Judge: Joseph Lipner, Case: 23STCV25680, Date: 2025-05-20 Tentative Ruling
Case Number: 23STCV25680 Hearing Date: May 20, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
AARTI GOSSAI, Plaintiff, v. STARS BEHAVIORAL HEALTH GROUP,
INC., et al., Defendants. |
Case No:
23STCV25680 Hearing Date: May 20, 2025 Calendar Number: 12 |
Defendants Stars Behavioral Health Group, Inc. (“Stars”) and
Donte Kelley (“Kelley”) (collectively, “Defendants”) move for summary
adjudication against Plaintiff Aarti Gossai (“Plaintiff”) on twenty-seven
different issues. Defendants seek summary adjudication on Plaintiff’s first
through tenth, fourteenth, and fifteenth causes of action, as well as
Plaintiffs claims for economic and punitive damages. Defendants do not seek
summary adjudication on Plaintiff’s twelfth, thirteenth, or sixteenth claims.
The Court GRANTS the motion as to Plaintiff’s third and
fourth claims.
The Court DENIES the motion as to the remaining claims.
This is an employment case. The following facts are taken
from the parties’ separate statements. The Court resolves disputes of fact in
favor of the nonmoving party.
Stars employed Plaintiff from February 2022 through
Plaintiff’s termination on March 20, 2023. Plaintiff’s job title was
“Parent-Peer Advocate Coordinator,” and her duties including supervising a team
of subordinates who interacted with patients and advising the subordinates on
the proper care to administer. Plaintiff’s supervisor was Defendant Donte
Kelley (“Kelley”) throughout Plaintiff’s employment. Plaintiff alleges a number
of instances of harassment against Kelley.
On February 16, 2022, Plaintiff’s first day of work,
Plaintiff met with Kelley in his office. Plaintiff sat down in a chair across
from Kelley’s desk. Kelley then took a sweater off a nearby coat hanger and
draped it across Plaintiff’s knees to cover her bare lower legs. Plaintiff was
dressed in business casual attire. Kelley told Plaintiff “I am a man, so if you
could just keep that sweater on, that would be great.” (Additional Fact (“AF”)
40.)
On February 16, 2022, Kelley also told Plaintiff that he had
a baby outside of his marriage and that his wife had left him and then got back
together with him. Also on February 16, 2022, when Plaintiff was using Kelley’s
computer, he stood to her left and put his arm around her to use the mouse on
the right side, making Plaintiff uncomfortable. (AF 43.)
Approximately a week later, Plaintiff received a phone call
from Kelley on her personal cell phone after the workday had ended. Kelley
asked Plaintiff about her personal life, including her family, husband,
children, and finances. Kelley asked questions including, “Is your husband
home?” “How much money does your husband make?” “Are you being a good wife” and
“Who’s home now?” (AF 44.)
Kelley began calling Plaintiff on her personal cell phone
after work hours, typically around 7:30 p.m. This continued at least twice per
week until November 2022. Kelley Pressured Plaintiff to divulge details on her
personal life, and informed Plaintiff of issues in the personal lives of other
employees. (AF 45.)
Beginning on February 17, 2022, Plaintiff was called into
regularly scheduled team meetings with Kelley and other coworkers. These
meetings continued every Thursday until Plaintiff’s eventual medical leave. In
these meetings, Kelley used the “N-word” to refer to Plaintiff and two
African-American coworkers. (AF 47.) While Plaintiff is Indian, her husband is
African-American. (AF 47.)
Beginning on February 21, 2022, and continuing every Tuesday
until Plaintiff’s termination, Plaintiff had a regular Zoom videoconference
meeting with Kelley to discuss Plaintiff’s clients, subordinates, and
performance. Kelley insisted that Plaintiff had her camera on in these meetings
and would ask Plaintiff unrelated questions about her personal life, including
whether her husband was home, whether her children were there, whether she was
being a good wife, what she was doing, and “What are you wearing?” (AF 48.)
Kelley continued to refer to Plaintiff as the N-word in these one-on-one
meetings. (AF 49.)
