Judge Robert B. Broadbelt, Case Number: 21STCV23699, Date: 2024-08-01 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 21STCV23699, Date: 2024-08-01 Tentative Ruling

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court rules on defendant City of Los Angeles’s evidentiary objections, filed on July 25, 2024, as follows:

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendant City of Los Angeles (“Defendant”) moves the court for an order granting summary judgment in its favor and against plaintiff William Faulkner (“Plaintiff”) on Plaintiff’s Complaint.

In the alternative, Defendant moves the court for an order granting summary adjudication in its favor and against Plaintiff on each of Plaintiff’s three causes of action.[1]

It is an unlawful employment practice “[f]or an employer, because of the race . . . of any person, . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in the terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) “To establish a prima facie case of discrimination under FEHA, a plaintiff must show they were a member of a protected class; they were qualified for the position or were performing competently in the position they held; they suffered an adverse employment action, such as termination, demotion, or denial of an available job; and some other circumstance suggested discriminatory motive.” (Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 397.)

The court finds that Defendant has not met its burden of showing that the first cause of action for discrimination has no merit because Defendant has not shown that (1) the element of causation cannot be established, or (2) it had legitimate, non-discriminatory reasons for taking all of the alleged adverse employment actions against Plaintiff. (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32 [“The ‘employer, as the moving party [on a motion for summary judgment or summary adjudication in an employment discrimination case], has the initial burden to present admissible evidence showing either that one or more elements of the plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, non-discriminatory factors’”].)

Plaintiff has alleged the adverse employment actions taken against him to be the following: (1) upon his return to the Recruitment Division in the Personal History Statement Unit (“PHS”), he was treated differently from other PHS officers by Sergeant Williams (Compl., ¶ 20), and (2) Defendant generated a 1.28 personnel complaint against him for the failure to telephonically interview candidates (Compl., ¶ 23), which was militarily endorsed (i.e., reopened) to add new charges for the falsification of information, forging of electronic documents, and the neglect of duty (Compl, ¶ 25). (Undisputed Material Fact (“UMF”) No. 13 [“Plaintiff claims he was subjected to discrimination and retaliation when a 1.28 personnel complaint was generated against him for failure to telephonically interview candidates”].)

First, as set forth above, Plaintiff has alleged one adverse employment action to be the differential treatment by Sergeant Williams. (Compl., ¶ 20 [“Plaintiff suffered further adverse actions in the form of the differential treatment between how Sgt. Williams treated him and all other PHS officers”].) However, Defendant did not address this theory in its motion by arguing that (1) this differential treatment does not constitute an adverse employment action, (2) Sergeant Williams did not engage in differential treatment of Plaintiff, or (3) this theory fails for any other reason. Moreover, while it is undisputed that Plaintiff has alleged that he suffered an adverse employment action after the 1.28 personnel complaint was generated against him (UMF No. 13), Defendant did not submit evidence establishing that the generation of that complaint is the only adverse employment action on which Plaintiff bases this cause of action. (UMF No. 13 [citing Plaintiff’s deposition, pages 73:8-74:16]; Autrey Decl., Ex. C, Pl. Dep., pp. 73:8-74:16 [testifying generally that Plaintiff believed that the 1.28 personnel complaint generated against him was related “to the fact that [he] felt Williams was engaging in discriminatory activity”].) Further, Plaintiff has referenced this treatment in his opposition, such that it appears that he has not abandoned this theory. (Opp., p. 5:12-15 [“Plaintiff suffered further adverse actions in the form of differential treatment between how Williams treated him in comparison to all other PHS officers”].)

“The pleadings play a key role in a summary judgment motion. ‘ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues” ’ and to frame ‘the outer measure of materiality in a summary judgment proceeding.’” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Here, Plaintiff has alleged the existence of two adverse employment actions that were taken against him. Thus, Defendant was required to show that both theories alleged in support of this cause of action do not have merit on the grounds that (1) Plaintiff cannot establish the element of causation between the alleged discrimination and both adverse employment actions, and (2) Defendant had legitimate, non-discriminatory reasons for taking those actions against him. (Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action . . . .”].)

