Judge: Monica Bachner, Case: 18STCV08528, Date: 2022-08-23 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 18STCV08528    Hearing Date: August 23, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants City of Los Angeles and Ta’ana Mitchell’s motion for summary judgment is denied.  Defendants’ motion for summary adjudication is denied as to 1^st, 2^nd, and 7^th causes of action and as to Issues Nos. 1, 3, 5, and 7.  Defendants’ motion for summary adjudication is granted as to the 4^th, 5^th, 6^th, and 8^th causes of action and as to Issues Nos. 2, 6, and 4 (with respect to the 5^th cause of action).  The Court does not reach issue No. 4 (with respect to the 4^th cause of action).

          Defendants City of Los Angeles (“the City”) and Ta’ana Mitchell (“Mitchell”) (collectively “Defendants”) move for summary judgment on the second amended complaint (“SAC”) of Plaintiff James Sharlein (“Plaintiff”).   In the alternative, Defendants move for summary adjudication of the 1^st (harassment in violation of the FEHA [sex/gender]), 2^nd (harassment in violation of the FEHA [race/color]), 4^th (discrimination in violation of the FEHA [race/color]), 5^th (FEHA retaliation), 6^th (retaliation – Labor Code §1102.5), 7^th (failure to prevent discrimination, harassment, and retaliation in violation of the FEHA), and 8^th (violation of the Firefighter Bill of Rights (“FFBOR”) under Gov. Code §3250, et seq.) causes of action. Specifically, Defendants seek adjudication of the following seven issues: (1) Plaintiff cannot establish he was subject to an adverse employment action [4^th, 5^th & 6^th COAs]; (2) Plaintiff cannot establish discriminatory intent for the purposes of establishing a prima facie case for discrimination [4^th COA]; (3) Plaintiff cannot establish causation for purposes of establishing a prima facie case for retaliation [5^th & 6^th COAs]; (4) the City had legitimate business reasons for its actions and Plaintiff cannot establish pretext [4^th, 5^th, & 6^th COAs]; (5) Plaintiff cannot establish the alleged harassment was either motivated by his protected traits and/or constituted actionable harassment [1^st & 2^nd COAs]; (6) Plaintiff cannot establish the City violated provisions of the FFBOR with respect to investigations and/or interrogations involving Plaintiff [8^th COA]; and (7) Plaintiff cannot establish the causes of action underlying his failure to prevent cause of action [7^th COA].  (Notice of Motion, pgs. 1-3.)

The Court notes the operative SAC does not include the previously asserted 3^rd (discrimination in violation of the FEHA based on sex/gender) cause of action in light of the Court’s ruling sustaining the demurrer to this cause of action, without leave to amend; however, for clarity, the moving papers and the instant ruling refer to the causes of action based on their number in the SAC. As such, the omission of a 3^rd cause of action is intentional.

          Background of Motion, the May 5, 2022 Ruling, and Recent Filings

          In its ruling on May 5, 2022 (“May Ruling”), the Court continued the hearing on the instant motion given defects in Plaintiff’s Opposition and Response Separate Statement (“R-SSF”) and set a special briefing schedule for Plaintiff to file amended versions of these documents, with Defendants entitled to file a revised reply in response thereto.  In its May Ruling, the Court ordered Defendants to correct the R-SSF as follows: (1) ensure the responses unequivocally state whether a material fact is disputed or undisputed; (2) for disputed facts, clearly state the nature of the dispute and cite to evidence in support thereof; (3) correct a numeration error; and (4) ensure responses are corrected for all material facts.  The Court ordered Plaintiff to submit an amended opposition that adds citations to the Undisputed Material Facts, Plaintiff’s Responses to Disputed Material Facts, Plaintiff’s Additional Material Facts, and/or evidence in support thereof. 

In the May Ruling, the Court ruled on some of the parties’ pending evidentiary objections as follows: Defendants’ 4/28/22 objections to the untimely documents are sustained as to Nos. 1, 2, 3, 4, and 7 [the Supplemental Declaration of Sisson, the Declaration of Christopher Brizzolara, the Notice of Lodging, and the Request for Judicial Notice].  The objections to the untimely documents are overruled as to Nos. 4, 5, and 6 [the Notice of Errata, the Amended Response Separate Statement reflecting the typographical changes addressed in the Notice of Errata, and the Evidentiary Objections].  However, as discussed below, the Court’s ex parte ruling reversed its ruling sustaining evidentiary objections to the Supplemental Declaration of Sisson, the Declaration of Brizzolara, and the Notice of Lodging.  The Court’s May Ruling did not rule on other evidentiary objections asserted by the parties, which are to be addressed in the instant ruling.

          On May 10, 2022, the Court granted Plaintiff’s ex parte application for leave to file documents in support of his opposition to the MSJ in part. The Court allowed lodging of Item 3 (video) and filing of Item 4 (2/22/22 Decl. of Brizzolara) and Item 5 (2/22/22 Supplemental Decl. of Sisson).  Accordingly, the Court considers these filings in ruling on the motion.

          On June 24, 2022, Plaintiff filed an Amended Opposition, Second Amended R-SSF, and a supplemental Compendium of Evidence (“COE”) attaching documents in support of the opposition.  On June 27, 2022, Plaintiff filed a “Notice of Lodging Confidential [Document], Exhibit A to the Declaration of Thomas Weng in Opposition to Motion for Summary Judgment” (“Notice of Lodging”).  The Notice of Lodging attaches an unredacted version of Exhibit A, and as such, the Exhibit was not lodged conditionally under seal but has been publicly filed.  On July 1, 2022, Defendants filed an amended reply to the opposition and amended evidentiary objections. 

           Lack of Court Order Sealing Exhibits

Plaintiff’s amended opposition is accompanied by a Notice of Lodgment indicating that Exhibit A to the Declaration of Weng [a Professional Standards Division Complaint] filed in support of the original opposition was lodged conditionally under seal. The Court notes the Declaration of Weng did not attach Exhibit A.  However, Exhibit A was lodged without a sealing order. Moreover, it appears Plaintiff has filed Exhibit A publicly and unredacted, and as such, it is not currently lodged under seal.

Under CRC Rule 2.550(c), Court records are presumed to be open.  CRC Rule 2.551(a) states that a record must not be filed under seal without a Court order.  Further, section 2.551(a) states that the Court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.  In addition, while exceptions to this rule exist, a declaration in support of an opposition to a motion for summary adjudication does not fall within the possible exceptions.  (See CRC Rule 2.550(a)(2)-(3) [“These rules do not apply to [(1)] records that are required to be kept confidential by law… [or (2)] discovery motions and records filed or lodged in connection with discovery motions or proceedings.  However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.” (Emphasis Added.)].) 

To the extent Plaintiff intended to lodge Exhibit A under seal, he must request that the clerk strike the filing, properly lodge the confidential document under seal, and present argument in support of sealing at the hearing on the instant motion. 

Requests for Judicial Notice

Defendants’ 5/27/21 request for judicial notice is granted.  However, the Court will not take judicial notice of the truth of the matters asserted in temporary restraining order (“TRO”) form or the reporter’s transcript for the July 19, 2018 hearing. (D-RJN, Exhs. A, B.) 

Remaining Evidentiary Objections

As a preliminary matter, C.C.P. §437c(q) provides that, “[i]n 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. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”

Plaintiff’s 2/18/22 evidentiary objections to Exhibit No. 4 to Defendant’s COE is sustained as to No. 1 (handwritten notes on 3/28/18 Email from Plaintiff, Plaintiff Depo Exh. 4.) [The Court notes the deposition testimony suggests the Email was introduced as evidence for the contents of the email, not the handwritten notes thereon. (See D-COE, Exh. 2, Plaintiff Depo at 139:3-140:18; Decl. of Cadena ¶5, Exh. 4.)]

Plaintiff’s evidentiary objections to the Declaration of Phillip T. Fligiel (“Fligiel”) are overruled as to Nos. 2, 3, 5, 6, 7, 8, 9, and 10, and sustained as to No. 4 [¶7, 2:14-20].

Plaintiff’s evidentiary objections to the Declaration of Stephen L. Gutierrez (“Gutierrez”) are overruled as to Nos. 11, 12, 13, 14, and 15.

The Court notes Defendants’ 7/1/22 amended evidentiary objections incorporate Defendants’ 2/17/22 evidentiary objections Nos. 1-132 and submit new objections Nos. 133-141 as to evidence Plaintiff submitted in his supplemental filings after the May Ruling.  Accordingly, the Court’s ruling on Defendants’ 7/1/22 evidentiary objections encompass all their objections. 

Defendants’ 7/1/22 evidentiary objections first raise evidentiary objections to untimely materials lodged with Court but not included in the Compendium.  These evidentiary objections are overruled.  (Evidentiary Objections, pgs. 2-3.)

Defendants’ evidentiary objections to the Deposition of Antonio Jones (“Jones”) is sustained as to No. 1, to the extent Plaintiff relies on the testimony for the truth of the matter stated, to support his assertion that individuals overheard or spoke with Mitchell about her complaints at the Stentorians party.

Defendants’ evidentiary objection to the Deposition of Jamie Lesinski (“Lesinski”) is overruled as to No. 2.

Defendants’ evidentiary objections to the Declaration of Plaintiff are sustained as to Nos. 1, 3, 5, 6 (only as to, “which I understood to mean… we are sworn to serve” otherwise overruled [Mitchell’s statements]), 8, 9 (except as to “I then spoke with Mitchell… and I walked away” as to which the objection is overruled; it is not clear as to what conduct of Mitchell and/or the Captain Plaintiff personally witnessed for purposes of having sufficient foundation and knowledge to testify as to her actions or statements; Plaintiff’s statements about what Andrew Smith (“Smith”) told him that Mitchell said are inadmissible hearsay), 11, 34, 36 (lacks foundation), 37 (lacks foundation, double hearsay), 42 (only as to “My request was sent up… until at least January of 2019” otherwise overruled), 43 (speculation/no personal knowledge), 45, 46, 48, 49, 50, 53 (only as to “Despite… were false” otherwise overruled), 55, 59, 60, and 62.

Defendants’ evidentiary objections to the Declaration of Plaintiff are overruled as to Nos. 2, 4, 7, 10, 12 (except as to, “Jones told me he got word that Mitchell… harassing her” as to which the objection is sustained), 13, 14, 15, 16, 17, 18 (to the extent statements by Brizzolara and Cappon are submitted for the truth of the matters they assert, sustained), 19 (to the extent statements by Brizzolara and Cappon are submitted for the truth of the matters they assert, sustained), 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 38, 39 (not for truth of matter asserted), 40, 41, 42, 44, 47, 51 (not for the truth of Flores’s statement), 52, 54, 58, 59, and 61.  The Court does not reach Nos. 56, 57, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 pursuant to C.C.P. §437c(q).

Defendants’ evidentiary objections to the Declaration of Thomas Weng are sustained as to No. 90. The Court does not reach Nos. 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 91, 92, or 93 pursuant to C.C.P. §437c(q).

