Judge Michael Small, Case Number: 20STCV38304, Date: 2023-08-24 Tentative Ruling

Judge: Michael Small, Case: 20STCV38304, Date: 2023-08-24 Tentative Ruling

Case Number: 20STCV38304 Hearing Date: August 24, 2023 Dept: 57

Plaintiffs Indigo Sargent (“Sargent”) and Melissa Scott (“Scott”) (collectively, “the Plaintiffs”) sued their former employers Defendants Sonya Dakar, Sonya D. International, Inc. (“SDI”), and Global Green World, LLC (“GGW”) (collectively, “the Defendants”).

In the Plaintiffs’ First Amendment Complaint, which is their operative pleading, the first four causes of action are asserted by Sargent only. Those causes of action are for

(1) sexual orientation harassment in violation of Cal. Government Code § 12940 et seq. , the Fair Employment and Housing Act (“FEHA”) against all Defendants;

(2) sexual orientation discrimination in violation of FEHA, Cal. Government Code § 12940 et seq., against SDI and GGW (collectively, the “Entity Defendants”).

(3) failure to take all reasonable steps to prevent harassment, discrimination, and retaliation in violation of FEHA, Cal. Government Code § 12940(j)(1) and (k) against the Entity Defendants; and

(4) negligent supervision, hiring, and retention against the Entity Defendants.

The fifth through twelfth causes of action are asserted by both Plaintiffs against the Entity Defendants. Those causes of action are for:

(5) failure to pay overtime compensation (Cal. Labor Code §§ 510, 1194, 1198);

(6) violation of Cal. Labor Code §§ 226.7(a) and 512(a) – unpaid missed meal breaks;

(7) violation of Cal. Labor Code § 226.7(a) and IWC Wage Order 1-2001(12) – unpaid missed rest breaks;

(8) violation of Cal. Labor Code § 226(a) and 226.3 – improper wage statements;

(9) failure to timely pay wages upon discharge and waiting time penalties (Labor Code §§ 201-204 and 256);

(10) retaliation in violation of Cal. Labor Code § 1102.5;

(11) retaliation in violation of FEHA, Cal. Gov. Code § 12940 et seq.; and

(12) wrongful constructive termination in violation of public policy.

Both Plaintiffs assert a thirteenth causes of action, which is for intentional infliction of emotional distress, against all the Defendants.

In the FAC’s prayer for relief, Plaintiffs requests an award of punitive damages.

Pending before the Court is Defendants’ motion for summary judgment, or alternatively, summary adjudication as to 14 issues posed by the 13 causes of action and the prayer for punitive damage (“the Motion). The Court is denying the Motion. Defendants have not demonstrated that they are entitled to summary judgment on the Plaintiffs’ claims writ large, or to summary adjudication on any of the discrete issues presented the Motion. (Plaintiffs’ opposition to the Motion asked the Court to take judicial notice of several documents. The court is granting the request for judicial notice, except as to Exhibit 6, which is Los Angeles Times article on a past criminal charge against Dakar.)

Motion for Summary Adjudication as To Claims Asserted by Sargent Only (Issue Nos. 1-4)

Sexual orientation harassment and sexual orientation discrimination (Issue Nos. 1 and 2)

Sargent was employed by SDI in February and March 2019 as a front desk worker. (UMF 1-2, 13-14.) Sargent identifies as bisexual. (Id., 3, 15. ) Sargent testified at her deposition that in one conversation, Dakar stated that her gay clients are difficult, “too much” and “overdramatic.” (Id., 4, 16.) In this same conversation, Dakar asked Sargent whether she is gay, to which Sargent responded “yeah.” (Id., 5, 17.) Following this conversation, Sargent continued to work for SDI. (Id., 7, 19.)

To establish that there is an environment of harassment in a workplace, the plaintiff must show that the harassment complained of is so “severe or pervasive” as to “’alter the conditions of [the victim’s] employment and create an abusive working environment.’” (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 609.) Defendants contend that the harassing conduct that Sargent alleges against them does not amount to “severe or pervasive” because it involved single interaction that did not immediately precipitate Sargent’s quitting her job at SDI. (UMF 4-7.)

The Court disagrees, based on Sargent’s declaration in support of the opposition to the Motion. In particular, Sargent’s declaration states that immediately after the conversation about Sargent’s sexual orientation, Dakar “began to consistently degrade [Sargent’s] ‘demeanor’” and “regularly belittled LGBTQ clients in front of [Sargent].” (Sargent Decl., ¶ 14.) Sargent further states, “I found these homophobic comments imposing and threatening, which caused me to cry at work and feel nervousness and anxiety in the SDI workplace.” (Id.) And Sargent says that she still experiences “the distress, including headaches, exhaustion, sadness, and loss of appetite,” for which she has “undergone therapy and taken several medications.” (Id., ¶ 29.)

