Judge: Theresa M. Traber, Case: 20STCV42104, Date: 2022-08-11 Tentative Ruling

Case Number: 20STCV42104    Hearing Date: August 11, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 11, 2022                     TRIAL DATE: October 3, 2022

CASE:                         Ozelia Harris v. Pomona Unified School District, et al.

CASE NO.:                 20STCV42104           

MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:               Defendants Pomona Unified School District; Rebecca Norwood

RESPONDING PARTY(S): Plaintiff Ozelia Harris.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for employment discrimination that was filed on November 3, 2020.  Plaintiff alleges that Defendants engaged in retaliation and harassment against her on the basis of her use of medical leave and/or her perceived disability.

Defendants Pomona Unified School District and Rebecca Norwood move for summary judgment, or, in the alternative, summary adjudication on each cause of action against them.

TENTATIVE RULING:

Defendants’ motion for summary judgment is DENIED.

            Defendants’ motion in the alternative for summary adjudication is DENIED.

DISCUSSION:

Motion for Summary Judgment

            As discussed in connection with Defendant’s motion for summary adjudication below, Defendants have not demonstrated that they are entitled to prevail as to each cause of action asserted against them. Accordingly, the Motion is DENIED.

Motion for Summary Adjudication

            Defendants move for summary adjudication on each cause of action against them.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(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, 381-82.)

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. (Code Civ Proc. § 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.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

            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.)

Defendants’ Evidentiary Objections

As the Court does not rely on any of the evidence to which Defendants object, the Court declines to rule on Defendants’ objections. (Code Civ. Proc. § 437c(q).)

Plaintiff’s Statement of Additional Facts

            Plaintiff has filed a separate Statement of Additional Facts in addition to his Response to Separate Statement. California Rule of Court rule 3.1350(f)(3) requires that any additional material facts be set forth in the same separate statement in opposition, not in an additional document. However, because the separate filing is sufficient to put Defendants on notice of Plaintiff’s factual contentions, and Defendants have not objected to this procedural defect, the court will overlook the improper filing and consider the Statement of Additional Facts.

Defendant’s Reply to Separate Statement

            Defendants attempt to introduce a reply to Plaintiff’s Response to Separate Statement. California Rule of Court Rule 3.1350 does not authorize the filing of a reply separate statement. This filing is improper, and the Court will therefore not consider it.

Defendants also attempt to introduce an opposition to Plaintiff’s Statement of Additional Facts. Rule 3.1350 does not authorize the filing of such a statement. This filing is improper, and the Court will therefore not consider it.

First Cause of Action: Retaliation

            Defendants contend that Plaintiff cannot prevail on her first cause of action for retaliation.

The California Supreme Court has adopted the federal burden-shifting test for assessing employment discrimination claims. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) "[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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation '" 'drops out of the picture, '"' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.)

"In responding to the employer's showing of a legitimate reason for the complained-of action, . . . the employee' "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' [citation], and hence infer 'that the employer did not act for the [ . . . asserted] non-discriminatory reasons.' [Citations.]" '" '" (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389.) "The plaintiff must do more than raise the inference that the employer's asserted reason is false. '[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.' [Citation.] If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer's true reason was discriminatory, the employer is entitled to summary judgment. [Citation.]" (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.)

"Although an employee's evidence submitted in opposition to an employer's motion for summary judgment is construed liberally, it 'remains subject to careful scrutiny.' [Citation.] The employee's 'subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.' [Citation.] The employee's evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, 'an actual causal link between prohibited motivation and termination.'" (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.)

            Defendants contend that Plaintiff cannot prevail on this cause of action because (1) Plaintiff did not experience retaliation for taking medical leave, and (2) Plaintiff did not experience retaliation for filing a Complaint against Defendant Norwood. The Court will analyze each issue separately.

1.      Medical Leave Retaliation

Defendants contend that Plaintiff cannot prevail on this cause of action based on retaliation for taking medical leave because (a) Plaintiff did not experience an adverse employment action and (b) there is no causal connection between Plaintiff’s medical leave and the alleged adverse employment action.

