Judge: Keri G. Katz, Case: 37-2020-00019232-CU-OE-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Other employment Summary Judgment / Summary Adjudication (Civil) 37-2020-00019232-CU-OE-CTL GONZALEZ VS TRANSDEV SERVICES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Plaintiff's objections to Transdev's evidence in opposition are all OVERRULED. Plaintiff's objections to Transdev's reply evidence are all OVERRULED.

The court then rules as follows. Defendant Transdev Services, Inc.'s motion for summary judgment is DENIED. Transdev's alternate motion for summary adjudication is GRANTED as to the wrongful termination in violation of public policy cause of action and DENIED as to the unlawful harassment based on sex/Government Code § 12940(j) cause of action.

Preliminarily, following Plaintiff's dismissal of Defendants Transdev Alternative Services, Inc., Transdev Bus on Demand, LLC, Transdev on Demand, Inc. and Transdev Business Solutions, Inc. [ROA 215], Defendants' motion is moot as to these Defendants. Following Plaintiff's dismissal of the fifth, sixth, seventh, eighth, ninth and eleventh causes of action, Defendants' motion is moot as to these causes of action.

The court addresses the remaining portions of Defendants' motion – Defendant Transdev Services, Inc.'s motion as to the fourth cause of action for unlawful harassment based on sex/Government Code § 12940(j) and tenth cause of action for wrongful termination in violation of public policy. The court identifies the issues as framed in Transdev's notice of motion.

Unlawful Sexual Harassment Based on Sex in Violation of Government Code § 12940(j) Issue No. 1: As a matter of law, the Transdev Defendants are entitled to summary adjudication as to Plaintiff's fourth cause of action that the Transdev Defendants allegedly harassed Plaintiff based on her sex in violation of the Fair Employment and Housing Act ('FEHA') because Plaintiff cannot establish that Defendant Sebastian Preciado was her supervisor.

Issue No. 2: As a matter of law, the Transdev Defendants are entitled to summary adjudication as to Plaintiff's fourth cause of action that the Transdev Defendants allegedly harassed Plaintiff based on her sex in violation of the FEHA because Plaintiff cannot establish that the Transdev Defendants knew or should have reasonably known that her coworker, Defendant Sebastian Preciado, allegedly harassed her and therefore could not take corrective action to remedy the alleged harassment.

As State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026 explains, Calendar No.: Event ID:  TENTATIVE RULINGS

3068936  3 CASE NUMBER: CASE TITLE:  GONZALEZ VS TRANSDEV SERVICES INC [IMAGED]  37-2020-00019232-CU-OE-CTL [t]he FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim's supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action.

(§ 12940, subd. (j)(1).) This is a negligence standard. (See Brown v. Superior Court (1988) 44 Cal.3d 1049, 1059, fn. 4, 245 Cal.Rptr. 412, 751 P.2d 470.) Because the FEHA imposes this negligence standard only for harassment 'by an employee other than an agent or supervisor' (§ 12940, subd. (j)(1)), by implication the FEHA makes the employer strictly liable for harassment by a supervisor.

State Dept. of Health Services, 31 Cal.4th at 1040–1041.

Under the FEHA, 'Supervisor' means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Government Code § 12926(t).

Transdev submits evidence which it contends establishes that Defendant Sebastian Preciado was not Plaintiff's supervisor [SSUMF 99-103, 106-112, 114, 136-138]. In opposition Plaintiff submits evidence that Preciado signed Plaintiff's 'Final Driving Evaluation' form under a marked box next to the words: 'As a Professional Driving Instructor/Supervisor, I recommend Jenie M. Gonzalez to become an Operator.' [Plaintiff's response to SSUMF 100.] Plaintiff also submits evidence that Preciado did not allow Plaintiff to shift groups to be with other trainers [Plaintiff's response to SSUMF 100]; Preciado wore a trainer supervisor vest while training Gonzalez [Plaintiff's response to SSUMF 136; Plaintiff's Additional Undisputed Material Fact 2932]; Preciado made the recommendation that Plaintiff passed her driving skills test [Plaintiff's response to SSUMF 100]; Preciado was the only one who made the decision as to whether Plaintiff passed the 'Driving Standards' identified on the Final Driving Evaluation Form [Plaintiff's response to SSUMF 100]; Rincon testified that behind-the-wheel trainers such as Preciado have the discretion to determine whether a trainee is properly trained on tasks; behind-the-wheel trainers are responsible for making recommendations about progressing trainees in the training program; behind-the-wheel trainers use their discretion to determine whether a trainee has met Transdev's standards; and, Rincon never disagreed with a behind-the-wheel trainer's assessment that a trainee passed a certain task [Plaintiff's response to SSUMF 100].

