Judge William A. Crowfoot, Case Number: 22AHCV00957, Date: 2025-02-21 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00957, Date: 2025-02-21 Tentative Ruling

On October 31, 2022, plaintiff Herbert Schwarz (“Plaintiff”) filed this action against defendants HumanGood and Steven Gowan (“Gowan”) (collectively, “Defendants”). On October 6, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) asserting causes of action based on the Fair Employment and Housing Act (“FEHA”), Business and Professions Code section 17200 et seq. (“UCL”), and wrongful constructive termination in violation of public policy.

On November 26, 2024, Defendants filed this motion for summary judgment or, in the alternative, summary adjudication on each cause of action in Plaintiff’s SAC. The causes of action asserted in the SAC are: (1) Discrimination Based on Age, (2) Harassment Based on Age, (3) Retaliation, (4) Failure to Prevent Discrimination, Harassment, and Retaliation, (5) Wrongful Constructive Termination in Violation of Public Policy, (6) Violation of the UCL. All six causes of action are asserted against HumanGood and only the harassment and UCL claim are asserted against Gowan.

On February 6, 2025, Plaintiff filed evidentiary objections and opposition papers.

On February 14, 2025, Defendants filed a reply brief, evidentiary objections, and a response to Plaintiff’s evidentiary objections.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).) To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall 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).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Id., subd. (f)(2).)

Plaintiff does not comply with CRC 3.1354 because he fails to set forth the underlying evidence purportedly objected to. Rather, Plaintiff cites to portions of Defendants’ separate statement and effectively transforms his “objections” into improper attempts to create disputes of material fact by challenging Defendants’ characterization of the evidence instead of issues of admissibility. Accordingly, the objections are OVERRULED.

Plaintiff alleges that he was employed by HumanGood from October 2017 to November 2, 2020. (SAC, ¶ 13.) Plaintiff claims he was “wrongfully constructively terminated when he was forced to resign from his position with HumanGood as a result of discrimination, harassment and retaliation perpetrated by HumanGood and [his] direct supervisor, Steen Gowan.” (Ibid.) This alleged discrimination began in approximately March of 2018 when Gowan overloaded Plaintiff with work in order to create a hostile work environment, ignored Plaintiff’s requests for help, and then increased Plaintiff’s workload as retaliation. (SAC, ¶¶ 23-25.) Plaintiff alleges that Gowan kept a “personal” personnel file on Plaintiff and that he was subjected to an unnecessary “coaching session” in retaliation for his complaints. (SAC, ¶¶ 28, 32.)

In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

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.) 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.)

Adverse Employment Action. Defendants argue, first, that Plaintiff cannot establish that he suffered an adverse employment action as a matter of law. Whether an employment action is “adverse” requires a case-by-case determination based upon objective evidence. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-512; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1460.) To be actionable, the change in terms, conditions or privileges of employment must be both substantial and detrimental. Minor or relatively trivial actions are insufficient, even if they are likely to anger or upset the employee. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 373.)

Plaintiff alleges that the adverse employment action he suffered was his constructive discharge. Plaintiff alleges that he was overloaded with “far more work than any reasonable person of any age could handle” and with “far more work than his younger colleagues.” (SAC, ¶ 23.) This was allegedly purposefully and intentionally done to either force Plaintiff to resign or to set him up to be terminated. (Id.) Plaintiff alleges Gowan blatantly ignored Plaintiff’s repeated requests for help or complaints that the work could be redistributed more evenly. (Id., ¶ 24.) Plaintiff further alleges that he was retaliated against by having his workload increased, being “written up”, and being subjected to a “Documented Coaching Session” for no reason. (Id., ¶¶ 25-26.) These actions allegedly put Plaintiff under so much stress and anxiety that it caused Plaintiff to believe he might be having a heart attack. (Id., ¶¶ 36.) Plaintiff took a “one-week ‘vacation’ from work” due to his stress and claims he was afraid to return to work due to the hostile work environment that was created. (Id., ¶ 37.) Plaintiff alleges he “had no choice but to resign” and “felt forced to resign in fear of his physical and mental health, even though he did not want to do so.” (Id., ¶ 38.)

“[T]o establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard . . . working conditions that were so intolerable or aggravated that a reasonable person in the employee’s position would be compelled to resign. . . . . [A]n employee cannot simply ‘quit and sue,’ claiming he or she was constructively discharged. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251, 1246.) “[T]he standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.” (Id. at 1248.) Courts “may conclude as a matter of law that a reasonable employee would not have felt compelled to resign” and “[i]n such situations, summary judgment is proper.” (Kovatch v. Cal. Cas. Mgmt. Co. (1998) 65 Cal.App.4th 1256, 1267, disapproved on another ground in Aguilar, 25 Cal.4th at 853, fn. 19.)

