Judge: Monica Bachner, Case: 21STCV08204, Date: 2023-01-31 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: 21STCV08204    Hearing Date: January 31, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Western Asset Management Company, LLC’s motion for summary judgment is denied. 

Defendant’s motion in the alternative for summary adjudication is denied as to the 1st, 3^rd, , 5th, 7th, 8th, and 9th causes of action and Plaintiff’s prayer for punitive damages, and granted as to the 2nd, 4th, 6th causes of action.

Defendant Western Asset Management Company, LLC (“WAM”) (“Defendant”) moves for summary judgment against Plaintiff Katherine Bigelow (“Bigelow”) (“Plaintiff”) on her complaint (“Complaint”).  (Notice of Motion, pg. 1; C.C.P. 437c.)  In the alternative, Defendant moves for summary adjudication on the 1st (disability discrimination in violation of the Fair Employment & Housing Act (“FEHA”), Gov. Code §12940(a)) [Issue 1], 2nd (failure to accommodate in violation of FEHA, Gov. Code §12940(m)(1)) [Issue 2], 3rd (retaliation for a request to accommodate in violation of FEHA, Gov. Code §12940(m)(2)) [Issue 3], 4th (retaliation for interference with CFRA leave, Gov. Code §12945.2) [Issue 4], 5th (retaliation for opposing practices made unlawful under CFRA, Gov. Code §12945.2) [Issue 5], 6th (race discrimination in violation of FEHA, Gov. Code §12940(a)) [Issue 6], 7th (retaliation for opposing an unlawful employment practice, in violation of Gov. Code §12940(h)) [Issue 7], 8th (failure to prevent discrimination in violation of FEHA, Gov. Code §12940(k)) [Issue 8], and 9th (wrongful termination in violation of public policy) [Issue 9] causes of action, and on Plaintiff’s prayer for punitive damages [Issue 10].  (Notice of Motion, pgs. 1-2; C.C.P. §437c.)

Evidentiary Objections

Plaintiff’s 1/3/2023 evidentiary objections to the Declaration of Greg Twitchell (“Twitchell”) are overruled as to Nos. 1, 2, 3, 4, 5, and 6.

Plaintiff’s 1/3/2023 evidentiary objections to the Declaration of Regina Johnson (“Johnson”) are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13.

Defendant’s 1/12/2023 evidentiary objections to the Declaration of Allison Pierce (“Pierce”) are overruled as to Nos. 1, 2, 4 (except to “as it seemed to me . . .”), 5, and 6 and sustained as to Nos. 3 and 7.

Defendant’s 1/12/2023 evidentiary objections to the Declaration of Hellen Campbell (“Campbell”) are overruled as to No. 8 and sustain as to No. 9.

Defendant’s 1/12/2023 evidentiary objections to the Declaration of Michael H. Boyamian (“Boyamian”) are overruled as to Nos. 10, 12, 14, 15, 17, 18, and 19, and sustained as to Nos. 11, 13, 16, 20, and 21.

Defendant’s 1/12/2023 evidentiary objection to the Deposition of Katherine Bigelow (Decl. of Karp ¶4, Exh. 3) is overruled as to No. 22.

Defendant’s 1/12/2023 evidentiary objection to “Katherine Bigelow Investigation Report” (Decl. of Karp ¶4, Exh. 26) is overruled as to No. 23.

Defendant’s 1/12/2023 evidentiary objection to “Seeking help” (Decl. of Karp ¶33, Exh. 32) is overruled as to No. 24.

Defendant’s 1/12/2023 evidentiary objection to “FW: Addendum” (Decl. of Karp ¶34, Exh. 33) is overruled as to No. 25.

Defendant’s 1/18/2023 evidentiary objection to the Supplemental Declaration of Britt L. Karp and attached Exhibit 40 is sustained.

Request for Judicial Notice

Plaintiff’s 1/3/2023 request for judicial notice of the Complaint filed in Sharon Cole v. Western Asset Management Company, LLC et al., Case No. 20STCV02207 (“P-RJN Exh. A”); the Complaint filed in Brenda Castillo v. Western Asset Management Company, LLC et al., Case No. 19GDCV01557 (“P-RJN Exh. B”); the Complaint filed in Jason Dizon v. Western Asset Management Company, LLC et al., Case No. 20STCV19290 (“P-RJN Exh. D”); the Complaint filed in Hua v. Western Asset Management Company, LLC et al., Case No.19STCV31305 (“P-RJN Exh. E”); the Declaration of Plaintiff Jennifer Hua filed in Hua v. Western Asset Management Company, LLC et al., Case No.19STCV31305 matter in connection with Plaintiff Hua’s Opposition to Defendant Western Asset Management Company’s Motion for Summary Judgment (“P-RJN Exh. F”); the Declaration of Tamara Freeze filed in Hua v. Western Asset Management Company, LLC et al., Case No.19STCV31305 matter in connection with Plaintiff Hua’s Opposition to Defendant Western Asset Management Company’s Motion for Summary Judgment (“P-RJN Exh. G”) is granted.

