Judge Upinder S. Kalra, Case 20STCV11386 2023-05-08 Tentative Ruling

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1. An order granting summary judgment, or summary adjudication, as the 1^st, 2^nd, and 3^rd causes of action.

On March 20, 2020, Plaintiff Danielle Tumbleson (“Plaintiff”) filed a complaint against Defendants City of Los Angeles, Lieutenant Michel Kozak, Detective Richard Wheeler, Detective Kenneth White, and Detective Mario Santana (“Defendants.”) The complaint alleged three causes of action: (1) Gender Discrimination in Violation of FEHA, (2) Sexual Harassment/Hostile Work Environment in Violation of FEHA, and (3) Retaliation in Violation of FEHA. The complaint alleges that Plaintiff was a Detective and was recruited to be a member of the Operations Valley Bureau Homicide – Fresh Murders Squad “2” in March 2018. Prior to starting, Plaintiff was aware of Defendant Santana’s treatment toward females in the workplace. Additionally, Plaintiff was aware that Santana’s supervisors were aware of his behavior, but failed to take any action. As a result of the harassment and discrimination, Plaintiff requested to transfer. However, Plaintiff’s transfer request to Mission Division was denied twice and was given a false reason for the denial. Plaintiff eventually transferred out of OBVH.

On June 17, 2020, Defendants filed City of Los Angeles, Lieutenant Michel Kozak, Detective Richard Wheeler, Detective Kenneth White filed a Demurrer, which was OVERRULED.

On June 23, 2020, Plaintiff filed a Request for Dismissal as to the Retaliation and Discrimination Causes of Action as to Defendants Wheeler, Kozak and White only.

On September 21, 2020, Plaintiff filed a Request for Dismissal as to the Retaliation and Discrimination Causes of Action as to Defendant Santana

On March 18, 2021, Plaintiff filed a Request for Dismissal as to the Entire Action as to Defendants Kozak, Wheeler, White, and Santana.

On February 22, 2023, Defendant City of Los Angeles filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication. Plaintiff’s Opposition was filed on April 24, 2023. Defendant’s Reply was filed on May 3, 2023.[1]

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, at p. 850.) The party opposing summary judgment “may not rely upon the mere allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of material fact exists . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.)

When a plaintiff alleges a cause of action for discrimination under the California Fair Employment and Housing Act (“FEHA”), California courts apply the three-step burden-shifting test set forth by the United States Supreme Court in McDonnell Douglas Corp. v Green (1973) 411 U.S. 792 (McDonnell Douglas) to evaluate the claim. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520 (Reid); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The McDonnell Douglas test “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Guz, supra, at p. 354.)

Under the three-part McDonnell Douglas test, the plaintiff has the initial burden of establishing a prima face case of discrimination by providing evidence that “(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination . . ., and 4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.) If the plaintiff establishes a prima facie case, “a presumption of discrimination arises.” (Ibid.) At this stage, “the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[ ] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason.” [Citations.]” (Id. at pp. 355-356.) “If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.]” (Id. at p. 356.)

In the context of a motion for summary judgment, “an employer may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case ‘is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors.’ [Citations.]” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1181-1182.) If the employer shows it had a legitimate, nondiscriminatory reason for the action, the plaintiff “‘may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”’” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) “In responding to the employer’s showing of a legitimate reason for the complained-of action, the plaintiff cannot ‘“simply show the employer’s decision was wrong, mistaken, or unwise. Rather, 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, 389-390.) “[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, supra, 24 Cal.4th at p. 361.)

Under FEHA, the elements for discrimination under Labor Code section 12940, subdivision (a) are: “(1) [Plaintiff] was a member of a protected class, (2) [Plaintiff] was qualified for the position he sought or was performing competently in the position he held, (3) [Plaintiff] 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.)

Defendant contends that Plaintiff will be unable to establish element three, this is that she suffered an adverse employment action. Defendant also contends that, in any event, any action was based on legitimate nondiscriminatory factors.

