Judge: Theodore R. Howard, Case: 21-1214732, Date: 2023-07-20 Tentative Ruling

The Motion for Summary Judgment filed on 1/27/23 by Defendants USI Insurance Services, LLC (“USI”) and Duke Tomei (“Tomei”) (together as moving parties here, “MPs”), as to the First Amended Complaint filed by Plaintiff Maeve Courtney (“Plaintiff”) is GRANTED.

Summary judgment is proper where the evidence shows there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119; C.C.P. § 437c(c).) To satisfy this burden, a defendant must establish that one or more of the elements of a cause of action (a “COA”) cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular COA or the proffered defense thereto. (Id.) The plaintiff must set forth specific facts demonstrating a triable issue of material fact exists. (Id.; C.C.P. § 437c(o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

Here, MPs have presented evidence sufficient to meet their  initial burden on each of the COAs in the FAC, while Plaintiff has failed to show that a triable issue of material fact exists for any of her claims.

For COAs 1 and 2, Plaintiff asserts claims for gender and associational disability discrimination, based on disparate treatment. In this context, the employer has the initial burden of establish a legitimate, nondiscriminatory basis for the employment decision: the plaintiff then bears the burden of proving that the proffered legitimate reason was pretextual. Absent substantial responsive evidence of the untruth of that justification or pretext, summary judgment is proper. (Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156, Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058; Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.)  And the true motivation must be an unlawful one: there must be evidence supporting a rational inference that intentional and unlawful discrimination was the true cause of the employer’s actions. (Slatkin, supra, 88 Cal.App.4th at 1157–1158.) 

Here, MPs have presented a legitimate nondiscriminatory basis for the employment decisions at issue – that they were based on poor performance, including failures to attend meetings, failure to produce revenue, and failure to meet the appointment requirements for her position.  (UF 9-13, 20-21, 44, 57 – 65, 68, 76-96.) The burden thus shifts to Plaintiff.

In response, Plaintiff has failed to present evidence to show that the stated reasons were pretextual or based on discriminatory animus.  She claims that several men were given better mentoring opportunities but has failed to present substantial evidence to support that assertion. (UF 121 – 124, 126-129, 132.) She claims that she was not given the same leeway as a male employee in allowing for remote attendance for meetings to accommodate childcare needs, but MPs have shown that he was not similarly situated and thus that this is not a valid basis for comparison. (UF 34, 36, 44, 57 – 65, 68, 76-96.) She also argues that male colleagues performing similarly were treated differently - but MPs have shown that none had performed comparably to her, after similar periods of employment. (UF 99, 102-104, 107-109, 111-113, 115 -117.) She thus has not shown that she was treated differently from male colleagues who were similarly situated and performing comparably. And although she refers to comments made by Tomei at a lunch (UF 170, 183), she has failed to show how those comments could be viewed as evidence of pretext. 

Nor has Plaintiff presented substantial evidence to show associational disability discrimination. She argues this is shown because there were concerns about her being “distracted” by her son’s needs, pointing to Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028. But in Castro, there were otherwise no issues with the plaintiff’s performance. (Id. at 1045.)  Here, MPs have shown that there were. (UF 9-13, 20-21, 44, 57 – 65, 68, 76-96.)  She also asserts that the performance metrics were not fairly applied to her but has not shown that alternate means of obtaining credits, upon which she relies, were actually implemented after being considered. (See ROA 105, Exs. 5 and 9; UF 55-57.) 

In addition, although Plaintiff asserts that childcare challenges played a role in her termination, she has not shown that MPs concerns were related to her son’s disability. Instead, MPs have shown that the same standards were applied to all employees. (UF 93, 147-148, 152-154.) MPs have also shown that she was already on a “PIP” based on her performance before issues related to returning to the office arose. (UF 60- 62, 71-73, 147-153.)  MPs have also shown that although there were concerns about her being “distracted with her surroundings and other obligations,” MPs decision to terminate her was based on her overall performance. (UF 93, 154.)

The Motion is therefore GRANTED on Issues 2 and 4, which makes Issues 1 and 3 MOOT.

