Judge Kerry Bensinger, Case Number: 20STCV49297, Date: 2024-09-09 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

CASE: Anita Wright v. City of Los Angeles Department of Water and Power, et al.

Plaintiff Anita Wright (Wright or Plaintiff) has been employed with the City of Los Angeles Department of Water and Power (DWP) in the Electrical Mechanic Series for over 30 years. She is an African-American female with a degree in engineering. She was the first woman to complete DWP’s Electrical Mechanic Trainee program, was the first and only Black woman to be a Electrical Mechanic Supervisor, was the first and only woman Senior Electrical Mechanic Supervisor, and most recently, is the first Black woman to be promoted from Electrical Mechanic Supervisor to Electrical Services Manager.

Wright alleges that she was subjected to discrimination and retaliation by her male superiors at every stage and level of her career. As relevant here, Wright alleges that, in 2017, she was transferred and assigned to be the Superintendent of the West Los Angeles area to supervise the installation of transformers, electrical stations, major transmission lines, and the largest customer station in the DWP. Phil Leitner (Leitner) and David Cisneros (Cisneros) became Wright’s managers. Leitner and Cisneros harassed and discriminated against Wright by unnecessarily scrutinizing and micromanagement her work; creating assignments that wasted her time, were excessive and had unrealistic demands/deadlines; denying her overtime; and sabotaging her promotion opportunities. Eventually, in 2019, Leitner and Cisneros forced Wright out of the West Los Angeles position and transferred her to an undesirable low profile assignment/position.

On December 24, 2020, Plaintiff commenced this action against DWP. On July 19, 2021, Plaintiff filed the operative First Amended Complaint (FAC) for (1) Discrimination in Violation of FEHA, (2) Retaliation in Violation of FEHA (Cal. Gov. Code § 12940(h), and (3) Failure to Take Necessary Remedial Action in Violation of FEHA (Cal. Gov. Code § 12940(j), (k).).

On August 19, 2022, the City of Los Angeles (City) filed its motion for summary judgment, or alternatively summary adjudication of issues.

When 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.)¿ A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“[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 seeking summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) 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, supra, 25 Cal.4th at p. 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.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “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”].)¿¿

Plaintiff asserts objections in her separate statement in opposition to the motion for summary judgment. Plaintiff’s objections are not in the proper format. “[California Rules of Court,] [r]ule 3.1354(b) dictates the format in which evidentiary objections must be submitted: ‘All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections on specific evidence may be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.’” (Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8.) A trial court does not abuse its discretion by declining to rule on improperly formatted objections or to deny an opportunity to reformat the objections. (Id.)

First, the City objects to Plaintiff’s Response to Defendant’s Separate Statement, in its entirety, because it is not code complaint and is untimely. The City does not object specifically to any portions, but rather gives examples in an effort to knock out the entirety of the filing. Examples are not objections, nor do they sink the entirety of Plaintiff’s Response. The objection is OVERRULED as presented. The objection with respect to timeliness is similarly OVERRULED.

Second, the City objects to the Declaration of Jill Shigut, as well as all of the attached exhibits, as untimely. The objection based upon timeliness is OVERRULED.

SUSTAINED IN PART with respect to the following portions because they are conclusory and/or inadmissible opinion testimony:

There are two overarching issues to be decided: (1) whether the continuing violations doctrine allows Plaintiff to support her allegations with events that occurred between 1997 and December 2017, and (2) whether Plaintiff states a prima facie case for discrimination, retaliation, and failure to prevent discrimination or retaliation. The court addresses these issues in turn.

Plaintiff relies upon conduct occurring in 1997 and thereafter to support her claims. Plaintiff invokes, albeit summarily, the continuing violations doctrine to reach backwards in time beyond the statute of limitation period. Plaintiff contends that because the conduct had not reached a level of permanence, the continuing violations doctrine applies to all alleged conduct.

The City disagrees and argues the continuing violations doctrine does not apply here. If Defendant is correct, Plaintiff’s case rests on events that took place after December 24, 2017, which is three years prior to the commencement of this action.

An employer's persistent failure to eliminate discrimination or retaliation is a continuing violation of the FEHA if the employer's unlawful actions are (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 799, 823 (Richards); accord, Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028.)

