Judge: Kevin C. Brazile, Case: 21STCV17494, Date: 2023-09-27 Tentative Ruling

Hearing Date: January 26, 2024

Case Name: Sendhil, et al. v. Regents of the University of California, et al.

Case No.: 20STCV28561

Matter: Motion for Summary Judgment/Adjudication

Moving Party: Defendant Regents of the University of California

Responding Party: Plaintiff Carlo Giovanni

Notice: OK

Ruling: The Motion for Summary Adjudication is granted as to the seventh 

cause of action, but is otherwise denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is an employment action.  On December 30, 2020, Plaintiffs Geetha Sendhil and Carlo Giovanni filed the operative First Amended Complaint (“FAC”) against Defendant Regents of the University of California for (1) retaliation per Lab. Code §§ 98.6, 1102.5, (2) retaliation per Gov. Code § 8547, (3) FEHA discrimination, (4) FEHA harassment, (5) FEHA retaliation, (6) FEHA failure to prevent harassment, retaliation, and discrimination, and (7) “damages for inventor’s share”. 

Defendant now seeks summary judgment or, alternatively, summary adjudication of all causes of action against Plaintiff Carlo Giovanni only.

The law of summary judgment provides courts “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. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ 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.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

1. Lab Code §§ 98.6, 1102.5

Defendant argues that Giovanni’s claim for whistleblower retaliation fails because he did not make any protected disclosure; rather, Giovanni’s reports were about other complaints and made as a part of his duties as an HR employee.

Lab. Code § 1102.5 retaliation requires that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.  (Patten v. Grant Joint Union High Sch. Dist. (2005) 134 Cal.App.4th 1378, 1384.)  For a prima facie case of retaliation, “plaintiff must show he engaged in protected activity, his employer subjected him to an adverse employment action, and there is a causal link between the two.”  (Hager v. Cnty. of Los Angeles (2014) 228 Cal. App. 4th 1538, 1540.)

Lab. Code § 1102.6 provides, “In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”

Here, Giovanni points to some triable issues, for example: “(1) OATS push back and compliance refusal by Faculty to management, including Paardekooper, Dean Martin, and Mazziotta through Geetha Sendhil (AUMF 31, 38-40, 53, 67); (2) Pay Disparity re Minorities/Race issues with CAOs, Fund Managers, and admin specialist entry-level classification to Paardekooper, Dean Martin, Marcia Morrissey, Maure Gardner and Miranda Tse (AUMF 18, 33, 48, 54, 67, 114, 115) . . . (6) Reported additional issues of mishandling/stealing of funds in the University’s Head and Neck Department to Samuels, Morrissey, Dr. Martin and Sachs (AUMF 83).”  Giovanni also points to his October 2016 letter in which he summarizes most of his complaints in response to the Notice of Intent to Terminate (“NOIT”).   

Defendant also seems to argue that the reports relating to the OATS system and the former paper recording system relate to a violation of internal policies, which is not sufficient for a claim per Lab. Code § 1102.5.  First, this is an argument that is inappropriately raised for the first time in Defendant’s Reply brief; this argument could very well have been made in the moving papers and cannot be regarded as merely responsive.  Further, Defendant does not take into consideration that “Regents have rulemaking and policymaking power in regard to the University; their policies and procedures have the force and effect of statute.”  (Levi v. Regents of Univ. of California (2017) 15 Cal.App.5th 892, 903.)  “The power of the Regents to operate, control, and administer the University is virtually exclusive. . . . As a consequence, policies established by the Regents as matters of internal regulation may enjoy a status equivalent to that of state statutes.”  (Regents of Univ. of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135 (internal quotes omitted).)  

