2015-00179003-CU-OE

Martina Silva vs. Dept. of Housing & Community Development

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Diane

Filed By: Koenigsberg, Marc B.

Defendant California Department of Housing and Community Development’s (“HCD”) Motion for Summary Judgment Summary Adjudication as to the claims of Diane Snyder-Harms in her First Amended Complaint (“FAC”) is ruled on as follows:

Defendant’s Request for Judicial Notice are granted.

Plaintiff’s Request for Judicial Notice is denied.

Defendant’s Evidentiary Objections are sustained.

Plaintiff alleges a cause of action for sexual harassment arising out of her employment with HCD. Plaintiff contends that she suffered workplace sexual harassment due to the conduct of former HCD Deputy Director Geurdon Stuckey (“Stuckey”). She contends Stuckey targeted female employees with promises of “mentoring sessions” which often resulted in promotion for those who participated. Plaintiff contends that she refused Stuckey’s advances and was not promoted despite her exemplary work

history.

Plaintiff filed a Department of Fair Employment and Housing (DFEH) administrative complaint on January 8, 2015. She requested and obtained from DFEH an immediate right to sue letter. (UMF Nos. 1 and 5.) DFEH conducted no investigation and closed the case “immediately.” (See Koenigsberg Decl, ¶ 5, Ex. C, Depo. of Plaintiff, Vol 3, 407:14 – 408:25) Plaintiff filed her superior court complaint on May 11, 2015, and her FAC on August 4, 2015. (See Court Docket, ROA #1, #9.) Plaintiff filed dismissals of the causes of action for discrimination based on age for violation of Labor Code section 1102.5 on or about October 5, 2017. Therefore only the claim for sexual harassment and gender harassment remain.

HCD contends plaintiff’s claim for sexual harassment fails because: (1) she did not exhaust her administrative remedies with the DFEH; and (2) Plaintiff will not be able to prove that she suffered sexual harassment. As to plaintiff’s claim for gender discrimination, HCD contends the claim fails because there was no failure to promote during the one year period before she filed her FEHA Complaint on January 8, 2015.

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991)

231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an issue which has not been pleaded in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Second, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p) (2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855).

Finally, once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most

favorable to the party opposing the motion.

(Aguilar, supra, 25 Cal.4th at p. 843.)

Sexual Harassment (Exhaustion of Administrative Remedies )

Motion for Summary Adjudication/Judgment is denied.

Before filing a civil action asserting claims under the Fair Employment and Housing Act (FEHA), a claimant must first exhaust her administrative remedies by filing a complaint with the DFEH, (Gov, Code § 12960(b); see McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal,4th 88, 113 (concluding FEHA’s administrative complaint procedure is a required administrative proceeding before a plaintiff is permitted to proceed in court).) In the context of the FEHA, “the failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect.” (Johnson v City of Loma Linda (2000) 24 Cal. 4th 61, 70. Blum v. Superior Court (2006) 141 Cal.App.4th 418, 422.) It is “plaintiffs burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.” ( Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336,1345.)

Government Code section 12960(b) requires that a claimant must “set forth the particulars” of the unlawful conduct that is the basis of the employee’s grievance. (Gov. Code, § 12960(b); 2 Cal.C. Regs §10007, Martin v Lockheed Missles & Space Co. (1994) 29 Cal.4th 1718, 1724. Any civil action for violation of FEHA is limited to matters like or related to the DFEH complaint: “Essentially, if an investigation of what was charged would necessarily uncover other incidents that were not charged, the latter incidents could be included in a subsequent civil action. Okoli v Lockheed Technical Operations Co (1995) 36 Cal.App.4th 1607, 1615. What is submitted to the DFEH is to be liberally construed in favor of plaintiff and must also be construed in light of what might be uncovered by a reasonable investigation. Nazir v Unitied Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.

A plaintiff’s failure to exhaust administrative remedies is ground for the granting of summary judgment.. (See e.g Wills v. Superior Court (2011) 195 Cal, App. 4th 143,148.) “To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint….” (Martin v. Lockheed Missiles & Space Co. (1994) 29

Cal.App.4th 1718,1724.