Defendants argue that Plaintiff’s “constructive discharge” claim fails because “mere oral or written criticisms of an employee . . . do not meet the definition of an adverse employment action.” (Akers v. Cnty of San Diego (2002) 95 Cal.App.4th 1441, 1457.) Defendants also point out that Plaintiff testified in deposition that he was never formally disciplined, his position or job title never changed, his job duties and assignments remained the same, he was never demoted, and his pay only went up. (UMF Nos. 11-13, 25.) Defendants additionally submit Gowan’s declaration, in which he states that the “personal” personnel files he kept on each of the IT analysts he managed contained performance-related documents, not unique to Plaintiff, and were not intended to force any employees to quit. (UMF Nos. 22-24.)

As for Plaintiff’s allegations that the ROC was Gowan’s veiled effort to intimidate him, Defendants explain that Gowan discussed Plaintiff’s performance with him through annual performance evaluations in 2018 and 2019. (UMF No. 27.) Then, between January and May 2019, the Executive Directors of HumanGood’s Royal Oaks community (Greg Bearce) and Westminster Gardens (Mike Walper) submitted a number of complaints to Gowan regarding Plaintiff. (UMF No. 28.) Bearce instructed Gowan to address these complaints with Plaintiff. (UMF No. 29.) Also, in May 2019, Gowan received complaints from HumanGood Corporate Office Manager Sheryl Prince-Cassels. (UMF No. 30.) Gowan put these complaints into a “Record of Conference” (“ROC”) form. (UMF No. 32.) These ROC forms are used to document coaching sessions and do not have a negative impact on an employee’s ability to be promoted, or the employee’s pay, benefits, or job duties. (UMF No. 33.) Gowan discussed the ROC with Plaintiff on May 14, 2019, over the telephone, and the ROC was never submitted to HumanGood’s Human Resources personnel file because he found Plaintiff’s explanations reasonable; instead, he added the ROC to his personal file. (UMF Nos. 38, 41, 43.) The ROC was then removed after a year as Plaintiff had no further issues as far as Gowan was concerned. (UMF No. 39.) Because the ROC was never sent to Human Resources and was removed, it did not have any negative impact on Plaintiff’s prospects for promotion. (UMF No. 40.) It was also not referenced in any subsequent performance evaluation in 2019. (UMF No. 42.) Gowan further declares he did not give Plaintiff the ROC to intentionally cause him distress or to force him to quit. (UMF Nos. 44. 46.) Rather, Gowan attempted to provide Plaintiff with assistance but to the extent that assistance was unavailable, it was because the request for denied by Gowan’s superiors, assistance was unavailable, or because Plaintiff was requesting assistance with tasks that were within his day-to-day job duties that he was expected to complete. (UMF No. 47.)

Defendants also explain that there was no constructive discharge because in August 2020, after Plaintiff sent an email regarding his workload and assignments to Gowan and Gowan’s supervisor, Brett Ortega (“Ortega”), Ortega responded in an email stating, “I fully support you doing only what you can. Do not break your back, mind, or spirit trying to do every ticket and task. It’s ok to let things fall with [Gowan]’s support and guidance. [Gowan] and I will carry the message upward and outward that you are going to do what you can and only what you can. We will reset expectations on IT, team, and resident support.” (UMF Nos. 31, 48; Defs.’ Notice of Lodging, Ex. V, p. 2.)

Subsequently, on September 20, 2020, Plaintiff requested and received a one-week leave of absence due to stress in dealing with his workload, beginning on September 21, 2020. (UMF Nos. 52-53.) On September 25, 2020, Gowan met with Ortega and HumanGood’s Chief Information Officer, Flemming Meng, to discuss how they could alleviate Plaintiff’s workload. (UMF No. 57.) After this meeting, HumanGood hired a temporary employee on a six-month contract. (UMF No. 58.) Upon Plaintiff’s return, the individual would be assigned to one of Plaintiff’s communities to alleviate his workload. (UMF No. 58.) Plaintiff extended his leave twice, from October 2 through 23, and from October 23 through November 2, 2020. (UMF Nos. 60.) He resigned via email on November 2, 2020. (UMF No. 66.)

Based on Defendants’ proffered facts, Defendants have met their moving burden to show that Plaintiff cannot establish that he suffered an adverse employment action as required for his discrimination and retaliation claims.

In opposition, Plaintiff argues that he was, in fact, constructively discharged. He emphasizes that his job duties were not consistent with those of other IT employees, that he was originally hired to: (1) support the staff at his assigned communities, including Westminster Gardens, Royal Oaks, and five affordable living communities, (2) handle “standard break/fix, problem diagnosis and resolution, PC and peripheral hardware and software upgrades and end user technology training/coaching”, and (3) provide “support for community communication, life-safety and security systems.” (Response to UMF Nos. 90-93.) Plaintiff claims that after his first year, his duties extended to “resident support”, and that other IT technicians only had one community they served, whereas he had seven. (UMF No. 96.) However, there is no evidence that these working conditions were intentionally created, let alone assigned to him by Gowan, based on his age.

