Judge Lynne M. Hobbs, Case Number: 20STCV35952, Date: 2024-09-17 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV35952, Date: 2024-09-17 Tentative Ruling

Case Number: 20STCV35952 Hearing Date: September 17, 2024 Dept: 61

MARIA ELANA WILLIAMS-SLAUGHTER vs THE CITY OF CARSON

TENTATIVE

Defendant City of Carson’s Motion for Summary Judgment or Adjudication is DENIED.

Plaintiff to give notice.

DISCUSSION

I. OBJECTIONS

Plaintiff Maria Elena Williams Slaughter (Plaintiff) objects to the material submitted by Defendant City of Carson in support of their motion for summary judgment. Objections No. 1–8 based on Defendant’s failure to highlight portions of the excerpts of depositions in compliance with California Rules of Court (CRC) Rule 3.116 are OVERRULED, as the failure to highlight portions of the text does not render the excerpts inadmissible. Plaintiff’s Objection No. 9 to Defendant’s separate statement is not an evidentiary objection and is OVERRULED. Plaintiff’s Objections No. 10 and 11 to Defendant’s submitting of its own discovery responses as evidence is SUSTAINED, as a party’s own discovery responses “cannot . . . serve as competent evidence to create a genuine issue of material fact.” (Bayramoglu v. Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726, 740.)

Defendant submits objections to materials submitted by Plaintiff in opposition. Objections No. 2 regarding Plaintiff’s knowledge of Council member Jim Dear’s disdain for African Americans is SUSTAINED, as Plaintiff offers no foundation for the testimony save hearsay from others. Objections No. 7–9 to the Bartel declaration need not be ruled upon as they are not material to disposition of this motion under Code of Civil Procedure § 437c, subd. (q). Objection No. 12 to the 2015 Jim Dear Report is also SUSTAINED as to the truth of the statements contained in the report, as these statements are inadmissible hearsay. The report itself, however, is admissible as to the fact of its existence and what it contains, and whether certain persons had notice of its contents. The remaining objections are OVERRULED.

II. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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 that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere 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 that cause of action or a defense thereto. (Ibid.) 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.)

Defendant City of Carson (Defendant) moves for summary judgment on all claims asserted by Plaintiff Maria Elana Williams-Slaughter (Plaintiff). Defendant argues that Plaintiff’s first cause of action for retaliation in violation of Labor Code § 1102.5 fails because Plaintiff did not engage in any protected activity, cannot to present evidence that her termination was the product of retaliatory motive, and cannot overcome evidence that her termination was for legitimate non-retaliatory reasons having to do with Plaintiff’s job performance. (Motion at pp. 13–21.) Defendant raises similar arguments against Plaintiff’s claim for FEHA retaliation. (Motion at pp. 22–25.) Defendant argues that the legitimate reasons for Plaintiff’s termination defeat her claim for racial discrimination under FEHA, and further that Plaintiff lacks evidence of racist motivations for her termination. (Motion at pp. 25–27.) Defendant finally argues that Plaintiff’s derivative causes of action for declaratory relief and failure to prevent FEHA violations fail for the same reasons. (Motion at pp. 27–28.)

1. Underlying Facts & Evidence

Plaintiff is an African American woman. (FAC ¶ 1.) Plaintiff was hired as Defendant’s Public Works Director in 2015. (Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts (PUMF) No. 1.) In this position, Plaintiff served at the pleasure of the City Manager, who could terminate her employment at will. (PUMF No. 1.) The City Council did not vote or approve Plaintiff’s hiring. (PUMF No. 5.)1 As director of public works, Plaintiff was responsible for the overall performance of the Public Works Department, among which duties included reporting to the City Manager, supervising employees of the department, and administering and approving contracts for public works projects. (PUMF No. 17.)

In September or October of 2015, Plaintiff participated in an investigation of one Jim Dear, then the city clerk, regarding allegations of conduct that made city employees uncomfortable, conduct thatamounted to bullying and intimidation, and conduct that was racially derogatory. (PUMF No. 205; Opposition Exh. K (Dear Deposition Exh. 2).) In her interview, Plaintiff reported that she had heard rumors that Dear had objected to her appointment, and reported a few incidents of behavior by Dear that she witnessed and had considered unusual. (Ibid.) She also reported the following:

Dr. Slaughter has heard that Mr. Dear treats people differently on the basis of race and that he does not care for African-Americans. She has also heard that Mr. Dear is able to mask it most of the time. She has not heard of this first hand, but heard it from about five people at City Hall. For herself, she has noticed that he does not always acknowledge her. He stares at her without speaking, She has also seen Mr. Dear do that to [redacted]. This makes her feel uneasy. (Ibid.) Plaintiff reported that Dear had gone over her and other managers’ heads to give direction to individual city staff, and that staff often obliged, reportedly out of fear of losing their jobs. (Ibid.) Plaintiff reported incidents directed against her, such as the scratching of her car, but the culprit was never identified. (Ibid.)

