Patrick Raymond v. Matrix Service, Inc., et al.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 

MOVING PARTY: Defendants Matrix Service, Inc., Andy Romero, Rodrigo aka Roger Chavez, and Jose Sanchez

RESPONDING PARTY(S): Plaintiff Patrick Raymond

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Patrick Raymond worked as a welder for Defendant Matrix Service, Inc., beginning in 1995 until his alleged 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. 

Defendants now move for summary judgment or, in the alternative, summary adjudication. Plaintiff opposed.

TENTATIVE RULING:

Defendants’ Motion for Summary Judgment is DENIED.

Defendant Jose Sanchez’s Motion for Summary Adjudication of the Second Cause of Action is GRANTED.

Defendants’ Motion for Summary Adjudication as to all other Defendants and causes of action is DENIED.

Plaintiff is ordered to give notice, unless waived.

DISCUSSION:

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

I. Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

Plaintiff’s objections numbered 1 through 13 are OVERRULED.

Defendants’ objections numbered 1 through 22 are OVERRULED.

II. Analysis

Defendants Matrix Service, Inc., Jose Sanchez, Andy Romero, and Rodrigo Chavez move for summary judgment. Their arguments are addressed in turn.

A. Harassment Based on Race (Second Cause of Action)

1. The Sanchez Comment is Barred by the Statute of Limitations

The burden begins with Defendant to show that “one or more elements of a cause of action . . . cannot be established.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. 

Defendant Sanchez was one of Plaintiff’s “immediate supervisor[s].” (Compl. ¶ 13.) In December 2019 at a ConocoPhillips 66 refinery jobsite in Wilmington, California, Plaintiff alleges that foreman Jose Sanchez (“Sanchez”) told welder Darren Otrum: “You know what, you can take Patrick Raymond to the gate because he’s black and these people [at ConocoPhillips 66] don’t want no black people here to work for them so you can take him to the gate.” (SSUMF 7.) 

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.) 

Defendants argue Sanchez’s comment is time-barred under a three-year statute of limitations. (Govt. Code § 12960, subd. (f)(3).) There is apparently no dispute that the statute of limitations is three-years. “An employee who wishes to file suit under the FEHA ‘must exhaust the administrative remedy provided by the statute by filing a complaint with the’ DFEH, ‘and must obtain from the [DFEH] a notice of right to sue.’ [Citation.] ‘The timely filing of an administrative complaint’ before the DFEH ‘is a prerequisite to the bringing of a civil action for damages.’”  (Pollock v. Tri-Modal Distribution Servs., Inc. (2021) 11 Cal. 5th 918, 931.)  

Here, Plaintiff filed his administrative complaint on December 22, 2022. (SUMF ¶ 53.) Plaintiff testified at his deposition that the Sanchez comment was: (i) made “somewhere around” December 3; (ii) it was “a week or two before Christmas,” and (iii) the job started before December 2019, the job was three weeks long, and the comment was made “the very first week.” (SSUMF ¶¶ 15-18.)

Considering this evidence, Defendant has established that Defendant Sanchez made this comment sometime before December 22, 2019. This switches the burden to Plaintiff to establish a triable issue on the statute of limitations.

In opposition, Plaintiff apparently concedes that the comment falls outside the three year statute of limitations, but argues the “continuing violations doctrine” applies. (Opp. 13: 2-5.)  “[W]hen the requisite showing of a temporally related and continuous course of conduct has been established, it is appropriate to apply the continuing violation doctrine to…harassment claims.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1058.) In a “harassment case, the FEHA statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality.”  (Id. at 1059.) “The FEHA statute of limitations should be interpreted liberally to allow employers and employees an opportunity to resolve disputes informally.” (Id. at 1057.) In applying the doctrine, courts must consider whether “the employer's actions were (1) sufficiently similar in kind—recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [Citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Id. at 1059.) 

