Judge: Michelle Williams Court, Case: 20STCV31785, Date: 2022-08-10 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 74 before 8:30 the morning of the hearing. The email address is smcdept74@lacourt.org. Please do not call the court to submit on the tentative.

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In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind: The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record. Oral argument is not an opportunity to simply repeat that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated. If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.


 


 





Case Number: 20STCV31785    Hearing Date: August 10, 2022    Dept: 74

20STCV31785 ALI MOHAMED vs CALIFORNIA DEPARTMENT OF VETERANS AFFAIRS
Defendant’s Motion for Summary Judgment
TENTATIVE RULING:  Summary judgment is DENIED. Summary adjudication is DENIED as to the first, second, and fourth causes of action. Summary adjudication is GRANTED as to the third cause of action for disability discrimination and the fifth cause of action for retaliation.
Background

On August 20, 2020, Plaintiff Ali Mohamed filed this action against the California Department of Veterans Affairs. Plaintiff, a Muslim man born in Somalia, alleges he began his employment with Defendant in November 2018, and was terminated on May 8, 2020 after Defendant engaged in a series of discriminatory and retaliatory actions. The complaint asserts causes of action for: (1) national origin discrimination; (2) racial discrimination; (3) disability discrimination; (4) failure to prevent discrimination; and (5) retaliation. 

Motion

On May 25, 2022, Defendant filed its motion for summary judgment, or in the alternative, summary adjudication of each of the causes of action asserted in the complaint.

Defendant’s counsel appears to have included portions of a Notice of Motion from another case, as the notice is directed at the five causes of action alleged in Plaintiff’s complaint as well as a sixth cause of action for retaliation in violation of Labor Code section 1102.5, which is not asserted by Plaintiff in this action. Under this unasserted cause of action, Defendant indicates there are issues for adjudication that “Even if, assuming arguendo Plaintiff can meet its burden (which she cannot), CalVet proves by clear and convincing evidence that the criminal conviction was the reason for the termination” and “Plaintiff cannot bring her claim of Intentional Inflection of Emotional Distress against CalVet without government employees’ negligence.” Plaintiff in this action similarly does not bring a claim for intentional infliction of emotional distress and Defendant’s memorandum and separate statement make no reference to a criminal conviction. 

Opposition 

In opposition, Plaintiff contends Defendant’s separate statement is procedurally defective, he performed his job well, was terminated due to discriminatory and retaliatory animus, and Defendant’s evidence is not admissible. 

Reply

In reply, Defendant argues its evidence is admissible, it demonstrated a non-discriminatory and non-retaliatory basis for Plaintiff’s termination, and Plaintiff failed to raise a triable issue of fact as to whether Defendant’s true motive was based upon an improper animus. 

Defendant’s Separate Statement is Procedurally Defective

Plaintiff argues Defendant’s separate statement contains improper citations to evidence, rendering consideration of the facts and evidence presented unduly burdensome. (Opp. at 8:25-9:5.)

“The separate statement serves two important functions in a summary judgment proceeding: it notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts. [Citation] A busy trial court's task is made extremely difficult if a party opposing summary judgment fails to comply with the requirements of rule [3.1350], stating unequivocally whether a fact is undisputed or not and, if not, stating the nature of the dispute and identifying the evidence supporting its contention.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) “The burdens imposed upon the trial court will be eased considerably if the court insists, as it should, on strict compliance with the required separate statement, because the court's ability to focus on and articulate the evidentiary basis for its ruling will be found in the separate statement.” (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 (internal citations omitted).)

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc. § 437c(b)(1); see also Cal. R. Ct., rule 3.1350(c)(2); (d).)  

