Judge Lynne M. Hobbs, Case Number: 21STCV08227, Date: 2024-12-17 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV08227, Date: 2024-12-17 Tentative Ruling

Case Number: 21STCV08227 Hearing Date: December 17, 2024 Dept: 61

CYNTHIA CAMPOS vs CROWN CASTLE USA, INC., et al.

TENTATIVE

Defendants Crown Castle, USA, Inc., Steve Defranco, and Jon Rosen’s Motion for Summary Judgment or Adjudication is GRANTED as to the first cause of action for FEHA discrimination based on age. The motion is DENIED as to the first cause of action for FEHA discrimination based on gender and disability, as to each remaining cause of action, and as to the prayer for punitive damages.

Plaintiff to provide notice.

DISCUSSION

I. OBJECTIONS

Plaintiff Cynthia Campos (Plaintiff) objects to portions of the declaration of Steve DeFranco submitted in support of the motion for summary judgment. DeFranco confines his testimony to matters within his personal knowledge, and these objections are OVERRULED. Objections No. 6 and 14 are OVERRULED as to documents Plaintiff claims were not previously produced in discovery, as Plaintiff has had an opportunity to inquire into these documents since the motion was filed.*

Defendants Crown Castle USA, Inc., Steve Defranco, and Jon Rosen offer objections to the declarations submitted by Plaintiff in opposition to the motion. Objections No. 2–11 to the declarations of Cynthia Ebert and Molette Bradford are SUSTAINED, as these declarations are offered as “me too” evidence of discrimination and retaliation, yet at different offices in Houston, Texas and Boxborough, Massachusetts, and do not touch upon the same decisionmakers or actors who affected Plaintiff. (See Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, 97–98 [excluding complaints of other employees where there was no evidence “whether they complained to the medical school, whether the complaints had merit, whether complainants were supervised or even had any contact with . . . any of the other actors [plaintiff] claimed had wronged her”].)

Defendants also offer extensive objections to the lengthy declaration of Plaintiff Cynthia Campos. Objections No. 1–4 as to Plaintiff’s characterization of Jon Rosen as her supervisor are SUSTAINED, because Plaintiff testified directly in her deposition that Rosen was not her supervisor in any sense, and may not contradict this direct admission by a subsequent declaration. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 [holding that a plaintiff cannot contradict “a clear and unequivocal admission by the plaintiff, himself, in his deposition” in a later declaration opposing summary judgment].)

Objections No. 1–4, 8–31, 33–37, and 82–84 are properly SUSTAINED for the same broad reason: the paragraphs objected to consist only of legal conclusions without evidentiary support, in which Plaintiff testifies without foundation to the satisfaction of the ultimate elements of her claims, such as the fact that she experienced “discrimination” on a particular basis at the hands of a particular person, without offering any foundation for the assertion.

Objections No. 62, 79, and 95 are SUSTAINED as to Plaintiff’s characterization of various investigations and work requirements as “sham[s],” which are speculative as to Defendants’ underlying intent. Objections No. 80, 81, and 92 are SUSTAINED on the same basis, regarding Plaintiff’s speculation concerning the motives behind Defendant’s categorization of enterprise and commercial accounts executives. Similar reasons justify the SUSTAINING Objection No. 101 and 125, attributing to an employee of Defendant knowledge of Plaintiff’s request for leave without foundation, and characterization of work calls as retaliatory, again without foundation.

Objections No. 80 and 81 are SUSTAINED, as to Plaintiff’s mischaracterization of the October 2018 email as including references to the loss of clients, when no such losses are mentioned.

Objections No. 118, 120, and 122 are SUSTAINED on grounds of hearsay, as Plaintiff attempts to suggest that her complaints were not properly investigated by citing out of court statements of her co-workers who purportedly told her that they were not contacted.

II. MOTION FOR 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.)

Defendants Crown Castle, USA, Inc. Steve Defranco, and Jon Rosen (Defendants) move for summary judgment or adjudication of Plaintiff Cynthia Campos’ causes of action for employment discrimination, harassment, and retaliation, and associated claims for wrongful termination and intentional infliction of emotional distress.

1. FEHA Discrimination & Retaliation

Defendants’ arguments with respect to Plaintiff’s claims for discrimination and retaliation under FEHA are broadly similar. Although Plaintiff alleges that she was subject to discipline, performance improvement plans (PIPs), and ultimately termination while on leave because of bias against her because of her sex, age, disability, and in retaliation for her complaints of the same, Defendants argue that Plaintiff was subject to PIPs and ultimately terminated because of her inability to meet sales quotas, culminating in the abandonment of her job. (Motion at pp. 17–23, 24–25.)

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.)

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.) Once a plaintiff makes a prima facie showing of retaliation, a defendant may overcome it 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.)