On May 31, 2022, Plaintiff received her first performance
review. Kelley’s overall rating for Plaintiff was “3 Stars – Meets
Expectations.” (AF 50.) Kelley wrote that Plaintiff works hard, is a natural
leader, and provides high quality support to her staff. (AF 50.)
Several times during Plaintiff’s employment, beginning
around May or June 2022, Plaintiff objected to being required to work unpaid
overtime hours and to being required to use her personal phone for work
purposes. Kelley instructed Plaintiff to stop recording her time when she was
required to work outside of normal business hours. (AF 51.)
In August 2022, Kelley called Plaintiff on a Microsoft Teams
video call. The call was previously unscheduled. Plaintiff sent Kelley a
message stating that she was unavailable and that her husband was home and
having health issues. Approximately five minutes later, Plaintiff called Kelley
to further explain the issue. Kelley did not respond.
Also in August 2022, Kelley asked if Plaintiff’s husband was
still at home and how much money her husband made. When Plaintiff did not
answer the second question, Kelley told her “You need this job.” Plaintiff
asked Kelley “Please top asking personal questions about my husband.” (AF 53.)
On Friday, October 28, 2022, Kelley directed Plaintiff to
give a writeup to one of her subordinates as soon as possible, which Plaintiff
understood based on her prior experience to mean “within one business day.” (AF
54.) Kelley did not provide Plaintiff with a specific deadline. Kelley knew
that Plaintiff had two packets of work to complete that Friday. On Monday,
October 31, 2022, when Plaintiff logged into work, Plaintiff saw a messages
from Kelley that he had provided the writeup already. On November 1, 2022,
Kelley scheduled a video call with Plaintiff to begin right away. When
Plaintiff joined, Kelley emailed Plaintiff a writeup and directed Plaintiff to
sign it. Plaintiff stated that she needed time to review it, and Kelley told
her that she did not have a choice. Plaintiff reviewed the writeup and saw that
it was for failing to write up her subordinate. (AF 56-57.)
Also on November 1, 2022, Kelley called Plaintiff into a
video conference for Plaintiff’s annual performance review, which was
approximately 3.5 months early for her performance review. (AF 58-62.) Kelley
gave Plaintiff a negative 1-star review. (AF 58-62.) When Plaintiff asked the
reason, Kelley stated that he was hurt that Plaintiff did not administer the
writeup as directed. When Plaintiff asked why Kelley did not fire her, Kelley
stated that Stars did not fire employees, but that she could voluntarily resign.
Plaintiff emailed a response to Kelley’s performance review
to the human resources department. Plaintiff stated in her response that the
report was inaccurate, that her performance was positive, and that Kelley was
creating a hostile work environment. Plaintiff stated that she felt
uncomfortable due to Kelley’s actions and behavior. Plaintiff stated that
Kelley had been calling her after hours to discuss Plaintiff’s personal life
and disclosing confidential medical information about Plaintiff’s coworkers. Plaintiff
also disclosed the alleged sexual harassment that occurred on her first day of
work. Plaintiff also complained about the racial comments that Kelley had made.
On the following day, Kelley called Plaintiff into an
unscheduled meeting. Kelley told Plaintiff “Wow, that’s what I wanted, because
I didn’t think you knew how to fight, but you really know how to fight. I just
want to address one or two of the things you mentioned in your response.” (AF
68.) Kelley claimed that he was giving Plaintiff special treatment due to her
husband’s health issues. This call lasted for approximately three hours. (AF
68.)
On December 1, 2022, Plaintiff emailed HR to follow up on
her complaints.
On December 8, 2022, Plaintiff received an email asking to
meet to discuss Plaintiff’s report. Plaintiff was emailed a link to a video
meeting with HR Coordinator Vanessa Alfaro (“Alfaro”) and Administrator Tina
Binda (“Binda”). Binda was Kelley’s direct supervisor. At Binda’s request,
Plaintiff described the incident that had occurred on Plaintiff’s first day of
work. Binda then stated, “When we sit, our skirts go up, so that’s probably why
he put the jacket on you.” (See AF 70-73.) Plaintiff complained in this meeting
that Kelley had used racial slurs towards her, including calling her the
N-word. Binda then asked, “Did he say ‘N’ or the actual word itself?” Plaintiff
then confirmed that Kelley had said the slur itself. (AF 74-75.) Plaintiff
complained that she did not believe that all Peer Advocate Coordinators
(“PACs”) were being treated equally, and that African American PACs were being
asked to turn their cameras on at weekly meetings while the Latina PACs were
not. Plaintiff complained in the meeting that Kelley was trying to force her to
resign. Plaintiff complained that Kelley would ask her questions about her
personal life.