Defendant’s separate statement fails to comply with the requirements of Rule 3.1350(d) as it does not list each material fact for each issue for adjudication but rather contains a single set of facts and then incorporates all 100 facts by reference as to each cause of action Defendant seeks to adjudicate. Defendant’s separate statement also fails to cite to the evidence with “reference to the exhibit, title, page, and line numbers,” (Cal. R. Ct., rule 3.1350(d)(3)), and its evidentiary citations create an unnecessary burden for both the Court and Plaintiff. (See e.g. UMF No. 10 (citing “Manalo Decl. at par. 15; SOF No. 1; Exhibits 8, 9, 10, and 11, attached to Exhibit B, NOAA Exhibits.”); UMF No. 27 (citing “Exhibit A, NOAA, SOF No. 4; Exhibits 55 attached to Exhibit C, NOAA Exhibits.”).) 
“Overly general references to supporting evidence, of course, may place an undue burden on busy trial courts [Citation] and need not be tolerated: Rule [3.1350] requires the parties to include specific citations to the evidence in their separate statements; and the trial court can properly refuse to proceed if the moving party fails to support its proposed undisputed facts with specific references to the evidence.” (Parkview Villas Ass'n, Inc. v. State Farm Fire and Cas. Co. (2005) 133 Cal.App.4th 1197, 1214.)
 
However, Defendant’s procedural defects did not prejudice Plaintiff in filing an opposition on the merits and the Court reviewed all the evidence before it. Accordingly, the Court shall address the motion on the merits. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 (“the court’s power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary.”).)  

Plaintiff’s Evidentiary Objections in Opposition

Each of Plaintiff’s objections are OVERRULED. As argued by Defendant in reply, the documents are being offered for a non-hearsay purpose. (See e.g. King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436 (“It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.”).) 

Defendant’s Objections in Reply

In reply, Defendant filed a document entitled “Defendants’ [sic] Objections to Plaintiff’s Evidence in Support of Opposition to CalVet’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication.” 

However, this document quotes the entirety of Plaintiff’s undisputed material facts numbered 101 to 165 in Plaintiff’s responsive separate statement. Defendant does not properly cite or address the underlying evidence at issue. By addressing statements in the separate statement, rather than the evidence, Defendant’s objections fail to comply with California Rules of Court, rule 3.1354(b). The Court OVERRULES Defendant’s objections to statements made in Plaintiff’s separate statement. 

Reply Separate Statement

The Court does not consider Defendant’s “Response to Plaintiff’s Separate Statement in Opposition to CalVet’s Motion for Summary Judgment or, in the Alternative,  Summary Adjudication.” (See e.g. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (“The deficiencies carried over to the reply papers, which included a 297–page reply separate statement. There is no provision in the statute for this.”); San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313 (“While the code provides for reply papers, it makes no allowance for . . . filing a supplemental separate statement. (§ 437c, subd. (b).) This is consistent with the requirement supporting papers and the separate statement be served with the original motion. (§ 437c, subd. (a).).”).)  
Request for Judicial Notice 

Defendant requests the Court take judicial notice of the Notice of Adverse Action terminating Plaintiff’s employment, Exhibits 1-59 attached thereto, Plaintiff’s Charge of Discrimination filed with the EEOC, CalVet’s response thereto, the EEOC’s Dismissal and Notice of Rights, and Plaintiff’s DFEH complaint. The request is GRANTED and the Court shall take judicial notice of the existence of these documents but not the hearsay statements contained therein. (Evid. Code § 452(c); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369 n.1 (“The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.”); Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569.) Defendant’s request in reply that the Court take juridical notice of Title 42 CFR section 483.12 is GRANTED. (Evid. Code § 451(a).)

Motion for Summary Judgment and Summary Adjudication

General Summary Judgment Standard 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley¿v.¿Oakshade¿Town Center¿(2005) 135 Cal.App.4th 289, 294.)¿Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.¿(Code Civ. Proc. § 437c(c);¿Villa v.¿McFarren¿(1995) 35 Cal.App.4th 733, 741.) ¿ 
¿ 
As to each claim as framed by the complaint, the party¿moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element.¿(Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) 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.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc. § 437c(f)(1).)

