Judge Upinder S. Kalra, Case 20STCV49136 2023-03-28 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

1. Summary
Adjudication is GRANTED, as the 1^st, 2^nd, and 3^rd
causes of action

On December 23,
2020, Plaintiff Tracy Stewart (“Plaintiff”) filed a complaint against
Defendants County of Los Angeles, Timothy Murakami, and Does 1 through 99
(“Defendants”). The complaint alleged five cause of action: (1) FEHA
Discrimination – Disparate Treatment, (2) FEHA Discrimination – Disparate
Impact, (3) FEHA Work Environment Harassment, (4) FEHA Retaliation, and (5)
FEHA Failure to Prevent Harassment, Discrimination, or Retaliation. The
complaint alleges that the Plaintiff was denied a promotion by the Defendants
based on her race and was subjected to racial harassment and discrimination.

On May 28, 2021,
Defendant County of Los Angeles filed a Demurrer with Motion to Strike, which
was SUSTAINED, with leave to amend.

On September 21,
2021, Plaintiff filed a Second Amended Complaint. The operative complaint
alleges three causes of action: (1) FEHA Discrimination – Disparate Treatment,
(2) FEHA Work Environment Harassment, and (3) FEHA Failure to Prevent
Harassment, Discrimination, or Retaliation. In sum, the complaint alleges that
the Plaintiff was denied a promotion by the Defendants based on her race and
was subjected to racial harassment and discrimination.

On October 21,
2021, Defendants filed a Demurrer without a Motion to Strike, which was
OVERRULED.

On September 26, 2022, Defendants filed the current Motion
for Summary Judgment.

On December 2, 2022, Defendants filed a Reply. Apparently,
while Plaintiff served Defendants with an Opposition, Plaintiff neglected to
file an Opposition with the Court.

On December 7, 2022, the hearing was continued to December
20, 2022, to give Plaintiff an opportunity to file their Opposition with the
Court, which was filed later that day.

On January 6, 2023 and January 9, 2023, the parties filed
supplemental briefing.

On December 20, 2022, the Court conducted an initial hearing
on the motion and requested additional briefing on the first and second cause
of action and authorized additional evidence[1]
related to the alleged adverse employment action, discussed in paragraph 30 of
the SAC, that was based on the 2019 denial to the position of Captain of the Altadena Station. The
Court also solicited additional briefing from both parties as to Williams v. City of Belvedere (1999) 72
Cal.App.4th 84 (Williams) and National Railroad Passenger Corp. v. Morgan
(2002) 536 U.S. 10 (National R.R.).)

On January 17, 2023, a second hearing on the Motion for Summary
Judgment was held. The Court reiterated that it was authorizing Defendant to
present additional evidence as to the alleged adverse employment action related
to the 2019 denial of promotion to Captain at the Altadena Station. The Court set
a briefing schedule and continued the hearing to March 28, 2023.

The court declines to rule on the
remaining objections as immaterial.
(Code Civ. Proc., § 437c, subd. (q).)

The court sustains Objections Nos. 3,
7, 8, 9, 10,15, 16, 19, 13, 20, 24, 25,
27,28

The court overrules Objections Nos.
1-2, 3-7, 11, 12-14, 1719, 21, 22, 23, 29-30

Plaintiff’s March 7, 2023 request to take judicial notice of
Lin v. Kaiser Foundation Hospitals (2023)
88 Cal.App.5th 712 is granted.

“[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.)

Plaintiff alleges that from
November 2013 to February 2014, Plaintiff was denied numerous promotions because
of her ancestry, color and/or race. (SAC ¶ ¶ 19-26, 28-30, 33, 51, 57.) ) Defendants,
County of Los Angeles (“County”) and Timothy Murakami (“Murakami”)
(collectively, “Defendants”), move for summary judgment on two grounds. First,
as to the claims that occurred in 2013 and 2014, Plaintiff’s allegations are
time-barred by the statute of limitations. Second, as to the 2019 claims, there
are no triable issues of material facts as to Plaintiff’s causes of action.