Second, even if the court were to construe Plaintiff’s Complaint to allege only the second adverse employment action, the court finds that the evidence presented by Defendant shows that a triable issue of material fact exists as to whether its reasons for taking the second adverse employment action against Plaintiff was a pretext for discrimination. (Aguilar, supra, 25 Cal.4th at p. 850, n. 11 [moving party must persuade the court there is no material fact for a reasonable trier of fact to find].)

As to the legitimacy of the 1.28 personnel complaint, Defendant has presented the following evidence. On July 18, 2019, Sergeant Williams was approached by Adrian Ponce, a police candidate, who stated that he had not been interviewed by an officer in his PHS. (Autrey Decl., Ex. G, Jan. 21, 2021 Williams Testimony before Los Angeles Police Department Board of Rights (“Williams BOR Testimony”), pp. 36:20-37:17.) After conducting a random audit of the PHS applications assigned to Plaintiff, Sergeant Williams contacted four applicants and concluded that Plaintiff did not telephonically interview three out of four of those applicants. (Autrey Decl., Ex. G, Williams BOR Testimony, pp. 38:1-11, 42:13-21, 43:12-21.) Sergeant Williams informed Captain McCraney of his conversation with Adrian Ponce, who subsequently instructed Sergeant Williams to initiate a 1.28 personnel complaint. (UMF No. 18.)

Defendant has also presented evidence showing that (1) Defendant required a telephonic interview of candidates, and (2) Plaintiff admitted, in his deposition, that he did not telephonically interview candidates and that he was disciplined by the Board of Rights for his failure to do so. (Autrey Decl., Ex. J, McCraney Decl., ¶ 8 [“The process converted from an in-person interview to a telephonic interview, however, never to an email only investigation”]; Autrey Decl., Ex. C, Pl. Dep., p. 84:15-25 [testifying that he “was disciplined for not interviewing candidates” and that he was “guilty of” doing so].) The court acknowledges that this evidence may be sufficient to show that Defendant’s adverse employment action taken against Plaintiff was motivated by legitimate, nondiscriminatory reasons (i.e., Plaintiff’s failure to comply with Defendant’s policy to telephonically interview applicants). (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 41 [“A reason is legitimate if it is facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination”] [internal quotations and citations omitted].)

However, the evidence presented by Defendant also supports the finding of a triable issue of material fact as to pretext.

As to Sergeant Williams’s discriminatory animus and circumstances suggesting discriminatory motive, Plaintiff alleged that Sergeant Williams (i.e., the officer that investigated Plaintiff, raised the issue with the Captain, and was thereafter instructed to generate the 1.28 personnel complaint) rejected a substantial portion of the Black / African American applicants and would make derogatory comments about them. (Compl., ¶¶ 15-16.) Defendant did not appear to submit evidence establishing that Sergeant Williams did not disproportionately reject Black / African American applicants. Defendant has submitted the testimony of Sergeant Williams before the Los Angeles Police Department Board of Rights, in which he testified that officers should ask follow-up questions when an applicant answers “no” to questions because some applicants “do all types of things to try and get in . . . [and to] try and scheme the system.” (Autrey Decl., Ex. G, Williams BOR Testimony, pp.93:24-95:2.) However, Sergeant Williams did not dispute that he made the alleged derogatory comments about the Black / African American applicants in this testimony.

Similarly, the testimony of Officer Fredy Yi before the Los Angeles Police Department Board of Rights asserting that applicants lie “a lot of times” on their applications does not establish that Sergeant Williams was not making derogatory comments about Black / African American applicants. (Autrey Decl., Ex. H, Fredy Yi Los Angeles Police Department Board of Rights Testimony, pp. 109:20-22, 110:19-111:1.) Moreover, while Plaintiff testified that Sergeant Williams did not make negative comments to him directly about his race, Plaintiff also testified that Sergeant Williams made comments in Plaintiff’s presence “about collections or drugs or no criminal record . . . [and] negative comments about the [B]lack race.” (Autrey Decl., Ex. C, Pl. Dep., pp. 65:17-66:16.)

