Judge Jill Feeney, Case Number: 21STCV41211, Date: 2023-10-17 Tentative Ruling

This is an action for retaliation, disparate treatment, age discrimination, work environment harassment, sexual favoritism, retaliation, and failure to prevent discrimination. Plaintiff Beatriz Guadarrama alleges that she was an officer working for the El Monte Police Department for 25 years. Plaintiff alleges that in 2019, she applied for a lieutenant position which she was qualified for, was denied the position, and was demoted. In 2020, Plaintiff took medical leave to care for her autistic son. Plaintiff alleges that Police Chief Reynoso refused to promote women in the department and reprimanded Plaintiff for taking leave to care for her son. Reynoso also allegedly stated a younger coworker was more dependable and better fit to stay in patrol. After Plaintiff complained to Captain Benjamin Lowry, Lowry advised her to retire and do a job for which women are better suited.

City objects to portions of Plaintiff’s declaration. The objections are OVERRULED. Plaintiff has personal knowledge of the events she described in the declaration. Plaintiff’s testimony regarding the statements made by licensees is not being used for the truth of the licensees’ statements, but to show that Plaintiff heard licensees promising more money. Thus, the testimony is not hearsay.

City repeatedly objected to a portion of Plaintiff’s declaration in its reply separate statement, making it unnecessarily long and cumbersome. This objection should have been made with City’s objections to Plaintiff’s declaration. In any case, the objection is overruled. It does not appear that Plaintiff’s testimony about Betty Donavanik in her declaration is inconsistent with her deposition testimony. Although Plaintiff previously testified that Donavanik never did or said anything Plaintiff believed to be offensive or illegal, Plaintiff’s declaration merely states Donavanik relayed instructions from the City Manager and Mayor which Plaintiff believed were illegal. Thus, Plaintiff believed the instructions themselves were illegal, not Donavanik’s conduct.

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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

A cause of action for a violation of Labor Code Section 1102.5 (whistleblower retaliation) must establish the following elements: (1) a plaintiff engaged in a protected activity; (2) plaintiff’s employer subjected plaintiff to an adverse employment action; and (3) the protected activity was a contributing factor to the adverse employment action. (Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1540; Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 713-714, 718.)

Following this alleged protected activity in April 2019, Plaintiff alleges that she suffered a number of adverse employment actions. (Complaint Paragraphs 21 through Paragraph 30.) The alleged adverse employment actions span in time from July 2, 2019 through and including March 2, 2021.

Courts have ruled that the continuing violation doctrine does not apply where repeated violations each completely accrued, and each had their own government claim presentation deadlines. (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1128.) Willis involved a police officer who filed claims for whistleblower retaliation after he was denied promotions, reassigned to different positions, and was denied transfer requests. (Willis at p.1126.) Although the officer filed a government claim, the claim was untimely as to some of the officer’s denied promotions. (Id.) The court there found that the denied promotions acquired a degree of permanence so as to preclude the application of the continuing violation doctrine because a denied promotion is definitive and final, rather than ongoing retaliatory conduct. (Id.)

Here, Plaintiff alleges that reported what she believed was an unlawful pay-to-play scheme involving City’s marijuana licensing program in April 2019. (Compl., ¶19.) Thereafter, EMPD Chief Reynoso began retaliating by unreasonably reprimanding Plaintiff, giving her a failing score on an interview for a lieutenant position, transferring her out of the administrative sergeant position, and being passed over for other positions. (Compl., ¶¶20-24, 26, 29.) Plaintiff was denied promotions or was demoted in August 2019 and March 2021. (Compl., ¶¶22-23, 29-30.)

“A party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.” (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855.)

Summary adjudication is granted for this cause of action as to any adverse employment action which occurred prior to February 20, 2021. As a practical matter, these leaves the denial of promotion to EMPD Training Manager and Bureau Sergeant for the Community Relations Office within the ambit of this cause of action.

City moves for summary adjudication of Plaintiff’s first cause of action for whistleblower retaliation under Labor Code section 1102.5(b). City argues that (1) Plaintiff was not a whistleblower, (2) Plaintiff did not suffer an adverse employment action, (3) Plaintiff did not make a protected disclosure, (4) there is no causal connection between Plaintiff’s comments about the cannabis program and any denial of a promotion or position, and (5) a personnel management decision cannot be the basis of a retaliation claim.