Defendants’ evidentiary objections to the Declaration of John Cappon are sustained as to Nos. 104, 115 (no personal knowledge), and overruled as to Nos. 103, 114. The Court does not reach Nos. 94, 95, 96, 97, 98, 99, 100, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, or 126 pursuant to C.C.P. §437c(q).

Defendants’ evidentiary objections to Exhibits attached to the Declaration of Michael Sisson (“Sisson”) Nos. 127, 128, 129, 130, 131, or 132 are overruled as the Exhibits are not identified.

The Court does not reach Defendants’ evidentiary objections to Exhibit 29 [Deposition of Mullen] attached to Plaintiff’s Supplemental Compendium of Exhibits Nos. 133, 134, 135, 136, 137, 138, 138 pursuant to C.C.P. §437c(q).

The Court does not reach Defendants’ evidentiary objections to Exhibits attached to Plaintiff’s Supplemental Compendium of Exhibits Nos. 139, 140, 141 pursuant to C.C.P. §437c(q).

          Background

          Plaintiff filed the instant action on December 14, 2018.  On September 10, 2019, the Court sustained Defendants’ demurrer to the first amended complaint with leave to amend as to the 2^nd, 3^rd, 4^th, and 8^th causes of action and overruled as to the 1^st, 5^th, and 7^th causes of action.  On January 24, 2020, the Court sustained Defendants’ demurrer to the SAC’s 3^rd cause of action without leave to amend, and overruled the demurrer to the 2^nd, 4^th, and 8^th causes of action.  On February 10, 2020, Defendants filed their answer to the operative SAC. 

Plaintiff, a Caucasian male firefighter employed by the City, was previously assigned to Fire Station 50 (“FS 50”) and Mitchell is an African American female firefighter also employed by the City.  (SAC ¶¶1, 3, 14.)  Plaintiff alleged Mitchell, a probationary employee, was assigned to FS 50 in December 2017.  (SAC ¶14.)  Plaintiff’s claims in the instant action are based on allegations that Mitchell made verbal statements that constituted sexual and/or race-based harassment and discrimination and/or threats against Plaintiff.  (SAC ¶¶16-17.)  Plaintiff’s claims are also based on allegations that Mitchell falsely reported that Plaintiff was harassing and/or discriminating in a sex and/or race-based manner.  (SAC ¶18.)  Plaintiff alleged that on December 14, 2017, Mitchell made threatening statements to Plaintiff, thereafter, on December 15, 2017, Plaintiff reported these statements to his supervisor at the City, and on December 18, 2017, Mitchell made additional threatening statements to or about Plaintiff which Mitchell repeated to other firefighters in April 2018.  (SAC ¶¶14-16.)

In connection with his harassment causes of action, Plaintiff alleged that he was warned by LAFD Fire Inspector/Stentorian Antonio Jones (“Jones”) that LAFD Firefighter/Stentorian Dreon Brown (“Brown”) had told him [Jones] that he should warn Plaintiff because Brown had overheard Mitchell accusing Plaintiff of being racist and creating a hostile work environment for her and that Brown had been advised during the same event that the association of African American firefighters, the Stentorians, were “coming after” Plaintiff because of his color/race as a white Caucasian.  (SAC ¶42.) 

Plaintiff also alleged that after he reported Mitchell’s conduct to Lesinski, Lesinski advised Plaintiff that a Stentorian member had specifically ordered him to not report or take action with respect to Plaintiff’s complaints of harassment and threats.  (SAC ¶43.)  Plaintiff alleged that non-party firefighter Guzman sought a promotion and was warned by Harvey that he needed to be on the right side of the investigation regarding Plaintiff and Mitchell.  (SAC ¶45.)  Plaintiff further alleged that Mitchell and other African American Stentorian members and assistant chiefs, battalion chiefs, and captains discriminated against him by falsely reporting to that he was racially harassing and discriminating against Mitchell and by falsely accusing Plaintiff of being a racist.  (SAC ¶47.) 

Discrimination in Violation of the FEHA – Race/Color (4^th COA) [Issues Nos. 1, 2, & 4]

A prima facie case of discrimination requires the following elements: (1)

plaintiff 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) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive.  (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) 

Plaintiff’s discrimination cause of action is based on the following allegations: (1) Plaintiff was subjected to racial harassment because of his white/Caucasian race by the City by the City’s failure and refusal to take steps necessary to address harassment and threats and assure a safe and productive workplace for Plaintiff; (2) the City transferred Plaintiff to a less favorable, less controlled, and potentially more dangerous working and other locations instead of transferring Mitchell [the alleged harasser] as required by the City’s policies, which constituted racial discrimination on the basis of Plaintiff’s race; (3) the Stentorians, an activist group composed of African American firefighters who advocate for the promotion of African Americans in the LAFD, have extensive influence with the City, which provided the Stentorians former Stations 46 and 30 to be used as their headquarters.  (SAC ¶106-107.)  Plaintiff alleged the following relating to the City’s adverse employment action against him: (1) from 2015 to 2017, he was a licensed and certified paramedic performing paramedic duties and receiving bonus pay while assigned to Stations 9, 29, and 50; (2) in June 2018, Plaintiff requested LAFD sponsor him as a licensed paramedic so he could take the test to recertify and resume his assignment as a paramedic with the LAFD since Plaintiff was a qualified paramedic in the state of California but for Los Angeles County needed LAFT to sponsor/approve him to take the Los Angeles County test; (3) Plaintiff’s request was approved up the chain of command, including by Lee Westfall (“Westfall”), Jim Flores (“Flores”), and Philip Fliegel (“Fliegel”); (4) however, Chief Anthony Hardaway (“Hardaway”), an African American member of the Stentorians and commander of the bureau that supervised LAFD paramedics, discriminated against Plaintiff because of his race and denied Plaintiff’s request which prevented Plaintiff from working as a paramedic and earning the bonus and overtime pay.  (SAC ¶44.) 

Defendants move for summary adjudication of the 4^th cause of action on the following issues: (1) Plaintiff cannot establish he was subject to an adverse employment action [Issue No. 1]; (2) Plaintiff cannot establish the necessary element of discriminatory intent for purposes of a prima facie case of discrimination [Issue No. 2]; and (3) even if Plaintiff can establish a prima facie case for discrimination, the City had legitimate business reasons for its actions and Plaintiff cannot establish pretext [Issue No. 4]. 

1. Whether Plaintiff can Establish an Adverse Employment Action for Discrimination [Issue No. 1]

CACI 2509 provides, as follows: “Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [Defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [Plaintiff’s] employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.” 

“Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions…” (Yanowitz v. L’Oreal, USA Inc. (2005) 36 Cal.4th 1028, 1054.)

Defendants submitted evidence suggesting Plaintiff cannot establish he was subjected to an adverse employment action.  First, to the extent Plaintiff alleges the City’s refusal of his request to return to FS 50 amounted to an adverse employment action, Defendants submitted the following evidence relating to that refusal: (1) Plaintiff requested to leave FS 30 in March 2018; and (2) in May 2018, Plaintiff again objected to working at FS 50 and was able to transfer to a preferred station after his detail at Station 6 ended.  (USSF Nos. 6, 8 (“USSF” refers to undisputed facts); [Disputed Separate Statement of Fact (“D-SSF”) No. 12] D-COE, Exh. 2, Plaintiff Depo 189:21-190:6 [testimony that Plaintiff eventually transferred out of Station 6 and to Station 46 in December/January 2018/2019], 190:17-191:13 [testimony that Plaintiff chose 46 as a landing spot partly for financial reasons (it is a rescue only position that pays more)].) 

Second, to the extent Plaintiff alleges the City’s failure to sponsor his paramedic certification amounted to an adverse employment action, Defendants submitted evidence that Plaintiff chose to let his paramedic certification expire in 2017 and was able to become recertified in 2018.  ([D-SSF Nos. 23, 24] D-COE, Exh. 2, Plaintiff Depo 13:14-16 [testimony Plaintiff first became a paramedic in 2013], 193:12-194:7 [testimony that six months before Mitchell was assigned to FS 50, Plaintiff stopped functioning as a paramedic at the fire department], 196:10-14 [testimony that Plaintiff decided to no longer function as a paramedic because of “the job itself and the direction [he] wanted to go in the fire department.”], 205:19-206:3 [testimony that in November 2018 the department sponsored him to get his certification renewed], 207:10-208:3 [testimony that Plaintiff could not speak to the department’s other requirements for him to get his paramedic status back]; Exh. 7 [3/6/17 Correspondence from Plaintiff requesting he no longer function as a paramedic for the LAFD].)  To the extent Plaintiff alleges he was denied paramedic positions after his March 2018 transfer from FS 50, Defendants submitted evidence that Plaintiff admitted he was not then eligible for paramedic positions because he was not authorized to function as a paramedic at the time. ([Motion, pg. 9] Plaintiff Depo 76:12-22 [testimony that Plaintiff was denied a transfer to Station 50 in April or May 2018, which was around the same time he was denied a paramedic promotion], 90:24-91:14 [testimony that he was denied all the favorable positions that were open at the time his paramedic license was denied, namely, the medic spot at FS 50, which only becomes available every 5-10 years, however Plaintiff was denied those positions because he was not a paramedic at the time he was trying to transfer.]

Third, to the extent Plaintiff contends his having been unfairly subjected to two Professional Standards Division (“PSD”) investigations amounted to an adverse employment action, Defendants submitted evidence the allegations of those investigations were not sustained, and Plaintiff was not disciplined.  ([Motion, pg. 9] D-COE, Exh. 8, Decl. of Gutierrez ¶¶10, 14; Exh. 2, Plaintiff Depo 152:15-19 [testimony that Plaintiff was not put on leave while Mitchell’s complaint was investigated, that the Department did not find sufficient evidence to support the complaint, and that he did not face any formal discipline as a result of Mitchell’s complaint] 156:17-20 [testimony that some of Plaintiff’s allegations against Mitchell were sustained].)  Defendants also submitted evidence that the three PSD investigations were completed within one year.  ([Motion, pg. 10] D-COE, Exh. 8, Decl. of Gutierrez ¶¶10, 14, 19; Exhs. 9, 13, 17.) 

          Fourth, to the extent Plaintiff contends other alleged conduct by the City and/or its staff toward Plaintiff constituted adverse employment actions, Defendants submitted evidence suggesting Plaintiff cannot establish such conduct amounted to adverse employment actions.  Specifically, Plaintiff’s allegation that being subjected to comments like “here comes that guy” is not a personnel action that can constitute an adverse employment action.  (Motion, pg. 10; SAC ¶52; D-COE, Exh. 2, Plaintiff Depo 89:21-90:23, 99:8-18; see Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) [“ostracism suffered at the hands of coworkers cannot constitute an adverse employment action.”].)  Plaintiff can submit no evidence supporting his allegation that he was deprived of overtime pay given Plaintiff could not identify instances he was denied overtime and given Plaintiff testified that he chose not to work as much overtime at Station 6 as he had at FS 50.  ([Motion, pg. 10] D-COE, Exh. 2, Plaintiff Depo 110:2-21 [less overtime was available at Station 6], 19:1-3 [Plaintiff chose to not work as much overtime at Station 6 as he had at 50], 189:21-190:6 [testimony summarized above], 190:17-191:13 [testimony summarized above].)  Defendants argue that, taken together, the actions do not constitute an adverse material change to Plaintiff’s employment since they did not materially, adversely impact Plaintiff’s job performance or opportunity for advancement.  (Motion, pg. 10.) 

