Case Number: 20STCV16342    Hearing Date: September 26, 2023    Dept: 73

EDOUNI v. SANITATION DISTRICTS OF LOS ANGELES COUNTY (20STCV16342)

Counsel for Plaintiff/opposing party:  Gregory Wayne Smith (Law Offices of Gregory W. Smith LLP)

Counsel for Defendant/moving party:  Adam Johnson (Musick, Peeler & Garrett)

MOTION FOR SUMMARY JUDGMENT (filed 11/22/2022)

TENTATIVE RULING

DENY

Discussion

On April 29, 2020, Plaintiff Abdulrazzaq Edouni (“Plaintiff”) filed this employment action against Defendant Sanitation Districts of Los Angeles (“Defendant”). On April 30, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging the following causes of action: (1) retaliation – Government Code § 12940(h); (2) retaliation – Labor Code section 1102.5; (3) employment discrimination on the basis of race and creed – Government Code § 12940(a); (4) work environment harassment on the basis of race and creed – Government Code § 12940(j); (5) failure to prevent harassment, discrimination, and retaliation – Government Code § 12940(k).

On November 8, 2021, Plaintiff filed a complaint against Defendant in case number 21STCV41184 (“Related Complaint”), alleging (1) discrimination in violation of FEHA; (2) harassment in violation of FEHA; and (3) retaliation in violation of FEHA. On December 16, 2021, the Court related the two cases.

On September 7, 2023, Plaintiff dismissed the second cause of action in the FAC for violation of Labor Code § 1102.5.

On 11/22/2022, Defendant filed a motion for summary judgment, arguing that it was entitled to summary judgment on each cause of action in the FAC and the Related Complaint, or argues for summary adjudication on the following issues:

·                     The first and second causes of action in the FAC and the third cause of action in the Related Complaint for retaliation are barred by the statute of limitations.

·                     The second cause of action in the FAC for retaliation under Labor Code  is barred for failure to comply with the Government Claims Act.

·                     The first and second causes of action in the FAC and the third cause of action in the Related Complaint for retaliation are without merit because there was no “adverse employment action.

·                     The first and second causes of action in the FAC and the third cause of action in the Related Complaint for retaliation are without merit because there is no “causal link” between the protected activity and any adverse employment action.

·                     The first and second causes of action in the FAC and the third cause of action in the Related Complaint for retaliation are without merit because Defendant had legitimate, non-retaliatory reasons for its employment actions, and there is no substantial evidence of retaliatory pretext or intentional retaliation.

·                     The third cause of action in the FAC and the first cause of action in the Related Complaint for discrimination are barred by the statute of limitations.

·                     The third cause of action in the FAC and the first cause of action in the Related Complaint for discrimination are without merit because Plaintiff cannot show that (a) he was competently performing the essential functions of the job or was qualified for the position sought, (b) that Defendant subjected Plaintiff to an adverse employment action, and (c) there existed circumstances suggesting a discriminatory motive.

·                     The third cause of action in the FAC and the first cause of action in the Related Complaint for discrimination are without merit because Defendant had legitimate, non-retaliatory reasons for its employment actions, and there is no substantial evidence of retaliatory pretext or intentional retaliation.

·                     The fourth cause of action in the FAC and the second cause of action in the related complaint for harassment are barred by the statute of limitations.

·                     The fourth cause of action in the FAC and the second cause of action in the related complaint for harassment because Plaintiff cannot show he was subjected to harassing conduct “because of” a protected characteristic.

·                     The fourth cause of action in the FAC and the second cause of action in the related complaint for harassment because Plaintiff cannot show the allegedly harassing conduct was “severe or pervasive.”

·                     The fifth cause of action in the FAC for failure to prevent harassment, discrimination, and retaliation is without merit because Plaintiff’s other claims are without merit.

In opposition, Plaintiff argues that:

·         There is evidence that Plaintiff was performing competently during the entire relevant time period.

·         There is evidence of discriminatory and retaliatory intent for the late 2017-2018 filling of five Section Head Positions over Plaintiff, and there are triable issues of fact as to whether these adverse actions were discriminatory or retaliatory.