Section 1102.5 states that “[a]n employer or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information. . . to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation. . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” (Lab. Code, section 1102.5, subd. (b).)

“An employee engages in activity protected by the statute when the employee discloses ‘reasonably based suspicions’ of illegal activity.” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592.) “To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed.” (Id.) The employee is not required to make an express statement that an employer was violating or not complying with a specific state or federal law. (Id at p. 593.) Rather, the employee need only disclose information and reasonably believe the information the information discloses unlawful activity. (Id.)

Plaintiff’s Complaint alleges that she reported an unlawful pay-to-play scheme where a prospective licensee donated $150,000 in order to secure a commercial marijuana license for his business. (Compl., ¶19.) City provides copies of city resolutions dated February 2020 showing application fees and inspection fees were $27,257.62 and $12,696.27. (Donavanik Decl., Exh. 4.) These fees would be allocated to a Community Benefits Program. (Donayanik Decl., ¶4.) However, the donation referenced in Plaintiff’s Complaint far exceeds these fees. City provides no other evidence that Plaintiff did not disclose information she reasonably believed included unlawful activity. It is also unreasonable to infer that Plaintiff can provide no evidence that she engaged in whistleblowing activity.

City argues that Plaintiff did not identify any statutes, rules, or regulations that City violated. However, Plaintiff was not required to make an express statement that City was violating any particular law. Even if City met its burden on this issue, Plaintiff states in her opposition that she reported violations of Penal Code sections 67, 68, 85, and 86, and El Monte City Ordinance No. 2960, which all have to do with bribery. Thus, Plaintiff alleges she reported the $150,000 donation and can point to a statute which may have been violated as required by Labor Code, section 1102.5. A triable issue of material fact remains over whether Plaintiff disclosed information she reasonably believed included unlawful activity.

City argues in one heading that Plaintiff did not engage in protected activity because disclosure of policies that an employee believes to be merely unwise, wasteful, or of gross misconduct are not protected disclosures. However, City does not explain this argument or provide any evidence that Plaintiff’s disclosure was not protected. City fails to meet its burden of proving no triable issue of material fact remains over whether Plaintiff engaged in protected activity.

To establish causation for the purposes of section 1102.5, an employee must demonstrate by a preponderance of the evidence that the employee’s protected whistleblowing was a “contributing factor” to an adverse employment action. (Labor Code § 1102.6; Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712.)

Here, City merely states Plaintiff continues to serve as a patrol sergeant and was assigned as an administrative sergeant between January 1, 2018 and September 30, 2019. City makes a conclusory argument that Plaintiff cannot connect the dots between her report and any adverse employment action. City fails to meet its burden of proving that not triable issue of material fact remains over whether there was a causal link between Plaintiff’s disclosure and any adverse employment action.

City, citing Jones v. The Lodge at Torrey Pines (2008) 42 Cal 4th 1158, argues that the police chief’s decisions regarding promotions and assignments cannot be subject to a retaliation claim. However, Jones concerns whether non-employer individuals may be held liable for retaliation for personnel management decisions. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1167.)

City moves for summary adjudication as to Plaintiff’s causes of action for discrimination based on gender and age. City argues that it had a legitimate, non-discriminatory reason for refusing to promote Plaintiff to the lieutenant position. Specifically, Plaintiff was not promoted to lieutenant because she had the lowest score of all the other candidates.

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 age. (See Govt. Code, § 12940(a).) A prima facie case of age discrimination arises when the employee shows “(1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003.)

To successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.) Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (Id. at 355.)

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.)

Finally, if the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Id.)

On a motion for summary judgment, the moving party must initially show that under the undisputed material facts, (1) one or more elements of plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In other words, the initial burden on summary judgment remains with the moving party at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432.)

Here, Plaintiff alleges that after she reported an unlawful pay-to-play scheme involving City’s marijuana licensing program, Chief Reynoso retaliated against Plaintiff by issuing an unreasonable reprimand to Plaintiff on the same date she was to test for the available lieutenant position. (Compl., ¶21.) Plaintiff also lost her position as Administrative Sergeant and was demoted to patrol sergeant. (Compl., ¶23.) Despite receiving a perfect score with the Civilian Oral Board during the lieutenant selection process, Plaintiff received a failing score with the EMPD Oral Board. (Compl., ¶22.) Chief Reynoso thereafter refused to promote her. (Compl., ¶23.) When Plaintiff questioned why she was not promoted, Chief Reynoso and her supervisor made disparaging comments about her age and gender. (Compl., ¶¶26-28.) Plaintiff applied for two other positions, EMPD Training Manager and Bureau Sergeant for the Community Relations Office in February 2021 and was denied in March 2021. (Compl., ¶¶29-30.)