Although the evidence is slight, drawing all reasonable inferences in favor of Plaintiff [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826], and considering that '[a] court must interpret FEHA's supervisor definition broadly so as to protect employees' rights to be free from discrimination' [Valois v. Airlines (C.D. Cal. 2011) 2011 WL 13122365, at *6], the court finds the evidence sufficient to create triable issues of material fact as to whether Preciado was Plaintiff's supervisor such that Transdev is strictly liable for Preciado's alleged harassment of Plaintiff. See also, Chapman v. Enos (2004) 116 Cal.App.4th 920, wherein the court, relying on the Equal Employment Opportunity Commission's enforcement guidance observes, [t]he guide also explains that a supervisor who does not have actual authority over an employee may nonetheless create vicarious liability for the employer 'if the employee reasonably believed that the harasser had such power. The employee might have such a belief because, for example, the chains of command are unclear. Alternatively, the employee might reasonably believe that a harasser with broad delegated powers has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee's chain of command.' (Id. at ¶ III.B., fn. omitted.) Calendar No.: Event ID:  TENTATIVE RULINGS

3068936  3 CASE NUMBER: CASE TITLE:  GONZALEZ VS TRANSDEV SERVICES INC [IMAGED]  37-2020-00019232-CU-OE-CTL Chapman, 116 Cal.App.4th at 930.

The court is not persuaded by the arguments Transdev raises. Irrespective of the clarifications to Rincon's testimony Transdev submits in reply, the court finds the evidence as a whole sufficient to create triable issues of material fact. Evidence that Rincon makes the final determination on whether a trainee becomes a bus operator does not negate evidence as to the role of behind-the-wheel trainers in the process. Transdev's reliance on contradictory testimony, including from Rincon and Director of Safety Jorge Flores, demonstrates triable issues of material fact. The issue of whether behind-the-wheel trainers engage in solely routine and clerical tasks is also a triable issue of material fact. The factual differences in Valois and Chapman do not preclude application of the principles set forth in these cases to the facts at issue on this motion. Evidence that both Plaintiff and Preciado belong to the same union is not dispositive of whether Preciado was Plaintiff's supervisor for purposes of FEHA liability.

In light of this ruling, the court does not reach Issue 2.

Wrongful Termination in Violation of Public Policy Issue No. 14: As a matter of law, Transdev Defendants are entitled to summary adjudication as to Plaintiff's tenth cause of action that Transdev Defendants wrongfully terminated Plaintiff in violation of public policy because Plaintiff cannot identify a fundamental and substantial public policy tethered to a specific constitutional or statutory provision.

Issue No. 15: As a matter of law, the Transdev Defendants are entitled to summary adjudication as to Plaintiff's tenth cause of action that the Transdev Defendants wrongfully terminated Plaintiff in violation of public policy because Plaintiff has not met her burden to establish a prima facie case of discrimination or retaliation.

Issue No. 16: As a matter of law, the Transdev Defendants are entitled to summary adjudication as to Plaintiff's tenth cause of action that the Transdev Defendants wrongfully terminated Plaintiff in violation of public policy because Plaintiff cannot present specific and substantial evidence of pretext for discrimination or retaliation.

As Stevenson v. Superior Court (1997) 16 Cal.4th 880 explains, [i]n California, an employment relationship may generally be terminated by either party 'at will.' This means that, unless they agree otherwise, either party may terminate the employer-employee relationship without cause. (Lab. Code, § 2922.) On occasion, employers have abused the at will relationship by discharging employees for reasons contrary to public policy as expressed in statutory or constitutional mandates. In response, courts have created an exception to, or qualification of, the at will employment principle. The exception is this: An employer may not discharge an at will employee for a reason that violates fundamental public policy. This exception is enforced through tort law by permitting the discharged employee to assert against the employer a cause of action for wrongful discharge in violation of fundamental public policy.

Stevenson, (1997) 16 Cal.4th at 887.