·         There is evidence of discriminatory and retaliatory intent for the 2019 actions taken when Plaintiff returned to work.

·         Defendant has not met its burden of showing legitimate, non-discriminatory, and non-retaliatory reasons for the challenged adverse actions.

On  9/21/23, Defendant filed a reply.

ANALYSIS

A.      Legal Standard for Motion for Summary Judgment

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Cal. Civ. Proc. Code § 437c(a).)   “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.  In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”  (Id., § 437c, subd. (c).) 

A defendant moving for summary judgment must show “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2); see also, Code Civ. Proc., § 437c, subd. (o).) 

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action.  The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.  But… the defendant must indeed present evidence."  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [italics in original].)   “In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action--for example, that the plaintiff cannot prove element¿X.”  (Id., at 853.) The court in Aguilar distilled summary judgment to “a single proposition:  If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment.  In such a case . . . the ‘court should grant’ the motion ‘and “avoid a . . . trial’ rendered ‘useless’ by nonsuit or directed verdict or similar device.  (Id. at 855.) 

As noted in Aguilar, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at 850.)  Thus, courts usually follow a three-step analysis: “First, we identify the issues framed by the pleadings . . . . [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. . . . [¶] When a . . . motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.”  (Ojavan Investors, Inc. v. Cal. Coastal Comm. (1997) 54 Cal.App.4th 373, 385 [citation and footnote omitted].) 

Opposing parties must present substantial evidence in order to avoid summary judgment.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)  “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’”  (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084.)  “A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.”  (Hunter v. Pacific Mechanical Corp (1995) 37 Cal.App.4th 1282, 1286, disapproved on other grounds by Aguilar, supra, at 865; accord Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 [“‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’”].) 

Courts “construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the¿propriety¿of granting the motion in favor of the party opposing it.’” (Unilab Corp.v. Angeles-IPA (2016) 244 Cal.App.4^th 622, 636; internal citation omitted.)  “The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.”  (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4^th 740, 754; internal citation omitted.)    "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference...” (Rosas v. BASF Corp.¿(2015) 236 Cal.App.4^th 1378, 1392.) 

B.      Request for Judicial Notice

Defendant requests that the Court take judicial notice of the following: (1) Plaintiff’s Charge of Discrimination, EEOC Charge No. 480-2016-01200 dated 5/22/16, and Right-to-Sue Letter dated 11/20/17; (2) Plaintiff’s Charge of Discrimination, EEOC Charge No. 480-2017-02233 filed 7/31/17, and Right-to-Sue Letter dated 11/13/17; (3) Plaintiff’s Complaint of Employment Discrimination dated 8/7/17 re DFEH No. 886489-295653, related documents dated 1/24/18, 2/2/18, and a Right-to-Sue Letter dated 2/6/18; (4) Plaintiff’s Amended Complaint of Discrimination dated 5/22/18 re DFEH No. 201804-01963719, related Citizen’s Complaint, and Right-toSue Letter dated 4/30/19; (5) Plaintiff’s Complaint of Discrimination dated 1/16/20 re DFEH No. 201909-07444004, and Right-to-Sue Letter dated 11/24/20; (6) Plaintiff’s Complaint of Employment Discrimination dated 11/5/21 re DFEH No. 202110-15244629, and Right-to-Sue Letter dated 11/5/21; and (7) Documents from Plaintiff’s CalPERS file.

The Court GRANTS the request for judicial notice Nos. 1-6 pursuant to Evidence Code § 452(c) and (h) as to the date of the filings of Plaintiff’s complaints with the EEOC and DFEH and to the dates of the right-to-sue letters issued.

The Court GRANTS the request for judicial notice as to No. 7, the documents from Plaintiff’s CalPERS file, pursuant to Evidence Code § 452(c).

C.      Evidentiary Objections

Plaintiff’s evidentiary objections are SUSTAINED as to Nos. 1-6 (hearsay) and No. 7 (lacks foundation, conclusory).  

D.     Statute of Limitations

Defendant argues that, to the extent that Plaintiff’s claims are based on adverse employment action prior to February 6, 2018 and May 22, 2017, such claims are time-barred.