At the end of the meeting, Binda asked Plaintiff how she
would like to move forward. Plaintiff stated that she wanted everything listed
in her complaint to stop happening. Binda told Plaintiff that Plaintiff’s team
had their best ever audit the past October, so it did not make sense for Kelley
to claim that Plaintiff was not performing adequately. (AF 79.)
Plaintiff did not receive any further communication from any
members of HR.
In December 2022, on multiple occasions, Kelley directed
Plaintiff to sign packets prepared by her subordinates. On each occasion,
Plaintiff told Kelley that she had reviewed them, but could not approve them,
as only licensed therapists could do so, and she believed that it would be a
violation of law. On each occasion, Kelley told Plaintiff to sign and approve
the packets regardless. (AF 82-83.)
On December 16, 2022, Kelley placed Plaintiff on a
performance improvement plan. (AF 84.)
On January 17, 2023, Plaintiff complained to Kelley
regarding being required to be on call 24 hours per day and not being
compensated for her overtime. (AF 85.)
In early February 2023, Plaintiff had an appointment with
her therapist. Plaintiff detailed Kelley’s behavior towards her. Plaintiff’s
therapist diagnosed Plaintiff with anxiety and Major Depressive Disorder and
asked Plaintiff to take medical leave. Beginning on February 14, 2023,
Plaintiff took time off using her allotted paid time off (“PTO”).
On February 23, 2023, Services Manager Claudia Constancio
(“Constancio”) emailed Plaintiff to ask why Plaintiff had taken PTO. Plaintiff
informed Constancio that she had been diagnosed with Major Depressive Disorder.
Constancio replied that “You can take stress leave for that.” (AF 88.)
In around February or March 2023, Plaintiff made an
appointment to see her assigned primary care physician. However, the
receptionist informed Plaintiff that Plaintiff’s assigned physician was not
accepting patients under 65 years old and would not see Plaintiff. Plaintiff
called her insurance company and requested that they switch her primary care
physician, but was informed that it would take 30 days to do so. In March 2023,
Plaintiff informed Constancio that, due to an issue with Plaintiff’s health
insurance, there would be a delay in providing medical certification for
Plaintiff’s leave. Constancio advised Plaintiff to use her PTO in the meantime.
(AF 90-91.)
Plaintiff subsequently updated Constancio on the phone a few
times regarding her difficulties in obtaining an appointment. Constancio
advised Plaintiff to keep trying but did not provide Plaintiff any deadline to
provide the doctor’s note until March 14. (AF 91.)
On March 10, 2023, Plaintiff emailed Constancio to state
that she still had not been able to get an appointment. Plaintiff asked to use
the rest of her PTO for as many days as possible for the pay period. Plaintiff
stated that she would update Constancio as soon as she received a note from her
doctor. (AF 94.)
The human resources department and the Senior Manager for
Employee Relations and Training instructed Constancio to send Plaintiff a
letter on March 14, 2023 providing Plaintiff with a deadline to provide a
doctor’s note or be treated as having resigned. (AF 95.)
On March 20, 2023, Plaintiff received an email from
Constancio that stated that, because Plaintiff had not sent Stars any medical
certification for her time off, they considered Plaintiff to have voluntarily
resigned. (AF 96.)
Plaintiff filed this action on October 20, 2023, raisings
(1) wrongful termination; (2) medical leave retaliation under CFRA; (3) paid
sick leave discrimination; (4) paid sick leave retaliation; (5) medical leave
retaliation under CFRA; (6) retaliation for requesting and using accommodations
for disabilities; (7) failure to engage in a timely, good faith interactive
process to determine reasonable accommodations for disability; (8) failure to
reasonably accommodate disabilities; (9) disability discrimination; (10)
discrimination based on race – disparate treatment; (11) sex discrimination;
(12) harassment based on race; (13) sexual harassment; (14) retaliation for
opposing violations of FEHA; (15) failure to prevent and stop harassment,
discrimination, and retaliation; and (16) whistleblower retaliation under Labor
Code, sections 1102.5 and 1102.6.
