Judge Thomas D. Long, Case 21STCV32152 2023-03-14 Tentative Ruling

On August 31, 2021, Plaintiff Harpreet Singh Walia filed this action against Defendants The Regents of the University of California, Elizabeth Maister, and Lisa Bishop-Smith alleging (1) retaliation in violation of the Labor Code; (2) discrimination (disparate treatment) in violation of the Fair Employment and Housing Act (“FEHA”); (3) harassment in violation of FEHA; (4) retaliation in violation of FEHA; and (5) failure to prevent discrimination, harassment, or retaliation.

On December 8, 2022, Defendants filed a motion for summary judgment, or in the alternative, summary adjudication.

The Court may order that a record be filed under seal only if it finds that (1) there is an overriding interest that overcomes the right of public access to the record, (2) the overriding interest supports sealing the record, (3) a substantial probability exists that the overriding interest will be prejudiced absent sealing, (4) the proposed sealing is narrowly tailored, and (5) no less restrictive means exists to achieve the overriding interest. (California Rules of Court, rule 2.550(d).) A motion seeking an order sealing records must be accompanied by a declaration containing facts sufficient to justify the sealing. (California Rules of Court, rule 2.551(b)(1).) “The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (California Rules of Court, rule 2.551(a).)

On December 28, 2022, Defendants filed a motion for order to seal confidential documents in support of their summary judgment motion. They did not reserve a separate hearing for this motion.

Defendants seek to seal Exhibit I to the Declaration of Felton Newell and “[a]ll papers and records related to this Motion.” In support of this request, Defendants filed the Declaration of Felton T. Newell with an attached Exhibit 1 (which is the lodged Exhibit I to the summary judgment motion). Both this declaration and its Exhibit 1 were publicly filed without any redactions.

Defendants contend that these records should be sealed to protect the privacy rights of third parties. (Motion at pp. 3-4; Newell Decl. ¶ 4.) Defendants describe the records as containing “the names of third party employees (unrelated to this suit), resumes of certain third party employees, and evaluations reflecting their work performance and ability.” (Newell Decl. ¶ 4.) Counsel contends that “this request has been narrowly tailored to include only documents containing sensitive third-party information.” (Newell Decl. ¶ 5.)

The request to seal “[a]ll papers and records related to this Motion” is not narrowly tailored and is overly restrictive. There is no basis to restrict public access to the entire record. This request is denied.

With respect to Exhibit I, the request is also not narrowly tailored. Defendants heavily rely on and refer to the contents of this exhibit—including third-party names—in their publicly filed summary judgment motion. Neither the Court nor the parties can avoid referring to the entirety of Exhibit I when discussing the motion and Defendants’ arguments. (See California Rules of Court, rule 2.551(c).) Additionally, Defendants already filed Exhibit I publicly (as Exhibit 1 to the Newell Declaration) without redactions. Sealing the entire exhibit is not narrowly tailored or the least restrictive means to protect third-party privacy rights. However, for the contact information of third parties, the Court finds that there is an overriding interest that overcomes the right of public access to the record, that overriding interest supports sealing this record, and substantial probability exists that the overriding interest will be prejudiced absent sealing. The Court will permit these third-party employees’ contact information to be sealed.

In reply, Defendants raise the new argument that these records contain trade secrets and give “insights into confidential and sensitive aspects of the Defendant’s strategies, competitive positions, and business operations,” which would allow competitors “to potentially gain an unfair advantage in dealings with and against the Defendant.” (Reply at pp. 2-3.) In neither the original motion nor the reply do Defendants show that performance evaluations and resumes are trade secrets or other confidential business information.

The application to file under seal is GRANTED IN PART. The Court ORDERS the Declaration of Felton T. Newell and its Exhibit 1, publicly filed on December 28, 2022, SEALED. Defendants are ORDERED to, within 5 days, publicly file a redacted Declaration of Felton T. Newell and Exhibit 1 (Exhibit I to the summary judgment motion), redacting only the third-party employees’ contact information.