Procedural Background

On August 9, 2019, Plaintiff filed her employment discrimination Complaint in the instant action against Defendant alleging causes of action for (1) disability discrimination in violation of FEHA, Gov. Code §12940(a); (2) failure to accommodate in violation of FEHA, Gov. Code §12940(m)(1); (3) retaliation in violation of FEHA, Gov. Code §12940(m)(2); (4) retaliation for interference with CFRA leave, Gov. Code §12945.2; (5) retaliation for opposing practices made unlawful under CFRA, Gov. Code §12945.2; (6) race discrimination in violation of FEHA, Gov. Code §12940(a); (7) retaliation for opposing an unlawful employment practice, in violation of Gov. Code §12940(h); (8) failure to prevent discrimination in violation of FEHA, Gov. Code §12940(k); and (9) wrongful termination in violation of public policy, based Defendant’s alleged termination of Plaintiff’s employment on January 4, 2019.  (See Complaint.)  On March 25, 2022, Defendant filed the instant motion for summary judgment, or alternatively summary adjudication of issues.  (Notice of Motion, pgs. 1-2.)  Plaintiff filed her opposition on January 3, 2023.  Defendant filed its reply on January 12, 2023.

Summary of Allegations

Plaintiff alleges she is an African American woman who was employed by Defendant from November 17, 2014, until January 4, 2019, when she was terminated.  (Complaint ¶2.)  Plaintiff alleges during her tenure she received two promotions and Defendant indicated Plaintiff was exceeding expectations and was on track to receive a further promotion by the end of 2018.  (Complaint ¶3.)  Plaintiff alleges in November 2018, when she was on an approved, protected medical leave, Defendant reassigned Plaintiff to a different division and superior, demoted her, and stripped her of her previous job duties and gave them to lesser experienced Caucasian employees.  (Complaint ¶3.)  Plaintiff alleges that when she returned to work from medical leave, her new supervisor assigned her to inferior tasks and subjected her to unwarranted reprimands and threats of termination and violence.  (Complaint ¶3.)  Plaintiff alleges she complained to Defendant’s Chief Operating Officer (“COO”) about the hostile work environment and discriminatory treatment on or about December 6, 2018, and again on December 7, 2018.  (Complaint ¶4.)  Plaintiff alleges because of her complaints Defendant immediately suspended her from work.  (Complaint ¶4.)  Plaintiff alleges on January 4, 2019, after Plaintiff expressed her desire to work with different supervisors, Defendant terminated her employment.  (Complaint ¶4.)

Disability Discrimination in Violation of FEHA, Gov. Code §12940(a) (1st COA) [Issue 1]

A cause of action for discrimination based on disability requires a showing of the following elements: (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; (3) plaintiff was subjected to defendant’s adverse employment decision; and (4) the adverse employment decision was because of plaintiff’s actual or perceived disability or medical condition.  (Faust v. California Portland Cement Co.  (2007) 150 Cal.App.4th 864, 886.)

Under the McDonnell Douglas process for allocating burdens of proof and producing evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination.  (Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 234, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354; McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.)  The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action.  (Moore, 248 Cal.App.4th at pg. 235, citing Guz, 24 Cal.4th at pgs. 355-356.)  At that point, the burden shifts back to the employee to show that the employer’s stated reason was in fact a pretext for a discriminatory act.  (Id., citing Guz, 24 Cal.4th at pg. 356.)

Defendant argues summary adjudication of this cause of action is warranted because Plaintiff cannot establish a prima facie case for disability discrimination.  (Motion, pgs. 15-16.)  Defendant argues (1) Plaintiff cannot establish an adverse employment action other than the change in her job and her separation, and (2) Plaintiff cannot establish some other circumstance suggesting discriminatory motive based on her disability of anxiety/depression.  (Motion, pgs. 15-16.)

1. Prima Facie Case of Disability Discrimination

    

In order to make out a prima facie case of disability discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) suffered from a disability or was perceived as suffering from a disability, (2) could perform the essential duties of the job with or without accommodation, and (3) was subjected to an adverse employment action because of disability or perceived disability.   (Moore, 248 Cal.App.4th at 234-235.)

Under FEHA, an adverse employment action is one which “materially affect[s] the terms, conditions, or privileges of employment.”  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1052.)  The “materiality” test of adverse employment action explained in Yanowitz looks to “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace.”   (Yanowitz, 36 Cal.4th at pg. 1054.)  “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.”   (Id. at pg. 1055.)