Defendants first argue that Plaintiff cannot prevail on this theory because she did not experience an adverse employment action. Defendant contends that there are two alleged incidents underpinning Plaintiff’s claim: first, that Plaintiff was not promptly provided a Zoom meeting link by Defendant Norwood after requesting it, effectively excluding her from a staff meeting, and second, that Plaintiff received a written warning in October of 2020.  Defendant contends that neither amounted to an adverse employment action. 

An adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable. (Yanowitz, supra, 36 Cal.4th at 1052.) However, a pattern of systematic injuries that do not individually affect the terms, conditions, or privileges of employment and that may not, individually, constitute adverse employment actions may constitute an adverse employment action collectively. (Id. at 1055-56.)

To succeed on a motion for summary adjudication, a defendant’s initial showing must “negate plaintiff’s theories of liability as alleged in the complaint” by demonstrating entitlement to judgment based on undisputed material facts alleged in the complaint.  (Hutton v. Fid. Nat'l Title Co. (2013) 213 Cal. App. 4th 486, 493 [citations omitted].)  A defendant’s motion for summary judgment must respond to and address the allegations in the complaint.  (Juge v. County of Sacramento (1993) 12 Cal. App. 4th 59, 67.)  Thus, the first step for a court evaluating a summary judgment motion is to “identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.” (Eriksson v. Nunnink (2011) 191 Cal. App. 4th 826, 848 [Citations omitted].)

            In her complaint, Plaintiff alleges that, after taking medical leave, she was subjected to the following negative actions:  (1) that she was denied access to PUSD’s meeting on its new “distance learning program” by not being provided a link to join the meeting (Complaint, ¶¶15-18), (2) that Defendant Norwood was treating her differently and excluding her from staff meetings and training sessions (id., ¶ 19); (3) that Defendant Norwood has subjected Plaintiff to increased scrutiny, hostile and adverse treatment, and harassment, including by refusing to proceed with a Zoom meeting with Plaintiff because her video was not on (id., ¶¶ 21-23, 26); and (4) that Defendant Norwood issued a written warning to Plaintiff (id., ¶ 25).  Taken together, Plaintiff alleges that “[t]he above-described conduct constitutes ‘adverse employment action’ under FEHA.”  (Id., ¶ 28.)

            As noted above, Defendants’ motion addresses only two of the allegations of retaliatory conduct included in Plaintiff’s complaint: the failure to provide a Zoom link and the issuance of a written warning.  As such, the motion fails to negate or even address Plaintiff’s other allegations of adverse employment actions she claims to have suffered.  A party moving for summary judgment who fails to address all allegations supporting liability in the motion does not carry the initial burden of showing the nonexistence of a triable issue of material fact. (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165.)  “If the defendant fails to meet this initial burden, it is unnecessary to examine the plaintiff's opposing evidence; the motion must be denied. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59–60.)” (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 805; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 945 [because summary judgment motion did not negate all theories of employer liability, “the trial court should have held that [the defendant] failed to carry his initial burden and stopped there”].)

Having ignored some of Plaintiff’s allegations of retaliatory treatment, Defendants have not negated Plaintiff’s ability to demonstrate that the negative actions she describes in her complaint amount to one or more adverse employment actions.  The burden of proof therefore does not shift to Plaintiff, and Defendants are not entitled to summary adjudication of the first cause of action on this basis.