Summary Judgment Standard for FEHA Discrimination and Retaliation Cases

When deciding issues of adverse employment actions under FEHA such as retaliation and  discrimination, the court applies the McDonnell Douglas shifting burdens test. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108–09; Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1193 (“Like claims for discrimination, retaliation claims are subject to the McDonnell Douglas burden-shifting analysis.”).) Under this test, “if the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing.” (Caldwell, supra at 203.) “Thus, the burdens of proof for purposes of a defendant's motion for summary judgment are precisely the same as those mandated by McDonnell Douglas.” (Ibid.) Therefore, the initial burden rests with the Defendants.  
“Once the employer makes a sufficient showing of a legitimate reason for discharge, i.e., that it had a lawful, nondiscriminatory reason for the termination then the discharged employee seeking to avert summary judgment must demonstrate either (by additional facts or legal argument) that the defendant's showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant's showing.  With respect to the latter choice, the employee must produce substantial responsive evidence that the employer's showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.”  (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.)

“[T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.)  “It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.”  (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.)  
Non-Discriminatory Reason for Plaintiff’s Termination – First, Second, Third, and Fifth Causes of Action

At trial to make a prima facie case of race discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at 355.)  
Defendant contends Plaintiff had performance issues and his termination was supported by sixteen statements of fact in a Notice of Adverse Action (“NOAA”). (Mot. at 5:13-14:5.) Defendant argues Plaintiff cannot establish a prima facie case for discrimination or retaliation because Plaintiff was not competently performing his job and these job performance issues provided a non-discriminatory and non-retaliatory basis for Plaintiff’s termination. (See e.g. Mot. at 18:21-22 (“CalVet terminated Plaintiff’s employment due to the listed events set forth in the sixteen (16) SOF in the NOAA.”).) 
The sixteen facts involve Plaintiff’s alleged conduct or non-attendance on June 20, 2019, August 14, 2019, October 3, 2019, October 21, 2019, and November 15, 2019 at Interdisciplinary Team conferences, Plaintiff’s alleged incomplete, late, or omitted Incident Reports on September 11, 2019, September 16, 2019, and October 18, 2019, Plaintiff’s alleged submission of incomplete investigatory information on September 16, 2019, Plaintiff’s alleged lack of preparedness on October 3, 2019 for a medical  record review, Plaintiff’s alleged conduct on October 23, 2019 resulting in the Home receiving a deficiency from the Department of Public Health, Plaintiff’s alleged failure to monitor a resident’s condition or address hygiene concerns for a resident in October 2019 and on December 7, 2019, Plaintiff allegedly leaving an assigned shift on November 13, 2019 without permission, and Plaintiff’s alleged failure to complete 63 Relias Learning courses by their assigned due dates. (Alvarado Decl Ex. A at 4-11.) 

Defendant “terminated Plaintiff due to his deficiencies of job performance, as well as his failure to follow directions.” (Manalo Decl. ¶ 103.) Manalo was the person responsible for the final decision to terminate Plaintiff’s employment. (Park Decl. ¶ 14.) Manalo attests that the conclusions in the NOAA and the decision to terminate Plaintiff’s employment were “based upon events, statements and observations set forth in contemporaneous documents authored or received by” Britta Greenwald, Kathleen Chelius, Kevin McGuire, Julius Lozano, Norma Monroe, Ling Goldman, Cara Smith, Brenda Novak, Ngozi Nwaokoro, Daniel Castro, and Elizabeth Benavides. (Manalo Decl. ¶¶ 54, 60, 65, 69, 73, 77, and 81.)
 
Defendant met its initial burden and the burden shifts to Plaintiff. (Guz, supra, 24 Cal.4th at 358 (“Thus, legitimate reasons in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.”) (internal citations omitted, emphasis original); Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1149 (“Defendant’s reasons for terminating Trop’s employment were creditable on their face—her job performance did not meet [her supervisor’s] demanding standards.”).)  
The law does not “require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.... ‘While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is ... whether the given reason was a pretext for illegal discrimination. The employer’s stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344.) “It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue.”  (King, supra, 152 Cal.App.4th at 436.) “[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally.”  (Guz, supra, 24 Cal.4th at 358.) 