Based on the foregoing, Defendants met their burden on summary judgment/adjudication. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact.  As discussed below, Plaintiff met his burden.

          Plaintiff asserts he was subjected to the following adverse actions: (1) administrative transfer out of FS 50 [Additional Material Facts (“AMF”) Nos. 218-222]; (2) denial of transfer back to FS 50 in November 2018 and January 2019 [AMF Nos. 225, 226, 228, 229-230]; (3) denial of sponsorship/accreditation as a paramedic [AMF Nos. 207, 208]; (4) being subjected to undeserved and excessive discipline [AMF Nos. 232-237]; (5) being repeatedly charged with meritless misconduct claims [AMF 163, 169-174; SSF Nos. 9-21, 83, 90-92, 114-116]; and (6) the August 2020 “paramedic run” which resulted in LAFD recommending Plaintiff receive 10 day suspension without pay [AMF 232-238].  (Opposition, pgs. 13:23-14:10, 15-16, 19.) The Court notes that Plaintiff’s inclusion of the City’s actions in 2021 relating to Plaintiff’s August 2020 paramedic run as an alleged adverse employment action is misplaced since these facts exceed the scope of the pleadings, filed in October 2019, which frame the issues to be determined on summary judgment. The Court does not consider the arguments or evidence relating to these 2020 and 2021 events.

Plaintiff submitted evidence creating a triable issue of fact as to whether the City’s actions against him constituted adverse employment actions.  Specifically, Plaintiff’s assertion that his transfer out of FS 50 amounted to an adverse employment action is based on evidence that such a transfer carries a negative connotation and stigma considered to indicate the transferee is a problematic employee, and as such, was reasonably likely to materially adversely affect the terms and conditions of Plaintiff’s employment.  (AMF No. 220, Decl. of Plaintiff ¶62 [Objection 53 (sustained in part)], Decl. of Cappon ¶28 [Objection 114 (overruled)].)  Aside from objecting to the evidence submitted by Plaintiff, in reply, Defendants do not address whether Plaintiff failed submit evidence creating a triable issue of fact as to all the alleged adverse employment actions.  Rather, Defendants only address Plaintiff’s failure to submit evidence supporting his claim that the City’s refusal to sponsor his paramedic recertification amounted to an adverse employment action. (Reply, pgs. 1-3.)  

Based on the foregoing, Defendants’ motion for summary adjudication of Issue No. 1 with respect to the 4^th COA is denied. 

1. Whether Plaintiff can Establish Discriminatory Intent for Purposes of a Prima Facie Case of Discrimination [Issue No. 2] (SSFs Nos. 3-5, 11, 13, 14, 23-28)

Defendants argue Plaintiff cannot establish the City’s alleged discriminatory motive against him based on his race.  (Motion, pgs. 10-13.)  Specifically, Defendants assert that Plaintiff’s only basis for discriminatory motive is the respective races of the parties involved, namely, that Mitchell and the chiefs he contends were involved as decisionmakers in the adverse actions were black, while he is white.

Defendants submitted evidence suggesting Plaintiff cannot establish discriminatory intent based on race.  First, Defendants submitted evidence that Plaintiff does not know the identity of the individual or individuals at the 2017 Stentorian holiday party who purportedly said he or she would “get” or “go after” Plaintiff.  ([D-SSF No. 4] D-COE, Exh. 2, Plaintiff Depo 48:20-49:2 [testimony that the comment was made by “chiefs high up in the chain of command”], 81:24-82:4 [testimony that the fact Mitchell complained to the Stentorians about Plaintiff demonstrates she was engaging in this conduct against Plaintiff because of his race], 86:2-7 [testimony Plaintiff does not know who made the comment], 242:12-21 [testimony that Plaintiff would only be guessing as to who he thought said was “coming after” him, but that it would go hand in hand with every person who denied or punished him in some way].)  Defendants submitted evidence Plaintiff does not know who even witnessed this comment and/or agreed to “come after” Plaintiff.  ([D-SSF No. 5] Plaintiff Depo 48:20-49:2, 81:24-82:4, 86:2-7, 242:12-21 [same testimony as above].)  Moreover, Defendants argue Plaintiff cannot establish his belief that anyone at the party, let alone whoever said they would “get [him],” was involved in any of the alleged adverse actions against Plaintiff, which is based on Plaintiff’s assertion that African Americans at LAFD were warning him that the Stentorian club members were saying they were going “to get” him. (Motion, pg. 11, citing Plaintiff Depo 85:21-25.)  Defendants assert that while Plaintiff claims he was told Chief Kwame Cooper (“Cooper”) was taking over an investigation, and that Cooper was motivated by race in his decision making (based on being a member of the Stentorians and/or African American), Plaintiff has no evidence that Cooper was involved in PSD investigations against him.  (Motion, pg. 11, fn. 6; Plaintiff Depo 85:21-86:7 [D-SSF No. 26] Plaintiff Depo 130:17-131:24 [testimony that Plaintiff does not know whether Cooper had a role in the PSD investigation of Mitchell’s complaints and that Plaintiff believes Cooper did have a role in the decision to not transfer Plaintiff back to Station 50 which was based on “comments at the holiday party” about getting back at Plaintiff.].) 

Defendants submitted evidence that Plaintiff’s belief of racially motivated intent to discriminate against him is based on the race of the individuals who allegedly acted against him including the city attorney who represented Mitchell at the TRO hearing, the individual who denied Plaintiff’s paramedic promotion, the individual who drove Mitchell to the fire station to introduce her, and the individual who took over the investigation.  (Motion, pg. 11; Plaintiff Depo 106:22-107:14.)  However, the fact Plaintiff is white while Mitchell and other alleged wrongdoers are black is not evidence of discrimination.  (See Jenkins v MCI Telecommunications Corp. (C.D. Cal. 1997) 973 F. Supp. 1133, 1137; Gonzales v. MetPath (1989) 214 Cal. App. 3d 422, 427.) 

Defendants assert Plaintiff cannot submit competent evidence supporting his assertion that Hardaway, who is black, denied Plaintiff’s paramedic recertification because Plaintiff is white given Plaintiff testified Hardaway never said why he denied it and Plaintiff does not even know whether Hardaway attended the holiday party.  (Motion, pgs. 11-12; Plaintiff Depo 87:22-88:7, 88:8-89:6.)  Similarly, Defendants assert Plaintiff cannot cite to competent evidence supporting his assertion that a Stentorian member caused any investigation into complaints against Plaintiff to be prolonged. (Motion, pg. 12, Plaintiff Depo 246:4-14.)  To the extent Plaintiff contends he should not have been transferred out of FS 50 and/or that such a transfer was an adverse employment action, Defendants assert Plaintiff has no evidence that the decision to transfer Plaintiff instead of Mitchell out of FS 50 was based on his race.  (Motion, pg. 12.)  Moreover, Plaintiff testified that he does not know who denied his request to return to FS 50. (Plaintiff Depo 79:13-20.) 

Based on the foregoing, Defendants met their burden on summary judgment/adjudication.  Therefore, the burden shifts to Plaintiff to create a triable issue of material fact.  As discussed below, Plaintiff did not meet his burden.

Plaintiff failed to submit evidence creating a triable issue of fact as to whether he can establish racially based discriminatory intent underlying the alleged adverse employment actions against him.  In opposition, Plaintiff argues triable issues of material fact support his discrimination cause of action because (1) Plaintiff is a member of a protected class, (2) Plaintiff was qualified to remain at FS 50 and to be accredited as a paramedic, (3) Plaintiff was subjected to adverse actions based on his race, and (4) Defendants have submitted no evidence rebutting Plaintiff’s prima facie case.  (Opposition, pgs. 6-16.)  The Court notes only No. 3 (Opposition, pgs. 7-16) is relevant to Defendants’ assertion that they are entitled to summary adjudication of Plaintiff’s discrimination cause of action based on Plaintiff’s inability to submit evidence supporting the assertion that any adverse employment actions were based on Plaintiff’s race. 

Plaintiff argues Chief Cooper attempted to stop or hinder investigations of Plaintiff’s complaints with an intent “to discriminate against a white male firefighter in favor of a black female firefighter” supported by the Stentorians.  (Opposition, pg. 10.)  However, this assertion is conclusory and speculative and not supported by competent evidence. (Opposition, pg. 10 cites to AMF No. 179: Decl. of Plaintiff ¶34 [Objections 29-30 (overruled)], Lesinski Depo 154:20-161 [Lesinski’s testimony that he had a short conversation with Chief Cooper about Plaintiff’s complaints about Mitchell during which Chief Cooper brought up the complaints as a side comment and Lesinski just moved on without giving it any credence].)  Plaintiff’s declaration is not competent evidence that Chief Cooper attempted to stop investigations of Plaintiff’s complaints based on Plaintiff’s race.  To the extent the statements attributed to Chief Cooper and relayed by Lesinski are true, they are only evidence that Chief Cooper denied the transfer request and that he was shutting Plaintiff’s complaints down.  (Decl. of Plaintiff ¶34.)  There is no evidence that Chief Cooper denied the request or shut down the complaints because of Plaintiff’s race for purposes of establishing discriminatory intent. 

Plaintiff raises various arguments as to Mitchell’s alleged misbehavior and the City’s failure to punish her in accordance with its policies; however, these arguments are not relevant.  (Opposition, pgs. 10-12.)  At the summary adjudication stage, once the burden of establishing an essential element of the cause of action has shifted to Plaintiff, he must submit evidence creating a triable issue of fact as to that element.  Here, Plaintiff must submit evidence supporting his assertion that the City’s adverse employment actions against him were done with discriminatory intent based on his race.  Plaintiff argues that the City’s failure to follow its own policies with respect to Mitchell, who is black, is evidence of its discriminatory intent toward Plaintiff, who is white, given Plaintiff was treated worse than Mitchell.  (Opposition, pg. 12.)  However, the reasoning that the disparate treatment between Plaintiff and Mitchell was based on their respective races is conclusory and speculative and fails to cite to competent evidence in support thereof.  Plaintiff argues there is “overwhelming evidence” that the disparate treatment between Mitchell and himself was enabled by the political power of the Stentorians.  (Opposition, pgs. 12-13.)  However, aside from the respective races of Plaintiff, Mitchell, and Stentorian members, Plaintiff fails to cite to any evidence that the disparate treatment Plaintiff alleges he suffered was because of his race.  Plaintiff improperly relies on a correlation between Mitchell having the same race as the Stentorians and her better treatment as evidence of causation, namely, that because of Plaintiff’s different race, he was treated worse.  No competent evidence has been submitted to support this conclusion.

