Judge Teresa A. Beaudet, Case 19STCV17427 2022-09-02 Tentative Ruling

TERESA DELFIN, Plaintiff, vs. WHITTIER COLLEGE, et al. Defendants.	Case No.:	19STCV17427
	Hearing Date:	September 2, 2022
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANT WHITTIER COLLEGE’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Plaintiff Teresa Delfin (“Plaintiff”) filed this action on May 20, 2019 against Defendant Whittier College (“Whittier”). Delfin filed the operative Fifth Amended Complaint (“FAC”) on January 24, 2022. The FAC asserts causes of action for (1) defamation, (2) retaliation (FEHA), (3) failure to prevent/investigate/remedy retaliation and/or harassment (FEHA), (4) retaliation (Labor Code § 1102.5), (5) sexual harassment hostile work environment (FEHA), (6) retaliation (Title IX), and (7) wrongful termination in violation of public policy.

Whittier now moves for summary judgment, or in the alternative, summary adjudication of each of the causes of action. Plaintiff opposes.[1]

The Court rules on the parties’ evidentiary objections as set forth in the “Joint Statement Regarding Evidentiary Objections Related to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Defendant’s Reply to Opposition to Summary Judgment” as follows:

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” ((Id., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” ((Id., § 437c(f)(1).)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) 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.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

In the FAC, Plaintiff alleges that she was employed by Whittier as a faculty member from September 2009 until her termination on or about June 30, 2018. (FAC, ¶ 14.) Plaintiff began her employment as an Adjunct Professor in the Department of Sociology and Anthropology (the “Department”). (FAC, ¶ 14.) Plaintiff was then promoted to the position of Visiting Assistant Professor in 2010 and promoted again to the position of Lecturer in the fall of 2015. (FAC, ¶ 14.)

The Department’s senior-most faculty member was Professor David Iyam (“Iyam”). (FAC, ¶ 16.) Plaintiff alleges that throughout Iyam’s employment at Whittier, he sexually harassed and/or assaulted more than a dozen students, faculty and staff members. (FAC, ¶ 16.) Whittier accepted Iyam’s resignation following a Title IX investigation. (FAC, ¶ 17.)

In or around May 2013, Plaintiff personally witnessed Iyam’s harassing conduct during a luncheon with faculty and students, and complained about this incident to other faculty members in the Department. (FAC, ¶¶ 21, 22.) Plaintiff also complained to her Department Chair and her colleagues that other students reported similar instances involving Iyam. (FAC, ¶ 22.)

During the 2013 Fall semester, Plaintiff began to advocate for transparency regarding the reason for Iyam’s leave of absence and the steps Whittier should take to prevent further acts of harassment. (FAC, ¶ 27.) In or about the 2014 Fall semester, Whittier promoted Iyam to the highest rank of Full Professor. (FAC, ¶ 28.) Prior to the promotion, Plaintiff complained to the Department Chair about the Department’s failure to consider his history of sexually inappropriate behavior. (FAC, ¶ 28.)

On or around February 4, 2016, a student and advisee of Plaintiff (“SO”) confided in Plaintiff that she had been sexually harassed, assaulted, and battered by Iyam throughout the 2015 Fall Semester and into the 2016 Spring Semester. (FAC, ¶ 29.) Plaintiff contacted Title IX Investigator Elizabeth Schrock demanding that Whittier remove Iyam from campus after describing the extent of SO’s fear and that of other students. (FAC, ¶ 31.) Shortly before the Title IX hearing in the 2016 Title IX Investigation, then-Department Chair sal johnston (“johnston”)^{^[3]} warned Plaintiff that she may be retaliated against if she continued to support SO, and suggested that he replace her as the faculty support person for SO at the Title IX hearing because, unlike her, he had protection given his status as a tenured professor. (SAC, ¶ 32.)

