Case Number: BC641054 Hearing Date: March 14, 2018 Dept: 53

ZINA CAMp-LLOYD vs. county of los angeles , et al.; BC641054, March 14, 2018

[Tentative] Order RE: DEFENDANT COUNTY OF LOS ANGELES’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

Defendant COUNTY OF LOS ANGELES’s Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

Plaintiff Zina Camp-Lloyd (“Plaintiff”) filed this action on November 16, 2016 against Defendant County of Los Angeles (the “County”). Plaintiff is a sworn peace officer and probation officer for the County. Plaintiff alleges that during the course and scope of her employment, her supervisor Senior Deputy Probation Officer Michael Russel (“Russell”) engaged in a course of verbal and physical conduct with the intent of sexually harassing her. Plaintiff alleges that, when she refused Russell’s advances, Russell transferred her against her wishes from Lancaster to the East Los Angeles office. Plaintiff further alleges that, after she complained about Russell’s actions, Russell changed her work schedule to eliminate her ability to work from a satellite office and force her to come to Russell’s worksite daily. The operative First Amended Complaint asserts causes of action for (1) sexual harassment in violation of the FEHA, (2) retaliation in violation of the FEHA, and (3) retaliation in violation of the FEHA (second claim).

The County now moves for summary judgment on the first and second causes of action, as the third cause of action (the second retaliation claim) was filed after the motion for summary judgment was filed.

EVIDENCE

As an initial matter, the Court notes that the County, in its reply brief, indicates that it “will move to strike Paragraph 19” from the First Amended Complaint and cites to Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 297 for the proposition that a defendant may move the court for an order striking an amended complaint if the complaint was amended without the court’s permission. Here, Plaintiff’s motion for leave to file the First Amended Complaint was granted on February 27, 2018. The Court does not have before it a noticed motion to strike by the County pursuant to Code of Civil Procedure section 435. Therefore, insofar as the County is moving for an order striking the First Amended Complaint by way of its reply brief, such motion is DENIED.

Plaintiff’s Request for Judicial Notice as to Items Nos. 1-4 is GRANTED.

The County’s evidentiary objections are ruled on as follows:

· Nos. 1-3: overruled

· Nos. 4-7: sustained

· No. 8: sustained as to p. 32: 24-25, p. 33: 1-13, p. 33: 16-25, p. 34: 1-4, p. 34: 25, p. 35: 1-3, p. 37: 2-13; overruled as to remainder

· No. 9: sustained as to p. 46: 18-25, p. 47: 1-9, p. 84: 22-25, p. 85, p. 86:1-15; overruled as to remainder

APPLICATION TO FILE UNDER SEAL

Plaintiff’s Application to File Records Under Seal in Connection with Opposition to Motion for Summary Judgment or Adjudication is GRANTED.

LEGAL STANDARD

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.

DISCUSSION

A. Facts Re Harassment

The Court notes the following undisputed and disputed facts concerning Plaintiff’s allegations of harassing conduct:

1. Mike Russell (“Russell”), Plaintiff’s supervisor, commented to Plaintiff about her appearance during a funeral in 2010. He called Plaintiff to tell her how good she looked. (Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) 5.)

o In her Opposition to Defendant’s Separate Statement of Undisputed Material Facts (“Response to UMF”), Plaintiff disputes this fact by stating that Russell denies that this happened. (Response to UMF 5.)

2. In 2014, and possibly before June 2014, Russell called Plaintiff and said that a dress she wore was “sexy” (UMF 27-28.)

o Plaintiff disputes this fact by stating that Russell denies that this happened. (Response to UMF 27-28.)

3. Sometime before June 2014, Russell called Plaintiff into his office and approached her and placed his arms around her hugging her and placed his hand on her waist; in April 2015, Russell again hugged Plaintiff from behind. (FAC, ¶ 9; UMF 50, 54.)

o Plaintiff disputes this fact by stating that Russell denies that it happened. (Response to UMF 50, 54.)

o Plaintiff cannot provide an estimate of how many times Russell hugged her. (UMF 53.)

4. Prior to June 2014, Russell said he wanted to date Plaintiff. (UMF 29.) This is undisputed.

5. Prior to June 2014, Russell had Plaintiff use an “in-and-out button board” in his office because he wanted her in his office, even though other employees did not have to use the board. (UMF 33-34.) This is undisputed.

6. At some point prior to June 6, 2014, Russell asked Plaintiff about her relationship with a co-worker. (UMF 22.) This is undisputed, but Plaintiff does not know if Russell asked about the co-worker more than five times. (UMF 26.)