Here, the alleged comment by Sanchez occurred in early December 2019. The other harassing comments at issue occurred in August and September of 2022. (SSUMF 20, 32.) These comments occurred over two-and-a-half years apart. These three isolated statements did not occur with “reasonable frequency.” In the two-and-a-half years between Sanchez’s comment and the next alleged instance of harassment, Sanchez’s comment acquired a degree of permanence that prevents application of the continuing violations doctrine. Therefore, to the extent Plaintiff’s harassment cause of action rests on Sanchez’s comment, the cause of action is time-barred. 

Accordingly, Defendant Jose Sanchez’s motion for summary adjudication of the Second Cause of Action is GRANTED. 

2. Romero and Chavez Comments

Plaintiff alleges Defendant Romero was also his supervisor. (Compl. ¶ 13.) Around August 20, 2022, at a Hawaii Refining Facility job site, Plaintiff allegedly used his stop-work authority on site with foreman Andy Romero (“Romero”), because Plaintiff claims there wasn’t a proper permit or gas monitor. (SSUMF 20.) 

Then, on or about August 27, 2022, screws fell out of Plaintiff’s pocket in front of Romero while Plaintiff was bending over to pick up a pen. (SSUMF 25.) Romero allegedly accused Plaintiff of stealing the screws. (Id.) Plaintiff responded, “I’d rather steal you,” and Romero replied, “You know what, no mud fish is going to steal me.” (SSUMF 24.) Plaintiff interpreted “mudfish” to be “discriminating.” (SSUMF 29, 30.) Plaintiff testified that the screws were “trash” and that Romero was “someone who likes to play around and joke around.” (SSUMF 26-27.) 

Defendant Chavez was another of Plaintiff’s coworkers. Plaintiff testified that on September 23, 2022, Chavez remarked to Plaintiff: “Oh, Patrick Raymond, you’re so black I can’t even see you in the dark and the light is right there.” (SSUMF 32.) 

Defendants argue the stop-work issue had nothing to do with Plaintiff’s race. Defendants also argue the “mudfish” comment was not sufficiently “severe or pervasive” as to constitute harassment. They contend the word “mudfish” carries no “racial connotation.” (Mtn. 11: 16.) They highlight Plaintiff’s deposition testimony, where Plaintiff attempted to explain why he believed “mudfish” was a racist term:

Question: Okay. Why -- why do you think “mud fish” is related to race?

Answer: He shouldn't call me a mud fish. I'm not a mud fish. That's really discrimination really. It really took away something from me right there. My heart bled.

Question: What did -- what did you interpret that to mean?

Answer: Disrespectful. Discriminating. I'm not a mud fish.

(Raymond Depo. 90: 7-16.) 

As to the Chavez comment, Defendants argue that “[c]onsidering the totality of the circumstances, the lack of severity and isolated nature of Chavez’s comment, and the absence of an unambiguous racial slur, Plaintiff cannot establish a hostile work environment.” (Mtn. 12: 20-22.) Defendants further maintain that the Romero and Chavez comments were “mere name-calling” that would not have “interfered with a reasonable employee’s work performance and would not have seriously affected the psychological well-being of a reasonable employee.” (Mtn. 13: 11-13.) They note the comments were “made by separate individuals at different jobsites in different locations.” (Mtn. 13: 19-20.)

Here, considering the evidence presented, Defendant has met its initial burden. This switches the burden to Plaintiffs to show via specific facts that a triable issue of material facts exists. (§ 437c(o)(2).) 

In opposition, Plaintiff contends he “has submitted evidence of a pattern of regular comments referring to his race and skin color by his supervisors and coworkers that he found offensive, belittling, and degrading, and which interfered with his ability to do his job and caused him severe emotional distress.” (Opp. 12: 23-24.)  Plaintiff states in his declaration that he was “subjected to a pattern of regular comments referring to [his] race and skin color by [his] supervisors and coworkers…” (Raymond Decl. ¶ 8; SSADMF 115.) Plaintiff states that Defendant Romero “would regularly make racist jokes all day long.” (Romero Decl. ¶ 19.) Plaintiff, however, confirmed at his deposition that there were only three comments made during his employment related to his race: (1) the 2019 Sanchez comment, (2) the 2022 Romero Comment, and (3) the 2022 Chavez comment. (Raymond Depo. Pp. 93-98.) There was also the fourth incident in August 2022 relating to the gas monitor. (Id.) But that incident did not expressly involve race. 

