Judge: Stephen P. Pfahler, Case: 22STCV20636, Date: 2024-08-27 Tentative Ruling


Case Number: 22STCV20636    Hearing Date: August 27, 2024    Dept: 68

Dept. 68

Date: 8-27-24

Case # 22STCV20636

Trial Date: 10-7-24

 

SUMMARY JUDGMENT/SUMMARY ADJUDICATION

 

MOVING PARTY: Defendant, Los Angeles County Metropolitan Transit Authority

RESPONDING PARTY: Plaintiff, Agop Shukri

 

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication

·         1st Cause of Action: Discrimination in Violation of Government Code 12940, subd. (a)

·         2nd Cause of Action: Retaliation in Violation of Government Code 12940, subd. (h)

 

SUMMARY OF ACTION

Plaintiff Agop Shukri commenced employment with Los Angeles County Metropolitan Transit Authority (LACMTA) as a bus driver in 2016. Shukri immigrated from Iraq. Between 2018 to 2021, Plaintiff sought a transfer of positions to train operator, but was denied. Plaintiff alleges black coworkers made disparaging remarks, and black supervisors denied the transfer and subject Plaintiff to additional scrutiny, all on the basis of race.

 

On June 24, 2022, Plaintiff filed a complaint for Discrimination in Violation of Government Code 12940, subd. (a), Retaliation in Violation of Government Code 12940, subd. (h), Defamation, and Failure to Provide Personnel and Payroll Records. On June 28, 2022, Plaintiff dismissed the third cause of action for Defamation and defendants Sharif Ford, and Renee Dixon-Turner. On July 6, 2022, Plaintiff filed a peremptory challenge thereby leading to reassignment from Department 16 to Department 68.

 

On September 16, 2022, the court sustained the demurrer to the fourth cause of action for Failure to Provide Personnel and Payroll Records with 20 days leave to amend. On October 27, 2022, LACMTA answered the complaint. The court electronic filing system shows no first amended complaint on file.

 

RULING : Denied.

Evidentiary Objections to the Declaration of Diane Frazier: Overruled.

 

Evidentiary Objections to Declaration of Renee Dixon-Turner: Overruled.

 

Evidentiary Objections to Compendium of Evidence: Overruled.

 

Defendant Los Angeles County Metropolitan Transit Authority (LACMTA) moves for summary judgment/summary adjudication on the first and second causes in the complaint for Discrimination in Violation of Government Code 12940, subd. (a), and Retaliation in Violation of Government Code 12940, subd. (h). LACMTA identifies the issues as barred by the statute of limitations, no evidence of discriminatory intent, no protected activity, and valid business reasons for denial of the transfer. Plaintiff in opposition challenges whether LACMTA shifted the burden of proof, denies any bar under the statute of limitations due to continuing violation doctrine, and the conduct constitutes a pretextual action. LACMTA in reply reiterates the basis of termination due to the pedestrian collision, and maintains Plaintiff contradicts deposition testimony regarding understanding of said basis of termination. LACMTA also restates the statute of limitations bar to claims preceding 2019, and present new argument regarding a bar to any claims not raised in the operative complaint. Finally, LACMTA denies any adverse employment actions or discriminatory intent, and reaffirms the legitimate business reason for termination.

 

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)”  (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) 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. Atl. 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 moving for summary judgment “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.”  (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.)

 

“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 inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.”  (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

 

LACMTA represents Plaintiff was eventually terminated, while the complaint lacks any acknowledgment of termination, such as an identified date. LACMTA maintains the course of conduct was the result of three separate incidents involving bus operations, including the vehicle striking a pedestrian. According to LACMTA all accidents are reviewed by the Accident Review Board(s). The board investigates incidents for determination of whether the incident was avoidable or unavoidable. Any determination must be agreed upon by at least two board members. The reports are then considered for potential disciplinary action by management, not the board, in cases of avoidable incidents. [Declaration of Renee Dixon-Turner.] Under the Collective Bargaining Agreement agreed upon by bus operators, each avoidable incident can lead to increasing disciplinary action, with a third violation supporting potential termination.

 

According to LACMTA, Plaintiff was involved in three (3) incidents within a limited period—September 4, 2017, November 30, 2017, and December 1, 2017. All incidents were determined avoidable. Plaintiff was suspended for 15 days following the third incident rather than termination.

 

On May 4, 2021, Plaintiff was involved in a fourth accident involving a pedestrian. The incident was determined avoidable. LACMTA elected to deem this particular incident egregious and scheduled a hearing. Plaintiff was placed on administrative leave pending the hearing. Following the hearing, LACMTA elected to terminate Plaintiff on July 1, 2021.