Defendant further contends that Giovanni cannot show causation.  But, here too, there are triable issues as Plaintiff’s work on the OATS compliance project was terminated not long after there was discussion about various questionable practices with regard to reporting conflicts and income.  Defendant contends that the OATS project would have shut down no matter what, but Plaintiff indicates that “in this litigation, Paardekooper said Bx was being eliminated because of the financial shortfalls. (AUMF 93) The Budget provided by the Paardekooper Declaration at Exhibit A is from an Excel spread sheet which was Exhibit 101 in Paardekooper Deposition. Paardekooper claims she and Martin reviewed the Bx budget in 2016, and it was part of reason for terminating Bx. The actual financials as of September 2016, before the termination, show a $16.5 Million Surplus, no shortfall or deficit. (AUMF 93).”  Defendant improperly suggests that the Court must accept as fact Paardekooper’s testimony to the contrary on this issue.  There are also triable issues as to whether the OATS project was completed; notably, Plaintiffs indicate they were still modifying and testing the system around the time of receiving the NOIT.  Ultimately, there are triable issues such that the Motion is denied as to the first cause of action.  

2. Gov. Code § 8547

Gov. Code § 8547.1 states, “The Legislature finds and declares that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution. The Legislature further finds and declares that public servants best serve the citizenry when they can be candid and honest without reservation in conducting the people’s business.”

Gov. Code § 8547.3(a) states, “An employee may not directly or indirectly use or attempt to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the rights conferred pursuant to this article.”

Gov. Code § 8547.10 states, “(a) A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with his or her supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. The complaint shall be filed within 12 months of the most recent act of reprisal complained about. (b) Any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a University of California employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000) and imprisonment in the county jail for up to a period of one year. Any university employee, including an officer or faculty member, who intentionally engages in that conduct shall also be subject to discipline by the university. . . . (e) In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof in an adverse action against the employee in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense in the adverse action.”

“Government Code section 8547.10, which pertains to University of California employees, authorizes a civil action for damages on a complaint for retaliation.”  (Scheer v. Regents of the Univ. of California (2022) 76 Cal.App.5th 904.)

Defendant’s arguments for the second cause of action are identical to those made in support of the first cause of action, which have already been rejected.  Therefore, the Motion is denied as to the second cause of action.

3. FEHA Discrimination

To analyze claims of discrimination under the FEHA based on a theory of disparate treatment, courts employ a three-step, burden-shifting test.  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355 (“Guz”).)  Because evidence of intentional discrimination is rare, the law permits the inference of discrimination based on facts that create “a reasonable likelihood of bias and are not satisfactorily explained.”  (Id. at p. 354.)  The tiered approach assists the Court in identifying such facts.  The approach proceeds as follows:  Once the plaintiff establishes a prima facie case of discrimination, a presumption of discrimination arises.  The burden then shifts to the employer to dispel the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason.  Finally, the burden shifts back to the plaintiff, who then has the opportunity to attack the employer’s proffered reason as pretext for discrimination, or to offer other evidence of discriminatory motive.  (Id. at pp. 355-356.)

Under the FEHA, a prima facie case of discrimination generally consists of the following elements: (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position he or she held, (3) the plaintiff suffered an adverse employment action, and (4) some other circumstance suggesting discriminatory motive.  (Guz, supra, 24 Cal.4th at p. 355.)

With respect to motions for summary judgment, “ ‘the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.)  “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ” (Ibid.)

Defendant first argues that there is no animus because “it is beyond dispute that the individuals involved in the decision to eliminate the BX Unit, i.e., Dr. Mazziotta, Dr. Martin, and Ms. Paardekooper, did not consider the race, sexual orientation, medical condition, etc. of any of the BX Unit employees when deciding to eliminate the Unit. (UF 96, 105-111, 115, 117-120.) Indeed, Plaintiff admits that Dr. Mazziotta and Dr. Martin were unaware of his race, sexual orientation, and HIV status. (Id.) He further admits that Ms. Paardekooper was unaware of his sexual orientation. (Id.) Moreover, he admits that Dr. Mazziotta, Dr. Martin, and Ms. Paardekooper never said anything derogatory to him or others, regarding race, sexual orientation, and HIV status. (Id.)”

There are triable issues as to animus based on race because Plaintiff testifies that Paardekooper gave disgusting looks and odd comments when Plaintiff and his colleagues spoke Spanish.  Plaintiff also indicates that “Paardekooper also knew that Giovanni had a boyfriend whom he rode bikes with near where she lived. Paardekooper shut down the conversation and was dismissive of Giovanni whenever Giovanni mentioned his boyfriend.”  Plaintiff also testifies that his superiors were informed of his complaints pertaining to HIV harassment—at least through a DFEH complaint—and knew of this before his ultimate termination and the failure to rehire. 