Thus, Defendant did not present evidence establishing that Sergeant Williams did not make negative comments about Black / African American applicants. Although Defendant presented evidence, as set forth above, showing that Plaintiff was required to conduct telephonic interviews of applicants but did not, which may support the legitimacy of the adverse employment action of generating the 1.28 personnel complaint, the evidence presented by Defendant supports a finding of pretext based on (1) Defendant’s failure to establish that Sergeant Williams did not make discriminatory and derogatory comments about individuals of Plaintiff’s race, and (2) Plaintiff’s testimony describing the discriminatory and derogatory comments. (Zamora, supra, 71 Cal.App.5th at p. 32.)

Third, even if the court had concluded that Defendant met its burden, the court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to pretext. (Zamora, supra, 71 Cal.App.5th at p. 32 [if the employer meets its burden, the plaintiff must produce admissible evidence which raises a triable issue of fact material to the defendant’s showing].)

Plaintiff has submitted his declaration, in which he states that (1) he conducted interviews of applicants by email instead of telephone because his supervisor and former OIC, Detective III Cherie Clair told him that it was permissible to do so, and (2) when he asked Sergeant Williams if there was guidance on how to conduct interviews, Sergeant Williams said there wasn’t “‘anything like that.’” (Faulkner Decl., ¶¶ 15, 14.) As to discriminatory animus, Plaintiff states that Sergeant Williams made comments to Plaintiff about African American applications, such as “‘He said no to drugs[.] I . . . find that hard to believe[,]” and “I can’t believe they have no collections.’” (Faulkner Decl., ¶¶ 5, 11.) Plaintiff further attests that Sergeant Williams “‘never made similar comments to [Plaintiff] about applicants of other ethnicities or races[,]’” and that he “rejected a substantial portion of the African American applicants that [Plaintiff] would green light, a number that amounted to far more than a 50% rejection rate, which was far higher than the rejection rates for other ethnicities or races that [Plaintiff] recommended.” (Faulkner Decl., ¶¶ 5, 12.)

Taken together, the court finds that Plaintiff has met his burden to present evidence to show that a triable issue of material fact exists as to whether Defendant’s investigating Plaintiff and subsequently generating a 1.28 personnel complaint against Plaintiff was pretextual because (1) Plaintiff has stated, in his declaration, that he (i) was permitted to conduct interviews by email pursuant to Detective Clair’s guidance, and (ii) was told by Sergeant Williams that there wasn’t “guidance on how to conduct interviews[,]” but Sergeant Williams initiated an investigation that led to the generation of a personnel complaint against him on the ground that he did not telephonically interview Defendant’s applicants, and (2) Plaintiff has presented evidence showing a triable issue of material fact as to whether Sergeant Williams harbored discriminatory animus against Plaintiff because of his race. (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 162 [employee has burden to show that “the employee’s stated reason was a pretext for unlawful animus in order to avoid summary judgment”].)

The court therefore denies Defendant’s motion for summary adjudication as to the first cause of action for discrimination.

It is an unlawful employment practice for an employer, because of race, “to harass an employee . . . .” (Gov. Code, § 12940, subd. (j)(1).) “To establish a prima facie case of unlawful harassment under FEHA, a plaintiff must show ‘(1) he was a member of a protected class; (2) he was subjected to unwelcome . . . harassment; (3) the harassment was based on [the plaintiff’s membership in an enumerated class; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [the defendant] is liable for the harassment.’” (Martin, supra, 97 Cal.App.5th at p. 170.)