 

Statute of Limitations

LACMTA first challenges the complaint on grounds of the statute of limitations caused from the failure to file a DFEH complaint within one year of the unlawful practice. Plaintiff received the DFEH letter on May 13, 2022. [Declaration of Irene Yousefi, Ex. FF.] LACMTA contends any disciplinary action occurring prior to 2019 is therefore barred. Plaintiff in opposition acknowledges the termination, but counters that the course of disciplinary action constituted a series of wrongful violations, thereby establishing a basis for continuing violation doctrine.

 

It remains undisputed a one year statute of limitations applies for the filing of a DFEH complaint from the date of the incident barring the finding of an exception, such as continuing violation doctrine. (Gov. Code, § 12960, subd. (b), (d); Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.) Continuing violation requires a finding of an ongoing course of hostile conduct as part of “one unlawful employment practice.” (National R.R. Passenger Corp. v. Morgan (2002) 536 U.S. 101, 118 [122 S.Ct. 2061, 2075].) “[T]he statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain. Accordingly, an employer who is confronted with an employee seeking accommodation of disability or relief from disability harassment may assert control over its legal relationship with the employee either by accommodating the employee's requests, or by making clear to the employee in a definitive manner that it will not be granting any such requests, thereby commencing the running of the statute of limitations. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823–824.)

 

The complaint itself in no way alleges any termination and solely presents the course of conduct as moments of denied transfer opportunities. Notwithstanding the incident reviews of the first three accidents, Plaintiff stayed in the bus driver position until the May 4, 2021, pedestrian collision. This last instance led to suspension and termination for egregious violations. LACMTA concedes that any claims on this basis were timely filed in the DFEH complaint.

 

Given the pleadings frame the issues for a motion for summary judgment, the court must adhere to the presented causes of action. The rules of summary judgment requires adjudication of the entire action, and summary adjudication is only permissible for either individual causes of action or a separate claim for damages or issue of duty. (Code Civ. Proc., § 437c, subd. (f).)

 

The court finds the relied upon termination argument in no way addresses either the entire complaint or a valid part of the individual causes of action in regards to the improper conduct prior to the termination. The court cannot as a matter of law find a bar based on the statute of limitations, due to the failure of LACMTA to establish the lack of applicability of continuing violation doctrine. The motion is denied on the statute of limitations claim. (Gov. Code, § 12960, subd. (b), (d); National R.R. Passenger Corp. v. Morgan, supra, 536 U.S. at p. 118; Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at pp. 823–824; Thompson v. City of Monrovia, supra, 186 Cal.App.4th at p. 879.)

 

1st Cause of Action: Discrimination in Violation of Government Code 12940, subd. (a)

2nd Cause of Action: Retaliation in Violation of Government Code 12940, subd. (h)

LACMTA contends Plaintiff lacks evidence of discriminatory intent in both the denial of the transfer and termination and all actions were for legitimate business purposes. Plaintiff counters that the treatment was pretextual.

 

“The specific elements of a prima facie case [for discrimination] may vary depending on the particular facts. (Citation) Generally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position he sought or was performing competently in the position he held, (3) [s]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.)

 

“[C]ourts considering the question of what constitutes an adverse employment action for purposes of a statutory retaliation claim have uniformly held an intermediate retaliatory employment action may suffice: ‘The legislative purpose underlying FEHA's prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints, and the use of intermediate retaliatory actions may certainly have this effect.’ (Citations.) However, courts also have been united in the view that an employer's intermediate decision or action ‘constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff's employment.’ (Citations.)” (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 641.) A pattern of conduct, rather than a single incident can support a finding of adverse employment. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056.) “[A] series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse [citations] and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.)

 

The court declines to consider the findings in the investigative reviews themselves. In exercising discretionary discipline upon findings of violations, including egregious incidents, the court finds no legal basis of support allowing the court make the determination of termination without any discriminatory or retaliatory animus. Triable issues of material fact exist on the issue of discriminatory conduct. [Dixon-Turner Decl., Yousefi Decl., Declaration of Diane Frazier; Exhibits E, F, H, J, K, N, O, P, Q, R, S, T, BB, EE, GG; Declaration of Agop Shukri; Declaration of Vasili Brasinikas, Ex. 4.]

 

The motion is DENIED.

 

Trial remains set for October 7, 2024.

 

LACMTA to give notice.