In December 2016, Plaintiff submitted her second Professional Evaluation Growth Plan (“PEGP”) to the Faculty Personnel Committee (“FPC”). (FAC, ¶ 35.) In Plaintiff’s 2016 PEGP, Plaintiff described her advocacy as SO’s primary faculty advocate during the 2016 Title IX Investigation and johnston’s suggestion of replacing her as faculty advocate to protect

Plaintiff alleges that Dean of Faculty Darrin Good (“Dean Good”) decided in or about March 2017 to terminate Plaintiff’s employment. (FAC, ¶ 37.) Dean Good foreclosed any possibility for Plaintiff to appeal the termination by creating an ad hoc appeal policy that could only be based on two criteria, neither of which applied or could apply to Plaintiff. (FAC, ¶ 38.) Dean Good cited as the bases for his decision to terminate Plaintiff’s employment the FPC’s consensus and his own review of her performance in the areas of classroom teaching, advising, and service to the College and community. (FAC, ¶ 42.) Plaintiff alleges that in contrast with Dean Good’s stated reasons for the termination, Plaintiff maintained a strong performance record both inside and outside the classroom. (FAC, ¶ 44.) Plaintiff alleges that Whittier’s claim of Plaintiff’s deficient performance was a pretext to cover up for the fact that Whittier was terminating Plaintiff in retaliation for disrupting the culture of accepting Iyam’s sexual misconduct. (FAC, ¶ 47.)

Plaintiff further alleges that when Dean Good terminated Plaintiff’s employment, he decided to make her ineligible for rehire on the defamatory basis that she had “low quality teaching.” (FAC, ¶ 48.) Plaintiff also alleges that Dean Good made “defamatory statements” about her at a March 2017 Parent-Student Meeting. (FAC, ¶ 55.) In addition, Plaintiff alleges that in or about February 2017, in order to convince other FPC members to recommend termination, Dean Good fabricated a conversation he had with the then-current and former Department Chairs that never actually happened. (FAC, ¶ 56.) Specifically, Dean Good told the FPC members that the tenured members of the Department said they believed that Plaintiff felt she was “untouchable”, a “strong message needs to be sent,” and discussed terminating her employment with Dean Good. (FAC, ¶ 56.)

Plaintiff also alleges that beginning in about the Fall of 2015, Plaintiff found Dean Good staring at her for long periods of time, and that the staring episodes continued through in or around early 2017 until Dean Good notified Plaintiff of his decision to terminate her employment. (FAC, ¶ 59.) In addition, in the Fall of 2016, Dean Good interrupted a meeting Plaintiff had with a student in her office to compliment Plaintiff about a dress that she was wearing and how great he thought Plaintiff looked wearing it. (FAC, ¶ 60.) Plaintiff also alleges that during the March 28, 2017 Parent-Student Meeting, Dean Good insinuated that Plaintiff’s students’ opinions of her teaching should be disregarded, as they can be biased because of her attractiveness. (FAC, ¶ 61.)

Plaintiff further alleges that between the end of October 2017 and May 2018, Plaintiff became aware that a student had been sexually harassed and/or assaulted by another student and that Whittier had not adequately protected the victim in response to her Title IX complaint. (FAC, ¶ 63.)

Plaintiff alleges that on or about May 8, 2018, she complained to HR Director Cynthia Joseph (“Joseph”) of a hostile work environment, Dean Good’s alleged retaliation for her actions as a whistleblower with regard to Iyam’s sexual harassment and/or assault, as well as Whittier’s culture of willful indifference toward sexual harassment and assault on campus. (FAC, ¶ 65.) Plaintiff alleges that Joseph conducted a “sham” and incomplete investigation of Plaintiff’s complaint. (FAC, ¶ 66.) On July 9, 2018, after Whittier had already terminated Plaintiff’s employment, Plaintiff received a letter from Joseph stating that Plaintiff’s complaint was found to be unsubstantiated. (FAC, ¶ 70.)

Plaintiff’s second cause of action is for retaliation in violation of FEHA. In support of this cause of action, Plaintiff alleges that as a result of her reporting the unlawful conduct of employees of Whitter, Plaintiff was retaliated against by Whitter. (FAC, ¶ 93.)

“[I]n order to 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.” ((Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’” ((Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) Protected activity includes opposing “any practices forbidden” under FEHA or filing a complaint, testifying, or assisting in any proceeding under FEHA. ((Gov. Code, § 12940, subd. (h).)¿¿

Plaintiff’s fourth cause of action is for retaliation in violation of Labor Code section 1102.5. In support of this cause of action, Plaintiff alleges that she reported and disclosed unlawful acts to managers and supervisors employed by Whittier, and that as a result of Plaintiff’s reporting and disclosure of unlawful acts, Whitter retaliated against Plaintiff. (FAC, ¶¶ 107-108.) Labor Code section 1102.5, subdivision (b) provides that an “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”

In Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712, the California Supreme Court held that “section 1102.6, and not McDonnell Douglas, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims. By its terms, section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case: First, it must be ‘demonstrated by a preponderance of the evidence’ that the employee’s protected whistleblowing was a ‘contributing factor’ to an adverse employment action. (§ 1102.6.) Then, once the employee has made that necessary threshold showing, the employer bears ‘the burden of proof to demonstrate by clear and convincing evidence’ that the alleged adverse employment action would have occurred ‘for legitimate, independent reasons’ even if the employee had not engaged in protected whistleblowing activities.”