Plaintiff notes that Chavez testified that “some people” would refer to Plaintiff as the “dark black guy.” (Lyon Decl., Exh. 9, 65: 19-21.) However, there is no evidence that Plaintiff ever heard comments about his race (or racist more generally), except for the three comments alleged in the Complaint. 

Thus, the critical issue is whether the Chavez and Romero comments are harassing under the FEHA. “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, Plaintiff stated at his deposition that he “was so humiliated” by Chavez’s comment, and considered it “disrespectful and discriminat[ing].” (SSADMF 137; Raymond Depo. 80: 5-6.) Plaintiff states more generally that he found these comments “offensive, belittling, and degrading, and which interfered with [his] ability to do my job and caused [him] severe emotional distress.” (Raymond Decl. ¶8.) 

As to the “mudfish” comment, Plaintiff states in his declaration that he “reasonably understood this to be a reference to [his] skin color and a characterization that [he] was part of an inferior race or class and therefore racial harassment.” (Raymond Decl. 20.) 

This court is mindful that “[h]arassment cases are rarely appropriate for disposition on summary judgment.” (Govt. Code § 12923(e).) Moreover, “a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct. . .created an intimidating, hostile or offensive work environment.” (Govt. Code § 12923(b).) Finally, this court must “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)

With these well-settled principles in mind, this court concludes that there exists a triable issue of material fact as to whether Plaintiff suffered harassment based on his race.

Accordingly, Defendants’ Motion for Summary Adjudication of the Second Cause of Action is DENIED as to Defendants Matrix, Romero, and Chavez. The motion is GRANTED as to Defendant Sanchez only based on the statute of limitations.

B. Discrimination Based on Race (Third Cause of Action)

1. Adverse Employment Action 

First, Defendant Matrix argues Plaintiff did not suffer an adverse employment action. Generally, to make a prima facie case for FEHA discrimination, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)  

When ruling on a motion for summary adjudication in the context of a discrimination claim, “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.  (Moore v. Regents of Univ. of California (2016) 248 Cal. App. 4th 216, 236 [emphasis in original].)  “Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case....[Citation.] However, ‘many employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Id. [emphasis in original].) 

“In California, an employee seeking recovery on a theory of unlawful discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity.” (St. Myers v. Dignity Health (2019) 44 Cal. App. 5th 301, 318.) “Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.” (Francis v. City of Los Angeles (2022) 81 Cal. App. 5th 532, 541.) Echoing that concept, the CACI instructions state:

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

(See CACI 2509.) 

Defendants assert that Matrix did not terminate Plaintiff. Defendants present evidence that Plaintiff’s position in Hawaii ended in September 2022. (SSUMF 67.) On September 27, Plaintiff was offered a new position in Minnesota, and instructed to take a drug test and report on site by October 6, 2022. (SSUMF 74-77.) Plaintiff took the drug test but never showed up in Minnesota. (SSUMF 80-81.) In fact, Defendant contends Plaintiff’s employment did not end until November or December of 2022. (SSUMF 93.) This was when Plaintiff turned down multiple job offers and asked to be laid off so he could access his 401k. (SSUMF 95.) 

In opposition, it is Plaintiff’s position that Defendants “misrepresent the end of Plaintiff’s employment.” (Opp. 13: 13.) Plaintiff states in his declaration that he “was suffering from severe depression in October 2022, and did not think it would be safe for [him] to drive across the country to Minnesota at that time, and [he] made that clear to Matrix. [He] tried to take an open position in Washington with Frm. Paul Tackett, which was closer and where [he] had worked before and felt safe; however, Matrix hired someone else for that position despite [his] interest. Matrix never offered [him] another position.” (Raymond Decl. ¶ 37.) Plaintiff maintains that Defendant “refused to send [him] back to the Hawaii location which it had planned to do prior to [his] September 2022 complaints, refused to send [him] to any California location, [and] refused to send [him] to the Washington location despite the foreman wanting to hire [him].” (Id. ¶ 45.) 

