Judge: Monica Bachner, Case: 19STCV31305, Date: 2022-08-18 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: 19STCV31305 Hearing Date: August 18, 2022 Dept: 71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
|
JENNIFER HUA, an individual,
vs.
WESTERN ASSET MANAGEMENT COMPANY, LLC, a California limited liability company, et al. |
Case No.: 19STCV31305
Hearing Date: August 18, 2022 |
Defendant’s unopposed motions to seal documents it filed in support of its motion for summary judgment and reply as well as documents Plaintiff filed in opposition to the motion are granted. The following documents are to be filed under seal: (1) Defendant’s Exhibits 1, 10, 11, 12, 55, 62, 68, and 114; (2) Defendant’s Exhibits 9, 44, 77, 82, 83, 87, 123, E, and F and Plaintiff’s Exhibits 8, 11, 16, 18, 25 to the Declaration of Freeze and Exhibit 7 to the Declaration of Plaintiff; (3) Defendant’s Exhibits 88, 125, 126, and 131; (4) Defendant’s Exhibits 84, 85, 95, 105, 137, C, and E and Plaintiff’s Exhibit 10 to the Declaration of Freeze; (5) Defendant’s Exhibits 66, 80, 106, 108, 113, and 124; (6) Plaintiff’s Exhibits 1, 8, 12, 13, 22, 23, and 25 to the Declaration of Freeze; (7) unredacted versions of the Motion, SSF, R-SSF, Reply-SSF, Plaintiff’s Evidentiary Objections, and Reply-Evidentiary Objections; and (8) Defendant’s Exhibits 38, 45, B, G, H, and J.
Plaintiff is ordered to lodge hard copies of Exhibits 1, 11, 13, 22, and 23 to the Declaration of Freeze and Exhibit 7 to the Declaration of Plaintiff, which are subject to Defendant’s sealing request but have not been lodged with the Court, so the Clerk may place them under seal via the proper procedures.
Absent any objection by
Defendant, the Clerk is instructed to return the conditionally lodged versions
of Exhibits 13, 24, 42, 46, 47, 58, 63, 90, 96, 97, 100, 104, I, and K, which
are not subject to the sealing request and not relied on in the Court’s ruling
on the motion, to Defendant, and Defendant shall be entitled to either file
unredacted versions of these exhibits or file no versions of these exhibits
with the Court.
Defendant’s motion for summary judgment is granted. In the alternative and for appeal purposes only, Defendant’s motion for summary adjudication is granted as to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th causes of action and as to the prayer for punitive damages.
Defendant Western Asset Management Company, LLC (“Defendant”) moves for summary judgment on the first amended complaint (“FAC”) filed by Plaintiff Jennifer Hua (“Plaintiff”). In the alternative, Defendant moves for summary adjudication of the 1st (violation of Equal Pay Act, Labor Code §1197.5), 2nd (retaliation in violation of Equal Pay Act), 3rd (sex discrimination – FEHA), 4th (race and/or ancestry discrimination – FEHA), 5th (retaliation in violation of the FEHA), 6th (whistleblower retaliation – Labor Code §1102.5), 7th (retaliation – Labor Code §98.6), 8th (failure to prevent discrimination and/or retaliation – FEHA), 9th (failure to pay earned wages – Labor Code §204), 10th (unlawful prohibition on discussing wages), 11th (wrongful termination in violation of public policy), and 12th (violation of Business & Professions Code §17200) causes of action [Issues Nos. 1-12] and as to the prayer for punitive damages [Issue No. 13].
Together with the instant motion, Defendant filed a Notice of Lodging Documents Conditionally Under Seal indicating that redacted portions of Defendant’s Memorandum of Points and Authorities (“Motion”) and Separate Statement of Material Facts (“Separate Statement” or “SSF”), and certain exhibits from Defendant’s Compendium of Evidence (“M-COE”) were lodged conditionally under seal. Together with its motion for summary judgment (“MSJ”), Defendant filed a Motion to Conditionally File Confidential Documents Under Seal (“Motion to Seal Moving Papers”) with respect to the documents it lodged conditionally under seal. The hearing for the Motion to Seal was initially set for September 21, 2022; however, the Court advanced the hearing to June 7, 2022, the same date as the MSJ hearing. The Court thereafter continued the Motion to Seal and MSJ to August 18, 2022.
On May 24, 2022, Plaintiff filed her Opposition to the MSJ together with supporting documents including Evidentiary Objections, Response Separate Statement (“R-SSF”), and a three-part Compendium of Evidence (“O-COE”) comprised of Declarations from Tamara Freeze (“Freeze”) [Exh. A], Plaintiff [Exh. B], and Jason Dizon (“Dizon”) [Exh. C].
On May 31, 2022, Defendant applied ex parte to seal pleadings and exhibits Plaintiff filed in opposition (“Motion to Seal Opposition”). On May 31, 2022, Plaintiff filed an opposition to the ex parte application. On June 1, 2022, the Court ordered Plaintiff’s Opposition, Objections, Response Separate Statement, and Compendium of Evidence conditionally sealed. The Court ordered that agreed-upon non-sealed documents were to be filed by June 3, 2022. While not reflected in the minute order setting forth the Court’s ruling on the ex parte application, the Court considers Defendant’s ex parte application its moving papers for its Motion to Seal Opposition.
On June 2, 2022, Defendant filed its Reply to Plaintiff’s Opposition to the MSJ together with supporting documents including Evidentiary Objections, a Reply Separate Statement (“Reply-SSF”) (Redacted), Responses to Plaintiff’s Evidentiary Objections (Redacted), and a Supplemental Declaration of Beilke together with a Notice of Lodging Documents conditionally under seal as to the Reply-SSF and Responses to Evidentiary Objections. The Notice of Lodging indicates the reply documents contain the same confidential information as the documents filed in support of the MSJ and are therefore subject to Defendant’s Motion to Seal Moving Papers for the same reasons as set forth therein.
On June 3, 2022, Plaintiff filed redacted versions of the following documents in support of her opposition: (1) Evidentiary Objections, (2) R-SSF, (3) Compendium of Evidence Exhibit A: Decl. of Freeze, and (4) Compendium of Evidence Exhibit B: Decl. of Hua. Plaintiff has not filed a redacted version of her opposition and/or Compendium of Evidence Exhibit C: Decl. of Dizon. However, the Court notes the opposition and the Declaration of Dizon are no longer included as documents Defendant moves to have sealed, based on the recently filed declaration setting forth all documents subject to the sealing request, summarized below.
On June 14, 2022, the Court continued the hearing on the motions to seal to July 8, 2022, and thereafter to August 18, 2022, and ordered Defendant to file further documents in support of the motions. Specifically, the Court ordered Defendant to file a supplemental declaration identifying the materials Defendant seeks to have sealed (and identify whether sealing would be as to portions thereof and in their entirety) and setting forth facts justifying the sealing of the documents. The Court also requested Defendant file a separate set of filings redlining/highlighting material Defendant seeks to have sealed. The Court also allowed for the filing of a supplemental opposition and reply thereto. The Court continued the hearing on the MSJ to August 18, 2022.
On June 21, 2022, Defendant filed a Supplemental Declaration of Beilke and a Notice of Lodging Documents Conditionally Under Seal which set forth the 17 filings that Defendant was seeking to seal in part based on the redactions therein. As of the date of the hearing, Plaintiff did not file an opposition. As such, the Court considers both motions to seal unopposed.
Motions to Seal
Defendant moves to seal documents in support of its MSJ and Reply that it filed and lodged conditionally under seal. Defendant also separately applied ex parte to seal documents Plaintiff filed in support of her opposition. The Supplemental Declaration of Beilke filed on June 21, 2022 provides a summary of all of the documents Defendant moves to seal pursuant to these two motions. Based on this Declaration, Defendant moves to seal portions of the following documents filed in connection with the initial motion: (1) the Motion (redacted portions); (2) the Separate Statement (redacted portions); as well as the following exhibits attached to the MSJ Compendium of Evidence (“M-COE”): (3) Exh. 1 [excerpts from Hua’s 2/12/20 deposition at 217:17-225:13], (4) Exh. 77 [excerpts from Hua’s 2/18/20 deposition at 317:15-324:10], (5) Exh. C [Decl. of Sibbrel ¶¶5-9, 19-29], (6) Exh. E [Decl. of Quan ¶¶9-11, 13-16, 18, 20-31], and (7) Exh. F [Decl. of Shillington ¶¶3-10, 12-18].
Defendant also moves to seal portions of the following documents Plaintiff filed in connection with her opposition: (8) the Opposition Separate Statement (redacted portions); (9) Evidentiary Objections (redacted portions); as well as the following exhibits attached to Opposition Compendium of Evidence (“O-COE”) Exhibit A, the Declaration of Freeze: (10) Exh. 2: Hua 2/12/20 Depo at 212:2-225:11; (11) Exh. 8: Quan Depo Exhs. 60-62; (12) Exh. 10: Sibbrel Depo, Exhs. 39, 40, 43, 44, (13) Exh. 12: Colony Depo, Exhs. 8, 21; (14) Exh. 16: Heffernan Depo, Exhs. 28, 30; (15) Exh. 25: Kumar Depo, Exhs. 30, 65. Defendant also moves to seal portions of the following documents it filed in connection with its reply: (16) Reply Separate Statement (redacted portions); and (17) Reply to Plaintiff’s evidentiary objections (redacted portion).
In addition, Defendant moves to seal the following exhibits to its M-COE in their entirety: (18) Exh. 9 [Plaintiff’s Career Framework self-assessment responses], (19) Exh. 10 [“Next Gen IT Career Framework” attachment to 7/31/19 email], (20) Exh. 11 [7/31/19 email titled “Career slotting documents for Shirin”], (21) Exh. 12 [“Job Family: Infrastructure Engineer” attachment to 7/31/19 email], (22) Exh. 44 [“Responsibilities Agreements” for Database Engineer positions], (23) Exh. 55 [7/31/19 email titled “Career slotting documents for Shirin” with attachments], (24) Exh. 62 [7/31/19 email titled “Career slotting documents for Shirin” with attachments], (25) Exh. 66 [Defendant’s 2019 Compliance Manual], (26) Exh. 68 [7/31/19 email titled “Career slotting documents for Shirin” with attachments], (27) Exh. 80 [Defendant’s 2019 Compliance Manual], (28) Exh. 82 [Database Administrator (Career Path levelling criteria)], (29) Exh. 83 [System Administrator (UNIX) (Career Path levelling criteria)], (30) Exh. 84 [Performance Management], (31) Exh. 85 [Compensation Picture brochure], (32) Exh. 87 [7/5/18 email], (33) Exh. 88 [3/13/19 email], (34) Exh. 95 [7/18/19 email thread], (35) Exh. 105 [8/2/19 email thread], (36) Exh. 106 [Employment complaint meeting with Plaintiff 9/12/19], (37) Exh. 108 [Employee complaint meeting notes], (38) Exh. 113 [findings from allegation that Defendant’s HR employee made retaliatory comment], (39) Exh. 114 [DIR response to Defendant’s Feb 2020 records request], (40) Exh. 123 [Career Path criteria], (41) Exh. 124 [11/16/19 HR investigation summary], (42) Exh. 125 [Plaintiff’s 5/6/19 email], (43) Exh. 126 [Plaintiff’s 6/11/19 email], and (44) Exh. 131 [Plaintiff’s 1/24/19 email], (45) Exh. 137 (Cohort descriptions and criteria).
Defendant also moves to seal the following opposition exhibits attached to Exhibit A, the Declaration of Freeze, included in the O-COE in their entirety: (46) Exh. 1 [employee pay data]; (47) Exh. 11 [Shillington Depo]; (48) Exh. 13 [third party performance reviews]; (49) Exh. 22 [Moseyeve job application]; and (50) Exh. 23 [Chen job application]; as well as the following Exhibit attached to Exhibit B, the Declaration of Plaintiff: (51) Exh. 7 [Plaintiff JIRA tickets].
Based on the foregoing, Defendant moves to seal 51 filings either in part or in their entirety, comprised of both filings Defendant filed in moving and reply as well as filings Plaintiff filed in opposition. This ruling refers to these documents based on their exhibit number within the filings, as above. In its supplemental declaration, Defendant groups these documents into seven groups based on the content of the documents at issue and the overlapping sealing issues for each group. Specifically, the Declaration groups the documents into the following seven groups: (1) July 31, 2019 Email and Attachments [M-COE, Exhs. 1, 10, 11, 12, 55, 62, 68, 114; O-COE, Decl. of Freeze, Exh. 1] [Supp-Decl. of Beilke ¶¶6-14]; (2) Other NextGen IT Career Framework Documents & Documents Relating to Defendant’s IT Structure [M-COE, Exhs. 9, 44, 77, 82, 83, 87, 123, E, and F; O-COE, Decl. of Freeze, Exhs. 9, 16, 18, 25; Decl. of Plaintiff, Exh. 7] [Supp-Decl. of Beilke ¶¶15-16]; (3) Documents Defendant Asserts the Court has Found Confidential [M-COE Exhs. 88, 125, 126, and 131] (Supp-Decl. of Beilke ¶¶17-19); (4) Documents Related to Defendant’s Compensation Process [M-COE, Exhs. C, 84, 85, 95, 105, 137, and E; O-COE, Decl. of Freeze, Exh. 10]; (5) HR Investigation Documents [M-COE, Exhs. 66, 80, 106, 108, 113, 124] (Supp-Decl. of Beilke ¶¶22-25); (6) Third Parties’ Private Information [O-COE, Exhs. 1, 9, 12, 13, 22, 23, and 25 (actually Exh. 8)] (Supp-Decl. of Beilke ¶26); (7) Redacted Pleadings (Motion, SSF, R-SSF, Reply-SSF, Evidentiary Objections, and Reply-Evidentiary Objections).
