Judge Kerry Bensinger, Case Number: 20STCV15305, Date: 2023-11-29 Tentative Ruling

This is a discrimination case arising under the Fair Employment and Housing Act (“FEHA”). Plaintiff, Randi Winter, was employed at El Camino Community College District (“El Camino”) as a journeyman plumber from September 2002 to November 2018. Commencing in the Fall of 2010 through 2018, Plaintiff alleges that Thomas Brown (“Brown”), Director of the Facilities, Planning and Services Department at El Camino, and Robert Brobst (“Brobst”), the Assistant Director, discriminated, harassed, and retaliated against Plaintiff because of Plaintiff’s sexual orientation, association with African American employees, and for lodging complaints regarding poor working conditions and other issues. As alleged, Brown’s disparate treatment of Plaintiff includes denial of Plaintiff’s lawful request for FMLA leave, opposition to the length of Plaintiff’s request for leave to have surgery for a work-related injury, issuing unsafe work assignments, ordering the cessation of an investigation into an employee who verbally harassed Plaintiff, and engaging in a campaign to terminate Plaintiff’s employment by gathering false evidence, among other things. Plaintiff further alleges that Brown showed preferential treatment for employees who were members of the Jehovah Witness.

On April 27, 2018, Brobst convened a meeting with Plaintiff to obtain information in order to terminate Plaintiff’s employment. On that same day, Plaintiff was removed from the El Camino campus and formally dismissed on November 7, 2018. Plaintiff alleges he was wrongfully terminated.

On April 21, 2020, Plaintiff filed a verified Complaint against El Camino, Brown, and Brobst, for (1) Redress of Unlawful Harassment, (2) Redress of Sexual Orientation Discrimination, (3) Redress Unlawful Discrimination Due to Association, (4) Redress Unlawful Discrimination Due to Religion, (5) Redress of Unlawful Disability Discrimination, (6) Redress of Unlawful Retaliation, and (7) Redress of Failure to Prevent Unlawful Employment Practices. The Complaint does not expressly allege a separate cause of action for wrongful termination.

On April 10, 2023, Brown filed this Motion for Summary Judgment, or in the alternative, Summary Adjudication. The Motion advances the argument that Brown is not liable because he retired before the alleged adverse employment action occurred. On June 13, 2023, Brown filed his declaration in support of the Motion.

On November 14, 2023, Plaintiff filed an amended Separate Statement and a Supplemental Declaration of Plaintiff’s counsel, Helena S. Wise. Ms. Wise requests a continuance of the hearing, or alternatively, denial of the Motion.

Throughout the pleadings, the parties refer to the Motion as a motion for summary judgment. However, the notice of Motion and Brown’s Separate Statement suggest that Brown seeks summary adjudication as to Plaintiff’s wrongful termination claim only.[1] Plaintiff does not plead a separate cause of action for wrongful discharge but alleges throughout the Complaint that he was wrongfully terminated. In other words, the alleged wrongful discharge is combined with other wrongful acts alleged in Plaintiff’s various causes of action. Further, the parties proceed as though the Complaint sets forth a wrongful discharge claim. The parties don’t address this issue. Pursuant to Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, the Court may consider the merits of this Motion as to Plaintiff’s wrongful discharge claim. “[U]nder subdivision (f) of section 437c, 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, 12 Cal.App.4th at pp. 1854-55.)

As such, the Court considers Brown’s Motion as seeking summary adjudication only of Plaintiff’s wrongful termination claim. For the reasons stated herein, the Court denies Plaintiff’s request for a continuance and grants the Motion for Summary Adjudication.

In reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860.) (Internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Brown submits sixteen (16) objections to Plaintiff’s evidence. The Court does not rule on the objections as they are not material to the disposition of this Motion. (Code Civ. Proc., § 437c, subd. (q).)

Brown moves for an order granting summary adjudication on Plaintiff’s wrongful termination claim on the ground that he played no role in the alleged adverse employment actions against Plaintiff. In support, Brown submits his declaration attesting to the following: (1) Brown was not present at the April 27, 2018 meeting which resulted in Plaintiff’s removal from work; (2) Brown did not solicit any statements to support Plaintiff’s eventual termination on November 7, 2018, and (3) Brown was retired at the time Plaintiff was escorted off the El Camino campus on April 27, 2018. (Brown Decl., ¶¶ 7-9.)

Brown merits summary adjudication of Plaintiff’s wrongful termination claim, but not for the reasons provided. A cause of action for wrongful termination in violation of public policy requires the following elements: (1) plaintiff was employed by defendant; (2) defendant discharged plaintiff; (3) violation of public policy was a substantial motivating reason for plaintiff’s discharge; and (4) the discharge caused plaintiff’s harm. (CACI No. 2430.) “As a matter of law, only an employer can be liable for the tort of wrongful discharge in violation of public policy.” (Khajavi v. Feather River Anesthesia Med. Grp. (2000) 84 Cal.App.4th 32, 53.)

Here, it is undisputed that El Camino was Plaintiff’s employer, not Brown. (See Complaint, ¶ 1.) Like Plaintiff, Brown was employed by El Camino. (See Brown’s Separate Statement of Facts (“SSF”), Nos. 9, 13.) Therefore, Brown cannot be held liable for Plaintiff’s alleged wrongful termination.

Plaintiff submits arguments and evidence suggesting Brown may have continued working for El Camino as a consultant even after retiring. However, missing from the Opposition is any authority contrary to the well-settled principle that an employer alone is liable for the tort of wrongful discharge.[2] Plaintiff has not provided any evidence (nor can he) that would show otherwise.

Kerry Bensinger

Judge of the Superior Court

[1] In his declaration, Brown also states the following: “For the record, I never engaged in any unlawful conduct directed toward Winter. Because of his deposition testimony to the contrary, however, we cannot bring a motion for summary judgment on this substantive issue.” (Brown Decl., ¶ 10.) The foregoing paragraph confirms that Brown is not seeking summary judgment, i.e., an order disposing of the entire action against Brown .

[2] Assuming, for the moment, that Brown played a role in the termination of Plaintiff’s employment in Brown’s capacity as Plaintiff’s supervisor, Brown still cannot be held liable. “[A] supervisor cannot be held personally liable under the FEHA or for discharge in violation of public policy for discrimination relating to personnel management decisions. [Reno v. Baird (1998) 18 C4th 640, 663, 76 CR2d 499, 513; see also ¶ 7:175 ff.]” (Weil & Brown, Cal. Prac. Guide: Employment Litigation (The Rutter Group 2023), ¶ 5.25.) “For purposes of such causes of action, the supervisor stands in the place of the employer; i.e., it is the employer who has acted, not the supervisor personally.” (Id. at ¶ 5.26.)