A prerequisite to bringing a civil
action under FEHA is the filing of a timely administrative complaint with the Department
of Fair Employment and Housing (“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
complaint was one year. Effective January 1, 2020, Assembly Bill 9 (AB 9)
amended section 12960, subdivision (e), to extend the applicable statute of
limitations to three years “from the date upon which the unlawful practice or
refusal to cooperate occurred.”

Plaintiff presented the initial
DFEH charge on August 18, 2020. Defendants argue that conduct that occurred
prior to December 31, 2019 is subject to the then existing one-year statute of
limitations. Case law hold differently. Specifically, the new three-year
statute of limitations applies to actions that were not already barred as of January 1, 2020. (Andonagui
v. May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 440.)

The Legislature specifically
limited the new three-year statute of limitations to actions that had not yet
lapsed by indicating that AB-9 shall not be interpreted to revive lapsed
claims. (AB 9, Section 3.) The issue for this Court to resolve is whether any
of the discrimination and harassment claims lapsed by January 2, 2020? To
answer this question, the Court first must determine when each of these various
claims accrued.

“A statute of limitations ‘does not begin to run until the cause of action accrues,’ and a
cause of action accrues at the moment when the party alleging injury is
entitled to ‘ “ ‘begin and prosecute an action thereon.’ ” ’ ” (Pollock v. Tri-Modal Distribution Services,
Inc. (2021) 11 Cal.5th 918, 930 (Pollock), citation omitted.) Under FEHA, the aggrieved employee must first timely file and exhaust
administrative remedies following the date on which an unlawful employment
practice has occurred before the aggrieved employee is entitled to commence
prosecution. (Govt. Code §§ 12940, 12960.) Accordingly, the unlawful employment
practice is the triggering event that starts the clock for statute of limitations
purposes.

In Pollock, Plaintiff alleged a failure to promote unlawful employment
practice claim as quid pro quo sexual harassment. (Pollock, supra, 11 Cal.5th
at p. 931.) Our Supreme Court was presented
with the following issue: When did the actionable harassment “occur” to commence the accrual of the
statute of limitations? Although Plaintiff there did not plead discrimination,
the High Court noted the close relationship between harassment and discrimination
claims particularly in the context of failing to promote. “An employee who is the victim of discrimination based on some official
action, such as a failure to promote, can ‘also be the victim of harassment’
based on the same or similar underlying conduct.[citation]” (Pollock at p. 932.) “In such a case, the promotion decision itself
‘constitute[s] the evidentiary
basis of the harassment cause of action,
because the supervisor used [an] official action[ ] as [a] means of conveying
his offensive message.’ [citation.] In
other words, sometimes ‘the hostile message that constitutes the harassment is
conveyed through official employment actions, and therefore evidence that would
otherwise be associated with a discrimination claim can form the basis of a
harassment claim.’ [citation]” (Ibid.) The High Court thoroughly reviewed United
States Supreme Court and Federal authority, including cases dealing with racial
animus. Ultimately, our Supreme Court concluded that FEHA cases alleging failure
to promote, the claim occurs “[o]nce the employer has told the employee that he
or she will not be promoted or the employee otherwise gains actual or constructive
knowledge of the allegedly unlawful promotion decision, a ‘ “concrete harm has been suffered” ’,
and any FEHA claim contesting the promotion denial accrues.” (Id. at p. 939.)

In this matter, the alleged unlawful
employment practice for both the discrimination and harassment causes of action
is the same—failure to promote.[2] Under Pollock, therefore, the claims accrued
on the date when “an aggrieved employee knows or reasonably should know
of the employer's decision not to promote him or her.” (Pollock, supra, 11 Cal.5th
at p. 935.) In other words, as to the claims arising from the 2013 and 2014 claims,
the unlawful employment practice “occurred” within the meaning of FEHA in 2013
and 2014 when Plaintiff was informed of the County’s decision not to promote
her. Since at the time, the applicable statute of limitations was one year,
those claims lapsed well before
January 2, 2020. Accordingly, they are barred as a matter of law.