Dear left his position in 2016, but returned in 2018 upon being reelected to city council. (Opposition Exh. K at p. 125.) In May 2019, Defendant appointed a new city manager: Sharon Landers, who would eventually terminate Plaintiff’s employment. (Opposition Exh. C at p. 13.) Just a few days after Landers’ appointment, Plaintiff had her first interaction with her at a luncheon. (Opposition Exh. B at p. 232.) During this luncheon, Landers advised Plaintiff “that Jim Dear asks a lot of questions about you,” and asked if Plaintiff had “any idea why.” (ibid.) Landers then brought up a problem that Dear had raised as to her performance. (Ibid.)

Plaintiff identifies two other employees named as witnesses in the 2015-2016 report whom she claims suffered retaliation after Dear’s return to the council. Plaintiff notes that Lisa Berglund, a city employee named in the report who received a promotion during Dear’s absence, had her promotion revoked by the city council after Dear was re-elected in 2018. (Slaughter Decl. ¶ 20; And Plaintiff accepted two employees from the city clerk’s office into her department after they were discharged with the elimination of the city clerk’s passport services division, a measure passed by the city council after Dear’s return. (Slaughter Decl. ¶ 4.) Landers was the one who transferred the employees to Plaintiff’s department, with Plaintiff’s approval. (PUMF No. 347.)

David Roberts, then an assistant city manager and an African American man, testified at his deposition that he agreed with characterization that Dear had particular disdain for African Americans. (Opposition Exh. I at pp. 72–73.) Defendant offers testimony from Landers and others to the effect that Plaintiff was not suited for the Public Works Director position. Farfsing, who was the City Manager above Plaintiff from 2015 to 2018, said in his deposition that she “did not have the knowledge and experience to be the public works director.” (Motion Exh. R at pp. 17–18.) He cited her “losing track” of projects at the outset of her employment. (Exh. R at p. 19.) He noted that she “started to improve,” and that he tried to mentor her, but there were still projects “falling through the gaps” when he left the position in 2018. (Exh. R at p. 19.)

Plaintiff’s immediate supervisor, assistant city manager John Raymond, echoed this testimony. Although he stated that he enjoyed working with Plaintiff and believed they got along well together, he opined that Plaintiff “never really got her arms around” some of the administrative functions of the director position. (Motion Exh. S at pp. 30–31.) Raymond stated that Plaintiff “really struggled” with “certain things related to budgeting and the way . . . projects . . . moved through the process and were funded.” (Motion Exh. S at p. 31.) Plaintiff “had difficulty holding contractors accountable to do what they were signed up to do.” (Exh. S at p. 31.) Raymond stated that the council had “frustration with things that they would ask to have done, . . . that just did not ever seem to be done in a really timely manner.” (Motion Exh. S at pp. 31–32.)

However, Plaintiff’s two performance reviews — one for the year 2016, the other for the period from May 2017 to December 2018 — both gave her “Exceeded Job Requirements” ratings. (Opposition Exh. G [Farfsing Depo., Exhs. 1, 2.].) These reviews were prepared by Farfsing. (Opposition Exh. G at pp. 32.) Neither Farftsing nor Raymond ever recommended that Plaintiff be disciplined. (Opposition Exh. H at pp. 38–40; Exh. G at pp. 19–20.) For her part, Landers testified to certain instances where she found Plaintiff’s performance lacking. Plaintiff failed to promptly respond to a June 25, 2019 email regarding the feasibility of removing a red-painted curb in front of a local business, a matter brought to her attention by Jim Dear. (Motion Exh. DD.) However, Plaintiff responded promptly after Landers sent a follow-up email on July 1. (Ibid.)