Plaintiff also argues the City’s refusal to sponsor him to work as an LAFD paramedic, which resulted in a nine-month delay in him assuming paramedic duties, was the result of unfavorable disparate treatment based on his race given his request was approved by every officer except Chief Hardaway who is black and a Stentorian member.  (Opposition, pgs. 13-14, citing AMF 208, Decl. of Plaintiff ¶51 [Objection 42 (sustained in part)], Supp-P-COE, Exh. 30 [documents produced the day before Mullen’s deposition, unclear what Plaintiff is citing to], Exh. 31, BATES 285-1 (Plaintiff’s 4/20/18 Status Change Request to be reinstated as a paramedic); P-COE, Exh I, Hardaway Depo 11:13-24 [note: this page of Hardaway’s testimony was not included in the filing].)  However, Plaintiff fails to submit competent admissible evidence supporting his assertion that the City’s delay in sponsoring his paramedic recertification was based on his race.  Plaintiff asserts the City’s requirement that Plaintiff work unpaid on paramedic ride-alongs and participate in a paramedic refresher course constituted discrimination against Plaintiff based on his race and were allegedly ordered by Chief Hardaway.  (Opposition, pg. 14; citing AMF No. 230 [the Court notes this AMF does not relate to the facts contended, rather it appears Plaintiff intended to cite AMF No. 227, and the Court considers that evidence], Decl. of Plaintiff ¶68.)  However, the only submitted evidence is Plaintiff’s own declaration, which is speculative, conclusory, and lacks foundation to support the assertion that the City’s paramedic recertification requirements were racially motivated.

Plaintiff also argues the City’s 2021 investigation of his involvement in an August 2020 incident and decision to suspend Plaintiff without pay demonstrates discrimination of Plaintiff based on race because Mitchell was not terminated when she engaged in what Plaintiff contends was worse behavior.  (Opposition, pgs. 14-15, citing AMF Nos. 232-237.)  However, this argument and supporting evidence are not relevant as they clearly exceed the scope of the pleading, which frame the issues in summary judgment/adjudication.  (See Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1275 [“Under settled summary judgment standards, [courts] are limited to assessing those theories alleged in the plaintiff’s pleadings.”].) 

Plaintiff argues he has presented evidence of being subjected to a pattern of discriminatory adverse employment actions “based on his race” including the City: (1) transferring him from FS 50 [AMF Nos. 218-222], (2) denying his transfer back to FS 50 [AMF Nos. 225, 226, 229, 230], (3) denying his paramedic accreditation [AMF Nos. 207, 208] (addressed above), (4) excessively disciplining him [AMF 232-237] (addressed above), (5) and “other adverse actions” [No AMFs or evidence cited].  (Opposition, pgs. 15-16.)

Aside from the adverse employment actions already discussed above, Plaintiff failed to submit competent admissible evidence supporting his assertion that the City’s decision to transfer him from FS 50 and/or refusal of his request to return to FS 50 were based on his race.  As to the decision to transfer Plaintiff out of FS 50, Plaintiff relies on the following evidence: (1) Plaintiff’s own declaration asserting that Chief Flores informed him that he (Plaintiff) needed to transfer given Mitchell made her complaints against Plaintiff first, which Plaintiff disputed [AMF No. 218, Decl. of Plaintiff ¶61 (Objection No. 52 [overruled])]; (2) Plaintiff’s conclusory declaration that the reasons given for his transfer were false and the transfer order was circulated throughout LAFD [AMF No. 219, Decl. of Plaintiff ¶62 (Objection No. 53 [sustained in part])]; and (3) the mirrored declarations of Plaintiff and LAFD Captain John Cappon (“Cappon”) asserting there was no legitimate reason for his transfer since it was not established that Plaintiff had threatened Mitchell, his transfer violated the policy for transferring the member engaging in the misconduct, not the victim, and his transfer violated LAFD policy [AMF No. 220, Decl. of Plaintiff ¶63 (Objection No. 55 [sustained]); Decl. of Cappon ¶29 (Objection No. 115 [sustained])]; and (4) the Declaration of Firefighter Thomas Weng (“Weng”) contending that removing Plaintiff from Station 50 was disruptive given a shortage of experienced firefighters and there was no legitimate reason for his transfer since Plaintiff did not make the threats Mitchell alleged [AMF No. 222; Decl. of Weng ¶19 (Objection 90 [sustained])].

As a preliminary matter, many of Defendants’ objections to this evidence appear to have merit as Plaintiff, Cappon, and/or Weng have not laid foundation for their conclusory assertions that reasons given for Plaintiff’s transfer were false, that the transfer violated policy, and/or that there was no legitimate reason for Plaintiff’s transfer.  Notably, Plaintiff submits no declarations or testimony with sufficient personal knowledge to address whether the decision made to transfer Plaintiff had merit or was based on racial animus.  Moreover, even if the Court found this evidence admissible, it is not sufficient to establish that the decision to transfer Plaintiff out of FS 50 was racially motivated.  Rather, at most, Cappon declares that the transfer violated policy and Weng declares he did not perceive the threats Mitchell alleged, and on this basis, contends the transfer was unwarranted.  Accordingly, Plaintiff failed to submit evidence creating a triable issue of fact as to whether the decision to transfer him out of FS 50 was racially motivated.

As to the decision to deny Plaintiff’s request to be returned to FS 50, Plaintiff relies on the following evidence: (1) Plaintiff’s own declaration that in November 2018, after Plaintiff was informed of a vacancy at FS 50, Captain Cook informed Plaintiff that he was going to be transferred back to Station 50; however, a few days later, Cook informed Plaintiff his transfer request had been denied [AMF No. 225, Decl. of Plaintiff ¶66 (Objection No. 59 [sustained])]; and (2) Plaintiff’s own assertion that there was no legitimate reason for the denial of his request and no one ever responded to Plaintiff’s concerns or explained why the request was denied [AMF Nos. 226, 229, Decl. of Plaintiff ¶¶67, 70 (Objection Nos. 60, 62 [sustained])].  [The Court notes Plaintiff also cites to AMF No. 230 in opposition; however, this fact has no relation to the denial of the request to transfer back to FS 50 and as such is not relevant.] As a preliminary matter, Defendants’ objections to this evidence have merit as Plaintiff has not laid foundation for his conclusory assertion that there was “no legitimate reason” for the denial of his transfer request. Moreover, even if the Court found this evidence admissible, it is not sufficient to establish that the decision to deny Plaintiff’s request to return to FS 50 was racially motivated.  The evidence at most demonstrates Plaintiff was initially informed he would be transferred back to FS 50 and this decision was reversed when he was subsequently informed that he would not be transferred. No evidence as to racial animus by decisionmakers has been submitted.  Accordingly, Plaintiff failed to submit evidence creating a triable issue of fact as to whether the denial of his request to transfer back to FS 50 was racially motivated.

Plaintiff submits no competent evidence that any particular Stentorian member was a decision maker in any of the alleged adverse employment actions against Plaintiff and/or that any individual Stentorian member had an animus against Plaintiff based on his race. As such, Plaintiff failed to submit evidence creating a triable issue of fact as to whether he can establish the element of discriminatory intent for purposes of his discrimination cause of action. 

Based on the foregoing, Defendants’ motion for summary adjudication of Issue No. 2 is granted.  Accordingly, Defendants’ motion for summary adjudication of the 4^th cause of action is granted.

The Court does not reach Issue No. 4 with respect to the 4^th cause of action.

Retaliation in Violation of the FEHA (5^th COA) [Issues Nos. 1, 3, 4]

As a preliminary matter, Defendants’ motion improperly groups the 5^th and 6^th causes of action together as “retaliation” causes of action.  However, a different legal standard applies to a cause of action for whistleblower retaliation in violation of Labor Code §1102.5 as opposed to in violation of the FEHA, and as such, this ruling considers these causes of action separately.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (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. [Citations]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)     

Plaintiff’s retaliation causes of action are based on the following allegations: (1) Plaintiff participated in protected activities by opposing and making complaints with respect to practices forbidden by the FEHA and testifying in/assisting proceedings under the FEHA; (2) Plaintiff’s protected activities were a substantial motivating reason for the City to retaliate against him by adverse employment actions; (3) the City subjected Plaintiff to the following adverse employment actions: (i) adverse transfers, (ii) denying favorable positions, (iii) ostracism, (iv) moving Plaintiff’s work locations to less desirable ones, (v) removing job responsibilities, (vi) denying employment benefits, (vii) making false statements about Plaintiff harming his reputation, (viii) denying opportunity for overtime pay, (ix) falsely accusing Plaintiff of spreading gossip, (x) subjecting him to improper investigations, (xi) subjecting him to Gov. Code §§32560 and 12940 code violations, (xii) engaging in a pattern of conduct that had an effect on the terms of Plaintiff’s employment [conduct not specified]; (4) as a result of the adverse employment actions, Plaintiff has been damaged.  (SAC ¶¶136-146.)

The Court notes, in opposition, Plaintiff asserts his retaliation causes of action are based on being subjected to the same adverse employment actions as in connection with his discrimination cause of action including: (1) administrative transfer, (2) denial of transfer back to Station 50, (3) denial of sponsorship as a paramedic, (4) being repeatedly falsely charged with misconduct, (5) being suspended following the August 2020 paramedic run, and (6) “other” adverse employment actions.  (Opposition, pg. 19.) 

Defendants move for summary adjudication of the retaliation causes of action on the following issues: (1) Plaintiff cannot establish he was subject to an adverse employment action [Issue No. 1]; (2) Plaintiff cannot establish the element of causation for a prima facie case [Issue No. 3]; (3) even if Plaintiff can establish a prima facie case for retaliation, the City had legitimate business reasons for its actions and Plaintiff cannot establish pretext [Issue No. 4]. 

1. Whether Plaintiff can Establish an Adverse Employment Action for Purposes of a Prima Facie Case of Retaliation [Issue No. 1]

Defendants rely on the same evidence in support of this issue with respect to the retaliation causes of action as with the discrimination cause of action.  As discussed above, Defendants submitted evidence suggesting Plaintiff cannot establish he was subject to an adverse employment action.  Specifically, Defendants submitted evidence that the alleged adverse employment actions did not actually materially affect Plaintiff’s employment. 

Accordingly, Defendants met their burden on summary judgment/adjudication, shifting the burden to Plaintiff to create a triable issue of material fact.  As discussed above, Plaintiff met his burden.

Based on the foregoing, Defendants’ motion for summary adjudication of Issue No. 1 with respect to the 5^th cause of action is denied.

1. Whether Plaintiff can Establish Causation for Purposes of Establishing a Prima Facie Case of Retaliation [Issue No. 3]

    

   Defendants assert Plaintiff cannot establish any causal link between any protected activity and any adverse action.  (Motion, pg. 13.)  With respect to Plaintiff’s transfer out of FS 50, Defendants submitted Plaintiff’s testimony that he would only be speculating as to the reason and that he was never told the reason.  (Motion, pg. 13; Plaintiff Depo 187:24-189:7 [testimony that Plaintiff wanted to return to FS 50 but not to work with Mitchell and she should have been transferred out instead of him]; 79:13-20 [in response to being asked who he believed denied his transfer, Plaintiff testified he believed it was a combination of the fire department and that he was told City attorney but that he would only be speculating]; 77:1-7 [testimony that Plaintiff was never told by Chief Hardaway why he was denying Plaintiff’s transfer to FS 50].) 