First, Whitter asserts in the motion that Plaintiff fails to establish an actionable “adverse employment action” for purposes of her retaliation causes of action. However, in the reply, Whittier indicates that it “concedes for the purposes of this motion that Plaintiff’s nonrenewal is a legally sufficient ‘adverse action’ in this context.” (Reply at p. 14, fn. 11.)

Next, Whitter asserts that there is no causal link between Plaintiff’s alleged protected activity and the nonrenewal of her expiring contract with Whittier.[5] Whitter points to evidence that Plaintiff was asked in her deposition, “did you experience any negative consequences for your being involved in the SO investigation on Whittier campus up to the time of your submission of your PEGP to the FPC?” to which Plaintiff responded “Not that I’m aware.” (Ibarra Decl., ¶ 4, Ex. 49 (Delfin Depo.) at p. 91:4-91:8.) Plaintiff was also asked, “those are the five individuals on the FPC -- the five faculty members on the FPC. It is accurate to say that you don’t have any personal knowledge of any of them taking negative action against you due to the Iyam investigation, correct?,” to which Plaintiff responded, “Correct. I have no such knowledge.” (Id. at p. 94:5-94:11.) Plaintiff was also asked, “[d]o you have any personal information of Dr. Good taking negative action against you due to your involvement with the Iyam situation?” to which Plaintiff responded, “So do I have direct objective knowledge? No.” (Id. at p. 95:2-95:7.)

Whittier also indicates that the FPC considered and rejected revisiting its decision to recommend nonrenewal of Plaintiff’s annual Lecturer contract via an email communication initiated by Dean Good on Wednesday, March 1, 2017 and running through Friday, March 3, 2017. (Whittier’s Separate Statement of Undisputed Material Facts (“UMF”) No. 52.)

Plaintiff counters that there is a causal link between Plaintiff’s protected activities and Whitter’s decision to “terminate” her. Plaintiff provides evidence that on February 4, 2016, “Jane Doe 3,” one of Plaintiff’s student advisees, informed Plaintiff that she had been sexually assaulted and harassed by Iyam and that she had submitted a Title IX complaint that same day. (Jane Doe 3 Decl., ¶¶ 2-4.) johnston warned Plaintiff that she could be retaliated against for supporting Jane Doe 3 and suggested that she not appear at the Title IX hearing. (Kim Decl., ¶ 28, Ex. 222 (Delfin Depo.) at p. 49:10-51:19.) In addition, Plaintiff indicates that her PEGP described her role in Iyam’s removal from Whittier in a section entitled “Advocacy.”(Plaintiff’s Ex. 11.)[6] In this PEGP, Plaintiff wrote: “Perhaps the most important aspect of my job is the advising I do outside of office hours…I received an email from an advisee informing me that she had been sexually assaulted by her professor – one of my senior colleagues. This triggered an avalanche of investigations, advocacy, interviews, and behind the scenes work to keep the student safe…From early February to May I was in weekly meetings with the student, with Elizabeth Schrock, and with then department chair sal johnston. I was asked by the student to be her support person during the hearing, but sal johnston stepped in, offering to protect me from the process given my non-tenured status.” (P’s App. Ex. 11.) Plaintiff also provides evidence that Dean Good testified that Plaintiff’s inclusion of the advocacy section in her second PEGP “wasn’t her best strategy for being successful,” and when asked “[s]uccessful in terms of remaining employed?” he responded “[c]orrect.” (Kim Decl., ¶ 15, Ex. 208 (Good Depo.) at p. 65:18-24.)

Based on the foregoing, the Court finds that Plaintiff has presented sufficient evidence to raise a triable issue of material fact as to whether there is a causal link between Plaintiff’s protected activity and the nonrenewal of her contract.

Whitter also argues that Plaintiff’s retaliation causes of action fail because Whittier has

evidence demonstrating a legitimate business reason for the nonrenewal of Plaintiff’s contract.