A Non-Appearance Case Review Re: Submission of Public Redacted Exhibit is scheduled for March 22, 2023 at 9:00 AM.

Defendants’ objections are not numbered consecutively as required. (California Rules of Court, rule 3.1354(b).) The Court rules as follows:

Walia Decl. ¶ 2: Sustained as to “Supervisors while working as a Critical Care Stat-Transport RN and several nursing supervisors told me they were impressed with my work” as hearsay, and otherwise overruled.

Walia Decl. ¶ 11, 24-25: Sustained as hearsay and for lack of personal knowledge/foundation.

Walia Decl. ¶ 12: Sustained as to “English is not my first language, so if Maister misunderstood my intention, she needed only to ask,” and otherwise overruled.

Walia Decl. ¶ 15: Sustained as to “It is my opinion that I received no such feedback or discipline because such complaints are normal and are not typically the product of poor performance by the Patient Placement nurse, but a consequence of making decisions that not everyone will agree with,” as speculation, and otherwise overruled.

Walia Decl. ¶ 16: Sustained as to “Maister asking me to fill in as Nursing Supervisor shows that she believes I am competent and capable to take on that role,” as speculation, and otherwise overruled.

Walia Decl. ¶ 22: Sustained as to “and should have been considered as such,” and otherwise overruled.

Walia Decl. ¶ 26: Sustained as to “These comments certainly did not arise out of anything I said during my interviews, but the rumors about me were influencing the evaluators’ decisions,” and otherwise overruled.

A. The Parties’ Documents Do Not Fully Comply With the Court’s Electronic Filing Requirements.

Under the Court’s First Amended General Order for electronic filing, “[e]lectronic documents must be electronically filed in PDF, text searchable format when technologically feasible without impairment of the document’s image.” (General Order No. 2019-GEN-014-00, at ¶ 6(a).) Additionally, the table of contents and all attachments, including exhibits, must be bookmarked. (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).)

The parties’ filings do not comply with these requirements. Some of the documents filed by both Plaintiff and Defendants are not fully text-searchable. Additionally, Defendants’ exhibits did not include any bookmarks, which is particularly troublesome when navigating the voluminous pages of exhibits.

If the parties continue to electronically file noncompliant documents in this action, the Court may strike the filings or issue sanctions.

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” ((United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 (United Community Church).) “The separate statement ‘provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).) “[I]t is no answer to say the facts set out in the supporting evidence and memorandum of points and authorities are sufficient. ‘Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.’” (United Community Church, supra, 231 Cal.App.3d at p. 335.) “The due process aspect of the separate statement requirement is self-evident—to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at p. 337.)

Defendants’ separate statement is 34 pages long and contains 158 “material” facts. Like the “inappropriate” separate statement in Nazir, the actual number of material facts in this separate statement is presumed to be lower, as many of the same facts are repeated. (See Nazir, supra, 178 Cal.App.4th at p. 252.) Of the unique facts, many are unnecessary and are not, in fact, material to the claims or defenses. Additionally, what a party said or perceived is not a “material fact”; rather, it is evidence of a fact. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106.)

“[T]trial courts have the inherent power to strike proposed ‘undisputed facts’ that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis.” (Ibid.) Although the Court will not strike portions of the separate statement here, counsel is cautioned to include only facts that are truly material to the motion.

In 2013, Elizabeth Maister interviewed Plaintiff and extended him an offer to join UCLA – Santa Monica as a per diem Registered Nurse on the Float Pool team in the Intensive Care Unit. (Undisputed Material Facts “UMF” 1.) In April 2017, Maister offered Plaintiff a full-time position with UCLA – Santa Monica in Patient Placement as an Administrative Nurse II. (UMF 4.)

The Santa Monica facility has a self-scheduling process, in which a master calendar is posted and employees write in their own schedules. (UMF 16.) An individual employee is tasked with “balancing” the schedule to ensure that all shifts are covered and there is no overstaffing for any particular shift. (UMF 18.) The point person balancing the schedule would communicate with the team to determine who was available to cover certain shifts and/or forego others. (UMF 19.) During the time that Lisa Bishop-Smith balanced the schedule, she never assigned any employee a shift. (UMF 21.)