“Once the employer makes a sufficient showing of a legitimate reason for discharge, i.e., that it had a lawful, nondiscriminatory reason for the termination then the discharged employee seeking to avert summary judgment must demonstrate either (by additional facts or legal argument) that the defendant’s showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant's showing. With respect to the latter choice, the employee must produce substantial responsive evidence that the employer's showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.”  (Hanson, supra, 74 Cal.App.4th at 225.)  

Plaintiff Raises a Triable Issue of Fact as to His Competent Performance

As to Plaintiff’s prima facie case, Plaintiff provides evidence that he was able to competently perform his job duties. Plaintiff provides his positive performance reviews when he served as a Health Facilities Evaluator Nurse from 2015-2018 at the California Department of Aging and the Caledonia Department of Public Health. (Mohamed Decl. Ex. 5.) Plaintiff also provides his April 8, 2019 Report of Performance for Probationary Employee issued by Defendant indicating his adequate performance. (Id. Ex. 6.) Plaintiff’s supervisor at the time, Lozano, told him he was “doing well” and should “continue the good work.” (Mohamed Decl. ¶ 7.) Plaintiff provides evidence challenging the factual accuracy of many of the claimed performance deficiencies. (Mohamed Decl. ¶¶ 27-38.) This evidence is sufficient to avoid summary adjudication based upon Defendant’s argument that Plaintiff cannot demonstrate his competent performance of his job duties. (Mot. at 17:4-18:10.) 

Plaintiff’s claims asserted in the complaint are based upon race, national origin, disability, and retaliation. Accordingly, to raise a triable issue of fact as to each cause of action, Plaintiff is required to provide “evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Guz, supra, 24 Cal.4th at 361.)  

Race and National Origin Discrimination – First and Second Causes of Action

Plaintiff states he “regularly witnessed Lozano interact with numerous other co-workers [and] observed that Lozano treated [Plaintiff] significantly harsher tha[n his] co-workers, especially the Filipino coworkers whom she appeared to really favor and treat very well.” (Mohamed Decl. ¶ 12.) Plaintiff believed he was being treated poorly because he “was a Muslim African male” and sent Lozano and Lozano’s supervisor, Kevin  McGuire, an email on June 10, 2019 complaining about Lozano’s treatment of Plaintiff and questioning “whether it was based on [Plaintiff’s] race (black) or religion (Muslim.).” (Id. ¶ 13, Ex. 7 (“I feel that my rights are not being protected. Is your behavior towards me due to my race because I’m a black man and the only male supervisor? Or is it my religion- as I’m Muslim? Thus, I would like you to cease and decease this constant intimidation and hostility in the work place.”).) 

Plaintiff only states he was treated poorly compared to all his other co-workers, without stating whether he was the only individual of his race or national origin that worked with Lozano. However, Lozano initially provided Plaintiff with a positive performance review. (Mohamed Decl. Ex. 6.) Plaintiff does not provide any evidence raising a rational inference that Lozano had an impermissible animus based upon Plaintiff’s race or national origin. Plaintiff’s summary declaration is insufficient. “[P]laintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King, supra, 152 Cal.App.4th at 433. See also Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 356 (“A plaintiffs’ subjective feelings or beliefs are not sufficient to support a discrimination claim. They are simply speculation, or, at best, conclusions—not competent evidence from which a jury could find discrimination.”).) 