City provides portions of Reynoso’s deposition transcript. Reynoso testified that the EMPD Oral Board consisted of police captains or commanders from outside agencies. (Reynoso Depo., 50:11-16.) Reynoso did not participate in those panels. (Id., 50:17-18.) At the end of the application process, Reynoso made recommendations to Human Resources and the City Manager based on the candidates’ placement in one of three bands. (Id., 52:2-53:7.) Reynoso only promoted candidates whose combined scores fell in Band 1. (Id., 68:10-21.)

City also provides Reynoso’s declaration. Reynoso testifies that at the time Plaintiff applied for the lieutenant position, there were seven candidates for the position. (Reynoso Decl., ¶9.) Once a candidate passed a written test, they would go through oral boards before panelists from outside agencies and community members. (Id., ¶7.) These panelists were not employed by the City. (Id.) Each candidate receives a numerical ranking after the oral board process. (Id.) Reynoso then interviewed each candidate and assigned a number rating to each candidate. (Id.) Reynoso then reviewed the band rankings with his administrative captains and made recommendations to Human Resources. (Id.) Reynoso testifies that the scores were as follows:

City argues that Plaintiff was not selected to be promoted to the lieutenant position because she did not score high enough to be placed in Band I and scored the lowest compared to the other candidates who applied for the position. The scores show that Plaintiff received a low score on the formal interview which involved personnel from other agencies and who did not work for City. Plaintiff scored the third highest in the Chief’s interview. City contends that City or Reynoso could not have retaliated by manipulating the formal interview score because the panel did not include any city employees.

Additionally, City does not address the other alleged discriminatory acts, such as the March 2021 denied promotions. Because City fails to provide evidence that there was a nondiscriminatory reason for these alleged discriminatory acts, City fails to meet its burden of proving that no triable issue of material fact remains over whether there were nondiscriminatory reasons for the adverse employment actions.

An “employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.) “‘Sexual favoritism’ means that another employee has received preferential treatment with regard to promotion, work hours, assignments, or other significant employment benefits or opportunities because of a sexual relationship with an individual representative of the employer who was in a position to grant those preferences.” (CACI 2521C; Gov. Code, § 12940, subd. (j).)

In Miller, plaintiffs, two female employees, filed a complaint against the Department of Corrections and its director, claiming that the chief deputy warden of the prison accorded unwarranted favorable treatment to numerous subordinate female employees with whom he had sexual relationships. (Miller, supra, at p. 466.) The California Supreme Court upheld their sexual harassment and sex discrimination claims. (Id. at p. 468.) The chief deputy warden’s conduct “constituted sexual favoritism widespread enough to constitute a hostile work environment in which the message was simply conveyed that the managers view women as ‘sexual playthings’ or that ‘the way for women to get ahead in the workplace is by engaging in sexual conduct’ thereby ‘creating an atmosphere that is demeaning to women.’” (Ibid. (quoting EEOC Policy Statement No. N-915-048, § C).)

Here, Plaintiff alleges that in March 2021, Plaintiff was at work with a new haircut when Reynoso put his hand under her hair, touching her neck in an unwelcome manner. (Compl., ¶31.) Reynoso invited Plaintiff to socialize with him and hang out with him during City Council meetings. (Id.)

City argues that there is no evidence of sexual favoritism because there were legitimate business reasons for Plaintiff’s demotion from Administrative Sergeant. However, City fails to provide any evidence refuting Plaintiff’s claim that Reynoso made a sexual advance toward Plaintiff and refused to promote Plaintiff in 2021. Additionally, as will be discussed below, triable issues of material fact remain over whether City’s reasons for demoting Plaintiff were pretextual. Because City provides no evidence over whether there was widespread sexual favoritism at Plaintiff’s workplace or whether sexual favoritism influenced its employment decisions, City fails to meet its burden.