Issues With Sealing Requests and Lodged Documents
As a preliminary matter, a comparison of the documents Defendant moves to seal with documents that have been lodged with the Court conditionally under seal reveals inconsistencies with the sealing request and/or the lodged documents. First, Defendant lodged more documents with the Court than are subject to the sealing request. As such, it appears Defendant now moves to seal fewer documents than it initially moved to seal. Namely, Defendant lodged certain exhibits conditionally under seal that are not included in the most recently filed supplemental declaration of Beilke, and as such, appear to not be part of the sealing request. Specifically, M-COE Exhibits 13, 24, 38, 42, 45, 46, 47, 58, 63, 90, 96, 97, 100, 104, B, G, H, I, J, and K are not included in Defendant’s most recent comprehensive sealing request. These amount to 20 additional files, in addition to the 51 files already lodged with the Court, and summarized above, that Defendant has lodged with the Court. However, Defendant’s failure to include these exhibits in its sealing request may have been in error, especially since Defendant relies on redacted portions of Exhibits 38, 45, B, G, H, and J in the motion and Separate Statement. (See e.g., SSF No. 1.) Accordingly, the Court considers the Exhibits not addressed in the supplemental declaration but relied on in Defendant’s motion as part of Defendant’s sealing request, and the Court considers them separately as Group No. 8. The Court notes Defendant also relies on Exhibit 13 (Vol. II of Plaintiff’s deposition) and Exhibit 58 (Twitchell’s deposition), however, Defendant does not rely on redacted portions of these exhibits.
Second, with respect to the Exhibits to Plaintiff’s Opposition that Defendant seeks to have sealed, the Supplemental Declaration of Beilke does not include a discussion of Exhibit 8 [Quan Deposition Exhibits] which is referred to in the Notice, as this exhibit is not referred to or included in the seven groups noted above. However, it appears Exhibit 8 is incorrectly referred to as Exhibit 9 in the body of the declaration, which is included in both Groups 2 and 6, and the Court will rule on the sealing request as to the intended Exhibit 8. In addition, while the header of Group 1 does not list O-COE, Decl. of Freeze, Exhibit 2 as a document within that group, the declaration discusses this excerpt of Plaintiff’s deposition as subject to sealing given its inclusion of a discussion of the July 2019 email. (Supp-Decl. of Beilke ¶14.) The Court notes O-COE, Decl. of Freeze, Exhibit 11 [Shillington Depo] is not included in any of the group headers but is also discussed in Group 2. (Supp-Decl. of Beilke ¶16(g).) Finally, Defendant has apparently omitted O-COE, Decl. of Freeze, Exhibit 13 (Group 6) and O-COE, Decl. of Freeze, Exhibit 18 [Depo Exh. 30] (Group 2) from the opening summary of documents subject to the sealing request; however, given the body of the Declaration includes references to these exhibits, the Court considers them part of the sealing request. (Supp-Decl. of Beilke ¶¶16(i), 26(d).)
Third, with respect to documents filed by Plaintiff that Defendant moves to have sealed, the Court is not in possession of lodged copies of all these documents. Defendant moves to seal Exhibits 1, 2, 8, 10, 11, 12, 13, 16, 18, 22, 23, and 25 to the Declaration of Freeze and Exhibit 7 to the Declaration of Plaintiff; however, the Court is only in possession of conditionally lodged versions of Exhibits 2, 8, 10, 12, 16, and 25 and is not in possession of the remaining Exhibits 1, 11, 13, 22, and 23 to the Declaration of Freeze, nor Exhibit 7 to the Declaration of Plaintiff. In light of Plaintiff’s filing its unredacted opposition and supporting exhibits in an electronically sealed/locked manner, the Court can review the documents not physically lodged under seal notwithstanding the fact hard copies have not been lodged. However, the Court requests Plaintiff lodge hard copies of the exhibits not lodged so the Clerk may place them under seal via the proper procedures.
Based on the volume of the documents at issue, the Court, in its discretion, will address the request to seal as to filings that are material to its ruling on the motion for summary judgment/adjudication below. The Court clerk shall turn over documents lodged conditionally under seal that the Court deems to be deemed immaterial to that ruling.
Documents Not Subject to Sealing Requests
As noted above, not all documents lodged with the Court are included in the sealing request. However, given Defendant’s reliance on M-COE Exhibits 38, 45, B, G, H, and J the Court considers these Exhibits part of the sealing request as Group 8. However, Defendant does not rely on M-COE, Exhibits 13, 24, 42, 46, 47, 58, 63, 90, 96, 97, 100, 104, I, and K. The Clerk is instructed to return the conditionally lodged versions of these exhibits to Defendant, and Defendant shall be entitled to either file unredacted versions of these exhibits or file no versions of these exhibits with the Court.
Documents Subject to Sealing Requests
CRC Rule 2.551(a) provides, as follows: “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.”
CRC Rule 2.551(b)(1) provides, as follows: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”
CRC Rule 2.550(d) provides, as follows: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”
The parties signed and filed a Stipulation and Protective Order which provides that any discovery documents designated by either party as “confidential” be filed under seal pursuant to CRC Rules 2.550 and 2.551. (Decl. of Beilke ¶6, Exh. C (Stipulation and Protective Order, ¶17).). In support of the motions, Defendant filed a second Supplemental Declaration of Michele J. Beilke (“Beilke”). CRC Rule 2.551(a) requires that a declaration filed in support of a motion to seal contain facts justifying the sealing.
July 31, 2019 Email and Attachments [Requests Nos. 3, 19, 20, 21, 23, 24, 26, 39, 46] [M-COE, Exhs. 1, 10, 11, 12, 55, 62, 68, 114; O-COE, Decl. of Freeze, Exhs. 1 and 2] [Supp-Decl. of Beilke ¶¶6-14]
As a preliminary matter, Request No. 3, which seeks to seal portions of Plaintiff’s 2/12/20 Deposition [M-COE, Exhibit 1 at 217:17-225:13] fails to acknowledge M-COE Exhibit 1 has other redacted sections that are not addressed in the motion to seal at 64:18-65:19, 93:16-21, 105:4-9, 115:13-116:2, 116:12-14, 119:23-120:3, 122:20-123:7, 124:16-23, 201:21-25, 202:7-9, 202:17-203:2, 203:18-204:13, 205:24-206:1, 206:12-19, 207:1-4, 207:18-208:4, 208:24-209:9, 210:5-9,16-19. [The Court notes 217:17-225:13 is not redacted in its entirety, but this section of testimony includes individual redactions where Plaintiff testifies as to the contents of the 7/31/19 email and its attachments.] Defendant is directed to file an unredacted version of the 2/12/20 Deposition, other than 217:17-225:13.
The Court notes while Defendant moves to seal almost the same portion of Plaintiff’s submission of her 2/12/20 Deposition transcript in Request No. 10 [O-COE, Decl. of Freeze, Exh. 2 at 212:2-225:11], the Supplemental Declaration of Beilke does not include a discussion of sealing this testimony/exhibit. Given the exhibit reflects the same testimony/deposition, the Court presumes this was in error, and Defendant seeks to seal this testimony as well for the same reason as Defendant’s transcript of the deposition.
Defendant submitted evidence that these documents contain sensitive business strategies, critical IT work product, and Defendant’s confidential training materials. (Supp-Decl. of Beilke ¶6; Exh. C ¶50.) Specifically, Twitchell asserts the Next Generation IT Career Framework packet [Exhibit 10], attached to the email, details Defendant’s effort to structure its IT Department and that the information concerning this process is confidential and the Career Slotting Guide [Exhibit 11] is likewise confidential since it contains detailed information about the IT positions. (Supp-Decl. of Beilke ¶6.) Defendant also cites to Plaintiff’s deposition testimony in which she stated the documents attached to the July 2019 email were confidential. (Supp-Decl. of Beilke ¶7.) This Court also ruled Plaintiff return the July 2019 email and its attachments to Defendant based on their confidential nature. (Supp-Decl. of Beilke ¶9.) Finally, the supplemental declaration sets forth support for sealing the other documents that are either duplicates of the July 2019 email and its attachments or amount to testimony describing the content of documents. (Supp-Decl. of Beilke ¶¶11-14.)
Defendant sufficiently demonstrated the information contained in the documents in Group 1 amounts to confidential business information, such that there exists an overriding interest that overcomes the right of the public access to the record; the overriding interest supports sealing the record, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored and no less restrictive means exist to achieve the overriding interest. Specifically, Defendant submitted evidence the attachments to the July 31, 2019 email amount to confidential materials. The proposed sealing is sufficiently narrowly tailored. In addition, maintaining this information under seal is the least restrictive means to protect Defendant’s confidential business information relating to its NextGen Framework and Career Slotting Guide.
Other than as discussed above, Defendant’s motion to seal these materials is granted.
Other NextGen IT Career Framework Documents & Documents Relating to Defendant’s IT Structure [Nos. 18, 22, 4, 28, 29, 32, 40, 6, 7, 14, 15, 51] [M-COE, Exhs. 9, 44, 77, 82, 83, 87, 123, E, and F; O-COE, Decl. of Freeze, Exhs. 9, 11, 16, 18, 25; Decl. of Plaintiff, Exh. 7] [Supp-Decl. of Beilke ¶¶15-16]
The Court notes this section of the Supplemental Declaration includes a discussion of Exhibits 9 and 18 attached to the Declaration of Freeze submitted in support of Plaintiff’s opposition and contends that these contain deposition exhibits Nos. 61 and 30, respectively; however, the “Identification of Material Defendant Seeks Sealed” list does not identify these exhibits for sealing. The Court considers them part of the sealing request given they are substantively the same exhibits at deposition exhibit 28 to Exhibit 16 [Heffernan Depo] and deposition exhibit 30 to Exhibit 25 [Kumar Depo].
Defendant submitted evidence that this group of documents also relates to Defendant’s NextGen IT Career Framework exercise which was the result of Defendant’s managers and outside consultants spending hundreds of hours developing the Career Paths and job analyses and guidelines for employee matching and that information concerning the process and the exercise itself is sensitive and confidential. (Supp-Decl. of Beilke ¶15.) Defendant identifies how each of the above-referenced exhibits involve or discuss confidential matters of the Career Framework exercise. (Supp-Decl. of Beilke ¶16(a)-(i).)
Defendant sufficiently demonstrated the information contained in the documents in Group 2 amounts to confidential business information, such that there exists an overriding interest that overcomes the right of the public access to the record; the overriding interest supports sealing the record, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored and no less restrictive means exist to achieve the overriding interest. Specifically, Defendant submitted evidence the materials in Group 2, either the exhibits themselves or deposition testimony, also involve Defendant’s NextGen Framework and how Defendant structures its IT Department. The proposed sealing is sufficiently narrowly tailored, as only portions of testimony relating to IT Department structure and/or the NextGen Framework are redacted. In addition, maintaining this information under seal is the least restrictive means to protect Defendant’s confidential business information.
Based on the foregoing, Defendant’s motion to seal these materials is granted.
Documents Defendant Asserts the Court has Found Confidential [Requests Nos. 33, 42, 43, 44] [M-COE Exhs. 88, 125, 126, and 131] (Supp-Decl. of Beilke ¶¶17-19.)
Defendant submitted evidence that Exhibits 88, 125, 126, and 131 are the same documents at issue in the 8/19/20 ruling on Defendant’s motion to return confidential documents at which time the Court found the documents were of a confidential nature because they contained sensitive business strategies, IT work product, confidential training materials, and/or private information of third parties. (Supp-Decl. of Beilke ¶¶17-18.)
Defendant sufficiently demonstrated the information contained in the documents in Group 3 amounts to confidential business information, such that an overriding interest in maintaining the information’s confidentiality overcomes the right of the public access to the record; the overriding interest supports sealing the record, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored and no less restrictive means exist to achieve the overriding interest. The Court previously found these materials to be confidential on August 19, 2020, noting Defendant’s evidence that the at-issue documents either contained sensitive business strategies, critical IT work product, confidential training materials, or private information of third parties. (Supp-Decl. of Beilke ¶18.)
Defendant’s motion to seal these materials is granted.
Documents Related to Defendant’s Compensation Process [Requests Nos. 5, 30, 31, 34, 35, 45, 6, 12] [M-COE, Exhs. C, 84, 85, 95, 105, 137, and E; O-COE, Decl. of Freeze, Exh. 10] (Supp-Decl. of Beilke ¶¶20-21)
Defendant submitted evidence that the aforementioned exhibits involve Defendant’s compensation process which is specific to Defendant, involves a team of compensation analysists and others who conduct a methodical review of each position at Defendant and include discussions of the process and philosophy in determining compensation for positions. (Supp-Decl. of Beilke ¶¶20-21(a)-(g).) Specifically, Defendant submitted evidence the redacted portions of Exhibit C [Decl. of Sibbrel] set forth Defendant’s confidential compensation process and philosophy. In addition, Beilke sets forth why Exhibits 84, 85, 95, 137, and redacted portions of Exhibit E (Decl. of Quan) involve Defendant’s compensation process, as well as Exhibit 10 to the Declaration of Freeze submitted by Plaintiff.
Defendant sufficiently demonstrated the compensation information contained in the documents in Group 4 amounts to confidential business information, such that there exists an overriding interest that overcomes the public’s right to access the record, which supports sealing the record. Defendant also demonstrated a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored, and no less restrictive means exist to achieve the overriding interest.
Defendant’s motion to seal these materials is granted.
HR Investigation Documents [Requests Nos. 25, 27, 36, 37, 38, 41] [M-COE, Exhs. 66, 80, 106, 108, 113, 124] (Supp-Decl. of Beilke ¶¶22-25)
Defendant submitted evidence that Exhibits 106, 107, and 113 are internal HR notes from meetings with Plaintiff. (Supp-Decl. of Beilke ¶¶22-23.) Defendant submitted evidence Exhibit 124 is Defendant’s internal investigation report into Plaintiff’s complaints which sets forth communications, meetings, and considerations that went into the investigations. (Supp-Decl. of Beilke ¶24.) Defendant submitted evidence Exhibits 66 and 80 are both copies of Defendant’s Compliance Manual, which is marked “FOR INTERNAL USE ONLY.” (Supp-Decl. of Beilke ¶25.) Taken together with a review of the exhibits themselves, Defendant’s evidence suggests the exhibits in Group 5 are documents that set forth Defendant’s HR investigation strategies, which are confidential.
Defendant sufficiently demonstrated the HR investigation materials contained in the documents in Group 5 amounts to confidential business information, such an overriding interest in their confidentiality overcomes the public’s right to access the record, which supports sealing the record. Defendant demonstrated a substantial probability exists that this overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored, and no less restrictive means exist to achieve the overriding interest.
Defendant’s motion to seal these materials is granted.
