Judge: Maurice A. Leiter, Case: 20STCV48221, Date: 2022-08-17 Tentative Ruling

Case Number: 20STCV48221    Hearing Date: August 17, 2022    Dept: 54

Hearing Date: August 17, 2022

Department 54, Judge Maurice A. Leiter

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

Moving Party: Defendants City of Hawthorne and Ardashir Shadbehr

Responding Party: Plaintiff Christopher Jamison Palmer

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

DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION 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, and reply.

BACKGROUND

On June 4, 2021, Plaintiff Christopher Jamison Palmer filed the operative first amended complaint against Defendants City of Hawthorne and Ardashar Shadbehr, asserting causes of action for (1) racial discrimination in violation of FEHA; (2) racial harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; and (5) defamation.

            Plaintiff, an African American man, alleges Defendants failed to promote Plaintiff, harassed Plaintiff and retaliated against Plaintiff because of his race and his complaints of racial discrimination. Plaintiff is employed by Defendants as a Senior City Planner.

EVIDENCE OBJECTION

“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).) Defendants’ objections nos. 62, 68, 70 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 City of Hawthorne and Ardashar Shadbehr move for summary judgment of Plaintiff’s first amended complaint, or in the alternative, summary adjudication of Plaintiff’s causes of action.

A. First and Third Causes of Action for Discrimination and Retaliation 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.) 

Finally, 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 argue that Plaintiff’s claims for discrimination and retaliation fail because Defendants had legitimate, nondiscriminatory reasons for refusing to promote Plaintiff. Defendants’ reasons include funding and budgetary restrictions (UMF ¶¶ 9-10); Plaintiff’s lack of qualifications (UMF ¶¶ 21-27); and performance issues (UMF ¶¶ 14, 16-18, 28-30, 39, 46.)

In opposition, Plaintiff presents significant evidence disputing Defendants’ material facts. In particular, Plaintiff provides the declaration of John P. Ramirez. Ramirez worked as Planning Director from June 2016 through November 2016 and Director of Administrative Services from February 2019 through June 2019. (Decl. Ramirez ¶ 3.) During his time with the City of Hawthorne, Ramirez declares he witnessed repeated, consistent efforts to prevent Plaintiff from being promoted and to prevent Plaintiff from having additional responsibilities or supervisory duties. (Id. ¶ 8.) Ramirez declares that Defendant Shadebhr treated Plaintiff and another African American employee, Chris Burrus, differently than non-African American employees. (Id.) Ramirez also states that Defendants refused to address or investigate Ramirez’ multiple complaints of inappropriate, unfair, and racist treatment of Plaintiff and other employees. (Id.) This is sufficient to create a triable issue of fact as to discrimination and retaliation.

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

B. Second Cause of Action for Racial Harassment in Violation of FEHA

The Fair Employment and Housing Act prohibition on harassment states: “It is an unlawful employment practice. . . .[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or person providing services pursuant to a contract.” (Govt. Code, § 12940(j)(1).) 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 they are entitled to judgment as a matter of law on the second cause of action because any harassment Plaintiff experienced was not severe or pervasive. Plaintiff represents that he was denied nine director promotions and two manager promotions. Plaintiff presents significant evidence showing Defendants’ consistent efforts to prevent Plaintiff from being promoted and to make Plaintiff’s job harder. (See Decl. Ramirez.) 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. Fourth Cause of Action for Failure to Prevent Discrimination, Harassment and Retaliation

            Defendants assert Plaintiff cannot state a claim for failure to prevent discrimination, harassment, and retaliation because the underlying claims fail. As discussed, Plaintiff has established triable issues of fact as to these claims.

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

D. Fifth Cause of Action for Defamation

Defendants move for summary adjudication of the fifth cause of action on the grounds that the alleged defamatory statements are statements of opinion, and Defendants are immune from suit. Plaintiff alleges Defendants stated that he cheated on his wife and took bribes. These are not statements of opinion.

Similarly, Defendants are not immune. Discretionary immunity does not apply to the day-to-day decisions of public employees. (See e.g. Johnson v. State of California (1968) 9 Cal.2d 782, 796.)

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