Sargent’s declaration creates a triable issue of material fact as to whether the harassment was severe or pervasive enough to alter the conditions of Sargent’s employment. The Court thus denies summary adjudication as to Issue No. 1.

Sargent alleges in the Second Cause of Action that the Entity Defendants discriminated against her on the basis of her sexual orientation “by subjecting [her] to harassment, hostility and other misconduct because of her sexual orientation.” (FAC, ¶ 54.) Defendants contend that because Sargent did not suffer an adverse employment action, her sexual orientation discrimination claim fails. (UMF 8.) Defendants claim that Sargent quit her job at SDI for a better paying one. (Id., 9.) That may be so. But it does not compel the conclusion that summary adjudication is warranted here. There are disputed issues of material fact as to whether the harassment based on Sargent’s sexual orientation, which is what the claim for discrimination is based, led to an adverse employment – namely, constructive termination. Accordingly, the Court is denying summary adjudication as to Issue No.

Failure to Prevent Discrimination, Harassment and Retaliation and Negligent Supervision, Hiring and Retention (Issue Nos. 3 and 4)

Sargent’s claims for failure to prevent discrimination and retaliation and for negligent supervision, hiring and retention are derivative of her claims for sexual orientation harassment and discrimination. Because the Court has concluded that there are disputed issues of material fact as to the sexual orientation harassment and discrimination claims, there are disputed issues of fact as to the claims for failure to prevent discrimination and retaliation and for negligent supervision, hiring and retention. Accordingly, summary adjudication as to Issue Nos. 3 and 4 is denied.

Motion for Summary Adjudication on Scott’s Claims for Unpaid Missed Meal Breaks, Unpaid Missed Rest Breaks and Improper Wage Statements (Issue Nos. 6, 7 and 8)

In moving for summary adjudication on the issues raised in Plaintiffs’ Sixth, Seventh and Eighth Causes of Action, Defendants advance their arguments as to Scott only, even though both Scott and Sargent have asserted those causes of action.

Scott was employed as a marketing coordinator for GGW in November and December 2018. ( UMF, 57, 63, 68.) Defendants contend Scott cannot establish that she was prevented from taking meal and rest breaks and that they timely provided Scott with complete and correct wage statements. In support of their position, Defendants point to Scott ‘s own testimony that she typically voluntarily took a lunch break every day while working at GGW and that nobody at GGW ever prohibited her from taking meal or rest breaks. (UMF, 59, 60.) Defendants also submit evidence that Scott was provided with complete wage statements during her employment with GGW. (Id., 70.)

Plaintiffs present evidence to the contrary. In her declaration, Scott states that GGW routinely forced her to work through meal and rest breaks. (Scott Decl., ¶ 12; AMF, 43-45; see also Whitehead Decl., ¶ 5, Ex. D, 47:22-48:9.) Furthermore, payroll records show numerous days on which she worked 5 or more hours without taking a meal break. (Scott Decl., ¶¶ 10, 12; AMF, 41, 42.) Scott recalled at her deposition “four or five” projects for which she could not take rest breaks in order to meet the deadline, including the Black Friday, Grammys and new catalog projects. (Whitehead Decl., ¶ 5, Ex. D, 53:19-54:13; Scott Decl., ¶ 12; AMF, 44.) Scott also declares that her paychecks did not reflect all of the hours that she actually worked. (Scott Decl., ¶ 10.) For example, Defendants required Plaintiffs to arrive early and continue to work after having clocked out for the day, but Scott’s wage statements do not include these times. (AMF, 22-29.)

All told, there are disputed issues of material facts to Scott’s claims for unpaid missed meal breaks, unpaid missed rest breaks, and improper wage statements. Accordingly, the Court is denying summary adjudication as to Issue Nos. 6, 7, and 8.

Motion for Summary Adjudication as to Causes of Action Asserted, and Prayer for Punitive Damages Requested, by Both Plaintiffs (Issue Nos. 5, 9, 10, 11, 12, 13 and 14)

Failure to Pay Overtime Compensation (Issue No. 5)

Defendants contend that this claim fails because Plaintiffs cannot identify the dates they worked overtime without pay, pointing to the Plaintiffs’ interrogatory responses. (UMF, 53, 54.) However, Plaintiffs’ evidence creates triable issues of material fact as to whether Defendants paid Plaintiffs for overtime hours. (AMF 31-37, 123.) In particular, the handwritten notes and numbers on Sargent’s payroll records create a triable issue as to whether Defendants maintained accurate payroll records. (AMF 28, 30.)