Third Parties’ Private Information [Requests Nos. 46, 13, 48, 49, 50, 15] [O-COE, Decl. of Freeze Exhs. 1, 9, 12, 13, 22, 23, and 25 (actually Exh. 8)] (Supp-Decl. of Beilke ¶26)
The documents contained in Group 6 are all documents filed by Plaintiff in support of her opposition. The Court notes this section of the Supplemental Declaration refers to Exhibit 9 to the Declaration of Freeze, and specifically the deposition exhibits 60 and 62 attached thereto. However, Exhibit 9 is not referenced as an exhibit Defendant seeks sealed, and instead it appears the reference to Exhibit 9 is in error and Defendant intended to refer to Exhibit 8, the Quan Deposition, specifically Exhibits 60 and 62 attached thereto, which are also referenced in Request No. 11.
Defendant submitted evidence that Exhibit 1 includes confidential pay data for third party employees including Kumar, Colony, Chen, and Moseyev. (Supp-Decl. of Beilke ¶26(a).) In addition, Exhibit 8 at deposition exhibits 60 and 62, Exhibit 12 at deposition exhibits 18 and 21, Exhibit 13, and Exhibits 22 and 23 include personal information for third party employees including their “Developmental Feedback,” job application(s), and performance related communications. (Supp-Decl. of Beilke ¶26(b),(c),(d),(e).) Finally, Exhibit 25 at deposition exhibits 30 and 65 also includes third party information, namely, Kumar’s internal reports regarding his job tasks and his application for employment. Defendant appears to contend that the fact these documents contain private information of third parties (i.e., non-parties to the instant action) renders their contents confidential and subject to sealing.
Here, the Court finds the Group 6 documents containing third party information, including job applications, performance reviews, and pay data, qualify as confidential business information. Defendant demonstrated an overriding interest in their confidentiality overcomes the public’s right to access the record (minimal), and as such, sealing the record is supported. Defendant demonstrated a substantial probability exists this overriding interest will be prejudiced if the record is not sealed, as nonparties to this action will have private pay and job data part of the public record, the proposed sealing is narrowly tailored, and no less restrictive means exist to achieve the overriding interest.
Defendant’s motion to seal these materials is granted.
Redacted Pleadings (Requests Nos. 1, 2, 8, 9, 16, and 17 [Motion, SSF, R-SSF, Reply-SSF, Evidentiary Objections, and Reply-Evidentiary Objections])
Motion [No. 1]
In the supplemental declaration, Defendant does not specifically discuss the redacted portions of the motion it seeks to have sealed, and only makes the overall statement that the redacted portions either quote directly from or directly discuss the content of the confidential information described in Paragraphs 6-26, and thus, Defendant’s request for filing the underlying documents under seal support sealing these portions of the motion. (Supp-Decl. of Beilke ¶27.)
The Court notes the redacted portions of the motion primarily describe Defendant’s corporate structure with respect to Plaintiff, the structure of the IT Department and the departments contained therein, Defendant’s method for setting compensation (salary and bonuses) based on an employee’s assigned cohort, Defendant’s work with a third-party contractor to perform a career ranking exercise, descriptions of the positions and responsibilities of the comparator employees, and comparisons of the salaries and bonuses of comparators with Plaintiff. [The Court notes Defendant redacted job description information for Chen, Colony, and Dizon but not for Kumar and Moseyev; however, in the next section discussing pay difference, Defendant only redacted the discussion as to Plaintiff, Kumar, and Moseyev, without redacting the discussion of Chen, Dizon, and Colony, notwithstanding the fact that the SSFs on which these discussions rely are redacted. (Motion, pgs. 18-19; SSFs Nos. 46, 49, 48.)] Regardless of these inconsistencies, the Court finds the redactions in the Motion generally track with the materials Defendant contends are subject to sealing, namely, materials that discuss the attachments to the July 31, 2019 email, Defendant’s compensation process, private third party information, and/or Defendant’s structure of its IT Department positions and the various roles and responsibilities of positions within that department.
Separate Statement of Facts, Response Separate Statement of Facts, & Reply Separate Statement of Facts [Nos. 2, 8, 16]
The Court notes SSFs Nos. 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 16, 21, 25, 27, 32, 34, 39, 41, 46, 48, 53, 55, 58, 59, 65, 66, 67, 68, 69, 89, and 90 in Defendant’s Separate Statement of Facts (“SSF”) are redacted in whole or in part; while the evidence cited in support of the facts asserted, is not redacted. In addition, given the SSF repeats the same 113 facts 13 additional times corresponding to the 13 noticed issues, each of these redacted facts is redacted each time it is repeated in the SSF, the numbers differ. In addition, Plaintiff’s Response Separate Statement of Facts (“R-SSF”) redacts the same facts redacted in the SSF and makes additional redactions to the following responses: R-SSFs Nos. 5, 6, 46, and 65. The R-SSF also submits Additional Material Facts (“AMF”) Nos. 1-82; however, none of these facts are redacted. Finally, the Reply Separate Statement of Facts (“Reply-SSF”), which sets forth the 113 SSFs, Plaintiff’s responses thereto, and Defendant’s reply to those responses redacts the 113 SSFs in the same manner as the initial filing; however, Defendant does not redact Plaintiff’s R-SSFs Nos. 5, 6, 46, and 65, suggesting it does not seek to seal the information contained therein. In addition, the Reply-SSF does not redact any facts set forth in Plaintiff’s AMFs Nos. 1-82 or in Defendant’s replies thereto.
The Court finds sealing of the titles of the documents attached to the July 2019 email is not necessary, especially considering Defendant refers to the names of these documents throughout the motion to seal. (See e.g., SSFs Nos. 89, 90.) To the extent the attachments themselves are confidential subject to sealing, that is based on the contents of the documents, not their names for purposes of identification. However, in the interest of efficiency, and notwithstanding the fact certain redacted SSFs contain information not subject to sealing, the Court finds sealing of all redacted portions of the SSF is warranted, especially considering certain redacted SSFs do include confidential material subject to sealing. As such, the Court in its ruling may refer to the document titles in the same manner as referred to by Defendant, notwithstanding the fact these titles are redacted in SSFs Nos. 89 and 90.
Plaintiff’s Evidentiary Objections & Defendant’s Reply to Evidentiary Objections [Nos. 9 & 17]
Defendant moves to seal quoted material from declarations submitted in support of the MSJ repeated in the following evidentiary objections submitted by Plaintiff: (1) Declaration of Colony Nos. 10, 11; (2) Declaration of Shillington Nos. 1, 2, 3, 4, 6, 7; (3) Declaration of Chen No. 1; (4) Declaration of Kumar Nos. 2, 3, 7; (5) Supplemental Declaration of Kumar Nos. 3, 4, 5, 6, 7, 8; (6) Declaration of Quan Nos. 1, 2, 3, 5, 6, 8, 9, 10, 11, 12; (7) Declaration of Sibbrel Nos. 1, 2, 3, 4, 5, 6; (8) Declaration of Twitchell Nos. 8, 9, 10. As such, Defendant moves to seal the language as set forth both in Plaintiff’s evidentiary objections and in Defendant’s response to the evidentiary objections. Defendant moves to seal this language based on its assertion that it repeats and/or refers to confidential materials that are subject to Defendant’s motion to seal, as discussed above. (Supp-Decl. of Beilke ¶27.)
Conclusion
The Court finds the redacted portions of the Group 7 documents containing the parties’ pleadings, separate statement, response separate statement, evidentiary objections, and responses thereto predominately amount to confidential business information to warrant sealing. To the extent the redactions are over-encompassing, for instance, where Defendant redacts material in one section that is referred to in a later section, or where the Court finds the material is not necessarily subject to sealing (e.g., the title of the Career Slotting document), the Court in its discretion may refer to material that is redacted in its ruling. In summarizing materials set forth in the pleadings, the Court will not refer to materials it deems to be confidential and properly subject to sealing, while the Court may refer to general information that is redacted. However, in the interest of efficiency, the Court finds the redacted materials are properly subject to the sealing order. Based on the reasons and evidence discussed above, Defendant demonstrated an overriding interest in the confidentiality of the materials repeated in the pleadings overcomes the public’s right to access the record, and as such, sealing the record is supported. Defendant demonstrated a substantial probability exists this overriding interest will be prejudiced if the record is not sealed. While the proposed sealing could be more narrowly tailored, for purposes of the instant motion its tailoring is sufficiently narrow given Defendant moves to seal only redacted portions of these pleadings.
Defendant’s motion to seal these materials is granted.
Exhibits Lodged Without Corresponding Sealing Requests Relied on by Defendant in its MSJ [No Request Nos.] [M-COE Exhs. 38, 45, B, G, H, and J] [Not Referenced in Supp-Decl. of Beilke]
As discussed above, the Exhibits in Group 8, while lodged with the Court conditionally under seal, are not specifically referenced in the Supplemental Declaration of Beilke. Given these filings fall within the same general categories of confidential documents Defendant moves to seal, the Court addresses the sealing request as to these documents as well based on the evidence submitted and discussed above.
Exhibit 38 is the deposition of Moseyev, a redacted version of which was publicly filed with the Court, and the unredacted version of which demonstrates the redacted portions involve descriptions of Defendant’s compensation process, IT Structure, and other materials discussed above and subject to sealing. Exhibit 45 is the deposition of Dizon. While a redacted version of Dizon’s deposition was publicly filed, the version lodged conditionally under seal demonstrates Defendant seeks to redact job responsibilities of various positions in Defendant’s IT Department, including those of a Senior DBA, as well as other materials related to compensation discussed above. Exhibit B is the Declaration of Twitchell, a redacted version of which was publicly filed. The redacted portions of the Twitchell declaration demonstrate Defendant seeks to seal information as to the IT Department’s supervisory structure, team breakdown, and job title positions of various individuals at Paragraph 15. Defendant also seeks to seal information relating to development of its “Career Paths” and Next Gen IT Career Framework exercise and the processes Defendant undertook in implementation of those programs with respect to its employees, including Plaintiff and her comparators at Paragraphs 22 through 25. Exhibit G is the declaration of Colony and based on the publicly filed redacted version when compared to the unredacted lodged version, Defendant moves to seal Colony’s descriptions of his job position and duties, the percentage of time he worked on various tasks as a UNIX Admin, discussions of the types of databases Defendant used, and a description of his participation in the Career Framework exercise. (Decl. of Colony ¶¶5, 6, 9, 18, 19, 23, 24.) Exhibit H is Kumar’s declaration and based on a comparison of the publicly filed redacted version with the unredacted lodged version, Defendant moves to seal Kumar’s description of his and others’ job responsibilities and his participation in the Career Framework exercise. (Decl. of Kumar ¶¶5, 6, 9, 10, 14, 16.) Finally, Exhibit J is Chen’s declaration, in which Defendant moves to seal his description of the job duties of his position and other positions at Defendant and his participation in the Career framework exercise. (Decl. of Chen ¶¶4, 5, 7, 13.)
A review of these exhibits demonstrates the redacted materials amount the same information Defendant asserts is confidential and subject to a sealing request, discussed above.
Assuming, arguendo, Defendant also moves to seal these documents, the motion to seal is granted.
Exhibits Lodged Without Corresponding Sealing Request that Defendant Does not Rely on in its MSJ [No Request Nos.] [Exhs. 13, 24, 42, 46, 47, 58, 63, 90, 96, 97, 100, 104, H, I, K,
Absent any objection by Defendant, the Clerk is instructed to return the conditionally lodged versions of Exhibits 13, 24, 42, 46, 47, 58, 63, 90, 96, 97, 100, 104, I, and K, which are not subject to the sealing request and not relied on in the Court’s ruling on the motion, to Defendant, and Defendant shall be entitled to either file unredacted versions of these exhibits or file no versions of these exhibits with the Court.
Motion to Seal Conclusion
Defendant’s unopposed motion to seal is granted in its entirety. Accordingly, the Court orders the following documents to be filed under seal: (1) Defendant’s Exhibits 1 (in part), 10, 11, 12, 55, 62, 68, and 114; (2) Defendant’s Exhibits 9, 44, 77, 82, 83, 87, 123, E, and F and Plaintiff’s Exhibits 8, 11, 16, 18, 25 to the Declaration of Freeze and Exhibit 7 to the Declaration of Plaintiff; (3) Defendant’s Exhibits 88, 125, 126, and 131; (4) Defendant’s Exhibits 84, 85, 95, 105, 137, C, and E and Plaintiff’s Exhibit 10 to the Declaration of Freeze; (5) Defendant’s Exhibits 66, 80, 106, 108, 113, and 124; (6) Plaintiff’s Exhibits 1, 8, 12, 13, 22, 23, and 25 to the Declaration of Freeze; (7) unredacted versions of the Motion, SSF, R-SSF, Reply-SSF, Plaintiff’s Evidentiary Objections, and Reply-Evidentiary Objections; and (8) Defendant’s Exhibits 38, 45, B, G, H, and J.
Motion for Summary Judgment/Adjudication
Defendant moves for summary judgment on the FAC. In the alternative, Defendant moves for summary adjudication of the 1st (violation of the Equal Pay Act (“EPA”), Labor Code §1197.5), 2nd (retaliation in violation of the EPA), 3rd (sex discrimination – FEHA), 4th (race and/or ancestry discrimination – FEHA), 5th (retaliation in violation of the FEHA), 6th (whistleblower retaliation – Labor Code §1102.5), 7th (retaliation – Labor Code §98.6), 8th (failure to prevent discrimination and/or retaliation – FEHA), 9th (failure to pay earned wages – Labor Code §204), 10th (unlawful prohibition on discussing wages), 11th (wrongful termination in violation of public policy), and 12th (violation of Business & Professions Code §17200) causes of action [Issues Nos. 1-12] and as to the prayer for punitive damages [Issue No. 13].
While Defendant has noticed Issues Nos. 1-13, its motion addresses certain causes of action collectively and discusses them in the following order: (1) discrimination (3rd & 4th COAs), (2) retaliation (2nd, 5th, & 7th COAs), (3) whistleblower retaliation (6th COA), (3) violation of the EPA (1st COA), (4) failure to prevent discrimination and/or retaliation (8th COA), (5) failure to pay earned wages – Labor Code §204 (9th COA), (6) unlawful prohibition on discussing wages (10th COA), (7) wrongful termination in violation of public policy and violation of Business & Professions Code §17200 (11th & 12th COAs), and (8) the prayer for punitive damages. The instant ruling addresses the causes of action in this order.
