Judge Ronald F. Frank, Case Number: 22TRCV01630, Date: 2025-01-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV01630, Date: 2025-01-21 Tentative Ruling

Case Number: 22TRCV01630 Hearing Date: January 21, 2025 Dept: 8

Tentative Ruling¿

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HEARING DATE: January 21, 2025¿

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CASE NUMBER: 22TRCV01630

CASE NAME: Tiana Brown v. ERMC Aviation, LLC, et al.

MOVING PARTY: Defendants, ERMC Aviation, Inc. and Maria Mendoza

RESPONDING PARTY: Plaintiff, Tiana Brown

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TRIAL DATE: May 12, 2025

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MOTION:¿ (1) Motion for Summary Judgement, or in the alternative, Summary Adjudication

¿ Tentative Rulings: (1) DENIED MSA is GRANTED as to the claim of retaliation for requesting pregnancy leave.

I. BACKGROUND¿¿

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A. Factual¿¿

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On December 29, 2022, Plaintiff, Tiana Brown (“Plaintiff”) filed a Complaint against Defendants, ERMC Aviation, LLC, Maria Mendoza, and DOES 1 through 100. The Complaint alleges the following causes of action: (1) Racial Discrimination; (2) Racial Harassment; (3) Retaliation for Complaints of Racial Discrimination and Harassment; (4) Pregnancy Discrimination; (5) Retaliation for Request for Pregnancy Leave; (6) Failure to Provide Pregnancy Accommodation; (7) Failure to Engage in the Interactive Process; (8) Failure to Prevent Discrimination and Harassment; (9) Intentional Infliction of Emotional Distress.

Now, Defendants, ERMC Aviation, Inc. and Maria Mendoza (collectively, “Defendants”) file a Motion for Summary Judgment or, in the alternative, Summary Adjudication to all nine causes of action as well as Plaintiff’s prayer for punitive damages.

The evidence submitted to the Court shows that Plaintiff was a newly hired, probationary employee during the relevant period of time. She hired in August of 2022 and the key events supporting her claims of discrimination, retaliation and failure to accommodate occurred in September of 2022, during her 90-day probationary period. Defendants assert they suspended and then fired Plaintiff for abandoning her post at the airport security screening station at LAX terminal 3 on September 15, 2022, while Plaintiff asserts the stated reason was a pretext because, she claims, a co-worker made racist or racially-motivated comments to her on September 12 and 15, 2022, and when she reported the comments to HR, HR retaliated against her for complaining and destroyed evidence that would have shown the termination was pretextual. Plaintiff also asserts pregnancy discrimination and retaliation because on September 16, the day after she left her post and clocked out during her work shift, she went to a previously scheduled obstetrician appointment that Defendants somehow failed to accommodate, even though she was given that day off. Also on September 16, Defendant notified Plaintiff by text that she was being suspended pending an investigation of the claimed abandonment or her assigned post in Terminal 3. At the conclusion of the investigation, one Plaintiff claims was incomplete, Defendant terminated Plaintiff’s probationary employment as of October 6, 2022.

Ms. Mendoza denies making racist or racially-motivated comments to Plaintiff and no witness corroborates either version of what was allegedly said on September 12 or 15, 2022.

B. Procedural¿¿

On September 13, 2024, Defendants filed a Motion for Summary Judgment or, in the alternative, Summary Adjudication. The Court approved a stipulation to continue the hearing on the MSJ to allow discovery pursuant to Code of Civil Procedure section 437c(h). On January 7, 2025, Plaintiff filed an opposition brief. On January 15, 2024, Defendants filed a reply brief.

II. EVIDENTIARY OBJECTIONS

Defendants’ Evidentiary Objections in Support of their Motion for Summary Judgment

Sustain: n/a

Overrule: 38-40.

The hearsay rule does not bar these statements because Defendant Mendoza is a party to this action, and pursuant to California Evidence Code section 1220, “[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” There is a triable issue of fact as to whether Mendoza did or did not act in a supervisory capacity on September 15, 2022.

Plaintiff’s Evidentiary Objections to Defendants’ Moving Evidence:

Sustain: 1, 2

Overrule: n/a

Defendants’ Evidentiary Objections to Plaintiff’s Opposition Evidence:

Sustain: 1-2, 5-6.

Overrule: 3, 4.