As to the FEHA and Title IX retaliation causes of action, under the three-part burden-shifting framework laid out in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, “the employee must establish a prima facie case of unlawful discrimination or retaliation. Next, the employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action. Finally, the burden shifts back to the employee to demonstrate that the employer’s proffered legitimate reason is a pretext for discrimination or retaliation.” (Lawson v. PPG Architectural Finishes, Inc., supra, 12 Cal.5th 703 at 708 [internal citation omitted].)

“To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 614.) The Court notes that Whitter does not appear to dispute that Plaintiff engaged in a protected activity for purposes of her retaliation causes of action. In addition, Whittier indicates in the reply that it concedes for the purposes of this motion that Plaintiff’s nonrenewal is a legally sufficient “adverse action” in this context. In addition, as discussed above, Plaintiff provides evidence that johnston told Plaintiff that she could be retaliated against for advocating on behalf of Jane Doe 3 (a victim of sexual harassment and assault), and Dean Good testified that mentioning her advocacy in her PEGP “wasn’t her best strategy for being successful . . . in terms of remaining employed.”

As to the second step in the McDonnell Douglas framework, the Court finds that Whitter has articulated a legitimate reason for taking the challenged adverse employment action. Whitter provides evidence that “[t]he consensus to recommend non-renewal was based on the FPC’s conclusion that Plaintiff’s teaching lacked rigor, resulting in low quality of teaching, and that her failure to engage this topic in her 2017 PEGP, even after she had been asked to do so in 2016, showed a lack of reflection on the issue and lack of commitment to improving the rigor in her teaching.” (Good Decl., ¶ 6.) A “Personnel Action Request” form provided that Plaintiff was not eligible for rehire as faculty due to “FPC decision of low quality teaching.” (Joseph Decl., ¶ 14, Ex. 46.)

Thus, the burden shifts to Plaintiff to demonstrate that Whitter’s proffered legitimate reason is a pretext for retaliation. Plaintiff asserts that Whittier’s given reason for termination—“low quality of teaching”—is disputed by the fact that neither Good nor any of the FPC members between 2015 through 2017 ever personally observed Plaintiff teach. (Delfin Decl., ¶ 9.) Plaintiff also provides evidence that her Department chair said that Plaintiff engages in “great anthropological teaching” and that she was “sometimes even awestruck” with Plaintiff’s “ability to encourage learning through discussion.” (Plaintiff’s Exhibits 188, 189.) In addition, it is undisputed that between Fall 2014 through Spring 2017, Plaintiff had the highest average student teaching evaluation scores among all the 15 professors in the Department of Anthropology & Sociology. (Plaintiff’s “Omitted” Material Facts (“OMF”) No. 243). Plaintiff argues that this is circumstantial evidence that the real reason for her termination was not “low quality of teaching” but Dean Good’s view that Plaintiff needed to be taught a lesson after she criticized the campus handling of the Iyam investigation. The Court finds that Plaintiff has presented sufficient evidence to show that a triable issue of fact exists as to whether Whitter’s reasons for her termination were pretextual.

“[u]nder section 1102.6, a plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual. Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact as to whether Whitter had at least one retaliatory reason that was a contributing factor in Plaintiff’s termination.

Based on the foregoing, the Court denies summary adjudication on the second, fourth, and sixth causes of action.

“The law prohibiting harassment is violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” ((Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263 [internal quotations omitted].) This must be assessed from the perspective of a reasonable person belonging to the same protected group as the plaintiff, and is ordinarily an issue of fact. ((Id. at p. 264.) “Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610 [internal citation omitted].)[7]

Whitter argues that Plaintiff’s hostile work environment cause of action is time-barred, and that Plaintiff’s allegations fail to raise a claim of an actionable hostile work environment.

Before suing for violation of FEHA, a plaintiff must file a timely and sufficient administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and receive a “right to sue” notice. (Gov. Code, §§ 12960, 12965(b).) Under the former version of Government Code section 12960,¿a person claiming to be aggrieved by an alleged unlawful practice¿under FEHA was obligated to file an administrative complaint with the DFEH within one year from¿the date the alleged unlawful practice¿or refusal to cooperate with FEHA occurred.¿(Former Gov. Code §12960(d), amended eff. Jan. 1, 2020, by Stats. 2019, ch. 709 (Assembly Bill No. 9).) Government Code section 12960 now requires administrative complaints to be filed with the DFEH within three years from the date of the alleged unlawful practice or the date the refusal to cooperate occurred. (See Gov. Code, § 12960(e)(5).)

