Judge Randolph M. Hammock, Case Number: 22STCV40515, Date: 2024-05-24 Tentative Ruling

Plaintiff Patrick Raymond worked as a welder for Defendant Matrix Service, Inc., beginning in 1995 until his termination in 2022. Plaintiff, who is African American, alleges he faced discrimination, retaliation, and harassment based on his race. Plaintiff asserts causes of action for (1) wrongful termination, (2) harassment, (3) discrimination, (4) retaliation, (5) failure to prevent harassment, discrimination, and retaliation, and (6) whistleblower retaliation.

The rules applicable to demurrers also apply to motions for judgment on the pleadings. (County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32.) The trial court must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-20.) “A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)

Defendants move for judgment on the pleadings of the second cause of action for harassment based on race. (Govt. Code § 12940.) Plaintiff asserts this cause of action against the employer and individual Defendants Sanchez, Romero, and Chavez. Defendants argue Plaintiff has failed to plead facts against each Defendant demonstrating that Defendants’ conduct was sufficiently “severe or pervasive.” Instead, Defendants suggest, the comments were nothing more isolated “name-calling.”

Plaintiff’s Harassment Allegations Against Sanchez.

Defendant Sanchez was one of Plaintiff’s “immediate supervisor[s].” (Compl. ¶ 13.) Plaintiff alleges that during a “work safety meeting” at a Phillips 66 gas refinery in December of 2019, Defendant Sanchez directed assignments for the job sight. (Id. ¶ 15.) In the presence of Plaintiff and around 27 other employees, Defendant Sanchez allegedly told another welder “You know what, take [Plaintiff], he’s Black. These people at 66 don’t want Black people working for them.” (Id.)

Defendant Romero was also Plaintiff’s supervisor. (Compl. ¶ 13.) Plaintiff alleges that in August of 2022, Defendant Romero “directed Plaintiff to work on top of a roof without a gas monitor,” which is “part of the required safety equipment in order to work on roofs.” (Id. ¶ 17.) The following week, while Plaintiff walked past Defendant Romero, some screws fell out of Plaintiff’s pocket. (Id. ¶ 18.) Romero allegedly “accused Plaintiff of stealing the screws, saying ‘You like to steal. No mudfish is gonna steal from me’.” (Id.) “Plaintiff reasonably understood this to be a reference to his skin color and a characterization he was part of an inferior race or class and therefore racial harassment.” (Id. ¶ 18.) [FN 1]

Plaintiff’s Harassment Allegations Against Chavez.

Defendant Chavez was Plaintiff’s coworker. Plaintiff alleges that Chavez walked past him on a job sight and remarked, “You’re so black, I can’t even see you there.” (Id. ¶ 20.)

To establish a FEHA claim for harassment, a plaintiff must show that “(1) [he] is a member of a protected class; (2) [he] was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with [his] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hosp. Assn. (2019) 37 Cal. App. 5th 549, 563.)

“Actionable harassment consists of more than “annoying or ‘merely offensive’ comments in the workplace,” and it cannot be “occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Harassment “must be assessed from the ‘perspective of a reasonable person belonging to [same protected class as] the plaintiff.’ ” (Cornell v. Berkeley Tennis Club, (2017) 18 Cal. App. 5th 908, 940.)

“Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing and conduct that a reasonable person in the plaintiff's position would find severely hostile or abusive.” (Serri v. Santa Clara Univ. (2014) 226 Cal. App. 4th 830, 870 [cleaned up].)

Here, Defendants Sanchez, Romero, and Chavez allegedly each made unprovoked racist statements directly to Plaintiff in the workplace. Although Plaintiff has only identified one comment from each Defendant, for pleadings purposes, this is sufficient to allege “severe” conduct creating a hostile work environment from both an objective and subjective standard. See, e.g., Govt. Code § 12923 (b) [“a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment . . .or created an intimidating, hostile or offensive work environment.”]

Context is key, and the analysis must consider the conduct based on the totality of the circumstances. With this in mind, Plaintiff has established material questions of fact that cannot be resolved by an MJOP. Therefore, Plaintiff has alleged harassment against Defendants Sanchez, Romero, Chavez, and their employer, Matrix Service, Inc.

Accordingly, Defendants’ Motion for Judgment on the Pleadings is DENIED.

Plaintiff is ordered to give notice.

Judge of the Superior Court

FN 1- Resorting to extrinsic evidence, the parties dispute whether the word “mudfish” is a racial slur. The court need not determine this now, as it demonstrates the existence of a disputed fact. (See Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1063 [“Presentation of extrinsic evidence is ... not proper on a motion for judgment on the pleadings.”].)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.