Judge Upinder S. Kalra, Case Number: 21STCV30997, Date: 2023-10-06 Tentative Ruling

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REQUESTED RELIEF: Summary Judgment as to Plaintiff’s Third Amended Complaint: One Cause of Action for Wrongful Termination in Retaliation.

Plaintiff Chris Cowart (“Plaintiff”) commenced this action on August 23, 2021. He filed a First Amended Complaint on January 20, 2022, a Second Amended Complaint on June 2, 2022, and a Third Amended Complaint (“TAC”) on October 11, 2023. The TAC has one cause of action for Wrongful Termination in Retaliation. Defendant LAC Metro (“Defendant”) filed an Answer to the TAC on December 12, 2023.

Plaintiff alleges he was employed by Defendant from February 25, 2008 to July 7, 2020. Plaintiff suffered from occupational rhinitis and asthma, which caused Plaintiff’s doctor to place a work restriction on Plaintiff. Plaintiff cannot work in buses that have been recently treated with pesticide or insecticide. Plaintiff alleges that he was “removed from service” because Defendant could not accommodate his work restriction. (TAC, 2:13.) To return to work, Plaintiff asked his doctor to inform Defendant that Plaintiff does not have a work restriction anymore. After six months of unpaid leave, Plaintiff returned to work.

On October 20, 2014, Plaintiff filed an action in federal district court under the Americans with Disabilities Act. The jury in that case returned a special verdict for Plaintiff for $15,000 plus back pay for the six months of unpaid leave. Plaintiff alleges that Defendant nonetheless failed to pay him outstanding vacation pay. To recover the vacation pay, Plaintiff caused his union to file a grievance on his behalf. The union settled the grievance after Defendant paid Plaintiff twenty hours of vacation pay.

Plaintiff alleges that, even after the 2014 trial had ended in a verdict that Defendant failed to prevent harassment and provide reasonable accommodation, Defendant continued to assign him to buses that were still wet with pesticide or insecticide.

In August 2018, Plaintiff had a “second trial, in the U.S. District court, mistrial.” (TAC, 6:2-3.) The judge facilitated a settlement hearing. Defendant paid Plaintiff $26,000.

Plaintiff transferred to a different division on an unspecified date. Plaintiff believed that one of his supervisors, Thompson, “was trying to provoke a [sic] argument with” him. (TAC, 6:8-9.) Plaintiff reported this to his division director, Jones. The next day, Plaintiff was ordered to go to work, on his day off, for an 8-hour assignment. However, after less than two hours, Plaintiff was told that he must go on a three-hour unpaid split. Plaintiff considered this harassment and filed a complaint with the EEOC.

Defendant filed this Motion for Summary Judgment on January 24, 2024, for hearing on April 10, 2024. Defendant timely filed and served the motion on Plaintiff pursuant to CCP § 437c(a)(2). Plaintiff filed an opposition on March 19, 2024 and served it on Defendant via U.S. Mail on the same day. Defendant filed a reply to Plaintiff’s supplemental opposition on April 2, 2024.

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c,¿subd. (c).)¿Subdivision (p)(2) of the same section provides that where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (See¿Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.)¿

A party is also permitted to move for summary adjudication of a particular issue, which can be granted “only if it completely disposes of a cause of action, an affirmative¿defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c,¿subd. (f)(1).)¿

The moving party’s burden on summary judgment “is more properly one of persuasion rather than¿proof, since he must¿persuade¿the court that there is no material fact for a reasonable trier of fact to find, and not to¿prove¿any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850 fn.11, original italics.)¿

termination. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900 (“we agree with the Palmer court that section 815 bars Tameny actions against public entities”).) Therefore, Plaintiff’s claim would have to be based on a violation of the Fair Employment and Housing Act (FEHA), which he does not expressly rely on in the TAC but referred to in his responses to form interrogatories. (See Defendant’s Evidence in Support of MSJ, Exhs. 21-22.)

The scope of a FEHA lawsuit is limited to causes of action “like and reasonably related to” the allegations of the administrative complaint filed with the Department of Fair Employment and Housing (DFEH). (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 154-155.) Here, Plaintiff’s DFEH complaint alleges that he was terminated in retaliation for filing a DFEH discrimination complaint (201910-07985421) on October 21, 2019. (See Defendant’s Evidence in Support of MSJ, Exh. 2.) Hence, the dispositive question is whether there is evidence that “would allow a reasonable trier of fact to find” that retaliation for filing the October 2019 DFEH complaint was a motivating factor in the termination of Plaintiff’s employment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

To state a claim for retaliation under FEHA a plaintiff must show 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. (2005) 36 Cal.4th 1028, 1042.) On summary judgment, a claim for retaliation under FEHA evaluated under the framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. First, the plaintiff has the initial burden of establishing a prima facie case to raise an inference of retaliation. Then, the burden the shifts to the employer seeking summary judgment or summary adjudication to demonstrate a legitimate and non-retaliatory reason for the employment action. Finally, the burden shifts back to the plaintiff to present evidence that raises an inference that retaliation occurred, and the proffered non-retaliatory reason is mere pretext. (Batarse v. Service Employees Intern. Union Local 1000 (2012) 209 Cal.App.4th 820, 831-32.)