Plaintiff also contends her claims
are subject to equitable tolling. That is, until Plaintiff was armed with the
knowledge of the discriminatory intent, the statute of limitation was tolled. [3] Plaintiff contends that when
some discriminatory acts occurred within the statutory period and others
occurred afterwards, the employer may still be liable for the entire course of conduct based on the
“continuing violation” doctrine. (Richards
v. CH2M Hill Inc. (2001) 26 Cal.4th 798, 819-820 [employer engaged in a
continuous course of conduct by refusing reasonable accommodations and engaging
in disability harassment].) In those circumstances, the statute begins to run “either when the course of unlawful
conduct ends or when the employee is
on notice that further efforts to end the conduct will be in vain.” (Id. at p. 823.) “A continuing violation
exists if: (1) the conduct occurring within the limitations period is similar in kind to the conduct that
falls outside the period; (2) the conduct was reasonably frequent; and (3) the conduct had not yet acquired a degree of permanence.”
(Dominguez v. Washington Mut. Bank (2008)
168 Cal.App.4th 714, 720-721.) Plaintiff’s reliance on these authorities,
including Richards, is misplaced.

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.) Each of those cases Plaintiff cited dealt
with harassment in the context of ongoing
abuses that constituted a hostile work environment such as continuous, unfair
discipline or repeated, humiliating acts. Even the course of conduct in Richards arose in the context of failure
to reasonably accommodate an employee’s disability. Plaintiff has not presented
the Court with any authority that the continuing
violation doctrine or equitable tolling is applicable to claims alleging
failure to promote on discrete dates as the underlying adverse employment
action.

Williams
v. City of Belvedere (1999) 72 Cal.App.4th 84 (City of Belvedere) is particularly
instructive. Plaintiff was an experienced law enforcement officer who applied
for and was denied an entry level patrol officer position. (Id. at p. 88.) 16 months after receiving
a rejection letter—four months after the statute of limitations expired—Plaintiff
learned that the members of the hiring panel made racially charged discriminatory
comments about Plaintiff. (Ibid.) One
month later, he filed a DFEH claim. (Ibid.)
The trial court granted a directed verdict based upon a finding that Plaintiff
had failed to file an administrative claim within the then applicable statute
of limitations. (Ibid.) The appellate
court affirmed. Notably, the City of
Belvedere s court agreed that Plaintiff’s claim accrued for purposes of the statute of limitations when he was notified he would not be hired. (Id. at p. 90.) The City of Belvedere panel accepted that Plaintiff was not aware of
the facts demonstrating he was the victim of racial discrimination until after
the statute had expired. (Id. at p.
92.) Nonetheless, the City of Belvedere
Court explicitly rejected the doctrine of equitable tolling in the context of an
unlawful practice of failing to hire due to an unknown racial bias. (Ibid.) City of Belvedere concluded that the Legislature had already considered
that scenario by including a maximum 90-day extension of the statute of
limitations if an aggrieved person later learns of facts demonstrating racial
animus.[4] (Id. at pp. 92-93.) While this may seem a harsh result, City of Belvedere is controlling
authority. Moreover, the facts are strikingly similar to the facts here. There,
however, Plaintiff learned of the facts only months after the applicable statute
of limitation had run. Here, in contrast, it was years later. It seems if even
a minor statute of limitations’ violation cannot be subject to equitable
tolling, the significant delay here is even less worthy.

