Judge Yolanda Orozco, Case 21STCV22619 2023-02-23 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV22619, Date: 2023-02-23 Tentative Ruling

Case Number: 21STCV22619 Hearing Date: February 23, 2023 Dept: 31

DEMURRER WITHOUT MOTION TO STRIKE

TENTATIVE RULING

defendant’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the second cause of action for harassment and the fourth cause of action for failure to Prevent Harassment in Violation of the FEHA and OVERRULED as to the fifth cause of action for Whistleblower Retaliation.

Background

On June 17, 2021, Plaintiff Shane Moshiri filed this instant action against Los Angeles Community College District; Los Angeles Valley College; Barry Gribbons; and Does 1 to 100.

The operative Third Amended Complaint (“TAC”) alleges causes of action for:

1) Discrimination in Violation of the FEHA

2) Hostile Work Environment Harassment in Violation of the FEHA

3) Retaliation in Violation of the FEHA

4) Failure to Prevent Discrimination, Harassment, or Retaliation in Violation of the FEHA

5) Whistleblower Retaliation (Labor Code § 1102.5)

On September 16, 2022, Defendant Los Angeles Community College District (“District” or “Defendant”) filed a Demurrer without a Motion to Strike Plaintiff’s TAC.

Plaintiff filed an opposition on February 09, 2023.

Defendant filed a reply on February 16, 2023.

MEET AND CONFER

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., §§ 430.41, 435.5.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)

Defense counsel asserts they tried to meet and confer with Plaintiff’s counsel but received no reply. (Usoro Decl. ¶¶ 3, 4, Ex. 1.) Thus, the meet and confer requirement is met.

Legal Standard¿¿

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.¿ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿ “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿ (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿ For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿ A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿ (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿

Request for Judicial Notice

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

Plaintiff requests judicial notice of the following:

1) Moshiri v. Los Angeles Community College District, et al. (LASC Case No. 21STCV22619), Moshiri’s Third Amended Complaint for Damages, which was filed on August 15, 2022.

2) Moshiri v. Los Angeles Community College District, et al. (LASC Case No. 21STCV22619), Notice of Ruling Regarding Defendant Los Angeles Community College District’s Demurrer and Motion to Strike Moshiri’s Second Amended Complaint, to which related to an order entered by the Court on July 27, 2022.

Plaintiff’s request for judicial notice is GRANTED.

Discussion

I. Allegations in the Third Amended Complaint

In September of 1988, Plaintiff was hired by Los Angeles Community College District (“LACCD”) as a part-time lecturer. (TAC ¶ 11.) A position he held for nearly thirty-two years without any disciplinary issues or performance review issues. (TAC ¶¶ 11, 12.) Plaintiff is over the age of forty-five. (TAC ¶ 14.)

On or around April 27, 2018, Chairman Tyler Prante attended Plaintiff’s class for the first time since Prante’s election over twenty years ago. (TAC ¶ 17.) Afterwards, Plaintiff was given a negative performance review based on Prante’s assertion that Plaintiff did not stimulate students’ interest, did not meet classes at specified hours, and did not evaluate students upon the specified criteria. (TAC ¶ 17.) Plaintiff alleges the negative performance review was due to his age since he was deemed to not be lively or energetic in his instruction. (FAC ¶ 18.) Consequently, Plaintiff refused to acknowledge the negative evaluation with his signature because he viewed it as a discriminatory and harassing act. (FAC ¶ 18.) Plaintiff viewed his refusal to sign the negative performance review as a protected activity because he was opposing what he reasonably believed to be an unlawful employment activity. (FAC ¶ 18.)

Plaintiff submitted a rebuttal outlining why the allegations were false and was criticized for being “unprofessional.” (FAC ¶ 18.) Plaintiff asserts he was further targeted by being required to meet with Mathew Jordan, Dean of Los Angeles Valley College where he was forced to sign the negative performance evaluation despite Plaintiff asserting that his signature did not imply consent to the performance evaluation. (TAC ¶ 19.)

On July 29, 2019, Plaintiff attended a meeting with the Comprehensive Evaluation Committee wherein Plaintiff received a two-page comprehensive evaluation allegedly based on performance issues, unenforced policies, subjective criteria, and/or unwritten policies such as Plaintiff’s alleged accusation that the department chair was prejudicial for following contractual processes and Plaintiff’s reiteration of why he felt the committee findings were wrong. (TAC ¶ 20.) Plaintiff alleges he was targeted for engaging in a protected activity of resisting and opposing Defendant’s unlawful employment action. (TAC ¶ 20.)

In November 2019, Plaintiff submitted an additional complaint to the Comprehensive Evaluation Committee expressing why he believed Defendant’s allegations were wrong and were further acts of discrimination and harassment on the basis of age and/or retaliation. (TAC ¶ 21) The Committee called another meeting where Plaintiff explained why Defendant’s actions were discriminatory and retaliatory. (TAC ¶ 21.) The Committee was composed of high-ranking members and officers of entity Defendant, who individually and as a group had the authority to investigate and/or correct any violations of law, rule, and/or regulation. (TAC ¶ 21.)