On February 14, 2025, Defendants moved for summary
adjudication. Plaintiff filed an opposition and Defendants filed a reply.
The Court has reviewed the parties’ evidentiary objections.
The Court overrules Plaintiff’s objections for the purposes
of this motion.
The Court sustains Defendants’ objection to the unsigned
Declaration of Geoffrey C. Lyon in its entirety on the basis that the
declaration is unsigned.
The Court overrules Defendants’ remaining objections.
The Court notes that many of Defendants’ 53 evidentiary
objections have no basis. Defendants object that Plaintiff’s declaration is
unsigned, despite the declaration containing an electronic signature. Defendants
object to a number of out-of-court statements made by Defendant Kelley as
hearsay, despite the statements being made by a party to this action. (See Ev.
Code, § 1220.) Defendants raise objections of hearsay, lack of foundation, and
lack of personal knowledge, inter alia, to Plaintiff’s statement “In these
meetings, Def. Dir. Kelley used the N-word to refer to me, Coord. Brown, and
Coord. Davis.” (Defendants’ Objection No. 7; see Gossai Decl. ¶ 12.) “No
adjective is adequate to describe an objection that one who is called names
lacks ‘foundation’ to testify about them. And one does not need to be Wigmore
to know that plaintiff was not introducing the names for their truth.” (Nazir
v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 256.)
“A trial court may order a party, the party's attorney, or
both, to pay the reasonable expenses, including attorney's fees, incurred by
another party as a result of actions or tactics, made in bad faith, that are
frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., §
128.5.) The Court admonishes Defendants that the submission of great quantities
of frivolous material, as is present here, can constitute sanctionable conduct.
The purpose of a motion for
summary judgment or summary adjudication “is to provide courts with a mechanism
to cut through the parties’ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) “Code of
Civil Procedure section 437c, subdivision (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.)
“In ruling on the motion,
the court must consider all of the evidence and all of the inferences
reasonably drawn therefrom [citation] and must view such evidence [citations]
and such inferences [citations] in the light most favorable to the opposing
party.” (Aguilar, supra, at pp. 844-845 [quotation marks
omitted].)
“On a motion for summary
judgment, the initial burden is always on the moving party to make a prima
facie
showing that there are no triable issues of material fact.” (Scalf v. D. B.
Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)
“A plaintiff or
cross-complainant has met his or her burden of showing that there is no defense
to a cause of action if that party has proved each element of the cause of
action entitling the party to judgment on the cause of action. Once the
plaintiff or cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or more
material facts exists as to the cause of action or a defense thereto. The
defendant or cross-defendant shall not rely upon the allegations or denials of
its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.” (Code
Civ. Proc. § 437c, subd. (p)(1).)
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.) “If the [opposing party]
cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
“The elements of a claim for wrongful discharge in violation
of public policy are (1) an employer-employee relationship, (2) the employer
terminated the plaintiff’s employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge caused the
plaintiff harm. It is well established that a termination premised on an
employee’s refusal to violate either a statute or an administrative regulation
may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical
Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)
As
discussed below under Plaintiff’s discrimination and retaliation claims,
Plaintiff has presented evidence that she was illegally terminated due to her
gender, her perceived race, and her use of medical leave. Plaintiff has
therefore demonstrated a triable issue that her termination was substantially
motivated by a violation of public policy.
The
Court denies the motion on this claim.
A cause of action for retaliation for taking CFRA medical
leave is brought pursuant to Government Code section 12945.2, subdivision (l),
which provides that “[i]t shall be an unlawful employment practice for an
employer to . . . discharge . . . or discriminate against, any individual
because of . . . [¶] (1) An individual’s exercise of the right to family care
and medical leave provided by” the CFRA. (Gov. Code, § 12945.2, subd.
(l).)