In any event, it is clear from
reviewing the entire Pollock opinion,
the California Supreme Court rejected Plaintiff’s interpretation. Significantly,
in Pollock, the California Supreme Court agreed that the Court
of Appeal’s construction of section 12960 in City of Belvedere is accurate. “The scenario, as in City
of Belvedere, is one in which a person is aware of the alleged unlawful
practice (i.e., the person knows he or she has been harassed, fired, not
promoted, not hired, or otherwise injured) but does not become aware of
relevant facts until after the ordinary limitations period has expired. As case
law suggests, this scenario is not uncommon [citation], and the provision is
naturally read to address it.” (Pollock at p. 944.)
Notably, the Supreme Court equated not being hired with not being promoted. In the
end, the message is the same. “Sorry, you didn’t get the job.” The
Supreme Court acknowledged it expressed no opinion on the situation which was
not considered in City of Belvedere— “where a
person was entirely unaware of the alleged unlawful practice throughout the
ordinary limitations period and only later became aware of it.” (Ibid.)[5] This hypothetical
situation is not present here. It is undisputed that Plaintiff was informed
that she was not promoted contemporaneous with the alleged unlawful practice in
2013 and 2014.[6]

In sum, the Court finds the Supreme
Court’s analysis in Pollock
compelling and the holding of Williams
controlling. At least as to the numerous allegations of failing to promote during
the period 2013-2014, the claims occurred and thus accrued when Plaintiff was
denied the promotions. While Plaintiff may not have had all the facts supporting
discriminatory intent, she certainly had knowledge of the adverse employment
action. The conduct alleged to have occurred in 2019, however, was filed within
the applicable statute of limitations.

2. First
Cause of Action: FEHA Discrimination – Disparate Treatment (Govt. Code §
12940(a))

A plaintiff alleging discrimination
must allege “that (1) [she] was a member of a protected class, (2) [she] was
qualified for the position he sought or was performing competently in the
position he held, (3) [she]
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.)

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.)

Defendants argue that even if there
was an adverse employment action, there was no discriminatory motive. In 2019,
Plaintiff sought three separate promotions: Captain of Crescenta Valley, Captain
of Altadena, and Captain’s Aide. It is undisputed
that she did not obtain any of those three promotions. The evidence is as
follows:

April
2019 Captain of Crescenta Valley Station and June 2019 Captain of Altadena
Station

The Defendants selected Plaintiff to
be interviewed by the City of Crescenta Valley (Cities) for Captain of Crescenta
Valley Station and City of Altadena (Cities) for Captain of Altadena Station.
(UMF 43-44,74, 87.) Defendant Murakami was part of the panel that approved Plaintiff
to be interviewed by the Cities. (UMF 79.) Plaintiff was interviewed by the Cities’
Panels for Captain in 2019. (UMF 44-48, 76, 78, 89.) The Defendants had no
further role in selecting the captain. Rather, a panel of only City officials
selected the captain. (UMF 44-48, 75.) When Plaintiff applied for Captain of Crescenta
Valley Station, the City’s interview Panel chose Todd Deeds over Plaintiff
because it determined that he was the most qualified. (Murakami Decl. ¶ 10.) It
is the policy to affirm the Panel’s choice. (Murakami Decl. ¶ 10.) As for Captain
of Altadena Station, the City selected Marjorie Jacobs and Sheriff Villaneuva appointed
her pursuant to the City’s request. (Murakami Supplemental Decl. ¶ 6.)

An African American woman took the
Chief’s Aide position that Plaintiff alleges she was denied. (Murakami Decl. ¶
12) The role was filed by La Tonya Clark, a female African American with over
15 years of line experience. (UMF 53, Murakami Decl. ¶ 12.) Murakami
recommended Clark for this role. (Murakami Decl. ¶ 12.) During Murakami’s
tenure, Clark was thereafter promoted to Captain. (UMF 54Murakami Decl. ¶ 12.)

Defendants offer further evidence
that, under Murakami’s tenure, six African American women have been promoted to
the role of captain or higher. (UMF 54, Murakami Decl ¶ 13.)