Generally, a FEHA cause of action must be filed within three years from the date the alleged unlawful practice occurred or refusal to cooperate occurred. (Gov. Code, § 12960, subd. (e)(3).) However, the continuing violation doctrine “allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.” (Richards, 26 Cal.4th at p. 802.) This tolling period “ends when the employer's determination achieves a level of permanence, i.e., when a reasonable employee would understand that further efforts to end the unlawful conduct will be in vain.” (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1414, internal quotations omitted.) The plaintiff bears the burden to demonstrate her claims are timely under the continuing violation doctrine. (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.)

Here, Plaintiff does not establish whether the alleged misconduct is sufficiently similar in kind (element 1) or whether the misconduct occurred with reasonable frequency (element 2). Rather, Plaintiff states only that she “has been singled out and treated differently than her male counterparts every step of the way.” (Opp., p. 14:10-11.) The statement is conclusory and unsupported by any citation to evidence or case law.

Plaintiff’s showing on permanence (element 3) fares no better. Without citing any evidence, Plaintiff argues “there was no permanence that made it clear that continued adverse treatment was to be expected until arguably after she was denied a promotion the second time in PCM for the manager position at which point she sought a position outside of the division. Prior thereto she did not know that the adverse actions she was subjected to could be expected.” (Opp., p. 14:23-26.) Presumably, Plaintiff is referring to the position for which she interviewed on September 16, 2019, and for which Cisneros was eventually hired on January 20, 2020. (See FAC, ¶¶ 26, 27, 29.) But, Plaintiff cannot rely on any post-2017 decisions not to promote Plaintiff because each promotion decision becomes permanent when a different applicant is placed in the position. (See Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1127 [“City’s independent promotion decisions each became permanent when a different applicant was put in the position.”].) And critically, there is no discussion on how conduct outside the statute of limitations is connected to DWP hiring Cisneros instead of Plaintiff in 2020 or to any other conduct within the limitations period. (See Richards, 26 Cal.4th at p. 802.) Plaintiff does not establish the continuing violation doctrine applies. Therefore, any alleged conduct before December 24, 2017 is time barred.[2]

Plaintiff’s discrimination claim is based on the following allegations which are presented in a stream-of-consciousness or shotgun style discussion: “Throughout her employment and continuing through present, Plaintiff has been treated differently in terms, conditions and privileges of her employment based on her protected class and has been subject to ongoing adverse employment action which includes, but is not limited to, repeated denial of promotions and promotional opportunities and experience, workplace sabotage, bully tactics, threats of discipline, unlawful discipline, poor performance evaluations, workplace surveillance, increased work load, increased scrutiny regarding her work and work performance, singled out, repeatedly denied training opportunities, privileges of employment offered to co-workers; repeatedly denied supervisory assignments and responsibilities which she was qualified to perform and performed competently when held; repeatedly denied pay increases and benefits associated with those supervisory assignments; denied promotions for which she was qualified for and more qualified and experienced than those outside of her protected class who were selected; repeatedly denied overtime; subject to disparaging treatment; publicly humiliated, embarrassed and berated by management; forced to transfer from a high profile assignment and replaced by a less qualified non-black male outside of her protected class causing her loss of pay; issued an NTCD; stripped of her office; stripped of her computer; forced to commute additional miles; forced to transfer out of the organization to position requiring excessive commuting; amongst other unlawful adverse actions.” (FAC, ¶ 40.) Plaintiff alleges that her “race, national original, color, gender, and age was a substantial motivating factor for Defendants' conduct toward Plaintiff.” (FAC, ¶ 41.)

The alleged misconduct pre-dating December 24, 2017 is not actionable. The court turns to the FAC to gather the timeline of conduct at-issue. “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. [Citation.]”¿ (FPI Dev., Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 380.) Evidence offered on an¿unpleaded¿claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.”¿¿(California Bank & Trust v. Lawlor¿(2013) 222 Cal.App.4th 625, 637, fn. 3 (California Bank).)¿ In Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1256, the appellate court stated that “… new factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading construed broadly, encompasses them.¿ In making this determination, courts look to whether new factual issues present different theories of recovery or rest on a fundamentally different factual basis.”¿

November 1, 2018[3]: Plaintiff accepts a transfer to an SEMS position in the West Los Angeles area. Phil Leitner (Leitner) and Dave Cisneros (Cisneros) become Plaintiff’s managers. Leitner and Cisneros micromanage Plaintiff’s work, create assignments that waste her time, give her excessive work with unrealistic demands/deadlines, deny her overtime, sabotage her work and projects, amongst other unlawful actions. (FAC, ¶ 20.)