“The elements of a cause of action for retaliation in
violation of CFRA are: ‘ “(1) the defendant was an employer covered by CFRA;
(2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the
plaintiff exercised her right to take leave for a qualifying CFRA purpose; and
(4) the plaintiff suffered an adverse employment action, such as termination,
fine, or suspension, because of her exercise of her right to CFRA [leave].” ’
[Citation.] Similar to causes of action under FEHA, the McDonnell Douglas
burden shifting analysis applies to retaliation claims under CFRA.” (Moore
v. Regents of University of California (2016) 248 Cal.App.4th 216,
248.)
Under the McDonnell
Douglas framework, the employer must carry the burden of showing the
employee's action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) It may
do so with evidence that either: (1) indicates “that one or more of plaintiff’s
prima facie elements is lacking,” or (2) shows some legitimate,
nondiscriminatory reason for the action taken against the employee. (Caldwell
v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)
If defendant meets its
burden, the burden then shifts to the plaintiff to produce substantial evidence
that the employer’s showing was untrue or pretextual by raising at least an
inference of discrimination or retaliation. (Hersant v. California
Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
“In short, by applying¿McDonnell Douglas’s shifting burdens of
production in the context of a motion for summary judgment, ‘the judge [will]
determine whether the litigants have created an issue of fact to be decided by
the jury.’ [Citation.]” (Caldwell, supra, 41 Cal.App.4th at p. 203.)
Plaintiff
has provided evidence that she was terminated after requesting leave, and
during a time when she was explaining the basis for her delay in presenting
medical certification. CFRA leave may begin before certification is obtained if
there is a delay in certification in spite of the employee’s good-faith
efforts. (Cal. Code Regs., tit. 2, § 11091.) This is such a case. Plaintiff
demonstrated good faith efforts. Stars’ denial of leave in spite of this
creates triable issues of fact. Defendant argues that it legitimately
terminated Plaintiff because she did not come into work – but this puts the
cart before the horse. If Plaintiff was entitled to CFRA leave, then her
termination for use of that leave was improper.
The
Court denies the motion on this claim.
Plaintiff
raises her third and fourth claims under the Healthy Workplaces, Health
Families Act (“HWHFA”). Defendants argue that this statute does not provide a
private right of action. Plaintiff does not respond to this argument.
“An
employer shall not deny an employee the right to use accrued sick days,
discharge, threaten to discharge, demote, suspend, or in any manner
discriminate against an employee for using accrued sick days, attempting to
exercise the right to use accrued sick days, filing a complaint with the
department or alleging a violation of this article, cooperating in an
investigation or prosecution of an alleged violation of this article, or
opposing any policy or practice or act that is prohibited by this article.” (Lab.
Code, § 246.5, subd. (c)(1).)
“The
Labor Commissioner shall enforce this article, including investigating an
alleged violation, … issuance of a citation against an employer who violates
this article, and by filing a civil action.” (Civ. Code, § 248.5, subd. (a).) “An
employee or other person may report to the Labor Commissioner a suspected
violation of this article.” (Civ. Code, § 248.5, subd. (d).)
The
Court agrees that this statute does not provide a private right of action, but
rather provides for enforcement by the Labor Commissioner.
The
Court grants the motion on this claim.
As
discussed above, the HWHFA does not provide a private right of action, but
rather provides for enforcement by the Labor Commissioner.
The
Court grants the motion on this claim.
As
discussed above, Plaintiff has demonstrated triable issues that she was
entitled to, and denied, CFRA leave.
The
Court denies the motion on this claim.
“To establish a prima facie case of retaliation under the
[Fair Employment and Housing Act] 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.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879,
brackets omitted.)