The court finds that Defendant has not met its burden of showing that the second cause of action for harassment has no merit because Defendant has not shown that the element of an intimidating, hostile, or offensive work environment cannot be established.

First, the court notes that Defendant did not set forth argument in its moving papers addressing this cause of action directly. Instead, Defendant has only summarized Plaintiff’s allegations and has asserted that (1) Sergeant Williams merely questioned the truthfulness or veracity of statements by applicants, and (2) Plaintiff cannot remember the names of any candidates about which Sergeant Williams spoke negatively. (Mot., p. 5:5-8.) Defendant, however, did not present analysis as to which element was negated by such evidence.

Second, Defendant did not submit evidence establishing that Plaintiff cannot prove an element of this cause of action in its separate statement.

Specifically, Defendant states that this cause of action fails “because [Plaintiff] cannot establish a prima facie case as he has no evidence that he was subjected to sufficiently severe or pervasive misconduct based on his protected status. The actions that Plaintiff complains of were personnel management decisions wholly unrelated to his race or national origin.” (Def. Separate Statement, p. 16:8-11.)

As to the severity and pervasiveness of the conduct, Defendant again cites to Plaintiff’s testimony, in which Plaintiff testified that Sergeant Williams did not make negative comments to Plaintiff directly about his race. (Autrey Decl., Ex. C, Pl. Dep., p. 66:2-12.) However, Plaintiff also testified that Sergeant Williams made negative comments about Black / African American applicants in Plaintiff’s presence, including “negative comments about the [B]lack race.” (Id., pp. 65:24-66:1.) Defendant has not presented authority or argument establishing that Sergeant Williams’s negative comments about persons of Plaintiff’s race, made in Plaintiff’s presence, were not “sufficiently severe or pervasive to alter the conditions of [Plaintiff’s] employment and create an abusive working environment.” (Martin, supra, 97 Cal.App.5th at p. 170 [internal quotations and citation omitted].)

Moreover, Defendant did not cite evidence establishing that the alleged conduct consisted of “personnel management decisions,” such that the alleged actions are not actionable as harassment. (Def. Separate Statement, p. 16:10-11.) The court acknowledges that “‘[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management.’” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860.) However, Defendant has not presented argument establishing that Sergeant Williams’s derogatory comments made about Black / African American applicants constituted conduct necessary to carry out the legitimate objectives of personnel management. (Ibid.) To the extent that Defendant has attempted to argue that Sergeant Williams was merely questioning the veracity of Defendant’s applicants, the court disagrees. While Defendant may have shown that questioning the veracity of an applicant is necessary to job performance, Defendant did not (1) dispute that Sergeant Williams made the alleged comments, or (2) present argument establishing that Sergeant Williams’s comments finding it “hard to believe” that African American applicants “said no to drugs” and expressing disbelief that they had “no collections” was unavoidable and necessary to vet its applicants. (Autrey Decl., Ex. G, Wiliams BOR Testimony, pp. 93:24-96:2; Autrey Decl., Ex. C, Pl. Dep., pp. 29:16-30:15.)

Even if the court were to find that Defendant had met its burden to show that Plaintiff cannot establish the element of severe or pervasive conduct, the court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to that element. Plaintiff has submitted his declaration, in which he states that Sergeant Williams frequently made negative comments to Plaintiff only about African American applicants. (Faulkner Decl., ¶¶ 5-6, 10-12.) The court finds that Plaintiff has shown a triable issue of material fact exists as to whether this conduct (i.e., Sergeant Williams’s comments that he could not believe that African American applicants did not take drugs or did not have collections) was avoidable and unnecessary to job performance, and therefore has met his burden to show that a triable issue of material fact exists as to the element of severe and pervasive harassing conduct based on race. (Serri, supra, 226 Cal.App.4th at p. 869.)

The court therefore denies Defendant’s motion for summary adjudication as to the second cause of action for harassment.

It is an unlawful employment practice for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part . . . .” (Gov. Code, § 12940, subd. (h).) “‘[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.’” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879.)