The Court finds that the Defendants
have met their burden of showing legitimate business reasons for denying
Plaintiff these three promotions. In sum, Defendant Murakami and the County facilitated
her application for Captain of the Crescenta Valley Station and Altadena
Station. The undisputed evidence was Murakami was part of a County panel that approved her application but ultimately
panels consisting of each respective municipality choose the captain. As to the
Captain’s Aide, the undisputed evidence is that a female African American was
selected for the position. In other words, a similarly situated individual with
similar immutable attributes was selected. Thus, Plaintiff has failed in her
burden to show that a reasonable fact finder could rationally conclude that these
proffered nondiscriminatory explanations are pretextual.

Lastly, the Court rejects Plaintiff’s
“Cat’s paw theory” as articulated in Lin
v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 712 (Lin). In Lin, there was evidence in the record that a supervisor’s recent
negative evaluation critical of the aggrieved employee for her “slow delivery”
and “pace of execution,” were substantially motivated by disability-related
animus. These criticisms then were communicated to the ultimate decision maker.
As such, supervisor’s disability animus was imputed to the ultimate decision
maker. Here, by contrast, there is no evidence that Defendant
Murakami or anyone affiliated with the County interfered with the independent
interview or selection process by the municipalities. There is no evidence that
Plaintiff was selected by any of the municipalities. In fact, there is no
evidence that Defendants played any
further role in who the respective municipalities selected. While the Sheriff
ultimately approved the choice of each City, there is no evidence that the Sheriff
rejected any application. Accordingly, any alleged animus that Defendant
Murakami or any County Defendant had cannot be imputed to the municipal panels’decision.

Accordingly, Defendant is entitled
to summary adjudication on the first cause of action.

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 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 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.)

Defendants argue that Plaintiff
cannot show she was harassed based on race or that the harassment was
sufficiently severe or pervasive. Defendants contend that the comments
Plaintiff overheard Murakami make about her husband were directed at his
competence, not his race. (Plaintiff’s Decl. p. 4 ¶10:7-8.) Defendants also
submit evidence that Murakami did not yell at Plaintiff or make any negative
comment about her when he came to her office in February 2019. (Murakami Decl.
¶ 12.) Defendants further argue that Plaintiff cannot have been harassed by the
alleged slur by Murakami in 2013 because Plaintiff was not present when he said
the derogatory term. (Deposition of Plaintiff, Exh. C 118:1-6.)

Plaintiff argues that she was
subjected to harassment based on her race. Plaintiff argues that Defendant
Murakami’s racial animus extended from 2014 until 2020, as Defendant required
all transfers be approved personally. (SUF 37, 43-47.) Plaintiff applied for
various positions, such as Chief’s Aide and Captain, but was rejected, and
Plaintiff argues that Defendant fails to address these rejections. (Motion 18:
17-23.) Additionally, Plaintiff alleges that in February 2019, Murakami began
harassing Plaintiff in front of her by attacking her husband. (SAC ¶ 27.)

Plaintiff’s harassment claims are
not based upon a hostile work environment or quid pro quo. (UMF 81.) Primarily,
Plaintiff’s harassment claims are tethered to adverse employment actions—being
denied promotion from 2013-2019 due to racial animus. To be sure, failure to
promote can form the basis of a harassment claim. (Ibid., Roby v. McKesson (2009) 47, Cal.4th 686, 708.) Failure to
promote can communicate a hostile message in the social environment of the workplace.
Namely, you did not get the promotion because of your race. To the extent the
harassment claims are based upon the failure to promote, this Court has already
disposed of those claims, finding as matter of law, that Plaintiff was not
denied promotions in 2019 because of racial animus and that the 2013-2014
claims were outside the applicable statute of limitations. As to any remaining non-promotional
based harassment allegations, examining the frequency of the conduct, the severity,
and the scope, the Court concludes the few brief interactions with Murakami, even
considering his racial slur, fail to establish the existence of triable issues
of material fact. Stated otherwise, Plaintiff has failed in her burden to demonstrate
the existence of triable issues of material fact that this conduct was so threatening
or humiliating or severe or pervasive to alter the conditions of employment and
create an abusive working environment.