2018-2019:[4] In another incident, Leitner’s manager, Robert Gonzalez (Gonzalez),

reports to Leitner that one of Plaintiff’s crews has taken their break outside of their scheduled time. Gonzalez does not specify which break. Leitner directs Plaintiff to reprimand the crew, despite her crew having not violated any DWP polices or procedures. (FAC, ¶ 21.)

May 11, 2019: Plaintiff learns that Cisneros has assigned a project in Plaintiff’s area to another senior supervisor named Hugo Fimbres (Fimbres). Plaintiff inquires into the reassignment. Cisneros explains that Plaintiff did not have the resources to handle the work in her area. Plaintiff tells Cisneros that her best crew was already assigned to the project. Cisneros then reassigns the project to Plaintiff but states he will be watching closely. (FAC, ¶ 22.)

June 13, 2019: Plaintiff received a phone call about a safety concern at one of her work

sites on May 13, 2019. The safety concern was investigated, and the worksite declared safe. Work resumed. Later, on June 13, 2019, Plaintiff received an email from Cisneros instructing her to meet with Gabe Doyle’s[5] crew at the beginning of shift each day to ensure Doyle’s crew was meeting safety standards, to have a schedule in place to meet upcoming project deadlines, and to send Doyle a briefing of his assignments and any hazards that were mitigated on a daily basis prior to 9 a.m., even though the worksite had already been declared safe. The extra reports and meetings impeded Plaintiff’s ability to perform her regular responsibilities. (FAC, ¶ 24.)

August 15, 2019: Leitner and Cisneros force Plaintiff out of the West Los Angeles position by transferring her to an undesirable low profile assignment/position in downtown Los Angeles (DTLA). They replace Plaintiff with Fimbres. Fimbres is a light-skinned Latino male. (FAC, ¶ 25.)

September 9, 2019: Plaintiff files a complaint with the EEOC on August 19, 2019. In
retaliation, on September 9, 2019, Leitner and Cisneros issue a Notice to Correct Deficiency (NTCD) to Plaintiff. This NTCD is issued shortly before her job interview to become an Electrical Services Manager (ESM). Leitner and Cisneros issued the NTCD in an effort to sabotage Plaintiff’s ability to promote. (FAC, ¶¶ 26, 27.)

September 16, 2019: Plaintiff interviews for the ESM position. (FAC, ¶¶ 26, 27.) On September 23, 2019, Plaintiff learns she is not hired. (Id.; PAMF 56.)

December 19, 2019: Plaintiff interviews for another ESM position. Instead, Cisneros, who is a less qualified non-Black counterpart, is promoted to the position in January 2020. (FAC, ¶ 29.)

January 9, 2020: Plaintiff’s office is reassigned to a White male. Further, Plaintiff

is reassigned to a permanent office at 1400 S. Sepulveda in West Los Angeles even though most of Plaintiff’s projects are in DTLA where her previous office was located. Cisneros is given a second office at 1400 S. Sepulveda which should have been given to Plaintiff. Instead, Plaintiff is given an inferior office. Further, Plaintiff’s managers reassign Plaintiff’s valley projects, which means 99% of her projects are in DTLA. By contrast, other senior non-Black male supervisors have an office in the area in which the majority of their projects are located. (FAC, ¶ 31.)

February 5, 2020: Plaintiff learns that Fimbres entered her locked office and removed her
printer without permission or authorization. Despite obtaining a written directive for the return of her printer, the printer is not been returned. (FAC, ¶ 32.)

September 28, 2020: As a result of the ongoing discrimination and retaliation and DWP’s refusal and failure to take appropriate corrective action, Plaintiff was forced to transfer out of Power Construction & Management (PC&M) and accepted an ESM position with Power Supply Operations requiring a three-thousand (3000) mile monthly commute taking over 85 hours. (FAC, ¶ 33.)