Landers also attributed to Plaintiff’s poor management certain budgetary and accounting issues with the public works department, such as vendors complaining of lack of payment and repossession of items rented by the city. (Motion Exh. O at pp. 289, 292.) However, John Raymond attributed difficulties with accounts to the city’s overall accounts payable system. (Opposition Exh. H at pp. 118–126.) And the repossession of a generator rented by Public Works, a matter attributed by Landers to Plaintiff, was also attributed to the city staff’s transition to a new accounts payable system, when the issue was brought up at a city council meeting. (Motion Exh. E.)

Although Defendant cites Plaintiff’s failure to expeditiously handle a back flow monitoring initiative in August 2019, little on this point is in evidence beyond a brief email from Landers stating that she was reviewing the issue. (Motion Exh. O at pp. 333–334; Exh. II.)

More significant is an incident involving the company SocalGas, which came to the city council’s attention in a meeting of November 5, 2019. (Motion Exh. E.) At this meeting, representatives of SocalGas spoke of the need to close down the intersection of Wilmington Avenue and 223rd Street to inspect and potentially replace an underground gas pipeline, just as the city was set to celebrate the reopening of that same stretch of road after years of construction related to an ongoing CalTrans infrastructure project. (Motion Exh. E at p. 9, 29.) The SocalGas representative stated that they first sat down and discussed the matter with city officials on August 1, 2019. (Id. at p. 10.) But Councilmember Jim Dear stated that he had been informed in July by another gas company representative that the city was not cooperating with their efforts to make contact. (Id. at pp. 6–7.) Plaintiff was attending the meeting, and stated that the first email she had received on the issue was dated July 23, 2019, whereupon she had scheduled the August 1 meeting one week later. (Id. at pp. 14–15.) However, the SocalGas representatives stated that the email was not their first attempt at contact, but that they had tried to call both the city manager and the public works director (Plaintiff) by phone beginning in March/April or April/May, earlier that year. (Id. at pp. 8, 15–16.)

In the meantime, Plaintiff in October 2019 complained to Landers regarding her pay, claiming that it was not 20% above that of her nearest subordinate in compliance with an applicable city resolution. (Slaughter Decl. ¶ 19.) Plaintiff claims that Landers rebuffed her request, stating that “she did not feel comfortable taking this issue up with Jim Dear, or words to that effect.” (Ibid.)

Another incident involving a defective underground fuel tank took place in 2019 and 2020. In 2018, City Hall experienced a power failure, in which the generator proved defective, warranting the rental of an emergency generator. (PUMF No. 78.) Fixing the permanent generator was part of the duties of the building supervisor — a position under Plaintiff as director of public works — but because the supervisor position during this time was being rotationally filled on an interim basis, Plaintiff testified that the issue “flipped off the radar.” (Motion Exh. N at pp. 308–310.) The rental generator was eventually repossessed, and although Landers attributed fault for the repossession to Plaintiff, at the November 5, 2019 council meeting on the subject, fault was predominantly laid on the City’s accounts payable system. (Motion Exh. E.)

When asked concerning a November 2019 email to Plaintiff in which Landers discussed concerns by certain council members about her failure to promptly handle time-sensitive issues, Landers stated that “all” council members had concerns, but that “a number of these sensitive issues were brought to my attention by council member Jim Dear,” while other council members — Lily Davis-Holmes, Cedric Hicks, and Mayor Albert Robles — also shared concerns. (Motion Exh. O at p. 135.) When asked who shared the most concerns with her, Landers noted only that Dear had requested her personal intervention on two or three issues, without naming other members. (Ibid.)

Plaintiff for her part found Landers’ management style “chaotic” and overbearing, involving frequent inquiries and complaints about tasks which had already been completed. (Opposition Exh. B at pp. 226–227.) David Roberts agreed with Plaintiff’s assessment on this point, noting that he had received complaints from 15 employees about Landers’ management.(Opposition Exh. I at p. 87, 100–101.) Plaintiff testified concerning Landers’ practice of going to Plaintiff directly, over the head of her immediate supervisor, to seek action on particular tasks on which Council member Dear desired immediate action, such as the painting of a curb, or action taken against a particular homeless person, which was out of compliance with the ordinary process by which the city assigned work-orders. (Opposition Exh. B at pp. 230–232.) Plaintiff said that Landers seemed “hyper-focused” on making sure that Plaintiff took care of whatever Dear asked for. (Opposition Exh. B at p.233.) When Plaintiff concluded that a curb in front of a business should not have its red paint removed, Landers informed her that the curb was located in front of a business belonging to Dear’s friend, and, seeming “upset,” told Plaintiff “not to do anything else without her permission, because Dear had asked for that [curb] to be no longer a red curb, and I had gone against him by painting it red.” (Opposition Exh. B at pp. 233–234.) Plaintiff stated that Landers came to her with requests from other council members “very rarely.” (Opposition Exh. B at p. 234.)

