Judge: Joel R Wohlfeil, Case: 37-2020-00027698-CU-WT-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 10, 2024

01/12/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2020-00027698-CU-WT-CTL MAYFIELD VS AEROTEK INC [E-FILED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/05/2023

The Motion (ROA # 80) of Defendants Aerotek, Inc. ('Aerotek') and Christopher Nelson ('Nelson') (collectively 'Defendants') for an order for summary judgment, or in the alternative, summary adjudication in their favor and against Plaintiff Timeeka Mayfield ('Plaintiff'), is GRANTED IN PART and DENIED IN PART.

The Motion for summary judgment of the Complaint is DENIED.

The alternative Motion for summary adjudication is DENIED to causes of action 1, 2 and 4, the claim for lost wages and the claim for punitive damages. The Motion is GRANTED to cause of action 3.

This ruling is based on the analysis set forth below.

Defendants' Request (ROA # 82) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the date only on which Exh. 'A' was filed with the Court; otherwise, the Request is DENIED.

Plaintiff's objections (ROA # 164) are SUSTAINED.

'Defendants' evidentiary objections (ROA # 167) are OVERRULED IN PART and SUSTAINED IN PART.

the objections are OVERRULED except no. 13 which are SUSTAINED.

1st COA: Sex Discrimination 2nd COA: Pregnancy Discrimination The FEHA makes it 'an unlawful employment practice' for an employer to terminate an employee based on that employee's physical disability, medical condition and sex (among other characteristics).

Government Code 12940(a).

'Sex' is defined to include pregnancy or medical conditions related to pregnancy. Gov. Code 12926(r)(1)(A).

'Disparate treatment' discrimination (as opposed to 'disparate impact' discrimination) is intentional discrimination against one or more persons on prohibited grounds. Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 354, fn. 20.

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2991892 CASE NUMBER: CASE TITLE:  MAYFIELD VS AEROTEK INC [E-FILED]  37-2020-00027698-CU-WT-CTL In a disparate treatment case, liability depends on whether the protected trait actually motivated the employer's decision. Hazen Paper Co. v. Biggins (1993) 507 U. S. 604, 610.

'Whatever the employer's decision-making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome.' Id. However, 'but-for causation' is not the test. University of Texas Southwestern Medical Center v. Nassar (2013) 570 U. S. 338, 343.

'It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision.' Id. California has adopted the three-stage burden shifting test established by the United States Supreme Court for trying claims of disparate treatment discrimination. Guz v. Bechtel National, Inc., supra at 354 (citing McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973)).

Plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. Plaintiff must provide evidence that (1) she was a member of a protected class, (2) she was performing competently in the position held, (3) she suffered an adverse employment action, such as termination, and (4) some other circumstance suggests discriminatory motive. Id. at 355.

If disputed facts exist establishing a prima facie case of discrimination, the burden shifts to the employer to rebut the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. Id. at 355, 356.

The ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Id. at 358.

The employer's true reasons need not necessarily have been wise or correct. Id. If the employer sustains its burden, the presumption of discrimination disappears. Id. at 356.

Plaintiff then has the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. Id. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. Id. The employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them 'unworthy of credence,' and hence infer that the employer did not act for the asserted nondiscriminatory reasons. Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297, 314.

Importantly, the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. Arteaga v. Brink's, Inc. (2008) 163 Cal. App. 4th 327, 343, 344.

In summary judgment proceedings, if the employer presents admissible evidence either that one or more of Plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless Plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.

Id. at 344.

Although the burden of proof in a discrimination action ultimately rests with Plaintiff, in the case of a Calendar No.: Event ID:  TENTATIVE RULINGS

2991892 CASE NUMBER: CASE TITLE:  MAYFIELD VS AEROTEK INC [E-FILED]  37-2020-00027698-CU-WT-CTL motion for summary judgment the burden rests with the moving party to negate Plaintiff's right to prevail on a particular issue. Id. In other words, the burden is reversed in the case of a summary judgment motion. Id. Regarding Plaintiff's prima facie case, she is / was a member of a protected class (female and pregnant). Disputed facts exist demonstrating Plaintiff's competent employment. Additional Fact no.

460. It is undisputed that Plaintiff was not offered employment in the San Diego office. Defendants offer no argument or legal authority for the proposition that this does not constitute an adverse employment action.

Evidence also exists creating disputed facts with respect to other circumstance suggesting a discriminatory motive.

First, there is evidence that the Fairfield supervisor told Plaintiff that a transfer would be automatic without the necessity of an interview process. In contrast, the San Diego acting supervisor (Nelson) required a multi-interview process after meeting plaintiff. This dichotomy could suggest that the interview process was a pretext for denying the transfer.

Second, the Nelson email specifically references as negative indicators Plaintiff's questions and concerns with respect to caring for her baby and the availability of a lactation ('mothering') room. Taken together, these two circumstances could evidence discrimination.