Defendant contends that Plaintiff cannot establish a prima facie showing that there was “a substantial adverse change in the terms and conditions of the plaintiff's employment” relying upon Akers v. Cnty. of San Diego (2002) 95 Cal.App.4th 1441, 1455(Akers). Defendant contends that since Plaintiff was not terminated, demoted, given formal negative performance evaluations, or denied a promotion that, at most, Plaintiff’s evidence only rises to the level of “minor disagreements and gripes.” [2](Motion 12: 22-26, UF 41.)

Defendant’s reliance on Akers is misplaced and Defendant’s narrow construction of what constitutes an adverse employment action is inconsistent with California Supreme Court Authority. First, Akers involved an employee alleging retaliation founded on negative performance and counseling memorandums that Plaintiff asserted precluded reasonable promotional opportunities. (Akers, supra, 95 Cal.App.4th at p. at 1457.) While the Akers Court acknowledged that “oral or written criticisms of an employee or a transfer into a comparable position” may not generally result in an adverse employment action, “the issue requires a factual inquiry and depends on the employer’s other actions.” (Ibid.) Stated otherwise, depending on the context, the employer conduct may be actionable. In fact, the Akers Court concluded that “the totality of the circumstances, including the language used” was sufficient to support an adverse employment action.

Second, Defendant’s characterization of Plaintiff’s evidence as “minor” misconstrues the context of that limiting language. The source of the minor disagreement language was Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028(Yanowitz), where the California Supreme Court was asked to interpret the meaning of an adverse employment action under FEHA’s retaliation section as set forth in Labor Code section 12940, subdivision (h). The Court compared the language in the anti-discrimination section set forth in subdivision (a) and leaned heavily into Harris v. Forklift Sys., Inc. (1993) 510 U.S. 17, where the United States Supreme Court interpreted analogous anti-discrimination prohibitions in Title VII. In two passages, the California Supreme Court distinguished minor transgressions from actionable claims but made clear, in no uncertain terms, that FEHA must be interpreted broadly. In the first passage the Court stated the following:

“ As the high court concluded in Harris with respect to the comparable language embodied in Title VII, we believe that the language in section 12940(a) making it an unlawful employment practice for an employer to discriminate against an employee on the basis of race, sex, or the other enumerated characteristics ‘in compensation or in the terms, conditions, and privileges of employment’ properly must be interpreted broadly to further the fundamental antidiscrimination purposes of the FEHA. Appropriately viewed, this provision protects an employee against unlawful discrimination with respect not only to so-called ‘ultimate employment actions’ such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide. (Id. at pp. 1054–1055, emphasis added, fn. omitted.)

The Court reiterated in the very next passage the term “adverse employment action” cannot be subject to narrow, mathematical precision, but rather must be liberally construed in order to effectuate the remedial purpose of FEHA.

“As the high court recognized in Harris,[3] the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers of fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940 (h).” (Id. at pp. 1054–1055, emphasis added, fn. omitted.)

Ultimately, the Supreme Court concluded that the evidence of “public criticism of a previously honored employee, an implied threat of termination,” and undermining her collectively established a prima facie showing of the adverse action element. (Id. at p. 1043.) To be clear, the Court concluded that the evidence demonstrated a factual dispute that could not be resolved at a summary judgment ,i.e., the conduct was a mere inconvenience as a matter of law.

Turning to the evidence in this case, Plaintiff has presented evidence that the homicide position at OVBH was coveted. Nonetheless, shortly after being selected for this prestigious position, the following occurred: Plaintiff was “counseled” about her clothing and appearance and no other male detectives had this conversation, had sign-in/sign-out requirements that were not applicable to male detectives, was told that she was a “beautiful woman and men wanted to talk to her a lot” and another Detective said he was “frontloading a potential future problem,” and was present when disparaging remarks were made about women drivers. (AMF 17-22, 25-32, 36-37, 62-63.) Ultimately this conduct forced Plaintiff to request a transfer out of OVBH after a mere four months. Additionally, Plaintiff has presented evidence that after she made complaints, her transfer to the Mission Division was delayed twice even though a position was guaranteed and the paperwork was properly submitted. (AMF 76, 80-81.)

The Court concludes that, just as in Yanowitz , a reasonable trier of fact could find that this conduct collectively were similar in kind and occurred with sufficient frequency to constitute a continuous and temporally related course of conduct that is satisfies the prima facie element of an adverse employment action.