The court’s first task is to identify from Plaintiff’s description of events what she asserts are the adverse employment actions. The list appears to be as follows: (1) a directive to reprimand her crew; (2) assignment of Plaintiff’s projects to Fimbres, (3) supervision of Doyle’s crew; (4) issuance of NTCD; (5) transfer to DTLA; (6) reassignment of valley projects; (7) office relocation to West Los Angeles; (8) failure to be promoted to ESM in September 2019; and (9) failure to be promoted to ESM in December 2019.

From this list, several are not adverse employment actions: Plaintiff does not demonstrate that the “directive to reprimand” is an adverse employment action. On its face, it is Plaintiff’s crew that is the object of the reprimand, not Plaintiff. There is no indication Plaintiff suffered an adverse employment action.

Plaintiff does not demonstrate that assignment of Plaintiff’s project to Fimbres is an adverse employment action. As Plaintiff alleges, the project was reassigned back to Plaintiff after speaking with Cisneros.

Plaintiff appears to abandon reassignment of her valley projects as a basis for her discrimination claim. Plaintiff’s opposition and separate statement do not discuss the valley projects at all.

Accordingly, the potential adverse employment actions are: (1) supervision of Doyle’s crew; (2) issuance of NTCD; (3) transfer to DTLA; (4) office relocation to West Los Angeles; (5) failure to be promoted to ESM in September 2019; and (6) failure to be promoted to ESM position in December 2019.

FEHA discrimination claims are subject to the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) burden-shifting analysis. (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560 (Bareno).) “Under this approach, if the plaintiff establishes a prima facie case supporting his or her discrimination claim, the burden of production shifts to the employer to rebut the presumption of discrimination by offering a legitimate, nondiscriminatory reason for the adverse employment action. [Citations.] To state a prima facie case of gender, race, color, or sexual orientation discrimination under FEHA, a plaintiff must show that: (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action ... and (4) some other circumstance suggests discriminatory motive. [Citation.] Thus, a plaintiff must establish a causal nexus between the adverse employment action and his protected characteristic.” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 161-62 (Martin) (quotations and citations omitted).)

“Plaintiffs in FEHA cases can prove their cases by presenting either direct evidence, such as statements or admissions, or circumstantial evidence, such as comparative or statistical evidence.” (Gupta v. Trustees of California State Univ. (2019) 40 Cal.App.5th 510, 519.)

“An employer may meet its initial burden in moving for summary judgment by presenting evidence that one or more elements of a prima facie case are lacking, or the employer acted for a legitimate, nondiscriminatory reason. [Citations.] A legitimate, nondiscriminatory reason is one that is unrelated to unlawful bias and, if true, would preclude a discrimination finding. [Citations.] If nondiscriminatory, the employer’s true reasons need not necessarily have been wise or correct.” (Id., at p. 162 (quotations and citations omitted).)

If the employer shows it had a legitimate, nondiscriminatory reason for the action, the plaintiff “‘may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) “In responding to the employer’s showing of a legitimate reason for the complained-of action, the plaintiff cannot ‘simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ and hence infer that the employer did not act for the [asserted] non-discriminatory reasons.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389-390 (cleaned up).) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 361.)

As mentioned, Plaintiff presents her case in a stream-of-consciousness manner and fails to organize her presentation to correspond to the prima facie elements. Nonetheless, addressing the elements in turn, Plaintiff identifies as a Black female. (See Opp., p. 15:3.) For the purposes of the first element of a prima face case of discrimination, Plaintiff based her discrimination claim on the characteristics of gender and color.[6]

As to the second element, Plaintiff discusses generally the positions she held and the work she performed. She describes performing her jobs competently, but does not discuss the requirements for or whether she was qualified for the ESM positions she sought in September 2019 and December 2019.

As to the third element, Plaintiff fails to stop, identify, and discuss the adverse employment actions at issue. The factual collage of the discussion impairs the analysis. Plaintiff lists several examples of adverse employment actions, discussing one in detail and generally describing others. (See Opp., pp. 15:3-16:22, 18:2-19:8.) The issuance of the NTCD is the only adverse employment action Plaintiff discusses with sufficient detail. Citation to evidence is sporadic. Yet, as alleged, the issuance of the NTCD supports her retaliation claim. “On September 9, 2019, Phil Leitner and Dave Cisneros issued Ms. Wright a Notice to Correct Deficiency (NTCD). The unlawful discipline was done in retaliation for her EEO complaint and in an effort to sabotage her ability to promote as they issued the NTCD just prior to her interview for a promotional position to Electric Service Manager on September 16, 2019 . . . .” (FAC, ¶ 26.)