A prerequisite to bringing a civil action under FEHA is the filing of a timely administrative complaint with DFEH. (§ 12960;¿Morgan v. Regents of University of California¿(2000) 88 Cal.App.4th 52, 63.) Before January 1, 2020, the limitations period for filing a DFEH charge was only one year.  

The limitations period begins to run when the adverse action actually occurs. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 493-494.)

FEHA claims in a civil suit can only be based on specific acts of discrimination alleged in the DFEH complaint. Claims based on other, uncharged discriminatory acts will be barred as having failed to satisfy the exhaustion requirement. (Okoli v. Lockheed Technical Operations (1995) 36 Cal.App.4th 1607, 1613.) However, where a plaintiff’s civil suit asserts discriminatory acts that are “like or reasonably related to” those in the administrative charge, they will not be barred in the lawsuit even if not specifically referenced in the charge. (Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1064-1065.) The test for “relatedness” is whether the DFEH investigation into the charges alleged would have led to the discovery of and opportunity to conciliate the uncharged misconduct. (Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 858-859.)  

The evidence shows that Plaintiff filed an employment discrimination complaint on August 7, 2017. (RJN, Ex. C.) Plaintiff received a right-to-sue letter on February 6, 2018. (RJN, Ex. C.) However, Plaintiff failed to file a civil lawsuit based on the events arising from this DFEH complaint. As such, Plaintiff has waived any allegations arising from this right-to-sue letter, specifically claims of retaliation for denial of promotions on April 26, 2017.

Plaintiff then filed a complaint of discrimination with DFEH on May 22, 2018. (RJN, Ex. D.) Plaintiff received a right-to-sue letter on April 30, 2019. (RJN, Ex. D.) This complaint alleges that Plaintiff was discriminated on April 16, 2018 and denied other promotions. Plaintiff’s FAC is based on this 2018 complaint. (FAC, Ex. 1.) As such, the applicable period for adverse employment action is the time period from May 22, 2017 to May 22, 2018. The FAC alleges that Plaintiff was denied seven promotions in 2017 and 2018. (FAC ¶ 14.)

Plaintiff then filed a discrimination complaint on January 16, 2020 with DFEH. (RJN, Ex. E.) Plaintiff received a right-to-sue letter on November 24, 2020. (RJN, Ex. E.) This complaint alleges conduct that occurred in 2019, including transferring of Plaintiff to a new office, assignment to a smaller office, deactivation of Plaintiff’s badge and cell phone, mistreatment, stripping of Plaintiff’s assignments and staff, and denial of promotions. (RJN, Ex. E.) The Related Complaint is based on this right to sue letter. (Related Complaint, Ex. 1.) As such, the applicable period for the Related Complaint is between January 16, 2019 to January 16, 2020. The Related Complaint contains allegations of adverse employment action in this time period. (Related Complaint, ¶¶ 54-73.)

In opposition, Plaintiff submits evidence throughout his employment from 2011 to 2020. Although this evidence may be relevant to show evidence of a discriminatory motive, evidence of adverse employment actions taken in these time periods is not actionable pursuant to the statute of limitations. 

With the applicable time periods in mind, the Court proceeds to address the evidence on the merits.

E.      Discrimination Claims

Defendant argues that the third cause of action in the FAC and the first cause of action in the Related Complaint for discrimination in violation of FEHA fail because Plaintiff cannot show a prima facie case of discrimination because he cannot show that (a) he was performing competently in the position he held, (b) he suffered an “adverse employment action,” and (c) there were no circumstances suggesting a discriminatory motive.  Additionally, Defendant argues that it had legitimate reasons for its employment actions.

A plaintiff alleging discrimination must allege “that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.) To satisfy its initial summary judgment burden, moving party employer must either undermine an element of plaintiff's prima facie case by affirmatively negating it or showing plaintiff cannot prove it, or provide a legitimate nondiscriminatory reason for the adverse employment action. (McGrory v. Applied Signal Tech., Inc.¿(2013) 212 CA4th 1510, 1523.) 