Transdev first argues Plaintiff cannot establish that she was terminated for a reason that violates a fundamental public policy. As pled, Plaintiff's termination was as a result of Plaintiff reporting and objecting to Preciado's alleged sexual harassment. In the general allegations the First Amended Complaint alleges: 51. Defendant and Preciado clearly used Plaintiff's temporary leave of absence to create a pretext by which to terminate Plaintiff as a result of Plaintiffs objections to Preciado, and Plaintiff's unwillingness to Calendar No.: Event ID:  TENTATIVE RULINGS

3068936  3 CASE NUMBER: CASE TITLE:  GONZALEZ VS TRANSDEV SERVICES INC [IMAGED]  37-2020-00019232-CU-OE-CTL engage in Preciado's sexual harassment and sexual assault of her.

Under the retaliation for opposing discrimination and harassment cause of action the First Amended Complaint alleges: 100. At all times herein material, Defendants, and its agents and/or employees, retaliated against Plaintiff by adversely affecting Plaintiff's employment after Plaintiff objected to and/or refused to consent to Defendants' unlawful conduct, in violation of Gov't Code § 12940(h). This is especially true in that Plaintiff was terminated a short time after objecting to and refusing Preciado's sexual advances, after Plaintiff objected to and complained about Preciado to co-workers and supervisors of Defendant, and after Plaintiff and after Plaintiff objected to and refused to engage in sexual intercourse with Preciado on company property.

Under the retaliation for engaging in protected activity cause of action the First Amended Complaint alleges: 107. In response to Plaintiffs complaints, Plaintiff was retaliated against in violation of Labor Code Section 1102.5. Specifically, Plaintiff's complaints were ignored permitting Plaintiff to continue to be subjected to sexual harassment and a sexual assault by the individual whom Plaintiff complained against, Plaintiff was further retaliated by being terminated while on a protected leave after Plaintiffs objection to Preciado and refusal to engage in his sexual advances and for exercising her rights under the Labor Code, the Fair Employment and Housing Act, and the California Constitution. Such conduct was in direct retaliation to Plaintiffs complaints and objections to illegal conduct.

Similarly, specific to the wrongful termination cause of action, the First Amended Complaint alleges: 119. Through the conduct alleged above, Transdev and Does 6 - 50, and each of them, constructively, tortiously and wrongfully terminated Plaintiff in violation of the public policies of the State of California which prohibit employers from sexually harassing, discriminating based on gender and retaliating against employees for opposing conduct that violates Section 12940. These policies are expressed, in part; in the California Fair Employment and Housing Act, Gov't. Code §§ 12900 et seq.; the California Labor Code; the California Constitution, Article 1, Section 8; other California statutes, and decisions of the California judiciary.

Plaintiff has dismissed the retaliation for opposing discrimination and harassment cause of action and the retaliation for engaging in protected activity cause of action. As such, neither can satisfy the violation of public policy requirement of this cause of action. See, DeHorney v. Bank of America Nat. Trust and Sav. Ass'n (9th Cir. 1989) 879 F.2d 459, 465. Instead, in opposition Plaintiff relies on evidence that Plaintiff was terminated while she was out obtaining medical care for an injury suffered at work [Plaintiff's AUMF 2957]. Plaintiff argues that her termination by Transdev was as a result of disability discrimination. Plaintiff relies on authority holding 'that disability discrimination can form the basis of a common law wrongful discharge claim.' City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1161. However, '[t]he pleadings delimit the issues to be considered on a motion for summary judgment.' Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253. As is evident from the allegations set forth above, the allegations of the First Amended Complaint are that Plaintiff was terminated, not because of a disability or for taking medical leave, but for reporting and objecting to Preciado's alleged sexual advances [FAC ¶¶ 51, 100, 107, 119]. As such, Plaintiff's arguments and evidence as to any alleged disability discrimination are beyond the scope of this motion and insufficient to avoid summary judgment. See, Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 290; Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 [' '[a] party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings' '] quoting California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637 fn.

3. See also, Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342-1343 and Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.

Calendar No.: Event ID:  TENTATIVE RULINGS

3068936  3 CASE NUMBER: CASE TITLE:  GONZALEZ VS TRANSDEV SERVICES INC [IMAGED]  37-2020-00019232-CU-OE-CTL Absent establishing that Plaintiff's was terminated for a reason that violates a fundamental public policy, this cause of action fails. Accordingly, the court summarily adjudicates the tenth cause of action for wrongful termination in violation of public policy in favor of Defendant Transdev Services, Inc. and against Plaintiff.

In light of this ruling the court does not reach Issue 15 or Issue 16.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Calendar No.: Event ID:  TENTATIVE RULINGS

3068936  3