Thus, Defendant has failed to establish as a matter of law that Plaintiff will be unable to establish adverse employment action element.

If an employee establishes the prima facie case, the employer must offer a legitimate and non-retaliatory reason for the adverse employment action. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68). The employer must come forward with additional evidence, but it does not take on a burden of persuasion. (Id.) Once the employer “produces substantial evidence of a legitimate, non-discriminatory [or non-retaliatory] reason for the adverse employment action, the presumption of discrimination [or retaliation] created by the prima facie case ‘simply drops out of the picture.’” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 quoting St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 511).

If the employer establishes a legitimate reason for the adverse employment action, the burden shifts back to the employee to prove retaliation. (Morgan 88 Cal.App.4th at 68). An employee can establish pretext “either directly by persuading the court that a [retaliatory] reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Id.). “The retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.” (Morgan 88 Cal.App.4th at 69). “The causal link may be established by an inference derived from circumstantial evidence, such as the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” (Id.). “Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.” (Id.). Circumstantial evidence must be “specific” and “substantial” to create a triable issue with respect to whether an employer intended to retaliate, while direct evidence of pretext does not need to be “substantial” to create a triable issue as to the actual motivation of the employer. (Id.).

Defendant argues that there were legitimate reasons for its actions. As to the clothing situation, Defendant argues that the City has a legitimate reasons to ensure “sworn personnel adhere to the dress code, particularly for homicide detectives who interact with the press more than other detectives.” (Motion 15: 17-19.) The City has a legitimate reason to limit excessive socializing to ensure that employees remain productive. (Id. at 20-21.) As to Plaintiff’s transfer request, the City’s reason to not transfer Plaintiff to Mission Division is because the location was over-deployed, had a five-person waiting list, and “risk of exacerbating prior issues of workplace cliques and personality conflicts.” (Id. at 16: 3-7.)

Plaintiff responds that there was no legitimate reason, and the actions were pretextual. For example, if Plaintiff’s clothing was inappropriate, then why did Detective Doerbecker stated that there was nothing wrong, but rather it was Detective Wheeler’s issue and difficult to “contain his impulses.” (AMF 29-32.) Additionally, as to wanting to prevent excessive socializing, Detective Wheeler did not have any closed-door counseling sessions with any other one, but stated in those closed-door sessions that she was beautiful, and men want to talk to her, and never discussed Plaintiff’s performance with others to see if Plaintiff was behind in work. (AMF 36-39.) As to preventing Plaintiff’s transfer, the evidence indicates that the Mission Division was not over-deployed, but was under its TOs. (AMF 78-79.) Moreover, the Declaration of Deputy Chief Hamilton states that he was aware “that the conflict had resulted in cliques forming between different sworn personnel,” but did not have the “specific complaints of the people involved.” (Dec. Cadena, Ex. 4, Dec. Hamilton ¶ 2.)

The Court finds that Plaintiff has met its burden that these actions were pretextual. While the Court sincerely questions whether Defendant’s proffered explanation is worthy of credence, in any event, Plaintiff has sufficiently presented evidence demonstrating that there is a material dispute in fact on whether the reasons presented by Plaintiff more likely motivated the employer.

Therefore, the Motion for Summary Adjudication for the First Cause of Action is DENIED.

To establish a prima facie claim of harassment, a plaintiff must show: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to harassment; (3) the harassment complained of was based on a protected characteristic; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

Harassment claims, “focus[ ] on situations in which the social environment of the workplace becomes intolerable because the harassment ... communicates an offensive message to the harassed employee.” (Pollock, supra, 11 Cal. 5th at p. 932.) Generally, a hostile environment “is found on the theory that a series of separate acts collectively constitute one ‘unlawful employment practice.’ ” (National Railroad Passenger Corp. v. Morgan (2002) 536 U.S. 101, 117.) Harassment is something that communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Plaintiff must show that the conduct was severe or pervasive enough to alter the conditions of employment, creating an abusive work environment based on the protected characteristic. (Fisher, supra, 214 Cal.App.3d at 851.)