Defendants next contend that, even if they were to concede that the complained-of conduct constitutes an adverse employment action, there is no causal connection between the complained-of conduct and Plaintiff’s medical leave. Defendants argue that there was a legitimate, non-discriminatory reason for the written warning.  Specifically, Defendants point to the contents of the written warning, which identify a lengthy series of Plaintiff’s alleged deficiencies, including numerous alleged violations of District policy, failure to attend mandatory trainings, and insubordination. (SSUMF Nos. 4-7.) These are, on their face, reasons facially unrelated to prohibited bias. (See Guz, supra, 24 Cal.4th at 358.) However, as stated above, this is not the only incident of which Plaintiff complains. Multiple actions are complained of which collectively constitute the alleged adverse employment action. Proffering a legitimate non-discriminatory reason for the complained-of conduct requires showing that the adverse employment action was taken for legitimate reasons. (See, e.g., Yanowitz, supra 36 Cal.4th at 1042.) Defendants offer no evidence showing that other conduct complained of by Plaintiff was taken for legitimate, non-discriminatory reasons, instead only arguing that Plaintiff has no evidence that she was excluded from the Zoom meeting for a legitimate reason. Argument is not sufficient to prevail on summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.). Defendants have failed to show that Plaintiff cannot prevail on summary judgment on this basis. Accordingly, the burden does not shift to Plaintiff to establish a triable issue of fact.

2.      Retaliation for Complaint

Defendants also contend that Plaintiff cannot prevail on the first cause of action on a theory that she was retaliated against for the August 24, 2020 Complaint, on the basis that the subsequent written warning was not an adverse employment action, and on the basis that the August 24, 2020 complaint was not protected activity.

This contention fails for a number of reasons.  First, as with their attack on Plaintiff’s contention that she was retaliated against for taking medical leave, Defendants have cherry-picked only one allegation of retaliation – the written warning – and ignored the others alleged in the Complaint.  (Ibid., ¶¶ 21-26.) 

Second, Defendants have not met their burden to establish that the written warning cannot constitute an adverse employment action.  Indeed, the negative consequences of the written warning are stated on the face of the document, which states that any failure to comply with the directives in the warning “may result in discipline, up to and including dismissal.”  Because the warning imposed a long list of requirements for Plaintiff to satisfy and cautioned her that she would be subject to discipline if she failed to meet those standards, the Court finds that the warning constituted a “substantial and detrimental” change in the terms and conditions of Plaintiff’s employment.  (Horsford v. Bd. of Trustees of California State Univ. (2005) 132 Cal. App. 4th 359, 373.)  Having offered this language of the written warning in its moving papers, Defendants cannot be said to have negated Plaintiff’s contention that the warning had a deleterious impact on the terms, conditions, or privileges of her employment.

With respect to Defendants’ second argument, Defendants contend that the August 24, 2020 Complaint was not protected activity under FEHA. “Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination.” (Yanowitz, supra, 36 Cal.4th at 1047.) Defendants contend that the complaint does not meet this standard because the body of the complaint does not specifically allege discriminatory animus as the basis for the conduct. (See SSUMF No. 24.) Defendants rely on a federal district court case, Day v. Sears Holding Corporation, in support of their position. Defendants’ reliance is misplaced, as Day is distinguishable from this case in that, in Day, there was no evidence whatsoever that any part of the internal complaint suggested discriminatory animus by the defendants. (Day v. Sears Holding Corp., (C.D. Cal. 2013) 930 F.Supp.2d 1146, 1176-78.) Here, as Defendants concede, Plaintiff checked the box on the complaint form that stated that the complaint was a complaint for discrimination. (SSUMF No. 26.) Therefore, drawing all reasonable inferences in favor of the Plaintiff, as required on summary judgment, the internal complaint appears to be a complaint opposing conduct which Plaintiff believed was discriminatory. Defendants attempt to rescue their argument by contending that Plaintiff’s admission in deposition testimony that she was unable to recall how the complained-of conduct was unlawful discrimination is evidence that the internal complaint was not protected activity. (SSUMF No. 27.) This argument is not well taken. As Plaintiff’s counsel objected in that deposition, Plaintiff is not an attorney, and she may not testify to a legal conclusion. (Evid. Code § 310; see also Defendant’s Exhibit F p.47:6-19.)