As to the fourth element—discriminatory motive—Plaintiff does not make clear her theory. It appears to be disparate treatment. In support of a disparate treatment theory, Plaintiff appears to argue the following: (1) because Plaintiff was Black and female, she was singled out and held to a different standard; and (2) Plaintiff’s supervisors favored Plaintiff’s non-Black male counterparts such as Fimbres. In support, Plaintiff describes being subjected to higher scrutiny for requesting overtime. Overtime (OT) requests were to be submitted two weeks prior to requested dates. However, when Fimbres, a light-skinned Latino male, assumed Plaintiff’s West Los Angeles position after Plaintiff was transferred to DTLA, Fimbres immediately took overtime. The inference to be drawn is that the two-week policy did not apply to Fimbres because he was male and not Black. Plaintiff does not otherwise submit any evidence to show she was “similarly situated in all material respects” to the employees she claims were treated more favorably. (Gupta, supra, 40 Cal.App.5th at pp. 519-520.)

Plaintiff does not meet her initial burden. As discussed above, Plaintiff eschews any real discussion of the third element. Plaintiff cites next to no evidence in support of the fourth element (discriminatory motive). And, as discussed below, even if Plaintiff stated a prima face case, the City demonstrates that DWP had a legitimate nondiscriminatory reason to issue the NTCD and applying the OT request policy differently to Fimbres.

The City argues DWP properly issued Plaintiff an NTCD because Plaintiff and her crew worked overtime without requesting or receiving prior approval from management in contravention of the OT policy, and because Plaintiff did not direct crew members who worked 16 hours to take a mandatory 8-hour break. (UMF 39.) Further, the general heightened scrutiny of OT policy was precipitated by a worker fatality in May 2019 which alerted managers to pay extra attention to worker safety and overtime hours. (UMF 8-10.)

The City also furnishes evidence that Fimbres was not required to observe the OT policy when he was initially assigned to the position. At his deposition, Fimbres testified that he did not recall whether he submitted a timely OT request. However, pursuant to the letter agreement between Fimbres’s union and DWP, Fimbres did not need to request the OT in advance. (Fimbres Depo., pp. 103:5-105:13, 105:14-106:13.)

The City also furnishes a legitimate, non-discriminatory reasons for Plaintiff’s transfer to DTLA. Leitner states that he decided to transfer Plaintiff out of West Los Angeles and to DTLA based on “concerns regarding employee safety, and repeated EC overtime policy violations.” (Leitner Decl., ¶ 14.) Specifically, Plaintiff misinformed her immediate supervisor of the anticipated project completion time on June 4, 2019 (Leitner Decl., ¶ 16) and, in Leitner’s opinion, Plaintiff never accepted responsibility for allowing crew members to work without the mandated 8-hour break the following day (Leitner Decl., ¶ 19).

As to the decisions not to hire Plaintiff for ESM positions in September 2019 and December 2019, the City furnishes evidence that Plaintiff’s interview scores were lower than the candidates who were ultimately promoted (UMF 45-46, 52-55), and further, that none of the panelists who interviewed Plaintiff had knowledge of Plaintiff’s protected activities (UMF 49, 56).

Plaintiff bases her retaliation claim on the following allegations: “Plaintiff made several complaints to the Director of EEOS, Renette Anderson, beginning in June and continuing through September 2019 when she filed her EEOS complaint on September 9, 2019. Thereafter, she was transferred out of her West LA position on August 5, 2019, she was denied an electric vehicle on August 5, 2019, she was issued an NTCD on September 8, 2019, and she was denied promotion in September 2019. After she filed her DFEH complaint in December 2019, she was forced out of her office in January 2020 and her printer was taken in February 2020, and she was denied another promotion in December 2019. There was a barrage of retaliatory actions after she began complaining about and reporting the discriminatory adverse actions to Ms. Anderson.” (Opp., pp. 19:26-20:4.)

