Judge: Marcella O. Mclaughlin, Case: 37-2023-00011222-CU-WT-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 09, 2024

05/10/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2023-00011222-CU-WT-CTL NEEL VS SAN DIEGO ASSOCIATION OF GOVERNMENTS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 02/23/2024

The motion for summary judgment or, in the alternative, summary adjudication is GRANTED in part and DENIED in part.

A. Although defendant did not submit a proposed order – as expressly required by CRC 3.1354(c) – the court rules on defendant's evidentiary objections (ROA 55) as follows: -Objection 2 is sustained as to the third sentence.

-Objection 10 is sustained as to the phrase '[n]o one cared[.]' -Objection 18 is sustained as to the phrase 'there was no formal plan to do so[.]' -Objection 24 is sustained to the third, fourth, and fifth sentences. Objection 24 is further sustained as to the phrase 'I believe it played a role in how Mr. Neel and others were perceived at SANDAG.' -The remaining objections are overruled.

B. The motion for summary adjudication of issue 3 is granted.

In cases alleging employment discrimination, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S.

792. However, '[w]hen seeking summary judgment or summary adjudication in an employment discrimination case, the burdens established by the McDonnell Douglas framework are altered.' Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32. 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. Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003. If the employer satisfies its initial burden, the plaintiff then has the burden to offer 'substantial evidence' that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in discrimination. Hersant v. Department of Social Services (1997) 57 CalApp.4th 997, 1004-05.

Here, defendant submitted evidence showing that it terminated plaintiff's employment for poor work performance. (NOL Ex. 15.) This is a legitimate, non-discriminatory reason. The burden thus shifts to Calendar No.: Event ID:  TENTATIVE RULINGS

3079083  8 CASE NUMBER: CASE TITLE:  NEEL VS SAN DIEGO ASSOCIATION OF GOVERNMENTS [IMAGED]  37-2023-00011222-CU-WT-CTL plaintiff to produce specific and substantial evidence that the stated reason for his termination was untrue or pretextual or that defendant acted with discriminatory animus, such that a trier of fact could conclude defendant engaged in intentional discrimination based on plaintiff's age.

Plaintiff disputes that he was performing poorly at the time of his termination, pointing out that he had been an excellent employee for 30 years. This evidence is not sufficient. A reason cannot be pretext for discrimination ''unless it is shown both that the reason was false, and that discrimination was the real reason.'' See Hicks, 160 Cal.App.4th at 1003 (quoting St. Mary's Honor Center v. Hicks (1993) 509 U.S.

502, 515). 'Logically, disbelief of an Employer's stated reason for a termination gives rise to a compelling inference that the Employer had a different, unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one.' McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531-32.

Plaintiff contends that discriminatory animus can be inferred from the fact that many of his job duties were given to an existing employee who was in his 30s. (Neel Decl., ¶ 16.) The court disagrees.

Although the replacement of an older worker by a younger one can establish a prima facie case of age-based discrimination (see Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 76), that fact alone does not constitute 'specific, substantial evidence of pretext' because younger workers typically replace older ones. See O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 582. Plaintiff has not submitted any evidence showing that defendant ever disapproved of, disparaged, or was hostile toward him because of his age. To the contrary, plaintiff testified that no one ever made comments about his age and he did not consider defendant to be ageist. (Neel Depo. at 129:15-22.) In sum, plaintiff has failed to show that defendant's decision to terminate his employment was motivated by discriminatory animus.

C. The motion for summary adjudication of issue 4 is denied.

For purposes of making a prima facie showing of retaliation under FEHA, the causal link element may be established by an inference derived from circumstantial evidence. McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388. Proximity in time between the employee's protected activity and the adverse employment action satisfies the employee's prima facie burden.

Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1048-49.

In this case, there is a triable issue of material fact regarding whether there is a causal link between plaintiff's religious accommodation request in September 2021 and defendant's decision to terminate him in December 2022. See Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 394 (finding gap of 16 months between protected activity and termination established causal link for purposes of prima facie case of retaliation); see also Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421 (explaining that there may be a causal connection, notwithstanding a long period between an employer's adverse employment action and the employee's earlier protected activity, 'if between these events the employer engages in a patter of conduct consistent with a retaliatory intent').

The evidence that creates this triable issue includes: (i) the declaration of Thomas Neel; (ii) the deposition of Thomas Neel; and (iii) NOL Exhibits 4, 13, and 15.

D. The motion for summary adjudication of issue 5 is denied.

Like claims for discrimination, retaliation claims are subject to the McDonnell Douglas burden-shifting analysis. Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1193. Here, liberally construing the evidence in plaintiff's favor, and in light of the California Supreme Court's observation that '[r]etaliation claims are inherently fact specific,' the court finds there is a triable issue of material fact regarding whether defendant's stated reason for plaintiff's termination was pretext for retaliation based on his religious accommodation request. See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052; see also Zamora v. Security Industry Specialists (2021) 71 Cal.App.5th 1, 33 ('[M]any employment Calendar No.: Event ID:  TENTATIVE RULINGS

3079083  8 CASE NUMBER: CASE TITLE:  NEEL VS SAN DIEGO ASSOCIATION OF GOVERNMENTS [IMAGED]  37-2023-00011222-CU-WT-CTL cases present issues of intent and motive, issues not determinable on paper.'). The evidence that creates this triable issue includes: (i) the declarations of Lisa Starace, Pat Landrum, and Thomas Neel; (ii) the depositions of Thomas Neel and Rachel Nycholat; and (iii) NOL Exhibits 4 and 15.

E. The motion for summary adjudication of issue 7 is granted.

Plaintiff has failed to raise a triable issue of material fact that defendant's stated reason for his termination was pretext for retaliation based on his disability accommodation requests. The evidence shows that plaintiff began requesting disability accommodations in April 2017. (Ex. 1.) It is undisputed that defendant approved every single request. (UMF 4.) While defendant's Executive Director may have preferred that employees work in the office, rather than remotely, there is no evidence that he (or anyone else working for defendant) resented or disapproved of plaintiff's disability accommodation requests.

F. The motions for summary adjudication of issues 1, 2, and 6 are denied as moot in light of the court's ruling on issues 3 and 7.

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