In 2018, Plaintiff complained to Maister regarding what he perceived to be unfair scheduling. (UMF 24.) Plaintiff never communicated that he worked more holidays and weekends, or that he believed his race or religion was the reason. (UMF 25.) Later, Plaintiff expressed he still had concerns, and Maister offered for him to balance the schedule, which he accepted. (UMF 26.)

On April 1, 2019, Plaintiff had an altercation with coworker Robert Moffit. (UMF 30.) Plaintiff emailed Maister and Regents’ CEO, David Bailey, regarding the altercation; the next day, Bailey confirmed receipt of Plaintiff’s email and advised that he and Maister would be investigating the concerns he raised. (UMF 31.) On April 4, 2019, Plaintiff sent a follow-up email in which he stated, “Rob was physically threatening and if gets away with this, someone will get beaten up at work someday. I am going to hand over my resignation simply because I cannot work in a hostile environment. If Rob is going to help out in our PP office, I cannot even think of another handover report from him, I am simply terrified.” (See UMF 32.) Maister’s email response noted that Plaintiff was scheduled to work the next Sunday night, so if she did not hear from him by 4:30 p.m., she would take him off the Sunday schedule “per [his] request below.” (See UMF 33.)

In September 2019, UCLA had two openings for a Nursing Supervisor in the Ronald Reagan facility, and in December 2019, UCLA had two openings for a Cross-Campus Nursing Supervisor. (UMF 39, 52.) A masters degree was listed as a qualification for the positions. (See UMF 40, 53.) Plaintiff did not possess a masters at the time of his application to the September 2019 and December 2019 job postings for Nursing Supervisor. (UMF 42.) Plaintiff interviewed for both application periods. (UMF 44, 54.) Following the September 2019 interviews, evaluations for each candidate were submitted, with the exception of two evaluations. (UMF 46.) Based on the evaluations received, the two candidates selected to proceed to the next round in September 2019 were Kathleen Shinn and Andrew Brown; the missing evaluations would not have changed the outcome. (UMF 47-48.) For the December 2019 application, Plaintiff advanced with three other candidates, but he was ranked the lowest. (UMF 54-55.) Internal candidate Frazier Gonzalez and external candidate Michelle Williams were selected. (UMF 56.) Williams later rescinded her acceptance, and the second position was not immediately filled. (UMF 56-57.)

On August 19, 2020, Maister informed employees that the second Cross-Campus Nursing Supervisor position was reposted. (UMF 58.) A week later, Plaintiff emailed Maister and informed her that he attempted to reapply but was unable to. (UMF 60.) Maister advised Plaintiff that the posting had closed but encouraged Plaintiff to reach out to HR the following Monday to have them activate his application and offered to assist should any issues arise. (UMF 61.) Ultimately, interviews did not proceed because the position could be awarded to the second-choice candidate from the initial interview, Leslie Pixley. (UMF 63.)

Plaintiff alleges that he was highly qualified but was repeatedly blocked from promotions and transfers based upon his South-Asian ancestry. (Complaint ¶ 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.)

A. Defendants Have Not Shown That There Were No Adverse Employment Actions (First, Second, Fourth, and Fifth Causes of Action).

Defendants argue that their actions do not amount to adverse employment actions. (Notice of Motion at p. 2; Motion at p. 14.) It is undisputed that the alleged adverse employment actions are (1) discriminatory denial of promotions, (2) requiring Plaintiff to work excessive weekends and holidays and favoring others for vacation, and (3) punishment through lost shifts after reporting a hostile work environment. (UMF 69.)

“[A]n adverse employment action is not limited to ‘ultimate’ employment acts, such as hiring, firing, demotion or failure to promote, but also includes the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for career advancement.” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.) An adverse employment action must “‘be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.’ [Citation.] The employment action must be both detrimental and substantial. [Citation.]” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511 (Thomas).)