The court notes that Plaintiff’s “several complaints to the Director of EEOS” and the denial of an electrical vehicle on August 5, 2019 were not alleged in the FAC. Accordingly, the court does not consider these allegations further. (See California Bank, supra, 222 Cal.App.4th at p. 637, fn. 3.)

FEHA retaliation claims are subject to the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) burden-shifting analysis. (Yanowitz, supra, 36 Cal.4th at p. 1042.)¿¿As with the First Cause of Action, the court begins by considering whether Plaintiff states a prima facie case for retaliation. To establish a prima facie case of retaliation, a plaintiff must show that: (1) plaintiff engaged in protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer’s action were causally connected. (Id.)

Here, Plaintiff establishes that she submitted a complaint to the EEOS in September 2019 and a complaint to the DFEH in December 2019. There is no dispute the filing of the EEOS complaint or DFEH charge is protected activity. The first element is satisfied.

However, Plaintiff fails to establish that the filing of her complaints to the EEOS and DFEH and the transfer to DTLA or the issuance of the NTCD were causally connected. As alleged, the transfer (August 5, 2019) and NTCD (September 8, 2019) pre-dated the EEOS complaint (September 9, 2019). The transfer to DTLA and the NTCD cannot form the basis of Plaintiff’s retaliation claim.

That leaves the decisions not to promote Plaintiff in September 2019 and December 2019, and being forced to a West Los Angeles office in January 2020. Critically, Plaintiff does not discuss at all how these events are causally related to the protected activities.[7] Plaintiff fails to establish a prima facie case for retaliation. And, as discussed below, even if Plaintiff had stated a prima face case, the City demonstrates that DWP had a legitimate nondiscriminatory reason to reassign Plaintiff to an office in West Los Angeles and not to promote Plaintiff in September 2019 and December 2019.

The City argues DWP did not retaliate against Plaintiff by reassigning her office to West Los Angeles and not promoting her in September 2019 and December 2019 because (1) Plaintiff indicated to Leitner that she was still utilizing the 1400 S. Sepulveda office and that she liked the West Los Angeles office better (Leitner Decl., ¶ 21), and (2) the decisionmakers who conducted Plaintiff’s interviews for the EMS positions did not have knowledge of Plaintiff’s EEOS complaints or of the NTCD issued to Plaintiff (UMF 42, 56).

4. Failure to Take Necessary Remedial Action in Violation of FEHA (3^rd Cause of Action)

Failure to prevent retaliation or discrimination in violation of FEHA requires that (1) plaintiff was an employee of defendant, (2) plaintiff was subjected to discrimination or retaliation in the course of employment, (3) defendant failed to take all reasonable steps to prevent the discrimination or retaliation, (4) plaintiff was harmed, and (5) defendant’s failure to take all reasonable steps to prevent discrimination and/or retaliation was a substantial factor in causing plaintiff’s harm. (CACI No. 2527.)

This claim is based upon Plaintiff’s allegations of discrimination and retaliation. (See FAC, ¶¶ 61-65.) Plaintiff does not devote any discussion to the Third Cause of Action. Because the court has found summary adjudication is warranted on the First and Second Cause of Action, the court likewise finds summary adjudication is warranted as to the Third Cause of Action. Accordingly, the motion for summary adjudication of the Third Cause of Action is GRANTED.

Defendant City of Los Angeles, acting by and through its Department of Water and Power’s Motion for Summary Judgment is GRANTED.

Kerry Bensinger

Judge of the Superior Court

[1] The court need not rule on the following objections as they are not material to the disposition of the motion: 27, 36, 37, 40, 41.

[2] The court also notes that Plaintiff alleges having filed EEOS complaints in 1998, 2005, and 2007. (See FAC, ¶¶ 9, 12, 14.)

[3] The FAC identifies the date as November 1, 2017, but Plaintiff states that this event occurred in 2018. (See Plaintiff’s Additional Material Facts (AMF) 15.)

[4] No date or time period is identified. The court presumes this event occurred sometime in 2018 or 2019.

[5] Gabe Doyle’s position is unspecified.

[6] The opposition is silent on the protected classes of national origin, race, age, and sexual orientation. Plaintiff therefore concedes these classes do not form the basis of her claim.

[7] Moreover, for the same reasons discussed above Defendant presents a legitimate, non-retaliatory explanation for the actions.