7. On 9/2/14, Russell sent a text message about his back hurting and being at the gym. (UMF 42.) This is undisputed.

8. On 9/2/14, Russell sent a text message about how Plaintiff could relate and that he “thought about [Plaintiff] right when [he] grabbed the bar.” (UMF 43.) This is undisputed.

9. On June 6, 2014, Russell received a picture of Plaintiff she accidentally sent via text message to Russell. Russell asked for more pictures; Russell asked what Plaintiff was wearing under her clothes; Russell said Plaintiff looked “delicious”; Russell sent a text message to Plaintiff stating that he had not forgotten about the pictures. (FAC, ¶ 12; UMF 38.)

o Plaintiff is not sure if Russell verbally requested photographs from her more or less than five times. (UMF 46.)

o The last time Russell asked for a picture was prior to April 2015. (UMF 47.)

10. In 2014, Russell asked female employees if he could see their “titties.” (FAC, ¶ 13; UMF 36.) This is undisputed.

11. In late 2013 or early 2014, Russell had Plaintiff transferred from Lancaster to the East Los Angeles office so that he could date her. (FAC, ¶ 14; UMF 15.)

o Plaintiff disputes this fact by stating that Russell denies any discussions re transferring Plaintiff. (Response to UMF 15.)

12. In late 2013 or early 2014, Russell changed Plaintiff’s work schedule to eliminate her ability to work from a satellite office so that she would have to work at his location daily. (FAC, ¶ 14; UMF 17.) This is undisputed.

13. After November 2016, and continuing into 2017, Plaintiff was concerned that she would not receive sufficient backup from two other deputies that Russell assigned to accompany her during arrests. (FAC, ¶ 19; Plaintiff’s Separate Statement of Additional Undisputed Material Facts (“AUMF”) 12.)

B. First Cause of Action: Sexual Harassment

1. The Harassment Claims Are Time-Barred

The County contends that the harassment claims are time-barred for Plaintiff’s failure to make a DFEH claim within one year of the allegedly unlawful incidents. (See Gov. Code, § 12960(d).) It is undisputed that Plaintiff reported the sexual harassment on April 8 or 9, 2015. (UMF 55-57.) Plaintiff submits evidence that she filed a DFEH complaint on February 26, 2016, which is within one year from April 2015. (AUMF 1; RFJN, Ex. 1.) The County disputes this fact but has presented no supporting evidence of the basis for its dispute. Therefore, the Court finds that Plaintiff’s harassment claims for conduct occurring between February 2015 and February 2016 are not time-barred.

a. Equitable Tolling

As for the conduct that occurred prior to February 2015, Plaintiff contends that the time for her to make a DFEH claim was equitably tolled while she was pursuing an internal grievance procedure, or the County Policy of Equity. (See McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88.) (AUMF 2.) The Court has sustained the evidentiary objections to Plaintiff’s supporting evidence of this purported fact because it is not properly authenticated and lacks foundation and personal knowledge. Further, even if the evidence was properly submitted, the Court finds that Plaintiff’s evidence does not sufficiently raise a triable issue of fact. As noted by the County, McDonald requires more than just a bare assertion of the pursuit of an internal grievance procedure. Rather, McDonald requires an evidentiary showing that a basis for equitable tolling exists, namely, that the internal grievance procedures “afford a complainant . . . a full opportunity to formally or informally resolve a dispute in a way that will, in many cases, minimize or eliminate entirely the need for further judicial proceedings.” (Id. at p. 105.) There is no evidence that the claims process utilized by Plaintiff (the Policy of Equity) would justify equitable tolling.

b. Continuing Violations

Plaintiff also contends that the continuing violations doctrine allows her to assert harassment claims that fall outside of the one-year period. (See Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1052-1053.) Harassing conduct inside the limitations period is deemed to be a “continuing violation” outside the limitations period if the actions: (1) are sufficiently similar in kind; (2) occurred with reasonable frequency; and (3) did not acquire a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

The Court finds that the continuing violations doctrine applies to Plaintiff’s claims because there is evidence of harassing conduct occurring inside the limitations period, and this conduct is sufficiently similar in kind to the harassing conduct occurring outside of the limitations period. Specifically, the last time Plaintiff was subjected to a hug from behind from Russell occurred in April 2015. Prior to that Plaintiff had been subjected to some number of hugs from Russell, as well as the other conduct indicating his desire to date her.