    

   Plaintiff also testified as to what he believed the reasons were for his prolonged PSD investigations, namely, because he complained about Mitchell.  (Plaintiff Depo 55:2-56:18 [testimony that Plaintiff believed higher-ups who heard Mitchell’s comments at the Stentorian party prolonged Plaintiff’s PSD investigation to get at him, but no basis for this belief], 108:21-24 [Plaintiff believed the PSD investigation was filed because of Plaintiff’s complaints about Mitchell], 246:4-14 [Plaintiff testified that he believed investigations were prolonged by Stentorian members based on speculation of having been warned about people coming after him].)  However, this conclusory assertion is unsupported by competent evidence. Defendants argue that just as Plaintiff cannot present evidence any actions by the City were motivated by Plaintiff’s race or gender, he also has no evidence that any actions were motivated by Plaintiff’s protected activity.  (Motion, pg. 13, citing Plaintiff Depo at 79:13-20 [testimony summarized above], 87:9-21 [testimony that he would only be speculating as to whether he was denied his transfer request because of his protected activity].) 

    

   Based on the foregoing, Defendants met their burden on summary adjudication.  Therefore, the burden shifts to Plaintiff to create a triable issue of material fact.  As discussed below, Plaintiff met his burden.

    

   Plaintiff submitted evidence creating a triable issue of fact as to whether he can establish a causal nexus between his protected activity and the City’s alleged adverse employment actions against him. The temporal relationship between Plaintiff engaging in protected activity and the subsequent adverse employment actions against him is circumstantial evidence of retaliation. (See Patten v. Grant Joint Union High School District (2005) 134 Cal. App. 4^th 1378, 1390 [the “series of acts on [Defendant]’s part –proceeding in linear fashion from [Plaintiff]’s disclosures and culminating in [the adverse employment action]—presents a triable issue of material fact as to a ‘causal link’ between the protected activity and the adverse employment action”.]  Here, Plaintiff submitted evidence that after no documented performance issues, in July 2018, he was administratively transferred out of FS 50 within a month of his interrogation regarding Mitchell’s harassment of him and his filing a criminal complaint against Mitchell.  (Opposition, pg. 21, citing AMFs Nos. 218-222: Decl. of Plaintiff ¶¶61, 62, 63 [Objections Nos. 52 (overruled), 53 (sustained in part), 54 (overruled), 55 (sustained)]; Decl. of Weng ¶19 [Objection No. 90 (sustained)]; Decl. of Cappon ¶¶28-29 [Objections Nos. 114 (overruled), 115 (sustained)]; AMF No. 209: Decl. of Plaintiff ¶52 [Objection No. 43 (sustained)], Decl. of Cappon ¶17 [assertion that Plaintiff selected Cappon to be his union representative in regard to the PSD investigation of Plaintiff based on a complaint filed by Captain Morgan relating to threats perpetrated by Mitchell against Plaintiff and that Cappon attended the June 2018 interrogation]; AMF No. 216, Decl. of Plaintiff ¶59 [Plaintiff filed his criminal complaint against Mitchell on June 25, 2018].)  [The Court notes the declarations of Plaintiff, Weng, and Cappon do not set forth competent admissible evidence that the decision to transfer Plaintiff was the result of him raising complaints about Mitchell; however, they do establish the temporal proximity of the transfer with respect to Plaintiff’s complaints. (See Evidentiary Objections above.)]  Plaintiff argues the City “thereafter” continued a pattern of retaliation against Plaintiff by engaging in the remaining adverse employment actions discussed above. (Opposition, pgs. 21-22.) As such, Plaintiff’s only evidence of causation is the circumstantial evidence that the City’s adverse employment actions were close in time to Plaintiff’s protected activity of raising complaints about Mitchell.  For purposes of establishing a prima facie case under McDonnell Douglas, temporal proximity of Plaintiff’s protected activity and subsequent adverse employment actions may satisfy the causation requirement at the first step of the burden-shifting process.

    

   Based on the foregoing, Defendants’ motion for summary adjudication of Issue No. 3 with respect to the 5^th cause of action is denied.

    

2. Whether Plaintiff can Establish the City’s Legitimate Business Reasons for its Actions were Pretextual for Retaliation [Issue No. 4]

    

   “‘‘[W]e must keep in mind that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings.’’ ‘‘‘In such pretrial [motion] proceedings, the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. 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. In short, by applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’’ … Thus, ‘‘[a]lthough the burden of proof in a [discrimination] action claiming an unjustifiable [termination] ultimately rests with the plaintiff…, in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue. … In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion. …’’’” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 236 [citations omitted].)

    

   “Once an employer has offered a legitimate, nondiscriminatory reason for the adverse employment action, a ‘‘plaintiff must offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.’’” (Id. at 238 [citation omitted].)

    

   Defendants submitted evidence suggesting it had legitimate non-retaliatory reasons for its decisions relating to Plaintiff’s employment (transfer, failure to sponsor paramedic recertification, denial of transfer request), and as such, Defendants’ evidence suggests Plaintiff cannot establish he suffered adverse employment actions based on his protected activity. 

    

   With respect to the City’s denial of Plaintiff’s request to return to FS 50, Defendants submitted evidence suggesting the City had a legitimate reason to deny Plaintiff’s request given he had repeatedly requested to work separately from Mitchell and given Plaintiff had a pending TRO against Mitchell.  (Motion, pg. 14.)  Defendants cite to the following evidence: (1) in March 2018, Plaintiff requested to be reassigned out of FS 50 and for the LAFD to initiate a Workplace Violence Assessment [USSF No. 6]; (2) in May 2018, Plaintiff resubmitted his allegations and objected to being ordered to return to FS 50 [Decl. of Fligiel ¶11; Exh. 6 at BATES 235-21-22 (email from Plaintiff objecting to being ordered to return to FS 50 “where the threat still exists”)]; (3) in June 2018, Plaintiff requested to return to FS 50, the same station where Mitchell was based [Plaintiff Depo 171:5-16, 173:4-12]; (4) in light of the pending TRO and Plaintiff’s repeated requests to work separately from Mitchell, the City made the decision to not return Plaintiff to FS 50 [Decl. of Fligiel ¶¶14-16, Exh. 6 at Bates 235-51].

    

   As to the City’s alleged failure to sponsor Plaintiff’s paramedic recertification, Defendants submitted evidence suggesting it had a legitimate reason for enforcing its recertification threshold requirements to Plaintiff, namely, the requirement that Plaintiff participate in an EMS update and ride-along prior to recertification.  (Motion, pgs. 14-15; Decl. of Fligiel ¶5.) With respect to Plaintiff’s assertion that the City’s unnecessarily prolonged investigations into him were additional adverse employment actions, even assuming arguendo these constituted adverse employment actions, Defendants argue the City had a legitimate reason for following its procedures for processing complaints.  (Motion, pg. 15.)  [The Court notes Plaintiff did not submit competent evidence demonstrating that being subjected to investigations amounted to an adverse employment action; as discussed above, Plaintiff only submitted evidence that the denial of his transfer request and/or the decision to transfer him could have constituted and adverse employment action.]

    

   Defendants submitted evidence Plaintiff cannot establish the City’s stated reasons for its actions were pretextual for retaliation. Defendants assert Plaintiff has no evidence supporting his claims that chiefs were acting out against him because of his complaints against Mitchell given Plaintiff’s testimony demonstrates he was not at the 2017 Stentorian holiday party, he does not know the identity of the person who said they would go after him and/or whether this person was a decisionmaker behind the alleged adverse actions, and he does not know if Cooper was involved in the PSD investigations or whether any specific Stentorian member caused an investigation to be prolonged.  (Motion, pgs. 15-16; USSF No. 3; [D-SSF No. 4] Plaintiff Depo 48:20-49:2, 81:24-82:4, 86:2-7, 242:12-21 [testimony summarized above]; [D-SSF No. 5] Plaintiff Depo 48:20-49:2, 81:24-82:4, 86:2-7, 242:12-21 [testimony summarized above]; [D-SSF No. 26] Plaintiff Depo 130:17-131:24 [testimony summarized above].)

    

   Accordingly, Defendants met their burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact.  As discussed below, Plaintiff did not meet his burden. 

    

   Plaintiff failed to submit evidence creating a triable issue of fact as to whether the City’s stated reasons for its alleged adverse employment actions were pretextual for retaliation. In opposition, Plaintiff makes the conclusory argument that the City has not demonstrated that the adverse employment actions taken against Plaintiff would have occurred for legitimate, nonretaliatory reasons even if Plaintiff had not engaged in activities protected by the FEHA.  (Opposition, pg. 22.)  However, Plaintiff cites to no evidence supporting this assertion.  Moreover, Plaintiff does not discuss City’s evidence that Plaintiff’s request to be transferred back to FS 50 was denied for legitimate reasons given Plaintiff’s desire to not work with Mitchell and had sought a TRO against her.  (Decl. of Fligiel ¶¶14-16.)  The evidence supporting Fligiel’s decision is accordingly not contested.

    

   The Court notes Plaintiff separately discusses his whistleblower retaliation cause of action and evidence creating a triable issue of fact as to whether his protected activities were a contributing factor for purposes of that cause of action. (Opposition, pgs. 23-24.)  Even considering the facts and evidence discussed in this section, there is no evidence creating a triable issue of fact that the reasons for the City’s actions are pretextual.  Plaintiff cites to the fact he has suffered the alleged adverse employment actions since engaging in his protected activities in 2018.  (Opposition, pg. 23.)  However, temporal proximity alone is not enough to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 352-53.) 

    

   Plaintiff also argues the City violated its own personnel policies in deciding to transfer Plaintiff out of FS 50, refusing to transfer Plaintiff back to FS 50, the “denial” of his paramedic accreditation, and other matters. (Opposition, pg. 23-24; AMF No. 221, Decl. of Plaintiff ¶63 [Sustained Objection No. 55 (sustained)]; Decl. of Cappon ¶29 [Sustained Objection No. 115 (sustained)]; AMF No. 180, Decl. of Cappon ¶¶14-15 [Sustained Objection No. 104 as to ¶ 15] [Note, AMF No. 180 cites to ¶14; however, the opposition cites to ¶15].)  However, Plaintiff does not submit competent, admissible evidence supporting this assertion.

    

   Based on the foregoing, Defendants’ motion for summary adjudication of Issue No. 4 with respect to the 5^th cause of action is granted.  Accordingly, Defendants’ motion for summary adjudication of the 5^th cause of action is granted.

    

   Whistleblower Retaliation – Labor Code §1102.5 (6^th COA)

    

   Labor Code §1102.5(b) provides that, “An employer… shall not retaliate against an employee for disclosing information… to… a person with authority over the employee… if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” 

    

   The Court notes the January 27, 2022 decision in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703 holds that the evidentiary standard set forth in the Labor Code, not McDonnell Douglas’s burden-shifting standard, applies to California whistleblower retaliation claims based on violation of Labor Code §1102.5.  The instant motion was filed prior to Lawson, and as such, it addresses whether Plaintiff can submit evidence establishing the City’s stated reasons for its alleged adverse employment actions were pretextual for retaliatory reasons in the face of the City’s evidence it had a legitimate reasons for the actions; however, this is no longer the standard for the 6^th cause of action.  The Court applies the new standard based on the evidence and arguments submitted by the parties.