It was only at this point—that “Matrix was not addressing [Plaintiff’s] complaints, not ensuring [him] a safe work environment, not allowing [him] to work in a place where [he] felt safe—that Plaintiff believes he “had no choice but to withdraw money from his 401k to survive.” (Id. ¶ 42.) And at this point, “Dir. Torres had already informed [Plaintiff] in mid-November 2022 that Matrix was processing [his] termination.” (Id. ¶ 43.) 

Here, there exists a triable issue of material fact as to whether Plaintiff suffered an adverse employment action. The circumstances surrounding the final months of Plaintiff’s employment are in dispute. Whereas Defendant suggests the assignments offered to Plaintiff (or lack thereof) were made without animus and simply the nature of the business, Plaintiff maintains that Matrix refused to send Plaintiff to a reasonable location. Even if this was not a termination, per se, there exists a question as to whether this materially and adversely affected the terms, conditions, or privileges of Plaintiff’s employment. 

2. Discriminatory Motive

Next, Defendant argues even if Plaintiff could establish an adverse employment action, that “Matrix has overwhelming evidence of legitimate and non-discriminatory reasons for its employment actions.” (Mtn. 16: 27-28.) Defendant further maintains that “Plaintiff was not laid off on October 4, 2022, but rather offered a new position,” and “when Matrix eventually ended Plaintiff’s employment around November/December 2022, it was only because Plaintiff turned down multiple job offers and requested the layoff to access his 401(k).” (Mtn. 17: 3-6.) 

Plaintiff, however, maintains that these reasons are pretextual. Plaintiff notes the close temporal proximity to his “termination” with comments about his race and his complaints about same. Thus, there exists a triable issue of material fact as to whether the job assignments offered to Plaintiff at the end of his employment evidence a discriminatory animus. 

Accordingly, Defendants’ Motion for Summary Adjudication of the Third Cause of Action is DENIED.

C. Retaliation (Fourth Cause of Action)

Next, Defendants argue Plaintiff’s retaliation cause of action fails because Plaintiff cannot establish a causal link between his complaints and the end of his employment. 

“[T]o 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.”  (Cornell v. Berkeley Tennis Club (2017) 18 Cal. App. 5th 908, 942.)

Here, Plaintiff has demonstrated that he made complaints to management about perceived discrimination and harassment by coworkers. Plaintiff contends that Matrix, in response, refused to offer him reasonable or desirable job assignments, resulting in his actual or effective termination. 

Accordingly, Defendants’ Motion for Summary Adjudication of the Fourth Cause of Action is DENIED.

D. Whistleblower Retaliation (Sixth Cause of Action)

Defendants argue Plaintiff’s whistleblower cause of action fails because Plaintiff cannot establish an adverse employment action. However, as discussed when addressing Plaintiff’s discrimination cause of action, there exists a triable issue of material fact as to whether Plaintiff suffered an adverse employment action toward the conclusion of his employment. 

Accordingly, Defendants’ Motion for Summary Adjudication of the Sixth Cause of Action is DENIED.

E. Wrongful Termination (First Cause of Action) and Failure to Prevent (Fifth Cause of Action)

Finally, Defendants argue the “derivative” First and Fifth causes of action fail because Plaintiff has “failed to establish that Defendants violated FEHA or any other fundamental public policy of this state.” (Mtn. 20: 7-9.) 

As discussed herein, Plaintiff has established a triable issue of material fact on his underlying claims. Therefore, these derivative claims also survive. 

Accordingly, Defendants’ Motion for Summary Adjudication of the First and Fifth Causes of Action is DENIED.

IT IS SO ORDERED.

Dated:  May 12, 2025 ___________________________________