As alleged by the FAC, and within the appropriate statute of limitations period, Defendant alleges that he was denied seven promotions that were given to less qualified individuals. (FAC ¶ 14.) The FAC alleges that he was discriminated based n his race, religious creed because he is Middle Eastern and of Muslim descent. (FAC ¶¶ 31-32.) The Related Complaint alleges that Plaintiff was discriminated against when he returned to work from medical leave. (Related Complaint, ¶ 54.) After this, he alleges he was involuntarily transferred to a new office, stripped of his projects and staff, and assigned to sit in a small, dark, noisy office. (Related Complaint, ¶ 55.) Plaintiff also alleges that his badge was disactivated and employees were required to attend a active shooter training that was allegedly directed toward Plaintiff. (Related Complaint, ¶ 65, 67.) Plaintiff alleges that he was not allowed to apply for a Division Engineer vacancy in the Wastewater and Solid Waste Design section. (Related Complaint, ¶ 59-62.) Additionally, Plaintiff alleges that he applied for a Division Engineer position in the Field Engineering section. However, Plaintiff alleges that the interview was a sham and, although he was the most qualified, a different engineer was selected. (Related Complaint, ¶ 68-71.)

1.      Qualification for Position or Competently Performing

Defendant first argues that Plaintiff cannot show that Plaintiff was performing competently in his job. Defendant puts forward evidence that Plaintiff was on medical leave from April 16, 2018 to April 19, 2019 because of a mental impairment and was not performing the essential function of his job of supervising his engineers and staff. (Related Complaint ¶ 51, Allen Decl. ¶ 3, 6; Ex. B, D.) On May 3, 2019, Plaintiff took off work and did not return until October 4, 2019. (Allen Decl. ¶ 9, Related Complaint ¶ 58, 63.) On June 19, 2019, Plaintiff’s doctor submitted a medical questionnaire that stated that Plaintiff’s medical condition limited his ability to perform essential functions of his position and was not able to work in any capacity. (Allen Decl. ¶ 11, Ex. H.) After returning to work for part of October 2019, Plaintiff left work on November 1, 2019 and did not return to work again. (Allen Decl. ¶ 14.) Plaintiff’s doctor submitted another questionnaire that stated that Plaintiff’s medical condition limited his ability to perform essential functions of his job and was not able to work. (Allen Decl. ¶ 21, Ex. Q.)

Although this evidence shows that Plaintiff was not performing essential job functions from April 16, 2018 to April 19, 2019, and from May 3, 2019 to October 4, 2019, and after November 1, 2019, Plaintiff’s complaint states that he was denied a promotion prior to taking medical leave in 2017 and 2018, and when he was back to work in October 2019. (FAC ¶ 14, Related Complaint ¶¶ 68-70.) Defendant submits no evidence to show that Plaintiff was not qualified or not performing competently at these relevant time periods. As such, Defendant has not met its burden of showing that Plaintiff was not qualified or competent to perform in the Division Engineer role.

2.      Adverse Employment Action

Next, Defendant argues that Plaintiff was not subjected to an adverse employment action because Plaintiff was not terminated, but retired. “Adverse employment action” must be substantial and detrimental, and can include refusal to promote, transfer of job duties, and reducing employee’s authority if the terms and conditions of employment are materially affected. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1060-1061; Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 374.) Additionally, “constructive discharge” is an adverse employment action where adverse treatment by an employer causes an employee to resign. (Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 801-802.)

Defendant argues that Plaintiff resigned prior to the Skelly hearing regarding the Notice of Intent to Separate; thus, no adverse action was taken. (Allen Decl. ¶ 25, Ex. T.) However, Defendant does not submit any evidence or argument to show that Plaintiff’s allegations of refusing to promote Plaintiff was not an adverse employment action. (FAC ¶ 14, Related Complaint ¶ 54-70.) As such, Defendant has not met its burden of showing that no adverse employment action was taken.

3.      Discriminatory Motive

Defendant argues that there are no circumstances suggesting a discriminatory motive. Defendant puts forward the declaration of Ms. Allen, the Human Resources Director of Defendant, stating that she did not take any adverse employment action based on Plaintiff’s race, creed, ancestry, color, or national origin and based on her multiple investigations, is not aware of any evidence that any Defendant employee did so either. (Allen Decl. ¶ 26.) However, this evidence lacks foundation and is conclusory. There is no evidence that the ones who decided not to promote Plaintiff, reassigned his position, or stripped him of his assignments and employees lacked discriminatory motive.

