summary Adjudication, Plaintiff was not subjected to discrimination. Therefore, Judgment on the Pleadings is granted on this cause of action.

All requests for judicial notice are granted. All evidentiary objections are overruled.

The minute order is the order of the Court.

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