Failure to Timely Pay Wages Upon Discharge (Issue No. 9)

In their Ninth Cause of Action, Plaintiffs allege that the Entity Defendants failed to pay all wages due to them upon discharge. Defendants contend that they did timely pay Plaintiffs’ final wages by mailing a paycheck to the address on file. (UMF, 75, 78, 79.) While Plaintiffs followed up to demand their final paychecks, both Sargent and Scott deny having received one. (AMF, 86-95.) Moreover, an employee of SDI named Yigal denies having personal knowledge about Sargent’s final paycheck from SDI. (Yebri Decl., ¶ 4, Ex. 8, 32:2-9; 37:11-14; see AMF., 96.) In sum, there are disputed issues of material fact as to whether the Entity Defendants timely delivered Sargent and Scott’s final paychecks.

Retaliation under Labor Code Section 1102.5 and FEHA and Wrongful Constructive Termination (Issue Nos. 10, 11 and 12)

Defendants argue that Plaintiffs’ Labor Code retaliation claim fails because Plaintiffs did not engage in protected activity and did not suffer adverse employment action in retaliation for such nonexistent conduct. Similarly, Defendants argue that Plaintiffs’ FEHA retaliation claim fails because there is no evidence that Plaintiffs engaged in a protected activity.Plaintiffs’ evidence suggests otherwise. This evidence shows that Plaintiffs complained about GGW and SDI’s wage and hour violations. (AMF, 69-72.) Sargent also complained about other unlawful activities including discrimination. (Id., 73-77.) There are thus disputed issues of material fact regarding whether the Plaintiffs engaged in protected activity within the meaning of their retaliation claims; summary adjudication as to Issue Nos. 10 and 11 is denied.

As to wrongful and constructive termination, Defendants contend that Plaintiffs cannot point to conduct on their part that made it so intolerable that a reasonable person would have been left with no other choice than to resign. The Court disagrees. As indicated above, the Court has found triable issues of severe or pervasive harassing conduct, as well as wage and hour violations on the part of Defendants. This leads to the conclusion that there is a triable issue of material fact on whether such conduct would force a reasonable person to resign. Summary adjudication as to Issue No. 12 is denied.

Intentional Infliction of Emotional Distress (“IIED”) (Issue No. 13)

Defendants argue that Plaintiffs’ IIED claim fails because Plaintiffs cannot establish “extreme and outrageous” conduct on the part of Defendants. Defendants characterize the conduct in question as mere insults and indignities, which are not the stuff of an IIED claim.

The Court disagrees. Disputed issues of material fact exist as to whether Defendants’ actions are sufficiently “extreme and outrageous” to support an IIED claim. Yigal denies having mocked Scott for her hearing disability. But Scott recounts instances in which Yigal mocked her for being hearing impaired, (Yigal Decl., ¶ 10; Scott Decl., ¶ 13; AMF 53-57.) Plaintiffs also attest to verbal and physical aggression by Dakar and Yigal, as well as Dakar’s racially discriminatory hiring practices. (Scott Decl., ¶¶ 14-18; Sargent Decl., ¶¶ 15-27; AMF 58-68.) These actions, Plaintiffs say, caused them to suffer anxiety and panic attacks, for which they had psychological treatment and medication. (AMF 78-79.) Coupled with the evidence in support of Sargent’s claim for sexual orientation harassment, Plaintiffs’ evidence raises a triable issue of material fact as to whether the conduct of the Defendants was “extreme and outrageous.” Summary adjudication as to Issue No. 13 is denied.

Punitive damages (Issue No. 14)

Defendants argue that Plaintiffs cannot establish by clear and convincing evidence that Defendants acted with malice, oppression or fraud, which is necessary for an award of punitive damages. Defendants contend that the closest evidence is Sargent’s harassment and discrimination claims, but this evidence, Defendants say, is based on “isolated incidents where Ms. Sargent claims that Sonya Dakar questioned her about her sexual orientation.” (Mot., 17.) As indicated above, however, the Court has concluded that there are disputed issues of material fact as to whether the harassment of Sargent on the basis of her sexual orientation was severe and pervasive, as opposed to isolated. The Court finds that the evidence of that harassment and the evidence in support of Plaintiffs’ constructive termination and retaliation claims are sufficient to justify a finding that the Defendants acted with malice or oppression towards the Plaintiffs for purposes of a punitive damages award. Summary adjudication as to Issue No. 14 is denied.