At some point after Landers came on as city manager, Plaintiff complained to then-assistant city manager David Roberts about a conversation in which Landers had asked Plaintiff about her hair stylist, remarking that her own daughter had curly hair and “must have black blood in her because of her hair.” (Opposition Exh. I at p. 34.) Plaintiff found the remark offensive, and Roberts found it offensive as well. (Opposition Exh. I at pp. 34–35.)

In February 2020, Plaintiff engaged in another act of alleged protected activity, when she refused to sign FMLA paperwork for an absentee employee. That employee, T. Foisia, had been absent without leave since August 2019, submitting only a doctor’s note in September 2019, and another in November 2019, stating that she would be absent until January 13, 2020. (PUMF No. 62.) Upon the employee’s return in January 2020, Plaintiff was asked to acknowledge receipt and sign and acknowledgement on paperwork approving FMLA leave, falsely stating that the employee had provided prior notice for her leave in August 2019. (Motion Exh. N at p. 211; Opposition Exh. B [Plaintiff’s Depo., Exh. 8].) Plaintiff sent an email to HR director Faye Mosely and John Raymond, stating that Foisia had abandoned her job without notice for weeks in August 2019 prior to sending the doctor’s note, that termination was likely warranted, and declining to sign the FMLA paperwork, stating she was “concerned about this practice, and opposed to being part of something that appears to be unethical.” (Motion Exh. KK.)

On February 18, 2024, a council meeting was held that Defendant contends revealed new grounds for Plaintiff’s termination. The hearing concerned the public works department’s plan to convert a planned generator rental into a purchase agreement. (Motion Exh. G.) But in the department’s report on the proposal, the mayor noted a passage stating that the County of Los Angeles Waste Control Engineering Inspector for Environmental Program Division had been sending annual notices of violation on the state of the city’s fuel storage tank since 2014. (Motion Exh. G at pp. 4–5.) The council was advised by a county representative that this was a “serious issue” because it concerned “an underground storage tank housing fuel.” (Exh. G at p. 6.) When asked when she had known about the fuel tank issue, Plaintiff stated she had known from “a few years ago,” or “after 2017.” (Exh. G at pp. 7, 18.)

Landers testified that this meeting was “very damaging” to Plaintiff, because she had stated that “she was made aware of the [fuel tank] problem in 2017,” years before the meeting, and Landers had “never heard about it, and the problem existed in 2014, and she started working in 2015.” (Motion Exh. O at p. 352.) In his deposition testimony, John Raymond characterized this meeting as a “watershed” in Plaintiff’s tenure as director, and indication that she did not “get it.”. (Motion Exh. S at p. 54.)

One week after this council meeting, on February 25, 2020, a state elevator inspector arrived at city hall to red-tag the elevator and take it out of commission. (PUMF Nos. 118–119.) Plaintiff learned on that date that a notice had been sent to the city in November 2019, albeit to the city hall address “c/o City of Carson Bldg. Maint.” (Motion Exh. AA.) Although Plaintiff worked to have the elevator vendor perform the required inspection to allow the elevator to reopen, the elevator was not open in time for a pending council meeting — which meant, because council meetings occur on the second floor of City Hall, that people wwith mobility impairments could only attend via a remote screen and microphone on the first floor. (PUMF Nos. 120–122.)2 The contract for the elevator vendor, secured by Plaintiff’s department, omitted language to address emergencies. (PUMF No. 123.)

Landers terminated Plaintiff on March 10, 2024. (PUMF No. 2.) In the termination letter, Landers stated that Plaintiff was being terminated because of “the change in City Manager administration arising from my hire, the determination of the incompatibility of management styles, and the need for improved implementation of the goals and policies of the City.” (Opposition Exh. P, at p. 0016.) Landers herself would be terminated in March 2022, following an investigation into accusations of discrimination and bullying. (Opposition Exh. C at pp. 28–29; Exh. J at pp. 46, 51.) Council member Jawane Hilton made a public accusation of discrimination and bullying against Landers in an August 2021 council meeting, based on her passing over of David Roberts, the available assistant city manager, for appointment as interim city manager, in favor of one of Roberts’ subordinates. (Opposition Exh. J at pp. 28–30.) When Hilton, an African American, inquired privately with Landers about the reason for her appointment of Roberts’ subordinate, her explanation was, “I chose him.” (Opposition Exh. J at p. 31.) Hilton said he made the complaint of discrimination and bullying because he felt disrespected by the encounter with Landers, even as her supervisor, and could “only imagine” what it was like for employees working under her. (Opposition Exh. J at p. 33.)