The Court notes the Separate Statement of Facts sets forth Facts Nos. 1-113 in support of the motion for summary judgment as a whole. Thereafter, the Separate Statement addresses each of the 13 issues (12 causes of action and one prayer for punitive damages) and submits the same 113 material facts in support of each, resulting in a total number of 1,582 material facts.
Procedural Issues and CRC Violations
Plaintiff’s Response Separate Statement does not comply with CRC Rule 3.1350(f) which requires the response to unequivocally state whether the stated fact is “disputed” or “undisputed.” Plaintiffs improperly assert objections to individual statements of facts. (See e.g., R-SSF Nos. 9, 63, 66, etc.) To the extent Plaintiff disputes facts to which she has raised objections, certain responses fail to comply with CRC Rule 3.1350(f)(2) which requires that Plaintiff state, “the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” Certain responses do not describe the disputed fact, do not describe evidence supporting Plaintiff’s version of the fact, and do not properly cite to the evidence. Responses as to which Plaintiff has raised an unsupported objection are considered undisputed.
CRC Rule 3.1354(b) requires written objections in the context of a motion for summary judgement/adjudication to be served and filed separately from other papers in support of the motion. As noted above, Plaintiff improperly includes evidentiary objections in her responses to material facts in the R-SSF. The Court does not rule on the objections asserted in the R-SSF.
Plaintiff’s evidentiary objections also include objections to evidence supporting facts Plaintiff responded to as “undisputed.” For undisputed facts, the Court does not address the evidentiary objections to the cited evidence. (See Hurley Const. Co. v. State Farm Fire & Cas. Co. (1992) 10 Cal.App.4th 533, 540-541 [when fact is undisputed, opposing party’s objection to evidence supporting that fact are waived].)
Defendant’s evidentiary objections do not all comply with CRC Rule 3.1354(b), which requires that the objections quote or set forth the objectionable statement or material. Rather, many of Defendant’s objections cite to portions of deposition testimony without quoting the objectionable material. (See, e.g., Objections No. 3 to the Decl. of Freeze.)
In opposition, Plaintiff withdrew her 4th cause of action for discrimination on the basis of race/ancestry. Accordingly, Defendant’s motion for summary adjudication is granted as to the 4th cause of action.
In addition, with respect to the 1st cause of action for violation of the EPA, Plaintiff does not oppose Defendant’s arguments that Plaintiff cannot establish a violation based on her race/ethnicity. As such, the cause of action is based on gender only.
The Court notes Plaintiff’s opposition does not respond to Defendant’s arguments as to the causes of action for whistleblower retaliation, wrongful termination, violation of Business & Professions Code §17200.
The Court notes Defendant’s M-COE attaches Exhibits 1-117 to the Declaration of Beilke [Exh. A], Exhibits 118-136 to the Declaration of Twitchell [Exh. B], and Exhibit 137 to the Declaration of Sibbrel [Exh. C]. As the exhibit numbers for the attached documents and deposition testimony do not repeat, in citing to the evidence, the Court will refer to the document by Exhibit number without necessarily referencing which Declaration it is attached to. To the extent Defendant relies on material asserted in the declarations themselves, the Court will cite to the declarations.
As noted in the ruling, the publicly filed and redacted version of the Deposition Transcript of Dizon (Vol. I) filed by Defendant as Exhibit 45 to the Declaration of Beilke (M-COE, Exh. A) and discussed in the motion to seal above lacks page numbers. However, the conditionally lodged version does have page numbers, and as such, the Court relies on this version in considering the evidence. The Court notes the excerpts of the Deposition Transcript of Dizon submitted by Plaintiff are paginated, and the Court considers Plaintiff’s citations to the Dizon Deposition.
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.”
The Court has reviewed Defendant’s responses to Plaintiff’s evidentiary objections. As noted above, for undisputed facts the Court does not address the evidentiary objections to the cited evidence. Many of Defendant’s responses to objections assert that Plaintiff has waived any objection to evidence because the evidence supports an undisputed fact. (See e.g., Reply-Evidentiary Objections pgs. 4-9 in which Defendant contends SSFs Nos. 8, 48, 16, and 27 are undisputed, contrary to the Response Separate Statement.) However, this assertion is based on Defendant’s contention that Plaintiff’s failure to submit evidence creating a dispute of fact means the fact is undisputed, even where Plaintiff has indicated a fact is “disputed.” (See Reply-SSF.) As such, the Court cannot rely on Defendant’s version of Plaintiff’s R-SSF. Notably, only the following 45 facts that are unequivocally undisputed: SSFs Nos. 2, 12, 15, 19, 20, 23, 26, 28, 30, 33, 35, 37, 40, 42, 43, 44, 47, 49, 50, 51, 52, 53, 54, 55, 56, 57, 74, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 89, 91, 93, 96, 97, 102, and 107. A review of Defendant’s response to the Evidentiary Objections demonstrates that of the 91 instances in which Defendant asserts the objected-to evidence supports an undisputed fact, the following objections are the only instances in which Defendant’s response cites to SSFs that are actually undisputed by Plaintiff: (1) No. 3 to the Decl. of Chen (SSF No. 53); (2) Nos. 12 and 13 to the Decl. of Johnson (SSFs Nos. 93 and 97); (3) No. 1 to the Decl. of Sibbrel (SSF No. 12); (4) Nos. 2, 3, 5, 6, 7, 20, 21, 22, 23, 26, 27, 28, 29, 31, and 33 to the Decl. of Twitchell (SSFs Nos. 80, 87, 2, 35, 42, 49, 56, 28, 91, 96, and 97) cite to facts that are actually undisputed.
Plaintiff’s 5/24/22 “general” evidentiary objections to the Declarations of Colony, Hefferman, Shillington, Chen, Kumar, Quan, Johnson, Sibbrel, and Twitchell in their entirety are overruled.
Plaintiff’s evidentiary objections to the Declaration of Colony are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 9, 10 (not submitted for the truth of the matter asserted, but for Colony’s understanding of the purpose of the Career Framework Exercise), 11, and 12 and sustained as to Nos. 8, 13, and 14.
Plaintiff’s evidentiary objections to the Declaration of Heffernan are overruled as to Nos. 1, 2, 3, and 4.
Plaintiff’s evidentiary objections to the Declaration of Shillington are overruled as to Nos. 1, 2, 3 (not submitted for truth of matter asserted, but as a basis for Plaintiff’s career path placement), 4, 5, and 7, and sustained as to No. 6 (only as to “Jennifer Hua’s sex and race… process” and “Absolutely no consideration… during the process,” as conclusory and lacking personal knowledge, otherwise overruled).
Plaintiff’s evidentiary objections to the Declaration of Chen are overruled as to Nos. 1, 2, 3, and 7 and sustained as to Nos. 4, 5, 6 (only as to “I could not imagine… employee” otherwise overruled). [The Court notes Plaintiff’s objection No. 3 is waived given it objects to evidence supporting a fact Plaintiff contends is undisputed.]
Plaintiff’s evidentiary objections to the Declaration of Kumar are overruled as to Nos. 1, 2, 3, 4, 5, 6 (not submitted for the truth of the matter, in addition, Plaintiff is a party to the action), 7, 8, 9, and 10.
The Court does not rule on Plaintiff’s evidentiary objections Nos. 1-10 to the Supplemental Declaration of Kumar [M-COE, Exh. I], as the information contained in the declaration is not material to the motion pursuant to C.C.P. §437c(q).
Plaintiff’s evidentiary objections to the Declaration of Quan are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15.
Plaintiff’s evidentiary objections to the Declaration of Johnson are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 10, 11, 12 (not submitted for the truth of the matters Twitchell asserted), and 13, and sustained as to Nos. 8 (only as to “I learned that… not aware of” otherwise overruled), 9 (only as to “Graham and I … this claim” and “the truth, which is” and otherwise overruled). [The Court notes Plaintiff’s objection Nos. 12 and 13 are waived given they object to evidence supporting facts Plaintiff contends are undisputed.]
Plaintiff’s evidentiary objections to the Declaration of Sibbrel are overruled as to Nos. 1, 2, 3 (not for the truth of the matters conveyed to Sibbrel, but as a basis for the compensation committee’s determination), 4, 5, 6, 7, 8, and 9. [The Court notes Plaintiff’s objection No. 1 is waived given it objects to evidence supporting a fact Plaintiff contends is undisputed.]
Plaintiff’s evidentiary objections to the Declaration of Twitchell are overruled as to Nos. 1 - 34. [The Court notes Plaintiff’s objection Nos. 2, 3, 5, 6, 7, 20, 21, 22, 23, 26, 27, 28, 29, 31, and 33 are waived given they object to evidence supporting facts Plaintiff contends are undisputed.]
Defendant’s 6/2/22 evidentiary objections to Plaintiff’s Compendium of Evidence in its entirety on the basis it was untimely filed is overruled.
Defendant’s evidentiary objections to the Declaration of Freeze are overruled as to Nos. 1 -29.
Defendant’s evidentiary objections to the Declaration of Plaintiff are overruled as to Nos. 31, 32, 33, 34, 35, 36, 40 (not for truth of matter), 41 (not for truth of matter asserted), 42, 43, 44, 45, 46, 47, 50, 52, 54, 56, 57, 58, 59, 60, 61, 62, 63, 69, 70, 72, 73, 74, 75, 76, 77, and 78 and sustained as to Nos. 30 (Paragraph 2; contradicts prior sworn testimony), 37, 38, 39, 48, 49 (to the extent Plaintiff relies on her former statements for the truth of the matter asserted, sustained, otherwise overruled), 51, 55, 64, 65 (lack of personal knowledge), 66 (lack of foundation and lack of personal knowledge), 67, 68, 71.
Defendant’s evidentiary objections to the Declaration of Dizon are overruled as to Nos. 79, 80, 81, 82, 83, 84, 87, and 88 (not submitted for truth of matter asserted), 85 (only as to “and does not know… from 2016-2020” otherwise overruled), 86.
Sex Discrimination – FEHA (3rd COA)
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.)
In support of her discrimination cause of action, Plaintiff alleges she was subjected to the following adverse employment actions based on her sex/gender: (1) her compensation was significantly lower; (2) she received a lower ranking; (3) she was denied opportunities for training provided; and (4) she was terminated. (FAC ¶62.)
Whether Plaintiff can Establish an Adverse Employment Action other than Termination for Discrimination
As a preliminary matter, Defendant asserts “not all” of the conduct alleged by Plaintiff qualifies as an adverse employment action. (Motion, pg. 10.) As such, Defendant does not move for summary adjudication on this cause of action on the grounds Plaintiff cannot establish she suffered an adverse employment action, a fact Defendant concedes given Plaintiff’s termination, rather, Defendant contends the only adverse employment action at issue is her termination. Specifically, Defendant asserts the claim Defendant denied her training opportunities in 2017 and February 2018 is time-barred because conduct that preceded August 9, 2018, one year prior to Plaintiff filing her DFEH charge, are barred by the one-year statute of limitations. (Motion, pg. 10, fn. 5; USSFs No. 76, 104 [“USSF” refers to undisputed facts].) Defendant also asserts its alleged ranking of Plaintiff in its 2018 Career Framework did not constitute an adverse employment action because it did not result in a change of the terms, conditions, or privileges of her employment. (Motion, pg. 10; USSF No. 66.) Defendant does not dispute that Plaintiff’s termination and alleged lower compensation qualify as adverse employment actions. (Motion, pg. 10.) [The Court notes in the context of the retaliation cause of action, Defendant contends the only adverse employment action is Plaintiff’s termination. (Motion, pg. 12.)]
In opposition, Plaintiff does not respond to Defendant’s assertion that its other alleged actions do not qualify as adverse employment actions. Rather, Plaintiff contends that her sex discrimination cause of action is based on the adverse employment action of her termination. (Opposition, pg. 16 [“Plaintiff suffered an adverse employment action – termination by [Defendant].”)
Based on the foregoing, the Court finds the cause of action is based on Plaintiff’s termination.
Whether Plaintiff can Establish Defendant’s Legitimate Business Reasons for its Actions were Pretextual for Discrimination on the Basis of Sex/Gender [SSFs Nos. 63-64, 89-97]
“‘‘[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].)
Defendant submitted evidence suggesting it had legitimate business reasons for setting Plaintiff’s compensation and for terminating Plaintiff’s employment. (Motion, pgs. 10-11.) The Court notes Defendant does not address whether it had legitimate business reasons for the other alleged adverse employment actions, which it argues do not qualify as adverse employment actions for the reasons discussed above. However, given Plaintiff does not oppose this argument and concedes that her termination is the only adverse employment action at issue in the action, Defendant does not have the burden of demonstrating it had legitimate reasons for the other alleged adverse employment actions to prevail.
Defendant submitted evidence suggesting Plaintiff cannot establish Defendant’s stated reasons for its decisions relating to her compensation and/or termination are pretextual for discrimination based on her gender. (Motion, pg. 11.) Given Plaintiff only considers her termination the adverse employment action, the Court need not address evidence relating to her compensation.
As to Plaintiff’s termination, Defendant submitted evidence it terminated Plaintiff for violating its Confidentiality Policy after discovering she had disclosed confidential documents to a third party outside the course of her employment with Defendant and not in connection with carrying out Company business. (USSF Nos. 93, 96.) Specifically, Defendant submitted evidence that on July 31, 2019, Jason Dizon (“Dizon”) sent an email form his personal email address to Plaintiff’s personal email address titled “Career slotting documents for Shirin,” which attached the following confidential documents: (1) Defendant’s Next Generation IT Career Framework packet (“NextGen Framework”), and (2) Defendant’s Career Framework slotting guide (“Slotting Guide”). (USSF No. 89.) Defendant submitted evidence suggesting the NextGen Framework and Slotting Guide amounted to confidential business records since they contain sensitive business strategies, critical IT work product, and confidential training materials. ([Disputed Separate Statement of Fact (“D-SSF”) No. 90] M-COE, Exh. B: Decl. of Twitchell ¶50; Exh. 62 [July email], Exh. 1: Plaintiff Depo, Vol. I, 212:2-20 [testimony relating to the 7/31/19 email from Dizon’s personal email to Plaintiff’s personal email], 217:17-225:11 [testimony as to the contents of that email and its attachments (under seal)].) Defendant submitted evidence that on December 5, 2019, Plaintiff served Defendant with confidential Company records in response to Defendant’s requests for production and on February 12, 2020, Plaintiff testified Dizon had sent her those records to give to her then-attorney, Shirin Forootan (“Forootan”), for use in litigation, and Plaintiff forwarded the documents to Shirin. (USSF No. 91; [D-SSF No. 92] M-COE, Exh. 1: Plaintiff Depo 24:13-24 [testimony that she understands it would be a violation of company policy for Dizon to provide company documents to a third party and that policy would apply to Plaintiff], 211:16-212:20 [testimony that Plaintiff received Exhibit 10, Dizon’s 7/31/19 email from his personal account, in her personal account], 217:17-225:13 [testimony in which Plaintiff reads the contents of Dizon’s email into the record (under seal)], Exh. 58: Twitchell Depo 98:22-99:17 [non-redacted portion of testimony that documents Plaintiff discussed in her deposition violated the confidentiality policy because they were work product and documents related to the Company to be used for business purposes only and not to be shared].)