Further, although Defendant asserts that there is no evidence of a discriminatory motive, Defendant does not put forth any factually devoid discovery responses to show that this element of the discrimination claim cannot be established. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) As such, Defendant has not met its burden of putting forth evidence showing that Plaintiff cannot show a prima facie case of discrimination.

4.      Legitimate, Non-Discriminatory Reasons

Finally, Defendant argues that there were legitimate, non-discriminatory reasons for its actions. First, Defendant puts forward evidence that vacant Division Engineer positions are usually filled by appointment of qualified Supervising Engineers or a competitive selection process where candidates apply and undergo an interview. (Allen Decl. ¶ 5, Ex. C.)

Defendant puts forward evidence that in late 2017 and early 2018, approximately six management appointments of Division Engineers who were recommended by the relevant Department Heads were made, and an existing Division Engineer Sewer Design Section was transferred to lead the Field Engineering Section. (Allen Decl. ¶ 5.) A competitive selection process was then held to fill the Division Engineer position in the Sewer Design Section, but Plaintiff did not apply. (Allen Decl. ¶ 5.)

Defendant puts forward additional evidence that, due to Plaintiff’s extended absence from work, the engineers and other staff whom Plaintiff had been supervised were relocated from the San Gabriel field office to the Joint Administration Office in Whittier and supervised by another Supervising Engineer in Plaintiff’s absence. (Allen Decl. ¶ 8.)

Defendant puts forward evidence that in October 2019, Plaintiff applied for a vacant Division Engineer position in Field Engineering as part of a competitive selection process. (Allen Decl. ¶ 8.) Ms. Allen states that the position was offered to the highest ranked candidate, who was not Plaintiff, and that candidate accepted the position. (Allen Decl. ¶ 14.)

Defendant then puts forward evidence that, on November 26, 2019 and March 18, 2020, Plaintiff failed to meet with Defendant about reasonable accommodations meeting and engage in the interactive process. (Allen Decl. ¶ 15, Ex. K, N.) At this point, Defendant prepared and submitted to CalPERS an employer-originated disability retirement application on behalf of Plaintiff. (Allen Decl. ¶¶ 18-22, Exs. O, P, R.) After being advised that the second disability retirement application was cancelled, Defendant prepared a Notice of Intent to Separate pursuant to Skelly. (Allen Decl. ¶¶ 23-25.) Prior to this hearing, Plaintiff resigned. (Allen Decl. ¶ 25, Ex. T.)

Although this evidence meets Defendant’s burden of showing legitimate, nondiscriminatory reasons for reassigning Plaintiff to a new location and for preparing and submitting the disability retirement applications, this evidence does not show legitimate, nondiscriminatory reasons for failing to promote Plaintiff. Ms. Allen’s declaration is insufficient to show that there were legitimate, nondiscriminatory reasons for failing to promote Plaintiff because there is no showing that Ms. Allen was the one who made the decisions about whether to promote someone to a Division Engineer. Additionally, there is no evidence that explains why the decision to promote others over Plaintiff was a legitimate, nondiscriminatory decision. As such, there is no legitimate reason for the decision presented, and thus the burden does not shift to Plaintiff to show that these reasons are pretextual. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.)

Further, Plaintiff submits evidence to show that any presented reason may have been pretextual. Plaintiff presents evidence that Plaintiff had shown his interests in the Division Engineer positions by applying for other Division Head positions previously. (Edouni Decl. ¶¶ 35-36, 37-38.) Plaintiff additionally argues that, even though he did not apply for the Field Engineering position, he was qualified, having worked as an engineer for more than 24 years and as a Resident Engineer for more than 14 years. (Edouni Decl. ¶ 108.) Plaintiff additionally submits evidence that he had expressed his interest in the position, including sending an email to Espinoza and Assistant Chief Robert Ferrante setting forth his qualifications and interest in the position. (Edouni Decl. ¶ 77, 81-83, 87; Ex. 3 [Espinoza Depo. 82:14-18]; Ex. 17; Ex. 18.)