HCD contends the FEHA Complaint set forth below is insufficient as a matter of law, arguing that it does not state the “particulars” of the FEHA claim.

“On or around Jan 08,2015, complainant alleges that respondent took the following adverse actions against complainant: Discrimination, Harassment, Retaliation, Denied a good faith interactive process, Denied a work environment free of discrimination and/or retaliation. Denied promotion. Complainant believes respondent committed these actions because of their: Age – 40 and over, Color, Engagement in Protected Activity, Race, Sex – Gender.” (sic)

In the section provided for “Additional Complaint Details,” Plaintiff states that: “I believe I was denied a promotion, and continue to be denied a promotion for reasons including my refusal to take part in an illegal activity, my gender, race and age.” (UMF No. 4.)

Defendant contends that plaintiff’s failure to provide the underlying facts describing the sexual harassment, the dates such alleged sexual harassment occurred, what conduct she alleges constituted the sexual harassment, or the identities the person or persons she claims sexually harassed her render her FEHA complaint deficient as to a claim for sexual harassment. (UMF Nos. 3 and 4.)

HCD has cited no cases on point that discussed the requirement of factual detail in the FEHA Complaint. In fact, the FEHA Complaint provided to plaintiff on line provided only boxes to check and a space to list the names of the individuals to be sued. There was no space to provide a narrative of supporting facts. Plaintiff alleged that she was harassed on the basis of age, sex and gender and that she was discriminated against by being denied a promotion. She named the alleged harasser as a co-respondent. The cases relied on by defendant are cases in which plaintiff’s complaint included a type of discrimination that was not mentioned in the FEHA Complaint. In Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718,1724, plaintiff alleged only age discrimination in FEHA complaint so it was beyond the scope of the FEHA complaint to allege the claims for sexual discrimination, harassment and retaliation in her civil complaint.)

However here, although plaintiff’s FEHA complaint is limited on supporting facts, a reasonable investigation of each type of conduct alleged, including failure to promote and harassment based on sex would have led to the discovery of the plaintiff’s contentions regarding workplace sexual harassment based on Stuckey’s conduct towards other women in the office and retaliation against her by not promoting her. The Court rejects HCD’s argument in its Reply that an investigation into the failure to promote claim involves totally different kinds of conduct, and thus an investigation into the failure to promote claim would not have revealed the sexual harassment. Plaintiff contends that the reason why she was not promoted was that she rebuffed Stuckey’s conduct. Thus the allegations are related and sufficient.

Sexual Harassment (No severe or pervasive conduct)

HCD alternatively contends that plaintiff’s sexual harassment claim fails because she was not subjected to a hostile work environment. “Claims of a hostile or abusive working environment due to sexual harassment arise when a workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (Jones v. Dep’t of Corr. & Rehab. (2007) 152 Cal.App.4th 1367, 1377 (internal citations omitted).) A plaintiff suing for unlawful sexual harassment must prove that: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex;

(4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Id. citing Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608.)

HCD’s Separate Statement sets forth a number of actions by Stuckey that plaintiff testified to at her deposition. HCD contends that this testimony shows that plaintiff did not suffer sexual harassment. For example, plaintiff admitted that there were no quid pro quo comments such as Mr Stuckey saying she must submit to sexual conduct as a condition of receiving an employment benefit. Plaintiff also admitted that there was no conduct of a sexual nature directed towards plaintiff and that plaintiff never saw

Stuckey grabbing anyone. (See UMFs 12-21.) HCD also sets forth the following additional facts in an attempt to show plaintiff did not suffer sexual harassment: Plaintiff saw Stuckey giggling and whispering with women in their cubicles on a daily basis but could not hear what they were saying, (UMF 22, 23); Plaintiff observed coy looks, little smiles” and Stuckey being “real close” but not touching the women (UMF 24); plaintiff does not know for a fact that Stuckey had sexual relationships with specific women (UMF 32) and the like (See also UMFs 33-62.)