Accordingly, Defendant is entitled
to summary adjudication on the second cause of action.

4. Third
Cause of Action: Failure to Prevent Discrimination, Harassment, and/or
Retaliation (Govt. Code § 12940(k))

“When a plaintiff seeks to recover damages based on a claim of
failure to prevent...harassment... she must show
three essential elements: 1) plaintiff
was subjected to ... harassment ...;
2) defendant failed to
take all
reasonable steps to prevent ... harassment ...; and 3)
this failure caused plaintiff
to suffer injury, damage, loss or harm.” (Caldera v. Department of
Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 43–44.)

Defendants assert that, because no
actionable discrimination or harassment occurred, Plaintiff’s third cause of
action must fail. Defendant is correct. Because there is no underlying
actionable discrimination or harassment, Defendant is entitled to summary
adjudication on the third cause of action.

[1]
Weiss v. Chevron, USA, Inc. (1988) 204
Cal.App.3d 1094, authorizes trial courts to consider additional evidence to
rule upon a motion of summary judgment, if notice is provided and an
opportunity to respond is afforded.

[2] Plaintiff’s counsel conceded that the gravamen
of the harm for the discrimination and harassment cause of action is the same, Plaintiff
was denied promotions. (January 17, 2023 hearing, Exhibit 16, p. 8, ln. 19-p.9,
ln. 17.)

[3]
The Court accepts, as it must, the Plaintiff did not have the information set
forth in the internal investigations as it related to racial animus and the use
of derogatory language by Defendant Murakami until 2019. (Compendium of
Evidence, Ex. 11, Dec. Carlos Parga, Ex. A & B; UMF 40, 44.)

[4]The current version of Government Code section 12960,
subdivision (e), is slightly different.

[5]Plaintiff’s
reliance on McDonald
v. Antelope Valley Cmty. Coll. Dist. (2008) 45 Cal. 4th 88 (McDonald) is
similarly misplaced. In McDonald, our
Supreme Court found that equitable tolling is available during the period of
time an injured person pursues administrative remedies. “[W]e hold the FEHA does not preclude
equitable tolling during the voluntary pursuit of internal administrative
remedies.” (Id. at p. 1039.) There is no evidence in the record that Plaintiff was
reasonably and in good faith pursuing alternative remedies from 2013to 2019. One
other significant fact. McDonald
referenced Balloon v. Superior Court
(1995) 39 Cal.App.4th 1116, 1120-1122, where the Court of Appeal “rejected application of equitable tolling
as a basis for extending the time in which a minor plaintiff could file a
complaint with the DFEH.” (McDonald
at p. 1038.) Thereafter, the Legislature amended section 12960 to explicitly
include a tolling provisions for minors until they reached the age of majority explicitly
overruling Balloon v. Superior
Court. (Id. at p 1039.) The Court of Appeal issued City of Belvedere in 1999. The Court finds it significant
that in 24 years, the Legislature has not amended section 12960 to overrule City of Belvedere s. Nor has the Legislature expressly added
factual situations that mirrored City
of Belvedere i.e., after
the fact discovery of evidence of racial animus, as a basis to equitably toll
the statute of limitations.

[6]Here, the facts are
even more compelling. In 2014, Plaintiff had reason to believe that she was
denied promotions due to racial animus. Plaintiff states in her declaration in Opposition to
the County’s MSJ that she “suspected that reasons other than merit prohibited
[her] from receiving the position at that time because it was the only
explanation.” (Stewart Decl., 2:5-7, emphasis added.) While she may not have
been armed with all of the facts, even she believed she had been subject to
discrimination as far as 2014. Thus, even applying a more liberal standard, it
is clear that Plaintiff’s 2013 and 2014 allegations are time barred.