Judge: Stephen I. Goorvitch, Case: 22STCV18814, Date: 2024-01-12 Tentative Ruling
Case Number: 22STCV18814 Hearing Date: January 12, 2024 Dept: 39
Kenneth Berry v.
Los Angeles Unified School District
Case Number
22STCV18814
Motion for Summary
Judgment
Plaintiff
Kenneth Berry (“Plaintiff”) filed this action against his employer, the Los
Angeles Unified School District (“Defendant” or the “LAUSD”), following his
termination. Plaintiff, who is
African-American, asserts a single cause of action for discrimination based on
race in violation of the Fair Employment and Housing Act, Government Code
section 12900, et seq. Defendant now
moves for summary judgment, which Plaintiff opposes.
When deciding issues of adverse employment actions, such as discrimination
and retaliation, the Court applies the McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792 shifting burdens test.
(Caldwell v. Paramount Unified School Dist. (1995) 41
Cal.App.4th 189, 203; Loggins v. Kaiser Permanente Intern. (2007)
151 Cal.App.4th 1102, 1108–09.) Under
the three-part test developed in McDonnell, if the employee
successfully shows a prima facie case exists, the burden shifts to the employer
to provide evidence that there was a legitimate, nonretaliatory reason for the
adverse employment action. (Morgan v.
Regents of University of California (2000) 88 Cal.App.4th 52,
68.) If the employer produces evidence
showing a legitimate reason for the adverse employment action, the burden
shifts back to the employee to provide “substantial responsive evidence” that
the employer’s proffered reasons were untrue or pretextual. (Loggins v. Kaiser Permanente Internat. (2007)
151 Cal.App.4th 1102, 1109.)
Assuming
Plaintiff has established a prima facie case of discrimination, Defendant
articulates non-discriminatory reasons for Plaintiff’s termination, viz.,
Plaintiff’s battery of a coworker, Leonel Fierro. Plaintiff testified that he approached Mr.
Fierro and called him a “stupid motherfucker” after he (Fierro) knocked over
some pallets.” (Declaration of Kellen
V.G. Nelson, Exh. B, p. 74:20-22; Declaration of Scott W. Lee, Exh. #1, p.
48:9-19; Declaration of Kenneth Barry, ¶¶ 7-9.)
In response, Fierro said: “Fuck you, tu madre,” and displayed his middle
finger to Plaintiff. (Declaration of
Kellen V.G. Nelson, Exh. B, p. 77:13-78:1; Declaration of Scott W. Lee, Exh.
#1, p. 48:9-19.) Plaintiff became upset
and admitted that he responded “by making physical contact with Mr.
Fierro.” (Declaration of Kellen V.G.
Nelson, Exh. B, p. 78:4-6.) Plaintiff
admitted that that he “hit [Fierro’s] hand out of [his] face.” (Declaration of Scott W. Lee, Exh. #1, p.
48:24-25.) Then, according to Plaintiff,
Fierro said, “Fuck you! Tu mayate
madre!” (Declaration of Kenneth Barry, ¶
17.) Plaintiff understood the term
“mayate” to be a racial epithet in Spanish for African-Americans. (Id., ¶ 18.)
Plaintiff admitted that he slapped Fierro’s hand again. (Id., ¶ 19.)
Plaintiff admitted that he made physical contact with Mr. Fierro twice
during this incident. (Declaration of
Scott W. Lee, Exh. #1, p. 49:13-15.) Defendant
terminated Plaintiff based upon having escalated an alleged verbal altercation
into a physical altercation. (See
Declaration of Kellen V.G. Nelson, Exh. E.)
Defendant relies on its policy, which prohibits workplace violence. (Id., Exh. C.)
This
evidence shifts the burden to Plaintiff to advance sufficient evidence that the
LAUSD’s purported reason for termination is false, and that he was truly terminated
based upon his race. Plaintiff fails to
do so. Even if Fierro levied a racial
epithet against Plaintiff’s mother, there is no evidence that he was the
decision-maker concerning Plaintiff’s termination. To the contrary, the evidence establishes
that he merely was a warehouse worker.
Plaintiff advances no evidence suggesting that any other LAUSD employee or
any supervisor ever made racist comments.
Plaintiff attempts
to establish pretext by arguing there was disparate treatment under the policy,
namely, he was terminated and Fierro was not terminated or disciplined. Standing alone, this does not establish
pretext because Plaintiff and Fierro are not similarly-situated: It is
undisputed that Plaintiff used physical violence and Fierro did not. The mere fact that Fierro was not disciplined
or terminated for use of profanity is not evidence of pretext because according
to Plaintiff, the use of profanity was common and normal in the warehouse. (Declaration of Kenneth Barry, ¶ 11.) Also important, Fierro denied having used
racially derogatory language. (Declaration
of Scott W. Lee, Exh. #2, p. 58:7-12.) The
mere fact that the LAUSD believed Fierro in this regard does not establish that
Plaintiff was terminated based upon his race.
Indeed, an employer may terminate an employee for “a good, bad,
mistaken, unwise, or even unfair reason, as long as its action is not for a
discriminatory reason.” (See CACI No.
2513.)
In sum, Plaintiff
identifies nothing suggesting that the LAUSD terminated him not because he
battered a co-worker, but instead because he is African-American. Therefore, the Court orders as follows:
1. The Court grants Defendant’s motion for
summary judgment.
2. Defendant
shall lodge a proposed judgment forthwith.
3. The
Court finds that Defendant is not entitled to costs absent a noticed motion by
Defendant because “a prevailing defendant shall not be awarded fees and costs
unless the court finds the action was frivolous, unreasonable, or groundless
when brought, or the plaintiff continued to litigate after it clearly became so
. . . .” (Gov. Code, § 12965, subd. (b);
see also Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 76.)
4. Defendant’s
counsel shall provide notice and file proof of such with the Court.
Dated: January 12,
2024 /s/
Stephen I. Goorvitch
Superior
Court Judge