“An ‘adverse employment action,’ which is a critical
component of a retaliation claim, requires a substantial adverse change in the
terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047, 1063, quotation marks omitted.) “Appropriately viewed, this provision
protects an employee against unlawful discrimination with respect not only to
so-called “ultimate employment actions” such as termination or demotion, but also
the entire spectrum of employment actions that are reasonably likely to
adversely and materially affect an employee's job performance or opportunity
for advancement in his or her career.” (Yanowitz v. L'Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1053-1054.) This standard is construed liberally –
“although an adverse employment action must materially affect the terms,
conditions, or privileges of employment to be actionable, the determination of
whether a particular action or course of conduct rises to the level of
actionable conduct should take into account the unique circumstances of the
affected employee as well as the workplace context of the claim.” (Id.
at p. 1052.) “A schedule change in an employee's work schedule may make little
difference to many workers, but may matter enormously to a young mother with
school-age children.” (Burlington Northern and Santa Fe Ry. Co. v. White
(2006) 548 U.S. 53, 69.)
As
discussed above, Stars has admitted that it terminated Plaintiff because she
did not come into work. There is thus at the very least a triable issue that
the termination was connected to Plaintiff’s request for, and use of,
accommodations.
The
Court denies the motion on this claim.
“FEHA requires an informal process with the employee to
attempt to identify reasonable accommodations, not necessarily ritualized
discussions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359,
379.)
Once initiated, the employer has a continuous obligation to
engage in the interactive process in good faith. “Both employer and employee
have the obligation ‘to keep communications open’ and neither has ‘a right to
obstruct the process.’” [Citation.] Each party must participate in good faith,
undertake reasonable efforts to communicate its concerns, and make available to
the other information which is available, or more accessible, to one party.
Liability hinges on the objective circumstances surrounding the parties’
breakdown in communication, and responsibility for the breakdown lies with the
party who fails to participate in good faith. [Citation.] (Swanson v. Morongo
Uni¿ed School Dist. (2014) 232 Cal.App.4th 954, 971–972.)
Plaintiff
has presented evidence that she was engaging in an interactive process with
Stars through Constancio. Plaintiff has presented evidence that Stars
terminated this process by terminating Plaintiff. Plaintiff has presented
evidence for a prima facia claim.
The
Court denies the motion on this claim.
Under Government Code, section 12940, it is an unlawful
employment practice “to fail to make reasonable accommodation for the known
physical or mental disability of an applicant or employee” unless the employer
demonstrates doing so would impose an undue hardship. “The essential elements
of a failure to accommodate claim are: (1) the plaintiff has a disability
covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or
she can perform the essential functions of the position); and (3) the employer
failed to reasonably accommodate the plaintiff's disability.” (Wilson v.
County of Orange (2009) 169 Cal.App.4th 1185, 1192.)
Plaintiff has presented evidence that Stars denied her the
accommodation of sick leave by terminating Plaintiff. Plaintiff has presented
evidence for a prima facia claim.
The
Court denies the motion on this claim.
To establish a claim for discrimination, a plaintiff must
show “that (1) [the plaintiff] was a member of a protected class, (2) [the
plaintiff] was qualified for the position [they] sought or was performing
competently in the position [they] held, (3) [the plaintiff] 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 National Inc. (2000) 24 Cal.4th 317, 355.)
Stars argues that it had no notice of Plaintiff’s
disabilities. Plaintiff has presented evidence that she notified Stars through
Constancio.
Stars argues that Plaintiff cannot establish satisfactory
job performance. Plaintiff has presented evidence that the group she supervised
had had its best ever audit and that she received a good performance review
until she began to contest Kelley’s actions.
As discussed above, Star admits that it terminated Plaintiff
due to her absence from work. Plaintiff’s absence, as she communicated
repeatedly to Stars, was due to her need for sick leave due to her anxiety and
Major Depressive Disorder. Plaintiff has therefore created a triable issue that
Stars terminated her for her disability.
The
Court denies the motion on this claim.
As
discussed above, Plaintiff has presented evidence of good performance.
Plaintiff has presented evidence that her supervisor, who gave her a very
negative performance review and placed her on a performance improvement plan,
had repeatedly called Plaintiff racial slurs. Plaintiff reported this conduct
up to HR and to Kelley’s boss, who were therefore aware of the racially
discriminatory conduct. Plaintiff has demonstrated a triable issue of fact that
she was terminated due to racial discrimination.
The
Court denies the motion on this claim.