The court finds that Defendant has not met its burden of showing that the third cause of action for retaliation has no merit because Defendant has not shown that it had legitimate, non-retaliatory reasons for taking all of the alleged adverse employment actions against Plaintiff.

First, as set forth in connection with the court’s ruling on Defendant’s motion for summary adjudication as to the first cause of action for discrimination, Plaintiff has alleged the existence of two adverse employment actions taken against him: (1) the differential treatment of him by Sergeant Williams upon his return to PHS (Compl., ¶ 20), and (2) the generation of a 1.28 personnel complaint against him in or around July 2019 (Compl., ¶ 23) and the reopening of that complaint in or around May 2020 (Compl., ¶ 25). Defendant, however, did not address the first alleged adverse employment action, and did not argue, for example, that the alleged differential treatment of Plaintiff by Sergeant Williams did not constitute an adverse employment action or did not occur as alleged. The court is therefore required to deny Defendant’s motion for summary adjudication as to this cause of action. (Code Civ. Proc., § 437c, subd. (f)(1).)

Second, even if the court were to conclude that (1) Plaintiff alleged only the existence of the second adverse employment action, and (2) Defendant met its burden to show that Plaintiff cannot establish the element of causation and that Defendant had a legitimate reason to take the second adverse employment action against him, the court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to causation and pretext.

Plaintiff has alleged that the adverse employment actions were taken against him after he (1) complained to Sergeant Lavender that Sergeant Williams was treating Black / African American applicants unfairly (Compl., ¶ 18), (2) complained to Lieutenant Eppolito that forcing Plaintiff to work with Sergeant Williams would again lead to the creation of a hostile work environment (Compl., ¶ 19), and (3) complained directly to Sergeant Williams that he was treating Black / African American candidates harsher than he was treating other candidates (Compl., ¶ 22). In support of its motion, Defendant has produced evidence establishing that Plaintiff did not complain about Sergeant Williams’s conduct to Sergeant Lavender and Lieutenant Epolito as alleged.[2] Specifically, Sergeant Lavender has attested, in his declaration, that Plaintiff advised him “that he did not want to return to the PHS Unit because of a personality conflict with Sergeant Williams,” but did not inform him that “Sergeant Williams treated African-American candidates harsher than any other ethnicity of candidates or made ethnic remarks about African-American candidates.” (Autrey Decl., Ex. L, Lavender Decl., ¶ 2.) Similarly, Lieutenant Epolito states that Plaintiff expressed a concern that Sergeant Williams did not like him, but did not tell Lieutenant Epolito that Sergeant Williams was disqualifying more than 50 percent of African American applicants and making negative remarks about them. (Autrey Decl., Ex. M, Epolito Decl., ¶¶ 3, 5.)

In addition, as set forth above, Defendant has produced evidence showing that it generated the 1.28 complaint against Plaintiff based on his failure to telephonically interview candidates as required. (Autrey Decl., Ex. J, McCraney Decl., ¶ 8 [“The process converted from an in-person interview to a telephonic interview, however, never to an email only investigation”]; Autrey Decl., Ex. C, Pl. Dep., p. 84:15-25 [testifying that he “was disciplined for not interviewing candidates” and that he was “guilty of” doing so]; Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 91 [after an employee establishes a prima facie case of retaliation, the burden is on the employer to offer a legitimate, nonretaliatory reason for the adverse employment action].)

Thus, Defendant has produced evidence showing that (1) Plaintiff did not make complaints about Sergeant Williams’s discriminatory and harassing conduct to Sergeant Lavender and Lieutenant Epolito, such that Defendant could not have retaliated against Plaintiff based on those acts as alleged, and (2) Defendant initiated the 1.28 personnel complaint against Plaintiff for a legitimate, non-retaliatory reason.

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the elements of causation and pretext.