For scheduling, there was a self-scheduling process method that Plaintiff described as a “collaborative process” for the most part. (UMF 22.) Bishop-Smith never assigned any employee a shift. (UMF 21.) Plaintiff often volunteered for shifts. (UMF 23.) In October 2018, Plaintiff emailed Maister about someone telling Bishop-Smith incorrect information regarding Plaintiff’s holidays. (Ex. F at p. WALIA000208.) He also stated that there was “a division among our group and it is growing,” and some people were receiving favorable treatment for scheduling as compared to others; however, his examples do not indicate any racial division or favoritism. (Ex. F at p. WALIA000208.) On December 17, 2019, Bishop-Smith asked employees, “Please take a look at the schedule and see what can be done to accommodate the holes.” (Ex. F at p. WALIA000204.) Plaintiff responded, “I changed my schedule to pick up all missing P shifts, William agreed to pick some of my PP q shifts, Tammy & William can distribute q shifts to avoid OT. Please text me if there is anything else I can do to help out to accommodate Andrew's orientation.” (Ex. F at p. WALIA000204.) When asked to cover a shift on Christmas Eve 2019, Plaintiff replied, “Yes of course I will cover it.” (Ex. F. at p. WALIA000157.) Thus, Defendants have met their burden of showing that Plaintiff was not subjected to adverse or material scheduling that materially affected the terms of his employment.

After Plaintiff’s report of a hostile work environment, arising from an altercation with another employee, Plaintiff stated that he was “going to hand over [his] resignation,” and he failed to timely respond to Maister’s email regarding the Sunday shift. (See UMF 32, Ex. F at pp. WALIA000247, WALIA000249.) Therefore, Maister took him off the schedule for Sunday. (Ex. F at p. WALIA000249.) Plaintiff alleged that he was threatened with demotion for reporting the altercation, but he was never demoted. (See Walia Decl. ¶ 13; UMF 70.) With respect to a “scathing annual review” in retaliation for Plaintiff reporting the altercation (Complaint ¶ 29), “a mere oral or written criticism of an employee . . . does not meet the definition of an adverse employment action under FEHA.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457.) Defendants have met their burden of showing that these actions were not adverse or material to Plaintiff’s employment, and Plaintiff does not attempt to dispute it. (See Opposition at p. 10.)

Although Defendants have shown that the scheduling issues were not adverse employment actions, the denial of promotions may be an adverse employment action. (See Thomas, supra, 77 Cal.App.4th at p. 511.)

Summary adjudication of the first, second, fourth, and fifth causes of action is denied on this ground.

B. Defendants Have Proven a Legitimate and Non-Discriminatory Reason for the Alleged Discrimination (Second Cause of Action).

The second cause of action alleges discrimination based on ancestry, color, national origin, race, or religious creed. (Complaint ¶ 65.) FEHA prohibits discrimination in compensation, terms, conditions, or privileges of employment on the basis of membership in a protected class. (Gov. Code, § 12940, subd. (a).) 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.)

“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.)

In the context of a summary judgment motion, “[i]f the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing. . . . [I]n the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue. . . . In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion.” (Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 344 [citations and quotations omitted].)

“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.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.)

Defendants argue that Plaintiff’s race and religion were not substantial motivating reasons for their actions and they had legitimate, nondiscriminatory reasons. (Motion at pp. 18-21.) It is undisputed that Plaintiff never communicated that he worked more holidays and weekends, or that he believed his race or religion was the reason. (UMF 25.) Bishop-Smith never assigned any employee a shift. (UMF 21.) When Plaintiff’s shift was covered in April 2019 after the altercation, the evidence shows this was in response to Plaintiff stating that he was “going to hand over [his] resignation” and his failure to timely respond to Maister’s reply regarding that shift. (See UMF 32, Ex. F at pp. WALIA000247, WALIA000249.) It is also undisputed that other qualified candidates were given the promotions, and Plaintiff ranked the lowest among the December 2019 candidates. (UMF 44, 47-48, 55; see Ex. I.) Defendants have therefore met their initial burden of showing legitimate, nondiscriminatory reasons for Plaintiff’s scheduling and lack of promotion.