Whitter provides evidence that during her deposition, Plaintiff testified that she does not recall any instances of observing anyone sexually harassing anybody at Whittier during the time frame from when Iyam left until Plaintiff’s submission of her PEGP. (Ibarra Decl., ¶ 4, Ex. 49 (Delfin Depo.) at p. 88:6 - 88:23.) Iyam resigned from Whittier on May 7, 2016. (Joseph Decl., ¶ 13.) Plaintiff did not file her DFEH complaint until October 19, 2018 (FAC, ¶ 10, Ex. A), which is more than one year after Iyam resigned.

Plaintiff argues that she satisfies the “similarity” and “frequency” prongs because she perceived sex-based hostility from offensive conduct happening to her and other women from May 2013 through the end of her employment on June 30, 2018. Plaintiff provides evidence that

in May 2013, Plaintiff sat with Iyam at a luncheon where Iyam made a sexual comment about a student seated at their table. (Kim Decl., ¶ 28, Ex. 222 (Delfin Depo.) at p. 120:6-121:7; Plaintiff’s Ex. 103.) One of Plaintiff’s student advisees, Jane Doe 1, confided in Plaintiff during the summer of 2013 that she had submitted a Title IX complaint around the spring 2013 semester as a result of Iyam’s sexual harassment and assault of her throughout the 2012-2013 academic year. (Delfin Decl., ¶ 15.) On February 4, 2016, “Jane Doe 3,” another student advisee of Plaintiff, informed Plaintiff that she had been sexually assaulted and harassed by Iyam and that she had submitted a Title IX complaint that same day. (Jane Doe 3 Decl., ¶¶ 2-4.) Between around October 2017 and the end of Fall 2017 semester, a student of Plaintiff’s told Plaintiff that she repeatedly requested an accommodation to have a private space where she could express breastmilk, but Whittier had an inadequate response to such request. (Gonzalez Decl., ¶ 4.) The student felt she was harassed by the Whittier administration when she complained. (Gonzalez Decl., ¶ 4.) In addition, Dean Good made a comment to Plaintiff about a green dress she was wearing when Plaintiff was talking to one of her students in her office. (Kim Decl., ¶ 28, Ex. 222 (Delfin Depo.) at p. 54:9-54:15; Kim Decl., ¶ 14, Ex. 207 (Joseph Depo.) 306:4-19; 332:7-333:5.)[8] Plaintiff asserts that these acts contributed to the creation of a hostile work environment.

Whittier counters that the actions complained of by Plaintiff are neither “sufficiently similar in kind” nor did they occur “with reasonable frequency,” because “the conduct of David Iyam, the alleged conduct of Darrin Good, and the student breast feeding incident involve completely different, separate, and distinct events that took place years apart.” (Reply at p. 11:4-6.) Whittier also argues that “[t]here is no evidence, other than the May 2013 luncheon incident reported by Plaintiff, that support a conclusion that Iyam’s harassment had any effect on Plaintiff’s work environment, much less her direct and personal work environment as required by the law.” (Mot. at p. 26:8-11.) In addition, Whittier notes that Plaintiff’s opposition does not address whether the harassing conduct unreasonably interfered with Plaintiff’s work performance.

Indeed, as discussed, “[t]he plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 609.) Plaintiff does not appear to present evidence that the harassing conduct interfered with her work performance and seriously affected Plaintiff’s psychological well-being. Rather, as discussed above, Plaintiff asserts that “Whittier’s given reason for termination—‘low quality of teaching’—is disputed by the fact that the FPC never observed Plaintiff teach, and the only people who did gave glowing reviews…Delfin received the highest average student teaching evaluation scores when she was a Lecturer from Fall 2014 to Spring 2017…and won numerous awards in 2016 and 2017 for her research and service to the College.” (Opp’n at p. 28:22-29:1.)

Based on the foregoing, the Court finds that Whittier has met its burden of demonstrating that Plaintiff’s fifth cause of action for sexual harassment hostile work environment is without merit, and that Plaintiff has failed to raise a triable issue of material fact as to this cause of action.

Government Code section 12940, subdivision (k), prohibits an employer from failing “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” “An employer who knows or should have known of unlawful harassment and retaliation, and fails to take immediate and appropriate corrective action, may be liable for the resulting damages…However, because the statute does not create a stand-alone tort, the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred.” ((Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880 [112 Cal.Rptr.3d 377].) Whittier argues that “since no discriminatory or retaliatory conduct occurred here,” the third cause of action for failure to prevent/investigate/remedy retaliation and/or harassment must fail. (Mot. at p. 27:6.)