Plaintiff also puts forth evidence that, before 2018, when Plaintiff had grown a beard, Department Head, Sam Espinoza told him, “You look like a terrorist,” and had told Plaintiff that he did not invite him to his wedding because it was in a church and Plaintiff was a Muslim. (Edouni Decl. ¶¶ 79-80.) Plaintiff puts forward evidence that Department Head Sam Espinoza then sat on the interview panel for the November 2019 Field Engineering Section Head selection and gave Plaintiff a failing score. (Ex. 3 [Espinoza Depo. p. 174:1-12]; Ex. 23 [Espinoza Interview rating Sheet – October 2019].) 

As such, summary adjudication for the third cause of action in the FAC and the first cause of action in the Related Complaint for discrimination is DENIED.

F.       Retaliation Claims

Preliminarily, the Court notes that Plaintiff has dismissed the second cause of action in the FAC for retaliation under Labor Code 1102.5. As such, the Court does not look at Defendant’s argument relating to this cause of action.

To show retaliation under FEHA, a plaintiff must show the following elements: (1) plaintiff engaged in protected activity, (2) adverse employment action, (3) retaliatory intent, and (4) a causal link between the protected activity and the adverse employment action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant argues that the first cause of action in the FAC and the third cause of action in the Related Complaint for retaliation fail because (1) Plaintiff cannot show a prima facie case of retaliation because he cannot show an adverse employment action or a causal link between any protected activity and any adverse employment action; and (2) Defendant has shown a legitimate, non-retaliatory reasons for its actions.

As alleged by the FAC, and within the appropriate statute of limitations period, Defendant alleges that he was denied seven promotions that were given to less qualified individuals. (FAC ¶ 14.) The FAC alleges that Plaintiff was retaliated against after submitting a complaint to DFEH. (FAC ¶ 20.) The Related Complaint alleges that Plaintiff was retaliated against for his filing of complaints with the EEOC and DFEH. (FAC ¶ 35, 45, 52.) After the filing of the complaint in 2018, he alleges he was involuntarily transferred to a new office, stripped of his projects and staff, and assigned to sit in a small, dark, noisy office. (Related Complaint, ¶ 55.) Plaintiff alleges that he was not allowed to apply for a Division Engineer vacancy in the Wastewater and Solid Waste Design section. (Related Complaint, ¶ 59-62.) Additionally, Plaintiff alleges that he applied for a Division Engineer position in the Field Engineering section. However, Plaintiff alleges that the interview was a sham and, although he was the most qualified, a different engineer was selected. (Related Complaint, ¶ 68-71.)  Plaintiff alleges that, when he asked Assistant Department Head Mike Tatalovich why he was not selected for the position, Tatalovich told Plaintiff “Because of the way you have been complaining about management.” (Related Complaint ¶ 71.)

Defendant submits the same evidence as the discrimination claim to show that Plaintiff cannot show a prima facie case of retaliation. The Court previously found that this evidence was not sufficient to show that either no adverse employment action was taken. Additionally, Defendant offers no additional evidence to show that there is no causal link between the filing of the complaints with DFEH and the failure to promote Plaintiff besides Ms. Allen’s declaration, which the Court found to be insufficient to show that there was no discriminatory intent.

Additionally, Defendant submits the same evidence to show that there were legitimate, nondiscriminatory reasons for failing to promote Plaintiff. As the Court already found this evidence was insufficient to meet Defendant’s burden, the Court finds that it is insufficient to meet its burden for these causes of action.

As such, Defendant has not met its burden. Therefore, the burden does not shift to Plaintiff to show a triable issue of material fact. As such, summary adjudication as to the first cause of action in the FAC and the third cause of action in the Related Complaint for retaliation is DENIED.

G.     Harassment

Defendant argues that the fourth cause of action in the FAC and the second cause of action in the Related Complaint for harassment fail because Plaintiff cannot establish a prima facie case of harassment because he cannot show either that (a) he was subject to harassment because of a protected characteristic or (2) the allegedly harassing conduct was “severe or pervasive.”