Defendant argues that Plaintiff’s claim for harassment fails because she cannot establish a prima facie case that she subjected to pervasive conduct that altered the conditions of her employment. Specifically, the comments regarding dress code were not harassment. Plaintiff was not singled out as a female as all employees were told to comply with dress code or to stop excessively socializing, these statements were made by a supervisor and was a personnel action, the conduct was not pervasive or severe. (Motion 18: 26 – 19: 2; 19: 2-5; 19: 8-11.)

The Court finds that Defendant has failed to meet its initial burden that Plaintiff will be unable to establish as a matter of law that the conduct complained of was not pervasive or severe. To be sure, in making this determination the trier of fact should consider, “(1) the nature of the unwelcome sexual acts or words (with physical touching generally considered more offensive than mere words); (2) the frequency of the offensive acts or encounters; (3) the total number of days over which all the offensive conduct occurred; and (4) the context in which the sexually harassing conduct occurred.” (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 162.) As discussed above, Plaintiff has presented evidence that a reasonable trier of fact could conclude demonstrated that Plaintiff experienced harassment on multiple occasions. These included when she was told about Santana’s inappropriate comments, when she heard about Lt. Kozak’s derogatory language, when she was counseled about an inappropriate and was told she was a beautiful woman and men wanted to talk to her, when Plaintiff was pulled from an active crime scene to discuss the complaints, and when she learned from an co-worker that Kozak stated he would not promote her because he didn’t want people to think she was promoted because she was a Black female. (AMF 12, 14, 21-34, 35-40, 41-48, 56.)

The Court concludes that as discussed above, a reasonable trier of fact could find that this conduct collectively were similar in kind and with sufficient frequency was severe and pervasive enough to constitute a hostile work environment.

Therefore, the Motion for Summary Adjudication for the Second Cause of Action is DENIED.

To state a claim for retaliation under FEHA a plaintiff establishes a prima facie case by establishing that (1) the plaintiff engaged in a FEHA-protected activity, (2) the plaintiff was subject to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042). The protected activity may be established by the fact the plaintiff threatened to file a discrimination charge, that the plaintiff reasonably and sincerely believed he or she was opposing discrimination, or that the employer knew the employee was opposing the employer at the time of the retaliation. (Id. at 1046-48; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814-15; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477).

As discussed above, Defendant has failed in its initial burden that Plaintiff will be unable to make a prima facie showing of an adverse employment action. To be sure, Plaintiff has presented evidence of conduct that collectively a reasonable trier of fact could conclude constitutes retaliatory adverse employment actions. These include when Plaintiff was singled out at a homicide scene to discuss Wheeler’s comments (AMF 41-43, 47), telling Plaintiff to directly confront her harasser (AMF 44-46, 52-53), not conducting an investigation yet concluded that no misconduct occurred (AMF 48-50), ignoring complaints and threatening Plaintiff with formal discipline (AMF 54-55), requiring to sign in and out without requiring anyone else to do so and deduct OT for not signing out (AMF 63), not timely signing Plaintiff’s transfer form, and later denying the transfer and stating it was a computer glitch (AMF 66, 71-74, 76, 80-81). Further, the Court rejects Defendant’s attempt to narrow the retaliation act to simply the transfer. As the Supreme Court ruled in Yanowitz, the trial Court need not evaluate each individual act of retaliation.

Therefore, the Motion for Summary Adjudication for the Third Cause of Action is DENIED.

[1]On May 5, 2023, Plaintiff filed a document captioned “Reply to Objections.” There is no authority to file this document.

[2]These include informal counseling (UF 7), Plaintiff’s request to transfer – even though she was not given her first preferred location (UF 34-37), Plaintiff’s complaints to IA – believed to be disagreements not misconduct (UF 18-19), and other “minor gripes” – sign-in/sign-out policies, meal time deductions, changing days off, driving comments, reminder to keep phones on.

[3]It is apparent how much our Supreme Court relied on Harris in their analysis. “A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. ... [¶] ... Certainly Title VII bars conduct that would seriously affect a reasonable person psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive [citation], there is no need for it also to be psychologically injurious. [¶] This is not, and by its nature cannot be, a mathematically precise test. We need not answer today all the potential questions it raises.... But we can say that whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.” (Harris, supra, 510 U.S. at pp. 21–23, fns. omitted, italics added.)