Because the Court denies summary adjudication on the retaliation causes of action, the Court also denies summary adjudication on the third cause of action for failure to prevent/investigate/remedy retaliation and/or harassment.

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” ((Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) A discharge in violation of the FEHA may give rise to a common law claim for wrongful discharge. ((Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897.)

Whittier argues that Plaintiff’s seventh cause of action for wrongful termination in violation of public policy must fail because Plaintiff’s employment with Whittier was never “terminated,” but merely not renewed. It is undisputed that Plaintiff had an annual contract with Whittier as a Lecturer from 2014 until nonrenewal effective June 30, 2018, and that Plaintiff’s annual contract could be nonrenewed by Whittier at will. (UMF Nos. 3, 4.) Whittier notes that “[a] cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract. In that instance, there is no termination of employment but, instead, an expiration of a fixed-term contract.” ((Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 678.)

Plaintiff counters that she “does not dispute that she had a contract, but the expectation was always that her employment would continue past the end of the contract term.” (Opp’n at p. 33:6-8.) However, Plaintiff does not cite to any legal authority demonstrating that this is sufficient for purposes of her wrongful termination in violation of public policy claim. Plaintiff also provides evidence, however, that Dean Good signed a “Personnel Action Request” form pertaining to Plaintiff where the box for “termination” is checked. (Plaintiff’s Ex. 79; Kim Decl., ¶ 15, Ex. 208 (Good Depo.) at p. 173:2–174:2.) Whittier does not offer any response to this point in the reply, which the Court construes as a concession of the merits of Plaintiff’s argument.

Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact as to whether she was “terminated” for purposes of her seventh cause of action for wrongful termination in violation of public policy, and denies summary adjudication on this cause of action.

Citing to paragraphs 78 and 79 of the FAC, Plaintiff indicates in the opposition that she “bases her defamation claim on three statements by Dean Good: (1) a written statement to HR Director Cynthia Joseph and Controller Keith Pew on May 21, 2018 that Whittier terminated Dr. Delfin for low quality teaching (the “Teaching Statement”), (2) oral statements to a group of students and a parent on March 28, 2017 that the Department Letter supported termination (the “Department Letter Statement”), and (3) oral statements to the FPC on February 21, 2017 that the Department Chairs discussed terminating Dr. Delfin when Dean Good met with them on February 13, 2017 (the “Department Chair Statement”).” (Opp’n at p. 34:7-14.)

Whitter asserts that the defamation claims concerning the March 2017 “Department Letter Statement” and the February 2017 “Department Chair Statement” are time-barred under the one-year statute of limitations period set forth in Code of Civil Procedure section 340, subdivision (c). Whittier notes that the instant action was filed on May 20, 2019.

Plaintiff counters that “[a]ll statements fall within the statute of limitations because Plaintiff only learned of each one during this lawsuit.” (Opp’n at p. 34:15-16.) However, Plaintiff fails to cite to any legal authority in support of this assertion or explain further why the statute of limitations set forth in Code of Civil Procedure section 340, subdivision (c) would not apply here.

The remaining alleged defamatory statement concerns the May 21, 2018, “Teaching Statement.” (See FAC, ¶¶ 48-49.) Whittier asserts that this document, titled “Personnel Action Request,” “constitutes a privileged communication and, also, is true. It is protected by Civil Code section 47.” (Mot. at p. 28:6-7; Joseph Decl., ¶ 14, Ex. 46.)

In support of this assertion, Whittier cites to Taus v. Loftus (2007) 40 Cal.4th 683. In that case, the California Supreme Court noted that “Civil Code section 47, subdivision (c)(1) provides in relevant part: A privileged publication or broadcast is one made:…(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested … . In light of past California cases applying section 47, subdivision (c)(1), it is clear that the alleged defamatory statement here in question—a statement made by Loftus, a psychology professor and author, at a professional conference attended by other mental health professionals and that was related to the subject of the conference—falls within the reach of this statutory common-interest privilege.” (Taus v. Loftus (2007) 40 Cal.4th 683, 721 [internal quotations omitted].) It is undisputed that Good and Joseph submitted the Personnel Action Request form to Whittier administrative departments regarding Plaintiff’s separation from Whittier for internal administrative purposes only. (UMF No. 67.)