    

   Labor Code §1102.6 provides that, “In a civil action… brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged [prohibited] action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”

    

   In Lawson, the Supreme Court of California held as follows: “Under section 1102.6, a plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual. Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” (Lawson v. PPG Architectural Finishes, Inc., supra, 12 Cal.5th at 716.) The Court held that Section 1102.6 first, “places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action [and] [t]he plaintiff need not satisfy McDonnell Douglas… to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Id. at 718.)

    

   Plaintiff’s whistleblower retaliation cause of action relies on his general underlying factual allegations, discussed above.

    

   Defendants move for summary adjudication of the 6^th cause of action on the following issues: (1) Plaintiff cannot establish a prima facie case for retaliation because he cannot establish a causal nexus between his complaints and alleged adverse employment actions; and (2) the City had legitimate, non-retaliatory reasons for its actions and Plaintiff cannot establish the stated reasons were pretextual.  These arguments track with the burden-shifting set forth in McDonnell Douglas, and not Labor Code §1102.6, which applies a “contributing factor standard” under which the burden of proof is different in the following manner: (1) first, the employee must demonstrate by a preponderance of the evidence that the protected activity was a contributing factor to the employer’s adverse action; and (2) second, the employer has the burden of showing, by clear and convincing evidence, that it would have taken the at-issue adverse action for legitimate, independent reasons, notwithstanding the employee’s protected activity.

    

1. Whether Plaintiff Can Establish his Protected Activity was a Contributing Factor to the City’s Adverse Employment Actions

    

   Defendants submitted evidence suggesting Plaintiff cannot establish his protected activity was a contributing factor to the City’s adverse employment actions against him.  Notably, the Defendants’ evidence that Plaintiff cannot establish a causal nexus between the adverse employment actions and Plaintiff’s protected activity, discussed above, amounts to such evidence.

    

   Accordingly, Defendants met their burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact.  As discussed below, Plaintiff met his burden.  In the context of his FEHA retaliation cause of action, Plaintiff cited to evidence of temporal proximity between his protected activities and the adverse employment actions taken against him as evidence creating a triable issue with as to whether Plaintiff can establish a causal nexus.  For the purposes of a motion for summary judgment, this evidence is sufficient to create a triable issue of fact as to whether Plaintiff’s protected activities were a contributing factor to the City’s adverse employment actions against him.

    

2. Whether the City Can Establish, by Clear and Convincing Evidence, a Legitimate Reason for its Adverse Employment Actions

    

   Defendants submitted evidence it can establish by clear and convincing evidence a legitimate reason for its alleged adverse employment actions, even if Plaintiff’s protected activities were a contributing factor. Specifically, as discussed above in connection with the FEHA retaliation claim, Defendants submitted evidence that the City had valid legitimate reasons for the decisions that Plaintiff contends amounted to adverse employment actions. 

    

   Accordingly, Defendants met their burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact.  As discussed below, Plaintiff did not meet his burden. 

    

   Plaintiff did not submit evidence creating a triable issue of material fact as to whether the City cannot establish legitimate reasons for its alleged adverse employment actions.  As discussed above, Plaintiff relies on not competent, inadmissible evidence in support of his assertion that the City’s stated reasons are not legitimate.  The Court finds Defendants have submitted clear and convincing evidence that it would have taken the actions it took against Plaintiff even if Plaintiff had not engaged in protected activity of complaining about Mitchell.

    

   Based on the foregoing, Defendants’ motion for summary adjudication of the 6^th cause of action is granted.

    

   Harassment in Violation of the FEHA – Sex/Gender (1^st COA) [Issue No. 5.]

    

   A prima facie case for harassment requires the following elements: (1) plaintiff belongs to a protected group; (2) plaintiff was subjected to unwelcome harassment; (3) the harassment complained of was based on protected status; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)  “Under FEHA, an employer is ‘strictly liable for the harassing conduct of its agents and supervisors.’ [Citation.] The standard for coworker liability is that an employer is liable where it, its agents or supervisors ‘knows or should have known of this conduct and fails to take immediate and appropriate corrective action.’ [Citation.]” (Id. at 608, fn. 6.)

    

   Plaintiff’s cause of action for harassment on the basis of sex/gender is based on the following general allegations: (1) beginning in December 14, 2017 and thereafter, Mitchell engaged in race/sex-based harassment against Plaintiff including by making the following statements: (a) threatening to “drop a bomb on 50s,” (b) “They don’t know who they’re [expletive] with,” (c) “I have Chiefs on my speed dial” (in reference to African American LAFD chiefs), (d) “I want to sock [Plaintiff] in his face,” (e) “I already brough over [Cooper] so they know who I roll with” [The Court notes Plaintiff does not allege to whom Mitchell made the aforementioned statements or when she made them]; (2) on December 15, 2017, Plaintiff reported Mitchell’s conduct; (3) on December 18, 2017, in the presence of Muller [but apparently not Plaintiff], Mitchell made the following statements about Plaintiff: “I want to drop a bomb on [him],” “if he was a girl, I would have beat his ass,” that she wanted to “sock him in his face,”; (4) at a later unspecified date, Mitchell stated to Plaintiff that he “was the [expletive] problem,” that she had “seven brothers, two of whom just want to beat [Plaintiff’s] ass,” that “one brother just got out of jail and wants to beat his ass,” that “anyone that [expletive] with me… my brothers will make disappear,”  and “my brother wants to know if he can come up to the fire station to [expletive] up [Plaintiff]… I told him I just have to move some cars around,” [The Court notes the phrasing of some of these quotes makes it unclear whether they were made to Plaintiff/in his presence]; (5) in April 2018, Mitchell repeated the above statements to several firefighters; (6) at an unspecified date, Mitchell made the following statements to Plaintiff: “we could be [expletive] right now and the Fire Department wouldn’t even care,” “I am [expletive] horny right now,” “I am in the shower if you need me,” “your [paramedic] girlfriend looks [expletive] hot,” and she referred to Plaintiff as her, “station house husband,”; and (7) Defendants harassed Plaintiff by falsely reporting Plaintiff was sexist and/or racist, investigating those false reports, and failing to comply with their own policies and the law during the investigations. (SAC ¶¶14-18.)  

    

   Plaintiff alleges the City also harassed by: (a) failing to inform Plaintiff of the nature of the investigations brought against him prior to interrogations, (b) subjecting Plaintiff to offensive language/punitive threats during investigations, (c) failing to obtain a formal grant of immunity from Plaintiff before compelling him to respond to potentially incriminating questions, (d) failing to inform Plaintiff of constitutional rights during investigations, (e) temporarily reassigning Plaintiff, (f) conducting investigations on meritless matters that could affect Plaintiff’s employment, (g) punishing Plaintiff by denying him promotions, threating him with denial of promotions, (h) entering adverse comments in Plaintiff’s personnel file without first letting him read them, (i) failing to give Plaintiff an opportunity to respond in writing to such adverse comments, (j) failing to let Plaintiff inspect his personnel file, (k) failing to make a copy and/or keep available for inspection Plaintiff’s personnel file, (l) punishing Plaintiff by denying promotions without opportunity for appeal, (m) denying Plaintiff’s choice of representative during interrogations, (n) banning Plaintiff’s chosen representative from interrogations, (o) threatening Plaintiff that investigation of LAFD Stentorian members’ alleged misconduct would not move forward if he used his chosen representative, (p) threatening to “detail” Plaintiff, (q) conducting investigations of stale complaints if  Plaintiff continued to exercise his rights, (r) calling and intimidating Plaintiff’s wife, and (s) other violations. (SAC ¶19.)

    

   Plaintiff alleges the City further harassed him via the following actions: (i) adverse transfers, (ii) denying favorable positions, (iii) ostracism, (iv) moving Plaintiff’s work locations to less desirable ones, (v) removing job responsibilities, (vi) denying employment benefits, (vii) making false statements about Plaintiff harming his reputation, (viii) denying opportunity for overtime pay, (ix) falsely accusing Plaintiff of spreading gossip, (x) subjecting him to improper investigations, (xi) subjecting him to Gov. Code §§32560 and 12940 code violations, (xii) engaging in a pattern of conduct that had an effect on the terms of Plaintiff’s employment [conduct not specified].  (SAC ¶22.)  The Court notes Plaintiff relies on the same underlying factual allegations in support of both harassment causes of action. 

    

   Plaintiff alleges that during his employment, Plaintiff was subjected to harassment based on his sex and/or gender that included verbal harassment, epithets, derogatory comments, threats, and/or slurs, interference with normal work or movement, visual forms of harassment and other forms.  (SAC ¶¶27-28.)

    

   Defendants move for summary adjudication of the 1^st cause of action on the grounds Plaintiff cannot establish the alleged harassment was either motivated by his sex or gender and/or constituted actionable harassment [Issue No. 5]. 

    

1. Whether Plaintiff can Establish the Harassment was Motivated by his Sex/Gender

    

   Defendants did not meet their burden of demonstrating Plaintiff cannot establish that Mitchell’s harassment of him was based on his gender. 

    

   Defendants submitted evidence that Plaintiff’s December 22, 2017 email describing his interactions with Mitchell that made him feel uncomfortable and fear for his job makes no reference to gender. (Motion, pg. 16, citing, Exh. 3 [12/22/17 email from Plaintiff with subject line “History of interactions”].)  The Court notes in the email, Plaintiff recounted statements Dimeglio told Plaintiff that Dimeglio had heard Mitchell say (“drop a bomb on 50s,” etc.); i.e., Plaintiff did not hear these statements himself.  The email indicates that during a meeting at which Plaintiff was present, Mitchell stated, “I never said I wanted to drop a bomb on [FS 50], I was talking about dropping a bomb on [Plaintiff]. I meant if he was a girl, I would have beat his ass.”  The Court notes a review of the email makes no other reference to gender, and instead it suggests Mitchell made the statements because she was frustrated with Plaintiff allegedly interfering with who she could go on detail with.  Defendants note this email also does not refer to or discuss the parties’ respective races.  In addition, Plaintiff testified that he does not know why Plaintiff was behaving this way towards him [i.e., conduct described in the 12/22/17 email] and that he asked himself that quite a bit.  (D-COE, Exh. 2: Plaintiff Depo 56:19-57:10.)  At the July 2018 TRO hearing, Plaintiff also testified “I do not know what exactly she has against me.” (RJN, Exh. B: TRO Hearing 3:17-21.)

    

   Defendants cite to evidence that Plaintiff’s belief that Mitchell’s conduct was motivated by gender is based on her having made sexual comments to him because he is a man and stating that she would have punched Plaintiff if he were a girl.  (D-COE, Exh. 2, Plaintiff Depo 72:18-24.)  However, Defendants fail to address how this evidence demonstrates the statements by Mitchell were not based on Plaintiff’s gender.