2. Collateral Estoppel

Plaintiff contends that the County’s own investigation into her harassment complaint against Russell resulted in a finding that his actions constituted sexual harassment and created a hostile work environment. (AUMF 3.) Because Russell did not appeal the findings, the County is now collaterally estopped from challenging those findings in the instant case. (Opp’n, p. 13-14.) Plaintiff cites to Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 868 in support of her position. However, as noted by the County, and along the same lines as discussed above in the equitable tolling section, Plaintiff has set forth no evidence that the County’s Policy of Equity has the “indicia of administrative proceedings” that would justify application of collateral estoppel. (Id. at p. 881.) There is no evidence that there was a hearing before an impartial decision maker; that testimony was given under oath or affirmation; that a party had the ability to subpoena, call, examine, and cross-examine witnesses, or to introduce documentary evidence, or to make oral and written argument; that there was a taking of the record of the proceeding; and that there was a written statement of reasons for the decision. (Ibid.) Without such evidence, the Court is unable to make a determination, as a matter of law, that the Policy of Equity findings are entitled to preclusive effect.

3. Plaintiff’s Prima Facie Case for Harassment

To establish harassment in violation of the FEHA, a plaintiff must “show she was subjected to . . . conduct[] or comments that were (1) unwelcome; (2) because of sex; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (internal citations omitted.) “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.) “The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Id. at pp. 609-610.) “The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 142.)

Notwithstanding that Plaintiff actually disputes the fact of some of the allegedly harassing conduct as presented by the County in its moving papers, the Court finds that the conduct alleged does not raise a triable issue of fact that the complained of conduct was severe or pervasive. The text messages between Plaintiff and Russell occurred in June 2014 and in September 2014, and each instance comprised only a handful of actual messages. Only one of the text message exchanges could be characterized as sexual in nature (the June 6, 2014 messages), and the evidence indicates that the context of those messages was a text message initiated by Plaintiff herself. Even if all of this conduct was “unwelcome” as Plaintiff contends, the totality of the circumstances militates against a finding that the conduct was severe or pervasive. Furthermore, the only physical contact alleged is two instances of hugging, occurring more than a year apart.

For the foregoing reasons, the Court grants summary adjudication on the first cause of action.

C. Second Cause of Action: Retaliation

For the same reason as discussed above, the Court finds that the retaliation cause of action is not time-barred.

It is unlawful for an employer to retaliate against an employee because she reported sexual harassment or filed a complaint under the FEHA. (See Gov.C. § 12940(h).) “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she 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 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.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

Plaintiff contends that she engaged in four acts of “protected activity”: the April 2015 Policy of Equity complaint, her first DFEH claim in February 2016; her second DFEH claim in November 2016; and the filing of the instant lawsuit on November 16, 2016. (AUMF 1.) The County has not proffered any competent evidence to dispute that these acts fall within the definition of protected activity. “[S]ection 12940(h) makes it an unlawful employment practice “[f]or any employer … to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042 (emphasis in original).)

The County contends that Plaintiff was not subjected to an adverse employment action. In opposition, Plaintiff asserts that she was subjected to being ignored by her co-workers, placed at risk by not being informed of the status of matters with her juveniles, yelled at, forced to be accompanied by two other officers, and had her desk moved. (AUMF 7-12.) The Court sustained the County’s evidentiary objections to the evidence supporting these facts. Therefore, the only remaining fact is that Plaintiff’s two co-workers refused to work alone with her, making her feel like she would not receive the necessary back-up from them. (AUMF 12.)

An adverse employment action is generally an action that materially affects the terms, conditions, or privileges of employment. (See Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161.) “The protections against discrimination in the workplace . . . are ‘not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee.’” (Featherstone v. Southern California Permanente Medical Group, supra, 10 Cal.App.5th at p. 1162, quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) “FEHA ‘protects an employee against unlawful discrimination with respect . . . to . . . 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.’” (Featherstone v. See ibid., quoting Yanowitz, supra,,.) “[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1052.)

The Court finds that there is a triable issue of fact as to whether Plaintiff was subjected to an adverse employment action and whether there was a causal nexus between the protected activity and the adverse action. Plaintiff’s evidence demonstrates that Russell knew about the Policy of Equity complaint filed against him, and that Russell had the authority to decide how much back-up she would receive from her co-workers. (AUMF 10-12.) Taking into account the unique circumstances of Plaintiff’s employment and the workplace context of her claims, the Court finds that there is a triable issue that the conduct complained of was reasonably likely to adversely and materially affect her job performance. Therefore, summary adjudication as to the second cause of action is denied.

CONCLUSION

For the foregoing reasons, Defendant County of Los Angeles’ Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication, is granted in part and denied in part as follows: summary judgment is denied, summary adjudication is granted as to the first cause of action for sexual harassment, and summary adjudication is denied as to the second cause of action for retaliation.

Plaintiff is ordered to provide notice of this ruling.

DATED: March 14, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court