Judge: Maurice A. Leiter, Case: 20STCV08916, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCV08916    Hearing Date: September 29, 2022    Dept: 54

Hearing Date: September 29, 2022

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendants City of West Covina, Lloyd Johnson, Tony Wu, Glenn Kennedy, and David Carmany

Responding Party: Plaintiff Larry Whithorn

T/R:     DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS DENIED.

DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION OF THE FOURTH, SEVENTH, THIRTEENTH, AND FOURTEENTH CAUSES OF ACTION IS GRANTED.

DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION OF THE REMAINING CAUSES OF ACTION IS DENIED.

            DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing

The Court considers the moving papers, opposition,[1] and reply.

BACKGROUND

This is an employment action. On May 21, 2020, Plaintiff Larry Whithorn filed the operative second amended complaint against Defendants City of West Covina, Lloyd Johnson, Tony Wu, Glenn Kennedy, and David Carmany, asserting causes of action for (1) discrimination in violation of FEHA; (2) harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to provide accommodation; (5) failure to engage in the interactive process; (6) failure to prevent discrimination, harassment and retaliation; (7) violation of CFRA; (8) violation of Labor Code § 1102.5; (9) violation of the Firefighter Bill of Rights; (10) wrongful termination in violation of public policy; (11) intentional infliction of emotional distress; (12) negligent infliction of emotional distress; (13) defamation; (14) coerced self-publication defamation; and (15) negligent hiring, supervision, and retention.

Plaintiff was employed as the Fire Chief for the City of West Covina beginning in 2014. Plaintiff alleges he was terminated because of his disability and age, for taking CFRA leave, and for reporting harassment. Plaintiff alleges certain city councilmembers colluded to have him terminated.

EVIDENCE OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” Code of Civil Procedure § 437c(q). Defendants’ objections nos. 8, 14, 22, 23, 33, 50 are OVERRULED.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with 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.) Trial judges are required “to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(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.” (Id.)  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.) 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.)

Defendants move for summary judgment or in the alternative summary adjudication of Plaintiff’s causes of action.[2]

A. First Cause of Action for Discrimination

To successfully assert a claim for discrimination, Plaintiff must satisfy the requirements of the three-step McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.)  Generally, a prima facie case requires showing that (1) plaintiff was a member of a protected class; (2) they were qualified for the position they sought or were performing competently in the position they held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (See id. at 355.) 

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.) 

If the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff must then show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Id.) 

On a motion for summary judgment, the moving Defendant initially must show that under the undisputed material facts, (1) one or more elements of plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.)  In other words, the initial burden on summary judgment remains with the moving party at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432.) 

            Defendants assert that Plaintiff cannot establish a prima facie case of age discrimination because any comments about Plaintiff’s age were “stray” comments that cannot support discrimination, and because Defendant Carmany, who was the ultimate decisionmaker in Plaintiff’s termination, did not comment on Plaintiff’s age. (UMF ¶¶ 83-85, 88.)

Defendants also contend that Plaintiff cannot establish a prima facie case of disability discrimination because Plaintiff did not discuss his disability, or his father’s disability, with Carmany, and Plaintiff took CFRA leave more than a year and a half before Carmany was hired. (UMF ¶¶ 93-95.)

            And Defendants argue that Plaintiff was terminated for legitimate, not-discriminatory reasons. Defendants present evidence showing the West Covina Firefighter’s Associate took a no-confidence vote against Plaintiff in 2017. (UMF ¶¶ 49-52.) Carmany also toured the fire stations and determined morale was low. (UMF ¶ 58.) Defendants assert Carmany unilaterally decided to terminate Plaintiff because of the tour. (UMF ¶¶ 59-65.)

            In opposition, Plaintiff asserts that Defendants’ reasons for his termination are merely pretext. Plaintiff presents positive performance reviews from 2016-2018 and states that Defendants never raised any performance issues with Plaintiff. Plaintiff claims three city councilmembers made biased remarks about Plaintiff’s age and retirement plans, and the legitimacy and duration of his medical/CFRA leaves. (UMF ¶¶ 42-47.) Plaintiff argues that the city councilmembers, who had power to uphold or reverse Plaintiff’s termination, were the force behind his termination. This is sufficient to establish a triable issue of fact as to Plaintiff’s discrimination claims.