          Plaintiff argues she was subjected to multiple adverse employment actions.  Plaintiff argues she was subjected to an adverse employment action when her job was eliminated and her most important job duties were reassigned.  (See Patten v. Grant Joint Union High School District (2005) 134 Cal.App.4th 1378, 1388-1391 [holding a lateral transfer which affected job performance and opportunity for advancement was an adverse action], disapproved of on other grounds by Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703.)  Plaintiff argues her negative and unwarranted performance review was also an adverse employment action.   (See Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 [finding negative job reviews, reductions in staff, and ignoring health concerns to collectively constitute an adverse action]).  Plaintiff argues being put on administrative leave is an adverse employment action.  (See Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 366-367 [finding paid administrative leave to be adverse action where the plaintiff did not request it and where plaintiff terminated upon return from leave].)  Plaintiff argues a causal link in a prima facie case for disability discrimination can be established based on short proximity between the protected action and adverse employment action.  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615 [finding causal link for prima facie case may be established based on short proximity between protected action and adverse employment action])

          Defendant argues Plaintiff’s adverse employment actions are limited to Plaintiff’s lateral job change and Plaintiff’s job separation.[1]  Defendant argues Plaintiff’s mid-year check-in does not constitute an adverse employment action.  (Lyons v. England (9th Cir. 2002) 309 F.3d 1092, 1118 [determining “mediocre” performance evaluations, without more, do not rise to the level of an adverse action].)  Lyons is inapposite because, under the materiality test in Yanowitz, the Court must look to “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally,” and as such, Plaintiff’s negative job review is not the only adverse action she alleges against Defendant.  (Yanowitz, 36 Cal.4th at pg. 1054.)  Defendant argues Whitehall is inapposite to demonstrate Plaintiff’s administrative leave pending an investigation was an adverse employment action because the employee in Whitehall was placed on administrative leave pending an investigation into her own conduct, while here, Plaintiff’s paid administrative leave was intended to benefit Plaintiff while Defendant investigated Plaintiff’s complaint.  (Whitehall, 17 Cal.App.5th at pg. 367.)  The Court is not convinced by Defendant’s argument to distinguish Whitehall under the Yanowitz materiality test, because like the plaintiff in Whitehall, here, Plaintiff did not request an administrative leave and her employment ended immediately upon return from leave.  (Id.)

Plaintiff argues she can demonstrate a prima facie case of disability discrimination under the McDonnell Douglas burden-shifting framework.  There is no issue as to Plaintiff’s disability:  Defendant concedes in its motion that Plaintiff had a disability of anxiety/depression (a protected class).  (Motion, pg. 15.)  Plaintiff also submitted evidence that her disability predated her employment by Defendant and Defendant also perceived Plaintiff as being disabled.  (Plaintiff’s Undisputed Additional Material Facts [“P-UAMF”] 33-35; P-COE Exh. 1 at 62:4-15, Exh. 23 at BIGELOW000222-223, Exh. 37 at WA0000628, Exh. 38 at BIGELOW000201.)  It is also undisputed that Plaintiff could perform the essential functions of her job without accommodation.  Here, Plaintiff submitted evidence that she was subjected to multiple adverse employment actions, including having her job eliminated and most important job duties reassigned, being subjected to a bad an unwarranted performance review, being put on administrative leave, and being terminated.  (P-UAMF 39, 50, 58, 76, 77, 101, 104; P-COE Exh. 1 at 49:1-9, 50:2-9; Exh. 2 at 215:11-20, 228:1-5, 353:7-23, 364:11-365:11; Exh. 3 at 428:15-429:13; Exh. 18; Exh. 20 ¶9; Exh. 26 at WA000853-855, WA000869, WA000871; Exh. 28; Exh. 33 at WA0000658; Exh. 39.)  Plaintiff submitted evidence that her termination occurred close in time after she disclosed her disability to Defendant and her need for leave.  (PAMF 33, 39; P-COE Exh. 1 at 49:1-9, 50:2-9, 62:4-15; Exh. 23 at 000222-223, Exh. 26 at WA000869; Exh. 28.)  Plaintiff met her burden to establish a prima facie case of disability discrimination under McDonnell Douglas, shifting the burden to Defendant to produce evidence of a nondiscriminatory reason for the adverse employment action.

1. Non-discriminatory Reason for Adverse Employment Action

    

To prove a prima facie case, Plaintiff also must present admissible evidence suggesting discriminatory motive.  (Guz, 24 Cal.4th at pg. 355.)  A company restructuring may be a legitimate reason for a change in job title or duties.  (See, e.g., Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 799-800 [no discrimination where restructuring resulted in plaintiff’s position being restructured to include new responsibilities, which also resulted in plaintiff’s termination due lack of qualifications for new responsibilities]; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1098 [finding corporate restructuring to be legitimate, nondiscriminatory business reason for termination], as modified (Jan. 20, 2006).)  However, as the Kelly court stated:  “[D]ownsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of [a protected] worker. An employer’s freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may ‘use the occasion as a convenient opportunity to get rid of [protected] workers.’ [Citations.]  Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release.”  (Kelly, 135 Cal.App.4th at pg. 1098, emphasis original, quoting Guz, 24 Cal.4th at pg. 358.)

