Judge Thomas D. Long, Case Number: 21STCV31539, Date: 2023-11-14 Tentative Ruling

On August 25, 2021, Plaintiff Vincenzo Averaimo filed this action against Defendant City of Los Angeles. The Complaint alleges (1) discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) retaliation in violation of FEHA; and (3) failure to prevent discrimination and retaliation.

On August 31, 2023, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication.

Declaration of Marlon Marrache: Overruled. To the extent that Plaintiff objects because the declaration contradicts other testimony, the Court will consider the declaration in accordance with D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico). (See Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604 [“Properly understood, D’Amico does not state a rule regarding the admissibility of evidence; instead, the case provides guidance in determining whether a declaration that contradicts prior discovery responses is sufficient to create a triable issue of fact.”].)

Declaration of James Autrey: The Court does not rule on this objection because it is not material. (Code Civ. Proc., § 437c, subd. (q).)

Plaintiff’s Declaration: Overruled. Defendant provides only broad objections that the entire declaration contains speculation and hearsay. This is not the proper form for objections. (California Rules of Court, rule 3.1354.)

Plaintiff joined LAPD in or around 2007 and worked his way to become a Patrol Officer III + 1 in the Transit Services Division. (Undisputed Material Facts “UMF” 1.)

On June 16, 2019, Plaintiff reported witnessing an act of alleged sexual harassment. (UMF 3.) Plaintiff also filed a complaint to Sergeant Michael Glenn regarding an incident that took place between an officer and an Administrative Clerk, Gabriela Zamorano. (UMF 4.)

Plaintiff was the subject of a citizen complaint regarding an incident that took place on the LA Metro system on July 3, 2019. (UMF 6.) Plaintiff was disciplined because of his discourteous and rude behavior toward a member of the public, not for use of force. (UMF 7.)

On September 20, 2019, Plaintiff set up a date using the LGBTQ+ dating application “Grindr.” (UMF 10.) Plaintiff arrived for his Grindr date at the incorrect address and entered an uninvolved party’s home without their consent. (UMF 11.) LAPD Department Policy Vol. 1, Section 210.46 mandates that all employees are obligated to advise their watch commander when he or she is detained by an outside law enforcement agency “without delay.” (UMF 13.) In violation of LAPD Department Policy, Plaintiff waited 66 days to inform his watch commander that he was detained by Pasadena PD, despite knowing that the delay was a violation of policy. (UMF 14-15.)

As a result of failing to inform his watch commander that he had been detained by Pasadena PD, Plaintiff received a ten-day suspension approved by Captain James Pitt. (U MF 16.) As part of the adjudication of the incident with Pasadena PD, Captain James Pitt reviewed Plaintiff’s open complaint history and approved a recommendation that he be demoted and subject to an administrative transfer. (UMF 17.)

In January 2020, Plaintiff was subject to discipline for driving at 99 mph while not responding to any emergency calls. (UMF 8; see Autrey Decl., Ex. E.) Plaintiff does not dispute that he was travelling at 99 mph or that this behavior was in violation of LAPD policy. (UMF 9.)

Previously, Former Chief of Police William Bratton issued Special order No. 47, overhauling the process by which the LAPD could demote and/or transfer an officer. (UMF 18.) Order No. 47 authorized a commanding officer, “in his/her discretion” to reassign a subordinate officer when that officer “has been unwilling or unable to perform the duties of the position,” or when that officer “committed an act that merits the reassignment to a lower pay grade position, a non-bonus position, or both. Such a reassignment may be done with or without a personnel complaint.” (UMF 19.) Once a commanding officer decides to reassign/demote a subordinate officer, the commanding officer must then complete an “Intradepartmental Correspondence . . . citing the reasons for recommending reassignment to a lower pay grade . . . and include a statement that the officer was advised or the right to provide a written response to the proposed personnel action.” (UMF 19.)

On June 5, 2020, Captain Brian Pratt submitted a request to downgrade Plaintiff pursuant to Order No. 47. (UMF 20.) Captain Pratt cited Plaintiff’s failure to report his detention by an outside police agency, his complaint history regarding his demeanor being discourteous and rude towards the public, and his history of written discipline as the reason for his demotion. (UMF 21.) The request was approved by neutral third-parties Blake H. Chow, Commanding Officer of the Transit Services Bureau, and Beatrice M. Girmala, Assistant Chief and Direction, Office of Support Services. (UMF 23.)

Plaintiff met with Commander Marc R. Reina on July 24, 2020 to review his concerns related to his demotion and transfer. (UMF 24.) Commander Reina believed the documents submitted by Captain Pratt supporting Plaintiff’s demotion “[provide] sufficient justification to support that action as it is in the best interest of the Department and the employee involved.” (UMF 25.)

After Plaintiff’s demotion and transfer went into effect on August 30, 2020, he appealed. (UMF 26.) Captain Pete Casey found that there was enough cause to support the reassignment based on Plaintiff’s “six open personnel complaints with similar allegations of discourtesy, being rude, and behaving in a disrespectful manner.” (UMF 27-30.) Captain Casey stated that Plaintiff exhibited “deceptive behavior, poor judgment, and an inability to make sound decision,” and the LAPD followed proper procedure in subjecting Plaintiff to demotion and administrative transfer. (UMF 32-33.)

In or around October 2020, LAPD administratively transferred Plaintiff out of the TSD to the North Hollywood Division. (UMF 2.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) 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, 162-163 (Sangster).)