The Court does not find that Plaintiff’s declaration is a sham declaration as to the failure-to-accommodate cause of action because in the same deposition cited to by Defendants, Plaintiff stated “for accommodation, it was if they could accommodate me for that day for my doctor’s appointment with my note.” (Plaintiff’s depo. at 127:21-25.) The jury will need to assess the plaintiff’s credibility as to the statements in her deposition at pp. 127-128 where she “clarified” an earlier answer at p. 100, but her “clarified” testimony was reiterated, not contradicted, in her MSJ declaration.

III. ANALYSIS¿

A. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(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.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “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.)¿

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.¿¿¿

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

B. Discussion

i. Racial Discrimination

Government Code §12940 provides that it is unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of race. (Gov. Code § 12940(a).) To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

1. Adverse Employment Action

Defendants contend that Plaintiff’s racial discrimination claim is based solely on hearsay comments allegedly made by Defendant, Maria Mendoza (“Mendoza”). (Defendants’ UMF Nos. 38-40.) As noted, the Court overruled Defendants’ moving objections as to these statements on the grounds that they are admissible under California Evidence Code section 1220.

Defendants cite to the evidence that on September 15, 2022, Plaintiff spoke to Franco twice, once on the phone and a second time at the ERMC office. (Defendants’ UMF No. 43.) The first time he spoke with Plaintiff on the phone, he testified that Plaintiff told him that she did not want to work screening post, sliding door, that Maria was stationing her there. (Baca Decl., ¶ 7, Ex. 5, Franco Depo. at 37:1-38:16.) Later, at the ERMC office, Franco states he asked Plaintiff to write a statement about leaving her post, she refused, and “stormed off,” leaving the office.” (Baca Decl., ¶ 7, Ex. 5, Franco Depo. at 35:24-46:7.) At Franco’s deposition, he was asked if Plaintiff “ever complain[ed] to [him] about Maria Mendoza?” (Baca Decl., ¶ 7, Ex. 5, Franco Depo. at 34:15-23.) Franco answered: “Not that I recall.” (Baca Decl., ¶ 7, Ex. 5, Franco Depo. at 34:17.) In contrast, Plaintiff provided her own testimony that Defendant Mendoza made racially discriminatory comments toward her in the workplace. (Plaintiff’s SSAMF Nos. 36-40, 42.) Plaintiff alleges that these comments and actions took place on September 15, 2022 and September 12, 2022. (Plaintiff’s SSAMF Nos. 36-40, 42.) Plaintiff also provided testimony that she complained to Mendoza about her comment (Plaintiff’s SSAMF No. 41), complained to Franco about Mendoza’s comments (Plaintiff’s SSAMF No. 42), as well as called Essoufi to complain about Mendoza’s comments. (Plaintiff’s SSAMF Nos. 44.) The alleged adverse employment action in Plaintiff’s complaint is that “Defendants terminated Plaintiff’s employment based on Plaintiff’s African-American race, in retaliation for Plaintiff’s complaints of racial discrimination and harassment…” (Complaint, ¶ 16.)

The conflicts in these differing versions of what occurred create triable issues of fact that a jury will need to resolve. The testimony of a single witness, who the jury believes, is sufficient to prove a fact, even if other witnesses testify differently.

2. Legitimate Business Reason

As the Supreme Court explained in¿Guz¿v. Bechtel Nat. Omc, (2000) 24 Cal. 4^th 317, “‘legitimate’ reasons [citation] … are reasons that are¿facially unrelated to prohibited bias,¿and which, if true, would thus preclude a finding¿of discrimination.¿ [Citations.]”¿(See¿Guz¿v. Bechtel Nat. Inc.¿(2000) 24 Cal.4th 317, 358¿(italics in original and footnote omitted).) One such example is unsatisfactory performance.¿ (See, e.g.,¿Trop v. Sony Pictures Entm’t. Inc.¿(2005) 129 Cal.App.4th 1133, 1149 [pregnant woman terminated due to poor job performance].)¿“While the objective soundness of an employer’s proffered reasons supports their credibility . . .¿the ultimate issue is simply whether the employer acted with¿a motive to discriminate illegally.”¿ (Guz, supra,¿24 Cal.4th at¿358¿(italics in original).)¿The employer’s “reasons need not necessarily have been wise or correct.”¿(Id.)¿In other words, as long as the employer honestly believed in the facially unrelated reason, it is irrelevant whether the employer’s reason is trivial (see¿Slatkin¿v. Univ. of Redlands¿(2001) 88 Cal.App.4th 1147, 1157 [professor’s tenure denied based on “academic politics”]), or even completely untrue (King v. United Parcel Service, Inc.¿(2007) 152 Cal.App.4th 426, 433 [driver accused of falsifying timecard]).¿