Defendant submitted evidence that in February 2020, Gregory Twitchell (“Twitchell”) began an investigation into whether Plaintiff had violated Defendant’s confidentiality policy and Plaintiff was placed on paid administrative leave. (USSF No. 93.) Defendant submitted evidence Plaintiff admitted during her deposition that she provided Company documents that were confidential (regardless of whether she knew they were confidential) to her attorney without Defendant’s consent and outside the scope of her employment with Defendant. ([D-SSF No. 95] M-COE, Exh. 1, Plaintiff Depo, Vol. I, 24:13-24 [testimony summarized above], 153:19-154:16 [testimony that Plaintiff understands the policy requires her to treat internal information as confidential unless otherwise noted]; Exh. 13: Plaintiff Depo, Vol. II, 102:14-103:14 [testimony that Plaintiff understood the confidentiality policy], 181:16-182:6 [testimony that Plaintiff provided “Exhibit 43” [Bates Hua 251] to her attorney], 192:20-25, 195:17-23 [testimony that Plaintiff did not have permission from anyone at Defendant to forward Exhibit 46 to her personal email]; 201:11-202:10, 204:20-21 [testimony Plaintiff provided Exh. 47 to her attorney without permission from Defendant]; 205:2-10, 207:5-23, [testimony Plaintiff forwarded Exh. 48 to her personal email without permission from Defendant]; [the remaining cited testimony is other instances Plaintiff forwarded material to her personal email and/or attorney without Defendant’s permission].) Defendant submitted evidence that after conducting the investigation, Twitchell concluded Plaintiff: (1) violated the confidentiality policy when she disclosed confidential company information for an improper purpose, namely, outside the course of her employment with Defendant and unnecessary to carry out company business; and (2) should not have maintained personal copies of the confidential documents and should not have distributed them outside the company for use by third parties. (USSF No. 96.)
Defendant submitted evidence that Twitchell communicated his conclusions to Regina Johnson (“Johnson”), Defendant’s then-Global Head of HR and after she reviewed the case and discussed with Twitchell, she agreed Plaintiff had violated the confidentiality policy and decided to terminate her employment effective March 20, 2020. (USSF No. 97.) Defendant submitted evidence Johnson would have decided to terminate Plaintiff irrespective of her gender or protected activity, and these factors did not change Johnson’s conclusion that termination was warranted given Plaintiff’s violation of the confidentiality policy. ([D-SSF No. 98] M-COE, Exh. D: Decl. of Johnson ¶25; Exh. 1: Plaintiff Depo 147:13-19 [testimony that Plaintiff considered Colony calling her the “refresh queen” a hurtful or offensive comment about her gender because “queen” is a female term, but there were no other comments].) Defendant submitted evidence it has terminated other employees for violating its confidentiality policy, including men and individuals who never made complaints to HR. (USSF No. 99.)
Based on the foregoing, Defendant met its 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 her burden.
Plaintiff failed to submit evidence creating a triable issue of fact as to whether Defendant’s stated reason for her termination was pretextual for actual sex/gender based discriminatory intent. To the extent Plaintiff disputes Defendant’s submitted evidence summarized above, she does not cite to evidence creating a dispute of fact as to whether her termination was actually based on her gender and not the stated reason of Plaintiff’s violation of the confidentiality policy. Notably, Plaintiff disputes that the company documents attached to the 7/31/19 email constituted confidential business records because neither Plaintiff nor Dizon considered them such. ([Response to Separate Statement of Fact (“R-SSF”) No. 90] Decl. of Plaintiff ¶8 [Plaintiff’s belief that the documents did not include confidential materials] [Objection No. 37].) However, this is not competent evidence that these attachments were not confidential business records in the face of Defendant’s evidence suggesting the documents were confidential, or at least not to be shared with third parties without Defendant’s permission. Beyond her declaration, Plaintiff does not submit evidence supporting her belief that the documents were not confidential.
Plaintiff also disputes SSF No. 92, which provides that Dizon sent Plaintiff the 7/31/19 email with the confidential attachments that Plaintiff sent to her attorney, and cites to evidence in support of her objection, which the court construes as disputing this fact. Plaintiff disputes the fact to the extent Defendants suggest she knew the attachments were confidential, since she asserts that she did not know they were confidential, and that she never followed an “instruction” by Dizon to send documents to her attorney, only that she did send such documents to her attorney. (R-SSF No. 92.) However, whether Plaintiff knew the documents were confidential does not create a triable issue of fact as to whether the decision to terminate Plaintiff for violating the confidentiality policy was based on her gender. In addition, whether Dizon instructed or did not instruct her to send documents is not material to the fact she did send those documents to her attorney. Plaintiff’s argues while she admitted to providing the at-issue documents to her attorney, she did not admit that all the documents she provided were confidential given she did not know certain documents were confidential. (R-SSF No. 95.) However, Plaintiff’s testimony, summarized above and taken together, demonstrates she understood the confidentiality policy deemed company documents confidential unless noted and she provided company documents to a third party without permission, suggesting her constructive knowledge that she was providing confidential documents to her attorney. Moreover, regardless of Plaintiff’s knowledge of the confidential nature of the documents, this is not evidence of discriminatory intent. Finally, Plaintiff disputes SSF No. 98 [Johnson would have reached the decision to terminate Plaintiff regardless of her gender or protected activity] based on the following: (1) Johnson was aware of Plaintiff’s protected activity, her May 2019 complaint and the instant lawsuit; (2) Johnson learned Plaintiff was suing Defendant for gender discrimination and unequal pay; (3) Defendant’s HR had an “attitude” that Plaintiff was “trouble” for the company; (4) proximity of one month time between Johnson learning about the lawsuit and the termination suggests “discriminatory and retaliatory bias”; and (5) Defendant’s awareness that Plaintiff only disclosed the documents to her attorney. ([R-SSF No. 98] O-COE, Decl. of Freeze, Exh. 14: Twitchell Depo Vol. 1 97:23-98:3; Exh. 18: Twitchell Depo 146:19-147:8 and 157:14-158:12.) However, to the extent the response contends discriminatory animus was the basis for Johnson’s decision, it is conclusory and not supported by competent evidence. Notably, HR’s perception of Plaintiff being “trouble” for the company is not relevant to whether Johnson perceived her as much. The only support for discriminatory or retaliatory animus is the proximity of time between Johnson reviewing Plaintiff’s deposition, and allegedly then learning she was suing Defendant, and the decision to terminate her one month later. 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.)
In opposition, Plaintiff argues there is a wealth of evidence showing discriminatory intent and pretext. (Motion, pg. 16.) Specifically, Plaintiff argues: (1) Defendant deviated from standard policies and practices in setting Plaintiff’s compensation by awarding her less than her peers based on its perception Plaintiff was a poor communicator and inadequate leader; (2) Defendant treated Plaintiff less favorably than her male co-workers who had similar performance deficiencies; (3) Defendant’s “culture” was misogynistic as demonstrated by Plaintiff being told to “get over” Colony’s ridiculing of her by mocking her competence, calling her a “skinny Chinese girl,” and referring to her as “a refresh queen,” and HR referring to her as “trouble.” (Opposition, pgs. 16-17.) However, even if Plaintiff cited to competent evidence supporting each of these assertions, they are unpersuasive as Plaintiff’s burden at this stage is to submit evidence that Johnson’s decision to terminate Plaintiff was based on discriminatory animus based on her gender and not based on the stated reason that Plaintiff violated the confidentiality policy. How Defendant set Plaintiff’s compensation, whether Plaintiff’s co-workers ridiculed her, and whether HR referred to her as “trouble” are not relevant to whether Plaintiff has evidence of discriminatory animus behind Johnson’s decision to terminate her.
Based on the foregoing, Defendant’s motion for summary judgment is granted. In the alternative, and for appeal purposes only, Defendant’s motion for summary adjudication of the 3rd cause of action is granted.
Retaliation in violation of the FEHA, EPA, and/or Labor Code §98.6 (2nd, 5th, & 7th COAs)
“[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.)
Retaliation claims under the FEHA, EPA, and Labor Code §98.6 follow the McDonnell Douglas burden shifting discussed above in the context of the discrimination cause of action. (Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 855 (FEHA); Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 627, 633, n. 7 (EPA); Garcia-Brower v. Premier Auto. Imports of CA, LLC (2020) 55 Cal.App.5th 961, 977-978 (Section 98.6).)
Plaintiff’s retaliation causes of action are based allegations that Plaintiff engaged in the following protected activity: (1) filing her discrimination and retaliation complaint with the DFEH and receiving a right to sue letter in August 2019; (2) filing the instant lawsuit in September 2019; and (3) participating in Defendant’s 2020 internal investigation regarding exchanging information with others about Defendant’s pay. (FAC ¶¶31, 32, 33, 34, 87, 151.) Plaintiff alleges Defendant was aware of Plaintiff’s opposition to its practices and participation protected activity prior to terminating her employment for pretextual reasons. (FAC ¶35.)
Defendant moves for summary adjudication of the retaliation causes of action on the following issues: (1) Plaintiff cannot establish she was subject to an adverse employment action other than termination; (2) Plaintiff cannot establish the element of causation for a prima facie case for retaliation based on her termination; (3) even if Plaintiff can establish a prima facie case for retaliation based on her termination, Defendant had legitimate business reasons for its actions and Plaintiff cannot establish pretext. (Motion, pgs. 12-13.)
Whether Plaintiff can Establish an Adverse Employment Action other than Termination for Retaliation
Defendant asserts that notwithstanding the allegations in the operative pleading, the only actionable adverse employment action is Plaintiff’s termination. (Motion, pg. 12.)
As with her sex discrimination cause of action, Plaintiff does not respond to Defendant’s assertion that Plaintiff’s other alleged actions do not qualify as adverse employment actions. Rather, Plaintiff contends that the retaliation causes of action are based on the adverse employment action of her termination. (Opposition, pgs. 18-19 [discussion that Defendant’s stated reason for its termination of Plaintiff was pretextual for retaliation without discussing any other adverse employment actions].)
Based on the foregoing, the Court finds the retaliation causes of action are based on Plaintiff’s termination.
Whether Plaintiff can Establish a Causal Link between her Protected Activity and her Termination [SSFs Nos. 71-74, 97]
Defendant argues Plaintiff cannot establish a causal link between her protected activity and termination given the lack of temporal proximity between her alleged protected activity of participating in Defendant’s EPA compliant investigation from May 2019 to November 2019 and filing her lawsuit in September 2019 and her termination in March 2020. (Motion, pgs. 12-13; citing D-SSFs Nos. 71-73 [disputed for reasons other than the date of Plaintiff’s participation in the investigation, the reason for the facts’ submission here]; USSF Nos. 74, 97.) Defendant asserts that given the adverse employment action occurred seven months after she filed suit and four months after Defendant closed its internal investigation, Plaintiff cannot establish causation by temporal proximity. Defendant cites to Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1065 for the position that to establish causation for a prima facie case, timing alone does not show causation in all instances and to support a retaliatory motive the adverse action must have occurred “fairly soon” after the employee’s protected expression, noting that in other federal cases four and eight months were deemed too long. (Motion, pg. 13.) However, Defendant does not cite to non-federal cases supporting this position and these time periods. Defendant does cite Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 354; however, the cited portion addresses temporal proximity in the context of creating a triable issue for establishing pretext for an employer’s stated reason for the adverse employment action, not for establishing the threshold element of causation for a prima facie case. Rather, with respect to causation, the Artega court held as follows: “Because the employee's burden of establishing a prima facie case under McDonnell Douglas is fairly minimal, the temporal proximity between [protected activity] and a subsequent termination may satisfy the causation requirement at the first step of the burden-shifting process.” (Arteaga v. Brink's, Inc., supra, 163 Cal.App.4th at 353) In addition, a review of the evidence suggests Plaintiff’s alleged protected activity was not only her participation in her initial complaint and the filing of the DFEH complaint and the instant lawsuit, but also her continued participation in the instant lawsuit, including participating in her February 2020 deposition, which preceded her termination by only one month. The Court finds Defendant did not meet its burden on summary adjudication on this issue.
Whether Plaintiff can Establish Defendant’s Legitimate Business Reasons for its Actions were Pretextual for Retaliation [SSFs Nos. 89-97]
Defendant asserts it had a legitimate, non-retaliatory reason for Plaintiff’s termination, her violation of the confidentiality policy. (Motion, pg. 13.) Defendant submitted the same evidence in support of this assertion as it submitted in the context of Plaintiff’s sex discrimination cause of action, discussed above. (SSFs Nos. 89-98.) As above, the Court finds Defendant submitted sufficient evidence that it had a legitimate reason for Plaintiff’s termination.
Defendant also submitted evidence suggesting Plaintiff cannot establish that this stated reason was pretextual for retaliation against her based on her protected activity. Specifically, Defendant submitted evidence that Plaintiff testified when she previously made a complaint to HR in 2009 regarding harassment involving another supervisor, she never felt retaliated against. (USSF No. 108.) As noted above, Defendant has terminated other employees, including those who never engaged in protected activity, for violating the confidentiality policy. (USSF No. 99.) To the extent Plaintiff contends she was terminated for discussing wages, Defendant submitted evidence that Plaintiff and her coworkers discussed their wages without consequence. (USSF No. 109.) Defendant submitted evidence Plaintiff never told anyone at Defendant that she discussed wages with Chen or Kumar. ([D-SSF No. 110] M-COE; Exh. B: Decl. of Twitchell ¶53 [Twitchell’s assertion that he had no knowledge Plaintiff discussed wages or working conditions with Defendant’s employees at the time of her termination] [The Court notes SSF No. 110 also cites to Exh. 77: Plaintiff Depo 252:11-13, 254:3-6 and Exh. 63: Dizon Depo 45:9-12, 45:21-46:9; however, the cited pages of these depositions are not included in the M-COE].) Defendant submitted evidence Plaintiff never told Cherry or Quan she felt her wages were not being paid fairly. (USSF No. 111.) Defendant submitted evidence that Plaintiff testified to not remembering whether anyone at Defendant told her that she was prohibited from discussing her wages with other employees. (USSF No. 112.)