Plaintiff asserts that “[n]one of these statements fall under a claim of privilege.” (Opp’n at p. 35:6.) However, no further analysis is provided by Plaintiff on this point. Plaintiff also argues that there is “malice” to defeat the common interest privilege. Plaintiff asserts that “Dean Good’s malice can be inferred from disparaging Plaintiff to a committee with the power to end her employment.” (Opp’n at p. 35:10-11.) But as Whittier notes, the subject “Personnel Action Request” from provides, “FPC decision of low quality teaching.” (Joseph Decl., ¶ 14, Ex. 46.) Whittier asserts that accordingly, Dean Good did not make a statement of fact regarding Delfin’s teaching, he made a statement of fact regarding the FPC’s determination regarding her nonrenewal. Whittier notes that “[u]nder Civil Code section 47, subdivision (c), defendant generally bears the initial burden of establishing that the statement in question was made on a privileged occasion, and thereafter the burden shifts to plaintiff to establish that the statement was made with malice.” (Taus v. Loftus (2007) 40 Cal.4th 683, 721.)

Based on the foregoing, the Court finds that Whittier has met its burden of demonstrating that Plaintiff’s first cause of action for defamation is without merit, and that Plaintiff has failed to raise a triable issue of material fact as to this cause of action.

Whittier’s motion for summary adjudication is granted as to the first and fifth causes of action. Whittier’s motion for summary adjudication is denied as to the second, third, fourth, sixth, and seventh causes of action.

[1]On April 12, 2022, the Court issued an Order on an ex parte application filed by Plaintiff, which provides in part that Plaintiff is permitted to file an opposition to Whittier’s motion for summary judgment/adjudication that is no more than 30 pages and Whitter may file a reply that is no more than 22 pages.

[2]The parties’ evidentiary objections in the Joint Statement of Objections are numbered consecutively.

[3]Whittier indicates that Dr. johnston chooses to not initial capitalize his name.

[4]In support of this cause of action, Plaintiff alleges that she (1) opposed what she reasonably believed to be the creation of a hostile educational (as well as a hostile work) environment by Whitter in giving Iyam free rein to sexually harass and assault students, faculty and staff for at least 10 years, (2) advocated on behalf of students’ and her own Title IX rights to an educational (and work) environment free from sexual harassment and assault and enforcement thereof, and (3) cooperated in the 2016 Title IX Investigation against Iyam. (FAC, ¶ 120.) Plaintiff alleges that Whitter retaliated against Plaintiff for her protected Title IX activity which violates Title IX and any applicable interpretative regulations. (FAC, ¶ 121.)

[5]The Court notes that in support of this assertion, Whittier cites to Anderson v. Donahoe (7th Cir. 2012) 699 F.3d 989, nonbinding federal authority.

[6]Plaintiff notes that the parties entered into a Stipulation Regarding Authenticity and Genuineness of Documents Produced by Plaintiff and Whittier in Discovery. (Kim Decl., ¶ 7, Ex. 149.)

[7]In support of her fifth cause of action for sexual harassment hostile work environment, Plaintiff alleges that “Plaintiff, although not personally subjected to unwanted harassing conduct, personally witnessed harassing and abusive conduct by Professor Iyam that took place in her immediate work environment. The abusive and harassing conduct…was engaged by [Whittiers’] own supervisory personnel and/or known by [Whittiers’] supervisors who participated in the harassment of Plaintiff by their discriminatory and retaliatory behavior toward Plaintiff as alleged herein and/or substantially assisted, encouraged and condoned the continued harassment toward Plaintiff creating a hostile work environment, and sanctioned and ratified the unlawful harassing conduct.” (FAC, ¶ 113.)

[8]Plaintiff alleges that this took place in the Fall of 2016. (FAC, ¶ 60.)

[9] In the FAC, Plaintiff alleges that defamatory statements were made about Plaintiff, which included express and implied representations by Dean Good that: (1) Plaintiff’s termination was based on the FPC decision of “low quality teaching”; (2) the “Department letter” supported terminating Plaintiff’s employment; and (3) the then-current and former Department Chairs, among other things, said to Dean Good that they believed Plaintiff felt she was “untouchable”, a “strong message needs to be sent,” and discussed terminating her employment with Dean Good. (FAC, ¶ 78.)

Superior Court of California

County of Los Angeles

Department 50