If¿the¿employer¿meets its burden,¿the burden then shifts to the employee to¿show that the defendant’s¿legitimate reason is merely pretext. (See¿Guz¿v. Bechtel Nat. Inc., supra,¿24 Cal.4th¿at¿356.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc.¿(1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or¿the proffered reason was insufficient to motivate discharge.” (Id.)¿

The adverse employment action complained of in Plaintiff’s complaint is that she was terminated based on her “African-American race, in retaliation for Plaintiff’s complaints of racial discrimination and harassment…” (Complaint, ¶ 16.) However, Defendants argue that Plaintiff was not terminated by Mendoza, because was not her supervisor. (Defendants’ UMF No. 18.) Instead, Defendants explain that Plaintiff was terminated by Azelarabe Essoufi (“Essoufi”) for allegedly having abandoned her post on September 15, 2022. (Defendants’ UMF No. 31.) The Court’s reading of Essoufi’s deposition testimony states that “abandoning a post without authorization from management or the supervisor, is guarded so serious that it could be a cause for termination.” (Essoufi Decl., at 41: 21-24.) However, Plaintiff has provided testimony that she did not abandon her post. In fact, Plaintiff’s testimony contradicts that of Franco’s. Plaintiff states that she called Luis to tell him about the racial comment Mendoza made to her. (Plaintiff Depo. at 52:1-25.) Plaintiff states Franco informed her that she was able to leave and asked her to come to the HR office. (Plaintiff Depo. at 52:1-25.) She also stated Franco told her to clock out and to get her things. (Plaintiff Depo. at 52:1-25.) Plaintiff’s testimony as to why she left (not “abandoned”) her post on September 15 is different from the testimony of others, and plaintiff’s testimony as to who told her to cover the screening post at Terminal 3 differs from Defendant’s evidence. There is a disputed issue of fact as to whether Mendoza acted in a supervisory capacity or not in telling Plaintiff to cover the post at Terminal 3 on the day in question.

As such, the Court finds that Plaintiff has raised triable issues of material fact and the Motion for Summary Judgment is DENIED.

ii. Racial Harassment

The Fair Employment and Housing Act prohibition on harassment states: “It is an unlawful employment practice. . . .[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or person providing services pursuant to a contract.” (Govt. Code, § 12940(j)(1).)

Defendants assert that even assuming Mendoza made the unfavorable comments to Plaintiff, two instances of these comments on September 12, 2022 and September 15, 2022 are not severe or pervasive enough to establish a hostile work environment. Of course, even a single incident of harassment may be enough to constitute a hostile work environment if it “unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”¿ (Gov. Code, § 12923, subd. (b).)¿ The court shall use the totality of the circumstances to determine whether there exists a hostile work environment.¿ (Gov. Code, § 12923, subd. (c).)¿ Where the evidence establishes that Plaintiff did not endure conduct "so severe and pervasive as to alter the conditions of [her] employment," summary judgement is appropriate. (McCoy v. Pacific Maritime Association (2013) 216 Cal. App. 4th 283, 294.)

Plaintiff argues that Mendoza’s comments unreasonably interfered with her work performance and created an intimidating, hostile, and offensive working environment. Plaintiff has provided her own testimony in deposition at page 86 and in her MSJ declaration that Luis told her to clock out and come to his office, not that she abandoned her post. The Court finds that if Plaintiff’s testimony is believed, and that if Mendoza’s comments were a motivating reason for Plaintiff to have called Luis and leave her post, then the jury could determine that the stated reason for plaintiff’s termination just six weeks into her employment was a pretext. Thus, Plaintiff has raised a triable issue of material fact and the MSJ and MSA as to this cause of action is DENIED.

iii. Retaliation for Complaint of Racial Discrimination and Harassment

To establish retaliation under FEHA, a plaintiff must show that “(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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043; see also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.) “[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at 1052.)