Accordingly, Defendant met its burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff did not meet her burden.
Plaintiff failed to submit evidence creating a triable issue of fact as to whether Defendant’s stated reason for her termination was pretextual for retaliation. To the extent Plaintiff disputes Defendant’s submitted evidence, her disputes do not submit evidence creating a dispute of fact as to whether her termination was actually based on her protected activity, and not that Plaintiff violated the confidentiality policy. As discussed above, Plaintiff disputes the documents attached to the 7/31/19 email were confidential business records; however, her belief as to these documents’ confidentiality is not competent evidence they were not confidential to suggest Defendant’s stated reason was pretextual. (R-SSF No. 90.) Plaintiff’s disputes with SSF Nos. 92 and 95 are likewise based on disputing any suggestion that Plaintiff knew the documents were confidential, not that Plaintiff actually did transmit the at-issue documents to a third party. (R-SSF Nos. 92, 95.)
Finally, Plaintiff’s dispute with SSF No. 98 does not create a triable issue of fact that Johnson’s decision was actually retaliatory. In response to Defendant’s assertion that Johnson would have reached her decision to terminate regardless of Plaintiff’s having engaged in protected activity, Plaintiff asserts this is not the case given the following: (1) Johnson was aware of Plaintiff’s protected activity, her May 2019 complaint and the instant lawsuit; (2) Johnson learned Plaintiff was suing Defendant for gender discrimination and unequal pay; (3) Defendant’s HR had an “attitude” that Plaintiff was “trouble” for the company; (4) proximity of one month time between Johnson learning about the lawsuit and the termination suggests “discriminatory and retaliatory bias”; and (5) Defendant’s awareness that Plaintiff only disclosed the documents to her attorney. ([R-SSF No. 98] O-COE, Decl. of Freeze, Exh. 14: Twitchell Depo Vol. 1 97:23-98:3 [Twitchell’s testimony that he shared with Johnson his written findings of his investigation into Plaintiff’s violation of the confidentiality policy along with notes from Plaintiff’s deposition and other records]; Exh. 18: Twitchell Depo 146:19-147:8 [Twitchell’s testimony that he does not have information as to whether Shirin shared or did not share the confidential documents further] and 157:14-158:12 [in discussing his investigation of Dizon’s violation of the confidentiality policy, Twitchell testified that he did not have evidence as to whether Dizon did or did not disclose confidential documents to someone else other than Plaintiff and Shirin].) First, Plaintiff does not submit competent evidence in support of her assertion that Johnson was aware of her protected activity. The cited testimony only demonstrates that Twitchell gave Johnson “notes” from Plaintiff’s deposition and, to the extent it suggests Twitchell also gave Johnson Plaintiff’s deposition, this is not evidence that Johnson read the deposition to be familiar with its contents and/or have an awareness of all of Plaintiff’s protected activities. Even assuming arguendo, Johnson was aware Plaintiff’s protected activity, mere awareness is not evidence that Johnson made the decision to terminate Plaintiff because of that activity when she was also presented with an investigation of Plaintiff’s violation of the confidentiality policy.
In addition, Plaintiff does not cite to any evidence supporting her assertion that HR perceived Plaintiff as being “trouble.” The cited testimony in Plaintiff’s R-SSF includes no reference to this. The Court notes Defendant’s SSF No. 77 submits evidence that in October 2019, Plaintiff complained to Twitchell that an HR employee said, “Here comes trouble,” in reference to Plaintiff. ([D-SSF No. 77] M-COE Exh. 77: Plaintiff Depo 301:19-305:12, 308:20-310:7, 315:13-23, 412:5-10, 412:13-413:2, 413:5-12, 413:21-414:9; Exhs. 110, 111, 112, 113.) While Plaintiff disputes other elements of the fact, she does not dispute that the HR employee made this statement. (R-SSF No. 77.) Moreover, regardless of this evidence of a single instance an individual from HR referred to Plaintiff as trouble, there is no evidence that the decisionmaker, Johnson, perceived Plaintiff in this manner or was even aware that she had been referred to as such.
Finally, Plaintiff’s only support for retaliatory animus is the proximity of time between Johnson’s alleged review of Plaintiff’s deposition, at which time Plaintiff contends she then learned Plaintiff was suing Defendant, and Johnson’s subsequent decision to terminate her one month later. 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., supra, 163 Cal.App.4th at 352-53.)
In opposition, Plaintiff argues there is sufficient evidence of pretext by incorporating by reference the section addressing pretext in the context of the discrimination cause of action. (Motion, pg. 18.) However, these arguments, summarized above, only relate to pretext for gender discrimination not pretext for retaliation.
Based on the foregoing, Defendant’s motion for summary judgment is granted. In the alternative, for appeal purposes only, Defendant’s motion for summary adjudication is granted as to the 2nd, 5th, and 7th causes of action.
Whistleblower Retaliation – Labor Code §1102.5 (6th 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.”
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 v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 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.” (Id. 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.)
Defendant argues Plaintiff cannot establish her whistleblower retaliation cause of action for the following reasons: (1) Plaintiff has no evidence her protected activity was a contributing factor to her termination; (2) Defendant had a legitimate reason for Plaintiff’s termination. (Motion, pgs. 13-14.)
Whether Plaintiff Can Establish Her Protected Activity Was Contributing Factor to Termination
Defendant argues Plaintiff can produce no evidence her protected activity was a contributing factor to her termination, and as such, she cannot meet her initial burden under Section 1102.6. (Motion, pg. 14.) Specifically, Defendant asserts Plaintiff cannot establish a causal link between her protected activity and termination, citing to the same evidence discussed above. In addition, Defendant asserts there is no evidence to even suggest Plaintiff’s complaints were a motivating reason for Defendant’s decision to terminate her. (Motion, pg. 14 citing USSF No. 75 [While HR’s 2019 investigations into Plaintiff’s complaints were ongoing, Defendant was served with an anonymous EPA complaint in July 2019, for which the identity of the complainant remained anonymous, and Defendant was unaware Plaintiff had filed the complaint].) Defendant also submitted evidence Plaintiff filed a charge with the DFEH in which she requested an immediate right to sue on August 9, 2019, of which no notice was given to Defendant. ([D-SSF No. 76] M-COE, Exh. 1: Plaintiff Depo 104:13-16, 194:19-22; Exh. 13: Plaintiff Depo 227:8-230:18; Exh. 77: Plaintiff Depo 390:19-391:4, 392:1-6, 392:11-394:18, 394:21-395:12; Exhs. 115, 101, 102, 103; Exh. B: Decl. of Twitchell ¶31.) In dispute of this fact, Plaintiff asserts her counsel provided Defendant with her Right to Sue letter on August 9, 2019; however, this dispute is not material as Defendant’s fact addresses Plaintiff’s lodging her complaint with the DFEH, not its receipt of a right to sue letter. Plaintiff does not submit evidence suggesting she gave Defendant notice she had filed or would be filing a charge with the DFEH prior to receiving her right to sue letter. Defendant also submitted evidence suggesting Plaintiff cannot point to any retaliatory statements made against her because the only alleged statement was investigated and determined to not constitute retaliation. ([D-SSF No. 77] M-COE Exh. 77: Plaintiff Depo 301:19-305:12 [testimony that in October 2019, Plaintiff lodged a complaint against Jeff Emanuelli (“Emanuelli”), who worked in HR, and Plaintiff had a meeting with Twitchell about it during which she expressed her fear that Emanuelli was referring to her lawsuit which Plaintiff believed he knew about solely because he worked for HR but that Twitchell informed Plaintiff Emanuelli did not know about Plaintiff’s lawsuit], 308:20-310:7 [testimony summarizing Plaintiff’s complaints to HR about her pay, about Emanuelli’s comment, and about harassment with prior manager (not at issue in this action), and that these comprised all of Plaintiff’s HR complaints], 315:13-23 [testimony that Plaintiff only had three conversations with Twitchell in 2019], 412:5-10 [authenticating email], 412:13-413:2 [authenticating email], 413:5-12 [authenticating email], 413:21-414:9 [testimony that Plaintiff had a meeting with Twitchell on 11/6/19 relating to his investigation of Emanuelli]; Exhs. 110, 111, 112, 113.) Defendant’s evidence suggests Plaintiff cannot establish that her protected activity of complaining to HR and filing the instant lawsuit were contributing factors in Defendant’s decision to terminate Plaintiff.
Defendant met its burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff did not meet her burden.
Plaintiff does not submit any argument in opposition to the whistleblower retaliation cause of action, which has a different legal standard than Plaintiff’s other retaliation causes of action. Even taking into consideration Plaintiff’s disputed facts, summarized above in the context of the retaliation causes of action, Plaintiff did not submit or cite to evidence suggesting her engaging in protected activity was a contributing factor to Defendant’s termination of her.
Based on the foregoing, Defendant’s motion for summary adjudication of the 6th cause of action is granted.
Whether Defendant Can Establish, by Clear and Convincing Evidence, a Legitimate Reason for Plaintiff’s Termination
The Court does not reach the issue of whether there is a triable issue of fact as to whether Defendant can establish, by clear and convincing evidence, it had a legitimate reason for Plaintiff’s termination.
Violation of the EPA, Labor Code §1197.5 (1st COA)
Labor Code section 1197.5(a) provides that an employer “shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work.” Labor Code section 1197.5(b) applies the same prohibition on “race or ethnicity” grounds; however, as noted above, Plaintiff is no longer asserting a claim based on race or ethnicity.
This cause of action is based on the following allegations: (1) Plaintiff was paid much less than the rate paid to her male counterparts in Defendant’s IT/Operations department; (2) Plaintiff was performing substantially similar work as her male counterparts considering the overall combination of skill, effort, and responsibility required; (3) Plaintiff was working under similar working conditions as her male counterparts; (4) Defendant willfully violated the EPA by intentionally, knowingly, and deliberately paying Plaintiff less than male employees in the IT/Operations department; (5) Plaintiff has suffered damages as a result. (FAC ¶¶39-44.) Plaintiff makes the following general allegations: (1) she worked as a Database Administrator (“DBA”) in Defendant’s IT department from April 3, 2006 to March 20, 2020; (2) she was the only female in her department; (3) she had many years of experience as a DBA prior to working at Defendant and had more experience than any other male counterpart in her department; (4) she had the longest tenure at Defendant compared to other male counterparts in her department and either met or exceeded expectations on every performance review from 2007 to 2019; (5) her total compensation remained lower than her male counterparts. (FAC ¶¶20-24.)
Defendant argues Plaintiff’s 1st cause of action fails because: (1) Plaintiff cannot establish a prima facie case because the comparators did not have equivalent positions, (2) Defendant had a legitimate basis for any alleged pay disparity, and (3) Plaintiff cannot establish pretext.
Whether Plaintiff can Establish a Prima Facie Case for Violation of the EPA based on Gender
Defendant asserts Plaintiff cannot establish she performed “substantially similar” work to the comparators for purposes of making a prima facie showing of an EPA violation. (Motion, pgs. 15-17.) Defendant submitted evidence that Plaintiff identified Moseyev, Kumar, Colony, Dizon, and Long as her five comparators. (USSF No. 22.) Defendant submitted evidence that Moseyev was not Defendant’s employee in 2016, 2019, or 2020 and Kumar was not Defendant’s employee in 2016. (D-SSF No. 24 [not disputed for purposes of Moseyev’s years of employment]; D-SSF No. 31 [not disputed for purposes of Kumar’s years of employment].) As for the comparators’ positions, for purposes of being valid comparators to Plaintiff, Defendant submitted the following evidence: (1) after May 2019, Colony was no longer a UNIX Admin since he became a Scrum Product Owner; (2) after fall 2019, Kumar was no longer a DBA since he became a Data Architect. (D-SSF No. 31 [not disputed for fact Kumar was promoted to Data Architect in 2019]; D-SSF No. 38 [not disputed that Colony was promoted to Scrum Product Owner in 2019].)
As for the comparators’ earnings, for purposes of being valid comparators to Plaintiff for certain years, Defendant submitted the following evidence: (1) Dizon earned less than Hua in 2016; (2) Chen earned less than or equal to Plaintiff’s earnings for 2016, 2017, and 2019 [making 2019 Chen’s only comparator year]. (USSF No. 20 [Plaintiff’s annual compensation amounts]; USSF No. 50 [Dizon’s annual compensation amounts]; USSF No. 57 [Chen’s annual compensation amounts].) Defendant asserts that based on the above evidence, Plaintiff’s gender comparators are as follows: (1) for 2016, Colony only; (2) for 2017 and 2018, Colony, Dizon, Kumar, and Moseyev; (3) for 2019, Colony [until May 2019], Dizon, and Chen; and (4) for 2020, Dizon only. (Motion, pg. 15.)
Defendant asserts DBAs (such as Plaintiff) and UNIX Admins (such as Chen, Colony, and Dizon) are not proper comparators. (Motion, pgs. 16-17.) The Court notes this section of Defendant’s motion is redacted and included in the Court’s sealing order. While the Court will not refer to confidential information it deems properly under seal, it will refer to general arguments, the SSF Numbers cited by Defendant, and other matters it finds are discussed elsewhere in the pleadings and evidence and properly discussed here, even if redacted in the motion in this instance. Defendant submitted evidence that Plaintiff was never a UNIX Admin, and that UNIX Admins have different responsibilities from DBAs. (Motion, pg. 16, citing SSFs Nos. 1, 4, 5.) Specifically, Defendant submitted evidence Plaintiff was hired as a DBA in the IT Department, that this is the only position she ever held at Defendant, that she never applied for a promotion, and that she did not ever hold the position titled “Senior DBA.” ([D-SSF No. 1] M-COE, Exh. 1: Plaintiff Depo 112:7-113:5 [testimony that Plaintiff’s hiring letter shows her as a DBA and that she did not ever apply for any other positions within Defendant]; Exh. 14 [offer letter]; Exh. 13: Plaintiff Depo 81:3-82:4, 83:8-84:22, 85:10-86:12, 87:8-21 [testimony that Plaintiff was hired as a DBA not a Senior DBA, notwithstanding her initially claiming she was hired as a senior DBA, and she did not recall ever being promoted]; Exh. 38: Moseyev Depo 97:8-25 [did not know whether he was a Senior DBA], 136:12-22 [redacted not included in Defendant’s sealing request; however, an unredacted version was conditionally lodged, and the Court includes it in its ruling on the sealing request; testimony describing his role.] (See M-COE PDF pg. 490)].)