To establish a prima facie case for¿harassment, a plaintiff must show that (1) he was a member of a protected class; (2) he was subjected to unwelcome¿harassment; (3) the¿harassment¿was based on¿a protected characteristic; and (4) the¿harassment¿unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment. (Thompson v. City of Monrovia¿(2010) 186 Cal.App.4th 860, 876.)¿¿“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¿and brackets¿omitted].) This must be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff¿and is ordinarily an issue of fact. (Id.¿at p. 264.)¿ 

A single incident of harassment may be enough to constitute a hostile work environment if it “unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”¿ (Gov. Code, § 12923, subd. (b).)¿ The court shall use the totality of the circumstances to determine whether there exists a hostile work environment.¿ (Gov. Code, § 12923, subd. (c).)¿ Where the evidence establishes that Plaintiff did not endure conduct "so severe and pervasive as to alter the conditions of his employment," summary judgement is appropriate. (McCoy v. Pacific Maritime Association (2013) 216 Cal. App. 4th 283, 294.)

The FAC alleges that Defendant employees continually blocked his opportunities to transfer or get promotions and began to exclude him from job responsibilities and meetings based on his Middle Eastern descent and Muslim faith. (FAC ¶ 12-14, 37.) Related Complaint alleges that Plaintiff was subjected to harassment, including being involuntarily transferred, assigned to sit in a small, dark, and noisy office, being told that he “looks like a terrorist, having his badge deactivated so he was forced to enter the building with an escort, and being forced to undergo a armed shooter training that Plaintiff alleges was directed toward him. (Related Complaint ¶ 57-67.)

Defendant first puts forward investigations by the Human Resources Director, Ms. Allen, that shows that Plaintiff’s claims of harassment were investigated by Defendant and Ms. Allen was unable to identify any evidence that any of the actions Plaintiff complained about were taken because of a protected characteristic. This evidence is insufficient to establish that there was no harassment because of a protected characteristic, as the evidence of the investigations is hearsay, Ms. Allen does not testify about her personal knowledge about any of the alleged harassing conduct, and the statement in Ms. Allen’s declaration is conclusory. (See Allen Decl. ¶ 26, Exs. E-G, J, L, M.)

Next, Defendant argues that the conduct alleged is not sufficiently severe or pervasive. Defendant argues that the conduct was occasional, isolated, sporadic, or trivial. Additionally, Defendant argues that these were “personnel management activities.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) However, as alleged, these actions were continuous and pervasive and impacted Plaintiff’s work environment. (See Related Complaint, ¶ 72, 80.) Case law only mandates that the harassment be “severe or pervasive.” Although these allegations may not be “severe,” if pervasive, they can be sufficient to “alter the conditions of the employment. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Defendant puts forward no evidence to dispute the allegations in the Complaints. Again, Defendant only puts forward evidence of the internal investigations, which is hearsay.

Additionally, although “commonly necessary personnel management actions” are not generally actionable as harassment, (Reno v. Baird (1998) 18 Cal.4th 640, 646-47), Defendant puts forward no evidence showing that all of these actions were “commonly necessary personnel management actions.” Defendant puts forward evidence explaining the relocation of engineers. (Allen Decl. ¶ 8.) However, Defendant puts forward no evidence explaining the new office, deactivation of the badge, or the active shooter training. As such, the Court cannot determine these were “commonly necessary personnel management actions.” 

As such, Defendant has not met its burden. Therefore, the burden does not shift to Plaintiff to show a triable issue of material fact. The motion for summary adjudication is denied as to the fourth cause of action in the FAC and the second cause of action in the Related Complaint for harassment.

H.     Failure to Prevent Harassment, Discrimination, and Retaliation

Defendant argues that the fifth cause of action in the FAC for failure to prevent harassment, discrimination, and retaliation fails because Plaintiff’s FEHA claims are without merit.

However, as the Court has found that Defendant has not met its burden of showing that any of the discrimination, retaliation, and harassment causes of action are without merit, the Court cannot find that the fifth cause of action is without merit.

As such, the Court denies the motion for summary adjudication as to the fifth cause of action in the FAC.

I.        Conclusion

Summary judgment or, in the alternative, summary adjudication is DENIED.