Again, the Court notes that the Parties present differing evidence as to why Plaintiff was terminated. The Court’s role on summery judgment is not to place more or less weight on competing testimony. That is a task for the trier of fact. The Court finds that Plaintiff’s testimony that she did not abandon her post, but was instead asked to leave by Franco, raises a triable issue of fact as to why she was terminated. Thus, the MSJ and MSA as to this cause of action is denied.

iv. Pregnancy Discrimination

Pregnancy discrimination is a form of sex discrimination and includes discrimination because of pregnancy, childbirth, breastfeeding, and any medical conditions related thereto. (Spaziano v. Lucky Stores, Inc.¿(1999) 69 Cal.App.4th 106, 109-110; Gov’t Code, § 12926 subd. (r); see also 2 CCR § 11039(a)(E), (J).). Pregnancy discrimination is also a form of disability discrimination if the plaintiff was disabled by her pregnancy or was perceived as such. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) A prima facie case for discrimination consists of (1) the plaintiff’s membership in a protected class; (2) the plaintiff being qualified for the position sought, or having performed competently in the position held; (3) an adverse employment action against the plaintiff (e.g., termination, demotion, or denial of employment); and (4) some other circumstance that suggests discriminatory motive. (Guz v. Bechtel Nat. Inc.¿(2000) 24 Cal.4th 317, 355.)

The timing of Plaintiff’s doctor’s appointment on August 16 is asserted by Plaintiff as raising the inference that her suspension on the same day was motivated by pregnancy discrimination. Further, there is a disputed issue of fact as to whether plaintiff was given that day off because she was notified of being suspended for failing to show and failing to call in despite being approved, per her testimony, for a pregnancy-related day off to attend the medical appointment. The Court thus denies the MSA as to this cause of action.

v. Retaliation for Request for Pregnancy Leave

Defendants argue that Plaintiff is unable to establish that she ever reported Mendoza’s comments to Franco. (Defendants’ UMF No. 43.) Plaintiff’s complaint states that she “made complaints to Defendants about the…racial discrimination and harassment on or about September 12, 2022 and September 15, 2022. (Complaint, ¶ 8.) Further, Plaintiff’s complaint alleges that “Defendants retaliated against and harassed [her] based on her complaints of racial discrimination and harassment.” (Complaint, ¶ 9.)

The plaintiff admits she did not request pregnancy leave, but rather that she requested one day off to attend a doctor’s appointment, and that request was granted. The Court finds no triable issue of fact bearing on the pregnancy retaliation cause of action and grants the MSA as to that claim.

vi. Failure to Provide Pregnancy Accommodation

To state a prima facie case for failure to accommodate claim under FEHA, Plaintiff must show: (1) that she had a disability covered by FEHA; (2) ERMC knew about her alleged disability; (3) she was able to perform her essential job functions; and (4) ERMC denied her a reasonable accommodation. (Gov. Code §§ 12926.1, 12940(m).)

Plaintiff has not shown evidence that she was denied this accommodation. Even in her supporting declaration, Plaintiff declared that “[a]s a courtesy, [she] gave Luis Franco a heads-up around two weeks before [her] September 16th appointment with Dr. Hull. Franco [told] her, “That’s fine – just remind me the day before.” [She] also [states that she] told Azul Essoufi about [her] upcoming September 16th appointment…[and] reminded Franco the day before [her] appointment, and [he] told [her] “Okay.”

Although Defendants’ Essoufi testified that the “no call-no show” was not the reason she was terminated, Plaintiff nonetheless provides evidence that stated despite her informing the individuals of her appointment, Essoufi sent her a text message that read: “Hi Tiana, you were No call no show today. You are now being suspended pending investigation.” (Plaintiff’s Decl., ¶ C.) This raises a disputed issue of fact as to whether Plaintiff was disciplined for taking a medical appointment on August 16, despite being told that she was approved to take that day off for the pregnancy-related appointment. As such, for the same reasons above, the Court DENIES the Motion for Summary Judgment and the MSA as to this cause of action.

vii. Failure to Engage in the Interactive Process

For the same reasons above, the Court DENIES the MSA.

viii. Failure to Prevent Discrimination and Harassment

For the same reasons above, the Court DENIES the MSA.

ix. Intentional Infliction of Emotional Distress

For the same reasons above, the Court DENIES the MSA. .

x. Punitive Damages

For the same reasons above, the Court DENIES the MSA.

IV. CONCLUSION¿¿

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For the foregoing reasons, Defendants’ Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED except it is GRANTED as to the claim of retaliation for requesting pregnancy leave.

Plaintiff is ordered to give notice.¿¿¿¿