Defendant submitted evidence that DBAs and Unix Admins both work in IT; however, their responsibilities with respect to the operating systems and databases are different and Plaintiff testified to having never held a UNIX position at Defendant. ([D-SSF No. 4 (redacted, describes how UNIX Admins and DBAs both work in IT and the specific job duties of each position and notes Plaintiff testified she never held a UNIX position at Defenant)] Exh. 1: Plaintiff Depo 115:13-116:2 [redacted (comparing UNIX and DBA responsibilities)], 116:12-14 [redacted], 116:21-117:1 [testimony she never held a position in UNIX at Defendant], 122:20-123:7 [redacted]; Exh. 45: Dizon Depo 130:15-25 [testimony describing what Unix is, an operating system that runs on computer hardware]); Ex. E: Decl. of Quan ¶¶7, 34 [“When evaluating employees [for Career Path levels], we did not compare DBAs to UNIX Admins or vice versa, nor could we make such a comparison because it is a different skillset at issue”], 35-40 [redacted: discussion of differences between UNIX Admin and DBA positions], 41-42 [determination that DBAs and Unix Admin positions do not have similar duties, responsibilities or competencies and one cannot give one the responsibilities of the other and expect that person to competently perform]; Ex. G: Decl. of Colony ¶9 [redacted but not part of sealing request: summary of percentage of time spent by UNIX Admins on various tasks and their knowledge and responsibilities] ¶¶10-13 [describing that DBAs do not install or configure anything like UNIX Admins would]; Ex. J*: Decl. of Chen ¶7 [redacted but not part of sealing request: assertion that DBAs cannot perform the duties of a UNIX Admin and does not have the knowledge required of a UNIX Admin with a description of the differences], ¶¶8-10 [comparison of the types of knowledge of UNIX Admins and DBAs have while noting that while the two positions work together as a team, they are largely different because of their responsibilities and competencies: estimates a UNIX Admin spending 10% of time on tasks typically performed by a DBA and a DBA spending 5% of time on tasks typically performed by a UNIX Admin] (the Court notes SSF No. 4 incorrectly refers to the Declaration of Chen as Exhibit I; however, it is in fact Exhibit J]; Exh. B: Decl. of Twitchell ¶15 [redacted, not included in sealing request, summary of the supervisors of Plaintiff and her comparators during the relevant period and the individual to whom those supervisors reported to.].)
Defendant submitted evidence as to the core responsibilities and competencies for DBAs in the context of Defendant’s Career Path “leveling” criteria (i.e., determining a DBA’s level) and Plaintiff confirmed these responsibilities and competencies. ([D-SSF No. 5 (redacted, sets forth the core responsibilities and competencies for DBAs based on Defendant’s Career Path leveling criteria)] M-COE, Exh. B: Decl. of Twitchell ¶24 [redacted, not included in sealing request, description of the Calibration Committee’s responsibility with respect to setting Career Path levels and criteria for positions including the DBA and UNIX Admin positions], Exhs. 82 & 83 [redacted, Career Path leveling criteria for DBAs and UNIX Admins]; Exh. 38: Moseyev Depo 104:7-109:25 [redacted, not part of sealing request, testimony as to his responsibilities as a Senior DBA and the percentages of time performing different responsibilities]; Exh. 77: Plaintiff Depo 317:15-324:10 [redacted, testimony addressing the accuracy of the listed core responsibilities and competencies of a DBA]).
In further support of Defendant’s assertion that UNIX Admins are improper comparators, Defendant submitted evidence as to the percentage of time Chen, a UNIX Admin, estimated spending on certain UNIX Admin responsibilities. (USSF No. 53.) Defendant also submitted evidence that the fact Colony and Dizon were Senior UNIX Admins makes them improper comparators to Plaintiff. (Motion, pg. 16 (redacted) [D-SSF No. 38] (Colony was hired as a Senior Unix Admin) M-COE, Exh. B: Decl. of Twitchell ¶10 [chart summarizing start dates, end dates, and position titles of Plaintiff and her comparators]; Exh. G: Decl. of Colony ¶¶4, 7 [hired as Senior Unix Admin in 2005, currently product owner of Cloud and DevOps and leads Scrum team of five that supports 17 to 18 development teams] ¶¶5-6 [redacted, not part of sealing request, description of Colony’s position history and responsibilities]; Exh. 1: Plaintiff Depo 83:4-7 [testimony that Colony held the position of “Unix sys admin, sys administrator”] 108:8-12 [testimony in which Plaintiff refers to her peers as “all the infrastructure engineers” such as DBAs like Moseyev and Kumar, and also some of the UNIX Admins, like Colony and Dizon]; Exh. 13: Plaintiff Depo 15:1-3 [testimony that she does not recall reviewing the personnel file or employment application of Colony]; [D-SSF No. 45] (Dizon hired as senior Unix Admin) M-COE, Exh. B: Decl. of Twitchell ¶10 [summarized above]; Exh. 45: Dizon Depo 55:15-56:4 [partially redacted, not part of sealing request, public version has no page numbers, testimony that when he was hired his title was “senior Unix something” but that he did not know exactly and description of his responsibilities]; Exh. 1: Plaintiff Depo 108:8-12 [summarized above]; Exh. 13: Plaintiff Depo 15:10-15 [testimony that she does not recall reviewing the personnel file or employment application of Dizon], 80:6-8 [testimony she does not recall ever reviewing Dizon’s offer letter].) In comparison, Defendant submitted evidence Plaintiff did not manage others nor interface with other managers. ([D-SSF No. 17] M-COE, Exh. 1 Plaintiff Depo 28:3-5 [testimony that she does not supervise anyone in her role as DBA]; [D-SSF No. 60] M-COE, Exh. 13: Plaintiff Depo 73:13-15 [testimony that she never worked with any of the managers outside the IT Department].)
Defendant also argues that Plaintiff’s inability to estimate the amount of overlap in duties between UNIX Admins and DBAs demonstrates that she cannot establish that the two positions are substantially similar for the purpose of contending individuals who held UNIX Admin positions are proper comparators to DBAs. (Motion, pg. 17 [D-SSF No. 7] M-COE, Exh. 1: Plaintiff Depo 119:5-120:23 [several lines redacted; testimony that DBAs and Unix Admins do not have identical job duties but they overlap each other; however, Plaintiff could not testify as to how much and/or in what responsibilities the positions overlapped, as opposed to worked together].)
Finally, Defendant submitted evidence that Kumar and Moseyev acted as team leads and were both Senior DBAs, unlike Plaintiff who never held a senior title despite her years of service at Defendant. (Motion, pg. 17, [D-SSF No. 1] (evidence summarized above); [D-SSF No. 24 (Moseyev was hired as Senior DBA)] M-COE, Exh. B: Decl. of Twitchell ¶10 [chart of positions held by comparators]; [D-SSF No. 25 (redacted but sets forth Moseyev’s estimate of the percentage overlap of his tasks as a Senior DBA based on the task at issue)] M-COE, Exh. 38: Moseyev Depo: 89:1-4, 91:19-92:16, 92:22-93:15, 105:2-19, 107:2-11, 109:14-110:7, 117:6-118:3, 118:23-119:11, 120:8-121:6, 121:8-122:3, 122:19-123:23, 136:3-137:2, [(redacted) these excerpts include Moseyev’s discussion of percentage time he spent on certain Senior DBA duties and as a Senior DBA and a discussion of job duties he performed not included in the list including management level work] 103:9-19 [testimony of percentage of time he spent performing “deep dive analysis”], 154:17-156:11 [redacted, testimony that he served as the “technical lead” or contact person for a certain project], 157:22-158:10 [redacted, testimony of time spent training others], 171:22-172:4 [testimony that he had an informal discussion about moving into management] (as noted above, Moseyev’s deposition was not included in the Sealing Request); [D-SSF No. 31 (Kumar was a Senior DBA)] Exh. B: Decl. of Twitchell ¶10 [chart of positions held by comparators]; [D-SSF No. 32 (redacted) (Kumar’s estimate of the amount of time he spent on various projects as a Senior DBA] M-COE, Exh. H: Decl. of Kumar ¶¶3-6, 14-15 [redacted, not part of sealing request, summary of amount of time he spent on various responsibilities and that he indicated wanting more leadership roles]; [D-SSF No. 17 (summarized above)]; [D-SSF 18 (for her three-year aspirations Plaintiff specifically said she did not have aspirations of managing others and felt the stress of being responsible for other’s actions was not worth the added compensation)] Exh. 9 [Career Framework self-assessment responses); Exh. 1: Plaintiff Depo 206:18-207:19 [redacted, testimony describing her responses]; [D-SSF No. 27 (redacted, summarizes findings of the Compensation Committee as to the percentage match for Moseyev to his assigned Cohort C)].)
The testimony above relating to the percentage overlap of various responsibilities is relevant to the determination of whether the comparators are valid comparators because Defendant submitted evidence that annually, a team of HR compensation analysts coordinate with managers and department heads to review positions and categorize each into job families and then standardized levels within those families called “Cohorts.” ([D-SSF No. 10].) Defendant submitted evidence that each Cohort has a specified salary range for each position, and an employee performing a given position is placed into a specific Cohort based on whether that employee’s performance of the position has a 75% match with Cohort criteria. ([D-SSF Nos. 11-12].) Finally, Defendant submitted evidence that of Cohorts C, D, E, and F, employees with a “Senior” title designation or who lead or manage others are placed in Cohorts C and D. ([D-SSF No. 12].)
The evidence discussed above suggests Plaintiff’s suggested five comparators are not accurate comparators since three of them (Chen, Dizon and Colony) held a different position as UNIX Admin from Plaintiff and the remaining two of them (Kumar and Moseyev) were Senior DBAs.
Defendant met its burden on summary judgment, shifting the burden to Plaintiff to create a triable issue of material fact. As discussed below, Plaintiff did not meet her burden.
In opposition, Plaintiff argues there are triable issues with respect to Plaintiff being able to establish the essential elements of her EPA violation cause of action. Specifically, Plaintiff asserts a jury could find the comparators performed substantially similar work as Plaintiff for the purpose of qualifying as valid comparators. (Opposition, pg. 14.) Plaintiff submitted Moseyev’s testimony that Plaintiff performed the same type of job, the same scope, and that comparator DBAs (i.e., he and Kumar) had the same job functions. ([Plaintiff’s Additional Material Fact (“AMF”) No. 16] O-COE, Decl. of Freeze, Exh. 7: Moseyev Depo 25:19-26:3 [in response to question as to whether he and the other DBAs all “pretty much performed the same type of job,” testimony that he, Kumar, and Plaintiff “did the same scope… the same tasks, but in different volume[s]” since there were DBAs who were more preferable to do one thing and DBAs who were more preferable to do another thing]; 27:5-28:20 [summary of DBA duties and that “the three of us” (him, Kumar, and Plaintiff) all did the DBA job responsibilities in “specific proportions”]; 97:8-17 [testimony that based on the job and his understanding, he Plaintiff and Kumar were all senior DBAs but concedes he does not have personal knowledge].) In reply, Defendant asserts Plaintiff mischaracterized the evidence given Moseyev testified that the three DBAs performed different volumes of certain types of tasks and given Moseyev could not estimate the percentage of overlap in the work among the three DBAs, which is critical since a 75% overlap is required for employees to be placed in the same cohort, which determines base salary. (Reply-SSF No. 16.) Notably, Plaintiff’s evidence is based on how Moseyev perceived the work he performed relative to the work performed by Plaintiff and Kumar; however, even Moseyev testified he did not have personal knowledge as to whether he, Plaintiff, or Kumar held the title of Senior DBA and he could not testify as to the overlap of his and Plaintiff’s duties.
Plaintiff asserts the fact she took on additional job duties beyond the scope of her DBA role including leadership on the MemSQL and Splunk projects, becoming the “primary” DBA, and her data architect work from 2016 to 2020, demonstrates she established a prima facie case that she and her comparators performed substantially similar jobs for purposes of an EPA claim. (Opposition, pgs. 14-15, citing Katz v. School District of Clayton (8th Cir.1977) 557 F.2d 153, 156 (“Katz”); [AMF No. 12 (Hua did more “heavy lifting” with MemSQL than Kumar)] O-COE, Decl. of Freeze, Exh. 5: Dizon Depo 67:7-14 [testimony that in 2018 Plaintiff did more heavy lifting on MemSQL than Kumar had]; [AMF No. 13 (When Moseyev left in 2019, Plaintiff took on the “primary” DBA role)] O-COE, Decl. of Freeze, Exh. 5 Dizon Depo 67:7-14 [in response to question asking for 2018, estimate of how much time Plaintiff would have spent performing duties as a DBA, Dizon replied, “she took the primary role when [Moseyev] was no longer there.”]; [AMF No. 21 (description of Plaintiff’s data architect work in building MemSQL)].) However, Katz interprets how to determine whether two employees performing equal work under the federal EPA, which is not at issue in this action. Even assuming arguendo it were, Plaintiff did not submit evidence suggesting she and her comparators performed equal work under the federal EPA which requires a showing that, “it is necessary [for the two employees] to expend the same degree of skill, effort and responsibility in order to perform substantially equal duties which they do, in fact, routinely perform with the knowledge and acquiescence of the employer.” (Katz at 156.) Plaintiff’s contention that the fact she took on extra duties makes her comparators valid notwithstanding their different roles and responsibilities and/or the fact they held “senior” titles while she did not is unsupported.