Plaintiff has presented evidence establishing that (1) in or around May 2019, he had a meeting with Sergeant Williams, during which Plaintiff told Sergeant Williams that he believed that Sergeant Williams was treating African American candidates harsher than others, and that Plaintiff had “never heard him bring up any stereotypes or negative comments about Hispanic applicants or other races in the manner that he did about African Americans[,]” which Sergeant Williams denied, and (2) two months later, in or around July 2019, the 1.28 personnel complaint was generated against Plaintiff despite the fact that he had been advised by his supervisor that he was permitted to conduct interviews by email. (Faulkner Decl., ¶¶ 12, 14-15; Pl. Ex. 2, Williams Dep., p. 129:10-15 [there was not a written policy requiring telephonic interviews].)

Thus, the court finds that Plaintiff has met his burden to submit evidence showing that a triable issue of material fact exists as to whether the 1.28 personnel complaint generated against him (following the investigation initiated by Sergeant Williams) for failure to conduct telephonic interviews of PHS candidates was pretext for retaliation because Plaintiff has submitted evidence showing that (1) he was told that he was permitted to conduct interviews by email, there was no written policy requiring telephonic interviews, and when asked for guidance, Sergeant Williams did not advise Plaintiff of this requirement, but (2) two months after complaining to Sergeant Williams about his discrimination, Defendant generated a 1.28 personnel complaint against Plaintiff for conducting interviews by email. (Def. Material Fact No. 17 and UMF Nos. 18-19 [after conducting an audit of Plaintiff’s reviewed applications, Sergeant Williams was instructed to initiate a 1.28 personnel complaint]; Faulkner Decl., ¶¶ 12, 14-15; Pl. Ex. 2, Williams Dep., p. 129:10-15.) The court finds that the circumstances presented by Plaintiff’s evidence “as a whole support[] a reasoned inference that the challenged action was the product of . . . retaliatory animus.” (Light, supra, 14 Cal.App.5th at p. 95 [internal quotations and citation omitted].)

Finally, the court notes that, in reply, Defendant contends that this cause of action fails because Plaintiff did not engage in activity protected by FEHA on the ground that he did not report that Sergeant Williams was discriminating against African American applicants to Sergeant Williams, Sergeant Lavender, or Lieutenant Epolito. The court disagrees. As set forth above, Defendant does not dispute that Plaintiff made such a complaint to Sergeant Williams. (UMF No. 59 [Plaintiff “complained to Williams that he was discriminating against African-American Candidates, Williams denied the accusation”].) Moreover, Plaintiff has stated, in his declaration, that he complained to those individuals about Sergeant Williams’s conduct. (Faulkner Decl., ¶¶ 8-9, 12.) While Plaintiff’s assertions of his complaints conflict with those of Sergeant Lavender and Lieutenant Epolito, the court may not evaluate the credibility of these declarants on a motion for summary judgment or adjudication. (Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 982 [“summary judgment may not be granted on the court’s evaluation of credibility”].)

The court therefore denies Defendant’s motion for summary adjudication as to the third cause of action for retaliation.

The court denies defendant City of Los Angeles’s motion for summary judgment or, in the alternative, summary adjudication.

[1] The court notes that Defendant has also asserted that the court should grant summary adjudication in its favor on Plaintiff’s “derivative fourth cause of action for failure to prevent discrimination and/or retaliation . . . .” (Mot., p. 10:5-11.) However, Plaintiff has alleged only three causes of action for (1) discrimination in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (“FEHA”), (2) harassment in violation of FEHA, and (3) retaliation in violation of FEHA. (Compl., pp. 7:13-15, 8:20-22, 10:1-3.)

[2] Defendant does not dispute that Plaintiff complained to Sergeant Williams directly about his discriminatory conduct. (UMF No. 59.)

william faulkner ; Plaintiff, vs. city of los angeles , et al.; Defendants.	Case No.:	21STCV23699

	Hearing Date:	August 1, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: defendant’s motion for summary judgment or, in the alternative, summary adjudication