Judge Jill Feeney, Case Number: 20STCV32246, Date: 2023-06-20 Tentative Ruling

Plaintiff Adrian Meza (“Plaintiff”) is a Hispanic male. (FAC ¶ 6.) Plaintiff began working for defendant the Regents of the University of California (“Regents”) in October 2004. (FAC ¶ 7.) On July 1, 2017, Plaintiff was promoted to Administrative Analyst I as Director of Alumni, Finance & Business Partnerships. (FAC ¶ 10.)

On September 7, 2018, Plaintiff went to lunch with non-party Christina Chase (“Chase”), who was Plaintiff’s friend and coworker. (FAC ¶ 11.) At that lunch, Plaintiff expressed some displeasure at the lack of time he had to train his employees, and frequent interruptions during the workday. (FAC ¶ 12.) Shortly thereafter, Plaintiff went on vacation. (FAC ¶ 13.)

When Plaintiff returned from his vacation, he was called into a meeting with Chase, non-parties Lea Howe and Amanda Keene, and defendant Julie Sina (“Sina” and together with Regents, “Defendants”). (FAC ¶ 13.) At that meeting, Plaintiff was informed that he was being moved to a “lower level data entry position” in Gift Services because he was unhappy with his current placement. (FAC ¶ 14.) On October 1, 2018, Plaintiff was moved to that position. (FAC ¶ 15.) Plaintiff was extremely upset with this new position and took a leave of absence. (FAC ¶ 16.) When Plaintiff returned, he was moved from his large office to a smaller, open cubicle space. (FAC ¶ 17.)

Plaintiff alleges his demotion was due to his race and heritage, and in retaliation for him making protected comments about his workplace. (FAC ¶ 18.) Sina, who was Plaintiff’s supervisor, had a history of demoting, terminating, or replacing employees of color. (FAC ¶ 20.) Sina would transfer employees of color to positions with the same pay, but with less responsibility, thereby reducing their chance for future promotion. (FAC ¶ 21.) While forty percent of the workforce is white, ninety percent of the movement within the department are people of color. (FAC ¶ 22.)

After Plaintiff filed a complaint with HR, a factfinder found that Plaintiff’s move to his new position constituted an adverse employment action and recommended that Plaintiff’s job description be reviewed so as to match the level of complexity and responsibility of his former position. (FAC ¶ 27.)

On January 7, 2020, Sina attended a meeting regarding upcoming scholarship models and fiscal management. (FAC ¶ 31.) Plaintiff had created models regarding those subjects the previous year, but Sina denied that he had. (FAC ¶ 32.) Sina continued to deny that Plaintiff had created the models after others in the meeting confirmed that he had. (FAC ¶ 33.)

Plaintiff filed a second complaint with HR regarding Sina’s denials. (FAC ¶ 35.) Plaintiff alleges that Sina’s denials significantly reduced his chances of being hired in the Financial Aid department, where he hoped to work. (FAC ¶ 36.)

Plaintiff remained in his position in Gift Services from 2018-2020. (FAC ¶ 37.) Plaintiff felt that Sina was harassing him by occupying spaces where she knew Plaintiff would be present. (FAC ¶ 39.) Because of this harassment, and the Regents’ failure to prevent it, Plaintiff was forced to take a medical leave of absence in November, 2020. (FAC ¶ 40.) Plaintiff resigned in March, 2021. (FAC ¶ 41.)

On January 18, 2023, Plaintiff filed an Ex Parte Application to Continue the Hearing on Defendants’ Motion for Summary Judgment such that Plaintiff could adequately prepare an Opposition. Plaintiff’s Opposition was set to be due on January 23, 2023. The Court granted Plaintiff a continuance and allowed him to file his Opposition on March 8, 2023.

On March 7, 2023, Plaintiff filed a Second Ex Parte Application to Continue the Hearing on Defendants’ Motion for Summary Judgment, Trial, and Related Dates such that Plaintiff could adequately prepare an Opposition. The Court again granted Plaintiff a continuance and allowed him to file his Opposition on April 14, 2023.

On May 12, 2023, Plaintiff filed a third Ex Parte Application to Continue the Hearing on Defendants’ Motion for Summary Judgment, Trial, and Related Dates such that Plaintiff could adequately prepare an Opposition. This application was filed nearly a month after Plaintiff’s Opposition was due. The Court again granted Plaintiff’s request and ordered Plaintiff to file his Opposition on the date of hearing, May 15, 2023.

On May 22, 2023, Plaintiff filed his Opposition. His Opposition was filed four months after it was initially due, and one week after his Court ordered deadline. In addition, his Opposition was 28 pages long in violation of California Rules of Court rule 3.1113(d). Finally, his Opposition contained over 400 pages of documentary evidence, but this evidence was not separately bound and did not contain a table of contents in violation of California Rules of Court rule 3.1350(g).

