Judge: Maurice A. Leiter, Case: 20STCV12209, Date: 2022-11-07 Tentative Ruling

Case Number: 20STCV12209    Hearing Date: November 7, 2022    Dept: 54

Hearing Date: November 7, 2022

Department 54, Judge Maurice A. Leiter

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

Moving Party: Defendant Future Metals, LLC

Responding Party: Plaintiff Derrick Clemmons

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

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION IS DENIED.

            DEFENDANT 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, and reply.

BACKGROUND

This is an employment action. On March 26, 2020, Plaintiff Derrick Clemmons sued Defendant Future Metals, LLC, asserting thirteen causes of action for violations of FEHA, the Labor Code, and wrongful termination. Plaintiff, a former warehouse manager for Defendant, alleges he was harassed and discriminated against based on his race, age, and disability. Plaintiff alleges his supervisor Anthony Battaglia and his sales manager son, Cole Battaglia, made frequent racist and ageist comments to Plaintiff. Plaintiff was terminated while on medical leave for knee surgery after 37 years of employment.

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.” (CCP § 437c(q).) Defendant objects to Plaintiff’s interpretation of evidence, rather than to the evidence itself. There are no evidence objections.

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.)

Defendant moves for summary judgment or in the alternative summary adjudication of Plaintiff’s causes of action.

A. Discrimination in Violation of FEHA

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.) 

            Defendant asserts that Plaintiff cannot establish a prima facie case of discrimination because Plaintiff could not perform the daily physical tasks of his position, Plaintiff did not return to work at the end of his leave and failed to request an extension, and Defendant made a business decision to allow Corvera, who filled in for Plaintiff while he was on leave, to continue performing Plaintiff’s job duties. (UMF ¶¶ 49-52, 62, 68-59.) Defendant also represents that Plaintiff’s supervisor Anthony Battaglia did not participate in the termination decision. (UMF ¶ 69.)

            In opposition, Plaintiff presents evidence that he was able to perform his job duties remotely and he communicated the need for a leave extension until March 2019. (Opp. UMF ¶¶ 46, 94.) Plaintiff also presents substantial evidence that his supervisor and the supervisor’s son repeatedly made racist comments and jokes, used racist slurs, and made ageist comments. (Opp. UMF ¶¶ 30, 35.) Plaintiff disputes that his supervisor did not participate in his termination. (Opp. UMF ¶ 69.) This is sufficient to create a triable issue of fact as to discrimination and pretext.

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

B. Failure to Accommodate in Violation of FEHA

“The elements of a failure to accommodate a claim are ‘(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.’”  (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969 (quoting Scotch, supra, 173 Cal.App.4th at 1010).) 

Defendant asserts Plaintiff cannot establish a claim for failure to accommodate because Defendant did accommodate Plaintiff’s ten-month leave and Plaintiff was unable to perform his job duties. As stated, Plaintiff presents evidence that he informed Defendant he would be able to return to work in March 2019 and that he was able to perform his job duties remotely. This is sufficient to create a triable issue of fact as to failure to accommodate.

Defendant’s motion for summary adjudication of the claim for failure to accommodate is DENIED.

C. Failure to Engage in the Interactive Process in Violation of FEHA

Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code, § 12940(n).) 

Defendant argues that this claim fails because Plaintiff was responsible for facilitating communication regarding his disability, and Defendant failed to do so before his leave was over in January 2019. (UMF ¶¶ 18, 19, 44, 47.) In opposition, Plaintiff presents evidence that he informed Defendant he would be able to return to work in March 2019 before he was terminated, and evidence Defendant had vacant positions at the time of termination. (UMF ¶ 46, 94, 62, 63.) This is sufficient to create a triable issue of fact as to failure to engage in the interactive process.

Defendant’s motion for summary adjudication of the claim for failure to engage in the interactive process is DENIED.

D. Retaliation in Violation of FEHA

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.)

Defendant contends that Plaintiff’s claim for retaliation fails because Plaintiff did not complain to decision makers about discrimination or harassment, and there is no nexus between Plaintiff’s complaint to Alvin Riddle about race harassment and his termination. Plaintiff asserts that after he complained to his supervisor Riddle, the nationwide warehouse manager, his job duties were reassigned, and his employment terminated. Plaintiff also presents evidence that Riddle was required to report any complaints of harassment to human resources. Plaintiff argues that the decision makers in his termination were aware of his complaints. This is sufficient to create a triable issue of fact as to retaliation.

Defendant’s motion for summary adjudication of the claim for retaliation in violation of FEHA is DENIED.

E. Harassment in Violation of FEHA

The Fair Employment and Housing Act prohibition on harassment states: “It is an unlawful employment practice for an employer to harass an employee on the basis of 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.)  

Defendant asserts Plaintiff cannot establish a cause of action for harassment because the allegations of harassment occurred outside the limitations period and were not mentioned in the DFEH complaint. In opposition, Plaintiff presents evidence that harassing conduct occurred until his termination and that the DFEH complaint contains allegations of racial harassment. (UMF ¶ 35; Decl. Westmoreland, Exh. 1.) This creates a triable issue of fact as to harassment.

Defendants motion for summary adjudication on the claim for harassment is DENIED.

F. Violation of Labor Code §§ 1102.5, 232.5 and Retaliation in Violation of Public Policy

            Defendant contends that Plaintiff’s claims for retaliation in violation of Labor Code §§ 1102.5 and 232.5 fail because Plaintiff did not complain of conduct he believed was unlawful, or about his working conditions. As discussed, Plaintiff has established a triable issue of fact as to retaliation in violation of FEHA. These facts are sufficient to create a triable issue of fact as to Plaintiff’s other retaliation claims.

G. 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).)  

Defendant asserts Plaintiff was not subject to extreme and outrageous conduct. Plaintiff has presented evidence that his supervisor frequently used racial slurs to and in front of Plaintiff. A jury could find this is extreme and outrageous.

Defendant’s motion for summary adjudication of the claim for IIED is DENIED.

H. Failure to Prevent Discrimination, Harassment and Retaliation, Negligence, and Wrongful Termination

            Defendant argues that the causes of action for failure to prevent discrimination, negligence, and wrongful termination are derivative of his other FEHA claims and fail for the same reasons. As stated, Plaintiff has established a triable issue of fact as to his FEHA claims.

            Defendant’s motion for summary adjudication of the causes of action for failure to prevent, negligence and wrongful termination is DENIED.