In early December 2019, Plaintiff met with Gribbons, President of entity Defendant where Plaintiff reiterated that the negative performance evaluation was false and inconsistent with customary policies and procedures. (TAC ¶ 22.) Gribbons criticized Plaintiff for being unreceptive and Gribbons refused to engage in meaningful discussion with Plaintiff despite having the authority to investigate and/or correct any violation of law, rule, and/or regulation. (TAC ¶ 22.)

Consequently, Defendant targeted Plaintiff on the basis of his age by escalating the unfounded performance criticism regarding Plaintiff’s performance and his opposition to the performance evaluation. (TAC ¶ 23.)

Plaintiff asserts that such actions created an abusive, intimidating, hostile, and/or offensive working environment because both entity Defendant and Gribbons engaged in “management” activity that is actionable as harassment because it was pretextual performance criticisms that sent a harassing message to Plaintiff that he was not welcome in the workplace due to his age. (TAC ¶ 23.)

On or around April 17, 2020, Plaintiff was terminated and was informed in a letter by Gribbons that he was being removed from the seniority list and the removal of adjunct members was final and not subject to a review procedure. (TAC ¶ 25.) Removal from the seniority list meant Plaintiff would no longer be assigned classes. (TAC ¶ 26.) The letter stated that the reason for the decision included the failure to submit grades, develop syllabi consistent with board rules, and not participating in student learning outcomes. (TAC ¶ 25.) Plaintiff asserts the reasons provided were patently false and that his removal from the seniority list was grossly disproportionate to the alleged performance issues based on his three-decade experience as an employee. (TAC ¶ 25.)

Plaintiff asserts that evidence of Defendant’s unlawful motives is present in the fact that Defendants attempted to backfill Plaintiff’s personnel file with prior alleged performance issues up to three years old and none of which Plaintiff has previously been informed of. (TAC ¶ 29.) Moreover, Defendants deviated from their own policies and procedures, including the absences of a limited observer and the severity of the discipline being inconsistent with customary policy and procedures. (TAC ¶ 33.)

II. Demurrer

Defendant Los Angeles Community College District (“District” or “Defendant”) demurs to Plaintiff’s second, fourth, and fifth causes of action for Age Discrimination, Failure to Prevent Harassment, Discrimination, and/or Retaliation, and Whistleblower Retaliation.

a. 2nd COA: Hostile Work Environment Harassment on the Basis of Age

“To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.) Harassment includes epithets, derogatory comments or slurs.¿ (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal. App. 4th 30, 35.) California Courts have been guided in their interpretations of FEHA by the federal court decisions interpreting Title VII of the federal Civil Rights Act.¿ (Id.) To prove a claim under Title VII, the harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.¿ (Id.)¿

Plaintiff fails to plead facts to show that he experienced harassment that was severe or pervasive such that it altered Plaintiff’s working conditions and created an abusive working environment. Plaintiff asserts that Defendant and Gribbons’ pretextual management activity in the form of performance criticism is actionable as harassment because it sent a discriminatory message. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 709 [finding that actions done in furtherance of a supervisor’s managerial role can communicate a hostile message when the actions establish a widespread pattern of bias].) As to Gribbons, Plaintiff asserts that Gribbons’ dismissal of his complaint and criticism of Plaintiff as being unreceptive combined with Defendant’s alleged unfounded performance criticism conveyed a harassing message that he was not welcome in the workplace due to his age. (TAC ¶¶ 22, 23.)

The fact that Gribbons and Defendant criticized Plaintiff for refusing to acknowledge his performance evaluation is not sufficient to show a pattern of “hostile social interactions in the workplace” such as those found in Roby where the hostile message expressed by the supervisor related to the employee’s medical condition and included making demeaning comments about the employee’s body odor and arm sores, refusing to respond to the employee’s greetings, making demeaning facial expressions and gestures towards Plaintiff, shunning the employee during staff meetings, belittling the employee’s job, and reprimanding the employee in front of coworkers. (Roby, supra, 47 Cal.4th 709.) These actions were found to be unrelated to the supervisor’s managerial role. (Id.)

Plaintiff fails to allege that Defendant’s performance criticism evidences a widespread pattern of bias or that the actions are evidence of harassment that exist outside of personal management decisions. “[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, 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. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) Simply stated, a negative performance review is not, without more, harassment. And it doesn’t matter that Plaintiff believes the performance criticism is false or retaliatory; it remains a performance review. According, Plaintiff fails to show that the conduct that he views as harassing was conduct that fell outside the scope of personal management decisions and constituted harassment.