As discussed above, disputed facts exist supporting a prima facie case of discrimination. Thus, the burden shifts to Defendants to demonstrate a legitimate, nondiscriminatory reason for the termination.

Defendants accomplish this through the submission of evidence that Nelson and the other interviewers questioned Plaintiff's ability to satisfactorily perform her job duties in the San Diego office.

Regarding Plaintiff's opportunity to attack the employer's proffered reasons as pretexts for discrimination, the evidence referenced above results in disputed facts suggesting inconsistencies and contradictions. There is evidence that Plaintiff's subsequent complaint to human resources, if taken as true, could constitute a violation of defendant's policies. However, there is evidence that no investigation of this complaint ensued. This could further evidence dishonesty. Thus, material disputed facts exist supporting the claim for discrimination and summary adjudication of these causes of action is denied.

3rd COA: Defamation The statute of limitations for defamation claims is one year. Code Civ. Proc. 340.

A cause of action for defamation must be filed within one year of when the cause of action accrues.

Yang v. Tenet Healthcare Inc. (2020) 48 Cal. App. 5th 939, 950.

A cause of action for defamation accrues at the time the defamatory statement is published, and publication occurs when Defendant communicates the defamatory statement to a person other than the person being defamed. Id. Plaintiff filed this action on August 7, 2020. Therefore, statements made before August 7, 2019 are not actionable. This action is premised on statements made by Defendant Nelson. These statements, including the July 22, 2019 email, were published to third parties prior to August 7, 2019. Therefore, this cause of action is time-barred and summary adjudication is granted on this basis. Given this conclusion, the Court does not address Defendants' other arguments.

4th COA: Wrongful Termination in Violation of Public Policy Summary adjudication of this cause of action is denied for the same reasons as are discussed above.

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2991892 CASE NUMBER: CASE TITLE:  MAYFIELD VS AEROTEK INC [E-FILED]  37-2020-00027698-CU-WT-CTL Disputed material facts exist regarding the claim for discrimination.

Claim for Lost Wages Defendants seek to adjudicate the claim for lost wages. However, this aspect of the Motion is procedurally improper. See DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal. App. 4th 410, 421 ('We also conclude that in order to give effect to the first sentence of subdivision (f)(1), the second sentence must also be read in conjunction with the first sentence, so that the reference to 'a claim for damages' must be qualified as referring to the previously defined claim for punitive damages.').

In addition, it is undisputed that Plaintiff had to relocate to San Diego because her husband, who serves in the Navy, was reassigned to San Diego.

Claim for Punitive Damages Civil Code section 3294(b) sets forth when an employer is liable for punitive damages: 'An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.' California follows the rule laid down in Restatement of Torts, section 909, which provides punitive damages can properly be awarded against a principal because of an act by an agent if, but only if: (a) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the employer or a manager of the employer ratified or approved the act. Weeks v. Baker & McKenzie (1998) 63 Cal. App. 4th 1128, 1148, 1149.

The Legislature intended to limit corporate punitive damage liability to those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy. White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 573.

Defendants have not satisfied their initial burden of producing evidence supporting summary adjudication of the claim for punitive damages. The Court could not locate any fact statements addressing whether Nelson or Simmons exercised independent authority or determined corporate policy with respect to hiring decisions in the San Diego office. There are no fact statements addressing whether Aerotek authorized or ratified the discriminatory conduct. See Separate Statement nos. 385 - 448.

There is some evidence in the record that Nelson was a managing agent because he had the independent authority to authorize employee transfers between offices, had the authority to overrule a transfer decision made by a different manager and was able to interpret company policy with respect to authorizing transfers between company offices.

The Complaint does not allege fraud such that only oppression or malice can support the prayer for punitive damages. Civ. Code 3294(a).

As with other tort actions, punitive damages may generally be obtained in a civil action under the FEHA.

Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal. 3d 211, 221.

'... [W]e conclude that wrongful termination, without more, will not sustain a finding of malice or Calendar No.: Event ID:  TENTATIVE RULINGS

2991892 CASE NUMBER: CASE TITLE:  MAYFIELD VS AEROTEK INC [E-FILED]  37-2020-00027698-CU-WT-CTL oppression. There was no evidence Phoenix attempted to hide the reason it terminated Scott. It admitted to terminating her because she would not enroll the McMaster child. Likewise, there was no evidence Phoenix engaged in a program of unwarranted criticism to justify her termination. Because there was nothing more than a wrongful termination here, punitive damages were not warranted, and the trial court should have granted defendant's motion for judgment notwithstanding the verdict on the issue of punitive damages.' Scott v. Phoenix Schools, Inc. (2009) 175 Cal. App. 4th 702, 717.

In this action, disputed facts exist regarding a discriminatory motive, and an attempt to cover up this motive with a false reason for the transfer rejection. This could evidence malice. Therefore, summary adjudication of the claim for punitive damages is denied.

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