Defendant submitted evidence of a nondiscriminatory reason for laying off Plaintiff.  Specifically, Defendant submitted evidence that Defendant submitted evidence that Plaintiff’s transfer from HR Associate to HR Operations Associate was part of a department-wide restructuring.  (D-USSF 24; Exh. 1 at 49:1-50:14, 50:20-51:5; Exh. 22 at 489:1-9; Exh. 28 at 131:11-132:18, 136:24-137:7; Exh. 32 at 30:13-15, 46:14-47:22, 54:21-55:2, 58:2-16, 103:8-21) (Defendant’s Disputed Separate Statement of Fact [“D-DSSF”] 19, 25-27; Exh. 12 at 215:21-216:4, 219:17-220:3, 272:2-17, 291:12-15, 341:20-342:3, 365:12-16, 374:17-21; Exh. 22 at 485:15-22; Exh. 32 at 29:16-23, 70:4-71:16, 115:2-8; Exh. C ¶¶9, 11.)  Defendant submitted evidence that Plaintiff was not the only employee whose job title and duties were changed as a result of the HR department restructuring; six employees in total had their roles transferred into the HR Operations group and three employees had their roles consolidated into the HR Operations Associate role.  (D-USSF 23; Exh. 12 at 254:23-255:12, 291:16-292:21, 292:18-21; Exh. 22 at 466:3-8, 482:21-25, 502:2-503:3; Exh. 32 at 18:16-19:2, 43:17-21; Exh. C ¶6) (D-DSSF 61; Exh. 22 at 448:3-452:8.)  Defendant submitted evidence that it restructured its HR department to provide a “one-stop-shop” for HR services by consolidating its support staff into the HR Operations group.  (D-DSSF 15; Exh. C ¶6.)  Defendant met its burden to establish a nondiscriminatory reason for terminating Plaintiff, shifting the burden back to Plaintiff to show that the employer’s stated reason was in fact a pretext for a discriminatory act.

1. Pretext for Disability Discrimination

Plaintiff has the opportunity “to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.”  (Moore v. Regents of University of California (2016) 24 Cal.App.4th 216, 235.)  Plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but a pretext for discrimination.  (McDonnell Douglas, 411 U.S. at pg. 802.)

Plaintiff submitted evidence that Defendant’s proffered reasons for her termination are pretexts for discrimination.  Specifically, Plaintiff submitted evidence that she had key job duties taken from her and was given the least desirable assignments following the reorganization based on perceived limitations caused by her disability and leave.  (P-UAMF 63; P-COE Exh. 20 ¶5) (Plaintiff’s Disputed Additional Material Facts [“P-DAMF”] 64; P-COE Exh. 20 ¶¶5, 6.)  Plaintiff submitted evidence that she was assigned an unusual, onerous task, and her supervisor, Howard Kim (“Kim”), informed her that the task made him want to “blow his brains out.”  (P-UAMF 68; P-COE Exh. 2 at 362:17-363:14; Exh. 3 at 583:5-14; Exh. 28.)  Plaintiff submitted evidence that she would no longer be in charge of leading monthly departmental meetings, investigating employee relations cases, or administering disciplinary policies—some of the very tasks she was told she needed to perform to become an HR Generalist and which her performance review indicated she would be working more on in the coming year.  (P-UAMF 59; P-COE Exh. 1 at 46:16-23, 47:19-48:10; Exh. 2 at 332:2-11, 364:12-365:2; Exh. 19; Exh. 26 at WA000853-855; Exh. 32 at WA0000652, 654-656.)  Plaintiff submitted evidence that following her leave she was given a performance review that included unwarranted criticism that claimed Plaintiff had not contacted a vendor, and despite Plaintiff providing emails to show the claim was false, her performance evaluation was not corrected.  (P-UAMF 77; P-COE Exh. 2 at 228:1-5, 364:12-365:11; Exh. 33.)  Plaintiff has met her burden on summary adjudication to demonstrate a triable issue of material fact as to whether Defendant’s proffered reasons for her layoff were pretexts for discrimination.

Based on the foregoing, Defendant’s motion for summary adjudication as to the first cause of action for disability discrimination is denied.  Accordingly, Defendant’s motion for summary judgment is also denied. 

Failure to Accommodate in Violation of FEHA, Gov. Code §12940(m)(1) (2nd COA) [Issue 2]

The elements of a cause of action for failure to accommodate are: (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of a sought reassigned job with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate.  (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193 [reasonable accommodations include job restructuring, modified work schedules, reassignments, providing readers or interpreters, and paid or unpaid leave].)  “Vague or conclusory statements revealing an unspecified capacity
are not sufficient to put an employer on notice of its obligations under the [FEHA].”   (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248

Defendant argues Plaintiff’s claim fails as to the third element because Plaintiff was provided every accommodation she sought and returned from her final leave without restrictions.  (Motion, pg. 10.)