Court finds that the evidence submitted by HCD in support of the motion is insufficient to meet its burden that plaintiff cannot prove an element of her cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show the elements of sexual harassment. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). HCD’s definition of what constitutes sexual harassment is overly narrow. In Miller v Department of Corrections (2995) 36 Cal.4th 446, the California Supreme Court held that unwarranted favorable treatment to numerous female employees with whom the warden was having sexual affairs could constitute an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter the working conditions and create a hostile work environment. In Miller, summary judgment was improper because there was evidence that advancement for women at the prison was based upon sexual favors, that the warden viewed female employees as sexual playthings and that his ensuing conduct conveyed this demeaning message in a manner that had an effect on the work force as a whole. Thus, the facts relied on by defendant to support its argument that plaintiff cannot show sexual harassment do not meet its burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action.

Gender Discrimination

Summary Adjudication is denied.

To state a gender discrimination claim under the FEHA, a plaintiff must allege the following elements of a prima facie case: (1) she was a member of a protected class;

(2) she was performing competently in the position she held; (3) she suffered an
adverse employment action, such as a termination or demotion; and (4) some other circumstances suggest discriminatory motive, (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,355.)

Pursuant to Government Code section 12960, an administrative complaint must be filed with the DFEH within one year after the date upon which the alleged unlawful practice occurred. (Gov. Code § 12960(d) (“No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred…”.) Plaintiff filed her DFEH complaint January 8, 2015, (UMF No. 74). Thus HCD contends that only alleged unlawful practices occurring from January 8, 2014 through January 8, 2015 are within the limitations period and therefore actionable.

HCD contends there was no failure to promote that occurred within one year prior to the date of plaintiff’s FEHA complaint. Thus, any failures to promote that occurred prior to this time are time-barred, and adverse actions that occurred after she filed her FEHA complaint are barred because she did not exhaust her administrative remedies and she never amended her FEHA complaint.

HCD offers the following facts in its Separate Statement: Plaintiff applied for a Specialist II position in 2012 or 2013, but the position was not filled. (UMF No, 65.) Plaintiff next applied for a newly-created Staff Service Manager II position with the HCD veterans program in February 2015. (UMF No. 66.) No interviews were conducted for this position, but instead the duty statement for the position was signed by an existing employee, co-plaintiff Kim Losoya. (UMF No. 66.) Plaintiff does not know if a man or woman eventually received this position. (UMF No. 71.) Plaintiff then applied for another Staff Services Manager II position in June 2015. (UMF No. 68.) This position was filled by another by another female applicant, Karen Patterson, who Plaintiff could not say was unqualified for the job. (UMF No. 69.) Neither male, nor female employees were given the opportunity to apply for the Specialist II Position that George Rodine was promoted to in January 2015 because the position was not posted. (UMF 71)

In opposition, plaintiff contends that she did not receive a promotion in January 2015 when George Rodine was promoted. The fact that no one was allowed to apply for this position is not dispositive. (Plaintiff’s deposition pages 435-436) Plaintiff thus contends that there is a triable issue of material fact as to whether the failure to promote plaintiff to the position was discriminatory. The motion for summary adjudication of the claim for gender discrimination is denied in that defendant has not established that the only promotions that occurred were outside the period covered by plaintiffs DFEH complaint. A trier of fact could infer that if George Rodine was promoted into a position in January 2015 without having to apply, plaintiff could also have been promoted into the position without having to apply. Plaintiff also relies on a later failure to promote in June of 2015. Because this failure to promote is related to her allegations in the FEHA complaint, the failure to amend her FEHA complaint does not defeat this claim.

The court need not reach the issue of whether the continuing violation theory applies to this case, as there is a triable issue as to whether the January 15 George Rodine promotion was within the one year before the FEHA complaint was filed.

The motion for summary adjudication of the claims for sexual harassment and gender discrimination is denied.

The motion for summary judgment is denied.