Plaintiff alleges one other individual held a discriminatory animus based upon Plaintiff’s race or national origin, Kathleen Chelius, who became Plaintiff’s supervisor on October 1, 2019. (Manalo Decl. ¶ 6.) Plaintiff contends Chelius accessed his file on July 30, 2019, prior to becoming his supervisor, (Mohamed Decl. ¶ 19, Ex. 12), and Chelius denied Plaintiff’s Merit Salary Adjustment. (Def. Ex. N.) On November 15, 2019, Chelius gave Plaintiff his final performance review, with an overall rating of “unacceptable,” no category meeting the “standard” or “outstanding” ratings, and indicated she did not recommend Plaintiff be granted permanent civil service status. (Def. Ex. M.)

Plaintiff cites his own testimony stating, in relevant part, Chelius “was very uncivil, very loud, raising her voice. Every time, she mistreated [Plaintiff], she disrespected [Plaintiff]. She never respected [Plaintiff] as a co-worker or as a subordinate. . . . it seemed like [Plaintiff] was nothing to her.” (Pltf. Ex. 1, Mohamed Depo. at 131:3-9.) Any time Chelius spoke to Plaintiff “her tone was very high” and “every time” she had something to tell Plaintiff, “she was raising her voice.” (Id. at 142:23-143:4.) Plaintiff contends Chelius “misrepresented” his work by telling him he did not do work that he had done. (Id. at 147:10-148:10.) Chelius “was very hostile, sometimes aggressive and, on occasion, she was banging on the desk” when Plaintiff was in her office. (Id. at 151:9-18.) 

Plaintiff does not provide any evidence indicating Chelius made any comments about Plaintiff’s race of national origin directly to him. Plaintiff provides various CalVet documents connected to the Confidential Investigative Report dated September 10, 2020 involving a complaint filed by “Elizabeth Benavides [46 year-old, Hispanic female]” against Chelius. (Pltf. Ex. 11.) The investigative report concluded “[t]he evidence does not suggest that Ms. Chelius is rude and discourteous to minorities or people of color, but to most staff. It is substantiated that Ms. Chelius sent a text message containing verbiage related to COVID-19 and Chinese people. It is not substantiated that Ms. Chelius made comments of a racial or national origin nature.” (Id. at 2.) 

The investigative report addressed three allegations of “comments/conduct of a racial nature” and two allegations of “conduct of a national origin nature.” (Pltf. Ex. 11 at 12-17.) The report indicates Benavides accused Chelius of referring to an “Indian or Persian” vendor as “some short foreigner.” (Id. at 12-13.) The report concluded “the evidence does not support that Ms. Chelius made a comment to the effect of, ‘some short foreigner’ when referring to a vendor.” (Id. at 13.) The report indicates Benavides accused Chelius of making a racial comment about an Asian co-worker, Chin Chow. In addition to not involving a group to which Plaintiff belongs, the report concluded “[i]t is more likely than not Ms. Chelius did not make [the] comment.” (Id. at 14.) Benavides also “that Ms. Chelius sent Ms. Sy a text message containing a joke about the Chinese and COVID-19 on or about March 20, 2020.” (Id. at 14.) Chelius admitted sending this message. (Id. at 15.) As the second national origin allegation, “Benavides alleged that Ms. Chelius stated that Ms. Lee was hard to understand when she speaks.” (Id. at 17.) The report indicated Ms. Lee and Chelius agreed they had a good relationship and concluded “[i]t is more likely than not Ms. Chelius did not make a statement that she could not understand Ms. Lee when she speaks.” (Ibid.) None of these three allegations support Plaintiff’s claim of discrimination based upon his race or national origin, the protected characteristics at issue. 

Unlike the other allegations, the first allegation in the report regarding “conduct of a National Origin Nature” involves Plaintiff’s protected characteristics: “Ms. Nwachuku alleged that after a Certified Nursing Assistant position interview with an applicant, Ms. Chelius made a comment to the effect of, ‘No, not another African’ and failed a successful applicant.” (Id. at 15-17.) Plaintiff is African. (Mohamed Decl. ¶ 2.) The report concluded: “[a] preponderance of the evidence supports that Ms. Chelius canceled Ms. Chinney's recruitment. The exact reasons as to why Ms. Chinney's recruitment was canceled are unknown. Ms. Chelius stated that Ms. Chinney had poor performance and is not a good fit. However, there is no documentation to support Ms. Chelius’ reasoning. Additionally, it is unknown if Ms. Chelius made a comment to the effect of, ‘No, not another African.’ when Ms. Chinney applied for the Certified Nursing Assistant position.” (Id. at 16-17.) 