Plaintiff also claims that when he complained and requested help, Gowan withheld help in order to force him to resign. Again, however, Plaintiff offers no evidence to support this and in fact testified that he is unaware of Gowan’s efforts to obtain assistance for him. Similarly, Plaintiff argues that the multiple complaints made in 2019 by Bears, Walper, and Prince-Cassels did not exist, but offers only his speculative declaration stating that if they existed, they would have been included in his personnel file. This discrepancy is easily explained by Gowan’s declaration that the complaints were compiled into the ROC form and that the ROC form was not placed in Plaintiff’s personnel file. (Gowan Decl., ¶ 12; UMF No. 37.)

Protected Activity. Second, Defendants argue that Plaintiff cannot show that he engaged in any protected activity to prove a claim for retaliation. “Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1046.) Therefore, to be protected activity, a plaintiff must have alerted the employer to his belief that unlawful activity, not merely unfair personnel treatment, occurred. (Lewis v. City of Fresno (E.D. Cal. 2011) 834 F.Supp.2d 990, 1002.)

Here, Plaintiff alleges that his complaint to Defendants of the hostile working conditions was “protected activity.” (SAC, ¶¶ 75, 77, 80.) Defendants argue that no protected activity occurred because Plaintiff testified in his deposition that he never told anyone at HumanGood that Gowan was violating any kind of law or that he was being discriminated against based on his age. (UMF Nos. 75-78.) Plaintiff completely fails to address Defendants’ argument on this issue and only claims, by way of declaration, that he was “not aware” of any laws and was scared to worsen the purportedly hostile work environment. However, this is not sufficient for a retaliation claim because he also admitted in deposition that he never believed he was complaining about unlawful behavior. (UMF Nos. 75-75.) Therefore, he fails to show that a triable issue with regards to his retaliation claim exists.

No Discriminatory Motive. Third, Defendants argue that they had legitimate, non-discriminatory, and non-retaliatory reasons for the conduct that Plaintiff complains of. Defendants explain that Plaintiff’s workload was not determined by Gowan but was driven by “the needs of the communities, residents, and senior management.” Furthermore, Defendants contend that Gowan did not have the authority to create and hire for a new position; that authority rested with Ortega and Meng. (UMF No. 56.) Gowan was also monitoring Plaintiff’s performance as part of his job as Regional Helpdesk Manager and kept performance-related documents for all the individuals he managed, not only Plaintiff. (UMF No. 22.)

In opposition, Plaintiff fails to provide any evidence suggesting that Defendants acted with a discriminatory motive other than his conclusory declaration. In fact, there are strong inferences against age discrimination due to the fact that Plaintiff was hired when he was 61 and was only 65 when he resigned. (See Proud v. Stone (4th Cir. 1991) 945 F.2d 796, 797.) Also, Plaintiff does not demonstrate that younger employees were treated more favorably, nor does he dispute that Gowan kept “personal” personnel files on all his supervisees, not just Plaintiff.

In sum, Plaintiff fails to show that there is a triable issue of fact regarding the existence of an adverse employment action, a protected activity, or a discriminatory motive.

To establish a prima facie case of unlawful harassment under FEHA, Plaintiff must show that: (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his protected status; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) Defendants are liable for the harassment. (Ortiz v. Dameron Hosp. Assn (2019) 37 Cal.App.5th 568, 581.) Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Reno v. Baird (1998) 18 Cal.4th 640, 646.) Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings, and laying off. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.)

Defendants argue that the alleged conduct, including work assignments and evaluations, is not “harassment” as a matter of law because they were “commonly necessary personnel management actions.” (Motion, p. 25.) Defendants also argue that Plaintiff cannot show that any of the alleged actions were done as a result of Plaintiff’s age. There is no evidence that Gowan was communicating a “hostile message” to Plaintiff based on his age because Gowan never raised his voice to Plaintiff, used profanity, or told Plaintiff he would be fired. (UMF No. 70.) Neither Gowan, nor anyone at HumanGood, ever made negative comments about Plaintiff’s age to him, nor was there any ever discussions about his age. (UMF No. 79.)

In opposition, Plaintiff only provides speculation and his subjective belief to support his claim that he was targeted based on his age. This subjective belief, without more, is insufficient to raise a triable issue regarding the existence of harassment.

Because Plaintiff cannot establish that he was constructively discharged, he cannot prove that there was a termination as required for his claim for wrongful termination. (Green v. Ralee Eng’g Co. (1998) 19 Cal.4th 66, 75-78.) Additionally, because Plaintiff cannot establish his claims for discrimination, retaliation, or harassment, Plaintiff’s derivative claims for the failure to prevent discrimination, retaliation, and harassment fails, as does his claim for unfair competition. (Schmidt v. Sup. Ct. (2020) 44 Cal.App.5th 570, 587 [“An employer cannot be liable for failing to take corrective action if the underlying claim fails.”]; AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc. (2018) 28 Cal.App.5th 923-950 [UCL liability is derivative from underlying claim].)

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.