    

   Defendants assert Mitchell’s alleged “sexual comments” are not sufficient to establish sexual harassment because they did not involve disparate treatment of Plaintiff based on his sex, and only amounted to a mere discussion of sex and/or use of vulgar language.  (Motion, pgs. 16-17, citing Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 279-280 [“Workplace harassment, even harassment between men and women, is not automatically discrimination because of sex merely because the words used have sexual content or connotations… [instead,] “it is the disparate treatment of an employee on the basis of sex – not the mere discussion of sex or use of vulgar language – that is the essence of a sexual harassment claim.”].) However, Defendants do not address whether the series of sexually charged statements Mitchell allegedly made to and in reference to Plaintiff amounted to a “mere discussion of sex and/or use of vulgar language.” Notably, Plaintiff’s harassment claim is not based on Mitchell’s statements along, but on her subsequently issuing various complaints against Plaintiff that caused investigations, which Plaintiff contends amounted to harassment as well.

    

   Defendants argue evidence Mitchell made inappropriate comments to everyone at FS 50, not just Plaintiff, demonstrates that statements made to everyone cannot be based on a protected characteristic and are accordingly not actionable.  (D-COE, Exh. 2, Plaintiff Depo 38:7-18; RJN, Exh. B: TRO Transcript 5:10-13; Motion, pg. 17, citing Lyle v. Warner Bros. Television Prods., supra, 38 Cal.4th at 283.)  However, Plaintiff’s harassment cause of action is not based on statements Mitchell made to everyone at FS 50, and whether she made such statements is not relevant as to whether her statements and actions against Plaintiff were motivated based on his male gender.

    

   The Court notes in support of Issue No. 5, which Defendants use to address both the 1^st and 2^nd causes of action, Defendants rely on SSFs Nos. 76, 77, 78, 78, 81, 82, and 83, which are equivalent to SSFs Nos. 1, 2, 3, 4, 5, 18, 21, and 76.  It is not clear how these facts support Defendants’ assertion that Plaintiff cannot establish the alleged harassment was motivated by gender. Notably, the facts relate to the Plaintiff and Mitchell’s December 14^th argument, the fact Plaintiff did not directly hear Mitchell make the “drop a bomb,” statement, Plaintiff’s note that he and Mitchell tried to move past their fight, the fact Plaintiff was not present at the holiday party or know who made statements suggesting they would “get” Plaintiff, and that Mitchell’s complaints against Plaintiff were not sustained.  Defendants’ motion cites directly to the record and does not address how these SSFs support its contention that Plaintiff has not met its burden.  The Court finds Defendants do not meet their burden in moving for summary adjudication to this cause of action on the ground Plaintiff cannot establish the harassment was gender motivated.  

    

   Based on the foregoing, Defendants do not meet their burden of establishing that Plaintiff cannot demonstrate Mitchell’s alleged harassment was not based on Plaintiff’s gender for purposes of the third element of the cause of action.  As such, the burden does not shift to Plaintiff to submit evidence creating a triable issue of fact on this issue. 

    

2. Whether Plaintiff can Establish the Alleged Harassment is Actionable

    

   Whether the conduct complained of is sufficiently pervasive must be determined “from the totality of the circumstances.”  (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at 609.) “The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.]” (Id. at 609-610.)

    

   “The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome… acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the… harassing conduct occurred. [Citation.]” (Id. at 610.)

    

   “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]” (Id.) 

    

   “Whether the harassment is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment ‘must be assessed from the “perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.”’ [Citation.] In addition, determining whether an environment is hostile requires looking at the totality of the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ [Citation.]” (Daniel v. Wayans (2017) 8 Cal.App.5th 367, 389-390.)

    

   Gov. Code §12923(b) provides as follows, “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”

    

   Gov. Code §12923(e) provides as follows, “Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues ‘not determinable on paper.’”

    

   Defendants did not meet their burden of demonstrating that Plaintiff cannot establish the alleged harassing conduct was sufficiently severe or pervasive so as to unreasonably interfere with his work performance or created an intimidating, hostile, or offensive working environment for him. 

    

   Defendants do not submit evidence disputing the sexually charged statements Mitchell made to and about Plaintiff. Defendants also submit no evidence disputing that Mitchell allegedly escalated this harassment by complaining about Plaintiff to the City which caused multiple investigations to be commenced against Plaintiff.  Defendant’s assertion the alleged harassment is not actionable is not based on all forms of alleged harassment; rather it is based on a contention that the sexual comments alone are not sufficient to establish sexual harassment because such comments do not carry with them disparate treatment on the basis of sex.  (Motion, pgs. 16-17.)  However, this argument fails to take into account that Plaintiff’s cause of action is not solely based on Mitchell’s sexually-charged comments. Rather, those comments inform the gender-based nature of Mitchell’s actions against Plaintiff, and together with her raising multiple complaints against him and threatening him, Plaintiff contends he was harassed by Mitchell and further harassed in the City’s failure to properly address this harassment.

    

   Defendants assert Plaintiff’s complaints against Defendants with respect to the fact the City subjected Plaintiff to investigations of Mitchell’s complaints and/or certain personnel actions are not actionable harassment.  (Motion, pg. 17, citing Janken v. GM Hughes Elec. (1996) 46 Cal.App.4th 55, 62 [“[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.”].)  However, whether the City’s own investigations of Mitchell’s complaints do not qualify as actionable harassment fails to acknowledge the whether the conduct of Mitchell herself, in repeatedly bringing allegedly baseless accusations against Plaintiff, which necessitated subsequent investigations, amounted to harassment. 

    

   The Court notes to the extent Defendants rely on facts and evidence asserted in SSFs Nos. 76, 77, 78, 78, 81, 82, and 83, which are equivalent to SSFs Nos. 1, 2, 3, 4, 5, 18, 21, and 76 and are summarized and discussed above, Defendants do not address how this evidence demonstrates the alleged harassment is not actionable. 

    

   The Court finds Defendants did not meet their burden of demonstrating that Plaintiff cannot establish the underlying conduct qualifies as actionable harassment.  As such, the burden does not shift to Plaintiff to submit evidence creating a triable issue material of fact. 

    

   Based on the foregoing, Defendants’ motion for summary adjudication of Issue No. 5 with respect to the 1^st cause of action is denied.  Defendants’ motion for summary adjudication of the 1^st cause of action is denied. As such, Defendants’ motion for summary judgment is denied.

    

   Harassment in Violation of the FEHA – Race/Color (2^nd COA) [Issue No. 5.]

    

   Plaintiff’s cause of action for harassment on the basis of race/color is based on the following allegations: (1) the Stentorians’ agenda is to advocate for the recruitment and promotion of African Americans in the Los Angeles Fire Departments and they have extensive political influence with the City and LAFD; (2) on information and belief, Mitchell was and/or is a Stentorian member; (3) on information and belief, LAFD command staff members involved in harassing Plaintiff because of his race (white) are black and Stentorian members or associated therewith including Cooper (retired), Hardaway, Roy Harvey, Percy Jones, Antoine McKnight, Richard Rideout, David Spense, Kenneth Knighten, Dale LaCense, Lynch, Selmon Lloyd, Roy Paige, Keith Stewart (deceased), Darnell Wade, and others; (4) on December 20, 2017, Jones (a Stentorian) warned Plaintiff that Brown (a Stentorian) had told Jones to warn Plaintiff that Brown had witnessed Mitchell telling other Stentorians that Plaintiff was racist and had created a hostile work environment for her and Brown had been advised that LAFD Stentorians were “coming after Plaintiff” because of his race (white); (5) Plaintiff reported Mitchell’s harassment and threats; (6) on March 28, 2018, Lesinski advised Plaintiff that Cooper had ordered Lesinski to not report the harassment and threats that had been perpetrated upon Plaintiff and take no other action with respect to the complaints indicating Cooper was like Mitchell’s “uncle” at the department; (7) Guzman told Plaintiff Harvey had warned him that if Guzman wanted to be promoted to captain he needed to be on the “right side” of the investigations regarding Mitchell and Plaintiff; (8) because of his race, Plaintiff was falsely accused by Mitchell, the City, and the LAFD of being racist and subjected to false complaints; (9) Mitchell and others harassed Plaintiff by falsely reporting that he was harassing and/or discriminating against Mitchell; and (10) Spence ordered LAFD Personnel to use an LAFD fire truck to testify as a witness in Mitchell’s defense in Plaintiff’s TRO action against her.  (SAC ¶¶40-43, 45-47, 49.)

    

   Plaintiff also alleges the City harassed Plaintiff by how it conducted the investigations into complaints against Plaintiff, allegations that are summarized above and repeated in this cause of action.  (Compare SAC ¶19 and ¶48.)  Plaintiff also alleges the City harassed him by various personnel decisions summarized above and repeated in this cause of action. (Compare SAC ¶22 and ¶52.)

    

   As with the 1^st cause of action, Defendants move for summary adjudication of the 2^nd cause of action on the grounds Plaintiff cannot establish the alleged harassment was motivated by his race and/or constituted actionable harassment [Issue No. 5].  Defendants’ motion groups the two causes of action together. (Motion, pgs. 16-17.) 

    

1. Whether Plaintiff can Establish the Harassment was Motivated by his Race/Color

    

   Defendants argue Plaintiff cannot establish the alleged harassment was based on Plaintiff’s race. Specifically, Defendants argue that Plaintiff’s claim that Mitchell’s conduct was motivated by race is based only on the following: (1) she talked about Plaintiff to the Stentorians, an African American club, (2) she stated Plaintiff was racist and sexist, (3) she described a vacation as not a “white church lady cruise,” and (4) she mentioned she used to date a white ranger. (D-COE, Exh. 2, Plaintiff Depo 72:13-73:10.)  Defendants appear to argue this is not sufficient evidence to establish Mitchell’s actions against Plaintiff were based on Plaintiff’s race (white). (Motion, pg. 16.)  However, Defendants fail to support this argument, especially considering the cited evidence indicates Mitchell referred to and contemplated individuals’ races in her communications with Plaintiff, who is white.  Notably, Plaintiff testified that Mitchell would refer to race quite a bit. In addition, Defendants do not submit evidence refuting Plaintiff’s allegations that Mitchell, who is black, discussed her frustrations with Plaintiff to black Stentorian members who may have been able to exert influence at the fire station. 

    

   To the extent Defendants rely on facts and evidence asserted in SSFs Nos. 76, 77, 78, 78, 81, 82, and 83, which are equivalent to SSFs Nos. 1, 2, 3, 4, 5, 18, 21, and 76 and are summarized and discussed above, they do not address how this evidence demonstrates the alleged harassment was not based on race. 

    

   Defendants do not meet their burden of establishing that Plaintiff cannot demonstrate Mitchell’s alleged harassment was not based on Plaintiff’s gender for purposes of the third element of the cause of action.  As such, the burden does not shift to Plaintiff to submit evidence creating a triable issue of fact on this issue. 

    

2. Whether Plaintiff can Establish the Alleged Harassment is Actionable

    

   For the same reasons as discussed above, the Court finds Defendants did not meet their burden of demonstrating that Plaintiff cannot establish the underlying conduct qualifies as actionable harassment.  As such, the burden does not shift to Plaintiff to submit evidence creating a triable issue material of fact. 