Defendant provided evidence that Julian Manalo made the ultimate decision to terminate Plaintiff. Manalo indicated the termination was supported by 16 statements of fact in the NOAA. (Manalo Decl. ¶¶ 14-103.) Plaintiff does not provide evidence nor make any argument that Manalo held a discriminatory animus, or that any of the other individuals, except Chelius, who contributed information in support of his termination held such an animus. Defendant does not address the allegations or investigation related to Chelius in its reply memorandum. 

For purposes of summary judgment, the Court finds the evidence sufficient to raise a triable issue of fact as to Plaintiff’s race and national origin claims. Chelius had a prior investigation against her as to whether she made a derogatory comment about Africans and ended the recruitment of an alleged African candidate without explanation. Chelius signed Plaintiff’s final, most negative performance review that contained her belief that he should not be offered permanent employment, and denied his salary adjustment. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1456 (“eliminating a reasonable potential for promotion or materially delaying the promotion, [provides] a legally tenable basis for a jury to find the employer substantially and materially adversely affected the terms and conditions of the plaintiff’s employment.”).) 

Chelius also played a role in the NOAA, as Defendant concedes Chelius contributed to several of the findings upon which Plaintiff’s termination was based. (Manalo Decl. ¶¶ 60, 65, 73, 77, (“Management’s conclusion was based upon contemporaneous documents authored or received by Kathleen Chelius.”).) Chelius’ participation in the process is sufficient to deny summary adjudication on the race and national origin claims. (See e.g. Sargent v. Board of Trustees of California State University (2021) 61 Cal.App.5th 658, 675 (“because Dawson was part of CSU's decision-making process, it does not matter whether other decision-makers acted without knowledge of Dawson's improper motives.”); DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551 (“showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.”).)

Summary adjudication is DENIED as to the first and second causes of action.

Disability Discrimination – Third Cause of Action

Plaintiff’s opposition does not specifically address his disability claim and only makes passing reference to his disability claims in connection with the other claims. (See e.g. Opp. at 1:3-7 (“Summary Judgment should be denied because the evidence establishes that Plaintiff Ali Mohammed’s direct supervisors, Julius Lozano and Kathleen Chelius, harbored animosity towards Mohammed because of his race and national origin, and retaliated against him when he complained about the discrimination in writing.”).) Plaintiff’s declaration makes no reference to his disability and none of the evidence or argument raises a rational inference that any individual or decision was motivated by a discriminatory animus based upon Plaintiff’s disability. (Guz, supra, 24 Cal.4th at 361.)  

Accordingly, summary adjudication is GRANTED as to the third cause of action for disability discrimination. 

Failure to Prevent Discrimination – Fourth Cause of Action

Defendant contends Plaintiff’s fourth cause of action for failure to prevent discrimination is barred due to the failure to mention a claim for failure to prevent discrimination in the DFEH complaint. (Mot. at 20:18-24.) “The administrative exhaustion requirement is satisfied if FEHA claims in a judicial complaint are like and reasonably related to those in the DFEH complaint or likely to be uncovered in the course of a DFEH investigation.” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 301 (quotations and citations omitted).) Facts supporting a failure to prevent discrimination claim would likely be uncovered during a discrimination investigation. Therefore, Plaintiff adequately exhausted his administrative remedies as to the fourth cause of action and summary adjudication cannot be granted on this basis. 