2. Retaliation

In order to establish a prima facie case of retaliation under this section [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. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244, internal quotation marks omitted.) The elements of Labor Code § 1102.5 are similar, but the protected activity at issue is the disclosure of information that the employee reasonably believes constitutes a violation of state, federal, or local law. (Lab. Code § 1102.5, subd. (b).)

Defendant argues that Plaintiff cannot prevail on her retaliation claims because her claimed instances of protected activity are not protected under either FEHA or Labor Code § 1102.5. (Motion at pp. 13–14, 22–23.) Defendant argues that Plaintiff’s refusal to sign backdated FMLA paperwork and her complaint over the failure to abide by a city resolution on pay differences between supervisors and employees amount only to ethical or internal policy complaints, not complaints as to a “violation of a federal, state, or local law. (Motion at pp. 13–14.) And Defendant argues that Plaintiff’s participation in the 2015-2016 investigation of Jim Dear was not protected, because the only information she provided concerned instances of odd behavior by Dear that did not amount to harassment or discrimination, and that the acts of vandalism identified by Plaintiff had no identified culprit. (Motion at pp. 13–14.)

Defendant’s argument is meritorious as to Plaintiff’s complaints regarding FMLA compliance and pay disparities. This is because Labor Code § 1102.5 only preserves an employee from retaliation for disclosing information for which the employee “has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Lab. Code § 1102.5, subd. (b).)

Plaintiff’s complaints in these regards do not disclose apprehension of any violation of law. Although Plaintiff argues that signing back-dated FMLA forms put her in danger of committing fraud or perjury, Plaintiff identifies no party being defrauded, nor any statements being made under oath. (Opposition at p. 6.) Likewise, Plaintiff’s complaint based on her pay sounded in the failure to comply with a non-binding city resolution, not a local rule or regulation. (Opposition at p. 9; see San Diego City Firefighters, Local 145 v. Bd. of Admin. of San Diego City Emples. Ret. Sys. (2012) 206 Cal.App.4th 594, 607 [“[A] resolution ... is ordinarily not equivalent to an ordinance. A resolution is usually a mere declaration with respect to future purpose or proceedings.... An ordinance is a local law which is adopted with all the legal formality of a statute.”].)

However, Plaintiff’s disclosures to investigators during the 2015-2016 Jim Dear investigation are protected. Although Plaintiff disclosed no first-hand information supporting a finding of discrimination and harassment against Dear, she reported information heard from others concerning Dear’s disparate treatment of African Americans, in addition to her own experiences. (Opposition Exh. K (Dear Deposition Exh. 2).)The report of Dear’s disparate treatment of African American employees constituted both a report of a FEHA violation and of state and federal discrimination statutes. Although Defendant argues that Plaintiff lacked “first-hand knowledge” of any violations, Defendant identifies no authority for the proposition that a reporting employee must have first-hand knowledge of the information they disclose to be protected under either FEHA or Labor Code § 1102.5. (Reply at pp. 5–6.) Thus triable issues exist as to whether Plaintiff engaged in protected activity by participating in the investigation.

Triable issues also exist as to whether Plaintiff has made a prima facie case of retaliation, based on the causal link between her protected activity and her termination. Plaintiff submits evidence that shortly after Landers’ appointment as city manager, councilmember Jim Dear raised numerous concerns to Landers about Plaintiff specifically. (Opposition Exh. B at p. 232.) This occurred within a “relatively short time” after Dear’s return to the council in 2018. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.) Plaintiff presents evidence that other individuals who provided testimony for the investigation were subject to adverse actions after Dear’s return to the City Council. (Slaughter Decl. ¶¶ 4, 20.) Landers testified that although numerous council members had concerns over Plaintiff’s performance, she specifically recalled only Dear’s personal interventions into Plaintiff’s department. (Motion Exh. O at p. 135.) And when Plaintiff complained to Landers regarding her rate of pay in October 2019, she states that Landers expressed discomfort specifically with bringing the issue before Jim Dear. (Slaughter Decl. ¶ 19.)