Defendants also contend that the internal complaint could not be protected activity because Plaintiff did not have a disability and did not complain that the basis for excluding her from the meeting was on account of her gender or race. (SSUMF Nos. 28-31.) This argument is also not well-taken by the Court. A cursory examination of the Complaint in this action reveals that Plaintiff did not allege at any point that she actually had a disability. The Complaint alleges that she was discriminated against based on her request for medical leave and/or her perceived disability. (Complaint ¶ 19.) Discrimination for a non-existent but perceived disability is a basis for a claim under the Fair Employment and Housing Act. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.34, 53.) Whether Plaintiff actually had a disability is irrelevant to the allegations in the Complaint. The scope of the issues in a motion for summary judgment or adjudication is delimited by the pleadings. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-82.)

The Court finds that Defendants have not shown, as they are required to do, that Plaintiff cannot prevail on this cause of action because the internal complaint was not a complaint for unlawful discrimination as a matter of law. Plaintiff filed an internal complaint for conduct by Defendant Norwood which she alleged was wrongful, and stated in that complaint, by checking the box, that the conduct constituted unlawful discrimination. Defendants have not shown that this conduct is not protected activity as a matter of law. Defendants have therefore failed to meet their burden to show that Plaintiff cannot prevail, and thus the burden does not shift to Plaintiff to establish a triable issue of fact. The Court therefore finds that Defendant Norwood is not entitled to summary adjudication on the first cause of action.

As Defendants state that Plaintiff’s first cause of action against the District depends on Plaintiff’s claim against Norwood, the Court finds that the District is also not entitled to summary adjudication on the first cause of action.

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Second Cause of Action: Harassment

            Defendants contend that Plaintiff cannot prevail on the second cause of action for harassment.

To establish a prima facie case of disability harassment, Plaintiff must establish that (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on disability; and (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)

Defendants contend that Plaintiff cannot prevail on this cause of action because she did not have a disability, and the Complaint does not allege any harassment towards Plaintiff. 

With respect to Defendants’ first argument, as stated above, whether Plaintiff actually had a disability is irrelevant, as the allegations in the Complaint are for a perceived disability. (Complaint ¶ 19.) The Court therefore finds that Defendants have not met their burden to show that Plaintiff cannot prevail on the second cause of action on this basis, and thus, the burden does not shift to Plaintiff to establish a triable issue of fact.

With respect to Defendants’ second argument, Defendants contend that the conduct complained of does not constitute harassment. Harassment arises where the social environment of the workplace becomes intolerable because the harassment communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.)

Defendants claim that harassment based on a disability can only consist of verbal harassment, and thus the complained-of conduct cannot constitute harassment as a matter of law, as none of the complained-of conduct was verbal. (SSUMF No. 39.) Defendants’ argument is based on a misreading of Aguilar v. Avis Rent A Car Sys., Inc, in which the California Supreme Court stated that, according to the California Code of Regulations, harassment is defined to include verbal harassment, such as epithets, derogatory comments, or slurs. (Aguilar v. Avis Rent A Car Sys., Inc. (1999 21 Cal.4th 121, 129, citing 2 Cal. Code Reg. § 7287.6(b)(1)(A).) Nowhere in that opinion did the California Supreme Court state that verbal harassment was the only legally recognized form of harassment on the basis of a disability, and Defendants cite no other law in support of this position. The Court therefore finds that Defendants have not shown that the activity alleged in the Complaint does not constitute harassment as a matter of law, and therefore that Defendants have failed to show that Plaintiff cannot prevail on the second cause of action on this basis. Accordingly, the burden does not shift to Plaintiff to establish a triable issue of fact.

As Defendants have failed to show that Plaintiff cannot prevail on the second cause of action, Defendants are not entitled to summary adjudication on the second cause of action for harassment.

Accordingly, Defendants’ motion in the alternative for summary adjudication is DENIED.

CONCLUSION:

            Accordingly, Defendants’ motion for summary judgment is DENIED.

            Defendants’ motion in the alternative for summary adjudication is DENIED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: August 11, 2022                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.