Defendant also contends the fourth cause of action fails because it has demonstrated a right to summary adjudication as to the discrimination claims. (Mot. at 20:25-21:8; See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 (“Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.”); Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1318 (“There cannot be a claim for failure to take reasonable steps necessary to prevent . . . discrimination under section 12940, subdivision (k) if actionable . . . discrimination has not been found.”).) As noted above, the Court finds triable issues of fact preclude summary adjudication of Plaintiff’s race and national origin claims. Accordingly, summary adjudication is DENIED as to the fourth cause of action. 

Retaliation  – Fifth Cause of Action

On June 15, 2019, five days after Plaintiff sent the June 10, 2019 email questioning whether he was being treated differently because of his race or religion, McGuire instructed Lozano to “gather all of the documentation you have for SRN Ali Mohamed and scan it to Olga Khomishen. This should include all probe reports, time sheets and any documented conversations, staff, resident and family concerns / complaints.” (Pltf. Ex. 8.) After Plaintiff sent the initial email, Plaintiff states Lozano’s “harsh treatment” continued and intensified and “it did not appear that Kevin McGuire or anyone else did anything to prevent Lozano from yelling at [Plaintiff], or finding fault with everything that [Plaintiff] did.” (Id. ¶ 14.) Plaintiff filed an EEOC complaint on July 1, 2019, (Mohamed Decl. Ex. 10), which Lozano was aware of. (Pltf. Decl. Ex. 3, Lozano Depo. Vol. II at 135:21-136:13.) On September 5, 2019, Lozano provided Plaintiff a second performance review, lowering Plaintiff’s scores in seven of the nine categories to “improvement needed” from “standard.” (Def. Ex. L.) 

“[T]emporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination . . . This is especially so where the employer raised questions about the employee's performance before he disclosed his [complaint], and the subsequent termination was based on those performance issues.” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353.) To rebut Plaintiff’s timing evidence, Defendant notes there is evidence Defendant was notified of Plaintiff’s performance issues before the June 10, 2019 email or the July 1, 2019 EEOC complaint. 

Plaintiff’s initial, positive performance review in April of 2019 provided “Areas of improvement: Progressive Disciplines / Nursing-Unit Quality Improvements. Recommendation: Continue to attend Leadership training and seminar.” (Mohamed Decl. Ex. 6. Plaintiff sent the June 10, 2019 email in response to a May 29, 2019 text message and meeting about Plaintiff’s performance. (Mohamed Decl. Ex. 7.) Plaintiff’s second performance review cited the May 29, 2019 meeting indicating it was to “discuss some staff complaint about his behavior.” (Def. Ex. L.) McGuire testified he sought information about Plaintiff due to complaints from “Sanora and from Britta” regarding Plaintiff’s “interactions with staff . . . concern for the residents. Concerns with how he communicates and works with the families and staff.” (Alvarado Reply Decl. Ex. P, McGuire Depo. at 70:6-20.) On April 19, 2019, Britta Greenwald sent an email to “share some significant concerns regarding Ali.” (Def. Ex. 11.) Greenwald sent another email on June 6, 2019 stating “Ali is not attending morning unit stand-up meetings . . . Ali is not attending Nutrition Alert meetings. Ali continues to be unfamiliar with residents.” (Def. Ex. 8.) Defendant’s evidence indicates the performance issues leading to Plaintiff’s lower performance review existed prior to the claimed protected activity. 

Accordingly, as to the retaliation claim, Plaintiff has only demonstrated temporal proximity between his complaint to Lozano, McGuire, and the EEOC and his decreased performance review. Plaintiff’s evidentiary showing is not sufficient to raise a triable issue of fact of a reasonable inference that any conduct was taken against him in retaliation for his complaints. Plaintiff’s opposition summarily references disability or medical leave, but does not provide any evidence demonstrating an adverse employment action was based upon his taking leave. Plaintiff also cites a separate event regarding an investigation into resident abuse, (Opp. at 5:9-21), but fails to provide any evidence creating an inference that the investigation was based upon an improper animus. 

Summary adjudication is GRANTED as to the fifth cause of action for retaliation.