Defendant submitted evidence that it accommodated all of Plaintiff’s requests for accommodation.  Specifically, Defendant submitted evidence that Plaintiff admitted that a leave was the only accommodation she ever needed, that Defendant granted all of her requests for leave, and no one ever tried to prevent Plaintiff from taking a leave.  (D-DSSF 35, 73; D-COE Exh. 1 at 53:9-58:4, 80:2-4, 80:11-13, 80:14-16, 165:7-17; Exh. 12 at 368:4-24; Exh. 22 at 581:21-24.)  Defendant submitted evidence that Plaintiff never made a request for an accommodation for a new supervisor as a reasonable accommodation for her disability.  (D-DSSF 35; D-COE Exh. 12 at 368:4-24.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to demonstrate a triable issue of material fact as to whether Defendant failed to reasonably accommodate her.

Plaintiff failed to submit evidence that Defendant failed to accommodate Plaintiff’s request to be allowed to work under a different supervisor.  Specifically, Plaintiff submitted evidence that she expressed she did not want to work with Kim to avoid unnecessarily stressful work situations due to her mental health condition, and that working under a different supervisor was a reasonable request because in the initial plans for reorganization, Plaintiff was not assigned to directly report to Kim.  (P-UAMF 96, 98; P-COE Exh. 2 at 258:15-259:6, 260:25-261:9, 338:22-339:4, 367:13-22; Exh. 26 at WA000869, WA000823) (Plaintiff’s Disputed Additional Material Facts [“P-DAMF”] 97; Exh. 2 at 258:15-259:6, 260:25-261:9, 338:22-339:4, 367:13-22, 368:4-24; Exh. 26 at WA0000853-855; Exh. 32 at WA0000654, 656.)  However, Plaintiff admitted in her deposition that she never requested the accommodation on January 3, 2019, to be assigned to a different supervisor.  Thus, Plaintiff failed to meet her burden on summary adjudication.

Accordingly, Defendant’s motion for summary adjudication as to the 2nd cause of action is granted.

Retaliation for Requesting an Accommodation in Violation of FEHA, Gov. Code §12940(m)(2) (3rd COA) [Issue 3]

“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.”  (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879, brackets omitted.)  “An ‘adverse employment action,’ which is a critical component of a retaliation claim, requires a substantial adverse change in the terms and conditions of the plaintiff’s employment.”  (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063, quotation marks omitted.)

1. Prima facie case for retaliation

    

Plaintiff submitted evidence that she can demonstrate a prima facie case for retaliation. Specifically, Plaintiff submitted evidence she engaged in protected activities, including taking a leave due to disability, and complaining in writing to the COO and General Counsel about discrimination and harassment to which she was subjected.  (P-UAMF 34, 79, 96; P-COE Exh. 2 at 367:13-22; Exh. 32; Exh. 37.)  Plaintiff submitted evidence that she was subjected to an adverse employment action, as discussed above.  Plaintiff also submitted evidence of a causal link between her protected activities and the adverse employment action based on the proximity of her leave and termination, as discussed above.  Accordingly, Plaintiff met her burden to demonstrate a prima facie case for retaliation.

1. Non-retaliatory reason for adverse employment action

Defendant submitted the same evidence of its non-retaliatory reason for the adverse employment actions as discussed in the first cause of action.  Defendant met its burden to demonstrate a non-retaliatory reason for adverse employment action.

1. Pretext for retaliation

Plaintiff submitted the same evidence of pretext for retaliation as in its first cause of action.  Plaintiff met her burden to establish a triable issue of material fact as to whether Defendant’s non-retaliatory reason for Plaintiff’s adverse employment action was pretext for retaliation.

Accordingly, Defendant’s motion for summary adjudication as to the 3rd cause of action is denied.

Interference with CFRA Leave, Gov. Code §12945.2 (4th COA) [Issue 4]

A CFRA interference claim “consists of the following elements: (1) the employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those rights.”  (Moore, 248 Cal.App.4th at pg. 250).  “Upon an employee’s timely return from CFRA leave, an employer must generally restore the employee to the same or a comparable position.”  (Gov. Code §12945.2(a); Cal. Code Regs., tit. 2, §7297.0 (f)(g).)  The failure to return an employee to an original or equivalent position establishes a prima facie case of the denial of the employee’s CFRA rights.  (James v. Dependency Legal Group (S.D. Cal. 2015) 253 F.Supp.3d 1077, 1103-04).  However, CFRA does not immunize employees from restructurings.  (Cal. Code Regs., tit. 2, §11089(d)(1); Rogers v. County v. Los Angeles (2011) 198 Cal.App.4th 480, 491 [reorganization of employee’s department constituted legitimate reason for precluding Plaintiff from asserting CFRA interference claim].)