In opposition, Plaintiff focuses on “being compelled to work more weekends and holidays than other similarly situated white nurses” and being denied promotions. (Opposition at pp. 14-15.)

For the scheduling issues, Plaintiff’s only supporting evidence is his declaration explaining Bishop-Smith’s role in balancing the schedules. (Opposition at p. 15; Response to UMF 21; Walia Decl. ¶ 19.) According to Plaintiff, she frequently asked him to cover overtime, weekends, and vacation spots, and twice she said, “‘either you fill in all leftover shifts for the Nursing Supervisor on both days or nights, be flexible to cover all needed weekends and holidays, or else you will not last long in this office,’ or words to that effect.” (Walia Decl. ¶ 19.) Plaintiff therefore “felt compelled to ‘volunteer’ to work more holidays and weekends than my coworkers or I might be fired or demoted.” (Walia Decl. ¶ 19.) This evidence does not relate to Plaintiff’s—or other coworkers’—race or national origin.

For the promotions, Plaintiff cites no evidence disputing that the other candidates had better evaluations. It is undisputed that Plaintiff also did not have a masters degree, although he argues that his degree in medicine should have been considered. (UMF 42; see Walia Decl. ¶ 22.)

Plaintiff also cites the deposition testimony of Jamie Abell, who testified that Maister “would make statements that had a racist tint.” (Abell Depo. at p. 23; see Opposition at p. 15; UMF 159.) Specifically, when two upset employees came to Maister, she responded to them differently: “The ‘poor dear’ was Caucasian, and the ‘you need to work harder’ was African American.” (Abell Depo. at p. 24.) Abell also believed that Maister treated her differently because Abell is African American. (Abell Depo. at p. 28.) Maister didn’t permit Abell’s time off for medical needs, but she “did juggling” to allow white nurses to take time off. (Abell Depo. at p. 28.) These incidents are unrelated to Plaintiff’s claims about scheduling and promotions. Additionally, Abell also testified that she knew that Plaintiff is Indian, and she did not ever observe or receive complaints about Maister treating individuals of Indian descent differently. (Abell Depo. at p. 27.) Accordingly, her testimony is irrelevant to Plaintiff’s allegations of discrimination based on his own race or origin. (See Hatai v. Department of Transportation (2013) 214 Cal.App.4th 1287, 1298 [“the ‘me-too’ doctrine did not entitle [the plaintiff] to present evidence of discrimination against employees outside of [the plaintiff]’s protected class to show discrimination or harassment against [the plaintiff]”].)

In sum, Plaintiff has failed show any weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in Defendants’ proffered legitimate reasons, and there is no triable issue of fact.

C. Defendants Have Proven That There Was No Severe and Pervasive Conduct That Constituted Harassment (Third Cause of Action).

To establish a claim for harassment, a plaintiff must demonstrate that: (1) he is a member of a protected group; (2) he was subjected to harassment because he belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity, and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.) Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Reno v. Baird (1998) 18 Cal.4th 640, 646.) Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings, and laying off. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879 (Thompson).) To establish a hostile work environment, “‘[a] 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.’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.)

Defendants argue that there was no severe or pervasive conduct that constitutes harassment. (Motion at pp. 22-23.) Defendants note that most of Plaintiff’s complaints, as discussed with the cause of action for discrimination, are commonly necessary personnel management actions. (Motion at p. 22; see Thompson, supra, 186 Cal.App.4th at p. 879.)

Defendants also argue that Plaintiff’s other basis is a 2018 comment from Bishop-Smith about Plaintiff’s religion, and that basis is time-barred. (Motion at p. 22; see Complaint ¶ 26.) Prior to 2020, an employee was required to file an administrative complaint with DFEH within one year after the alleged unlawful action. (Govt. Code, § 12960, subd. (d) [effective Jan. 1 2018 to Dec. 31, 2019].) When Government Code section 12960 was amended as of January 1, 2020, Assembly Bill 9 made it clear that the amendment “shall not be interpreted to revive lapsed claims.” (2019 Cal. Legis. Serv. Ch. 709 (A.B. 9).) Plaintiff filed his DFEH charge and received his immediate Right to Sue Letter from the DFEH on August 27, 2021—more than a year after the 2018 comment. (UMF 75.) Thus, any claim based on the 2018 comment is time-barred.