For COA 3, MPs have presented evidence to show that Plaintiff has not identified any specific male employees who received higher wages than she did, and that she did not know how much her colleagues were being paid. (UF 161, 162.)

She claims in response that Mr. Klein was performing similarly, yet was not subjected to the pay cut she received. (UF 162.)  But MPs have shown that Mr. Klein was a more recent hire, had produced revenue in 2020 while she did not, and he had more appointments in 2020. (UF 99- 104.) Plaintiff also notes that he had “over 10 years of experience.” (UF 104.)

It is the plaintiff’s burden to show, as part of her prima facie case, not only that she is paid lower wages than a male comparator for equal work, but that she has selected the proper comparator. (Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 323-324.)  She has not met that burden here.

In addition, as discussed above, MPs have shown that her salary was reduced for legitimate, non-discriminatory business reasons.  (UF 9-13, 20-21, 44, 57 – 65, 68, 76-96.)  The Motion is therefore GRANTED on Issues 5 and 6.

For COAs 4 and 5, Plaintiff has again failed to meet her burden.  For COA 4, Plaintiff must show that she engaged in a protected activity, she was thereafter subjected to adverse employment action, and there was a causal link between the two. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614; Schmidt v. Sup. Ct. (2020) 44 Cal.App.5th 570, 587.) Here, no causal link is shown. MPs have presented evidence to show that adverse actions were contemplated before the protected activities (UF 45, 47, 49, 60, and 147-154), based on performance concerns. (UF 9-13, 20-21, 44, 57–65, 68, 76-96.)  Plaintiff has failed to present substantial evidence to demonstrate that a triable issue of material fact exists as to whether that was so.  COA 5 fails for the same reasons. The Motion is therefore GRANTED on Issue 7.

For COA 6, 7 and 8, the claims fail for the same reasons discussed above. (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166 [where employee cannot establish a claim for discrimination under FEHA, the employer cannot be held responsible for failing to prevent same]; Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479 [wrongful termination claim requires, among other things, violation of a fundamental public policy, and nexus between the adverse action and the protected status or activity].) The Motion is therefore GRANTED on Issues 8, 9 and 10, which makes Issue 11 MOOT.

For COA 9, Plaintiff asserts a hostile work environment harassment claim. But the evidence she has presented does not suffice to state such a claim.

A hostile work environment claim requires more than crude or inappropriate language in front of employees: a plaintiff employee must show she was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 282-283.)  Conduct that is occasional, isolated, sporadic or trivial is generally insufficient to establish a claim. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043-44.) Personnel management actions such as hiring and firing, job or project assignments, office or workstation assignments, promotion or demotion, or performance evaluations, do not fall within the meaning of harassment. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64–65.)

Here, Plaintiff has not identified any conduct severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment. The Motion is therefore GRANTED on Issues 12 and 13.

As MPs have shown that there is no triable issue of material fact on any of Plaintiff’s claims in her FAC, and that MPs are thus entitled to judgment as a matter of law, MPs’ Motion for Summary Judgment is GRANTED.

The Evidentiary Objections filed as ROA 91 are, to the extent directed to material evidence (see C.C.P. § 437c(q),) OVERRULED. 

The Evidentiary Objections filed as ROA 119 are, to the extent directed to material evidence, SUSTAINED IN PART, as to Obj. 2 [as to “and as currently stated on its complaint” – foundation]; Obj. 26 [foundation]; Obj. 27 [as to “would be counted toward Validating Producer’s appointment count”] [foundation]; Obj. 28 [as to “despite corporate policy”] [foundation]; Obj. 32 [as to “My son’s disability was held against me by way of adverse employment actions.”] [improper argument, foundation]; Obj. 33 [as to “had the same Funding Hurdle of November 2019 to April 2020 as I did.”] [foundation];  Obj. 34 [as to the truth of the content of Ex. 12] [hearsay]; and Obj. 48 [speculation], but otherwise  OVERRULED.

The Request for Judicial Notice as to the existence of the FAC (submitted with ROA 97, as Ex 1) is GRANTED under Ev. Code 452(d), as to the existence of and legal effects of the record, but not as to the truth of any disputed facts asserted therein.  (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Counsel for MPs is to give notice of this ruling and submit a proposed judgment which comports therewith.