Defendant argues it did not interfere with Plaintiff’s CFRA rights.  (Motion, pg. 10.)  Specifically, Defendant submitted evidence that it did not interfere with Plaintiff’s CFRA leave because it approved Plaintiff’s request for leave and Plaintiff took leave without incident.  (D-USSF 35; D-COE Exh. 1 at 165:7-17; Exh. 12 at 368:4-24.)  Defendant submitted evidence that none of Defendant’s employees made negative comments about Plaintiff’s leaves.  (D-DSSF 73; D-COE Exh. 1 at 80:2-4, 80:11-13, 80:14-16; Exh. 22 at 581:21-24.)  Defendant met its burden to demonstrate it did not interfere with Plaintiff’s CFRA rights, shifting the burden to Plaintiff to demonstrate a triable issue of material fact as to whether Defendant interfered with Plaintiff’s CFRA leave.

Plaintiff submitted evidence that after she took CFRA leave, she did not return to a position that was comparable because at least half of her job duties were taken away, Plaintiff was assigned to less desirable tasks, and Plaintiff was terminated from her employment.  (P-UAMF 50, 104; P-COE Exh. 2 at 215:11-20, 364:11-365:11; Exh. 20 ¶10) (P-DAMF 64; P-COE Exh. 20 ¶¶5-6.)  However, an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the CFRA leave period.  (Cal. Code Regs., tit. 2, §11089(d)(1); Rogers, 198 Cal.App.4th at pg. 491.)  Plaintiff would have moved into the HR Operations Associate role under Kim even if she never went on leave.  Therefore, Plaintiff’s CFRA interference claim fails.

Accordingly, Defendant’s motion for summary adjudication as to the 4th cause of action is granted.

Retaliation for Opposing Practices Made Unlawful Under CFRA, Gov. Code §12945.2 (5th COA) [Issue 5]

The elements of a cause of action for retaliation in violation of CFRA are: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take [leave] for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].  (Moore, 248 Cal.App.4th at 248, quoting Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 885.)  The McDonnell Douglas burden shifting analysis applies to retaliation claims under CFRA.  (Id., citing Faust, 150 Cal.App.4th at pg. 885.)

1. Prima facie case for retaliation

    

Plaintiff submitted evidence that she can demonstrate a prima facie case for retaliation. Specifically, Plaintiff submitted evidence she engaged in protected activities, including taking a leave due to disability, and complaining in writing to the COO and General Counsel about discrimination to which she was subjected.  (P-UAMF 34, 79, 96; P-COE Exh. 2 at 367:13-22; Exh. 32; Exh. 37.)  Plaintiff submitted evidence that she was subjected to an adverse employment action, as discussed above.  Plaintiff also submitted evidence of a causal link between her protected activities and the adverse employment action based on the proximity of her leave and termination, as discussed above.  Accordingly, Plaintiff met her burden to demonstrate a prima facie case for retaliation.

1. Non-retaliatory reason for adverse employment action

Defendant submitted the same evidence of its non-retaliatory reason for the adverse employment actions as discussed in the first cause of action.  Defendant met its burden to demonstrate a non-retaliatory reason for adverse employment action.

1. Pretext for retaliation

Plaintiff submitted the same evidence of pretext for retaliation as in its first cause of action.  Plaintiff met her burden to establish a triable issue of material fact as to whether Defendant’s non-retaliatory reason for Plaintiff’s adverse employment action was pretext for retaliation.

Accordingly, Defendant’s motion for summary adjudication as to the 5th cause of action is denied.

Race Discrimination in Violation of FEHA, Gov. Code §12940(a) (6th COA) [Issue 6]

To demonstrate a cause of action for disparate treatment, plaintiff must provide evidence that (1) she was a member of a protected class, (2) she was qualified for the position sought or was performing competently in the position held, (3) she suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.  (Guz, 24 Cal.4th at pg. 355.)  California courts follow the three-part McDonnell Douglas burden-shifting framework for discrimination claims under the FEHA.  (Id. at pg. 354.)

1. Prima facie case of race discrimination

Plaintiff argues that she can establish a prima facie case of race discrimination.  It is undisputed Plaintiff is an African American woman (a protected class).  It is further undisputed Plaintiff was performing competently in her job.  As established in the first cause of action, Plaintiff was subject to an adverse employment action. 

Plaintiff failed to evidence of Defendant’s discriminatory motive.  Specifically, Plaintiff submitted evidence that some of her most important job duties were reassigned to Caucasian women with less experience performing these duties, and she was also immediately put on paid leave and terminated after complaining about racial discrimination.  (P-UAMF 58, 60, 79; P-COE Exh. 3 at 428:15-429:13; Exh. 26 at WA000853-855; Exh. 32 at WA000654-656; Exh. 33 at WA000658.)  Plaintiff submitted evidence that another African American woman who worked in the same Pasadena office alleges she was subjected to racial discrimination when Defendant rescinded an offer of employment and instead hired less experienced, Caucasian employees for the positions.  (P-UAMF 114; Decl. of Boyamian, Exh. A.)  This evidence is insufficient to create a triable issue of material fact.