    

   Based on the foregoing, Defendants’ motion for summary adjudication of Issue No. 5 with respect to the 2^nd cause of action is denied.  Defendants’ motion for summary adjudication of the 2^nd cause of action is denied.

    

   Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of the FEHA (7^th COA) [Issue No. 7]

    

   A cause of action for failure to prevent discrimination, harassment, and/or retaliation requires the following elements: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to harassment/discrimination/retaliation in the course of employment; (3) defendant failed to take all reasonable steps to prevent the harassment/discrimination/retaliation; (4) plaintiff was harmed; and (5) defendant’s failure to take all reasonable steps to prevent harassment/discrimination/retaliation was a substantial factor in causing plaintiff’s harm. (CACI 2527.)

    

   Defendants move for summary adjudication on the 7^th cause of action on the grounds Plaintiff cannot establish the underlying causes of action [Issue No. 7].

    

   Plaintiff’s failure to prevent claim is derivative of his harassment, discrimination, and retaliation causes of action.  Based on the rulings as to the harassment causes of action, as discussed above, Defendants did not meet their burden, as such, a triable issue of fact exists as to Plaintiff’s failure to prevent harassment cause of action. Accordingly, Defendants’ motion for summary adjudication of the 7^th cause of action and Issue No. 7 is denied.

    

   Violation of the Firefighters Procedural Bill of Rights (Gov. Code §3250 et seq.) (8^th COA) [Issue No. 6]

    

   The FFBOR became effective on January 1, 2008. (Stats. 2007, ch. 591, § 2.)  The Legislative Counsel’s Digest described the legislation as follows: “‘This bill would enact the [FFBOR] to prescribe various rights of firefighters, defined as any firefighter employed by a public agency, including a firefighter who is a paramedic or emergency medical technician, with specified exceptions. The bill would prescribe rights related to, among others, political activity, interrogation, punitive action, and administrative appeals, with specified requirements imposed upon the employing agency and the imposition of a civil penalty for a violation thereof.’” (International Assn. of Firefighters Local Union 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1187–1188.)

    

   The FFBOR gives aggrieved firefighters a private right of action in superior court. (Gov. Code §3260(b).) The court may render injunctive relief to remedy a FFBOR violation. (Gov. Code §3260(c).) “In addition... upon a finding by a superior court that a fire department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the firefighter, the fire department shall, for each and every violation, be liable for a civil penalty not to exceed twenty–five thousand dollars ($25,000) to be awarded to the firefighter whose right or protection was denied and for reasonable attorney's fees as may be determined by the court.” (Gov. Code §3260(d).)

    

             Plaintiff alleges the City violated the FFBOR by improperly subjecting him to investigations and offensive language, failing to provide Plaintiff with certain rights afforded under the FFBOR, and otherwise engaging in conduct prohibited by the FFBOR.  (See SAC ¶¶177(a)-(r); Gov. Code §§3253(c), (e), (g), (h), (i), (j), (a), 3254(d), 3255, 3256, 3256.5.)  The SAC sets forth the alleged violations of Gov. Code §3253 by citing the language from each of the subsections; however, while certain subsections do not include specific allegations as to the violations, Plaintiff has sufficiently alleged the conduct underlying multiple violations.  Specifically, Plaintiff alleged the City compelled an investigation of him regarding a false claim that he had harassed a fellow firefighter who the City also alleged to be a witness to Plaintiff’s alleged racist or sexist conduct toward Mitchell. (SAC ¶¶91-92; 177(a).)  Plaintiff alleged the investigator denied Plaintiff’s demand for a Lybarger Admonition in violation of Gov. Code §3253(e) and the investigator denied Plaintiff’s demand for a specification of the charges against him in violation of Gov. Code §3253(c).  (SAC ¶92.)  Plaintiff alleged he made repeated demands for the adverse comments made against him by City personnel and repeated demands to inspect and/or make copies of his personnel filed.  (SAC ¶177(n), (o), (p), (q).)  Plaintiff alleged that during an interrogation relating to Baird in October 2018, Plaintiff was not informed of the nature of the investigation, and he was not provided a formal grant of immunity from criminal prosecution before being compelled to respond to incriminating questions relating to the vandalization of Baird’s vehicle.

    

             Defendants assert Plaintiffs’ cause of action is accordingly based on the following: (1) the 2018 WVPA threat assessment did not comply with the FFBOR; (2) Plaintiff was not properly notified he was the subject of internal investigations; and (3) Plaintiff was denied a Lybarger warning at the 2018 interview for the Nonparty PSD Complaint. (Motion, pgs. 17-18, citing D-COE, Exh. 2, Plaintiff Depo 148:24-149:12 [testimony that at the interrogation, the complaint had changed from Plaintiff having done something racist and sexist on a certain date in February as opposed to having done racist/sexist conduct for a longer time period, from February to September], 212:16-213:1 [testimony that Ryan Baird initiated a PSD complaint against Plaintiff which Plaintiff believes was unwarranted and that Mitchell’s PSD complaint against Plaintiff was unwarranted], 234:14-235.)

    

             Defendants move for summary adjudication of the 8^th cause of action on the grounds Plaintiff cannot establish the City violated provisions of the FFBOR with respect to investigations and/or interrogations involving Plaintiff [Issue No. 6].

    

   Defendants submitted evidence the FFBOR does not apply to the WVPA threat assessment because the threat assessment was not an investigation that could lead to punitive action and the FFBOR only applies to interrogations that could subject a firefighter to punitive action.  (Motion, pg. 18, citing USSF No. 29 [the WVPA is not a disciplinary proceeding, and it is independent of disciplinary proceedings brought through regular channels within personnel and/or the LAFD].) 

    

   As to Plaintiff’s allegation that he was not properly notified that the was the subject of Mitchell’s PSD complaint, Defendants submitted evidence suggesting Plaintiff cannot establish this is the case because Plaintiff was notified in March 2018, approximately nine months before his interview, that he was the subject of the complaint and that Mitchell alleged that “in or around February 2018 [Plaintiff] spread malicious gossip and rumors.”  (Motion, pg. 18; [D-SSF No. 19 (Plaintiff was given notice on or around 3/16/18 that he was the subject of complaint No. 2018000068)] D-COE, Exh. 13 at 226-2 [copy of complaint], Exh. 8, Decl. of Gutierrez ¶9; Exh. 2: Plaintiff Depo at 144:25-145:21 [Plaintiff’s testimony that he recalls the complaints the 3/16/18 letter is referencing]; Exh. 14 [3/16/18 correspondence to Plaintiff notifying him that he was the subject of a complaint regarding spreading racially and gender motivated gossip about a firefighter in which the notice does not name Mitchell].)  Defendants assert the FFBOR requires that a “firefighter under investigation shall be informed of the nature of the investigation prior to any interrogation” and that this is interpreted as being reasonably prior to an interrogation so as to give an officer sufficient time to confer with a representative he or she may elect to have present.  (Motion, pg. 18, citing Gov. Code § 3253(c).)  In addition to this advanced notice, Defendants submitted evidence that on December 4, 2018, Plaintiff was given further notice when he was provided with a form stating, “[i]t is alleged that from September 17, 2017 to February 23, 2018, you spread rumors, made inappropriate comments and slandered FF Mitchell” and provided Plaintiff with another opportunity to consult with counsel who accompanied him at the interview.  (Motion, pgs. 18-19; D-COE, Exh. 15.) 

    

   As to Plaintiff’s allegation that he should have received a Lybarger warning at the interview for the 2018 Nonparty PSD Complaint (i.e., Baird’s complaint about his vehicle) because he might have been charged with a crime for getting water spots on the complainants vehicle, Defendants submitted evidence the Lybarger warning did not apply, as explained by the PSD investigator during the interview.  (Motion, pg. 19, citing Exh. 12: PSD Transcript 6:4-14 [“[the Lybarger warning] is actually referenced in our criminal admonition form. So, if we know that the case assigned to us have a criminal component to it, that is the appropriate admonition form to use. In this instance, we don’t know if any criminal components… So for that purpose, the Lybarger [warning] is not… going to be given to you.  Should anything in the course of this investigation result in that even a criminal factor coming into play, then what we would do is make that known, modify it accordingly, then opt to continue the interview, or reschedule, so that consultation can happen on that. But at this point, for this case, we don’t know any criminal component to it.”].)  In addition, Defendants submitted undisputed evidence that the LAPD has not brought criminal charges against Plaintiff for any of the conduct alleged in Case No. 201800061 [the Nonparty PSD Complaint].  (USSF No. 17.) 

    

   As to Plaintiff’s remaining assertions the interrogations violated the FFBOR, Defendants submitted the following evidence: (1) Plaintiff was timely notified of the PSD complaints against him [D-COE, Exhs. 9, 13]; (2) Plaintiff was joined by a representative and permitted to record his 2018 WVPA interview and PSD interviews [D-COE, Exh. 2, Plaintiff Depo 104:5-9, 132:25-133:21, 2219:11-19, 28:7-11; Exh. 8: Decl. of Gutierrez ¶12; Exhs. 10, 15]; (3) Plaintiff testified he was unaware of any adverse comments entered into his personnel file and has not requested to see or have anything removed from his file [D-COE, Exh. 2: Plaintiff Depo 239:10-14, 240:4-22]; and (4) Plaintiff has not identified “offensive language” to which he was subjected in interrogations, instead referring at his deposition to the routine admonitions at PSD interviews or a fire station meeting in which his supervisor asked “how everything is making me feel.”  [D-COE, Exh. 2, Plaintiff Depo 222:7-233:10, 233:21-234:8; Decl. of Gutierrez ¶5.]

    

Based on the foregoing, Defendants met their burden on summary adjudication. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact.  As discussed below, Plaintiff did not meet his burden.

Plaintiff failed to submit evidence creating a triable issue of fact as to whether the City violated the FFBOR in its interrogations of Plaintiff. Namely, in opposition, Plaintiff makes the conclusory argument that his FFBOR cause of action is properly pled and repeats his allegations without addressing the evidence submitted by Defendants.  (Opposition, pg. 24.)  It appears Plaintiff contends the notice the City did provide Plaintiff as to the investigation was not sufficient, but this is unsupported. In addition, Plaintiff’s argues the City failed to provide him with a Lybarger admonition without addressing Defendants’ undisputed evidence that no criminal charges in relation to that complaint were ever filed, and as such, a Lybarger admonition was not necessary.  There is no evidence Plaintiff was at risk of being charged with a criminal offense.

Based on the foregoing, Defendants’ motion for summary adjudication of Issue No. 6 and the 8^th cause of action is granted.

Conclusion

Based on the foregoing, Defendants’ motion for summary judgment is denied.  Defendants’ motion for summary adjudication is denied as to 1^st, 2^nd, and 7^th causes of action and as to Issues Nos. 1, 3, 5, and 7.  Defendants’ motion for summary adjudication is granted as to the 4^th, 5^th, 6^th, and 8^th causes of action and as to Issues Nos. 2, 4 (with respect to the 5^th cause of action), and 6.  The Court does not reach issue No. 4 (with respect to the 4^th cause of action).

Dated:  August ___, 2022                                                                               

                                                                                Hon. Monica Bachner

Judge of the Superior Court