Defendants here offer evidence that Plaintiff was employed as a sales executive with Crown Castle USA, Inc., and that she failed to meet her sales quota during the entirety of her tenure under the supervision of Defendant Steve Defranco, with a PIP first raised as a possibility with her in October 2018. (Defranco Decl. ¶¶ 2–4.) Although Plaintiff alleges that accounts were taken from her because of discriminatory animus or retaliation for her taking of leave, Defendant contends that Plaintiff was actually permitted to keep accounts that were beyond her permissible value as a “commercial” sales executive. (Motion Exh. 3 at pp. 20–21, 46–47.) Defendants contend that Plaintiff was not able to raise her performance, and was terminated in November 2020, while on a PIP, after failing to return from FMLA leave. (Motion Exh. 3 at pp. 147–148; Exh. 2 (Campos Depo. Ex. 6).)

Plaintiff, however, presents evidence creating triable issues of fact as to the potential retaliatory and discriminatory motive for placing her on PIP plans and the ultimate termination of her employment. Although Defendant presents evidence that Plaintiff failed to meet her sales quotas, Plaintiff testifies that she was not permitted to satisfy her sales quota because sales leads were apportioned exclusively to male employees upon their request, while she herself was not permitted to obtain them. (Motion Exh. 2 at pp. 100–101, 158–159, 215–216.) Plaintiff also states in her declaration that when other account executives left, her male co-workers were given the remaining accounts, with rationales — geographic proximity, preexisting relationships, etc. — that did not apply when she asked for the accounts. (Campos Decl. ¶ 87.) Although Defendants argue that Plaintiff’s substandard performance means she was not performing competently in her position (Motion at pp. 17–18, 22), Plaintiff’s testimony on this issue creates triable issues of fact.

Further bolstering this conclusion is additional evidence that Plaintiff’s placement on PIPs was retaliatory and intended to discriminate against her based on her disability, which she states is a hemiplegic migraine. (Campos Decl. ¶ 53.) Plaintiff testifies that in November 2018, which Defendants argue was their first attempt to broach the subject of PIPs with her, she had lately requested FMLA leave, and was told by her supervisor Defranco that if she proceeded with her leave she would be placed on the PIP. (Campos Decl. ¶¶ 46–48.) Plaintiff states that she agreed to postpone her request for leave. (Campos Decl. ¶¶ 49–51.)

After Plaintiff took leave in 2019, and returned in June of that year, she levied a complaint in April 2020 that some of her accounts had been targeted by other employees in a manner she characterized as discriminatory. (Campos Decl. ¶¶ 55–57;Alfaro Decl. Exh. 1.) Plaintiff’s new supervisor, Michelle Preston, thereafter told her that Matt Beattie, the supervisor in charge of distribution of the leads, was asking her to “retract” the complaint. (Campos Decl. ¶ 63; Exh. 3 at p. 32.) Plaintiff testified at deposition that Preston had asked her “to say that everything was okay and not to go forward with the e-mail” that contained the complaint. (Motion Exh. 2 at p. 231.) And although Defendants argue that Plaintiff abandoned her employment by failing to return from leave on the appointed date of November 10, 2020, Plaintiff testifies that she had requested an extension of leave from Crown Castle’s third-party benefits administrator, which was granted. (Campos Decl. ¶ 26;Alfaro Decl. Exh. 10.) Plaintiff thus presents evidence of discriminatory and retaliatory motive for her PIPs and termination.

The sole FEHA claim for which Plaintiff fails to rebut Defendant’s showing is her claim for age discrimination. Defendant presents evidence that the adverse actions taken against Plaintiff were based on her failure to satisfy sales goals, and Plaintiff presents evidence of prejudice based on her sex, her taking of disability leave, and her levying of FEHA-related complaints. But Plaintiff presents no evidence that her age —53 years old when her employment was terminated in November 2020 — had anything to do with the actions taken against her. Plaintiff in opposition cites the giving of one of her accounts to a younger executive, but the evidence cited for this proposition says nothing about the other salesperson’s age. (Opposition at p. 14; Plaintiff’s Separate Statement No. 93.)

The motion is therefore GRANTED as to the first cause of action for FEHA Age Discrimination, and DENIED as to the first cause of action for FEHA gender and disability discrimination, the third cause of action for FEHA retaliation, and the fourth cause of action for wrongful termination.

* By the same token, Plaintiff’s request for a continuance of the motion is DENIED. (Motion at pp. 5–8.)

2. FEHA Harassment & IIED

Defendants argue that Plaintiff cannot make a case for FEHA harassment because the conduct she alleges she was subjected to was not because of her sex or gender, and was not sufficiently severe or pervasive to establish liability. (Motion at pp. 23–24.) Defendants argue that Plaintiffs’ similar allegations supporting the IIED claim fail to establish severe emotional distress, and are preempted by California’s worker’s compensation bargain. (Motion at pp. 25–27.)