Accordingly, Defendant’s motion for summary adjudication as to the 6th cause of action is granted.

Retaliation for Opposing an Unlawful Employment Practice in Violation of FEHA, Gov. Code §12940(h) (7th COA) [Issue 7]

A cause of action for retaliation in violation of FEHA §12940(h) for opposing an unlawful employment action requires the following elements: (1) plaintiff engaged in protected activity; (2) defendant subjected plaintiff to an adverse employment action; (3) plaintiff’s protected activity was a substantial motivating reason for defendant’s decision to subject plaintiff to the adverse employment action; (4) plaintiff was harmed; and (5) defendant’s decision to subject plaintiff to the adverse employment action was a substantial factor in causing plaintiff’s harm.  (CACI 2505.)  A “substantial motivating reason” is a reason that actually contributed to the adverse employment action, and it must be more than a remote or trivial reason; it does not have to be the only reason motivating the adverse employment action.  (CACI 2507.)

Defendant fails to address Plaintiff’s 7th cause of action under Government Code §12940(h), and therefore concedes this issue on summary adjudication.

Assuming arguendo Defendant met its burden on the seventh cause of action, Plaintiff submitted evidence that she can demonstrate a cause of action for retaliation §12940(h). Specifically, Plaintiff submitted evidence she engaged in protected activities, including taking a leave due to disability, and complaining in writing to the COO and General Counsel about discrimination to which she was subjected.  (P-UAMF 34, 79, 96; P-COE Exh. 2 at 367:13-22; Exh. 32; Exh. 37.)  Plaintiff submitted evidence that she was subjected to an adverse employment action, as discussed above.  Plaintiff submitted evidence that her protected activities were a substantial motivating reason for defendant’s decision to subject plaintiff to the adverse employment action based on the proximity of her leave and termination, as discussed above.

Accordingly, Defendant’s motion for summary adjudication as to the 7th cause of action is denied.

Failure to Prevent Discrimination, Gov. Code §12940(k) (8th COA) [Issue 8]

A cause of action for failure to prevent discrimination includes the following elements: (1) actionable discrimination by employees or non-employees; (2) defendant’s legal duty of care toward plaintiff (defendant is plaintiff’s employer); (3) breach of duty (failure to take all reasonable steps necessary to prevent discrimination from occurring); (4) legal causation; and (5) damages to plaintiff.  (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289.)

Defendant argues Plaintiff’s claim fails because Defendant took all reasonable steps necessary to prevent discrimination and retaliation from occurring.  (Motion, pg. 19.)  Specifically, Defendant submitted evidence that Defendant is an Equal Opportunity Employer, and its handbook describes the procedures for employees to report complaints.  (D-DSSF 4; D-COE Exh. 1 at 175:21-176:9; Exh. 22 at 614:18-615:7; Exh. 32 at 20:24-21:15; Exh. B at ¶4.)  Defendant submitted evidence that whenever Plaintiff made a workplace complaint, Defendant investigated.  (D-DSSF 9; D-COE Exh. 1 at 80:17-20, 84:21-85:17, 86:14-87:7, 176:10-25; Exh. 22 at 379:19-380:5, 411:5-412:10, 413:22-422:13; Exh. C ¶5) (D-USSF 46; D-COE Exh. 12 at 266:21-267:10, 294:9-295:19, 297:7-15, 346:16-347:10; Exh. 22 at 528:17-529:1; Exh. C ¶14.)  Accordingly, Defendant met its burden to demonstrate it took all reasonable steps necessary to prevent harassment and retaliation from occurring, shifting the burden to Plaintiff to demonstrate a triable issue of material fact.

Plaintiff demonstrated a triable issue of material fact as to whether Defendant’s workplace policies are not compliant.  Specifically, Plaintiff submitted evidence of the letter addressed to HR Supervisor, Regina Johnson, and Defendant’s General Counsel, Charles Ruys de Perez, preceding the investigation conducted by Defendant before Plaintiff was placed on paid administrative leave.  (P-DSSF 4; P-COE Exh. 32.)  Plaintiff submitted evidence, which is undisputed, that during Defendant’s investigation, Defendant did not interview relevant witnesses Plaintiff identified, including Gloria Sanchez, Glen Gottlieb, and Jeff Emanuelli.  (P-UAMF 90, 92; P-COE Exh. 2 at 206:7-23; Exh. 3 at 481:12-482:15, 531:2-9; Exh. 26 at WA000853, 857.)  Plaintiff submitted evidence that Defendant’s decision not to interview Gloria Sanchez was important because she was another person of color who was stripped of her job duties as a result of the HR reorganization.  (P-UAMF 91; P-COE Exh. 2 at 336:1-337:9; Exh. 26 at WA000853.)  Accordingly, Plaintiff met her burden on summary adjudication to create a triable issue of material fact as to Issue 8.  Accordingly, Defendant’s motion for summary adjudication as to the 8th cause of action is denied.