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.)

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).) 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.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

Accordingly, Defendants’ Motion for Summary Adjudication of the Fourth Cause of Action for Harassment on the Basis of Race, Fifth Cause of Action for Failure to Promote, and Seventh Causes of Action for Intentional Infliction of Emotional Distress are GRANTED.

Government Code section 12940 provides that it is unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment on the basis of among other things race, ancestry, sex, gender, or sexual orientation. (See Govt. Code, § 12940(a).)

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

Here, Defendants contend that Plaintiff cannot make a prima facie case for race discrimination as he has presented no admissible evidence demonstrating that Sina had a discriminatory motive or intent in transferring Plaintiff, or that Plaintiff’s voluntary resignation constitutes an adverse employment action.

Defendants note that Sina served as Plaintiff’s reference when he applied for a position in Sina’s department, approved his hiring, and later approved his promotion to Director. (UMF 7-10, 12.) Defendants note that, where the same defendant who is accused of racial motivation both hires and fires plaintiff, a strong inference arises that there was no discriminatory motive. (Horn v. Cushman & Wakefield W., Inc. (1999) 72 Cal.App.4th 789, 809.)

In Opposition, Plaintiff argues that Sina’s racially discriminatory motive can be established through “me too” evidence. Me too evidence, in the FEHA context, is evidence demonstrating that an employer engages in a pattern of animus toward a protected class, thereby implying racial animus against the individual plaintiff. Evidence of an employer’s discriminatory attitude in general is admissible to prove animus. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 110.)

Here, in his declaration, Plaintiff alleges that six employees of color; George Brown, Marcia Campbell, Stephanie Bradford, Ashley Love-Smith, Leonel Ibarra, and Rex Delos Santos; were reassigned by Sina into positions of lesser import. (Meza Decl. ¶ 24.) However, as noted in the evidentiary objections, the only evidence that Brown, Campbell, Bradford, Ibarra, and Delos Santos were demoted based on their race is Meza’s own declaration, which is based entirely on inadmissible hearsay and speculation. (Defendants’ Objection Numbers 3-11.)

Plaintiff does provide declarations from two employees of color that were formerly supervised by Sina, Stephanie Bradford and Ashley Love-Smith. Both attest that Sina laterally transferred them to a position of less responsibility, and that much of their responsibilities were transferred to Caucasian employees. (See Bradford Decl. ¶¶ 9-12; Love-Smith Decl. ¶¶ 9-12.)

Defendants note that neither Bradford nor Love-Smith are Hispanic. Defendants contend that their declarations are therefore inadmissible, as Plaintiff alleges he was discriminated against based on his Hispanic heritage. (FAC ¶ 6.) Defendants cite Hatai v. Department of Transportation (2013) 214 Cal.App.4th1287 in support of their argument.

In Hatai, plaintiff brought an employment discrimination case against defendant employer, alleging that he was discriminated against based upon his Japanese ancestry and Asian race. Plaintiff attempted to show his supervisor’s racial animus using me too evidence of other employees of color who asserted they had been discriminated against. The trial court allowed plaintiff to introduce only such evidence that demonstrated anti-Asian discrimination specifically. The jury found in defendant’s favor.

Plaintiff filed a motion for new trial on the grounds that it was error to exclude evidence showing an overall context of discrimination, and that the court should have admitted evidence of defendant’s discrimination with respect to other employees who were not of Japanese or Asian descent. The trial court denied that motion.

[Plaintiff alleges he] is a person of ‘Asian or Japanese race or national origin or ancestry,’ and [] he suffered discrimination, harassment and retaliation on the basis of his national origin and/or race. Thus, the ‘me-too’ doctrine entitled Hatai to present evidence that other employees at [employer] of east Asian or Japanese descent had been subjected to similar discrimination. However, given the nature of [plaintiff’s] lawsuit, the ‘me-too’ doctrine did not entitle [plaintiff] to present evidence of discrimination against employees outside of Hatai’s protected class to show discrimination or harassment against Hatai.

Thus, the trial court properly exercised its discretion under Evidence Code section 352 to exclude the proffered evidence on the ground its probative value was outweighed by undue prejudice or the consumption of time that would have been taken up by the issue. The trial court properly refused to entertain a series of mini-trials on issues of tangential relevance relating to employees outside of Hatai's protected class. (Hatai at pp. 1297-98.)

Here, Plaintiff submits declarations from two employees of color, neither of whom are Hispanic. (Bradford Decl. ¶ 3; Love-Smith Decl. ¶ 3.) In his Opposition, Plaintiff alleges that the Complaint does not allege just anti-Hispanic discrimination, but that “the protected class is employees of color or underrepresented minorities.” (Opposition at p. 20.) Plaintiff cites to paragraphs 18-22 of the First Amended Complaint to support this proposition.