As discussed above, Plaintiff has
presented evidence of good performance. Plaintiff has presented evidence that
her supervisor, who gave her a very negative performance review and placed her
on a performance improvement plan, had made a number of implicitly sexual
comments to Plaintiff. Plaintiff reported this conduct up to HR and to Kelley’s
boss, who were therefore aware of the racially discriminatory conduct.
Plaintiff has therefore demonstrated a triable issue of fact that she was
terminated due to sex discrimination.
As discussed above,
“[t]o establish a prima facie case of retaliation under the [Fair Employment
and Housing Act] 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.” (Meeks v. Autozone, Inc., supra, 24
Cal.App.5th 855, 878-879, brackets omitted.)
Plaintiff presents evidence that she made extensive reports of Kelley’s alleged
racial and sexual harassment to human resources and to Kelley’s supervisor on
December 8, 2022. Kelley had previously disputed the performance review and
complained of Kelley’s conduct in writing. On December 16, 2022, Kelley placed
Plaintiff on a performance improvement plan. By that time, Kelley had also
already responded to Plaintiff’s written response, stating that he wanted her
to fight him. These facts would allow a fact finder to conclude that Kelley’s
responses were causally linked to Plaintiff’s complaints.
Plaintiff also
complained to Kelley about being asked to work unpaid overtime in January 2023.
Plaintiff was
terminated in March 2023. Plaintiff’s termination was temporally proximate to
her December and January complaints (and the ensuing performance improvement
plan), which supports a triable issue of fact that her complaints and Kelley’s
response played a causal role in Plaintiff’s termination.
The Court therefore
denies the motion on this claim.
The elements of a
cause of action for failure to prevent harassment or retaliation are: (1)
actionable discrimination or harassment by employees or nonemployees; (2)
defendant’s legal duty of care toward plaintiff (i.e., defendant is the
plaintiff’s employer); (3) breach of that duty (i.e., failure to take all
reasonable steps necessary to prevent discrimination and harassment from
occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998)
63 Cal.App.4th 280, 287, 289; Bradley v.
Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612,
1630; Gov. Code, § 12940.)
Plaintiff has presented evidence
that she complained about Kelley’s alleged racial and sexual harassment towards
her to HR and to Kelley’s manager. Plaintiff has presented evidence that no
changes were made by HR, and Kelley continued to supervise her. Plaintiff has demonstrated
triable issues as to this claim.
The Court denies the motion on this
claim.
Defendants argue that Plaintiff’s economic damages claim
fails if her other claims, including her claims for termination, fail. Because
those claims survive, Plaintiff’s demand for economic damages survives as well.
The Court denies the motion on this issue.
Punitive damages are appropriate when a defendant acted with
malice, oppression, or fraud. (Civ. Code, § 3294, subd. (a).) “Malice” is
defined as conduct intended to cause injury to a person or despicable conduct
carried on with a willful and conscious disregard for the rights or safety of
others. (Turman v. Turning Point of Cent.
Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable
conduct subjecting a person to cruel and unjust hardship, in conscious
disregard of the person’s rights. (Ibid.)
“Fraud” is an intentional misrepresentation, deceit, or concealment of a
material fact known by defendant, with intent to deprive a person of property,
rights or otherwise cause injury. (Ibid.)
“In order to survive a motion to strike an allegation of
punitive damages, the ultimate facts showing an entitlement to such relief must
be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255.) “In passing on the correctness of a ruling on a motion
to strike, judges read allegations of a pleading subject to a motion to strike
as a whole, all parts in their context, and assume their truth.” (Ibid.)
“In ruling on a motion to strike, courts do not read allegations in isolation.”
(Ibid.) Conclusory allegations, devoid of any factual assertions, are
insufficient to support a conclusion that parties acted with oppression, fraud
or malice. (Smith v. Superior Court
(1992) 10 Cal.App.4th 1033, 1042.)
“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.” (Civ. Code, § 3294,
subd. (b).)
Plaintiff has presented evidence that she reported Kelley’s
conduct and that Stars continued to employ him. Plaintiff has presented
evidence that Kelley acted with oppression toward Plaintiff by repeatedly
calling her the N-word in the workplace. There is therefore a triable issue
that Plaintiff is entitled to punitive damages.
The Court denies the motion on this issue.