Finally, Plaintiff asserts her JIRA tickets “clearly indicate” she performed either similar or more sophisticated work as Kumar, her male comparator. (Opposition, pg. 15, [AMF No. 23 (in 2018 Defendant started using a JIRA ticket system for operation-based teams which included DBAs and UNIX Admins and Plaintiff’s JIRA tickets demonstrate more complex tasks than Kumar’s tickets)] Decl. of Freeze, Exh. 5: Dizon Depo 82:5-16 [Defendant’s implementation of JIRA as a system for work orders to be assigned to IT department individuals], 83:15-24 [testimony it began being used in 2019], 84:7-12 [testimony that UNIX Admins were instructed to use the system]; Decl. of Plaintiff ¶24 [Objection No. 66], Exh. 7 [JIRA tickets, under seal]; Decl. of Freeze, Exh. 25: Kumar Depo 78:11-18 [authenticating JIRA tickets]; 79:23-25 [testimony that he spent 50% to 60% of time per day working on JIRA tasks]; 80:14-18 [the tickets reflect tasks for Defendant’s databases], Exh. 30 [Kumar’s tickets]; [AMF Nos. 25-26 (a comparison of the JIRA tickets demonstrates Plaintiff performed more sophisticated work than Kumar and Plaintiff worked on the Splunk platform, which Kumar did not work on)].) However, Plaintiff did not submit competent, admissible evidence supporting her assertion that the JIRA ticket tasks are reflective of all the work actually performed by Plaintiff as compared to Kumar, as opposed to the work they performed in responding to JIRA ticket orders especially considering Kumar was a Senior DBA, a fact Plaintiff has not submitted competent evidence disputing. Similarly, Plaintiff has not submitted competent evidence that her job duties overlapped with Kumar’s by at least 75%. Plaintiff’s conclusory assertion she performed more sophisticated work than Kumar is unsupported.
Plaintiff argues UNIX Admins are proper comparators because she estimates she performed between 30% and 100% Unix tasks depending on the database and that this experience is consistent with Moseyev who estimated a 50% overlap between UNIX and DBAs. (Opposition, pg. 15.) However, Plaintiff does not cite to evidence in support of this assertion and the Court is unable to locate what this purported 30% to 100% range is based on, especially given that Plaintiff testified she did not know the percentage overlap of job duties of UNIX Admins and DBAs as opposed to how much of Unix a DBA needs to understand to do a certain type of DBA job (See O-COE, Decl. of Freeze, Exh. 2: Plaintiff Depo 119:18-120:23 [testimony first describing the percentage of UNIX that needs to be understood for certain positions but on clarification, she is unable to testify as to the percentage of overlap in job duties between UNIX Admin positions and DBA positions].)
Plaintiff challenges SSF No. 1 based on an assertion that Defendant characterized Plaintiff as a “Senior Professional – Database Administration”; however, this dispute is not material submitted, given Defendant’s evidence demonstrates the “Senior Professional” label applies to the Cohort level, in Plaintiff’s case, Cohort E – Senior Profession, and not the job title designation. ([R-SSF No. 1] O-COE, Exh. A [Decl. of Freeze], Exh. 1 [in the column titled “Market Comp – Cohort” Plaintiff is listed as “Senior Professional – Database, Administration/Design”]; Exh. 5, Dizon Depo 67:7-14 [testimony that Plaintiff took the DBA “primary role” when Moseyev was not there, no testimony as to whether her title was Senior DBA]; Reply-SSF No. 1.) Plaintiff does not submit testimony creating a triable issue of fact as to whether she at any time held the position title of “Senior DBA.”
Plaintiff disputes SSF No. 4, with evidence that she performed numerous UNIX job duties such as Linux duties. ([R-SSF No. 4] O-COE, Decl. of Freeze, Exh. 2: Plaintiff Depo: 121:24-122:19 [testimony that she performed duties on Linux for the Oracle installation].) However, Plaintiff’s submitted evidence does not actually create a material dispute of fact with respect to whether the job duties of UNIX Admins and DBAs differ and whether she ever worked as a UNIX Admin. The cited evidence does not create a dispute of fact as to whether was improperly classified into Cohort C and/or whether she was a 75 match for Cohort D.
Plaintiff’s dispute with SSF No. 5 is not material. SSF No. 5 sets forth core responsibilities and competencies for DBAs in the context of Defendant’s Career Path “leveling” criteria, not for purposes of compensation determination, which is the basis for Plaintiff’s dispute. ([R-SSF No. 5].) Similarly, Plaintiff’s dispute with SSF No. 38 fails to submit evidence creating a triable issue of fact. Plaintiff contends Colony’s deposition testimony that he was hired as a UNIX Systems Administrator, and failure to include the term “senior” demonstrates he was not hired as a Senior UNIX Admin. (R-SSF No. 38.) However, Colony specifically stated in his declaration he was hired as a Senior UNIX Admin and his deposition testimony does not contradict this. ([M-COE, Exh. G, Decl. of Colony ¶4.) Plaintiff disputes SSF No. 45 based on an assertion that Dizon was hired as a UNIX System Administrator, not a Senior Unix Administrator; however, Dizon’s deposition testimony confirms that he was hired as a “senior unix something” and that his responsibilities never steered to far from “unix system administration.” (R-SSF No. 45; Reply-SSF No. 45 [O-COE, Decl. of Freeze, Exh. 5: Dizon Depo 55:15-24].)
Plaintiff disputes SSF No. 17, which contends Plaintiff did not supervise anyone at Defendant based on her own deposition testimony, based on Plaintiff’s alleged supervision of Defendant’s remote vendors from 2017 to 2020. ([R-SSF No. 17] O-COE, Exh. 5: Dizon Depo 103:4-20 [testimony that Plaintiff directed the off-shore team and communicated with them to tell them what to do]; Exh. 2: Plaintiff Depo 28:6-17 [testimony that Plaintiff was responsible for telling offshore consulting what to do an what needed to get done and that she never said she told people at Defendant she didn’t want to supervise anyone at the company].) However, Plaintiff’s work with offshore consultants is not material and fails to refute evidence that she did not supervise anyone at Defendant as a DBA.
As to evidence relating to comparators Defendant contends held senior positions while Plaintiff did not hold a senior position, Plaintiff disputes the assertion that Moseyev was hired as a Senior DBA set forth in SSF No. 24 based on Moseyev’s offer letter and Defendant’s Offer Approval Request which refer to the position as an “Oracle DBA.” (R-SSF No. 24.) However, letter does not create a material issue of fact as to whether Moseyev held a Senior DBA position.
Plaintiff disputes SSF No. 32, which sets forth Kumar’s estimates of the percentages of time he spent on various work as a Senior DBA including high-level proactive work and database tuning (at least 50%) and long-term development projects (approximately 30%) and the percentage of overlap between DBA and Senior DBA duties (60-70%) on multiple levels; however, Plaintiff’s disputes are not material and not supported by competent evidence. (R-SSF No. 32.) Notably, Plaintiff relies on Moseyev’s testimony to support her position that she and Kumar performed the same job functions without addressing the fact that Moseyev could not testify as to the percentage overlap in their duties and acknowledged that their duties differed.
Plaintiff disputes SSF No. 18, which provides that in her three-year aspirations for her self-assessment stated she did not wish to manage others based on her own testimony denying having ever told anyone at Defendant that she “[did not] want to supervise anyone at the company[.]” ([R-SSF No. 18] O-COE, Decl. of Freeze, Exh. 2: Plaintiff Depo: 28:19-24.) However, Plaintiff’s subsequent testimony does not create a triable issue of material fact as to the evidence submitted by Defendant in support of SSF No. 18, Plaintiff’s own responses to her own self-assessment in which she makes the at-issue statement. Regardless of Plaintiff’s belief as to what she told anyone at Defendant, the self-assessment indicates she at least indicated here that she did not wish to supervise anyone. As such Plaintiff has not submitted evidence creating a triable issue of material fact.
Finally, Plaintiff disputes SSF No. 27, which sets forth the basis for the compensation committee’s determination that Moseyev was a 75% match for Cohort C. Plaintiff disputes this fact based on an assertion that she performed the same job duties as Moseyev, as demonstrated in his deposition testimony. (R-SSF No. 27.) However, as discussed above, this testimony is conclusory and not supported given Moseyev was unable to actually describe how much the job duties overlapped. Moreover, whether Plaintiff contends she and Moseyev had the same job duties is not material to the fact itself—which sets forth the committee’s determination that Moseyev had a 75% match with cohort criteria for Cohort C. As such, Plaintiff has failed to submit evidence creating a triable issue of fact as to whether the comparators are valid for the purposes of an EPA violation claim given they either had distinctly different job responsibilities as UNIX Admins (Chen, Dizon, and Colony), or they were Senior DBAs, unlike Plaintiff who did not hold a senior position and did not supervise anyone at Defendant.
Based on the foregoing, Defendant’s motion summary judgment is granted. Alternatively, for appeal purposes, Defendant’s motion for summary adjudication of the 1st cause of action is granted.
Whether Defendant had a Legitimate Basis for any Gender-Based Pay Disparity and whether Plaintiff can Establish that Basis was Pretextual for Gender Discrimination
Defendant also asserts any pay differences are justified by a merit system or bona fide factors, and not based on the employee’s sex/gender. (Motion, pgs. 17-18.) Defendant argues Plaintiff cannot establish any evidence of pretext because there is no evidence tying any pay disparity to her sex/gender. (Motion, pg. 19; SSF Nos. 105-107 [same evidence relied on above in connection with no evidence of pretext for discrimination claims].)
In light of Plaintiff’s failure to reach her burden of submitting evidence to create a triable issue of fact as to whether she has any valid competitors for her EPA violation cause of action, the Court does not reach the issue of whether Defendant had a legitimate basis for any pay disparity and whether Plaintiff can establish pretext.
Failure to Prevent Discrimination and Retaliation in Violation of the FEHA (8th COA)
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.)
Defendant moves for summary adjudication on the 8th cause of action on the grounds Plaintiff cannot establish the underlying causes of action. Defendant also asserts it took steps to prevent and remedy discrimination and retaliation by establishing policies and promptly investigating complaints. (Motion, pg. 19.)
This cause of action is derivative of Plaintiff’s discrimination and retaliation causes of action. As discussed above, Defendant met their burden on summary adjudication of whether Plaintiff can establish Defendant engaged in discrimination or retaliation against her. Defendant submitted evidence suggesting Plaintiff was not subjected to discrimination or retaliation. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact. As discussed above, Plaintiff failed to meet her burden. Consequently, Plaintiff’s underlying causes of action fail and as such, this derivative claim cannot proceed.
Based on the foregoing, Defendant’s motion for summary judgment is granted; alternatively, for appeal purposes, Defendant’s motion for summary adjudication of the 8th cause of action is granted.
Failure to Pay Earned Wages – Labor Code §204 (9th COA)
Defendant argues Plaintiff cannot establish this cause of action because it is based on the underlying FEHA and/or EPA claims, which Plaintiff cannot establish. (Motion, pg. 19.) In opposition, Plaintiff does not dispute Defendant’s contention that her Labor Code §204 cause of action is derivative of her underlying FEHA and/or EPA claims. Notably, Plaintiff’s opposition does not even address the 9th cause of action. (See Opposition; Reply, pg. 14.)
Based on the foregoing, Defendant’s motion for Defendant’s motion for summary judgment is granted; alternatively, for appeal purposes, Defendant’s motion for summary adjudication of the 9th cause of action is granted.
Unlawful Prohibition on Discussing Wages (10th COA)
Defendant argues Plaintiff cannot establish this cause of action because Defendant has established policies explicitly allowing for employees to discuss their wages and working conditions, that Plaintiff and others admit to having discussed these topics without consequence, and that Plaintiff’s employment ended for other reasons relating to her violation of the Confidentiality Policy. (Motion, pg. 20.) In opposition, Plaintiff does not address the 10th cause of action.
Based on the foregoing, Defendant’s motion for Defendant’s motion for summary judgment is granted; alternatively, for appeal purposes, Defendant’s motion for summary adjudication of the 10th cause of action is granted.
Wrongful Termination in Violation of Public Policy & Violation of Business & Professions Code §17200 (11th & 12th COAs)
“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm. [Citation]” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)
Plaintiff’s wrongful termination cause of action is based on allegations that Defendant retaliated and discriminated against and terminated her in violation of public policy which is barred under the FEHA. (FAC ¶¶150-152.) Accordingly, this cause of action is derivative of Plaintiff’s discrimination and retaliation causes of action. In addition, Plaintiff’s unfair competition cause of action is based on allegations that Defendant’s discrimination and retaliation against Plaintiff by terminating her employment constitutes an unlawful, unfair, and fraudulent activity prohibited by Business & Professions Code §17200. (FAC ¶¶158-159.)
Defendant moves for summary adjudication on these causes of action for the overlapping reason that both causes of action are derivative of Plaintiff’s FEHA claims and, to the extent the Court grants summary adjudication of Plaintiff’s FEHA claims, Plaintiff cannot establish these causes of action.
In light of the Court’s ruling on the discrimination and retaliation causes of action, the wrongful termination in violation of public policy cause of action fails. (See Motion, pg. 20, citing Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 (1999); see Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904.) In addition, the unfair competition cause of action also fails. (Motion, pg. 20, citing McDonald v. Coldwell Banker (9th Cir. 2008) 543 F. 3d 498, 506.) In opposition, Plaintiff does not oppose Defendant’s arguments as to her wrongful termination and/or unfair competition causes of action and as such, does not oppose Defendant’s assertion that the causes of action are based on Defendant’s alleged underlying violations of the FEHA and/or the EPA. (See Opposition.)
Based on the foregoing, Defendant’s motion for Defendant’s motion for summary judgment is granted; alternatively, for appeal purposes, Defendant’s motion for summary adjudication of the 11th and 12th causes of action is granted.
Prayer for Punitive Damages
Defendant argues that the claim for punitive damages fails because Plaintiff cannot establish by clear and convincing evidence that an officer, director or managing agent of Defendant committed an act of oppression, fraud or malice, or that such a decision was confirmed by an officer, director or managing agent. (Motion, pg. 20.) However, in light of the Court’s ruling on the motion for summary judgment, the issue of whether Plaintiff can establish he is entitled to punitive damages is moot.
Based on the foregoing, Defendant’s motion for summary adjudication of the prayer for punitive damages is granted.
Conclusion
Defendant’s motion for summary judgment is granted. Defendant’s motion for summary adjudication is granted as to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th causes of action and as to the request for punitive damages.
Dated: August ____, 2022
Hon. Monica Bachner
Judge of the Superior Court