            The motion for summary judgment is DENIED. The motion for summary adjudication of the first cause of action is DENIED.

B. Second Cause of Action for Harassment

A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1045, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated, or sporadic is insufficient. (See id.)  

            Defendants assert that Plaintiff’s cause of action for harassment fails for the same reasons as Plaintiff’s discrimination: that Carmany did not consider Plaintiff’s age and any comments made were sporadic and trivial. As discussed, Plaintiff presents evidence that he was subjected to discriminatory language and questions. This is sufficient to create a triable issue of fact as to harassment.

            Defendants’ motion for summary adjudication of the second cause of action is DENIED.

C. Third and Eighth Causes of Action for Retaliation

To establish retaliation under FEHA, a plaintiff must show that “(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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043; see also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.)

To establish a prima facie case of retaliation under section Labor Code § 1102.5(b), “a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.”  (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

Defendants contend the causes of action for retaliation fail because Plaintiff made complaints regarding comments about his age and requested medical leave before the City hired Carmany. In opposition, Plaintiff presents evidence showing Carmany was aware of Plaintiff’s complaints and allowed his grievance to be swept under the rug. This is sufficient to create a triable issue of fact.

Defendants’ motion for summary adjudication of the third and eighth causes of action is DENIED.

D. Sixth Cause of Action for Failure to Prevent Discrimination and Retaliation

            Defendants argue that Plaintiff cannot state a cause of action for failure to prevent discrimination and retaliation because Plaintiff cannot establish discrimination or retaliation. As stated, Plaintiff has shown a triable issue of fact as to discrimination and retaliation.

            Defendants’ motion for summary adjudication of the sixth cause of action is DENIED.

E. Fourth Cause of Action for Failure to Accommodate and Seventh Cause of Action for Violation of CFRA

            Defendants assert Plaintiff cannot establish the fourth cause of action because Plaintiff’s requests for accommodation were granted. Defendants also contend the seventh cause of action fails because Carmany did not take Plaintiff’s CFRA leave into account when deciding to terminate his employment. In opposition, Plaintiff asserts that Defendants were upset that Plaintiff took leave and Plaintiff was required perform job duties in violation of CFRA. These facts do not establish triable issues of fact for failure to accommodate or violation of CFRA.

            The motion for summary adjudication of the fourth and seventh causes of action is GRANTED.

G. Ninth Cause of Action for Violation of Firefighter’s Bill of Rights

            Defendants contend that Plaintiff does not have evidence of any violation of the Firefighter’s Bill of Rights (Gov. Code §§ 3250, et seq.) In opposition, Plaintiff presents evidence that Defendants failed to provide a fair appeal hearing. This creates a triable issue of fact.

            Defendants’ motion for summary adjudication of the ninth cause of action is DENIED.

H. Tenth Cause of Action for Wrongful Termination

            Defendants argue that the tenth cause of action fails for the same reasons as the discrimination and retaliation claims. As shown, there are triable issues of fact as to these claims.

            Defendants’ motion for summary adjudication of the tenth cause of action is DENIED.

I. Eleventh Cause of Action for Intentional Infliction of Emotional Distress

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)  

            Defendants assert that Plaintiff’s termination cannot form the basis of an IIED claim. Plaintiff has presented evidence that he was questioned repeatedly about his age and saw Facebook posts from Defendants that revealed the existence of a running countdown until the day he could be fired. This creates a triable issue of fact.

            Defendant’s motion for summary adjudication of the eleventh cause of action is DENIED.

J. Thirteenth and Fourteenth Causes of Action for Defamation and Self-Coerced Defamation

            The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)  

“To be successful with compelled self-publication defamation, a plaintiff already must prove a necessity and a strong compulsion to disclose the statement, and the employer must be able to reasonably anticipate the self-publication… The plaintiff also must demonstrate that he actually published the statement.” (Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 557.)

            Defendants assert that Plaintiff does not have evidence that Carmany stated Plaintiff “does not get along with people,” nor does Plaintiff have evidence Plaintiff published the statement. In opposition, Plaintiff merely says “representatives” of West Covina stated Plaintiff “does not get along with people.” Plaintiff does not address the fourteenth cause of action. Plaintiff has not shown triable issues of fact as to the defamation claims.

            Defendants’ motion for summary adjudication of thirteenth and fourteenth causes of action is GRANTED.