Once a plaintiff makes a prima facie showing of retaliation, a defendant may overcome it for FEHA retaliation purposes by providing evidence of a legitimate, nonretaliatory reason for the adverse action, whereby the burden shifts back to the plaintiff to show that the provided retaliatory reason is pretextual. (See McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388.) Under Labor Code § 1102.6, once the employee makes a showing that retaliation was a contributing factor, “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.” (Lab. Code § 1102.6.)

Here, Defendant attempts to show that Plaintiff’s termination was the product of nonretaliatory assessment of Plaintiff’s fitness for the director position, specifically by reference to several instances in which Plaintiff failed to follow through or notify higher-ups about pending issues in the public works department, such as attempts by SocalGas to contact the city for a pipe inspection, attempts to fix the city’s permanent generator, longstanding problems with the city’s underground fuel tank, and the failure to ensure elevator vendors were available for emergency repairs.

However, triable issues of fact exist as to whether these issues are pretext for termination, or whether Defendant would have terminated Plaintiff in the absence of the contributing factor of retaliatory motive. Plaintiff notes that her only job performance reviews stated that she exceeded job requirements. (Opposition Exh. G [Farfsing Depo., Exhs. 1, 2.].) Nor had Plaintiff ever suffered job-related discipline while working for Defendant.Additionally, Plaintiff presents evidence that a number of the concerns raised by Landers as to Plaintiff’s performance were raised specifically at the behest of Jim Dear, the subject of the investigation in which Plaintiff participated. Landers herself acknowledged that Dear was the council member with the most concerns about Plaintiff, and could only recall instances in which Dear had asked Landers to get personally involved in Plaintiff’s work. (Motion Exh. O at p. 135.) Plaintiff herself testified that Landers personally intervened in her work, often going around her immediate supervisors and frequently at Dear’s behest, and only “very rarely” on behalf of the other councilmembers. (Opposition Exh. B at p. 234.) Triable issues thus exist as to whether Landers’ evaluation of Plaintiff’s performance was influenced by the insistent concerns of Jim Dear, and Plaintiff’s performance in adhering to his frequent requests. Given the evidence of the relative temporal proximity between Dear’s return to the council and Plaintiff’s termination, and the actions taken against other city employees who participated in the investigation, triable issues exist as to whether retaliatory motive was a contributing factor in Plaintiff’s termination, or whether Defendant’s proffered reason for her termination was pretext.

The motion is therefore DENIED as to the retaliation causes of action. This determination necessarily warrants the denial of Defendant’s motion as to the derivative fourth and fifth causes of action for failure to prevent FEHA violations and declaratory relief.

3. Discrimination

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(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, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.) Once again, if the employer offers evidence of a legitimate, nondiscriminatory reason for the action, “the plaintiff bears the burden of proving the employer's proffered reason was pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)

Much of Defendant’s discussion of Plaintiff’s discrimination claim mimics its arguments on the retaliation claim, as it applies to the legitimate, nondiscriminatory reasons offered for Plaintiff’s termination. (Motion at pp. 26–27.) However, Defendant also argues that race was not a motivating factor in Plaintiff’s termination, based largely on the absence of interaction between Dear and Plaintiff.

Plaintiff has presented evidence suggesting that whether race was a substantial motivating factor in her termination is a triable issue of fact. City Manager David Roberts expressed agreement with the proposition that Jim Dear had “particular disdain” for African Americans. (Opposition Exh. I at pp. 72–73.) Plaintiff complained to Roberts concerning a conversation had with Landers in which Landers made an offensive remark concerning her daughter having “black blood” because of her curly hair. (Opposition Exh. I at p. 34.) Although Defendant argues that this comment is not independently actionable (Reply at p. 8), it need not be independently actionable to furnish some evidence of discriminatory motive. Additionally, Plaintiff presents evidence that Landers passed over a more senior black employee to occupy her interim management position in favor of a less-senior employee in the year after Plaintiff was terminated. (Opposition Exh. J at pp. 28–33.) This evidence is admissible to create a triable issue of fact as to Landers’ discriminatory intent with regard to Plaintiff’s termination. (See Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 759 [discussing admissibility of “me too” evidence to establish discriminatory intent].)

The motion is therefore DENIED.