To establish a prima facie case of retaliation under FEHA, Government Code section 12940(h), Plaintiff must prove that “(1) [s]he 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.)¿ To establish a prima facie case of retaliation under Labor Code section 1102.5, “a plaintiff must show that (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal connection between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)¿¿

Specifically, Labor Code, section 12940(h) makes it an unlawful employment practice ‘[f]or any employer ... 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.’” (Yanowitz, 36 Cal.4th at 1042 [italics original].) An employee engages in a protected activity “‘when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381.)¿

The proximity in time between a protected activity and the alleged retaliatory employment decision may be used to make a prima facie showing of a causal link between the protected activity and the retaliatory employment decision. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388.) Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Id at p. 389.) The employee must demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered reasons for its actions that a reasonable factfinder could rationally find the reasons unworthy of credence. (Id.)

Reynoso testified during his deposition that Plaintiff was selected as an Administrative Sergeant in 2018. (Reynoso Depo., 19:8-24.) Plaintiff was involved in the security process of the marijuana licensing program where licensees submitted security plans that EMPD reviewed. (Id., 20:5-14.) At the time Plaintiff was reassigned to patrol duties, EMPD needed a patrol sergeant and City had already ended the marijuana licensing program. (Id., 38:7-39:2.) When the program commenced again in 2020, Reynoso gave the duties related to marijuana licensing to a different sergeant. (Id., 43:10-17.) Reynoso believed those duties could be consolidated and performed by another sergeant who was already working as an administrative sergeant working in community relations. (Id., 44:6-23.)

City also provides various meeting agendas, meeting minutes, and resolutions from the El Monte City Council. However, City’s evidence is unnecessarily voluminous and appears to contain many documents that are illegible or irrelevant to this motion. The documents at best appear to document when City’s marijuana licensing ordinances were established and altered.

City alleges that City Council adopted Ordinance No. 2924, which allowed medical cannabis related businesses to operate in El Monte, on November 8, 2017. (UMF No. 3, Contreras Decl., Exh. 1.) In December 2019, Ordinance No. 2924 was replaced by Ordinance 2960, which altered commercial cannabis regulations and public safety initiatives for the licensing program. (UMF No. 24, Contreras Decl., Exh. 4.) No cannabis licenses were distributed in 2018 because Ordinance 2924 was repealed on December 18, 2018. (UMF Nos. 5, 13, Donavanik Decl., Exh. 1, Contreras Decl., Exh. 3.) City cites only to the exhibits as a whole and did not include the pages containing evidence related to the ordinances.

The ordinances attached to the declaration of Betty Donavanik do not show that Ordinance No. 2924 was ever repealed. (Donavanik Decl., Exh. 1, pdf p. 9, 14-15.) Rather, the only references to repeals include the repeal and replacement of ordinances relating to commercial medicinal cannabis volunteers, zoning, and collectives. None of these alterations appear to repeal the marijuana licensing scheme in its entirety.

Additionally, as Plaintiff points out, the meeting agenda referenced in City’s UMF No. 13 does not state that Ordinance No. 2924 was repealed. Rather, section 13.1 of the agenda states that City Council read and approved an ordinance related to medicinal cannabis that had not yet been codified. (Contreras Decl., Exh. 3, pdf p. 902.) The agenda does not state Ordinance No. 2924 was ever repealed. It appears the ordinance was merely replaced by Ordinance No. 2960 in December 2019. (Donavanik Decl., Exh. 4, pdf p.57.)

City’s proffered reason for Plaintiff’s demotion is that the licensing program she participated in ended sometime in 2018 and when the program was reinstated, the duties were transferred to another sergeant who was already working as an administrative sergeant. Because it does not appear that City’s marijuana licensing program was ever repealed, the stated non-discriminatory reason for Plaintiff’s demotion is false. The inconsistency in City’s reasoning supports a finding that the proffered reason is pretextual. Additionally, Plaintiff was demoted six months after she reported her concerns about the licensing program. The relatively short time between Plaintiff’s report and her demotion also support a finding that City’s reason for the demotion is pretextual. Even if City did meet its burden, Plaintiff provides evidence that she made her report to Reynoso. This, combined with Reynoso’s testimony that he was the one who gave Plaintiff’s licensing duties to another sergeant, also supports a finding that the reason is pretextual because Reynoso was the same person who received the report and made the personnel decision which Plaintiff alleges was retaliatory. Therefore, a triable issue of material fact remains over whether City’s reason for Plaintiff’s demotion was pretextual.