The elements of an IIED claim are: (1) extreme and outrageous conduct by defendant; (2) made with intent to cause, or with reckless disregard of the probability of causing, emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; Bogard v. Employers Casualty Company (1985) 164 Cal.App.3d 602, 616.) The level of distress required to state a claim for IIED is distress of “such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “‘[California's] Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) . . . explicitly prohibits an employer from harassing an employee on the basis of race, sex or [ethnicity.]’ . . . To prove a claim under Title VII, the harassment must be ‘sufficiently severe or pervasive “to alter the conditions of [the victim's] employment and create an abusive working environment.”’ [Citation.]” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 35.)

Plaintiff here presents sufficient evidence of severe and pervasive harassment in the form of misconduct by her coworker Jon Rosen. Plaintiff testified that Rosen on a “regular basis” raised his voice to Plaintiff and was very condescending, and often resorting to yelling. (Motion Exh. 2 at p. 343.) Plaintiff stated that Rosen did not behave this way with everyone, and that this was a pattern of behavior he directed to women. (Motion Exh. 2 at pp. 227–228.) Plaintiff described the first time she met Rosen during a work visit to a California Pizza Kitchen, in which Rosen during an ordinary conversation began to yell at her at such intensity that another person in the restaurant asked Plaintiff if she was okay. (Motion Exh. 2 at pp. 227–228, 347–348.) Plaintiff described another encounter in which, after a meeting in which Plaintiff made a mistake, Rosen began yelling at her in the elevator, telling her that she was “worthless.” (Motion Exh. 2 at p. 231.) Plaintiff characterized this as “a normal thing for him.” (Ibid.) When Plaintiff brought up Rosen’s behavior with her supervisor, she was informed that this was just how Rosen behaved, and he didn’t mean anything by it. (Motion Exh. 2 at p. 228.)

Plaintiff testified that in January or March of 2020, she had a phone conversation with Rosen in which Rosen revealed that another employee was targeting her accounts, and then yelled at her several times that he would “kill” Plaintiff if she ever told anyone that he had revealed the information. (Motion Exh. 2 pp. 229, 233.) Plaintiff described Rosen as “yelling and screaming,” and repeating that he was going to kill Plaintiff “four to five times.” (Motion Exh. 2 at pp. 232–233.) Plaintiff stated that she felt scared, genuinely believing that Rosen would follow through on his threat, and contemplated calling the police. (Motion Exh. 2 at pp. 231, 235.) Plaintiff states that she told her supervisor Michelle Preston of this encounter in the same April 2020 meeting in which Preston asked her to retract her complaint of discriminatory practices. (Motion Exh. 2 at p. 227.)

This evidence creates triable issues as to whether Plaintiff experienced severe and pervasive discrimination based on her gender. Defendants note that Rosen’s comments were not addressed to Plaintiff’s gender. (Motion at pp. 23–24.) Yet Plaintiff testified that Rosen spoke this way specifically to women. (Motion Exh. 2 at pp. 227–228.) Triable issues thus exist as to whether gender was a motivating factor in this behavior.

Defendants argue that Plaintiff has not presented facts evidencing severe emotional distress, yet triable issues of fact exist on this point as well. (Motion at pp. 26–27.) Defendants argue that Plaintiff’s distress “boils down to her inability to handle expected workplace stresses.” (Motion at pp. 26–27.) But Plaintiff testified to stresses beyond the ordinary workplace stressors, such as being placed in fear for her life, regular insomnia, exacerbation of her migraine headaches (which had their origin in a March 2019 fall (Motion Exh. 2 at p. 76), and diarrhea borne of anxiety. (Motion Exh. 2 at pp. 162–164.) Triable issues exist as to whether Plaintiff experienced severe emotional distress.

Defendants’ final argument as to the preemption of the IIED claim through the doctrine of worker’s compensation exclusivity also fails, because Plaintiff’s claims sound in violations of fundamental public policy. (Motion at p. 26.) “[D]iscrimination in violation of a fundamental public policy of this state” is said to fall “outside of the exclusive remedy provisions of the Labor Code,” meaning they are no impediment to IIED claims founded upon discrimination under FEHA. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1706 [applying the fundamental public policy exception to an IIED claim].)

The motion is therefore DENIED as to the second and fifth causes of action for FEHA harassment and intentional infliction of emotional distress.

Defendant’s motion identifies two other issues for summary adjudication: Plaintiff’s entitlement to punitive damages, and a potential basis for Plaintiff’s termination because of after-acquired evidence. (Motion at p. 4.) The memorandum however contains no argument on either point, and these issues are included only as conclusory invocations of the doctrines involved, without either argument or supporting authority. The motion is DENIED as to these issues.