“A defendant moving for summary judgment however, may skip to the second step of the analysis and demonstrate that it had a legitimate business reason . . . for taking its employment action.” (Id., at 831.) “The plaintiff then has the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional . . . retaliation occurred.” (Id. at 831-32 [citation omitted].)

As a preliminary matter, Defendant argues that Plaintiff is barred from making any claims based on conduct that occurred before September 24, 2018. Plaintiff filed two federal lawsuits, in 2016 and in 2018. The first one resulted in a final judgment affirmed by the Ninth Circuit, which has preclusive effect. The second lawsuit resulted in a mistrial and was settled on September 24, 2018, pursuant to an agreement by which Plaintiff released “any and all past, present, or future claims . . . connected to” the allegations in that lawsuit. (See Defendant’s Evidence in Support of MSJ, Exh. 15.) Plaintiff does not dispute this.

Here, Defendant states it had legitimate and non-discriminatory reason for terminating Plaintiff because Plaintiff was involved in an accident with a pedestrian on May 27, 2020, while driving an LAC Metro bus. (UMF 4; undisputed.) The incident was captured on video by one of the bus’s onboard cameras. (UMF 5; undisputed.) The video shows Plaintiff stopped the bus when he first saw a pedestrian walk up to the front of the bus, but then released the brakes while the pedestrian was still in front of the bus. (UMF 6; undisputed.)

On June 18, 2020, a First-Level Accident Review Board hearing was convened to review the evidence related to the incident, at which Plaintiff was allowed to present his case. (UMF 7; undisputed.) After reviewing the video footage and Plaintiff’s presentation, all three members of the Accident Review Board determined that the accident was avoidable. (UMF 8; undisputed.) Based on the determination of the Accident Review Board, LAC Metro issued Plaintiff a Notice of Disciplinary Action, which stated that he was being charged with an avoidable accident which was considered to be egregious. (UMF 9; undisputed.)

On June 25, 2020, Plaintiff’s union representative appeared at a formal hearing on Plaintiff’s behalf, to consider charges in connection with the accident. (UMF 10-11; undisputed.) On July 7, 2020, Defendant discharged Plaintiff from employment based on a determination by Barbara Harris following the formal hearing that his actions in connection with the incident were “unbecoming, unsafe and a substantial breach of Metro’s and the public trust.” (UMF 12; undisputed.) Harris was not aware that Plaintiff had filed complaints against Defendant. (UMF 13; undisputed.)

On November 13, 2020, Plaintiff, represented by his union, testified at a SMART Second Level Hearing. Based on the testimony and evidence presented, the hearing officer determined that the incident was avoidable, and Plaintiff’s discharge was appropriate. (UMF 14-15; undisputed.) The hearing officer was not aware that Plaintiff had filed complaints against Defendant. (UMF 16; undisputed.)

Defendant met its burden of providing legitimate, non-retaliatory reasons for the adverse employment action against Plaintiff. The burden now shifts to Plaintiff to provide evidence supporting an inference of retaliation.

An employee can 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 Cal. (2000) 88 Cal.App.4th 52, 68.) 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. at 69.) Mere temporal proximity does not alone create triable issues as to pretext when an employer offers evidence of a non-retaliatory reason for termination. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 357.)

In his opposition, Plaintiff only disputes one of Defendant’s UMFs, UMF 20. (Opp’n, 6:12-14.)[2] UMF 20 provides that Defendant did not receive a copy of Plaintiff’s DFEH Complaint filed September 29, 2020. (UMF 20; disputed.) However, Plaintiff does not explain why or how this statement is incorrect or even relevant to his argument, nor does Plaintiff provide any evidence to show that this statement is false.

Instead, Plaintiff’s opposition argues that “the court mistakenly applied the wrong law by having Plaintiff file a Third Amended Complaint to add the first cause of action” because “Plaintiff did not abandon the first cause of action” and “Defendant’s demurrer was only to the second cause of action.” (Opp’n, 2:12-17.)

In any case, Plaintiff failed to provide any evidence that his discharge was more likely to be motivated by discriminatory than legitimate reasons. Thus, there is no dispute of material fact as to whether Plaintiff was subject to retaliation.

Moving party is to give notice and prepare and file a proposed judgment within 10 days.

[1]IN a prior complaint, Plaintiff alleged that that he was terminated after an incident with a pedestrian on May 27, 2020, in violation of the Collective Bargaining Agreement (CBA) between Defendant and SMART-TD (his union).

[2]This is contrary to Defendant’s claim that Plaintiff “does not dispute any of the material facts set out in” its separate statement. (Reply, 1:23-2:1.) Defendant is mistaken in this regard.