The First Amended Complaint states that “Plaintiff was subjected to harassment and discrimination on the basis of his Hispanic heritage, as well as retaliation for making protected complaints of harassment and discrimination.” (FAC ¶ 18.) Plaintiff does make broader allegations about the treatment of employees of color vs. the treatment of Caucasian employees by Sina. (FAC ¶ 18-22.)

Apart from this me-too evidence, the only evidence that Plaintiff proffers demonstrating racial animus is a statement Sina allegedly made to Plaintiff. Plaintiff alleges that Sina called Plaintiff into her office, and “stated that she had seen a sign over weekend that stated, ‘Whites Only For Wine’ and she was tempted to purchase it, but ultimately did not think it was a good idea.” (Meza Decl. ¶ 7.)

As Defendants note in Reply, Plaintiff has produced no evidence showing that it was Sina, rather than Plaintiff’s supervisor Lea Howe, who decided to reassign Plaintiff. (UMF 24, 27.) Plaintiff does not allege any discrimination on Howe’s part. Both Howe and Sina attest that it was Howe who made the decision to restructure which led to the change in Plaintiff’s position, and Sina merely approved that decision. (Sina Decl. ¶ 16; Howe Decl. ¶ 16.) Plaintiff does not allege that Howe engaged in discriminatory conduct. Rather, Plaintiff contends that Howe supported him, hired him, and gave him good reviews. (PUMF 3,7,8,9.)

Moreover, Plaintiff produces no admissible evidence demonstrating that it was Sina who made the decision to reassign him. (Plaintiff’s Response to Defendant’s Separate Statement 24, 25 citing to paragraphs 16 through 24, 55 and 56 of Plaintiff’s Declaration, as well as exhibit P.) Neither the declaration nor the attached exhibit P contain admissible evidence demonstrating that there is a genuine issue of material fact as to whether Sina, as opposed to Howe, made the decision to reassign Plaintiff. The Court notes that the liability of the entity defendant is based on the alleged actions of Sina.

Defendants move for summary adjudication of the Second Cause of Action for Retaliation in Violation of Government Code Section 12940(h), and the Sixth Cause of Action for Retaliation in Violation of Labor Code 1102.5. As Plaintiff combines these causes of action in his Opposition, the Court will consider Plaintiff’s retaliation claims together here.

To establish retaliation under FEHA, a plaintiff must show that “(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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043; see also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.)

“Creation or tolerance of a hostile work environment for an employee in retaliation for the employee’s complaining about prohibited conduct is an adverse employment action within the meaning of [Government Codes] section 12940(h).” (Kelley, supra, 196 Cal.App.4th at 210.)

Here, Plaintiff contends that his resignation constitutes a constructive termination, and that his constructive termination was in retaliation for his filing of two complaints with HR regarding his allegations of Sina’s racial animus. The Court notes that these complaints were filed after Plaintiff’s reassignment to his new position, so that adverse employment action could not have been in retaliation for Plaintiff’s complaints.

“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” (Id. at p. 1246.)

Defendants disingenuously argue that Mr. Meza was merely reassigned to a role with “fewer supervisory duties” but with the same pay, and as such that is not an intolerable work environment. Had this merely been the case, perhaps there would have been a stronger argument for Defendants, although it would have still ultimately failed. Here, Mr. Meza was not merely afforded “fewer supervisory duties”, all supervisory and management duties had been completely eliminated. Furthermore, Defendants clearly ignore the unavoidable fact that Mr. Meza’s job duties previously held which primarily utilized his skill set in finance and accounting had also been eliminated, and his new position reduced his duties to menial data entry tasks. As the Factfinder put it, such an adverse action to Mr. Meza’s employment “impairs” his promotional opportunities and “stales” his core skills. Even his former supervisor Ms. Howe, would find it “surprising” that Mr. Meza would not be engaged in duties that utilized his finance and accounting background, as those were considered his core skills. (Opposition at p. 18.)

As noted above, Plaintiff was reassigned to his lesser role before Sina became aware of Plaintiff’s complaints. Plaintiff argues that his resignation was a constructive termination because the conditions of this new role were intolerable; but those conditions existed before his complaints, and therefore could not be in response to them.

Additionally, Plaintiff argues that Sina offered to promote Plaintiff to a sham director’s role that was really an executive assistant in response to the factfinder’s finding that Plaintiff should be placed in a role that better matches his skills. (SSAF 63.) However, the Court cannot find that Defendants’ offering of a promotion that Plaintiff rejected somehow created intolerable working conditions.

Government Code section 12940(k) provides that it is an 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.” (Govt. Code, § 12940(k).)

As Plaintiff has not successfully survived summary judgment with respect to the cause of action for discrimination or harassment, Plaintiff’s Motion for Summary Adjudication of the Fourth Cause of Action for Failure to Prevent Discrimination and Harassment is GRANTED.