A. Defendant Has Proven a Legitimate and Non-Discriminatory Reason For the Alleged Discrimination and Retaliation (First and Second Causes of Action).

The first cause of action alleges discrimination “based on his sexual orientation, and for reporting and speaking out against wrongful and discriminatory treatment based on his sexual orientation, speaking out against improper conduct, and for generally attempting to protect and secure his rights and the rights of others under the FEHA.” (Complaint ¶ 33.) The second cause of action alleges retaliation “for speaking out against inappropriate workplace behavior, reporting and speaking out against wrongful and discriminatory, and retaliatory treatment based on his sexual orientation, speaking out against improper conduct, and for generally attempting to protect and secure his rights and the rights of others under the FEHA.” (Complaint ¶ 41.)

An employee’s prima facie claim of discrimination requires “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) If an employee makes a prima facie showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. (Id. at p. 714.) “To establish that an employer has discriminated on the basis of a disability in violation of FEHA, the plaintiff employee has the burden of proving he or she could perform ‘the essential functions of the job with or without reasonable accommodation.’” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 716.)

“In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that on or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone).) Then the burden shifts to the employee “to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination.” (Id. at pp. 1158-1159.) “The plaintiff’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision. [Citation.] The stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive.” (Id. at p. 1159.)

“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.]” (Featherstone, supra, 10 Cal.App.5th at p. 1159.) “To show that an employer’s reason for termination is pretextual, an employee ‘ “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” ’ [Citation.] To meet his or her burden, 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,’ ” ’ and hence infer ‘ “the employer did not act for [the asserted] nondiscriminatory reasons.” ’ [Citations.]” (Ibid.)

Similarly, to establish a prima facie case of retaliation under 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. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant argues that it had a legitimate and nondiscriminatory reason for demoting and transferring Plaintiff “based on his long history of complaints adjudicated against him that show his inability to respectfully interact with members of the public,” and Plaintiff’s “honesty, integrity, and trustworthiness were seriously called into question after he failed to report his interactions with Pasadena PD on September 20, 2019.” (Motion at pp. 11-12.)

It is undisputed that Plaintiff was disciplined for a citizen complaint on July 3, 2019, disciplined for driving at 99 mph while not responding to any emergency calls, and disciplined for failing to inform his watch commander that he had been detained by Pasadena PD on September 20, 2019. (UMF 6-16.) Plaintiff knew it was violation of LAPD policy to delay in informing his watch commander of his detention by Pasadena PD, but he waited 66 days to report it. (UMF 14-15; see Averaimo Decl. ¶ 10.) LAPD Order No. 47 gives commanding officers discretion to reassign an officer “when that officer ‘committed an act that merits the reassignment to a lower pay grade position, a non-bonus position, or both.’” (UMF 19.) Following this policy, Captain Pratt cited Plaintiff’s failure to report his detention by an outside police agency, his complaint history regarding his demeanor being discourteous and rude towards the public, and his history of written discipline as the reason for his demotion. (UMF 21.)

Defendant has met its burden of showing a legitimate and non-discriminatory reason for demoting and reassigning Plaintiff.

Plaintiff argues that he “had a prior record of excellent and generally solid work history for over a decade before June 2019 until LAPD supervisors first received notice of Plaintiff’s role as potential witness in sexual harassment incidents, and shortly thereafter, in Fall of 2019, his sexual orientation.” (Opposition at p. 17.) Plaintiff relies on a declaration from his former supervising officer from 2014, who described Plaintiff as “a good, hard-working police officer, conscientious and enthusiastic,” “approachable,” and without any negative employment history prior to 2019. (Glenn Decl. ¶ 4.) This character evidence does not prove Plaintiff’s conduct in 2019 and 2020. (Evid. Code, § 1101, subd. (a).) Moreover, Plaintiff does not dispute that he was disciplined for a citizen complaint on July 3, 2019, disciplined for driving at 99 mph while not responding to any emergency calls, and disciplined for failing to inform his watch commander that he had been detained by Pasadena PD on September 20, 2019. (UMF 6-16.)

Plaintiff also argues that Defendant’s stated reasons are pretextual. (See Opposition at pp. 18-19.) According to Plaintiff, his “supervisors suddenly began resolving standard public complaints to [his] detriment even though there was no proper grounds to do so.” (Averaimo Decl. ¶ 5.) Plaintiffs other assertions of “being subject to discrimination and retaliation based on [his] sexual orientation” are conclusory. (Averaimo Decl. ¶¶ 10-13; see Averaimo Decl. ¶¶ 16, 18.) This self-serving and subjective belief does not create a genuine issue of fact. (Featherstone, supra, 10 Cal.App.5th at p. 1159.)

B. Because Defendant Prevails on the Underlying Claims, It Cannot Be Liable For Failure to Prevent (Third Cause of Action).

The third cause of action alleges failure to take all reasonable steps to prevent discrimination and retaliation.

Defendant argues that because there was no discrimination or retaliation, it also cannot be liable for failing to prevent discrimination. (Motion at p. 13.) “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under [Government Code] section 12940, subdivision (k).” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)

For the reasons discussed above, summary adjudication of the third cause of action is also granted. (See Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 56.)

The motion for summary judgment is GRANTED. Defendant is ordered to submit a proposed judgment within five days.

A Non-Appearance Case Review Re: Submission of Proposed Judgment is scheduled for December 22, 2023 at 9:00 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court