Wrongful Termination in Violation of Public Policy (9th COA) [Issue 9]

“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.”  (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

Defendant argues Plaintiff’s cause of action for wrongful termination is derivative of her discrimination and retaliation claims and necessarily fails.  (Motion, pg. 20.)  Defendant failed to meet its burden on summary adjudication as to the 9th cause of action.

Based on the foregoing, Defendant’s motion for summary judgment is denied.

Punitive Damages [Issue 10]

The central question regarding punitive damages on a summary judgment motion is whether “no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.”  (Pacific Gas and Electric Co. v. Superior Court (2018) 24 Cal.App.5th 1150, 1159.)  “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights and safety of others.”  (Civ. Code §3294(c)(1).)   “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  (Civ. Code §3294(c)(2).)

“[W]rongful termination, without more, will not sustain a finding of malice or oppression.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717.) 

The defendant has the initial burden to demonstrate there are no triable issues of fact that a managing agent caused harm to Plaintiff.  (Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 369.)  Conclusory statements that an employee “never drafted corporate policy or had substantial discretionary authority over decisions that ultimately determine [the employer’s] corporate policy” are not not sufficient for a Defendant to make a a prima facie case.  (Id. at 369-370.)

          Defendant argues Plaintiff’s prayer for punitive damages should be dismissed because there is no clear and convincing evidence that the individuals involved in Plaintiff’s separation (or any other adverse action) acted with malice or oppression, and every action taken by Defendant was made in good faith.  (Motion, pg. 20.)  Defendant argues Plaintiff’s prayer for punitive damages fails because “[f]or corporate or other large organizations, [the malicious conduct of an employee] must have been performed by an ‘agent . . . employed in a managerial capacity and . . . acting in the scope of employment,’ or ratified or approved by a ‘managerial agent’ of the organization. [Citations.]”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 723; Civ. Code § 3294(b).)  “‘[M]anaging

agent’. . . include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’ [Citation.]”  (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164.)

          Adverse actions, including terminations, which are taken due to a medical condition or disability are sufficient to support an award of punitive damages.  (See McInteer v. Ashley Distribution Services, Ltd. (C.D. Cal. 2014) 40 F.Supp.3d 1269,

1295 [denying summary judgment on punitive damages where plaintiff’s disability discrimination claim survived summary judgment].)

          Defendant failed to make a prima facie case that there are no triable issues of fact that a managing agent caused harm to Plaintiff.  Specifically, Defendant submitted Regina Johnson’s own declaration with the conclusory statement that she did not harbor any personal ill-will or malice toward Plaintiff.  (D-DSSF 92; D-COE Exh. C ¶20; Exh. 1 at 80:8-13.)  Defendant also submitted evidence in the form of declarations with conclusory statements that Regina Johnson, Howard Kim, Kasey Adamchik, and Bridget Graham have never been Defendant’s managing agents, officers or directors, they were obligated to follow Defendant’s policies, not set them, they did not have responsibility for or authority to establish or change corporate policy for Defendant, nor did they have authority to set the direction of Defendant’s company-wide operations, business strategies, or otherwise direct the processes.  (D-DSSF 93; D-COE Exh. 28 at 29:1-36:9,  40:14-41:1; Exh. B ¶14; Exh. C ¶¶22-23.) 

          Assuming, arguendo, Defendant met its burden, Plaintiff submitted evidence demonstrating a triable issue of material fact as to whether Regina Johnson is a managing agent who caused harm to Plaintiff.  Specifically, Plaintiff submitted evidence that Johnson: (1) was the top supervisory position in the HR department for the company worldwide; (2) was involved in formulating policy for WAM and was one of the persons who needed to approve policy changes to the employee

handbook; (3) was the only person in HR with decision-making authority to terminate employees; (4) claims it was her decision to reorganize the company’s human resources department, which demonstrates she had substantial authority to direct WAM’s business operations; (5) had wide-ranging discretion on how to conduct investigations into discrimination and harassment complaints, as evidenced by the facts that: (a) it was her to decision to investigate

Plaintiff’s claims of harassment by Helm and to reassign Plaintiff away from Helm following the investigation; (b) there are no procedures, policies, or practices in place guiding how she would conduct discrimination and harassment investigations; and (c) it was her decision to place Plaintiff on paid administrative leave while her complaints were being investigated; and (6) made the decision to terminate Plaintiff’s employment.  (P-UAMF 105, 108, 109, 118; D-COE Exh. C ¶¶5-17; P-COE Exh. 10 at 37:14-39:7, 45:10-48:24, 73:2-75:4, 108:7-11; 124:18-

125:1[2].)  Accordingly, Defendant’s motion for summary adjudication as to Issue 10 is denied.

Dated:  January _____, 2023

Hon. Monica Bachner

Judge of the Superior Court