Defendant argues there was a legitimate reason for the termination, but, as discussed, there are already triable issues given the possible surplus that Defendant had and the status of the OATS project.    

Defendant argues that Plaintiff “was not hired for the positions he applied for because he was either not qualified or not the most qualified for those positions. (UF 123.) While Plaintiff contends that he searched online regarding who was ultimately hired for certain positions he applied for and what their qualifications were, he lacks personal knowledge as to whether he was more qualified or not, and what hiring criteria was used. (UF 124.)”  But, Defendant failed to carry its burden to show that Plaintiff was actually less qualified and who even made that decision. 

The Motion is denied as to the third cause of action.

4. FEHA Harassment

To establish a prima facie case of harassment under the FEHA, the plaintiff must show that (1) she was a member of a protected class, (2) she was subjected to unwelcome harassment based on her protected status, and (3) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment.  (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)  “ ‘Harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’ ”  (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.)  In other words, the harassment must be “sufficiently severe or pervasive to alter the condition of the victim’s employment and create an abusive environment,” as judged by the reasonable person belonging to the plaintiff’s protected class.  (Thompson, at p. 877.)

While personnel management may serve as evidence of harassment where there is a widespread pattern of bias communicating a hostile message (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 763), personnel management alone is not sufficient. 

Here, there is evidence of harassment to the extent his coworkers and superiors looked at him with disgust when speaking Spanish; told him hispanics usually park cars; told him never to reveal his sexual orientation or HIV status or he might not be promoted or maintain his job; told him that it should be “hush hush” that he has a boyfriend; and, after being told he shouldn’t reveal his boyfriend, Plaintiff was treated differently in how he could take off time for his HIV appointments.  The Motion is denied as to the fourth cause of action.

5. FEHA Retaliation

Courts employ the same burden-shifting approach to analyze claims of retaliation under the FEHA.  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)  Thus, the plaintiff has the initial burden to establish a prima facie case by showing (1) he or she engaged in 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.  (Ibid.)  Once the employee establishes the prima facie case, the burden shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse employment action.  (Ibid.)  If the employer carries this burden, the court no longer presumes retaliation, and the burden shifts back to the employee to prove intentional retaliation.  (Ibid.)

Here, the FEHA retaliation claim survives based on the prior discussion of the facts that Plaintiff complained of harassment and discrimination and then was ultimately terminated and not rehired. 

6. FEHA Failure to Prevent Misconduct

Employers are required to “take all reasonable steps necessary to prevent discrimination” in the workplace. (§ 12940, subd. (k).)  [¶] One such reasonable step, and one that is required in order to ensure a discrimination-free work environment, is a prompt investigation of the discrimination claim. (Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035, 127 Cal.Rptr.2d 285.)  [¶] Other reasonable steps an employer might take include the establishment and promulgation of antidiscrimination policies and the implementation of effective procedures to handle complaints and grievances regarding discrimination.”  (California Fair Emp. & Hous. Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024–25.)

Given the survival of the FEHA claims, the Motion is denied as to the derivative claim for failure to prevent misconduct.  

7. “Damages for Inventor’s Share”

Finally, Defendant asserts that “Plaintiff alleges that he was entitled royalties for OATS as an ‘Inventor.’ (FAC, ¶¶104- 109.) Plaintiff’s Inventor’s Share claim fails because it is not based upon a statute. A claim against The Regents, a government entity, must be based on an authorizing statute or enactment. (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802; see also Government Code §815(a).) This claim also fails because Plaintiff admits that he did not come up with the concept of OATS and that the IT Department created and developed OATS. (UF 14-15.) Moreover, the SOM OATS was not used at any other UC campus, and no one received any compensation as an ‘Inventor’ of the SOM OATS. (UF 16-18.)”

Plaintiff contends that the claim for royalties apparently stems from Defendant’s internal policies.  

Plaintiff, however, fails to explain how this translates to an actionable claim based on a statute.  (Gov. Code § 815.)  Thus, the Motion is granted as to the seventh cause of action.

8. Summary 

In sum, the Motion for Summary Adjudication is granted as to the seventh cause of action, but is otherwise denied.

The objections are overruled.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.