Defendants have therefore met their burden of showing no actionable harassing conduct.

Plaintiff argues that Bishop-Smith “us[ed] the racially charged phrase, ‘your people,’ to inquire about Walia’s religious beliefs.” (Opposition at p. 16.) Plaintiff’s declaration explains that in 2018, Bishop-Smith asked Plaintiff, “[W]hat church do you people go to?” (Walia Decl. ¶ 8.) According to Plaintiff, “Bishop-Smith seemed displeased by my response.” (Walia Decl. ¶ 8.) This single incident does not establish a severe and pervasive environment. And in any event, this basis is time-barred.

Plaintiff also was “compelled to work more weekends and holidays than similarly situated, non-Southeast Asian nurses and . . . was denied one promotion on the basis of his race or national origin.” (Opposition at p. 17.) These are personnel actions that are not harassment. (Thompson, supra, 186 Cal.App.4th at p. 879.) Plaintiff’s opposition raises no other arguments or potential triable issues. (Opposition at pp. 16-17.)

C. Defendants Have Proven a Lack of Causation For Retaliation (First and Fourth Causes of Action).

Under FEHA, an employer may not discharge or discriminate against any person who opposes forbidden employment practices. (Gov. Code, § 12940, subd. (h).) 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.)

Labor Code “section 1102.6, and not McDonnell Douglas, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 (Lawson).) After a plaintiff demonstrates by a preponderance of the evidence that his protected activity was a contributing factor in the adverse employment action, the employer must demonstrate by clear and convincing evidence that the adverse employment action would have occurred for legitimate, independent reasons even if the employee did not engage in the protected conduct. (Lab. Code, § 1102.6.) Under this standard, “plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Lawson, supra, 12 Cal.5th at pp. 713-714.)

Defendants argue that there is no causal link between Plaintiff’s protected activities and their actions. (Motion at p. 24.) Plaintiff contends that the retaliation consisted of him being compelled to work more weekends and holidays and being denied promotions. (Opposition at p. 12.)

As discussed above, the scheduling issues do not constitute adverse employment actions. Furthermore, Plaintiff has not presented evidence creating any triable issue regarding any improper motivation for scheduling. It is undisputed that Plaintiff volunteered for shifts and never complained about being forced to work certain shifts because of his race or religion. (UMF 23, 25.)

For the denial of promotions, Defendants have demonstrated that Plaintiff would not have been promoted for legitimate, independent reasons even if he did not engage in any protected conduct. Plaintiff was not chosen to proceed to the next round of consideration for the September 2019 opening. (UMF 45-47.) Plaintiff raised no triable issues regarding any improper motivation for that decision. Plaintiff advanced past the first interviews for the December 2019 position, but he ranked the lowest of the six candidates. (UMF 54-55.) After one chosen candidate rescinded her acceptance of the position, in August 2020, further interviews did not proceed because the second-choice candidate from the December 2019 interviews was offered the position. (UMF 56-57, 63.) Plaintiff did not provide any evidence showing that his reports of discrimination, retaliation, or harassment were contributing factors in the denial of a promotion.

D. Because Defendants Prevail on the Underlying Claims, They Cannot Be Liable For Failure to Prevent (Fifth Cause of Action).

Defendants argue that because there was no discrimination, harassment, or retaliation, it also cannot be liable for failing to prevent discrimination, harassment, or retaliation. (Motion at p. 24.)

For the reasons discussed above, summary adjudication of the fifth cause of action is also granted.

The motion for summary judgment is GRANTED. Defendants are ordered to submit a proposed judgment within 5 days.

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

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court