Plaintiff also alleges that harassment was communicated via official actions in the form of unfounded performance criticism, removal from the seniority list, and “backfill” of alleged performance deficiencies but “harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee” and “often does not involve any official exercise of delegated power on behalf of the employer.” (Roby, supra, 47 Cal.4th 706 [italics original].)

Plaintiff here fails to allege facts that show the social environment of his workplace became intolerable because he experienced verbal, physical, or visual harassment by Defendant’s employees or supervisors that was sufficiently severe or pervasive to sustain a claim for harassment.

This is Plaintiff’s second attempt to amend the second cause of action. Plaintiff has failed to show there is a reasonable probability of a successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Without the need for additional discovery, Plaintiff should have been able to articulate sufficient facts to plead a cause of action for harassment.

Accordingly, the Demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

b. 4th COA: Failure to Prevent Discrimination, Harassment, and/or Retaliation

FEHA makes it unlawful employment practice “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Cal. Gov't Code § 12940(k).)

Defendant demurs to the fourth cause of action on the basis that since Plaintiff’s harassment claim fails, so does the fourth cause of action for failure to prevent harassment. The Court agrees and sustains the demurrer to the fourth cause of action, WITHOUT LEAVE TO AMEND, as to the claim that Defendant failed to prevent harassment.

c. 5th COA: Whistleblower Retaliation under Labor Code Section 1102.5

Defendant asserts that Plaintiff fails to state sufficient facts to support a cause of action under Labor Code Section 1102.5.

To establish a prima facie case of retaliation under FEHA, Plaintiff must prove that “(1) he engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

The California Supreme Court recently explained that:

“Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. As relevant here, section 1102.5 prohibits an employer from retaliating against an employee for sharing information the employee ‘has reasonable cause to believe ... discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation. (§ 1102.5, subd. (b).) ‘This provision,’ we have explained, ‘reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.’ [Citation].”

(Lawson v. PPG Architectural Finishes, Inc.¿(2022) 12 Cal.5th 703, 709.)

Plaintiff asserts he submitted “a rebuttal outlining why the [performance] allegations were false” to the Comprehensive Evaluation Committee and in November 2018, Plaintiff also submitted an additional complaint expressing why he believed the allegations were false and were further acts of discrimination and harassment on the basis of age and/or retaliation. (TAC ¶ 18, 21.) “The Evaluation Committee was comprised of highranking members and officers of Entity Defendant, who individually and as a group had authority to investigate and/or correct any violations of law, rule, and/or regulation.” (TAC ¶ 21.) Plaintiff also met with Gribbons, President of entity Defendant, to reiterate why the performance allegations were false and were inconsistent with Defendants’ customary policies and procedures. (TAC ¶ 22.) “As President of Entity Defendant, Gribbons had the authority to investigate and/or correct any violation of law, rule, and/or regulation.” (TAC ¶ 22.)

Defendant argues that Plaintiff pleads a conclusory statement and fails to plead with specificity what information he disclosed to the Comprehensive Evaluation Committee. There is no requirement that Plaintiff plead with specificity the information he reported, only that the plaintiff engage in a protected activity. All that Plaintiff was required to do was report or disclose his reasonable belief of a violation of or noncompliance with federal and state laws. (See Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592–593.)

Taking Plaintiff’s allegations as true for purposes of a demurrer, Plaintiff has sufficiently pled that in November 2018, he engaged in a protected activity by complaining to the Committee that the performance allegations were false and were discriminatory and harassing on the basis of age and/or constituted retaliation. (TAC ¶ 21.) Plaintiff also alleges he engaged in a protected activity when he informed Gribbons why the performance review was false and inconsistent with Defendant’s customary policies and procedures. (TAC ¶ 22.) The Committee and Gribbons are alleged to have had the authority to act and correct any violations and/or investigate the allegations. Plaintiff further asserts he is the victim of retaliation when he was removed from the seniority list without being able to appeal the decision. (TAC ¶ 25.)

Defendant argues that Plaintiff’s complaints to the Committee and Gribbons were not to a protected activity because the disclosures do not rise to the level of blowing a whistle and were instead made in the context of an interpersonal matter. (See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1385 disapproved on other grounds by Lawson, supra, 12 Cal.5th at 716.)

However, the facts regarding the disclosures in Patten are different from the ones in this instant action because the disclosures at issue here are not based on student complaints that the employee-plaintiff forwarded to a supervisor for personal action but were instead complaints about a performance evaluation being wrongful due to a discriminatory animus. In other words, the complaints to the Committee and Gribbons involved a report of unlawful conduct, that is discrimination on the basis of age. Consequently, Plaintiff was removed from the seniority list, an action Plaintiff believed to be grossly disproportionate to his alleged performance issues, and later terminated. (TAC ¶ 25).

Accordingly, the Court finds that Plaintiff has pled sufficient facts to sustain a cause of action for whistleblower retaliation. The Demurrer to the fifth cause of action is OVERRULED.

Conclusion

Moving party to give notice.