City argues that the cause of action for failure to prevent discrimination and retaliation claim fails because it is derivative of Plaintiff’s other causes of action for discrimination and retaliation. City also argues that it cannot be held liable for failure to prevent discrimination, retaliation, and harassment because Plaintiff never reported any sexual harassment.

The seventh cause of action is for failure to provide an environment free from discrimination and retaliation under Government Code section 12940. (Gov’t Code, § 12940, subd. (k).) “An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’” (Scotch v. Art Inst. of California (2019) 173 Cal.App.4th 986, 1021.)

Here, because the motion is denied with respect to the other cause of action for violations of the FEHA, the motion is denied with respect to this cause of action. Additionally, City provides no authority to support its argument that Plaintiff was required to report sexual harassment. Plaintiff’s claims do not include claims for sexual harassment. Rather, Plaintiff alleges claims for sexual favoritism. There is no requirement that Plaintiff report widespread sexual favoritism before filing a lawsuit.

Reynoso first moves for summary adjudication as to the first cause of action for whistleblower retaliation on the grounds that (1) Labor Code, section 1102.5 does not apply to supervisors and (2) Plaintiff’s claims are time barred. Plaintiff concedes that she inadvertently asserted her first cause of action against all defendants. (Opp., p. 1.) Therefore, the motion is granted as to this cause of action.

Reynoso also provides various meeting agendas, meeting minutes, and resolutions from the El Monte City Council. However, Reynoso’s evidence is unnecessarily voluminous and appears to contain many documents that are illegible or irrelevant to this motion. The documents at best appear to document when the city’s marijuana licensing ordinances were established and altered.

Reynoso alleges that City Council adopted Ordinance No. 2924, which allowed medical cannabis related businesses to operate in El Monte, on November 8, 2017. (UMF No. 3, Contreras Decl., Exh. 1.) In December 2019, Ordinance No. 2924 was replaced by Ordinance 2960, which altered commercial cannabis regulations and public safety initiatives for the licensing program. (UMF No. 24, Contreras Decl., Exh. 4.) No cannabis licenses were distributed in 2018 because Ordinance 2924 was repealed on December 18, 2018. (UMF Nos. 5, 13, Donavanik Decl., Exh. 1, Contreras Decl., Exh. 3.) Reynoso cites only to the exhibits as a whole and did not include the pages containing evidence related to the ordinances.

Additionally, as Plaintiff points out, the meeting agenda referenced in Reynoso’s UMF No. 13 does not state that Ordinance No. 2924 was repealed. Rather, section 13.1 of the agenda states that City Council read and approved an ordinance related to medicinal cannabis that had not yet been codified. (Contreras Decl., Exh. 3, pdf p. 902.) The agenda does not state Ordinance No. 2924 was ever repealed. It appears the ordinance was merely replaced by Ordinance No. 2960 in December 2019. (Donavanik Decl., Exh. 4, pdf p.57.)

Reynoso’s proffered reason for Plaintiff’s demotion is that the licensing program she participated in ended sometime in 2018 and when the program was reinstated, the duties were transferred to another sergeant who was already working as an administrative sergeant. Because it does not appear that the city’s marijuana licensing program was ever repealed, the stated non-discriminatory reason for Plaintiff’s demotion is false. The inconsistency in Reynoso’s reasoning supports a finding that the proffered reason is pretextual. Additionally, Plaintiff was demoted six months after she reported her concerns about the licensing program. The relatively short time between Plaintiff’s report and her demotion also supports a finding that City’s reason for the demotion is pretextual. Even if Reynoso did meet its burden, Plaintiff provides evidence that she made her report to Reynoso. This, combined with Reynoso’s testimony that he was the one who gave Plaintiff’s licensing duties to another sergeant, also supports a finding that the reason is pretextual because Reynoso was the same person who received the report and made the personnel decision which Plaintiff alleges was retaliatory. Therefore, a triable issue of material fact remains over whether Reynoso’s reason for Plaintiff’s demotion was pretextual.

Triable issues of material fact thus remain over whether Reynoso’s reasons for demoting Plaintiff were pretextual. Reynoso fails to provide any evidence refuting Plaintiff’s claim that he made a sexual advance toward Plaintiff and refused to promote Plaintiff in 2021. Because Reynoso provides no evidence over whether there was widespread sexual favoritism at Plaintiff’s workplace or whether sexual favoritism influenced his employment decisions, Reynoso fails to meet its burden.